INFIFLEX TERMS OF SERVICE

(a) “Account” refers to the Service plans and features selected by Customer accepted by Provider, as such plans and features may change by mutual consent of the parties, as recorded by Provider.

(b) “Authorized Representative” refers to the person or persons authorized by Customer to act for Customer.

(c) “Effective Date” refers to the date of commencement of the Service as listed in Customer’s Account.

(d) “Licensor” refers to the underlying party that owns or provides the Service which the Provider distributes or resells to the Customer.

(e) “Materials” refers to written and graphical content provided by or through the Service, including, without limitation, text, photographs, illustrations, and designs, whether provided by Provider, another customer of the Service, or any other third party.

(f) “Customer Data” refers to data in electronic form input or collected through the Service by or from Customer.

(g) “Service” refers to the applicable online service distributed by Provider to Customer. The Service includes such features as are set forth on the Licensor or the Provider’s website, as The Licensor or the Provider may change such features from time to time, in its sole discretion.

(a) Service. Provider will provide the Customer access to the Service pursuant to the Licensor’s and the Provider’s standard policies and procedures then in effect. Customer is hereby granted a nonexclusive, nontransferable, worldwide right to use the Service, solely for Customer own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to Customer are reserved by Provider and its Licensors. Customer may not access the Service if Customer is a direct competitor of Provider or Licensor, except with Provider’s prior written consent. In addition, Customer may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

(b) Provider as Reseller. Customer acknowledges and understands that the Provider is only a sub-service provider or reseller and all the Services under this Agreement depend on the Licensor. In case of any change in terms and conditions of the services by the Licensor, the scope of services and all other relevant terms and conditions shall be modified accordingly.

(c) Services Provided Subject to Licensor. The Customer acknowledges and agrees that the Service(s) under this Agreement shall always be subject to the services offered by the Licensor and the Licensor’s terms and conditions of service. Customer acknowledges that the Services and manner in which such Services will be rendered under this Agreement shall stand changed or modified according to the changes or modifications in services or service terms imposed by the Licensor and in no manner shall Provider be held responsible to such change in scope of Services. The Provider agrees to use commercially reasonable efforts to provide Customer with the Licensor’s terms and conditions of service as well as access to Licensor’s updated to such terms and conditions of service.

(d) Limit of Liability. The Customer further acknowledges and agrees that the Provider shall not, in any manner, be held responsible for non-compliance with any service level parameters or deficiency in the Services, which are on account of the Licensor. Therefore, in such cases, the Customer agrees that the Provider shall not be responsible for any liability to Customer.

Customer will pay Provider such Service fees as are required, due on the day indicated by Provider. This includes billing and payment for the Service and for any work and services performed by Provider for Customer.

(a) Internet Access. In order to use the Service, Customer must have access to the Internet (World Wide Web), either directly or through devices that access Web-based content. Customer must provide all equipment necessary to make and to maintain such connection to the Internet (World Wide Web).

(b) Service Availability. Provider represents and warrants that the Service will be provided in a manner consistent with general industry standards reasonably applicable to the provision thereof as used under normal use and circumstances.

(c) Outage and Credit. Service Availability shall be deemed to be in an outage condition if the Service is not able to network with Customer’s routing selections. Customer may be entitled to an “Outage Credit” in the event of an Outage. An Outage shall be deemed to commence upon Provider’s verification of stated trouble in the trouble ticket submitted by Customer. An outage shall be deemed to terminate upon the closing of the same trouble ticket (or the termination of the downtime, if sooner), less any time Provider waits for additional information or premise testing from Customer. The duration of the Outage Period and Outage Credits will be determined at the sole discretion of Provider, based upon Provider’s internal records. Customer shall have the right to request credit(s) for a period of 60 (sixty) days after the date of the reported occurrence. Customer shall have the right to contest any calculations of credit(s) for a period of thirty (30) days after Customer’s receipt of invoice on which said credit(s) appear.

(d) Availability. Provider may issue Customer a credit due to an Outage that is less than 99.9% uptime for that month. The Outage Credits provided pursuant to this Agreement shall be in the form of an extension of the time of the Services provided, unless otherwise provided for in the Licensor’s terms and conditions of service. The Outage Credits shall be Provider’s sole liability and Customer’s sole remedy in the event of any Outage Period or interruption of Service.

This Agreement will commence on the Effective Date and shall continue for the period indicated in the Customer’s Account, unless terminated earlier as provided in this Agreement.

(a) Non-Payment. In addition to any other rights granted to Provider herein, Provider reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if Customer’s account becomes delinquent. Delinquent invoices and accounts are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of Page 3 ver. March 2023 collection. Customer will continue to be charged during any period of suspension. If Customer or Provider initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s Account. Provider reserves the right to impose a reconnection fee in the event Customer is suspended and thereafter requests access to the Service. Customer agrees and acknowledges that Provider has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Customer’s account is 30 days or more past due.

(b) Termination for Cause. Either party may terminate this Agreement for material breach by written notice, effective in 3 days, unless the other party first cures such breach. In the event of a material breach by Customer in which Provider deems it necessary to immediately suspend or terminate Customer’s access to the Service, Provider may do so without notice or cure period. Upon any termination, the Customer agrees and acknowledges that Provider has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted.

(a) Materials. Customer recognizes and agrees that: (i) the Materials are the property of Provider or the Licensor and are protected by copyright, trademark, and other intellectual property laws; and (ii) Customer does not acquire any right, title, or interest in or to the Materials except the limited and temporary right to use them as necessary for Customer’s use of the Service.

(b) IP in General. Provider and Licensor (as applicable) retain all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all logos and trademarks reproduced through the Service, and this Agreement does not grant Customer any intellectual property rights in or to the Service or any of its components.

Provider and Licensor each reserve the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service to the Customer on which the Customer materially relies. Except for routinely scheduled down time, or as otherwise provided in this Agreement, Provider shall endeavor to use commercially reasonable efforts to notify Customer prior to any such modification.

(a) Customer’s Identity. Customer warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that it will comply with the terms of this Agreement; and that it has the legal authorization to enter into this Agreement or use the Service.

(b) Right to Do Business. Each party warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.

(c) Disclaimers. Except for the express warranties specified in this section, THE SERVICE IS PROVIDED “AS IS” AND AS AVAILABLE, AND PROVIDER MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (I) PROVIDER HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS; AND (II) PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL PERFORM WITHOUT ERROR OR IMMATERIAL INTERRUPTION.

(a) Limits. IN NO EVENT: (a) WILL PROVIDER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THREE (3) MONTHS OF FEES PAID BY CUSTOMER; AND (b) WILL PROVIDER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SECTION APPLY: (i) TO LIABILITY FOR NEGLIGENCE; (ii) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (iii) EVEN IF PROVIDER IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (iv) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section, the Provider’s liability will be limited to the maximum extent permissible.

(a) Exclusions. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY WITH RESPECT TO: (I) DAMAGES TO PERSONS AND/OR TANGIBLE PROPERTY OCCASIONED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF A PARTY, (II) BREACHES BY CUSTOMER OF LICENSE TERMS, (III) CUSTOMER’S UNAUTHORIZED USE OF PROVIDER’S, LICENSOR’S, OR THIRD PARTY VENDOR’S INTELLECTUAL PROPERTY, MATERIALS OR ASSETS; (IV) DAMAGES INCURRED AS A RESULT OF A BREACH BY A PARTY OF ITS OBLIGATIONS THAT RESULT IN THE DISCLOSURE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY, OR (V) CLAIMS THAT ARE THE SUBJECT OF INDEMNIFICATION. DAMAGES AS LIMITED BY THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY.

Customer shall indemnify and hold Provider harmless against any and all losses incurred by Provider and its third-party vendors (if applicable) that arise out of or in connection with a claim by a third party (i) that alleges that the Customer Data or Customer trademarks, or any use thereof, infringes the rights of, or has caused harm to, a third party, or (ii) that arises out of Customer’s breach of this Agreement.

(a) Access, Use, & Legal Compulsion. Unless it receives Customer’s prior written consent, Provider: (i) will not access or use Customer Data other than as necessary to facilitate the Service; and (ii) will not give any third-party access to Customer Data. Notwithstanding the foregoing, Provider may disclose Customer Data as required by applicable law or by proper legal or governmental authority.

(b) Customer’s Rights. Customer possesses and retains all right, title, and interest in and to Customer Data, and Provider’s use and possession thereof is solely as Customer’s agent.

Each party may have access to information that is confidential to the other party (“Confidential Information”). For purposes of this Agreement, Confidential Information shall include any information that is clearly identified in writing at the time of disclosure as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Customer’s Confidential Information shall include, but not be limited to, Customer Data. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information, as established by written records. The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Provider may disclose Customer’s Confidential Information to any third-party vendors solely to the extent necessary to provide products or services under this Agreement.

Customer shall indemnify and hold Provider harmless against any and all losses incurred by Provider, Licensor, and its third-party vendors (if applicable) that arise out of or in connection with a claim by a third party (i) that alleges that the Customer Data or Customer trademarks, or any use thereof, Page 5 ver. March 2023 infringes the rights of, or has caused harm to, a third party, (ii) that arises out of Customer’s breach of this Agreement, or (iii) that arise out of Customer’s improper use of the Service.

(a) Notices. Provider may send notices pursuant to this Agreement to Customer’s contact points listed in Customer’s Account. Customer may send notices to Provider at Provider’s principal place of business. All notices will be deemed delivered upon receipt (unless refused, as applicable).

(b) Amendment. Provider may amend or update these terms and conditions of service and its privacy and other policies at any time by posting a new version at its website, and such amended version will become effective 1 business day after posting.

(c) Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other and neither may bind the other in any way.

(d) No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than (i) by an Authorized Representative and (ii) in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.

(e) Force Majeure. To the extent caused by force majeure, no delay, failure, or default will constitute a breach of this Agreement.

(f) Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder. Except to the extent forbidden in the previous sentence, this Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties.

(g) Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Texas. Each party consents to the personal and exclusive jurisdiction of the federal and state courts located in Dallas, Texas.

(h) Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

(i) Conflicts among Attachments. In the event of any conflict between the terms of this main body of this Agreement and those of any other Provider policy, the terms of this main body will govern.

(j) Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. Neither party has relied upon any such prior or contemporaneous communications.

(k) Survival; Effects of Termination. . Those sections of this Agreement which by their nature should survive termination of this Agreement, shall so survive.

In the event Provider affirmatively grants to Customer a trial period for the use of the Services, then the following shall apply:

(a) Commencement of Trial Period. The Trial Period shall commence when Provider provides Customer with access to the Service.

(b) End of Trial Period. The Trial Period shall end thirty (30) days after the commencement of the Trial Period.

(c) Acceptance or Rejection of Licensed Software. Customer (i) may accept the Service, or (ii) in its sole discretion may reject the Service for any reason, in either case by notice to Provider at any time during the Trial Period. The date, if any, on which Customer accepts the Service is referred to as the “Acceptance Date.” Customer will be deemed to have rejected the Service if it does not accept the Service by notice to Provider prior to the end of the Trial Period.

(d) Testing. During the Trial Period, Customer may conduct such tests as it deems appropriate concerning whether the Service appears to be capable of effective utilization in Customer’s operating business environment.