These RAYNMAKER TERMS OF USE (this “Agreement”) governs the use of the Services and Documentation (as each are defined below) and all information, data and other content made available to customer, as an individual or, if accessing or using the Services on behalf of another individual, organization, or entity (“Entity”), that Entity (in either case, “Customer”) and RaYnmaker, Inc. (“RaYnmaker”). By entering into an Order, accessing or using any part of the Services, or by clicking “I agree” to this Agreement, Customer agrees that it shall be bound by this Agreement.

1. Definitions.

1.1            “Authorized Users” means Customer employees who are authorized by Customer to use the Services, for whom subscriptions to the Platform have been purchased, and who have been supplied user access credentials by Customer. 

1.2            “Customer Data” means the Leads, Interactive Data and such other electronic data and information input into the Platform by or on behalf of Customer. Customer Data does not include Usage Data or Aggregated Data.

1.3            “Documentation” means the user manuals or Software specifications provided by RaYnmaker to Customer in connection with the Services.

1.4            “Error” means any reproducible error or defect in the Platform that causes the Platform not to operate substantially in accordance with the Documentation.

1.5            “Intellectual Property Rights” means all worldwide intellectual property rights in existence now or in the future, including without limitation, copyrights, trademarks, service marks, trade secrets, know how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.

1.6            “Order” means the purchase order and/or applicable ordering form between the Customer and RaYnmaker that sets for the Services, Fees, the Term, and such other terms that may be agreed to by and between the parties.

1.7            “Platform” means the RaYnmaker’s proprietary platform utilized by RaYnmaker to provide the Software to Customer under this Agreement. The Platform does not include Customer’s connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Customer and its Authorized Users to connect to and obtain access to the Platform or to utilize the Services.

1.8            “Services” means, collectively, the Platform, Marketing Services and After-Hours AI Agent Services.

1.9            “Software” means RaYnmaker’s proprietary software as a service offering as set forth in the applicable Order and made available through remote access by RaYnmaker to Customer and its Authorized Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.

2. Access Rights; Data Usage; Services.

2.1            Access Rights; Customer’s Use of the Platform . Subject to the terms and conditions of this Agreement, RaYnmaker hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 10.2), non-sublicensable right to access and use the Platform for Customer’s internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement. RaYnmaker and its licensors reserve all rights in and to the Platform not expressly granted to Customer under this Agreement.

2.2            Restrictions. Customer shall not, and shall not permit any third party to: (a) modify, adapt, alter, translate, or create derivative works from the Platform or the Documentation; (b) merge the Platform with other software other than through interfaces published by RaYnmaker; (c) sublicense, distribute, sell, use for service bureau use or as an application service provider, lease, rent, loan, or otherwise transfer the Platform or the Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Platform; (e) remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices included in the Platform; (f) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; or (g) share Authorized User credentials. Customer shall notify RaYnmaker of any unauthorized use of the Platform.

2.3            Prohibited Data. Unless otherwise set forth in the Order in respect of payment obligations, Customer shall not, and shall take commercially reasonable efforts to ensure that its Authorized Users do not, upload to the Platform or otherwise submit or make accessible to RaYnmaker any financial account or government issued identifiers (e.g., social security numbers, credit card information, or bank information), protected health information, or other types of sensitive data that is subject to specific or elevated data protection requirements (collectively, “Prohibited Data”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (i) the Platform and Software are not intended for the management or protection of Prohibited Data and may not provide adequate or legally required security for Prohibited Data; and (ii) RaYnmaker will have no liability for any failure to provide protections set forth in any laws, rules, regulations, or standards applicable to such Prohibited Data or to otherwise protect the Prohibited Data. If Customer or any Authorized Users upload any Prohibited Data to the Platform in violation of this Section 2.3, RaYnmaker may, without limiting any of its other rights and remedies, delete such Prohibited Data.

2.4            Data Collection.  Customer acknowledges the Platform contains features that will allow the Platform to periodically collect and transmit to RaYnmaker certain data that does not identify Customer or its Authorized Users and which is related to use of the Platform, including without limitation, license count, integration usage, usage patterns, traffic logs, order count, Platform versions, operating system versions, and operational telemetry (“Usage Data”). Customer further acknowledges that in the course of providing the Platform, RaYnmaker collects (i) transcriptions, recordings and summaries of sales interactions between RaYnmaker and Leads (as defined below), (ii) metadata and analytical data arising from sales interactions between RaYnmaker and Leads, (iii) general demographic data, questions, input and information communicated through the After-Hours AI Agent Services and through RaYnmaker’s contact center agents, and that RaYnmaker may record any such communications, create transcriptions and summaries thereof (“Interactive Data”).  By accessing the Services, Customer hereby consents to RaYnmaker’s collection and use of the Usage Data and Interactive Data (i) for the purpose of providing the Services to Customer and otherwise performing its obligations and exercising its rights under this Agreement; (ii) to operate RaYnmaker’s business, including to develop, enhance, modify, inform and improve RaYnmaker’s products and services and any future products and services; (iii) for internal research purposes, (iv) for benchmarking purposes to create (in aggregated form) statistical comparisons among users of the Services and (v) to improve its products, improve the quality of its analytics and improve (“train”) any artificial intelligence algorithms and machine learning models associated with the Services. RaYnmaker may also create one or more de-identified, anonymized, or aggregated data set based upon the Interactive Data (“Aggregate Data”), and RaYnmaker may use of Aggregate Data for any lawful purpose.

2.5            Authorized Users.  Customer shall ensure that its Authorized Users comply with the terms of this Agreement. Customer is responsible for ensuring that only its Authorized Users have access to system access credentials for the Platform, and Customer will contact immediately RaYnmaker if Customer becomes aware of any unauthorized use or access to its account. Customer shall be responsible for any breach of this Agreement by its Authorized Users and any other such parties to whom Customer permits access to the Platform.

2.6            Provision of Services. Subject to the terms and conditions of this Agreement, RaYnmaker shall provide the Services to Customer and its Authorized Users. Customer shall supply to RaYnmaker the Customer Data along with access and personnel resources that RaYnmaker reasonably requests in order for RaYnmaker to provide the Services. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Authorized Users to connect to and access the Platform. 

2.7            Customer Obligations. Customer will complete a customized interview enrollment form with RaYnmaker prior to commencing the Services or receiving access to the Platform and such other training and orientation protocols required by RaYnmaker in connection with the Platform and Services. Customer shall provide such Customer Data as required to perform the Services hereunder. In respect thereof, Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; and (b) grant RaYnmaker the license in Section 7.3. Customer further represents and warrants that any actual or potential clients of Customer provided to RaYnmaker (hereinafter “Leads“) have given prior express consent to be contacted by telephone calls (which may be recorded by RaYnmaker in its discretion and without further notice) and text messages by RaYnmaker or its representatives, including through the use of automated dialing technology, in accordance with applicable laws and regulations, including but not limited to the Telephone Consumer Protection Act (TCPA) and any other federal or state laws governing telemarketing and communications.

2.8            Third Party Offerings. RaYnmaker may make access to or use of third-party Platform services, applications, or functionality that link to, interoperate with, or are incorporated into the Platform available to Customer (collectively, “Third-Party Offerings”). Customer acknowledges that RaYnmaker does not own or control such Third-Party Offerings, they are made available as a convenience only, and are not part of the Platform or subject to any of the warranties, service commitments, or other obligations with respect to Platform under this Agreement and that such Third-Party Offerings are subject to their own terms and conditions. Any acquisition by Customer of Third-Party Offerings, and any exchange of data between Customer and/or its Authorized Users and any Third Party Offering is solely between Customer and/or its Authorized Users and the applicable Third-Party Offering provider. Access to and use of any Third-Party Offering is at Customer’s own risk and is solely determined by the relevant third-party provider and is subject to such additional terms and conditions applicable to such Third-Party Offering. RaYnmaker may disable or restrict access to any Third-Party Offerings on the Platform at any time without notice. RaYnmaker is not liable for Third-Party Offerings or any Customer Data provided to a third party via a Third-Party Offering.

2.9            Beta Products. From time to time, RaYnmaker may invite Customer to participate in pre-release or beta versions of features, functionalities, or modules (each, a “Proof of Concept” or “POC”) solely for evaluation and testing purposes during the specified trial period (“Trial Period”). Participation in a POC is voluntary and will end on the earlier of (i) the general release of the POC; (ii) RaYnmaker’s decision to discontinue the POC; (iii) the end date specified in writing; or (iv) as otherwise outlined in the POC documentation. Customer shall provide RaYnmaker with feedback regarding the POC promptly after the Trial Period. Customer acknowledges and agrees that the POC is for evaluation purposes only, not for production use, and is provided “as-is” with no warranties. The POC is not part of the services under the Agreement and may be subject to additional terms and conditions. The POC is intended solely for feasibility or functionality assessment, and RaYnmaker does not provide production or operational support for the POC. RaYnmaker reserves the right, at its sole discretion, to discontinue or suspend Customer’s or any user’s use of any POC at any time, and may choose not to release the tested features to the public. If Customer or its Authorized Users are accessing and using a POC or any services in connection therewith during a Trial Period, this Section 2.9  will apply and take precedence over any inconsistent or conflicting terms with respect to the Trial Period. CUSTOMER’S AND ITS AUTHORIZED USERS’ USE OF OR ACCESS TO THE POC OR ANY SUCH SERVICES DURING THE TRIAL PERIOD IS ENTIRELY AT CUSTOMER’S AND EACH SUCH AUTHORIZED USER’S OWN RISK. RAYNMAKER IS NOT OBLIGATED TO CORRECT ANY BUGS, DEFECTS, OR ERRORS IN THE POC OR SUCH SERVICES DURING THE TRIAL PERIOD OR SUPPORT OR MAINTAIN THE POC OR SUCH SERVICES DURING THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, RAYNMAKER WILL HAVE NO SUPPORT OBLIGATIONS, INDEMNIFICATION OR DEFENSE OBLIGATIONS, OR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL PERIOD (UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE IN NO EVENT WILL RAYNMAKER’ LIABILITY WITH RESPECT TO THE TRIAL PERIOD EXCEED $100). EXCEPT AS ALTERED IN THIS SECTION 2.8, ALL OTHER TERMS OF THE AGREEMENT APPLY AND GOVERN CUSTOMER’S AND ITS AUTHORIZED USERS’ USE OF THE POC AND ANY SERVICES USED IN CONNECTION THEREWITH DURING THE TRIAL PERIOD. 

3. Fees and Payment.

3.1            Fees. Customer shall pay RaYnmaker the Fees set forth in the Order, and other agreed upon fees and expenses, in accordance with Section 3.1 (“Fees”). All Fees are non-cancelable and non-refundable, except as otherwise expressly set forth in this Agreement. Fees exclude, and Customer shall make all payments of Fees to RaYnmaker free and clear of, all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges. Customer agrees that Customer has not relied on the future availability of any Platform, programs, updates or upgrades in entering into any payment obligations under this Agreement.

3.2            Payment Terms. Customer shall pay to RaYnmaker the Fees upon execution of the applicable Order. Unless otherwise agreed to in writing by both parties, Customer shall pay to RaYnmaker the Fees, travel, and other services, expenses or charges upon receipt of Customer’s applicable invoice. All payments must be made in U.S. dollars. RaYnmaker may charge Customer interest on any amounts not paid when due at the rate of 1½% per month or the maximum rate permitted by applicable law; whichever is less, from the due date until paid. Unless otherwise set forth in the Order, all Fees are non-refundable.

3.3            Audit Rights. Customer shall maintain complete and accurate records of all information relevant to Customer’s usage of the Platform and other performance related to this Agreement. RaYnmaker may, during normal business hours and upon at least 5 business days prior notice, audit Customer’s records relating to Customer’s use of the Platform and performance under the Agreement in order to verify that Customer has complied with the terms of this Agreement, including Authorized User limitations. Customer shall promptly pay to RaYnmaker any amounts shown by any such audit to be owing, as reasonably determined by RaYnmaker, plus interest as provided in Section 3.2 above. Such audits may be conducted no more than once in any period of 6 consecutive months.

4. Warranties; Disclaimer

4.1            Access to the Platform. RaYnmaker warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. RaYnmaker does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies RaYnmaker of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, RaYnmaker will remedy with Downtime Credits that Customer may be entitled to receive due to Platform unavailability under Exhibit A): (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if RaYnmaker is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to RaYnmaker and RaYnmaker shall refund the amounts paid by Customer for access to the Platform for the period during which the Platform was not usable by Customer. The warranties set forth in this Section 4.1 do not apply to any Third Party Offerings or cover any Error caused by: (i) Customer or its Authorized Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Platform, or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions.

4.2            Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 4, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

5. Indemnification.

5.1            Customer Claims. RaYnmaker shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Services, as delivered, infringes any intellectual property rights of such third party (each, a “Customer Claim”), and RaYnmaker shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying RaYnmaker in writing of such Customer Claim; (b) giving RaYnmaker sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at RaYnmaker’s and expense, assisting in such defense. If RaYnmaker believes that the Services infringes or has infringed a third party’s Intellectual Property Rights, then RaYnmaker may, at its option and at its own expense either (w) procure for Customer the right to continue using the Services, (x) replace the Services with a non-infringing but functionally equivalent product, (y) modify the Services so it becomes non-infringing, or (z) if none of the foregoing alternatives is commercially reasonable, then RaYnmaker may terminate the applicable Order and refund a pro-rated amount of the Fees Customer may have paid to RaYnmaker, computed according to a 60 month straight-line amortization schedule beginning on the effective date of such Order. Notwithstanding the foregoing, RaYnmaker will have no obligation under this Section 5 with respect to any Customer Claim based upon: (1) any use of the Services not in accordance with this Agreement; (2) any use of the Services in combination with products, equipment, software or data that RaYnmaker did not supply or approve of, if such infringement would have been avoided without the combination with such other products, equipment, software, or data; (3) any modification of the Services by any person other than RaYnmaker or its authorized agents or subcontractors; (4) any information, design, specification, instruction, software, data, or material not furnished by RaYnmaker, (5) use of an older version of the Services that has been superseded or (6) a Customer Claim in connection with the Customer Data. This Section 5 states RaYnmaker’s entire liability and Customer’s sole and exclusive remedy for Customer Claims.

5.2            RaYnmaker Claims. Customer shall defend, any claim, suit, or action against RaYnmaker brought by a third party to the extent that such claim, suit, or action is based upon (i) RaYnmaker’s use of any Customer Data in accordance with this Agreement, (ii) Customer’s use of any Customer Data and (iii) Customer’s breach of Section 2.2 (a “RaYnmaker Claim”) and Customer shall indemnify and hold RaYnmaker harmless, from and against Losses that are specifically attributable to such RaYnmaker Claim or those costs and damages agreed to in a settlement of such RaYnmaker Claim. The foregoing obligations are conditioned on RaYnmaker: (a) promptly notifying Customer in writing of such RaYnmaker Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense.

6.            Limitation of Liability. In no event will EITHER PARTY be liable for any consequential, indirect, EXEmplary, special, or incidental damages, OR FOR any lost data, lost profits, OR costs of procurement of substitute goods or services, arising from or relating to this Agreement, THE PLATFORM, OR SERVICES, however caused and under any theory of liability (including negligence), even if SUCH PARTY has been advised of the possibility of such damages. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE PLATFORM, OR THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO RAYNMAKER UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO A LIABILITY. the exclusions and limitation of liabilities set forth in this section 6 DO not apply to EITHER PARTY’S OBLIGATIONS UNDER SECTION 5, BREACH OF SECTION 8 OR CUSTOMER’S BREACH OF SECTION 2.2.

7. Proprietary Rights and Ownership.

7.1            The Services. Except for the limited licenses explicitly granted in this Agreement, RaYnmaker and/or its licensors or suppliers, retain all right, title and interest in and to the Services, Software, Usage Data, Aggregate Data, Documentation, and all new software or product enhancements, improvements, or derivative works created or developed by RaYnmaker in the performance of this Agreement, and all Intellectual Property Rights in each of the foregoing.  Any rights not expressly granted to Customer hereunder are reserved by RaYnmaker.

7.2            Feedback. In RaYnmaker’s sole discretion, RaYnmaker may include ideas, features, functions, or other enhancements suggested by Customer (“Feedback”) in any future releases to any past, present or future Platform with no obligation or financial or other remuneration whatsoever to the Customer, and Customer hereby irrevocably assigns to RaYnmaker all of Customer’s rights in the Feedback, including any Intellectual Property Rights.

7.3            Customer Data. As between RaYnmaker and Customer, Customer retains sole ownership of Customer Data.  Customer hereby grants to RaYnmaker and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 10.2) license to use the Customer Data solely for the limited purpose of performing the Services for Customer, exercising the limited rights granted in Section 2.4 and fulfilling its other obligations under this Agreement.

8. Confidentiality.

8.1            Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. RaYnmaker’s Confidential Information includes the Platform, Documentation, and all routines, subroutines, directories, tools, programs, or any other technology included therein.

8.2            Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 8. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

8.3            Exceptions. Recipient shall have no confidentiality obligations under Section 8.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; or (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without use of or reliance on the Confidential Information of Discloser. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

9. Term and Termination

9.1            Term. This Agreement shall run coterminous will all active Orders.

9.2            Order Term. The term of an Order shall be set forth in the Order.

9.3            Termination for Cause. A party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.

9.4            Effects of Termination. Upon termination of an Order: (a) all amounts owed to RaYnmaker under this Agreement and such Order before such termination will be due and payable in accordance with Section 3; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) RaYnmaker shall promptly return or erase all Customer Data, except that RaYnmaker may retain Customer Data in RaYnmaker’s archived backup files..

9.5            Suspension. Notwithstanding anything to the contrary in this Agreement, RaYnmaker may suspend Customer’s access to the Services if RaYnmaker determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Authorized Users’ use of the Services poses a reasonable risk of harm or liability to RaYnmaker and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer or an Authorized User has breached Sections 2.2, 2.3 or 8; (d) Customer’s or its Authorized Users’ use of the Services violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 15 days after RaYnmaker has provided Customer with written notice of such late payment. RaYnmaker shall use commercially reasonable efforts to provide Customer with notice of such suspension. RaYnmaker may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to RaYnmaker’s reasonable satisfaction. RaYnmaker’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement.

9.6            Survival. Sections 1, 2.2, 2.4, 2.9, 3.2, 4.2, 5, 6, 7, 8, 9.4 and 10 of the Agreement, together with any accrued payment obligations, will survive expiration or termination of the Agreement for any reason.

10. General

10.1          Compliance with Laws. The Services may be subject to export restrictions. Customer shall comply with all applicable export and import control laws and regulations in its use of the Platform.

10.2          Assignments. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect.

10.3          Subcontractors. RaYnmaker may utilize subcontractors, subprocessors, and other third-party providers (collectively, “Subcontractors”) in the performance of its obligations, provided that RaYnmaker will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by RaYnmaker, would constitute a breach of, or otherwise give rise to liability to RaYnmaker under, this Agreement when they are performing for or on behalf of RaYnmaker.

10.4          Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.

10.5          Force Majeure. Except for payment obligations, neither party will be liable under this Agreement, or for any failure or delay in the performance of its obligations, resulting from any cause beyond that party’s reasonable control.

10.6          Notices. To be effective, notices under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party first set forth in the Order and will be effective upon receipt, except that e-mail may be used for routine communications and to obtain operational approvals and consents but may not be used for any other notices.

10.7          Governing Law and Venue. The laws of the State of Delaware govern this Agreement and any matters related to this Agreement, without regard to any conflicts of laws principles that would require the application of the laws of a different jurisdiction. Except for emergency injunctive relief as contemplated under Section 10.8, any dispute arising hereunder shall be settled by binding arbitration in accordance with the Comprehensive Arbitration Rules and Procedures promulgated by JAMS (formerly Judicial Arbitration and Mediation Services, Inc.) in effect as of the initiation of said arbitration. Such ruling and judgment shall also be binding, final, and non-appealable and may be entered by any court having jurisdiction thereof. The place of arbitration shall be conducted in Wilmington, Delaware, and all proceedings and communications shall be in English.

10.8          Remedies. Except as otherwise expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Each party acknowledges that any actual or threatened breach of Sections 2.2 or 8 may constitute immediate, irreparable harm to the non-breaching party for which monetary damages may not be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.

10.9          Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.10        Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

10.11        Entire Agreement. This Agreement and any exhibits or attachments hereto constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.

Exhibit A

Support

1. Support.

1.1            RaYnmaker shall provide emergency support services (for Priority 1 issues, as described below) 24 hours a day, 7 days a week, excluding RaYnmaker holidays; and

1.2            Technical and operational support services (Priority 2 and Priority 3 issues). from 9:00 AM – 5:00 PM MT Monday through Friday, excluding any RaYnmaker holidays (“Business Day”).

1.3            Customer may notify RaYnmaker of Errors or other support request issues by e-mailing RaYnmaker’s general support e-mail at support@raynmaker.ai, or by utilizing the technical support link within the Platform.

1.4            RaYnmaker shall designate the Priority Level of each Error that Customer reports. If there is dispute over the classification, Customer shall promptly notify RaYnmaker and the parties will make their best efforts to resolve any such disagreement. RaYnmaker shall not delay RaYnmaker’s actions to resolve the problems reported as a result of such disagreement.  If Customer does not notify RaYnmaker of its objection to a classification no later than 5 days after RaYnmaker notifies Customer of the classification, Customer will be deemed to have accepted such classification.

1.5            RaYnmaker shall use commercially reasonable efforts to respond to Errors reported to it by Customer within the Initial Response Period in the table below for the applicable Priority Level and correct such Error within the Resolution Response Time for the applicable Priority Error Level and Service Level.

2. Support Request Priority Levels.

2.1            Priority 1 – RaYnmaker Platform unavailable due to failure of RaYnmaker’s software, hardware, or ISP connections, but not to include system outages to the extent directly caused by failures of Customer’s or general telecom carrier networks/systems/ISP connections.

2.2            Priority 2 – RaYnmaker Platform defects which affect a primary feature or function within the Platform or that cause critical service disruption or degradation and which require correction to achieve full Platform functionality as described in the Documentation, but only to include problems with RaYnmaker’s software, hardware, or ISP connections. Such problems do not make the Platform unavailable but may disable a major feature or function.

2.3            Priority 3 – RaYnmaker Platform defects which affect a secondary or minor feature or function within the Platform or impacts normal business activities, but which do not require correction to achieve full system functionality as described in the Documentation, or general service issues such as slow response time, but only to include problems with RaYnmaker’s software, hardware, or ISP connections.

3. Initial Response and Resolution Response Times for Each Priority Level.

4. Downtime Credits.

4.1            If RaYnmaker is unable to cure a Priority 1 problem within 72 hours after first notification by Customer of the problem, Customer may request a credit. If Customer requests a credit in accordance with the foregoing sentence, Company shall provide Customer with a credit of two percent (2%) of the monthly Service Fee (applicable to the then-current Service month) for each full day the problem remains unresolved.

4.2            If RaYnmaker is unable to cure a Priority 2 problem within 7 business days after first notification by Customer of the problem, Customer may request a credit. If Customer requests a credit in accordance with the foregoing sentence, Company shall provide Customer with a credit of one percent (1%) of the monthly Service Fee (applicable to the then-current Service month) for each full week the problem remains unresolved.

4.3            If RaYnmaker is unable to cure a Priority 3 problem within 20 business days after first notification by Customer of the problem, Customer request a credit. If Customer requests a credit in accordance with the foregoing sentence, Company shall provide Customer with a credit of ½ of one percent (.5%) of the monthly Service Fee (applicable to the then-current Service month) for each full week the problem remains unresolved.

4.4            Downtime Credits to the Service for any particular month will be capped at the total amount of the monthly Service Fee paid by Customer for the then-current Service month.