Upbound Master Services Agreement

2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for time sharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.

2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

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

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

2.5 Any use of the Service in breach of this Agreement, associated documentation (“Documentation”) or Order Forms by Customer or authorized users that in Upbound’s judgment threatens the security, integrity or availability of the Service may result in immediate suspension of Customer’s access to the Service; however, Upbound will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension.

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

3.2 Customer shall own all right, title and interest in and to the Customer Data. Customer, not Company, has sole responsibility for ensuring the accuracy, quality, integrity, legality, security, reliability, appropriateness, and intellectual property rights to use all Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. The Agreement does not convey to Customer any rights of ownership in or related to the Services, or any intellectual property rights owned by Company.

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

4.1 Customer will pay Company the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”).  If Customer’s use of the Services exceeds the consumption or tier set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).   If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.

4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by the Company thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income. 

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

7.1  Subject to Section 7.3, Company will defend Customer from any and all Claims brought against Customer alleging that the Service, as provided by Company to Customer under this Agreement, infringes any patent, copyright, or trademark or misappropriates any trade secret of any third party (each, an “Infringement Claim”). Company will indemnify Customer for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Company, in connection with an Infringement Claim. In the event of any such Infringement Claim, Company may, at its option: (i) obtain the right to permit Customer to continue using the Service, (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate the applicable Order Form as to the infringing Service and provide a pro rata refund of any prepaid, unused Fees for such infringing Service. Notwithstanding the foregoing, Upbound will have no liability for any Infringement Claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than Company, (2) the combination of the Service with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (3) Customer’s use of the Service other than in accordance with the Documentation or this Agreement. The indemnification obligations set forth in this Section 7.1 are Company’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third-party intellectual property rights of any kind.

7.2.  Customer Indemnification Obligation. Subject to Section 7.3, Customer will defend Company from any and all Claims brought against Company alleging a violation of a third party’s rights arising from Customer's provision or use of the Customer Data. Customer will indemnify Company for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Customer, in connection with such Claims. “Claims” means any third-party claims, demands, suits or proceedings.

7.3.  Indemnity Requirements. The party seeking indemnity under this Section 7 (“Indemnitee”) must give the other party (“Indemnitor”) the following: (a) prompt written notice of any Claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the Claim, at the Indemnitor's sole expense, and (c) sole control over the defense and settlement of the Claim, provided that the Indemnitee may participate in the defense of the Claim at its sole expense and any settlement by the Indemnitor does not include an admission of liability by the Indemnitee.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 8 DO NOT APPLY TO CLAIMS AND DAMAGES PURSUANT TO SECTION 7 AND, WITH RESPECT TO SERVICES PROVIDED PURSUANT TO A CUSTOMER-HOSTED MODEL, SECTION 3. WITH RESPECT TO CLAIMS AND DAMAGES FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 3 FOR SERVICES PROVIDED PURSUANT TO A CUSTOMER-HOSTED MODEL, THE MAXIMUM AGGREGATE LIABILITY SHALL BE THE HIGHER OF (A) FEES PAID BY CUSTOMER IN THHE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY AND (B) $100,000. 

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and the Customer does not have any authority of any kind to bind the Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. If either party brings against the other party any proceeding in connection with this Agreement, that party may bring that proceeding only in the United States District Court for the Western District of Washington or, only if there is no federal subject matter jurisdiction, in the Superior Court for the County of King, and each party submits to the exclusive jurisdiction of those courts for purposes of any such proceeding. Company may use the Customer's logo on its website during the Term and will remove it upon expiration or termination of the Agreement. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and the Customer otherwise agrees to reasonably cooperate with the Company to serve as a reference account upon request. Company shall not be liable for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by a force majeure event. Nothing in this Agreement will preclude or limit Company from providing the Services to other customers. If this Agreement or an Order Form is terminated for any reason, Sections 2.3, 3.1, 3.2, 4, 6-8 of this Agreement (as the same are incorporated into each Order Form) will survive such termination

During the applicable Order Form term, Company will: (a) make the SaaS Services available to Customer for Customer to access and use the SaaS Services in accordance with the terms of this Module, the Agreement, the Order Form, and any other applicable documentation; (b) provide purchased support services to Customer at the level subscribed to by the Customer; and (c) provide the SaaS Services in accordance with the applicable Service Level Agreement.

2.1 Implementation. Company shall implement and configure the SaaS Services in the relevant online operating environment by the implementation date set out in the applicable Order Form.  

2.2 Services Requirements. Company shall ensure that the Services include functionality to: (i) prevent access to the Services by any unauthorized user; (ii) promptly restrict and remove users from having access to the Services; (iii) store Customer Data (without restriction on storage capacity) logically separated from any data of Company’s other customers; and (iv) create and maintain backups and logs of Customer Data in a manner and frequency that meets Customer’s reasonable requirements.  

2.3 Company agrees to safeguard Customer Data in accordance with the Security Exhibit.

3.1 Company will use commercially reasonable efforts to provide Customer the Services in accordance with the Uptime Terms attached to Annex 1 of this Module.

3.2 Reporting and Remediation.  Company will provide the status of its Uptime performance at the following link: https://status.upbound.io. On a quarterly basis upon request, Company shall provide to Customer a written report summarizing the Services being provided by Company within the scope of this Module and detailing the total spend during the calendar year.

4.1 Representations and Warranties. Company represents and warrants that: 

4.1.1 the Services do not contain or include, and are not designed to interact or interconnect (in any manner) with, and do not require, in order to function in their intended fashion, the use of: (a) any third party software or other third party work subject to an open source licence or any ‘copyleft’ terms that: (i) grant, or purport to grant, to any third party any right to or in Customer’s or any of its affiliates’ respective intellectual property rights or other proprietary rights; (ii) could cause, or be interpreted or asserted to cause, any of Customer’s respective intellectual property or other proprietary materials to become subject to the terms of any open source or similar licence; (iii) require Customer or any of its affiliates to make any source code (or any part or derivative work thereof) available to third parties under any circumstances; or (iv) otherwise subject Customer to any obligation not expressly set out in the Agreement, this Module or the applicable Order Form; or (b) any open source software that has not been specifically identified in the Order Form and agreed to by Customer;

4.1.2 Company is not aware of the presence of, and no Company Personnel has included, any computer virus that has not been eradicated; 

4.1.3 none of the Services contains any code or protocol that would: (i) permit the gaining of unauthorized access to, or surreptitious monitoring of the use or operation of any SaaS Services or Customer system or Company system; or (ii) disable or impair any Services or Customer system or Company system, in any way, based on the elapsing of a period of time, the exceeding of an authorized number of copies or scope of use or the advancement to a particular date or other numeral; 

4.1.4 Company complies with all applicable laws regarding: provision and delivery of the Services. 

5.1 The Services shall commence on the effective date of the applicable Order Form (unless otherwise provided in the applicable Order Form) and, unless sooner terminated in accordance with the Agreement, the terms of this Module or the terms of the applicable Order Form, shall continue for the period of the initial services term as set out in the Order Form (“Initial Services Term”) before expiring, unless renewed pursuant to the Agreement or this Module.

Company shall use commercially reasonable efforts to make the Services available ninety-nine-point nine percent (99.9%), measured on a per-calendar month basis, excluding Scheduled Maintenance.  If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.  Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Company’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and Company’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than 4 hours, Company will credit Customer 2% of Services fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day.  Downtime shall begin to accrue as soon as Customer (with notice to Company) recognizes that downtime is taking place, and continues until the availability of the Services is restored.  In order to receive downtime credit, Customer must notify the Company in writing within twenty-four (24) hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit.  Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event.  Company will only apply a credit to the month in which the incident occurred.  Company’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Company to provide adequate service levels under this Agreement.