Terms of Service

SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (“Agreement”) is entered into between (“Customer”) and PERQ Multifamily Software, LLC (“Provider” or “PERQ”) an Indiana Limited Liability Company, with its principal place of business located in Indiana.

PERQ and Customer agree that the following terms and conditions will apply to the services provided under this Agreement and Schedules placed thereunder. By agreeing to this Agreement, Customer is also agreeing to the Providers Terms of Service.

WHEREAS, PERQ provides access to its software-as-a-service (SaaS) offerings to its customers.

WHEREAS, Customer desires to access certain SaaS offerings described herein, and PERQ desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. DEFINITIONS

1.1 “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

1.2 “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

1.3 “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by PERQ in an

aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

1.4 “Agreement” has the meaning set forth in the preamble and includes any Schedules, Order Forms, Exhibits, Amendments, or attachments thereto. 

1.5 “Authorized Users” means Customer’s employees and others who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and for whom access to the Services has been purchased hereunder

1.6 “Customer Default Date” is fifteen (15) days from the Effective Date or as otherwise described in Schedule A.

1.7 “Default Fee” means the Fee the Customer owes to PERQ if the Implementation Materials are not delivered to the Provide by the Customer Default Date, the Default Fee is equivalent to three (3) times the total of the Monthly Service Fee defined herein or in Schedule A

1.8 “Go Live Date” is the date in which applicable Services have been made available to the Customer via the Customer Website and/or Access Credentials have been provided to the Customer

1.9 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the Customer or any Authorized User from accessing or using the Services or PERQ Systems as intended by this Agreement.

1.10 “Implementation Fee” means the initial mandatory non-refundable fee paid by Customer for product configuration as defined in the Schedule and Exhibit A: Statement of Work. 

1.11 “Implementation Materials” means required materials and information provided by the Customer to PERQ, described in this agreement, Exhibit A: Statement of Work and/or Schedule A, to configure the Software as a Service experiences and Go Live.

1.12 “Implementation Period” means the time frame between the Effective Date and the date that the Services Go Live.

1.13 “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

1.14 “Minimum Commitment Period” means the period specified in the Order form of which the Customer agrees to remain in Term. The Minimum Commitment Period begins on the Go Live Date and continues for ninety (90) days. The Customer will be invoiced for the Minimum Commitment Period, in accordance with the Terms set forth in the Order form.

1.15 “Opt Out” means the Customer’s ability to exit/terminate the agreement within designated Terms indicated on the Order form. In order to exercise an Opt Out option, the Customer must provide written Notice of Termination of the agreement to PERQ. The Customer shall have the option to Opt-Out by providing written notice to PERQ within the initial ninety (90) days from the Go Live Date. In the event the Customer elects to Opt-Out, the Customer’s access to the Service will terminate and no additional monthly fees will be billed beyond the 90th day.

1.16 “PERQ Disabling Service” means any software, hardware, or other technology, device or means used by PERQ or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of PERQ or its designee.

1.17 “PERQ Materials” means the Services, Specifications, Documentation, and PERQ Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by PERQ in connection with the Services or otherwise comprise or relate to the Services or PERQ Systems. For the avoidance of doubt, PERQ Materials include Resultant Data and any information, data, or other content derived from PERQ’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.

1.18 “PERQ Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of PERQ.

1.19 “PERQ Systems” means the information technology infrastructure used by or on behalf of PERQ in performing the Services, including all computers, software, hardware, databases, electronic systems, and networks, whether operated directly by PERQ or through the use of third-party services.

1.20 “Personal Information” means information that Customer provides or for which Customer provides access to PERQ, or information which PERQ creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual. Customer’s business contact information is not by itself Personal Information.

1.21 “Pilot Period” means the period specified in the Schedule A during which the Customer will have access and use of the Software through PERQ’s SaaS Services in order to trial or pilot the Service.

1.22 “Resultant Data” means data and information related to Customer’s use of the Services that is used by PERQ in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

1.23 “Schedule” means a written document attached to this SaaS Agreement mutually executed by the parties for the purpose of amending or purchasing SaaS Services under the terms and conditions of this Agreement. It is a material and substantive part of this Agreement

1.24 “Services” means the software-as-a-service offering described in Schedule A or any of the attached Schedules.

1.25 “Services Period” means the period specified in a Schedule during which Customer will have access and use of the Software through PERQ’s Saas Services under the terms and conditions of this Agreement. The Service Period begins on the Go Live Date and continues for fifteen (15) months unless otherwise defined in the Schedule.

1.26 “Third Party Invoicing” means the use of any third party platform, website or tool to provide invoices or collect payment for Services under this Agreement between the Customer and the Provider.

1.27 “Third Party Invoicing Fee” means the fee the Provider may charge to the Customer for use of Third Party Invoicing.

1.28 “Third-Party Materials” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to PERQ.

1.29 “Third Party System” means the third party platform, website or tool used during Third Party Invoicing.

1.30 “Website/URL” means the unique combination of the physical address and the URL/website(s) set forth in the schedule.

2. SERVICES

2.1 Subject to and conditioned on Customer’s and its Authorized User’s compliance with the terms and conditions of this Agreement, PERQ hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. PERQ shall provide to Customer the Access Credentials within a reasonable time following the Effective Date or pursuant to the terms contained herein.

2.2 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to any Intellectual Property Rights in or relating to, the Services, PERQ Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the PERQ Materials, and the Third-Party Materials are and will remain with PERQ and the respective rights holders in the Third-Party Materials.

2.3 Changes. PERQ reserves the right, in its sole discretion, to make any changes to the Services and PERQ Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of PERQ’s services to its customers; (ii) the competitive strength of or market for PERQ’s services; or (iii) the Service’s cost efficiency or performance; or (b) to comply with applicable law. Without limiting the foregoing, either party may, at any during the Term, request in writing changes to the Services. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.

2.4 Suspension or Termination of Services. PERQ may, directly or indirectly, and by use of a PERQ Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or PERQ Materials, without incurring any resulting obligation or liability, if: (a) PERQ receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires PERQ to do so; or (b) PERQ believes, in its reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of rights granted or for a purpose not authorized under this Agreement or any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is involved in any fraudulent or unlawful activities; or (iii) this Agreement expires or is terminated. This paragraph does not limit any of PERQ’s other rights or remedies, whether at law, in equity, or under this Agreement.

3. USE RESTRICTIONS; SERVICE USAGE AND DATA STORAGE.

3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or PERQ Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, any applicable third-party license agreements. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits: copy, modify, or create derivative works or improvements of the Services or PERQ Materials; rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or PERQ Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service; reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or PERQ Materials, in whole or in part; bypass or breach any security device or protection used by the Services or PERQ Materials or access or use the Services or PERQ Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; input, upload, transmit, or otherwise provide to or through the Services or PERQ Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, PERQ Systems, or PERQ’s provision of services to any third party, in whole or in part;   access or use the Services or PERQ Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates

any Intellectual Property Right or other right of any third party, or that violates any applicable Law; access or use of the Services or PERQ Materials for purposes of competitive analysis of the Services or PERQ Materials, the development, provision, or use of a competing software service or product or any other purpose that is to PERQ’s detriment or commercial disadvantage.

4. CUSTOMER OBLIGATIONS.

4.1 General. Customer agrees to give consent to PERQ to use its name, logos and product performance for case study and testimonial purposes. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause Authorized Users to comply with such provisions.

4.2 Customer is required to provide sales related data for ROI analysis, this includes rent rolls for lease match back, sales data and website conversion benchmarks. Providing this data to PERQ is required to exercise an Opt Out of this agreement.

4.3 Implementation Responsibilities.

(A)PERQ will provide Implementation support defined in Exhibit A: Statement of Work. 

(B) Customer will provide all necessary Implementation Materials defined in Exhibit A: Statement of Work. If the necessary Implementation Materials are not provided to PERQ prior to the Customer Default Date, the Customer will be invoiced the Default Fee. The Customer  will notify PERQ, at least thirty days in advance, in the event the Website Provider is changing or any changes to the website will be implemented that could impact the PERQ solution.

4.4 Third-Party Products and Integrations. PERQ may from time to time make Third-Party Products and/or integrations available to Customer. For purposes of this Agreement, such Third-Party Products and/or Integrations are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products or Integrations, then Customer should not install or use such Third-Party Products or Integrations.

5. DATA BACKUP

5.1 The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PERQ has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of customer data.

6. FEES AND PAYMENT.

(A) Fees. Customer shall pay PERQ the fees (“Fees”) as set forth in Schedule A without offset or deduction. Customer shall make all payments hereunder in US dollars upon receipt of invoice(s). If Customer fails to make any payment when due, without limiting PERQ’s other rights and remedies: (i) PERQ may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse PERQ for all reasonable costs incurred by PERQ in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees;   and (iii) if such failure continues for 5 days or more, PERQ may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

(B) No Deductions or Setoffs. All amounts payable to PERQ under this Agreement shall be paid by Customer to PERQ in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.

(C) Renewal Increase. Upon renewal, PERQ will apply a standard increase fee of 5% to all services being provided to Customer.

(D) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. In certain states and locales, PERQ is required to collect and remit sales taxes to the appropriate tax and legal authorities and Customer agrees to pay this tax when requested and owed. Notwithstanding this, 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 or due by Customer hereunder, other than any taxes imposed on PERQ’s income.

(E) Payment. All invoices and payments are immediately due upon receipt or as set forth in Schedule A. The Implementation Fee is due upon Effective Date. The Default Fee is immediately due upon notice if the Customer does not provide the Implementation Materials by the Default Date to allow for the Services to be provided. Monthly Service Fee Invoices are issued fifteen days prior to the first of the following month. Monthly Service Fee invoices begin upon Go Live Date. Initial Monthly Service Fee invoice will be prorated for Service provided on Go Live Date through the last day of the current month. All Monthly Service Fee invoices thereafter will include Fees for Service provided from the 1st of the month through the last day of the month. If Customer Prepays for the Service Period and the agreement is Terminated, as set forth in the agreement, prior to the conclusion of the prepaid Service Period, PERQ will issue a refund.

(F) Third Party Invoicing. If the Customer desires to use Third Party Invoicing, PERQ may charge the Customer a Third Party Invoicing Fee of 1.5% of the Monthly Fee to offset expenses the Provider incurs, such as but not limited to setup as a Vendor, compliance and renewal within the Third Party System, issuing invoices, etc. The Customer must notify PERQ at AR@perq.com with instructions for Vendor compliance, set up for the Third Party System, adding or removing Properties and Purchase Order process(es) if applicable. If an additional legal document, such as a vendor agreement or addendum, must be completed by PERQ to invoice the Customer through a Third Party System, this Agreement shall supersede any and all other documents. In the case of Third Party Invoicing, the Customer remains solely responsible for the Fees and Payment of this Agreement.  

7. Mutual Non-Disclosure of Confidential Information. From time to time during the Term, either Party may disclose or make available  to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

8. Intellectual Property Ownership. (a) PERQ IP. Customer acknowledges that, as between Customer and PERQ, PERQ owns all right, title, and interest, including all intellectual property rights, in and to the Services and PERQ Materials; (b) Customer Data. Customer acknowledges that, as between PERQ and Customer, PERQ owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. PERQ hereby grants to Customer a non-exclusive, royalty-free, worldwide license to reproduce, distribute,   and otherwise use and display the PERQ Data and perform all acts with respect to the Customer Data as may be necessary for Customer to provide the Services to its customers, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data in any manner consistent with the terms of this Agreement or to continually enhance the Services provided by PERQ.

9. Warranty Disclaimer. THE SERVICES AND PERQ MATERIALS ARE PROVIDED “AS IS” AND PERQ HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PERQ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PERQ MAKES NO WARRANTY OF ANY KIND THAT THE PERQ IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

10. Indemnification. Each Party (the “Indemnifying Party”) agrees to defend the other Party, its affiliates and each of their respective officers, directors, employees, contractors and agents (each an “Indemnified Party”) from and against any action, claim, suit, investigation or other proceeding brought by a third party (a “Claim”) to the extent such Claim results from the Indemnifying Party’s breach of this Agreement or the negligence, willful misconduct or fraud or violation of law on the part of the Indemnifying Party, its officers, directors, employees, agents or other representatives in connection with this Agreement. The Indemnifying Party will

indemnify and hold harmless the Indemnified Party from any liabilities, losses, damages, judgments, awards, fines, penalties, costs and expenses (including reasonable attorneys’ fees and costs of defense) incurred by or levied against such Indemnified Party as a result  of such Claim. If the Indemnified Party seeks indemnification under this section with respect to a Claim, the Indemnifying Party’s obligations are conditioned upon the Indemnified Party: (a) providing written notice to the Indemnifying Party of any Claim within thirty

(30) days after the Indemnified Party has knowledge of such Claim (except that failure to timely provide such notice will relieve the Indemnifying Party of its obligations only to the extent the Indemnifying Party is materially prejudiced as a direct result of such delay);

(b) giving the Indemnifying Party sole control over the defense thereof and any related settlement negotiations; and (c) cooperating  and, at the Indemnifying Party’s request and expense, assisting in such defense. Notwithstanding the foregoing, the Indemnified Party may participate at its own expense in the defense and any settlement discussions, and will have the right to approve any settlement agreement that involves an admission of fault by the Indemnified Party or imposes non-monetary obligations on the Indemnified Party; provided, however, that such approval will not be unreasonably withheld.

11. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a)it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b)it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; (c)the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d)when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

11.1 Additional PERQ Representations, Warranties, and Covenants. PERQ represents, warrants, and covenants to Customer that PERQ will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike  manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

11.2 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to PERQ that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by PERQ and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

12. TERM AND TERMINATION

12.1 Term. This Agreement begins upon Customer’s signature (“Effective Date”). PERQ begins providing its Services (as defined herein) upon the Go Live date and throughout the Service Period unless otherwise stated in Schedule A. Upon expiration of the initial or a renewal Service Period, this Agreement’s Service Period will automatically renew for successive twelve (12) month periods, or as otherwise set forth in the Schedule A. The Customer shall have the right to terminate the Agreement effective on the final day of the current Service Period (“Renewal Date”) by providing PERQ with thirty (30) days advance written notice prior to the Renewal Date.

12.2 Termination. In addition to any other express termination right set forth in this Agreement: (i)PERQ may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder; or (B)] breaches this Agreement in any other manner. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;

(C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

12.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the PERQ IP and, without limiting Customer’s obligations under this Agreement, Customer shall delete, destroy, or return all copies of the PERQ IP and certify in writing to PERQ that the PERQ IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay any and all Fees as set forth for the entire Term in accordance with this Agreement or entitle Customer to any refund.

12.4 Survival. This Section and Sections 1, 5, 6, 7, 8, 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

13. LIABILITY LIMITATION. IN NO EVENT WILL PERQ BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SOFTWARE, THE CONTENT OR ANY PERFORMANCE OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SOFTWARE; FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SOFTWARE; OR ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION IN THE SOFTWARE OR CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED UPON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY,   EVEN IF CUSTOMER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. PERQ’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF LEGAL THEORY OF ANY CLAIM, SHALL NOT EXCEED THE TOTAL FEES RECEIVED BY OR PAYABLE TO PERQ FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. CUSTOMER SHOULD NOT RELY SOLELY ON THE INFORMATION PROVIDED THROUGH THE SOFTWARE OR ALLOW IT TO REPLACE CUSTOMER’S DUTY TO ADHERE TO THE REQUIRED STANDARDS OF ITS INDUSTRY.

14. GENERAL PROVISIONS

(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding  its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that  may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by

personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this  Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further

exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Indiana without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Indiana. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States Southern District of Indiana or the courts of the State of Indiana in each case located in the city of Indianapolis and Marion County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment. (A) Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of PERQ. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. (B) PERQ may assign this Agreement in whole or in part without the prior written consent of the Customer to an affiliate or in connection with a merger, sale of all or substantially all of such party’s business or other change of control. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(k)Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

(L) Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 9 or, in the case of Customer, Section 3.1, Section 4.3, or Section 7.3, would cause [PERQ/the other party] irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, [PERQ/the other party] will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(M) Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

15. Written Modifications

This Agreement may not be changed or modified except through a written and properly executed instrument entered into by duly authorized representatives of the parties. Any new or subsequent Schedules shall immediately become effective and made part of this Agreement and subject to the terms herein upon full execution by authorized representatives of the Parties. For purposes of this Agreement, an email exchanged between authorized representatives of the Parties that includes the following or includes something substantially similar to the following shall be deemed an acceptable new or subsequent Schedule and/or a written and properly executed instrument in writing entered into by duly authorized representatives of the parties for the purposes of this Agreement:

EXHIBIT A Sample Email Between Authorized Representatives of the Parties:

Subject: Statement of Work or Schedule Number to that certain Software as a Service Agreement dated as of , 20

Body of email (should typically include):

Identification of Property/Location where Services are to be performed (Community Name, Address and Website)

Saas Services Timeline/Schedule including Service Period, Minimum Commitment and Opt Out period if applicable and Expenses to include Monthly Fees and any Implementation Fees.

Exhibit A: Statement of Work 

1.  Project Objectives, Scope and Milestones 

Project Objectives:  

PERQ’s professional services team will assist CUSTOMER by implementing the PERQ Service over a four (4) weeklong project. This proposal assumes that the work would happen based on the CUSTOMER responding within the timeframes outlined in this document. 

Project Overview 

PERQ’s consulting team will assist CUSTOMER in implementing the PERQ platform: 

• Configuration of consumer facing interactive experiences 
• Generation of code to implement PERQ Technology on Customer’s Website 
• Provide support to the Customer’s Website provider throughout implementation.  

Customer will provide all necessary Implementation Materials which include but are not limited to:  

• a live and compatible Website/URL address 
• Customer’s contact name and email 
• Customer’s Website Provider contact name and email 
• CRM or Internal Lead Address or email 
• Customer Onboarding forms for consumer facing interactive experiences configuration  

• List of lead sources for proper data attribution 
• List of external lead services for PERQ’s software to integrate 
• Google Analytics edit access  
• Current W 9  

The Customer will provide accurate Website Provider information, authorize the implementation and use of PERQ Technology and place the PERQ code as instructed with the Customer’s Website Provider.  

If the necessary Implementation Materials are not provided to PERQ prior to the Customer Default Date, the Customer will be invoiced the Default Fee.  

The Customer will notify PERQ, at least thirty days in advance, in the event the Website Provider is changing or any changes to the website will be implemented that could impact the PERQ solution.  

Project Approach  

PERQ will leverage its proven project methodology in executing this work. At a high-level this approach will consist of the following steps: 

Plan & Customer Data Collection Phase 

• Leverage PERQ’s Plan & Customer Data Collection methodology to craft an overall plan for implementing the PERQ Service and identifying the information that will be collected.  This phase of work would encompass: 

• Developing a detailed project plan to govern timing and duration of the overall project, and defining key points of client engagement, including onsite meetings/working sessions and other milestones. 
• Developing functional requirements and a preliminary user acceptance/testing plan that will be refined over the course of the project and used for system testing, user acceptance testing and project sign-off. 
• NOTE: If, in the course of the Define and Design phase of work it is discovered that scope is substantially different than the scope agreed to in the Statement of Work, PERQ and CUSTOMER will work to execute Change Orders as appropriate. However, the scope outlined in this proposal is typical for engagements such as the one anticipated to be agreed to with CUSTOMER.  

Sprint 1: Core PERQ Service Implementation 

• Implementing the PERQ Service using a phased/sprint-based implementation methodology. The implementation will consist of the following sprints, each of which is concluded with a user acceptance. 
• Step 1: Onboarding information collection and role assignments 

• Kickoff call will align key stakeholders on timelines, proposal details, and finalizing success metrics. 
• Onboarding call to go over information needs including product configuration (including but not limited to button placement and general CUSTOMER website layout changes), PMS/CRM integrations, javascript placement, Google Analytics access, lead sourcing and external lead source integration.   
• Templates for product, PMS and CRM configuration will be provided from PERQ. 

• Introduction to key stakeholders for PMS/CRM integrations, lead and onboarding information may be necessary from the Customer for PERQ to continue. 
• Collection of all product/sourcing information, javascript placement and integration configurations from the Customer to PERQ will complete this step. 
• Step 2: Product configuration and integration 

• While inactive, PERQ will configure the product on the website with proper placement and information provided in step 1.  If any discrepancies should arise with the information provided or an external integration during the build, PERQ will work with the client to settle and correct any matters before pushing the product live. 
• A test URL for customer approval can be provided as needed but is not necessary to proceed. 
• The Sprint will conclude with a detailed, remote training session for CUSTOMER showing all key features and capabilities of the platform. This session will be up to one hour in duration.   

Deliverables: 

• Implementation project planning 
• Onboarding collection, configuration and integration configurations 

• Go-Live with test lead confirmation and training session for onsite teams 
• Test leads and confirmation 
• Communication with lead sources PERQ will be integrating the software 

Project Timeline: 

This project will run for a four (4)  week period of time, starting with a one-hour remote introductory call and with the remainder of the project being executed remotely via e-mail updates and ad hoc calls, as necessary. Any additional configuration will go beyond four weeks and are estimates only. 

Project Deliverables: 

Post Project Support Resources:  

 The following BASIC resources will be configured during onboarding and are available to the CUSTOMER after the Go Live has occurred. 

Roles & Responsibilities  

The following roles are expected to be represented on the engagement. Note: multiple roles may be filled by a single resource, subject to the requirements of the project and final project scope/timeline.  

PERQ Responsibilities 

CUSTOMER Responsibilities 

2.  Schedule Start 

Within fifteen (15) days of the Agreement Effective Date, PERQ will designate to Customer in writing the scheduled start date for the Services. Until PERQ provides the Customer with such written notice, any projections regarding the Services start and completion dates are estimates only and subject to change. 

Once PERQ has provided Customer the scheduled Services delivery and timeframe, if the start date is postponed as an accommodation or otherwise due to Customer’s requirements, Customer shall be responsible for all charges that PERQ incurs as a result of changing or canceling reservations (e.g., transportation, accommodations, etc.) and all due dates for PERQ deliverables shall be extended to the extent that PERQ experiences any delays in connection with such postponement. 

3.  System and Platform Requirements 

The following computing platforms must be available during the project to successfully install and configure the Deliverables: 

Customer’s CRM Platform: 

Customer’s PMS: 

4.  Assistance by Customer 

Customer acknowledges that its timely provision of the specific resources set forth in this SOW, as well as sufficient office accommodations, facilities, Internet and local network connectivity and other reasonably necessary information and assistance are essential to PERQ’s performance of any Services.  PERQ shall not be liable for any deficiency or delay in performing Services if such deficiency or delay is a result of Customer’s failure to provide full cooperation.