Master Services Terms to Service Agreement

1. Provision of Services. Enumerate will provide Customer with access and use of the Services identified in an Order Form executed by the Parties in accordance with this Agreement and if applicable, will provide other related setup or other professional services as may be requested by Customer and mutually agreed between the Parties in an Order Form or applicable statement of work (SOW). Subject to the terms of this Agreement, Enumerate will use commercially reasonable efforts to make the Services available to Customer pursuant to Enumerate’s service level objectives (SLO).

2. Access and Use License. During the Term and subject to the terms of this Agreement, Enumerate hereby grants to Customer, a limited, non-exclusive, non-transferable, non-sublicensable (except as provided herein) license to access and use the Services solely for its internal business purposes of providing management and communication services to its residents (Customer’s “Residents”). For clarity, all intellectual property rights to the Services remain with Enumerate and Enumerate reserves all rights in and to the Services not expressly granted herein.

3. Customer Administrator and Authorized Users. Customer’s authorized users (“Authorized Users”) will include its designated personnel with “administrator status” (“Customer Admin”), additional Customer personnel who need to use the Services in connection with providing Customer’s services to its Residents, and Residents, each as authorized by Customer and for designated level of access. Among Authorized Users, only Customer Admins are authorized to grant and administer access to other Authorized Users on behalf of Customer. Customer Admin shall be responsible for (i) managing Authorized Users including providing any support to its Residents Users; and (ii) ensuring that Customer’s Authorized Users list remains accurate and current. Customer Admins shall promptly terminate access of any Authorized Users who cease being employed by Customer or cease being Residents. Use of the Services by Authorized Users shall be subject to all terms and conditions in any end user license terms and/or acceptable use policy made available to Authorized Users within the Services, as may be updated by Enumerate from time to time. Enumerate reserves the right to disable or delete accounts of any users in violation of such terms or policies. As between Enumerate and Customer, Enumerate has no responsibility with respect to Customer’s agreements with its Residents.

4. Use Restrictions. Customer shall not, directly or indirectly, nor permit any Authorized User to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Services; (ii) copy, modify or create derivative works based on the Services; (iii) rent, lease, distribute, sell, resell, assign or otherwise transfer its rights to use the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party except for providing services to its Residents as expressly authorized herein; (v) use the Services to develop any similar or competitive service; (vi) use the Services in violation of any applicable laws or third party rights; (vii) introduce any viruses, worms, malware or other destructive code into the Services; (viii) bypass any measures Enumerate uses to restrict access to the Services, or (ix) remove or modify any proprietary marking or restrictive legends placed in the Services. Customer shall ensure that it and its Authorized Users comply with the provisions of the Agreement applicable to use of the Services and shall be responsible for all use of and access to the Services by any of its Authorized Users.

5. Customer Data. “Customer Data” shall mean all information uploaded into the Services or otherwise provided, or made available by or on behalf of Customer or any Authorized User, and including data about Residents, to Enumerate in connection with Customer’s use of the Services. As between Enumerate and Customer, Customer is and will remain the owner of all Customer Data and such information is considered the confidential information of Customer. Subject to the terms and conditions of this Agreement, Customer hereby grants Enumerate a limited, non-exclusive license to access, use, store, manage and process the Customer Data as necessary to provide the Services to Customer during the Term. For the avoidance of doubt, Customer Data does not include any aggregated de-identified or technical data related to Customer’s or its Authorized Users’ access to or use of the Services which may be used by Enumerate to manage and improve the performance of its services, for statistical analysis and for research and development purposes, provided that such data will not incorporate any Customer Data or Confidential Information of Customer in a form that could serve to identify Customer’s Authorized Users or any other individual.

6. Brand License. During the term of the Agreement, Customer hereby grants to Enumerate a limited, revocable, nonexclusive, royalty-free and non-transferable license to use such of Customer’s trademarks and logos solely as Customer may provide and request in order for the Services to be branded with Customer’s branding and trademarks.

7. Implementation/Branding/Integrations. If Customer is purchasing services for implementation, branding or integration relating to the Services, as identified in an Order Form, such services will be provided as described in the Order Form or any additional statement of work identified in the Order Form.

8. Fees and Payment.

8.1. Fees. In consideration of the Services and rights granted hereunder, Customer shall pay Enumerate the fees described and set forth on the Order Form and any other fees as identified in any mutually agreed upon statements of work (“Fees”). The fee will entitle Customer to access and use the Services for the metrics (e.g. number of Doors) as identified in the Order Form. The Fees are not subject to change during the initial term except as follows: (a) if the volume metrics exceed the amounts set forth in the Order Form, the Fees will be increased to correspond to the new volume metrics and Customer will be billed for the overages for the then current payment period and Fees will be adjusted for the higher volumes for subsequent payment period; (b) Enumerate may increase the Fees annually by an amount not to exceed 7% (seven percent) a year.

8.2. Payment. Fees will be invoiced and, are payable in accordance with the terms in the Order form. Any implementation fees noted in an Order Form are payable upon the Effective Date and any professional services procured under an Order Form are payable monthly in arrears within thirty days of invoice unless otherwise agreed upon in the Order Form. Fees shall be deemed undisputed unless Customer notifies Enumerate in writing within 10 days of the date of the applicable invoice, describing in reasonable detail the nature of the dispute, pays all undisputed amounts timely and cooperates in good faith to resolve such dispute as promptly as practical. Customer agrees to pay (i) all invoices by electronic ACH withdrawal from its bank account and/or credit card charge acceptable to Enumerate (plus a 2.5% additional credit card fee in the case of credit card payment only); and (ii) 1.5% per month interest on all invoices for which payment is not received within 30 days of its due date. Customer acknowledges and agrees that Customer will be charged fees for the processing of ACH and credit card payments from its Residents. At all times, Customer shall promptly provide, maintain, and update Enumerate with Customer’s then-current bank and/or credit card account numbers and all other information necessary for Enumerate to electronically withdraw funds from such bank account or charge such credit card account. In the event that either form of automatic payment is not honored or is declined, upon Enumerate’s demand Customer will immediately pay all amounts owed by immediately-available, certified or bank funds. Customer agrees to pay all taxes resulting from any transaction under this Agreement, but not including taxes based on Enumerate net income. If any undisputed amount is unpaid by more than 10 days past the due date, Customer may be subject to a finance charge payable to Enumerate of the lesser of 18% per annum or the maximum rate allowable per applicable law on all such past due amounts and Enumerate may, without limitation of Enumerate’s other rights or remedies, suspend Customer’s access to the Services on ten (10) days’ written notice to Customer.

8.3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Enumerate’s income.

8.4. Additional Charges. If Enumerate incurs additional expenses as a result of Customer’s failure to provide access to Customer systems, properly configure such systems, or provide Customer Data for implementation on a timely basis, or if Enumerate incurs travel, shipping, living expenses for out-of-town work, or other necessary resources, materials, and supplies in providing services to Customer, Customer agrees to reimburse Enumerate for the actual amount of such expenses.

9. Term; Termination.

9.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and remain in effect for initial subscription term designated in the Order Form unless terminated earlier in accordance with these terms. The initial term shall thereafter automatically be renewed for successive one (1) year renewal terms, unless either Party provides the other Party with written notice of non-renewal at least ninety (90) days prior to the end of the initial term or then-current renewal term.

9.2. Termination. Without limitation of its other rights or remedies, either Party may terminate this Agreement: (i) upon written notice to the other party if the other party ceases conducting business, dissolves, liquidates, winds down or becomes or declares insolvency or bankruptcy or is subject to similar proceedings; or (ii) upon a material breach of this Agreement by the other Party, which breach has not have been cured within sixty (60) days following written notice of such breach from the non-breaching Party.

9.3. Effect of Termination. Upon and after the termination or expiration of this Agreement for any or no reason: (a) all licenses granted hereunder will immediately terminate; (b) if the termination is due to a material breach by Enumerate, then Enumerate shall refund, on a pro-rata basis, all fees amounts paid in advance for any Services that Enumerate has not provided as of the effective date of such termination; (c) Customer shall pay all amounts due through the effective date of termination, (d) Customer shall comply with Enumerate’s instructions as to disabling access to the Services and (e) provided that the Agreement is not being terminated by Enumerate for non-payment or breach, Enumerate will provide Customer a thirty (30) day transition period to access the Services for the sole purpose of downloading and exporting any Customer Data and for no other purpose. Sections 8.3 and 10-12, and 14-20 and any other provision of this Agreement which, either by their terms or to give effect to its meaning, must survive, shall survive the expiration or termination of this Agreement.

10. Warranties. Each Party represents and warrants that this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with its terms. In addition, Enumerate represents and warrants to Customer that the Services, when used in accordance with this Agreement, shall operate substantially in accordance with the Documentation. Customer represents and warrants on behalf of itself and its Authorized Users that it: (i) has all necessary rights to provide and upload its data in connection with the Services without violating any duty of confidentiality, contractual obligation or applicable laws; and (ii) will not use, or permit the use of, the Services for illegal, fraudulent, or unethical purposes or otherwise in a manner that could give rise to civil or criminal liability. Customer shall not make any warranties about the Services to its Residents or Authorized Users. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 12, THE PARTIES DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, ENUMERATE MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET THE REQUIREMENTS OF CUSTOMER OR AUTHORIZED USERS OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE OR DATA NOT PROVIDED BY ENUMERATE, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL DEFECTS. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY ENUMERATE, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES.

11. Indemnification.

11.1 Enumerate Indemnification. Enumerate shall indemnify, defend and hold harmless Customer and its officers, directors, employees and agents from any and all damages, liabilities, and reasonable costs or expenses, including reasonable attorneys’ fees, arising from any third party claim against Customer (i) that the Services, as used in accordance with this Agreement, infringes upon any third party intellectual property rights; or (ii) arising out of or related to a breach of by Enumerate of Enumerate’s confidentiality obligations in this Agreement. Notwithstanding anything to the contrary contained herein, the indemnification and other obligations of Enumerate in this Section shall not apply with respect to any third party claim to the extent based on or arising out of (i) the content of the Customer Data, (ii) any use of the Services by Customer or its users in a manner that does not comply with the provisions of this Agreement, (iii) any negligence or willful misconduct by Customer or any of its users, or (iv) any combination of the Services with any software or hardware not provided by Enumerate for use in connection with the Services. If a claim is made against Customer that is subject to indemnification under this Section, Enumerate shall either: (a) obtain for Customer the right to continue to use the Services; or (b) modify or replace the Services with a non-infringing substitute that provides substantially the same the performance and functionality of the Services; provided, however, that if Enumerate reasonably determines that it is not commercially practicable to effectuate the actions described in the foregoing clauses (a) or (b), Enumerate shall have the right to terminate this Agreement, in which case it shall provide Customer with a refund of any prepaid sums with respect to the balance of the Term. This Section sets forth Customer’s sole remedy, and Enumerate’s sole liability, in connection with claims of infringement.

11.2 Customer Indemnification. Customer shall indemnify, defend and hold harmless Enumerate and its officers, directors, employees and agents from any and all lawsuits, damages, liabilities, costs, charges, and expenses, including reasonable attorneys’ fees, arising from any third party claims against Enumerate (i) alleging infringement, misappropriation, or other violation of a third party’s rights in or related to the Customer Data, documents or reports or the authorized use thereof, or any transaction relating thereto provided that there has not been any misuse or unauthorized access to such Customer Data by Enumerate, or (ii) arising out of or related to any breach by Customer or its Authorized Users’ of any of Customer’s covenants, representations, warranties or obligations hereunder; or (iii) the gross negligence or willful misconduct of Customer.


13. Confidentiality.

13.1 Non-Disclosure. Each party agrees to regard and preserve as confidential all non-public information related to the business and activities of the other Party or such Party’s Residents or vendors, which may be obtained by such party as a result of this Agreement (“Confidential Information”). Each party agrees to hold the Confidential Information of the other in trust and confidence and shall not disclose such information to any person or entity, or use, directly or indirectly, any such information for its own benefit or the benefit of any other party. Even where disclosure is permitted, each party agrees to limit access to and disclosure of the other party’s Confidential Information to its employees, representatives, Authorized Users and subcontractors on a “need to know” basis only. Notwithstanding the foregoing, either party may disclose the other party’s Confidential Information pursuant to applicable law or regulation or compulsion of proper judicial or other legal process; provided, however, if permitted by applicable law, the disclosing party shall provide prompt notice of the same prior to such required disclosure such that the other party may seek a protective order or other appropriate remedy to safeguard, restrict or limit the disclosure of such Confidential Information and shall limit any disclosure ultimately required to such Confidential Information as required to be disclosed.

13.2 Exclusions. Information shall not be considered “Confidential Information” hereunder to the extent, but only to the extent that, such information (a) is or becomes publicly available through no fault, default or breach of or by the receiving party; (b) is or was rightfully acquired by the receiving party from an independent third party without restriction or obligation of confidentiality and without breach of any agreement or obligation or (c) is or was independently developed by the receiving party without use of Confidential Information of the other party.

13.3 Relief. In the event of a breach or threatened breach of either party’s obligations in this Section 12, the other party may suffer immediate and irreparable harm for which money damages may be difficult to calculate or provide inadequate compensation. Accordingly, each party will be entitled to seek an injunction, restraining order or other equitable relief to enforce compliance with the provisions of this Section 12; provided, however, that no specification herein of any particular legal or equitable remedy shall be deemed or construed to prohibit either party from seeking or obtaining any other remedy under this Agreement.

14. Security. Enumerate will maintain reasonably protective administrative, physical, and technical safeguards for the security and integrity of the Services and will comply with its security standards, as may be updated by Enumerate from time to time. Enumerate will respond to security incidents (meaning a breach of data integrity or a security compromise) using commercially reasonable efforts on a 24/7 basis and will endeavor to notify Customer of such incidents within twenty-four (24) hours of confirming an incident involving Customer Data and will thereafter continue to inform Customer about incident response activities at reasonable intervals until such incident is resolved.

15. Relationship of Parties. Enumerate is an independent contractor and each party’s personnel are not employees or agents of the other party for federal, state, local or other tax purposes or any other purposes whatsoever. Personnel of one party have no authority to make representations, commitments, bind or enter into contracts on behalf of or otherwise obligate the other party in any manner whatsoever. Nothing in this Agreement will be construed or deemed to constitute, create, give effect to or otherwise recognize a joint venture, partnership, business entity of any kind, or constitute one party an agent of the other party.

16. Governing Law; Venue. This Agreement shall be governed in all respects by the laws of the State of Delaware without regard to its conflict of laws provisions. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof shall be governed by Delaware law and the Parties agree that any such judicial proceeding shall be commenced exclusively in state or federal district court located in Delaware. The Parties agree unconditionally that they are personally subject to the jurisdiction of such courts and irrevocably waive any objection they may now or hereafter have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum.

17. Compliance with Laws & Regulations. In the performance of obligations under this Agreement, each Party shall comply with all applicable statutes, or ordinances, rules and regulations of any and all federal, state and municipal regulatory authorities, including all applicable state privacy and consumer protection statutes, ordinances, rules and regulations. In addition, Customer shall comply with all applicable rules, guidelines and regulations of any industry regulatory bodies including, without limitation, the National Automated Clearing House Association.

18. Notices. All notices, demands or other communications hereunder shall be in writing and shall be deemed to have been duly given on the date sent if delivered in person, or by United States mail, certified or registered, postage prepaid, return receipt requested, or by e-mail with receipt confirmed or with a copy sent by mail, to the e-mail address and addresses for each Party on the Order Form and to the attention of each Party’s signatory to this Agreement. Each Party may update its notices information by providing notice pursuant to this Section.

19. Assignment. Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Enumerate. Enumerate will not unreasonably withheld consent in the event that (i) Customer requests assignment to a successor in interest of Customer (by operation of law or or acquisition of all or substantially all of the assets of Customer whether by way of merger, consolidation, sale of assets, or other corporate reorganization or combination); (ii) such party assumes Customer’s obligations hereunder; and (iii) both Customer and such successor party execute any such further agreements as required by Enumerate to effectuate transfers of accounts and Customer Data. Any attempted or purported assignment, transfer or delegation without required consent having first been obtained shall be null and void and a material breach of this Agreement. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

20. Miscellaneous. This Agreement contains the entire understanding of the parties and may be amended only by a writing signed by the parties. This Agreement shall supersede any prior agreements between the parties in regard to the same subject matter for services rendered after the Effective Date. Notwithstanding anything to the contrary, the parties expressly agree that the provisions of the Uniform Computer Information Transactions Act (UCITA), as may be enacted, amended, or modified by the various states, applicable as of the Effective Date or thereafter, shall not apply to this Agreement. If any of the provisions of this Agreement are declared to be invalid, such provisions shall be severed from the Agreement and the other provisions hereof shall remain in full force and effect. The section headings used in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement.

21. Force Majeure. Except for Customer’s payment obligations hereunder, neither Enumerate nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, pandemics, fires, acts of God, war, terrorism, and governmental action.

22. Counterparts/Electronic copies. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall be deemed an original, and such counterparts together shall constitute one and the same instrument. For purposes hereof, a facsimile or scanned and e-mailed copy of this Agreement, including the signature pages hereto, shall be deemed to be an original.