The Subscription Agreement consists of these Terms and Conditions, and one or more Order Forms (collectively, the “Agreement”). This Agreement is entered into as of the Effective Date (as set forth in the Order Form) by and between Proforma Technologies, Inc. d/b/a Logica (“Logica”) and the client identified in such Order Form (“Client”). Logica and Client agree that these Terms and Conditions shall apply to each Order Form executed by Logica and Client. Any capitalized terms not defined herein will have the meaning set forth in the applicable Order Form.

BY EXECUTING AN ORDER FORM, SUBMITTING A PURCHASE ORDER OR SIMILAR ORDERING DOCUMENT TO LOGICA, OR CLICKING “I ACCEPT”, “I AGREE”, “SIGN UP”, “SUBMIT”, OR SIMILAR ORDERING LANGUAGE, CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THE AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THE AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CLIENT” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THE AGREEMENT, YOU MUST NOT EXECUTE THE ORDER FORM OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THE ORDER FORM AND MAY NOT USE THE SERVICES.

1.     DEFINITIONS. In addition to the terms defined elsewhere in the Agreement, the terms set forth in this Section 1 shall have the following meanings:

1.1.   “Affiliates” shall mean any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2.   “Authorized Users” shall mean Client’s employees, consultants, contractors, and agents authorized by Client and Logica to access and use the Software Platform, who have been requisitioned access by Logica. Authorized Users shall not include: (i) Client’s suppliers; (ii) employees, consultants, contractors or suppliers of any of Client’s Affiliates or other entities; or (iii) any parties who are neither affiliated with Client nor using the Software Platform on Client’s behalf.

1.3.   “Client Data” shall mean all Client Confidential Information (as defined below in Section 7.1) and other data generated, uploaded or transmitted by Authorized Users using the Software Platform.

1.4.   “Order Form” shall mean the ordering documents that represent the initial purchase of the Subscription to the Software Platform, and any subsequent ordering documents that from time to time are executed hereunder by Client and Logica and which expressly refer to the Agreement. All Order Forms shall be deemed incorporated into the Agreement.

1.5.   “Services” shall mean the Software Platform and any other products or services provided by Logica to Client pursuant to a Purchase Order.

1.6.   “Software Platform” shall mean an on-demand, web-based version of Logica’s platform for budgeting, forecasting, and financial planning. Logica will host and operate the Software Platform on computer servers accessible by Client over the Internet.

1.7.   “Subscription” shall mean the right of Authorized Users to access the Software Platform during the Subscription Term and any Trial Term, as set forth in an Order Form signed by Logica and Client.

2.     CHANGES; COOPERATION.

2.1.   Changes. Logica may from time to time develop enhancements, upgrades, updates, improvements, modifications, extensions and other changes to the Software Platform (“Changes”). Client hereby authorizes Logica to implement such Changes.

2.2.   Updates. Logica shall provide new feature functionality, enhancements, and other changes, which are logical improvements to a Software Platform and which Logica makes generally available on a commercial basis, without charge, to other clients of the Software Platform (“Updates”). Updates do not include any new software products that are then made generally available on a commercial basis as separate, price-listed options or additions to a Software Platform nor do they include any professional services that may be required for implementation.

2.3.   Cooperation. Client acknowledges that the successful and timely providing of the Services shall require the good faith cooperation of Client. Logica shall not be liable for any failure to provide the Services that arises from Client’s failure to cooperate in good faith with Logica.

2.4.   Terms. Logica shall provide the Services to Client pursuant to these Terms and Conditions and any specific limitations set forth in Order Forms, as executed hereunder from time to time. At Client’s request, Logica may provide technical, operational or other assistance or consulting at Logica’s standard hourly rate then in effect or as otherwise set forth in an Order Form.

3.     USE OF THE SOFTWARE PLATFORM.

3.1.   Proprietary Rights. This is a subscription agreement for use of the Software Platform. The Agreement is not a sale, or assignment and transfer, of any software. Client agrees that Logica, its licensors or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to the Software Platform and any and all related and underlying software (including interfaces created by Logica), databases, technology, reports and documentation, and any adaptation, modification, derivation, addition or extension to the Software Platform. Except for the Subscription granted hereunder, nothing in the Agreement gives the Client any right, title or interest in or to the Software Platform or any related documentation.

3.2.   Access to Software Platform. During the Subscription Term and any Trial Term, Client shall have a nontransferable, non-exclusive right to allow Authorized Users to access and use the Software Platform for its internal business purposes.

3.3.   Trial Use. If an Order Form indicates that Client will receive access to the Software Platform on a beta, trial, or evaluation basis (“Trial Access”), then Client may use the Software Platform solely for the designated time period, and subject to any additional usage restrictions specified on the applicable Order Form. Client acknowledges that Trial Access may be automatically disabled upon expiration of the designated period (at the end of which Client’s right to use the Software Platform under the applicable Order Form also expires), and that any data stored on the Software Platform may become unavailable at that time.

3.4.   Use Guidelines.

3.5.   The Software Platform is provided to Client for use only as expressly set forth in the Agreement, and Client will not use the Software Platform in whole or in part for any other use or purpose. In particular, Client will not, and will not allow any third party to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software Platform by any means, or disclose any of the foregoing; (ii), rent, lease, lend, or use the Software Platform for timesharing, subscription, or service bureau purposes; (iii) sublicense, transfer or assign the Software Platform or any of the rights or licenses granted under the Agreement; (iv) remove or obscure any trademark, product identification, proprietary marking, copyright or other notices provided with the Software Platform or related documentation; or (v) authorize any users who are not directly using the Software Platform on Client’s behalf or affiliated with Client.

3.6.   Client shall not: (i) use the Software Platform for storage, possession, or transmission of any information, the possession, creation or transmission of which violates any state, local or federal law; (ii) transmit Client Data using the Software Platform that infringes upon or misappropriates the intellectual property or privacy rights of any third party; (iii) perform any load testing of the Software Platform or attempt to probe, scan or test the vulnerability of the Software Platform without proper authorization; or (iv) log into a server or account that Client is not authorized to access.

3.7.   Client Responsibilities. Client is responsible for all activity occurring under Authorized User accounts and for each Authorized User’s compliance with all terms and conditions of the Agreement. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Data generated, uploaded and transmitted by Client and Authorized Users. Client shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software Platform and notify Logica immediately of any unauthorized use of any password or account or any other known or suspected breach of security.

3.8.   Authorized Users.

3.9.   The Services are granted solely to the party(ies) (including any Affiliates) stated in the Order Form and their Authorized Users and shall not be shared with any third parties other than Authorized Users.

3.10. Client acknowledges that the price of the Services purchased hereunder is based on Client’s access requirements as provided to Logica as of the Effective Date of the Agreement. In the event Client wishes to subsequently expand access to additional users or Affiliates, Client may purchase additional Services, including Subscriptions to the Software Platform, by executing separate Order Forms hereunder.

3.11. Client Data. Client hereby grants to Logica a worldwide, non-exclusive, fully paid-up license to use the Client Data (i) in any manner reasonably necessary to provide the Software Platform and related services and (ii) to improve the Software Platform and Logica’s other products and services. Client represents and warrants that Client owns all right, title and interest in and to the Client Data or has a license granting it the rights necessary to permit it to grant the foregoing license. Logica may use the Client Data in an aggregated format with data provided by other third parties for various business purposes, provided that it is not possible to identify Client, or any individual Client transaction from the data.

3.12. Feedback. Logica may periodically request that Client provide, and Client agrees to provide to Logica, feedback regarding the use, operation and functionality of the Services (“Feedback”). Such Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features. Logica is hereby granted a non-exclusive, world-wide, perpetual, irrevocable, royalty-free, fully paid-up, fully sublicensable and transferable right and license to use and incorporate Feedback into any products and services, to make, use, sell, offer for sale, import, and otherwise exploit such products and services, and to otherwise use, copy, distribute, and otherwise exploit the Feedback without restriction.

4.     FEES; PAYMENT.

4.1.   Fees; Payment. Client agrees to pay Logica all of the fees agreed to in the Order Form(s). Fees for the Services will be invoiced in advance in accordance with the terms of the Order Form. Unless otherwise stated in the Order Form, all payments shall be made in United States dollars no later than thirty (30) days after the date of invoice, payable in full, without reduction for any offset, withholding or other claims (except with respect to charges then under reasonable and good faith dispute as evidenced in a writing promptly sent by Client to Logica prior to the payment due date). All payments not received when due shall accrue interest at a rate per month of one and one-half percent (1.5%). Payment obligations are non-cancellable and all fees are non-refundable. Client shall remit payment via electronic funds transfer to the account designated in the Order Form.

4.2.   Taxes. The fees payable under the Agreement shall not include local, state, federal or foreign sales, use, value-added, excise or personal property or other similar taxes or duties now in force or enacted in the future imposed on the transaction, all of which Client shall be responsible for and pay in full except those taxes based on the net income of Logica. If Client is exempt from the payment of any such taxes, upon execution of the Agreement, Client shall provide Logica with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3.   Suspension of Service. If any Client account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in the Agreement), Logica reserves the right, upon ten (10) days prior written notice to Client, to suspend Services without liability to Logica until such account is paid in full.

5.     TERM AND TERMINATION.

5.1.   Term of the Agreement. The Agreement commences on the Effective Date and continues until the Subscription to the Software Platform granted in accordance with the Agreement has expired or the Agreement is terminated earlier, pursuant to the Terms and Conditions set forth herein.

5.2.   Term of Subscription. The Subscription term (the “Subscription Term”) and any limited beta, trial, or evaluation term (“Trial Term”) to the Software Platform shall be as set forth in the Order Form. Unless otherwise set forth in an Order Form, upon the expiration of the Subscription Term, the Subscription Term to the Software Platform shall automatically renew for additional one (1) year periods, unless either party notifies the other of its intent not to renew at least sixty (60) days prior to the end of the Subscription Term.

5.3.   Termination. Either party may terminate the Agreement by written notice if the other party commits a material breach and fails to cure such breach within thirty (30) days following receipt of written notice of such breach. Logica may terminate this Agreement on seven (7) days’ notice.

5.4.   Effect of Termination. Upon any termination or expiration of the Agreement (i) Logica will terminate Client’s access to the Services; (ii) Client shall immediately cease any and all use of and access to any Services; and (iii) each party hereunder shall return to the other party any and all Confidential Information of the other party in its possession. Termination shall not relieve Client of the obligation to pay Logica the fees agreed in the Order Form.

6.     DISCLAIMER OF WARRANTIES. LOGICA MAKES NO WARRANTIES REGARDING THE SERVICES. LOGICA SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. LOGICA DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE SERVICES WILL BE CORRECTED, OR THAT THE SERVICES WILL MEET CLIENT’S PARTICULAR REQUIREMENTS OR EXPECTATIONS. LOGICA DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. LOGICA SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE FAILURES AND ANY OTHER PROBLEMS ARISING FROM CLIENT’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN LOGICA AND CLIENT. LOGICA’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITED WARRANTIES SPECIFIED HEREIN.

7.     CONFIDENTIAL INFORMATION.

7.1.   Obligations. During the term of the Agreement and for a period of three (3) years after the date of termination or expiration of the Agreement, each party: (i) shall treat as confidential all Confidential Information (as defined below) provided by the other party; (ii) shall not use such Confidential Information except as expressly permitted under the terms of the Agreement or otherwise previously authorized in writing by the disclosing party; (iii) shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, reverse engineering, disassembly, decompiling, misuse or removal of such Confidential Information; and (iv) shall not disclose such Confidential Information to any third party. Without limiting the foregoing, each party shall use at least the same degree of care to prevent the disclosure of the other party’s Confidential Information as it uses to prevent the disclosure of its own Confidential Information, and shall in any event use no less than a reasonable degree of care. “Confidential Information” shall mean all confidential information of a party, whether written or oral, and whether in paper or electronic format, disclosed to a receiving party that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential information related to either party’s customer lists, customer information, products, technical information, pricing information, pricing methodologies, or information regarding the disclosing party’s business planning or business operations shall be deemed Confidential Information without any marking or further designation.

7.2.   Exceptions. Notwithstanding the above, the receiving party’s nondisclosure obligations shall not apply to information that: (i) was generally available to the public at the time it was disclosed, or becomes generally available to the public through no fault of the receiving party; (ii) was known to the receiving party at the time of disclosure as shown by written records in existence at the time of disclosure; (iii) was developed independently by the receiving party prior to the disclosure, as shown by written records in existence prior to the disclosure; (iv) is disclosed with the prior written approval of the disclosing party; (v) becomes known to the receiving party from a source other than the disclosing party without breach of the Agreement by the receiving party and in a manner which is otherwise not in violation of the disclosing party’s rights; or (vi) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party shall provide reasonable advance notice to enable the disclosing party to seek a protective order, and that such information remains Confidential Information for all other purposes.

8.     LIMITATIONS OF LIABILITY. NEITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITY (INCLUDING REASONABLE ATTORNEYS’ FEES) THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT OR ANY OF THE SERVICES, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. THE AGGREGATE LIABILITY OF LOGICA RELATED TO OR ARISING OUT OF THE AGREEMENT OR ANY OF THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS RECEIVED BY LOGICA FROM CLIENT IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES. THE LIMITATIONS OF LIABILITY UNDER THIS SECTION SHALL NOT APPLY TO ANY OBLIGATIONS AND LIABILITIES ARISING FROM VIOLATIONS BY EITHER PARTY HEREUNDER OF SECTIONS 3 OR 7 OF THE AGREEMENT.

9.     GENERAL PROVISIONS.

9.1.   Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without application of Delaware conflicts of laws principles and without application of the United Nations Convention on the International Sale of Goods, and both parties consent to the exclusive jurisdiction and venue of the state and federal courts located in Nebraska.

9.2.   Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, it shall be deemed omitted and the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

9.3.   Waiver. The waiver by either party of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

9.4.   Assignment. The Agreement shall be binding upon the parties’ respective successors and permitted assigns. Neither party shall assign the Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the above, Logica may assign or transfer the Agreement upon a change of control or pursuant to a sale of all or substantially all the stock or assets of the assigning party related to this Agreement.

9.5.   Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship or partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

9.6.   Publicity. Logica may use the name, brand, or logo of Client for the purpose of identifying Client as a licensee or Client of Logica in a ‘Client’ section of Logica’s website, brochures, or other promotional materials, or as part of a list of Logica’s Clients in a press release or other public relations materials and may include any testimonials provided by Client. Any such limited use by Logica shall include proper attribution to Client or its parent Logica of any trademark or logo of Client or its parent Logica, and shall in no way suggest that Logica is affiliated with, or speaking on behalf of, Client or Client’s parent Logica. Any other press releases or marketing materials referring to the trademarks or logos of Client shall require mutual approval in writing prior to public dissemination thereof.

9.7.   Notices. Unless otherwise stated in the Agreement, any notices required to be given under the terms of the Agreement, shall be in writing and either delivered personally, delivered by a nationally or internationally recognized overnight courier service or sent by registered or certified mail. Notices to either party hereunder shall be sent to those addresses set forth in the Order Form. Notices shall be deemed to have been received: (i) on the day given if delivered by hand (securing a receipt evidencing such delivery); (ii) on the second day after notice is sent, if sent by an overnight courier service; or (iii) on the fifth day after notice was mailed, if sent by registered or certified mail.

9.8.   Survival. The following Sections shall survive any expiration or termination of the Agreement: 1, 3.1, 3.3, 3.6, 3.7, 4 (with respect to unpaid amounts), 5.4, and 6 to 9.

9.9.   Facsimile, Email Transmission; Counterparts. The Agreement (including any Order Form) may be executed and delivered by facsimile or email and each full reproduction, including reproductions by photocopy or scan, shall be deemed an original. Receipt of any such reproduction by facsimile or email transmission shall be deemed delivery of an original. The Agreement (including any Order Form) may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument and notwithstanding their date of execution shall be deemed to be effective as of the Effective Date.

9.10. Force Majeure. Neither party will be liable to the other for any failure to meet its obligations under the Agreement where such failure is caused by events beyond its reasonable control including, but not limited to, such as failure of communications networks, inability to timely obtain instructions or information from the other party, governmental action, fire, storms, floods or other acts of God, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.

9.11. Subsequent Modifications. No amendment, alteration or modification of the Agreement shall be effective or binding unless it is set forth in a writing signed by duly authorized representatives of both parties.

9.12. Entire Agreement. The Agreement, including these Terms and Conditions, the Order Form(s), and all schedules attached hereto, constitutes the entire agreement between the parties in connection with the subject matter hereof, and supersedes all prior and contemporane­ous agreements, understandings, negotia­tions and discussions, whether oral or written, of the parties, and there are no warran­ties, representations and/or agreements among the parties in connection with the subject matter hereof except as set forth in the Agreement. In the event of any inconsistency between the terms and conditions of the Agreement and an Order Form, now or hereafter appended hereto, the terms of the Order Form shall govern.