Terms of Service

AGREEMENT BETWEEN ONEsite, Inc. and COMPANY

By completing the online signup Agreement, COMPANY or INDIVIDUAL (“COMPANY”), contracts with ONESITE, Inc. (“ONESITE”) an Oklahoma Corporation, to provide a right to use license (RTU) of the ONEsite Social Core® software operated exclusively in ONEsite’s Software as a Service Platform and client services as described by the terms and conditions set forth in this Agreement and as supplemented by the terms and conditions agreed to in any subsequent Statement of Work and other attachments and incorporated herein by reference.

1. Project and Term

This Agreement shall begin as of the Effective Date of the Agreement and shall continue for one month (“Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for successive one month terms (each a “Successive Term”) unless COMPANY or ONESITE delivers to the other written notice of its desire to terminate at least 30 days prior to the expiration of the Initial Term or any Successive Term or a new agreement to replace this one is executed by the parties and concerns the subject matter hereof. Sections 4, 5, 6, 7, 8, 9, 10, 11, 12 and 16 will survive the termination of this Agreement. During the term of this Agreement, ONESITE will provide to COMPANY such services as are described in a Statement of Work (“SOW”). NO OBLIGATION FOR ANY SERVICES OTHER THAN PROVIDING THE SOCIALCORE® SOFTWARE, PRODUCTS OR COSTS SHALL BE INCURRED BY EITHER PARTY UNTIL A SOW OR OTHER WRITTEN CHANGE REQUESTS HAVE BEEN EXECUTED IN ACCORDANCE WITH THIS AGREEMENT. Any changes to a SOW or additional requests for work after execution of the initial SOW shall require a mutually executed Change Request or an additional SOW.

2. Project Administration

COMPANY shall designate an employee to be its Project Manager. The Project Manager or his/her designee shall have day-­‐to-­‐day responsibility for ensuring that COMPANY shall perform its obligations under this Agreement, for authorizing payments, and for generally directing the work to be performed by ONESITE. ONESITE shall designate an employee to be its Project Manager. The Project Manager or his/her designee shall have day-­‐to-­‐day responsibility for interacting with COMPANY Project Manager, and for supervising the daily progress and completion of work performed by ONESITE. The Project Managers or their designated representatives shall meet as needed, but at least monthly, to review progress and to resolve problems related to the completion of the Statement of Work.

3. Execution of Change Requests or Additional Statements of Work

COMPANY may request ONESITE to perform additional Services not specified in the SOW and ONESITE may provide COMPANY with a proposal based on such request. If the additional services are enhancements to any SOW, and the parties agree on the scope, pricing and/or man-­‐time rates, and other related requirements affecting the proposed Services, ONESITE shall draft a Change Request which shall include the terms and conditions of such agreement. Each Change Request shall include, at a minimum, a description of the Services to be performed, the required Delivery Date(s) for the Deliverables and the payment schedule for the Services. Each Change Request may also include such other terms and conditions, as the parties deem necessary or appropriate. The provisions of a Change Request shall constitute binding obligations upon the parties only after an authorized representative of each party has signed the Change Request. Neither party shall be subject to any rights nor obligations with respect to requested Services until both parties have properly executed a Change Request. All Change Requests shall be subject to the terms and conditions of this Agreement, except that each Change Request shall constitute an amendment to this Agreement with respect to any additional terms and conditions applicable exclusively to such Change Requests. Any functionality requested by COMPANY not in the SocialCore® functionality listed in Attachment C shall require a Change Request (Attachment D) mutually agreed upon and executed by COMPANY AND ONESITE. IF COMPANY’s request for additional services represents a separate project, ONESITE shall draft a new SOW. Neither party shall be subject to any rights or obligations with respect to requested project until a SOW statement of work has been properly executed by both parties. All SOWs shall be subject to the terms and conditions of this Agreement, except that each SOW shall constitute an amendment to this Agreement with respect to any additional terms and conditions applicable exclusively to such SOW.

4. Disclaimer of Warranties and Representations

Except for the warranties set forth herein, ONESITE DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE SERVICES OR ANY PART THEREOF, INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT ONESITE KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, ONESITE EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN COMPANY WITH RESPECT TO THE SERVICES OR ANY PART THEREOF.

5. Exclusion of incidental and Consequential Damages

Independent of, several from, and to be enforced independently of any other enforceable or unenforceable provision of this Agreement, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY’S RIGHTS) FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND -­‐ including lost profits, loss of business, or other economic damage, and further including injury to property -­‐ ARISING FROM THE SERVICES OR AS A RESULT OF BREACH OF ANY TERM OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.

6. Maximum Aggregate Liability

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF ONESITE, EXCLUDING ONESITE’S MAXIMUM AGGREGATE LIABILITY FOR INFRINGEMENT OF ANOTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS DESCRIBED IN SECTION 16 HEREOF OR OTHERWISE (“INFRINGEMENT”) (WHICH LIMITATION IS DESCRIBED IN THE BELOW PARAGRAPH), TO THE COMPANY (INCLUDING LIABILITY TO ANY PERSON OR PERSONS WHOSE CLAIM OR CLAIMS ARE BASED ON OR DERIVED FROM A RIGHT OR RIGHTS CLAIMED BY COMPANY), WITH RESPECT TO ANY AND ALL CLAIMS AT ANY AND ALL TIMES ARISING FROM OR RELATED TO THE SUBJECT MATTER FOR THIS AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, EXTEND BEYOND THE AMOUNTS PAID TO ONESITE FOR THE SERVICES PROVIDED HEREIN DURING THE LAST THREE MONTHS BEFORE SUCH CLAIM OR CLAIMS. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, THE AGGREGATE LIABILITY OF ONESITE AND THE COMPANY FOR INFRINGEMENT SHALL NOT EXCEED THE LESSER OF (i) $250,000 OR (II) THE AMOUNT PAID BY THE COMPANY TO ONESITE FOR SERVICES PROVIDED HEREIN DURING THE LAST THREE MONTHS BEFORE SUCH CLAIM OR CLAIMS.

7. Intentional Risk Allocation

ONESITE and COMPANY each acknowledges that the provisions of this Agreement were negotiated to reflect an informed, voluntary allocation between them of all risks (both known and unknown) associated with the transactions associated with this Agreement. The warranty disclaimers and limitations in this Agreement are intended to limit the circumstances of liability. The remedy limitations, and the limitations of liability, are separately intended to limit the forms of relief available to the parties.

8. Arbitration

Any controversy or claim arising out of or relating to this Agreement or the breach thereof will be settled by arbitration in Oklahoma City, Oklahoma, before and in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The award rendered in that arbitration will be binding on the parties hereto, and judgment upon the award can be entered by any court having jurisdiction thereof. Without detracting from the generality of the foregoing, the following specific provisions will also apply:

• The proceedings will be held by a panel of three arbitrators, each party having the right to select one arbitrator, with the third to be selected in accordance with the Rules of the American Arbitration Association;
• The parties, by mutual agreement, can also provide that all or part of the arbitration proceedings be held outside of Oklahoma City, Oklahoma; in this event, the parties will equally bear any special expenses resulting from that decision;
• Before rendering their final decision, the arbitrators will first act as friendly, disinterested parties for the purpose of helping the parties reach compromise settlements on the points in dispute; and
• The costs of the arbitration will be in the discretion of the arbitrators, provided, however, that no party is

9. Payments To ONESITE

Except for any initial fees due immediately at SOW or Change Request execution, ONESITE rates are based upon billing one month in advance for the next months services and for any excess charges or consulting time incurred in the previous month. All remittances but the initial fees for any SOW or Change Request shall be due within thirty (30) days of each such billing being presented.

10. Confidential Information

All information disclosed to COMPANY by ONESITE (including, but not limited to, Network Design, Software Systems or Application, Proprietary Methodologies, Web Hosting Systems, Solution Templates, ONESITE Customer Information, and other records, documents and information concerning ONESITE products, services, ideas and concepts) shall be considered highly confidential and valuable proprietary information not previously released or available to the public and such information is recognized and acknowledged by both Parties to possess competitive value ("Confidential Information"). All information disclosed to ONESITE by COMPANY (including, but not limited to, Financial Information, Personnel Information, Physical Assets Information, Customer Information, and other records, documents and information concerning COMPANY products, services, ideas and concepts) shall be considered highly confidential and valuable proprietary information not previously released or available to the public and such information is recognized and acknowledged by both Parties to possess competitive value ("Confidential Information").

11. Use of Confidential Information

COMPANY and ONESITE mutually agree that the other party’s Confidential Information will be used solely by it to perform the requirements of this Agreement and that it will not disclose any Confidential Information to anyone, except employees of ONESITE and COMPANY who need to know it for the purpose of such performance. All employees will be required to agree to be bound by this Agreement to the same extent as if they were parties thereto prior to the disclosure to them of any Confidential Information. ONESITE and COMPANY will use reasonable safeguards against the unauthorized disclosure of the Confidential Information.

12. Title to Proprietary Material

ONEsite provides software and services to COMPANY in a business relationship known as software as a service (SaaS). No work done or deliverables provided by ONEsite under this Agreement, any SOW, or any Change Request will constitute Work Made for Hire. Title to the ONEsite Proprietary Material and the copyrights, trademarks, computer source code, domain names, patents and other intellectual property rights thereto pertaining at all times shall remain with ONEsite which shall have the exclusive right to protect the same by copyright or otherwise. The term "ONEsite Proprietary Material" as used herein, shall mean the materials, documents, ideas, software, algorithms, know-­‐how, concepts and other means used to provide the services to COMPANY, including, but not limited to, the software SocialCore® (including analysis, design and construction models including both source and object code), the case studies or models, the solution templates, domain names, the ONEsite customer information, and the improvements and enhancements made thereto, ONEsite owns all code written by ONEsite. COMPANY has a Right to Use (RTU) license only for the duration of this Agreement and as long as COMPANY continues to pay service fees outlined in any SOW or Change Request. (b)

COMPANY Title.