Terms and Conditions

2.1. Connect Service Exclusions. No 0+ or Operator Assisted Calling; May Not Support x11 Calling. The Service does not support 0+ or operator assisted calling (including, without limitation, collect calls, third party billing calls or calling card calls). The Service may not support 311, 511 and/or other x11 (other than certain specified dialing such as 911 and 411, which are provided for elsewhere in this Agreement) services in one or more (or all) service areas.

The Connect Service is not a telecommunications service and we provide it on a best effort basis. Important distinctions exist between telecommunications service and the Connect Service offering that we provide. The Service is subject to different regulatory treatment than telecommunications service. This treatment may limit or otherwise affect Customer rights of redress before regulatory agencies.

2.2. Continuant Coverage Exclusions. Coverage service does not include repair for damages, malfunctions, or performance characteristics caused by: (1) non-Continuant or Original Equipment Manufacturer (“OEM”) software or facilities; (2) use of non-Continuant or OEM furnished equipment, software, or facilities with the covered equipment; (3) use of equipment, software, or facilities not covered by Continuant’s Coverage; (4) Customer failure to follow Continuant’s installation, operation or maintenance instructions, including Customer’s failure to permit Continuant timely remote access to covered equipment; (5) failure or malfunction of equipment, software, or facilities not under Continuant’s Coverage; (6) actions of non-Continuant personnel; (7) power surge, outage, and/or electrical storm; (8) equipment misuse, abuse or mishandling; (9) force Majeure conditions as stated in the Agreement. Unless otherwise specified, Coverage does not include batteries, tapes, and/or other consumables.

3. Implementation. In the event the implementation of Services stated herein exceeds thirty (30) days due to Customer’s actions or inactions, or for incomplete or inaccurate information, implementation will be placed on hold. Customer will incur an “On-Hold Fee” equal to one month of recurring service charges or 5% of the contract value, whichever is greater. Customer is required to give ten (10) business days' notice of their desire and readiness to resume implementation. In the event implementation exceeds ninety (90) days due to Customer, the Customer will be charged for the remainder of the implementation fees and monthly service billing as stated in the SOW will commence immediately.

4. Term. Connect Service and Coverage is offered on a monthly or multi-month basis as is determined in this SOW. The term begins on the date that Continuant activates Customer Connect Service and ends on the day before the anniversary date of Customer Term. Subsequent terms of this Agreement automatically renew on a monthly basis unless Customer give us written notice of non-renewal at least thirty (30) days before the end of the monthly term in which the notice is given. Customer is purchasing the Service for full monthly terms, meaning that if Customer attempts to terminate Service prior to the end of a monthly term, Customer will be responsible for the full month’s charges to the end of the then-current term, including, without limitation, unbilled charges, plus a termination fee, if applicable, all of which will immediately become due and payable. Customer will also be responsible for the next full month’s charges in the event that Customer does not provide the requisite thirty-days’ notice of termination prior to the expiration of the then-current term. Expiration of the term or termination of Service will not excuse Customer from paying all accrued and unpaid charges due under this Agreement.

5. Number Transfer on Service Termination. Upon the termination of Customer Service, we may, in our sole and absolute discretion, release to Customer new service provider the telephone number that Customer ported (transferred or moved over) to us from Customer previous service provider and used in connection with Customer Service if:

• Such new service provider is able to accept such number;
• Customer account has been properly terminated;
• Customer account is completely current, including payment for all charges and applicable termination fees; and
• Customer requests the transfer upon terminating Customer account.

5.1 Connect Services Termination Fee. Customer may cancel Coverage under this SOW, in whole or in part, or as to any of Customer’s covered sites at any time, by providing Continuant with thirty (30) days’ written notice to cancel, and by paying applicable cancellation charges. In the event of the termination of this SOW under this Section the Customer forfeits all payments received by Continuant, regardless work progress, and will owe Continuant for any applicable cancellation fees as well as any outstanding costs incurred such as current labor, equipment, software, travel, or shipping costs. Cancellation charges shall equal the lesser of twelve (12) months’ charges or the remainder of the term. Customer may cancel accepted equipment, services, or software orders by providing a written notice and subject to a twenty five percent (25%) cancellation fee. The purchase of software licenses, customer requested modifications to OEM products, fabricated parts, and 3rd party provided services are non-refundable and may not be returned to Continuant for a credit.

Upon any termination or suspension, Continuant may immediately deactivate or delete Customer's account and all related information. In no event shall Continuant be liable to Customer or any third party for terminating or suspending Customer's use or access to the Services.  If Customer or Continuant terminates or suspend Customer's right to use the Services, Customer shall not be entitled to any refund or proration of any pre-paid amounts, credits, or other amounts paid to Continuant prior to the termination or suspension.

8.1. Access to Emergency Calling Services. The Services provide access to emergency calling services in specific countries, allowing most Voice Service Customers to access Emergency Services (911 in the United States and Canada, 999/112 in the United Kingdom and throughout the European Union, 999/995/993 in Singapore, and any other applicable Emergency Services number). Customer’s access may differ depending on the Customer’s location or the device(s) the Customer is using, and it works differently than Customer may have experienced using traditional wireline or wireless telephones.

8.2. Emergency Service Availability Limitations. Customer acknowledges that the Emergency Services may not be available in the event of a power failure, fraudulent use, non-payment of Services, failure of Customer’s equipment, service outage, or network or Internet congestion or outage, and Customer accepts the responsibility of ensuring that it has alternate means to make emergency calls.

8.3. Emergency Services Acknowledgement. Customer expressly acknowledge that Customer is aware and understand the limitations of the Emergency Services calls using the Services(s) as set forth in this Agreement and agrees to the terms as set forth in the attached Emergency Services Policy at https://nuwave.com/policies/.

8.4. Notification of End Users or Other Users. Customer agrees to take appropriate action to ensure all End Users and other potential users of the Services have a clear understanding of the limitations of the emergency services calls.

9. Claiming Partner of Record. Customer acknowledges that Continuant will seek Claiming Partner of Record (CPOR) association to Microsoft Customer Tenant ID under the Microsoft Partner Incentives program, and that as part of the CPOR association, Continuant may receive monetary fees, commission, or compensation from Microsoft in connection with the services provided to Customer.

Updated: February 2025

Appendix A

Device as a Service (DaaS)

This Appendix A is expressly incorporated into the attached Statement of Work between Continuant and Customer (the SOW).

Equipment: Equipment is defined in the attached SOW as DaaS (“Equipment”).

1. DEVICE AS A SERVICE APPENDIX. This Appendix contains the entire arrangement between Customer and Continuant (the “Parties”) with regards to the DaaS of equipment from Continuant and no modifications of this Exhibit shall be effective unless in writing and signed by the Parties.
   
   
2. DELIVERY AND ACCEPTANCE OF EQUIPMENT. Acceptance of the Equipment as confirmed by Customer or five (5) days after it was delivered whichever comes first.
   
   
3. TERM: DasS Service will commence on the first (1^st) of the month after delivery and remain in effect until the end of the term as specified on this SOW. At the end of each term, Coverage will automatically renew for successive one (1) month terms at Continuant’s then current rates, until a new SOW and/or term is mutually agreed upon. Either Party must give the other Party written notice of its intent not to renew thirty (30) days prior to the expiration of the existing term.
   
   
4. PAYMENTS: The monthly DaaS payments for each item of Equipment (the “Monthly DaaS Payments”) shall be set forth in the applicable SOW, shall begin to accrue on the Commencement Date of the SOW and shall be due and payable by Customer in advance on the first day of each month. Payment schedule ends on the twentieth (20^th) of each month. Any DaaS Service provided after the twentieth (20^th) of each month shall be included on the following invoice. Customer shall pay a late charge on all Monthly DaaS Payments unpaid after the due date thereof equal to one and one-half percent (1-1/2%), or the highest rate permissible by law, whichever is less.
   
   
5. NET AND NON-CANCELABLE: This is a net DaaS and Customer's obligation to pay the rent and other amounts due hereunder is unconditional and not subject to abatement, reduction or set off, defense, counterclaim or interruption of any kind. The DaaS is a non-cancelable DaaS and will not terminate in the event of any damage to or destruction of the equipment. The DaaS may be terminated only as expressly provided herein. To the extent permitted by law, Customer waives the right to (i) cancel the DaaS; (ii) repudiate the DaaS; (iii) revoke acceptance of the equipment; (iv) recover damages from Continuant for any breaches of warranty or for any other reasons; (v) grant a security interest in the equipment to a third party; (vi) deduct from rents all or any part of claimed damages resulting from Continuant's default, if any.
   
   
6. PAYMENT OF TAXES: Customer shall also pay all taxes, however designated, which are levied or based on the DaaS, the Equipment or its purchase, use, lease, DaaS, operation, control or value, including, without limitation, personal property taxes, state and local privilege or excise taxes based on gross revenue, and any penalties or interest in connection therewith, or taxes or amounts in lieu thereof paid or payable by Continuant or Customer in respect of the foregoing, but excluding taxes based on Continuant’s net income. Charges for taxes, penalties and interest, if any, shall be promptly paid by Customer. In the event Customer defaults in the payment of any such tax, Continuant may pay such tax and shall be promptly reimbursed by Customer, with interest (plus attorneys’ fees and costs if any) as additional rent.
   
   
7. ARTICLE 2A LEASE; DISCLAIMER OF WARRANTIES:
   This DaaS is a true lease, which is a "finance lease", as that term is defined under Uniform Commercial Code ("UCC") Article 2A-103. Continuant has not selected, manufactured or supplied the Equipment. Customer has selected the Equipment from the manufacturer, supplier or distributor of the Equipment (the “Vendor”). Continuant acquired the Equipment or the right to possession and use of the Equipment only in connection with this DaaS. Either Customer has assigned to Continuant its acquisition agreement for the Equipment on or before signing this DaaS or Customer's approval of the contract evidencing Continuant's purchase of the Equipment is a condition to the effectiveness of this DaaS (and Customer's execution of this DaaS evidences its approval of said contract). Continuant hereby informs Customer that Customer may have rights under the contract evidencing Continuant's purchase of the Equipment and advises Customer to contact the Vendor for a description of any such rights. If Customer has entered into any acquisition agreement with Vendor, Customer shall perform all of the obligations set forth therein as if this DaaS did not exist. 
   
   CONTINUANT HAS NOT MADE AND MAKES NO, AND HEREBY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR EXPRESS OR IMPLIED WARRANTY WHATSOEVER HEREUNDER, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PURPOSE, OR OTHERWISE, REGARDING THE EQUIPMENT OR ANY PART OR THE DESIGN, QUALITY, OPERATION OR CONDITION THEREOF OR WITH RESPECT TO PATENT INFRINGEMENT OR THE LIKE. Continuant hereby grants, transfers and assigns to Customer during the term of this DaaS all of its right, title and interest in any express or implied warranties, indemnities or service agreements of the Vendor which are assignable by Continuant. Continuant shall permit Customer, as Customer’s sole remedy, to enforce any such representation, warranty, indemnity or service agreement against the Vendor in the name of Continuant, and not against Continuant or Assignee (as hereinafter defined).
   
   Customer acknowledges that it is not relying on Continuant’s skill or judgment to select or furnish goods suitable for any particular purpose and that there are no warranties which are not contained in this DaaS. CONTINUANT SHALL NOT BE LIABLE FOR DAMAGES, INCLUDING SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, arising out of or in connection with the performance of the Equipment or the use thereof by Customer and shall not be liable for any special, incidental or consequential damages, arising out of or in connection with Continuant’s failure to perform its obligations hereunder. Upon written request from the Customer, Continuant shall take all reasonable action requested by Customer to enforce any manufacturer’s warranty express or implied, relating to the condition or performance of the Equipment, which is enforceable by Continuant in its own name, provided, however, that Continuant shall not be obligated to resort to litigation to enforce any such warranty unless Customer shall pay all expenses incurred in connection therewith. Similarly, if any such warranty shall be enforceable by Customer in its own name, Customer shall take reasonable action requested by Continuant to enforce any such warranty. Customer shall indemnify and hold Continuant and its assigns harmless from any liability, claim, loss, damage or expense (including reasonable attorneys’ fees) of any kind or nature caused, directly or indirectly by (1) inadequacy of any Equipment for any purpose, (2) any deficiency or defect in any Equipment, (3) the use or performance of any Equipment, (4) any interruption or loss of service, use or performance of any Equipment, (5) any patent, copyright, or other infringement, or (6) any loss of business or other consequential damage whether or not resulting directly from any or all of the above. Customer acknowledges that it has made the selection of the Equipment based on its own judgment, and expressly disclaims any reliance upon statements made by Continuant. Customer acknowledges that Continuant has made no statements or representations upon which Customer is relying in leasing the Equipment, and that this DaaS contains all agreements and understandings between the parties.

8. RISK OF LOSS:
   

1. Continuant shall not be responsible for, nor shall the Monthly DaaS Payments or other sums due hereunder abate for any reason, including, but not limited to, any interruption in or loss of the service or use of the Equipment or any part thereof, or any loss or damage caused thereby, or by error in programming or instruction to the Equipment, latent defect, wear and tear, or gradual deterioration of the Equipment or any part thereof.
   
   
2. Customer assumes and shall bear the entire risk of partial or complete loss, theft, damage, destruction or other interruption or termination of use of the Equipment from any cause whatsoever as stated in the chart below, from the date of delivery of the Equipment to Customer until the Equipment is returned to and received by Continuant.

During the term of the DaaS, and until the Equipment is redelivered to Continuant, Customer shall be liable for the prompt repair of the Equipment at its sole expense. If the Equipment or any portion thereof is lost, stolen, destroyed or damaged beyond repair, Customer, at its option, will (i) continue to make the Monthly DaaS Payments, and, at Customer’s sole expense, replace the Equipment with equipment of identical manufacture and equal or greater capacity, utility and residual value to that of the Equipment replaced (in which case Customer will transfer title to the replacement Equipment to the Continuant free of all liens, claims and encumbrances), or (ii) pay Continuant on the next Monthly DaaS Payment date following the loss, theft, damage or destruction of the Equipment an amount equal to the replacement value or the minimum casualty value, whichever is greater, attached to the applicable SOW for such Equipment in effect on the date of the loss, theft, damage or destruction thereof and all rent accrued on such Equipment up to the date of payment and all other amounts then due in connection with such Equipment. Upon such payment, the SOW, or portion thereof, as applicable, will terminate with respect to the Equipment so paid for, and Continuant will transfer full ownership and title to such Equipment to Customer, free of liens, claims and encumbrances created by Continuant.

9. INSURANCE AND INDEMNITY:
   
Customer shall at all times during the term of this DaaS, at its own expense, maintain: (A) all-risk property damage insurance covering the Equipment in an amount not less than the greater of (i) the replacement value of the Equipment, or (ii) the minimum casualty value of such Equipment as set forth in the SOW, and (B) public liability coverage in such amounts, and with such companies as are in general usage by companies owning or operating similar property and engaged in a business similar to Customer's. The insurance required by this Section 9 may be obtained by Customer by endorsement on any blanket insurance policies maintained by Customer or its parent. All insurance so maintained shall provide for a thirty-day (30) prior written notice to Continuant and Assignee of any cancellation or reduction of coverages and an option in favor of Continuant or Assignee to prevent cancellation by payment of premiums, which shall promptly be repaid by Customer, and further shall provide that all insurance proceeds shall be payable to the Customer, Continuant and any Assignee as their respective interests may appear. Continuant and any such Assignee shall be named as loss payee and additional insured on all public liability insurance policies so maintained. Customer shall furnish to Continuant copies of such insurance policies and satisfactory insurance certificates on or before the Installation Date. Customer's above obligation shall commence on the date of delivery of the Equipment and shall continue until the Initial Term (or any extension or renewal thereof) of each SOW expires and the Equipment is returned to Continuant. By this Section 9, Continuant does not modify or limit any provision of this DaaS relating to disclaimer of warranties and liability, or indemnity.

Customer assumes all risk and liabilities, whether or not covered by insurance, and shall indemnify and hold Continuant and its assigns (including any Assignee) harmless of and from any liability, claim, loss, damage or expense (including reasonable attorneys’ fees) for injuries or deaths of persons and for damage to property, howsoever arising from or incident to the use, operation or storage of the Equipment, whether such injury or death to person be of agents or employees of Customer or be of third persons and whether such damage to property be of Customer, or to property of others.

10. MAINTENANCE, REPAIRS, INSTALLATION AND RETURN:
    
Unless otherwise agreed to by Continuant in writing, Customer shall, at its expense, obtain and keep in full effect, throughout the term of this DaaS, a contract from the manufacturer of the Equipment (or another reputable maintenance organization approved by Continuant) providing for prime shift maintenance service (as that term is defined by the manufacturer) and will otherwise maintain the Equipment in good working order and appearance and make all necessary adjustments and repairs thereto. Customer will at all times cooperate with Continuant in allowing the manufacturer or Continuant to control and install all engineering changes on the Equipment as when determined necessary or desirable by the manufacturer or Continuant. Upon termination of the DaaS, Customer, at its sole expense, shall return the Equipment, together with manufacturer's certificate of authenticity, if provided, to Continuant, or to such other location within the Continental U.S. designated by Continuant, in good condition and repair excepting only reasonable wear and tear, and eligible for a manufacturer’s standard, full service maintenance contract. If the Equipment returned is not so eligible, Customer shall reimburse Continuant for the cost of qualifying the Equipment for such maintenance contract eligibility. Customer shall pack the Equipment to be so returned in accordance with the manufacturer’s guidelines.

If Customer fails to return the Equipment in accordance with the preceding paragraph upon the expiration of the Initial Term or any extension thereof, Customer shall be obligated to pay to Continuant per diem rent until the Equipment is returned in addition to all other remedies available to Continuant pursuant to Section 16 hereunder.

Customer will provide the required suitable electric current to operate the Equipment, with all appropriate facilities as specified by the manufacturer. Customer will grant access to the Equipment to Continuant, its designee, or the manufacturer, during normal working hours for inspection, repair, maintenance, installation or engineering changes, and for any other reasonable purpose. Customer shall immediately notify Continuant of all details concerning any accident arising out of the alleged or apparent improper manufacture, functioning or operation of the Equipment.

11. ALTERATION AND ATTACHMENTS: Customer may make reasonable alterations or attachments to the Equipment and software in line with its business needs, except that Customer shall not make any such alteration that would create a safety hazard, impair or reduce the performance of the Equipment. If the alterations or attachments interfere with the normal or satisfactory maintenance, operation or insurability of the Equipment, or any part thereof, in such manner as to materially decrease the value of the Equipment, or create a safety hazard, Customer will, upon written notice from Continuant to that effect, promptly remove the alterations or attachments and restore the Equipment to its normal condition. In the case of increased cost of maintenance and insurance, or either, due to Customer’s alterations or attachments permitted herein, Customer shall pay such increase. Notwithstanding the preceding, the Customer is still required to comply with provisions in Section 10. herein.

12. ASSIGNMENTS:
    
Customer may not assign the DaaS or any of Customer’s rights hereunder or sublease any Equipment or its use without the prior written consent of Continuant or any such assignment or sublease shall be void. Any permitted sublessee or assignee of Customer must execute an assumption of this DaaS in form and substance acceptable to Continuant, but no sublease or assignment shall relieve Customer of any of its obligations or liabilities under this DaaS.

Continuant may assign or transfer this DaaS to an assignee or may grant a security interest in all or part of this DaaS, the Equipment and/or sums payable hereunder as collateral security for any loans or advances made or to be made to Continuant by a financial institution (such assignee or financial institution, herein, the “Assignee”), Customer hereby consents to such assignment, transfer and/or grant of security interest. Customer, upon receipt of notice of any such transfer, assignment, or grant to an Assignee and instructions from Continuant, shall pay all outstanding Monthly DaaS Payments and all other sums when due under this DaaS (hereafter, collectively, the “Payments”), to such Assignee in the manner specified in said instructions, and Customer’s obligation to make the Payments to such Assignee shall be absolute and unconditional. Upon notice of any intended transfer, assignment, or granting of a security interest: (a) Customer shall promptly submit to Continuant such documents as may be reasonably required by the intended Assignee, in form and substance satisfactory to the intended Assignee, including, without limitation: (i) A certificate that the equipment was delivered and accepted; (2) if Customer is a corporation, a certified copy of resolutions adopted by Customer's Board of Directors authorizing execution of the DaaS; (3) an acknowledgement to the Continuant's transfer, assignment or granting of a security interest; (4) a UCC Financing Statement; (b) In the event of any such assignment, transfer, or granting of a security interest: (1) Customer shall send copies of any notices which are required hereunder to be sent to Continuant to the Assignee as well as to Continuant; (2) Customer shall not permit the DaaS to be amended or any provision thereof to be waived without the prior written consent of the Assignee; (3) Customer agrees not to look to the Assignee to perform any of Continuant's obligations hereunder; (4) Customer agrees that Assignee shall be exclusively entitled to all of the rights and remedies provided to the Continuant under the DaaS; (c) no such transfer, assignment or granting of a security interest by Continuant shall relieve Continuant of any of its obligations hereunder the DaaS, or shall limit Customer's rights to look to Continuant for the performance for such obligations.

Notwithstanding any assignment, transfer or grant by Continuant, and so long as the Customer shall not be in default hereunder, neither Continuant, nor any Assignee, shall interfere with Customer’s right of quiet enjoyment and use of the Equipment. In the event that Continuant notifies Customer of its intention to transfer, assign, or grant a security interest in all or any part of this DaaS, the Equipment and/or sums payable hereunder, Customer agrees to execute such documents as may be reasonably necessary to secure and/or complete such transfer, assignment or grant.

13. USE OF EQUIPMENT:
    
Customer may in the normal course of delivery of services to its customers, provide the Equipment under this DaaS to Customer’s customers at Customer’s customer’s premises provided that in all regards Customer remains solely responsible for all legal and financial obligations under the DaaS. The Equipment will be kept will at all times be located at the location stated in the SOW, and will not be removed therefrom, without prior written consent of Continuant, which shall not be unreasonably withheld. Customer will not use the Equipment for any purpose other than which it was designed and in accordance with the manufacturer's specification. Customer will keep and maintain the Equipment free and clear of all liens, charges and encumbrances (except any placed thereon by Continuant). This DaaS shall be binding upon, and shall inure to, the benefit of the parties hereto and their respective successors and assigns.

14. TRANSPORTATION AND INSTALLATION:
    
The Equipment is to be installed at the location indicated in this SOW.

All transportation, rigging, drayage, and any other charges for the delivery of the Equipment to Customer’s premises shall be paid by the Customer, unless indicated otherwise on the SOW. All installation charges shall be paid by Customer unless indicated otherwise in this SOW. All charges for the deinstallation shall be paid by Customer. Transportation, rigging, and drayage from Customer’s premises at the termination of the E shall be arranged for by Continuant and paid by Customer.

15. DEFAULT:
    
Any one of the following events shall constitute an "Event of Default" hereunder: (a) Customer shall fail to pay when due any installment of rent or other amount due hereunder; (b) Customer shall fail to observe or perform any other agreement to be observed or performed by Customer hereunder; (c) Customer, any guarantor of the DaaS, or any partner of Customer if Customer is a partnership shall cease doing business as a going concern or make an assignment for the benefit of creditors; (d) Customer, any guarantor of the DaaS, or any partner of Customer if Customer is a partnership shall voluntarily file, take any action to authorize the filing, or have filed against it involuntarily, a petition for liquidation, reorganization, adjustment of debt or similar relief under the federal or state bankruptcy or insolvency law; (e) a trustee, receiver, or liquidator be appointed for Customer, any guarantor of the DaaS, or for all or a substantial part of the assets of Customer or any guarantor; (f) any individual Customer or individual guarantor of the DaaS, or partner of Customer if Customer is a partnership, shall die; (g) an event of default shall occur under any other obligation Customer or any guarantor of the DaaS owes to Continuant; (h) an event of default by Customer shall occur under any agreement involving Customer's or a guarantor's indebtedness to a lender for borrowed money; or (i) Customer shall have terminated its corporate existence, consolidated with, merged into, or conveyed or leased substantially all of its assets as an entity to any person unless:(i) such person executes and delivers to Continuant an agreement satisfactory in form and substance to Continuant, in its sole discretion, containing such person’s effective assumption and its agreement to pay, perform, comply with and otherwise be liable for all of Customer’s obligations having previously arisen, or then or thereafter arising, under the DaaS together with any documents, Agreements investments, certificates, opinions and filings by Continuant; and (ii) Continuant (and any Assignee) is satisfied as to the creditworthiness of such person.

16. REMEDIES:
    
Upon the occurrence of an Event of Default and at any time thereafter, Continuant or Assignee may exercise from time to time any one or more of the following remedies: (a) terminate this DaaS as to any portion or all of the Equipment; (b) take immediate possession of any or all of the Equipment; wherever situated, and for such purpose enter upon any premises without liability for so doing or requirement to post bond in any legal proceeding; (c) hold, use, rent, lease, sell or otherwise dispose of any or all of the Equipment in such manner as Continuant in its sole discretion may decide. With respect to any exercise of its rights to recover and/or dispose of any Equipment, Customer acknowledges and agrees that Continuant shall have no obligation, subject to the requirements of commercial reasonableness, to clean up or otherwise prepare the Equipment for disposition; (d) accelerate the due date of all remaining rent payments due hereunder for the entire remaining Initial Term of this DaaS or any amendment thereto, including any renewal term then in effect, whereupon said amounts shall be immediately due and payable; (e) recover the sum of: (i) any accrued and unpaid rent, plus (ii) the present value of all future DaaSs reserved in this DaaS and contracted to be paid over the unexpired Initial Term of this DaaS (or any renewal period then in effect), discounted at the rate of four percent (4%) per annum; plus (iii) the anticipated residual value of the Equipment as of the expiration of this DaaS or any renewal thereof discounted at the rate of four percent (4%) per annum, (iv) any indemnity payment, if then determinable; (v) all reasonable costs and expenses incurred by Continuant in any repossession, recovery, storage, repair, sale, re-DaaS, re-lease or other disposition of the Equipment, including but not limited to costs of transportation, possession, storage, refurbishing, advertising and broker’s fees together with all attorney’s fees and cost incurred in connection therewith or otherwise resulting from Customer’s default (including any incurred at trial, on appeal or any other proceeding) of the foregoing at the rate of one and one-half (1½%) per month (“default interest”) (f) expend such monies as Continuant deems appropriate to cure or mitigate the effect of the Event of Default, or to protect the Continuant's interest in the Equipment and this DaaS, with all such sums to be immediately reimbursed to Continuant by Customer; (g) setoff Customer's security deposit or any other property of Customer held by Continuant against any amount owed by Customer to Continuant; and (h) exercise any other remedy permitted by law, equity or any other agreements with Customer or any guarantor of this DaaS. No remedy given in this paragraph is intended to be exclusive and each shall be cumulative. No express or implied waiver by Continuant of any Event of Default shall constitute a waiver of any subsequent Event of Default.

17. REPRESENTATIONS AND WARRANTIES BY CUSTOMER:
    
Customer represents and warrants to Continuant that: (a) the DaaS constitutes the Customer's legal, valid and binding obligation and is enforceable against Customer in accordance with its terms; (b) Customer's entry into and performance under the DaaS will not result in any breach, default or violation under Customer's charter documents (articles of incorporation and bylaws in the case of a corporation or partnership agreement in the case of a partnership or articles of organization and operating agreement in the case of a limited liability Continuant) or any other agreement to which Customer is a party or to which it or its property is subject; (c) there are no suits or proceedings pending or threatened before any court, government agency or arbitrator which, if determined adversely to Customer, would have a material adverse effect on its financial condition or ability to perform its obligations under the DaaS; (d) that any financial statements or other information which Customer has furnished Continuant concerning the business or condition of Customer was true, correct and complete at the time furnished or as of the date of such financial statements; (e) the Equipment shall remain personal property; with respect to any Equipment that is the subject of any sale and leaseback transaction pursuant hereto, Customer has good title to, rights in, and/or power to transfer all of the same. The Equipment is removable from and is not essential to the premises upon which it is located regardless of its attachment to realty, and Customer agrees to take such action at its expense as may be necessary to prevent any third party from acquiring any interest in the Equipment as a result of its attachment to realty with respect to all of the Equipment leased hereto.

18. General:

1. The Equipment remains the personal property of Continuant and may be removed at any time, without notice, after termination of this DaaS. The Equipment is removable from and is not essential to the premises at which the Equipment is located.
   
   
2. At Continuant’s request, Customer shall affix to the Equipment and each unit or element thereof, in a prominent place, appropriate tags, decals, or plates stating that the Equipment is owned by Continuant, and Customer shall not cause or permit any such tags, decals, or plates to be removed, defaced or covered in any way.
   
   
3. No waiver, consent, modification or change of terms of this DaaS shall bind either party unless in writing and signed by an officer of the waiving party, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.
   
   
4. All notices and other communications hereunder shall be in writing and shall be transmitted by hand, overnight courier, United States first class mail or certified mail (return receipt requested), postage prepaid. Such notices and other communications shall be addressed to the respective party at the address set forth above or at such other address as any party may from time to time designate by notice duly given in accordance with this section. Notices shall be deemed received on the earlier of (i) three days after deposit, postage prepaid, in the United States mail, if sent by United States first class, certified, or registered mail; (ii) the next day after delivery to an overnight courier, expenses prepaid, or (iii) the date of actual delivery if delivered by hand.
   
   
5. Any provision hereof prohibited by, or unlawful or unenforceable under, any applicable law of any jurisdiction shall, at the sole option of the Continuant, be ineffective as to such jurisdiction without invalidating the remaining provisions of this DaaS; provided, however, that where the provisions of any such applicable law may be waived, they are hereby waived by Customer to the full extent permitted by law, and this shall be deemed to be a valid and binding DaaS enforceable in accordance with its terms.
   
   
6. Title to the Equipment shall at all times remain with Continuant and Customer shall protect and defend the title of Continuant and keep it free of all claims and liens other than those of Customer hereunder or created by Continuant. If the DaaS shall be construed by a court to be a lease “intended as security” and not a “true” lease, then Customer, to secure all of Customer’s payment and performance obligations under the DaaS, hereby grants to Continuant a first priority security interest in the Equipment and any and all insurance or other proceeds of the property and other collateral to which a security interest is granted.
   
   
7. This DaaS shall be binding upon and inure to the benefit of Continuant and Customer and their respective successors, assigns and permitted sublessees (subject, with respect to Customer, to the provisions of Section 12 setting forth restrictions on Customer’s ability to assign this DaaS or sublease the Equipment).
   
   
8. Customer hereby authorizes Continuant to execute and/or file against Customer in any public filing office deemed advisable by Continuant, any and all UCC financing statements (and amendments thereto) describing the Equipment and this DaaS, and Customer further irrevocably appoints Continuant as Customer’s attorney in fact to execute and/or file any and all such UCC financing statements (and amendments thereto) as Continuant considers advisable.
   
   The filing of UCC Financing Statements against Customer is precautionary and shall not be evidence that the DaaS is intended as security.
   
   
9. Notwithstanding any other provisions of this Appendix to the contrary, Customer agrees, following the execution of the DaaS by Customer, to provide to Continuant at Continuant’s demand, from time to time, any and all information reasonably required to establish Customer’s creditworthiness, including, but not limited to, financial statements and profit and loss statements, for the current period and for the proceeding three fiscal years. Continuant agrees that such information shall be kept confidential.

During the term of the DaaS, as an additional condition of Customer’s performance, Customer agrees to provide financial statements to Continuant within a reasonable period following the end of Customer’s fiscal year.

Customer and Continuant do each hereby warrant and represent that their respective signatories whose signatures appear below have been and are on the date of this DaaS duly authorized by all necessary and appropriate action to execute this DaaS.

CUSTOMER                            CONTINUANT

Print name & title                                                    Print name & title

Signature                                            Date               Signature                                             Date  

Updated: August 2024

1. Definitions. All definitions as stated in the Agreement shall apply to this SOW.
   
   
2. Scope of Work. The scope of work is included this SOW, additions to the scope may be detailed in an additional document and incorporated into this SOW and subject to all its terms and conditions. Additional services may by recognized as necessary after execution of this SOW – such additions constitute a substantial change and require a signed Change Order Form as described in Section 3 below. Additional work by Continuant will not be carried out without such change order received. Additional services will be invoiced at the agreed amount on the appropriate Change Order Form.
   
   
3. Change Management. The following events will be addressed with a Project Change Order (“PCO”). Those events include, but not limited to, any change to schedule, cost, or personnel. Unless specifically described otherwise in the Agreement, changes to this SOW will be made according to the process described herein. If not specified, approved minor or non-substantive changes will be memorialized in writing using email communications. For large or substantive changes, as determined by Continuant, a Change Order Form will be required. This form will be agreed upon by both Parties and become an attachment to and part of this Agreement after both Parties have signed.
   
   
4. Coverage Service Exclusions. Coverage service does not include repair for damages, malfunctions, or performance characteristics caused by: (1) non-Continuant or Original Equipment Manufacturer (“OEM”) software or facilities;
   (2) use of non-Continuant or OEM furnished equipment, software, or facilities with the covered equipment; (3) use of equipment, software, or facilities not covered by Continuant’s Coverage; (4) Customer failure to follow Continuant’s installation, operation or maintenance instructions, including Customer’s failure to permit Continuant timely remote access to covered equipment; (5) failure or malfunction of equipment, software, or facilities not under Continuant’s Coverage; (6) actions of non-Continuant personnel; (7) power surge, outage, and/or electrical storm; (8) equipment misuse, abuse or mishandling; (9) force Majeure conditions as stated in the Agreement. Unless otherwise specified, Coverage does not include batteries, tapes, and/or other consumables. Service Levels as defined in this SOW do not apply until system set-up, including remote access, has been completed by Continuant. Any delay by the Customer that prevents Continuant’s ability to set up and establish access to Customer’s system remotely may result in time and material charges for all Incident Management Services. Continuant does not warrant uninterrupted or error-free operation of the covered equipment. In addition, Continuant is not obligated to provide Coverage if Customer modifies or uses the covered equipment outside of manufacturer’s specifications or for any equipment with a pre-existing condition. Any maintenance issues discovered by Continuant or brought to Continuant’s attention by Customer will be considered pre-existing until the Coverage setup process is completed by Continuant. Customer-initiated system additions, product moves, or system programming changes or additions are not included under Coverage. Continuant will perform repair or other services not under Coverage at Continuant’s standard rates for such service. Customer shall notify Continuant prior to relocating covered equipment to a different physical address. Additional charges will apply if Continuant incurs costs as a result of relocation of covered equipment.
   
   
5. Term of Coverage. Coverage will begin on the Commencement Date listed on this SOW and will remain in effect until the first (1st) of the month following the end of the term as specified on this SOW. At the end of each term, Coverage will automatically renew for successive twelve (12) month terms at Continuant’s then current rates, until a new SOW and/or term is mutually agreed upon. Either Party must give the other Party written notice of its intent not to renew Coverage sixty (60) days prior to the expiration of the existing term.
   
   
6. Termination. Customer may cancel Coverage under this SOW, in whole or in part, or as to any of Customer’s covered sites at any time, by providing Continuant with sixty (60) days’ written notice to cancel, and by paying applicable cancellation charges. Cancellation charges shall equal the lesser of twelve (12) months’ charges or the remainder of the term. Any credits issued by Continuant to Customer will expire upon cancellation. Any software, including software support or services, purchased by Continuant from a 3rd party as requested by Customer under this SOW may not be cancelled during the term of this SOW. Customer may cancel accepted orders by providing a written notice and subject to a twenty five percent (25%) cancellation fee. The purchase of software licenses, customer requested modifications to OEM products, fabricated parts, and 3rd party provided services are non-refundable and may not be returned to Continuant for a credit.
   
   
7. Customer Responsibilities. Customer agrees to: (1) provide the proper environment, electrical and network connections; (2) provide remote access to the equipment under Coverage, and/or a work space for covered equipment; (3) maintain a procedure external to the software program(s) and host equipment for reconstruction of lost or altered files, data, and programs; (4) provide Continuant a list of any covered equipment with pre-existing conditions, that is, equipment suspected or known to have problems or issues in the past; (5) provide passwords necessary to access Customer’s equipment under Coverage; and (6) authorize Continuant, its employees, and affiliates to act on Customer’s behalf regarding non-financial or contractually obligating matters with related 3rd party providers and vendors as necessary to provide the Coverage.
   
   
8. Orders. Orders will be governed exclusively by the terms and conditions of the Agreement and the SOW. Terms and conditions on Customer’s Purchase Order (“PO”) shall not apply.

Updated: February 2025

1. Definitions. All definitions as stated in the Agreement apply to this SOW.
   
   
2. Scope of Work. The scope of work is included this SOW, additions to the scope may be detailed in an additional document and incorporated into this SOW and subject to all its terms and conditions. Additional services may by recognized as necessary after execution of this SOW – such additions constitute a substantial change and require a signed Change Order Form as described below. Additional work by Continuant will not be carried out without such change order received. Additional services will be invoiced at the agreed amount on the appropriate Change Order Form.
   
   
3. Change Management. The following events will be addressed with a Project Change Order (“PCO”). Those events include, but not limited to, any change to schedule, cost, or personnel. Unless specifically described otherwise in the Agreement, changes to this SOW will be made according to the process described herein. If not specified, approved minor or non-substantive changes will be memorialized in writing using email communications. For large or substantive changes, as determined by Continuant, a Change Order Form will be required. This form will be agreed upon by both Parties and become an attachment to and part of this Agreement after both Parties have signed. The purchase price of this SOW is primarily based on the total cost of the Solution, indicated by Customer, and documented in this SOW. Customer understands that changes to the total Solution cost or to specific Solution budgets that impact the scope of work areas in this SOW, after execution of this SOW will be considered a substantial change and require change management as described in this SOW. Any rework associated with Solution budget changes requires a change order. The time required to make changes, modifications, or alterations to work already completed by Continuant by request of Customer or those working on behalf of the Customer for the Solution, which is not part of a planned iterative process, is considered rework and is not part of any normal work or services provided under this SOW or Agreement.
   
   
4. Product Substitutions. Continuant reserves the right to substitute equipment of equal or better quality due to product unavailability or discontinuation in Continuant’s reasonable discretion. Continuant shall not be liable to Customer in case of product unavailability or discontinuation.
   
   
5. Progress Payments. Progress payments will be made according this SOW unless otherwise agreed upon. Work will begin once this SOW is signed, and first payment is received. No payments, regardless of description or milestone, laid out in this SOW or Agreement are to be considered refundable.
   
   
6. Coordination with Other Agents. Continuant can perform coordination activities with Customer’s trades listed in this SOW as part of the listed scope of work. Additional coordination not part of the scope of work in this SOW and may require change management as outlined in this Agreement and will entitle Continuant to additional compensation for such services. Customer agrees to be accountable for the accuracy of information provided to Continuant by Customer’s agents or any other party working on behalf of the Customer for the Solution; additional work or services required by Continuant due to incorrect, inaccurate, or untimely communication or documents constitutes a non-substantive change and requires change management as described in this Agreement.
   
   
7. Delays. Continuant will not be held responsible for delays in the work schedule due to: (1) external factors or third parties; (2) caused by Customer, or those acting on behalf of the Customer for the Solution: (3) untimely receipt of Customer documents and their respective percentage completeness; (4) network readiness; (5) the performance of Customer provided equipment; (6) any delays beyond Continuant’s reasonable control; and (7) system or equipment designs created by Customer. Additional costs may apply due to delays including travel and subcontractor costs as well as require a change order. For each phase, meeting, and deliverable listed in this SOW scope of work, Continuant will attempt to finish the work to the contracted level of effort, based on the information and time given to us by Customer. Continuant will work with the intent to complete each deliverable to the most complete state possible and deliver at the agreed upon time based on the schedule baseline. Delays in our work related to inaccurate, missing, or conflicting decisions or communications from the Customer reduced Continuant’s ability to produce deliverables in a fully complete state. If Delays occur, Continuant will not be responsible for adhering to the established deliverable date.
   
   
8. Substantial Completion. The progress of work is substantially completed when the Solution may be used for its intended purpose with only secondary functionality reductions, non-function tasks remain, or User Acceptance Testing (“UAT”) has been performed and accepted.
   
   
9. Solution Acceptance. Continuant will notify the Customer upon Solution Substantial Completion (see Section 8, Substantial Completion), Customer will have five (5) days to respond with written notice that provides specific details how the Substantial Completion criteria has not been met; otherwise, the Solution will be deemed accepted.
   
   
10. Training. (If Applicable). The Parties agree that Continuant's sole obligation for training services is to supply a qualified instructor for the number of hours designated in this SOW. Continuant neither warrants nor represents that after such training any specific individual(s) will be able to properly use or operate the Solution. Any additional training will be billed at Continuant's then prevailing rate.
    
    
11. Termination. The Customer may also terminate this SOW, in whole or in part, and without cause by providing seven (7) days written notice. In the event of the termination of this SOW under this Section the Customer forfeits all payments received by Continuant, regardless work progress, and will owe Continuant for any applicable cancellation fees as well as any outstanding costs incurred such as current labor, equipment, software, travel, or shipping costs. Any software, including software support or services, purchased by Continuant from a 3rd party as requested by Customer under this SOW may not be cancelled during the term of this SOW.
    
    
12. Orders. Orders will be governed exclusively by the terms and conditions of the Agreement and the SOW. Terms and conditions on Customer’s Purchase Order (“PO”) shall not apply.
    
    
13. Return Policy. Returns must be approved by Continuant and are subject to a 25% restocking fee plus shipping. Computer software (copyright legislation mandates no returns on opened and/or downloaded software), internal earphones, earplugs, microphones, computers, demo gear, wire, lamps, and consumables (e.g., batteries, cleaning products, fog fluid) are non-returnable, as are any items special ordered from a manufacturer, modified, or fabricated by Continuant based on Customer requirements for a specific project. Any returned items must include the original packaging complete with all components including the warranty card and owner's manual and show no signs of wear or abuse. 
    
    
14. Passing of Title/Risk of Loss. Title to the components described in the SOW (collectively, the “UC Solution”) shall pass to the Customer only after the purchase price is paid in full. Risk of loss, however, shall pass to the Customer upon delivery of the UC Solution to the Solution site.

Updated: August 2024

1. Definitions. All definitions as stated in the Agreement apply to this SOW.
   
   
2. Scope of Work. The scope of work is included this SOW, additions to the scope may be detailed in an additional document and incorporated into this SOW and subject to all its terms and conditions. Additional services may by recognized as necessary after execution of this SOW – such additions constitute a substantial change and require a signed Change Order Form as described below. Additional work by Continuant will not be carried out without such change order received. Additional services will be invoiced at the agreed amount on the appropriate Change Order Form.
   
   
3. Change Management. The following events will be addressed with a Project Change Order (“PCO”). Those events include, but not limited to, any change to schedule, cost, or personnel. Unless specifically described otherwise in the Agreement, changes to this SOW will be made according to the process described herein. If not specified, approved minor or non-substantive changes will be memorialized in writing using email communications. For large or substantive changes, as determined by Continuant, a Change Order Form will be required. This form will be agreed upon by both Parties and become an attachment to and part of this Agreement after both Parties have signed. The purchase price of this SOW is primarily based on the total cost of the Solution, indicated by Customer, and documented in this SOW. Customer understands that changes to the total Solution cost or to specific Solution budgets that impact the scope of work areas in this SOW, after execution of this SOW will be considered a substantial change and require change management as described in this SOW. Any rework associated with Solution budget changes requires a change order. The time required to make changes, modifications, or alterations to work already completed by Continuant by request of Customer or those working on behalf of the Customer for the Solution, which is not part of a planned iterative process, is considered rework and is not part of any normal work or services provided under this SOW or Agreement.
   
   
4. Progress Payments. Progress payments will be made as stated in this SOW. Work will begin once this SOW is signed, and first payment is received. No payments, regardless of description or milestone, laid out in this SOW or Agreement are to be considered refundable.
   
   
5. Coordination with Other Agents. Continuant can perform coordination activities with Customer’s trades listed in this SOW as part of the listed scope of work. Additional coordination not part of the scope of work in this SOW and may require change management as outlined in this Agreement and will entitle Continuant to additional compensation for such services. Customer agrees to be accountable for the accuracy of information provided to Continuant by Customer’s agents or any other party working on behalf of the Customer for the Solution; additional work or services required by Continuant due to incorrect, inaccurate, or untimely communication or documents constitutes a non-substantive change and requires change management as described in this Agreement.
   
   
6. Delays. Continuant will not be held responsible for delays in the work schedule due to: (1) external factors or third parties; (2) caused by Customer, or those acting on behalf of the Customer for the Solution: (3) untimely receipt of Customer documents and their respective percentage completeness; (4) network readiness; (5) the performance of Customer provided equipment; (6) any delays beyond Continuant’s reasonable control; and (7) system or equipment designs created by Customer. Additional costs may apply due to delays including travel and subcontractor costs as well as require a change order. For each phase, meeting, and deliverable listed in this SOW scope of work, Continuant will attempt to finish the work to the contracted level of effort, based on the information and time given to us by Customer. Continuant will work with the intent to complete each deliverable to the most complete state possible and deliver at the agreed upon time based on the schedule baseline. Delays in our work related to inaccurate, missing, or conflicting decisions or communications from the Customer reduced Continuant’s ability to produce deliverables in a fully complete state. If Delays occur, Continuant will not be responsible for adhering to the established deliverable date.
   
   
7. Termination. The purchase of software licenses, customer requested modifications to OEM products, fabricated parts, and 3rd party provided services are non-refundable and may not be returned to Continuant for a credit.
   
   
8. Orders. Orders will be governed exclusively by the terms and conditions of the Agreement and the SOW. Terms and conditions on Customer’s Purchase Order (“PO”) shall not apply.
   
   
9. Software Agreements. For the purchase of 3rd party software, Customer must agree to End User License Agreement ("EULA") available at https://adlumin.com/eula/ .

Updated: August 2024

1. Definitions. All definitions as stated in the Agreement apply to this SOW.
   
   
2. Scope of Work. The scope of work is included this SOW, additions to the scope may be detailed in an additional document and incorporated into this SOW and subject to all its terms and conditions. Additional services may by recognized as necessary after execution of this SOW – such additions constitute a substantial change and require a signed Change Order Form as described in Section 3 below. Additional work by Continuant will not be carried out without such change order received. Additional services will be invoiced at the agreed amount on the appropriate Change Order Form.
   
   
3. Change Management. The following events will be addressed with a Project Change Order (“PCO”). Those events include, but not limited to, any change to schedule (see Section 6, Delays), cost, or personnel. Unless specifically described otherwise in the Agreement, changes to this SOW will be made according to the process described herein. If not specified, approved minor or non-substantive changes will be memorialized in writing using email communications. For large or substantive changes, as determined by Continuant, a Change Order Form will be required. This form will be agreed upon by both Parties and become an attachment to and part of this Agreement after both Parties have signed. The purchase price of this SOW is primarily based on the total cost of the Solution, indicated by Customer and documented in this SOW. Customer understands that changes to the total Solution cost or to specific Solution budgets that impact the scope of work areas in this SOW, after execution of this SOW will be considered a substantial change and require change management as described in this SOW. Any rework associated with Solution budget changes requires a change order.  The time required to make changes, modifications, or alterations to work already completed by Continuant by request of Customer or those working on behalf of the Customer for the Solution, which is not part of a planned iterative process, is considered rework and is not part of any normal work or services provided under this SOW or Agreement.
   
   
4. Product Substitutions. Continuant reserves the right to substitute equipment of equal or better quality due to product unavailability or discontinuation in Continuant’s reasonable discretion. Continuant shall not be liable to Customer in case of product unavailability or discontinuation.
   
   
5. Progress Payments. Progress payments will be made according to the Billing Plan as defined in the Agreement. Work will begin once this SOW is signed and first payment is received. No payments, regardless of description or milestone, laid out in this SOW or Agreement are to be considered refundable.
   
   
6. Coordination with Other Agents. Continuant can perform coordination activities with Customer’s trades listed in this SOW as part of the listed scope of work. Additional coordination not part of the scope of work in this SOW and may require change management as outlined in this Agreement and will entitle Continuant to additional compensation for such services. Customer agrees to be accountable for the accuracy of information provided to Continuant by Customer’s agents or any other party working on behalf of the Customer for the Solution; additional work or services required by Continuant due to incorrect, inaccurate, or untimely communication or documents constitutes a non-substantive change and requires change management as described in this Agreement.  
   
   
7. Delays. Continuant will not be held responsible for delays in the work schedule due to: (1) external factors or third parties; (2) caused by Customer, or those acting on behalf of the Customer for the Solution: (3) untimely receipt of Customer documents and their respective percentage completeness; (4) network readiness; (5) the performance of Customer provided equipment; (6) any delays beyond Continuant’s reasonable control; and (7) system or equipment designs created by Customer. Additional costs may apply due to delays including travel and subcontractor costs as well as require a change order. For each phase, meeting, and deliverable listed in this SOW scope of work, Continuant will attempt to finish the work to the contracted level of effort, based on the information and time given to us by Customer. Continuant will work with the intent to complete each deliverable to the most complete state possible and deliver at the agreed upon time based on the schedule baseline. Delays in our work related to inaccurate, missing, or conflicting decisions or communications from the Customer reduced Continuant’s ability to produce deliverables in a fully complete state. If Delays occur, Continuant will not be responsible for adhering to the established deliverable date. 
   
   
8. Substantial Completion. The progress of work is substantially completed when the Solution may be used for its intended purpose with only secondary functionality reductions, non-function tasks remain, or User Acceptance Testing (“UAT”) has been performed and accepted.
   
   
9. Solution Acceptance. Continuant will notify the Customer upon Solution Substantial Completion (see Section 8, Substantial Completion), Customer will have five (5) days to respond with written notice that provides specific details how the Substantial Completion criteria has not been met; otherwise the Solution will be deemed accepted.
   
   
10. (If Applicable). The Parties agree that Continuant's sole obligation for training services is to supply a qualified instructor for the number of hours designated in this SOW. Continuant neither warrants nor represents that after such training any specific individual(s) will be able to properly use or operate the Solution. Any additional training will be billed at Continuant's then prevailing rate.
    
    
11. Coverage Service Exclusions. Coverage service does not include repair for damages, malfunctions, or performance characteristics caused by: (1) non-Continuant or Original Equipment Manufacturer (“OEM”) software or facilities; (2) use of non-Continuant or OEM furnished equipment, software, or facilities with the covered equipment; (3) use of equipment, software, or facilities not covered by Continuant’s Coverage; (4) Customer failure to follow Continuant’s installation, operation or maintenance instructions, including Customer’s failure to permit Continuant timely remote access to covered equipment; (5) failure or malfunction of equipment, software, or facilities not under Continuant’s Coverage; (6) actions of non-Continuant personnel; (7) power surge, outage, and/or electrical storm; (8) equipment misuse, abuse or mishandling; (9) force Majeure conditions as stated in the Agreement. Unless otherwise specified, Coverage does not include batteries, tapes, and/or other consumables. Service Levels as defined in this SOW do not apply until system set-up, including remote access, has been completed by Continuant. Any delay by the Customer that prevents Continuant’s ability to set up and establish access to Customer’s system remotely may result in time and material charges for all Incident Management Services. Continuant does not warrant uninterrupted or error-free operation of the covered equipment. In addition, Continuant is not obligated to provide Coverage if Customer modifies or uses the covered equipment outside of manufacturer’s specifications or for any equipment with a pre-existing condition. Any maintenance issues discovered by Continuant or brought to Continuant’s attention by Customer will be considered pre-existing until the Coverage setup process is completed by Continuant. Customer-initiated system additions, product moves, or system programming changes or additions are not included under Coverage. Continuant will perform repair or other services not under Coverage at Continuant’s standard rates for such service. Customer shall notify Continuant prior to relocating covered equipment to a different physical address. Additional charges will apply if Continuant incurs costs as a result of relocation of covered equipment.

12. Term of Coverage. Coverage will begin on the Commencement Date listed on each SOW and will remain in effect until the first (1st) of the month following the end of the term as specified on each SOW. At the end of each term, Coverage will automatically renew for successive twelve (12) month terms at Continuant’s then current rates, until a new SOW and/or term is mutually agreed upon. Either Party must give the other Party written notice of its intent not to renew Coverage sixty (60) days prior to the expiration of the existing term.
    
    
13. Termination. Customer may cancel Coverage under this SOW, in whole or in part, or as to any of Customer’s covered sites at any time, by providing Continuant with sixty (60) days’ written notice to cancel, and by paying applicable cancellation charges.  Cancellation charges shall equal the lesser of twelve (12) months’ charges or the remainder of the term. Any credits issued by Continuant to Customer will expire upon cancellation.  Customer may cancel Coverage without penalty for any individual site that is closed and the covered system is decommissioned and taken out of service, and not relocated, or a covered site’s system is replaced and the system is covered under OEM warranty, by providing Continuant with a 60-day notice. Coverage will cancel on the date of Customer’s billing cycle after the 60-day notice has expired.  Any software, including software support or services, purchased by Continuant from a 3^rd party as requested by Customer under this SOW may not be cancelled during the term of this SOW. Customer may cancel accepted orders by providing a written notice and subject to a twenty five percent (25%) cancellation fee. The purchase of software licenses, customer requested modifications to OEM products, fabricated parts, and 3^rd party provided services are non-refundable and may not be returned to Continuant for a credit. The Customer may also terminate the Solution under this SOW, in whole or in part, and without cause by providing a seven (7) days written notice. In the event of the termination of this SOW under this Section the Customer forfeits all payments received by Continuant, regardless work progress, and will owe Continuant for any applicable cancellation fees as well as any outstanding costs incurred such as current labor, equipment, software, travel or shipping costs.

14. Customer Responsibilities. Customer agrees to: (1) provide the proper environment, electrical and network connections; (2) provide remote access to the equipment under Coverage, and/or a work space for covered equipment; (3) maintain a procedure external to the software program(s) and host equipment for reconstruction of lost or altered files, data, and programs; (4) provide Continuant a list of any covered equipment with pre-existing conditions, that is, equipment suspected or known to have problems or issues in the past; (5) provide passwords necessary to access Customer’s equipment under Coverage; and (6) authorize Continuant, its employees, and affiliates to act on Customer’s behalf regarding non-financial or contractually obligating matters with related 3^rd party providers and vendors as necessary to provide the Coverage.
    
    
15. Orders. Orders will be governed exclusively by the terms and conditions of the Agreement and the SOW. Terms and conditions on Customer’s Purchase Order (“PO”) shall not apply.
    
    
16. Return Policy. Returns must be approved by Continuant and are subject to a 25% restocking fee plus shipping. Computer software (copyright legislation mandates no returns on opened and/or downloaded software), internal earphones, earplugs, microphones, computers, demo gear, wire, lamps, and consumables (i.e. batteries, cleaning products, fog fluid) are non-returnable, as are any items special ordered from a manufacturer, modified, or fabricated by Continuant based on Customer requirements for a specific project. Any returned items must include the original packaging complete with all components including the warranty card and owner's manual and show no signs of wear or abuse.
    
    
17. Passing of Title/Risk of Loss. Title to the components described in the SOW (collectively, the “UC Solution”) shall pass to the Customer only after the purchase price is paid in full. Risk of loss, however, shall pass to the Customer upon delivery of the UC Solution to the Solution site.
    

Updated: August 2024

1. Definitions. All definitions as stated in the Agreement apply to this SOW.
   
   
2. Scope of Work. The scope of work is included this SOW, additions to the scope may be detailed in an additional document and incorporated into this SOW and subject to all its terms and conditions. Additional services may by recognized as necessary after execution of this SOW – such additions constitute a substantial change and require a signed Change Order Form as described below. Additional work by Continuant will not be carried out without such change order received. Additional services will be invoiced at the agreed amount on the appropriate Change Order Form.
   
   
3. Change Management. The following events will be addressed with a Project Change Order (“PCO”). Those events include, but not limited to, any change to schedule, cost, or personnel. Unless specifically described otherwise in the Agreement, changes to this SOW will be made according to the process described herein. If not specified, approved minor or non-substantive changes will be memorialized in writing using email communications. For large or substantive changes, as determined by Continuant, a Change Order Form will be required. This form will be agreed upon by both Parties and become an attachment to and part of this Agreement after both Parties have signed. The purchase price of this SOW is primarily based on the total cost of the Solution, indicated by Customer, and documented in this SOW. Customer understands that changes to the total Solution cost or to specific Solution budgets that impact the scope of work areas in this SOW, after execution of this SOW will be considered a substantial change and require change management as described in this SOW. Any rework associated with Solution budget changes requires a change order. The time required to make changes, modifications, or alterations to work already completed by Continuant by request of Customer or those working on behalf of the Customer for the Solution, which is not part of a planned iterative process, is considered rework and is not part of any normal work or services provided under this SOW or Agreement.
   
   
4. Progress Payments. Progress payments will be made as stated in this SOW. Work will begin once this SOW is signed, and first payment is received. No payments, regardless of description or milestone, laid out in this SOW or Agreement are to be considered refundable.
   
   
5. Delays. Continuant will not be held responsible for delays in the work schedule due to: (1) external factors or third parties; (2) caused by Customer, or those acting on behalf of the Customer for the Solution: (3) untimely receipt of Customer documents and their respective percentage completeness; (4) network readiness; (5) the performance of Customer provided equipment; (6) any delays beyond Continuant’s reasonable control; and (7) system or equipment designs created by Customer. Additional costs may apply due to delays including travel and subcontractor costs as well as require a change order. For each phase, meeting, and deliverable listed in this SOW scope of work, Continuant will attempt to finish the work to the contracted level of effort, based on the information and time given to us by Customer. Continuant will work with the intent to complete each deliverable to the most complete state possible and deliver at the agreed upon time based on the schedule baseline. Delays in our work related to inaccurate, missing, or conflicting decisions or communications from the Customer reduced Continuant’s ability to produce deliverables in a fully complete state. If Delays occur, Continuant will not be responsible for adhering to the established deliverable date.
   
   
6. Termination. Block of hours may not be terminated or returned for a credit.
   
   
7. Orders. Orders will be governed exclusively by the terms and conditions of the Agreement and the SOW. Terms and conditions on Customer’s Purchase Order (“PO”) shall not apply.

Updated September 2024

1. Definitions. All definitions as stated in the Agreement shall apply to this SOW.
   
   
2. Scope of Work. The scope of work is included this SOW, additions to the scope may be detailed in an additional document and incorporated into this SOW and subject to all its terms and conditions. Additional services may by recognized as necessary after execution of this SOW – such additions constitute a substantial change and require a signed Change Order Form as described in Section 3 below. Additional work by Continuant will not be carried out without such change order received. Additional services will be invoiced at the agreed amount on the appropriate Change Order
   
   
3. Change Management. The following events will be addressed with a Project Change Order (“PCO”). Those events include, but not limited to, any change to schedule, cost, or personnel. Unless specifically described otherwise in the Agreement, changes to this SOW will be made according to the process described herein. If not specified, approved minor or non-substantive changes will be memorialized in writing using email communications. For large or substantive changes, as determined by Continuant, a Change Order Form will be required. This form will be agreed upon by both Parties and become an attachment to and part of this Agreement after both Parties have signed.
   
   
4. Progress Payments. Progress payments will be made according this SOW unless otherwise agreed upon. Work will begin once this SOW is signed, and first payment is received. No payments, regardless of description or milestone, laid out in this SOW or Agreement are to be considered refundable.
   
   
5. Termination. Customer may cancel accepted orders by providing a written notice and subject to a twenty five percent (25%) cancellation fee. The purchase of software licenses, customer requested modifications to OEM products, fabricated parts, and 3rd party provided services are non-refundable and may not be returned to Continuant for a credit. Any software, including software support or services, purchased by Continuant from a 3rd party as requested by Customer under this SOW may not be cancelled during the term of this SOW.
   
   
6. Orders. Orders will be governed exclusively by the terms and conditions of the Agreement and the SOW. Terms and conditions on Customer’s Purchase Order (“PO”) shall not apply.

Continuant is a partner of CallCorp also known as Total.Care Holdings, LLC. and has resold CallCorp’s Total.Care Contact Center to Continuant’s customer(s) (“Customer”) as Continuant Connect Contact Center-(“C4”). Customer agrees to the terms and conditions of this EULA as it relates to Total.Care. Customer employees or associates (“Users”) must be notified of this EULA and abide by these terms and conditions.

Total.Care Holdings, LLC (“Total.Care”, “we” or “us”) offers various services to you through our website and our application on the web, all of which are conditioned on your agreement to adhere to the following Terms of Service (“Terms of Service” or “Agreement”). Customer’s use of the Service and/or your registration with us constitutes your agreement to these Terms of Service. These Terms of Service shall not be amended or modified without the prior written approval of Total.Care and Customer. These Terms of Service apply to all visitors and all who access our website or Services.

Total.Care offers online software functionality primarily for call centers. We manage certain applications (“App” or “Apps”) and related support and hosting services (together with the App, the “Service” or “Services”).

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

We respect the privacy and security of our Users. You understand that by using our Services, you give consent to the collection, use and disclosure of your personally identifiable information as well as any non-personally identifiable information, as described in more detail in our Privacy Policy.

Customer affirms to be fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service, and to abide by and comply with these Terms of Service.

At our discretion, we may maintain different accounts for different types of Users. If a User opens an account on behalf of a company, organization, or other entity, then User represents and warrants that User is an authorized representative of the entity with the authority to bind the entity to these Terms of Service, and that you agree to these Terms on the entity’s behalf. By connecting to us with a third-party service, User give us permission to access and use information from that service as permitted by that third-party service, and to store your log-in credentials for that third-party service. The Service is not available to any User who has been removed from the Service by Total.Care. In the event User is using the Service as the employee or agent of an organization that has a separate commercial agreement with Total.Care for use of the Service and such agreement conflicts with this Agreement – such separate agreement shall control in the event of any conflicting terms.

1. Services

Subject to the terms and conditions of this Agreement, Total.Care will provide Customer with non-exclusive access to the Services– solely for use for Customer’s own, internal business purposes. The “Service” includes (a) the Site, (b) on-demand Total.Care tools and Total.Care API, and (c) other services provided to Customer through our reseller, Continuant www.continuant.com (“Site”) based on the plan purchased, including all software, data, text, images, sounds, videos, and other content made available through the Site, or developed via the Total.Care API (collectively, “Content”). Any new features added to or augmenting the Services are also subject to this Agreement, it being understood and agreed that new features may not be available for all pricing plans. The Services may also include basic or expanded support based on the Service plan purchased. Total.Care will use reasonable efforts to make the Services available except for: (a) planned downtime, (b) emergency maintenance, or (c) any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest.

Customer is responsible for maintaining the confidentiality of login and account information and is fully responsible for any and all activities that occur under your login or account. Customer is entirely responsible for maintaining the confidentiality of the information Customer maintains for Customer’s account, including password(s), and for any and all activity that occurs under Customer’s account as a result of your failing to keep this information secure and confidential. Customer agrees and acknowledges that login(s) may only be used by one (1) person, and that Users will not share a single login among multiple people. Total.Care cannot and will not be liable for any loss or damage arising from your failure to comply with these obligations.

2. Registration

By registering and/or participating in this Service, Customer agrees and represents as follows:

2.1. Customer is capable of forming a legally binding contract;

2.2. All information submitted to Total.Care or in connection with a Service is accurate and complete and that Customer will maintain and promptly update any profile supplied to Total.Care to ensure accuracy at all times;

2.3. Customer agrees to be contacted via Email, SMS and text messaging by Total.Care or by other Service users, including push notifications regarding our Services, our website, and third party (provided, however, that Customer understands all SMS and text messages received through the Service are sent to Customer or by other Users on Customer’s account and not by Total.Care);

2.4. Customer hereby grant us permission to display your profile and such other information as may be supplied by Customer on our website in connection with the provision of Services;

2.5. By using the Service, Customer grants us permission to access your account and those messages, data, information, text, graphics, audio, video or other material (“Materials”) posted/uploaded/transmitted to or through the Service using your account, solely in connection with the provision of Services. Subject to your prior written approval, Total.Care may use Customer company logo in our Site and other print material to identify Customer as a registered user of the Service and for advertising purposes;

2.6. Customer will not (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by these Terms of Service; (b) use the Service to process data on behalf of any third party, (c) modify, adapt or hack the Service to falsely imply any sponsorship or association with Total.Care, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks;

2.7. Customer understands that the Service is not intended to support or carry emergency calls to any emergency services such as public safety answering points and that Total.Care will not be held liable for any claim, damages or loss (and you hereby waive any and all such claims or causes of action), arising from or relating to your (or your customers’) inability to use your Service subscription to make such emergency calls. Please make sure to have an alternate means to send and receive emergency calls;

2.8. Customer will abide by all applicable laws in your use of the Service, including without limitation any relating to dialing outbound phone numbers and sending of text or SMS messages through the Service.

3. Responsibility for User Content and Call Recording

We respect the rights of third party creators and content owners and expect that you will do the same. Given the nature of the Service and the volume of information submitted, we cannot and do not monitor all of the Materials posted or transmitted by you and other third-party information providers via the Service, including, without limitation, any Materials posted via the Service. You expressly agree that we will not be liable for Materials. We reserve the right, but are not obligated, to remove content from the Service for any reason, including content that we believe violates these Terms or our Acceptable Use Policy below.

Please note that while Total.Care offers the option for you to record calls, if you choose to use this service, then you must comply with all applicable state and federal laws, regulations and rules prior to recording any telephone calls and you expressly warrant and represent to Total.Care that you shall comply at all times. We make no representations or warranties with respect to call recording and recommend that you always secure consent before recording. You acknowledge that these representations and obligations are essential to the ability of Total.Care to provide you with access to call recordings and you further agree to indemnify, defend and hold Total.Care and its officers, directors, owners, employees, agents, consultants and vendors harmless from and against any and all third party liabilities, losses, claims, damages, causes of action, costs and expenses (including attorneys’ fees) that may be incurred by Total.Care arising out of or related to your acts or omissions in connection with your call recordings, whether such claims arise under contract, tort, statute or other legal theory.

4. Acceptable Use Policy

4.1 General

The following is a partial list of the kinds of activities that are prohibited on or through the Service: (a) submitting or using Materials that are patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) engaging in activities or submitting Materials that could be harmful to minors; (c) engaging in activity or submitting Materials that harasses or advocates harassment of another person; (d) engaging in activity that involves the transmission of “junk mail” or unsolicited mass emailing or “spam” or harvesting or otherwise collecting personally identifiable information about Service users, including names, phone numbers, addresses, email addresses, (collectively, “User Data”) without their consent; (e) engaging in activity, or submitting Materials, or promoting information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (f) submitting Materials that contain restricted or password only access pages, or hidden pages or images; (g) submitting Materials that displays pornographic or sexually explicit material of any kind; (h) submitting Materials that provide instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses; (i) submitting Materials that contain viruses, Trojan horses, worms, or any other similar forms of malware, (j) engaging in activities or submitting Materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (k) engaging in unauthorized commercial activities and/or sales without our prior written consent such as advertising, solicitations, contests, sweepstakes, barter, pyramid schemes, unsolicited marketing or other activities, including any activities that violate anti-spam laws and regulations including the CAN SPAM Act of 2003, the TCPA Rules (as defined below), and the Do-Not-Call Implementation Act (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction); (l) using any robot, spider, other automatic device, or manual process to monitor, copy, or “scrape” web pages or the content contained in the website or for any other unauthorized purpose without our prior written consent; (m) using any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; or (n) decompiling, reverse engineering, or disassembling the software or attempting to do so. In addition, you covenant and represent that you will not use the Service for any purpose other than those that are for your internal business purposes, nor will you use this Service in violation of any applicable laws or regulations (including those relating to the recording of telephone calls telemarketing, and the sending of text or SMS messages), industry standards, third party policies (including all of the applicable guidelines published by the CTIA, the Mobile Marketing Association), or any other accepted industry associations, carrier guidelines (or any similar or analogous industry standards, third party policies or requirements in any other jurisdiction), or these Terms of Service.

4.2 Calling and Messaging through the Services

You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the electronic transmission of messages and calls that you create and initiate through the Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages, calls, broadcasts, and campaigns transmitted through the Services by visiting the following websites:

• Federal Trade Commission, http://www.ftc.gov
• Federal Communications Commission, http://www.fcc.gov
• DoNotCall Registry Info, http://www.donotcall.gov

In particular, you acknowledge that the Telephone Consumer Protection Act of 1991 together with final rules and regulations (collectively, “TCPA Rules”), generally prohibits (1) the making of telemarketing calls using an artificial or prerecorded voice to residential telephones without prior express consent; and (2) the making of any non-emergency call using an automatic telephone dialing system or an artificial or prerecorded voice to a wireless telephone number, in each case, without prior express consent. You understand and agree that you are solely responsible for complying with the TCPA Rules and any other state, federal or local laws, rules and regulations, in effect from time to time, governing electronic communications between you and the owners of the phone numbers you initiate calls or messages to through the Services. Without limiting the foregoing, you represent and warrant that the owners of the phone numbers have given prior express consent or otherwise opted-in to the receipt of such calls or messages as required by any applicable law or regulation. You agree that you will include clear opt-out/unsubscribe information on your calls or messages when required to do so by any applicable law or regulation. You further agree that any individuals requesting “Do-Not-Call” (“DNC”) status shall immediately be placed on your DNC accounts list and you further agree that you will not initiate any subsequent messages or calls to any individuals after they request DNC status.

The TCPA Rules, the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and text messages. Total.Care is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your use of the Services to initiate calls or messages.

5. Use of Third Party Services

As a part of our Service, we may offer integrations with websites and applications operated by various third parties and are not responsible or liable for any acts or omissions created or performed by these third parties, including any difficulties accessing their services. We provide such integrations for your convenience and reference only. We do not operate or control in any way any information, software, products or services available on such web sites or applications. Our inclusion of an integration with a website or an application does not imply any endorsement of the services or the site, its contents, or its sponsoring organization.

6. Representations and Warranties and Indemnification

Total.Care hereby represents and warrant that: (a) it has full right and power to enter into and perform under these Terms of Service, without any third-party consents or conflicts with any other agreement, (b) the Service will comply at all times with all applicable laws, regulations, and orders, including those relating to privacy and data protection; (c) use of the Service and any output will not introduce into any your systems (or third-party systems on which you use the Service) any viruses, worms, time bombs, Trojan horses or other harmful, malicious or destructive code; and (d) the Service (and your use thereof) does not and will not infringe, violate, or misappropriate the intellectual property rights of any third party.

Customer hereby represents and warrants that: (a) Customer has all necessary authority, rights and permissions to submit the Materials and grant the licenses described in these Terms of Service, (b) the Materials are accurate, current and complete, (c) the Materials and your use of the Service shall not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third party, including, without limitation, any rights of privacy or publicity or any contractual rights, (d) the Materials and your use of the Service shall not violate any applicable law or regulation or cause injury to any person; (e) your use of the Service shall not violate any agreements between you and a third party.

Customer agrees to indemnify, defend and hold harmless Total.Care, and its officers, directors, employees, agents, and contractors from and against any and all third party claims, costs, demands, damages, liabilities, or expenses, including, without limitation, reasonable attorneys’ fees, arising from or related to: (a) the Materials Customer provides or approves for publication or breach of these Terms of Service including failure to comply with the TCPA Rules or any representations or warranties in this Section 8.

Total.Care agrees to indemnify, defend and hold Customer and it’s officers, directors, employees, agents, and contractors harmless from and against any and all third party claims, costs, demands, damages, liabilities, or expenses, including, without limitation, reasonable attorneys’ fees, arising from or related to Total.Care’s: (a) gross negligence or willful misconduct, (b) breach of this Agreement or (c) violation of applicable data privacy and data protection laws or regulations.   In the event of an indemnification claim, Total.Care will not settle any claim without Customer’s prior written consent other than the payment of money damages for which you have accepted responsibility and you may participate, at its own expense, in any defense and settlement, with counsel of Customer’s choice.

7. Disclaimers and Limitations

Errors in the information contained in our Service sometimes occur. In addition, we may make changes and improvements to the Service provided herein at any time so long as the functionality of the Service is not degraded. EXCEPT AS SET FORTH HEREIN, THE SERVICE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED “AS IS.” WE AND/OR OUR SUPPLIERS, PARTNERS AND AFFILIATES DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICE AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON INFRINGEMENT. USE OF OUR SERVICE IS AT CUSTOMER’S OWN RISK. EXCEPT AS SET FORTH HEREIN, WE AND/OR OUR SUPPLIERS, ARE NOT LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICE OR WITH THE DELAY OR INABILITY TO USE THE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH US, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE AND/OR OUR SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER.

LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY OR ITS SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. EXCEPT FOR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR AS RELATED TO EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS OR ITS INDEMNIFICATION OBLIGATIONS, EACH PARTY’S LIABILITY, AND THE LIABILITY OF ITS SUPPLIERS AND AFFILIATES, TO THE OTHER PARTY OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY CUSTOMER FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM, NOT INCLUDING THIRD PARTY LONG DISTANCE FEES AND TAX. IN ADDITION, EXCEPT AS SET FORTH HEREIN, TOTAL.CARE WILL NOT BE LIABLE FOR (A) THE COST OR PROCUREMENT OF ANY SUBSTITUTE TECHNOLOGY OR SERVICES, (B) ANY MATTERS CONTEMPLATED BY FORCE MAJEURE BELOW, (C) THE LOSS OF ANY DATA OR OTHER TECHNICAL ISSUES, OR DAMAGES TO CUSTOMER MOBILE DEVICE OR OTHER HARDWARE OR SOFTWARE THAT IS CAUSED BY THE SERVICE (FOR CLARITY, INCLUDING ANY SYSTEMS, APPLICATIONS, CODE, PROCESSES OR METHODS USED TO PROVIDE THE SERVICE), OR (D) DAMAGES FOR ANY EMAILS OR OTHER CONTENT THAT CUSTOMER OR END USERS SEND OR POST VIA THE SERVICE. THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF TOTAL.CARE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN US AND CUSTOMER. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.

ERRORS AND DELAYS

We are not responsible for any errors or delays caused by an incorrect email address provided by Customer or other technical problems beyond our reasonable control. It is Customer’s responsibility to ensure that Total.Care has updated email addresses and contact information.

8. Dispute Resolution

Any claim or controversy arising out of or relating to the use of our Service, to the goods or services provided by us, or to any acts or omissions of other users for which Customer may contend we are liable, including but not limited to any claim or controversy (“Dispute”), shall be finally, and exclusively, settled by arbitration in Salt Lake City, Utah, from which arbitration there shall be no appeal. The arbitration shall be held before one arbitrator. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of the state of Utah, except that the interpretation and enforcement of this arbitration provision shall be governed by the U.S. Federal Arbitration Act. To begin the arbitration process, a party must make a written demand therefore. Each party shall bear its own costs and attorneys’ fees. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN CUSTOMER AND US WILL BE RESOLVED BY BINDING ARBITRATION. CUSTOMER THUS GIVE UP CUSTOMER’S RIGHT TO GO TO COURT TO ASSERT OR DEFEND CUSTOMER RIGHTS. CUSTOMER RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.

9. Parental Control Protections

Pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify Customer that there are commercially available parental control protections (such as computer hardware, software or filtering services) that may assist Customer in limiting access to material that is harmful to minors. Information identifying current providers of such protections is available at http://internet-filter-review.toptenreviews.com.

10. Jury Trial Waiver

CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.

11. General

Customer agrees that: (i) the Service shall be deemed solely based in Utah; and (ii) this Service shall be deemed a passive web site and service that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Utah. These Terms of Service shall be governed by the internal substantive laws of the State of Utah, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. These Terms of Service, together with the Privacy Policy and any other legal notices published by us on the Service, shall constitute the entire agreement between Customer and us concerning this Service and supersedes any prior written or oral representations. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. These Terms of Service may not be transferred or assigned by Customer without our prior written approval, but may be assigned by us without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved to us. Neither party shall use the other party’s name, logos or trademarks in any publicity (including press releases) or advertising without the other party’s prior written consent.

12. Intellectual Property

All contents of the Service are copyrighted © 2020 Total Care Holdings, LLC dba Total.Care. All rights reserved. Other product and company names may be trademarks or service marks of their respective owners.

Total.Care shall own all right, title, and interest in and to Service, including all modifications, improvements, upgrades, and derivative works thereto. No intellectual property rights are assigned or transferred by Total.Care hereunder.

Total.Care, and Total.Care’s other product and service names and logos used or displayed on the Service are registered or unregistered trademarks of Total.Care (collectively, “Marks”), and Customer may only use such Marks to identify itself as a customer and user of the Service; provided Customer does not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent Total.Care, its services or products.

IF CUSTOMER DOES NOT AGREE TO THE TERMS STATED ABOVE OR TO ANY CHANGES MADE IN THESE TERMS, PLEASE EXIT THIS SERVICE IMMEDIATELY