OVERVIEW OF AGREEMENT

Podium provides reputation management tools and services to its clients (“Clients”) to encourage and manage online reviews from those Clients’ customers (“Customers”). Those Clients often use customer relation management (“CRM”) tools offered by third parties to manage their overall relationships with Customers. Consequently, Podium often finds it necessary to integrate its system with its Client CRMs and to transfer customer data from such CRMs (“Customer Data”) to Podium’s system (“Platform”). Company provides CRM software services to Clients and also facilitates the secure transmission of Client Customer Data to third party platforms such as Podium’s Platform. Podium desires to engage Company to provide such services. This Agreement governs Podium’s relationship with Company.

1. SERVICES; PERMISSIONS.

1.1 Company agrees to provide certain services to Podium (collectively, the “Services”) during the Term (as defined below). The Services shall consist of the following: (1) Company shall initiate the secure transfer of Customer Data to the Platform, including the installation and integration of automated systems (Interface”) necessary for such transfer; (2) Company shall manage the ongoing transfer of Customer Data to the Platform, to ensure that the Customer Data on the Platform is updated continuously; and 3) During the first three months of the Term, Company shall provide marketing to each of their existing customers as follows: First Month – Company shall provide a webinar for their customers to promote Podium’s Platform and services and will send a promotional email to each their customers prior to the webinar to encourage attendance; Second Month – Company shall send a free Podium demo email to each of their existing customers; and Third Month – Company shall send each of their customers a copy of their Review Grade Report (a report generated through Podium’s proprietary grading application). In connection with the Services, Company shall ensure that the transfer of Customer Data is done in a secure manner in and without material interruption in accordance with the provisions of Exhibit C (Service Level Agreement), attached hereto.

1.2 Company represents and warrants that it has the permission of each Client from whom it will obtain Customer Data to transfer the Customer Data to the Platform. Company also represents and warrants that it has not been denied permission to transfer the Customer Data to the Platform and that it is not prohibited by any applicable federal, state, or local law or by any contractual provision or agreement from performing the Services or its other obligations set forth in this Agreement. Company acknowledges that in the course of rendering the Services, Company may come into possession of certain Customer Data, and Company agrees to comply with all federal, state, and local regulatory and statutory provisions related to such Customer Data.

1.3 As sole compensation for the performance of the Services during the Term, Company shall be paid the amounts set forth in Exhibit A (Business Terms). Unless otherwise set forth in Exhibit A, payment terms for undisputed charges are net 30 days after the date of Podium’s invoice by Company.

2. NON-COMPETITION; NON-SOLICITATION.

Company agrees that during the Term (defined below), and for a period of one year following the Term, Company will not (i) provide or offer for sale or license to any Client or other third party any reputation management software, tools or services without first obtaining Podium’s written consent, (ii) directly or indirectly, employ or solicit the employment or services of an employee or independent contractor of Podium without the prior written consent of Podium, or (iii) solicit any Client of Podium to cease doing business with Podium.

3. REFERRALS.

The parties acknowledge that they each have contacts within the customer management industry who would likely need the services of the other party, and they agree that, during the Term, they shall refer to each other any such contacts before any other third-party provider. Such referrals shall be made without the payment of any referral fees. Neither party makes any representation or warranty regarding the number of referrals it may provide pursuant to this section.

4. INDEPENDENT CONTRACTOR RELATIONSHIP.

The parties’ relationships with each other shall be that of independent contractors. Because each party is an independent contractor, neither party will withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker’s compensation insurance on the other party’s behalf. Neither party may hold itself out as an agent of the other or bind the other in any manner without such other party’s written consent.

5. COORDINATION OF EFFORTS.

The parties agree that Company will establish the Interface to securely transfer Customer Data to the Platform. Each Party will maintain an individual responsible for managing its relationship with the other, and each such individual will be reasonably available to discuss matters of mutual concern with the other party. Each party will use commercially reasonable efforts to promptly advise the other of complaints or claims that come to the attention of such party regarding the other’s services, provided that neither party is required to disclose Confidential Information or to waive any of its rights. Each party will timely address such issues in accordance with its standard processes and procedures. Neither party shall be responsible for any support of the other’s services.

6. INTERFACE.

6.1 Subject to the terms and restrictions set forth in this Agreement, Company grants Podium a limited, non-exclusive, revocable, non-transferrable, and non-sublicensable right to access and use the Interface in connection with the secure transfer of Customer Data to Podium’s Platform. Company may monitor Podium’s use of the Interface to improve Company’s Services and to monitor its compliance with the provisions of this Agreement.

6.2 In accessing or using the Interface, Podium shall not: (i) resell, lease, encumber, sublicense, distribute, publish, transmit, or provide such access or use to any third party in any medium whatsoever; (ii) make such access or use accessible on any public system or multiple computer or user arrangement or network to anyone except Podium and its authorized users; (iii) knowingly input or post through or to the Interface any content that is illegal, threatening, harmful, lewd, offensive, or defamatory, (iv) input or transmit through or to the Interface any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Interface or grant unauthorized access thereto; or (v) permit any third party to use or access the Interface other than authorized users.

6.3 Podium will limit access to and use of the Interface to its authorized users, and Podium is responsible for the actions of its authorized users. Podium shall not access or use the Interface other than by electronically secure means and methods approved by Company, including, but not limited to, authentication keys or unique and confidential login IDs and passwords.

6.4 Company and Podium shall agree on a testing schedule for the Interface. All testing shall be performed with dummy data which is not personally identifiable (including, but not limited to, any personal health information). The parties shall conduct quality assurance testing to determine whether the Customer Data is sent and received correctly through the Interface. Billing with respect to any individual Client shall not begin until the Interface works properly for such Client.

6.5 The Interface will securely transfer the Customer Data from each Client’s system to the Platform, both initially and on a continuous basis throughout the Term. Company will exercise commercially reasonable efforts to build and maintain developments in the Interface to allow continuity of the data transfer notwithstanding technological changes in the industry. Company shall use commercially reasonable efforts to monitor and manage the Interface.

6.6 Both Parties will exercise commercially reasonable efforts to resolve any integration or transfer problems that may arise in an expeditious manner, and conduct business ethically and professionally.

6.7 To the extent that any software, hardware, equipment, or other electronic system is necessary for use of the Interface by a party and licensed to such party by a third party, that party will arrange for any required licenses or permissions from such third party to access and use the Interface. Each party may use subcontractors to perform its obligations under this Agreement. The parties will be liable for the acts or omissions of their respective subcontractors under this Agreement.

7. PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY RIGHTS.

7.1 Proprietary Information. Each of the parties agrees during the Term and thereafter that such party will take all steps reasonably necessary to hold the other party’s Proprietary Information (as defined below) in trust and confidence, will not use such Proprietary Information in any manner or for any purpose not expressly set forth in this Agreement, and will not disclose any such Proprietary Information to any third party without first obtaining the other party’s express written consent. By way of illustration but not limitation, “Proprietary Information” includes (a) trade secrets, inventions, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (b) information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and (c) information regarding the skills and compensation of employees of the other party.

7.2 Inventions. The parties hereto hereby agree that each party shall retain all right, title, and interest worldwide in and to its inventions and all applicable intellectual property rights as of the Effective Date or discovered, conceived or reduced to practice by such party during the Term (the “Proprietary Rights”).

7.3 Feedback. Podium is hereby granted a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, or distribute, including by incorporating into Podium’s inventions and materials, any suggestions, enhancement requests, recommendations or other feedback provided by Company. Included in such license is the right for Podium to (i) orally reference Company as a partner of Podium, and (ii) reference Company and use its logo (y) in connection with internal communications, including but not limited to communications with Podium’s board of directors and (z) on Podium’s website and in connection with Podium’s sales materials.

7.4 Ownership of Data Other than Customer Data. Data other than Customer Data (including, but not limited to, reports, structured data, and visual representations of data) transmitted under this Agreement, together with all intellectual property rights in such data (“Data”), shall be owned as follows: (i) Data stored in or transferred to the Interface (excluding any Data provided by Podium to which Company would not otherwise have any ownership rights) and any reports or Data derived by processing such Data, shall be owned by Company; (ii) Data stored in Podium’s Platform shall be owned by Podium (excluding any Data provided by Company to which Podium would not otherwise have any ownership rights); and (iii) Data received from a third party that is provided by that third party pursuant to a written agreement between it and either or both of the parties shall be owned as provided under that written agreement (e.g., any Data that is provided by Company to Podium on behalf of a Customer or Client pursuant to an agreement between that Customer or Client and either Company or Podium shall be owned as set forth in that agreement). The ownership described above shall not be exclusive, to the extent that a party other than the listed owner or a third party otherwise has rights to the Data described (e.g., Data transferred using the Interface but also provided to Partner under a separate agreement could be owned by both parties).

7.5 Use of Data Other than Customer Data. Each party may use Data that it does not own but that it receives under this Agreement solely as follows, and for no other use: (i) as necessary to perform its obligations under this Agreement; (ii) as expressly permitted under this Agreement; and (iii) as permitted under each applicable agreement between that party and any third party that owns such Data.

8. TERMINATION.

8.1 Term. The term of this Agreement shall commence on the Effective Date and continue for a period of one year (the “Initial Term”). Thereafter, this Agreement shall automatically, and without further action by the parties hereto, renew for additional terms of one year (each an “Extended Term” and together with the Initial Term, the “Term”) on a rolling basis, unless either party hereto provides written notice to the other party not to renew no later than 90 days prior to the end of the current Term.

8.2 Termination of Individual Client Accounts. Podium may terminate this Agreement and cease paying fees with respect to any Client by giving 30 days’ prior notice to Company. Upon termination, any fees paid under this Agreement shall be adjusted and refunded or paid as necessary to account for such termination.

8.3 Default. If either party hereto materially defaults in the performance of any of its material obligations hereunder, and if any such default is not cured within thirty days of written notice of such default, the non-defaulting party may terminate this Agreement by providing written notice to the defaulting party.

8.4 Survival. Any provisions of this Agreement that by their nature are intended to survive termination of this Agreement shall also survive.

9. TAXES. Other than net income taxes imposed on Podium, Company will bear all taxes, fees, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement.

10. INDEMNIFICATION. Company (“Indemnifying Party”) will indemnify, defend, and hold harmless Podium and its directors, officers, and employees (“Indemnified Party”) from and against all losses, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees, arising directly from or in connection with a third party claim for (a) any breach by Indemnifying Party or its employees or agents of any applicable law or of the warranties or representations contained in this Agreement, (b) any failure by Indemnifying Party to provide the Services and the Interface in accordance with Exhibit A and C hereto, and (c) any actual or alleged infringement of any patent, copyright, or any actual or alleged trade secret disclosure, arising from or related to the Interface. The indemnity obligations described in this section are conditioned on Podium: (i) promptly notifying the Company in writing of any claim (failure to provide such prompt notice shall reduce the Indemnifying Party’s indemnification obligations hereunder only to the extent the Indemnifying Party is actually prejudiced by such delay); (ii) giving the Indemnifying Party sole control of the defense and all related settlement negotiations (except that the Indemnified party can participate in such defense, as described below); (iii) providing the Indemnifying Party with the assistance, information and authority reasonably necessary to defend and/or settle the claim; and (iv) in no event settling or admitting liability with respect to such claim without the Indemnifying Party’s prior written consent. The Indemnifying Party will then conduct all proceedings or negotiations in connection with the indemnified claim and assume the defense thereof with counsel of its own choosing, provided that such counsel shall be reasonably acceptable to the Indemnified Party. A party shall, however, not be liable if the claim (y) is asserted by an affiliate or parent of the party seeking indemnification; or (z) results from breach of this Agreement by the party seeking indemnification.

11. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND EXHIBITS A AND C, ANY SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

12. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY, ITS STOCKHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF DATA OR GOODWILL, ARISING OUT OF THIS AGREEMENT, OR THE USE OF OR RELIANCE UPON THE INTERFACE, OR SERVICES OR RESULTING INFORMATION. The limitations of liability do not apply to costs, damages or other expenses arising directly from: (i) willful misconduct or gross negligence; (ii) breach of confidentiality obligations; or (iii) agreed indemnity obligations.

13. GENERAL PROVISIONS.

13.1 General Warranties. Each party hereby represents and warrants that (i) it has the right to enter into this Agreement; (ii) it is a corporation or legal entity duly organized, validly existing, and in good standing under the laws of the state of its incorporation or formation; (iii) it has the company power and authority for, and has by all necessary company action authorized, the execution and delivery of this Agreement and the performance of its obligations thereunder; and (iv) the execution, performance and delivery of this Agreement by such party will not conflict with or violate or result in any breach of, or constitute a default under, any material contract, agreement or other obligation of such party.

13.2 Governing Law and Jurisdiction. This Agreement will be governed and construed in accordance with the laws of the State of Utah, U.S.A. as applied to transactions taking place wholly within Utah between Utah residents without regard to any conflict of law principles. Any dispute arising out of relating to this Agreement shall be brought exclusively in the state and federal courts located within the State of Utah, and the parties do hereby submit to the exclusive personal jurisdiction of such courts.

13.3 Severability. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect the other provisions of this Agreement, and this Agreement, as applicable, shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. If moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity, or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.

13.4 No Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by either party, in whole or in part without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, a party may assign, without the other party’s consent, this Agreement to (i) a wholly owned subsidiary of the assigning party, or (ii) any entity which acquires all or substantially all of the assets or the business subject of this Agreement of the assigning party or into which the assigning party is merged or consolidated or to any entity controlling or controlled by the assigning party. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

13.5 Legal Fees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees, and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief it may be awarded.

13.6 Hiring of Employees. The parties hereto agree that neither of them shall hire nor solicit for hiring the employees of the other during the Term and for a period of one year following the completion of the Services. The parties hereto agree that the damages from breach of this provision would be extremely difficult to measure, and therefore agree to adopt as a measurement of liquidated damages (and not as a penalty) the amount of one year’s salary of such employee.

13.7 Injunctive Relief. A breach of any of the promises or agreements contained in this Agreement may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and the non-breaching party is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.

13.8 Waiver. No waiver by a party of any breach of this Agreement shall be a waiver of any preceding or succeeding breach. No waiver by a party of any right under this Agreement shall be construed as a waiver of any other right. Neither party shall not be required to give notice to enforce strict adherence to all terms of this Agreement.

13.9 Notices. All notices, requests, and other communications under this Agreement must be in writing and must be delivered via a recognized courier service (e.g. UPS, FedEx), or delivered by hand to the party to whom such notice is required or permitted to be given. A notice will be considered to have been given when received by the party to whom notice is given, as evidenced by written and dated receipt of the receiving party. The delivery address for notice to either party will be the address shown on the signature page of this Agreement. Either party may change its mailing address by notice as provided by this section.

13.10 Entire Agreement. This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior discussions between the parties hereto. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the party to be charged.

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EXHIBIT C

Service Level Agreement

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This Service Level Agreement is a contract between the individual or entity (Customer, partner, you, your), and Podium (Podium, we, us, our).

This Service Level Agreement defines the terms and scope of your services, as well as our duties as the Client.

Please review the terms and conditions of this service carefully. This agreement supersedes all previous agreements, written or verbal. Any modifications to this agreement must be made in writing and entered into your support file as an addendum.

The Service Level Agreement (SLA) describes Partner’s responsibilities and terms of service. Please review the agreement in its entirety to ensure you can comply with our service needs.

Sincerely,

Podium

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Service Level Agreement: Executive Summary
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Service Commitments

Company will provide:

● FTP server updates and/or patches as required
● Server uptime monitoring
● Server downtime reporting to Podium within 30 minutes of beginning of downtime
● Automatic response to server outages
● On-going server security maintenance
● On-going server health checks
● Support (during Business Hours 9-5 MST)
● Limited application-specific troubleshooting
● Administrative-level system tasks such as DNS system management, FTP, setup integration between the system and Company.
● 99% uptime.
● 99% accurate data delivery
● Services and data free of any malicious activity on the part of Company or its employees.
● Response to any Service Commitment failure(s) within a reasonable business timeframe
● 30 days advanced notice of any pending changes to server configuration
● 45 days advanced notice of any pending changes to data structure in shared files (including but not limited to the order of data elements in the file, the addition of data elements to the file, the removal of data elements from the file)
● A Root Cause Analysis (RCA) within 5 days of any material breach of these Service Commitments, describing the breach, the cause of the breach, and all corrective actions taken to prevent future breaches.

Podium’s responsibilities:

● Keep contact information up to date
● Integration uptime monitoring

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Service Level Agreement: Terms and Conditions

1. TERM

Podium reserves the right to restrict, suspend or cancel service for any user, at any time. This agreement is month-to-month and will renew automatically.

To cancel this contract you must notify Podium by submitting a support ticket within five (5) business days prior to your next billing cycle. Cancellation requests should be submitted to accounts.podium.com

Podium does not permit cancellation via any other method, including, but not limited to: e-mails (other than the email specific), telephone, facsimile or postal mail. Any notice of termination will be effective on the following billing due date for the Service being terminated or thirty (30) days after the cancellation notice is submitted, whichever is longer.

Podium reserves the right to change the terms of this agreement at any time. You will be notified of new terms 30 days in advance of their effective date.

2. PENALTY

In the event that Company fails to meet the Service Commitments outlined in this agreement, Company shall be financially responsible to Podium up to the full impact of any Service Commitment failures, this includes but is not limited to the impact of such failures on Podium’s reputation and clients. At a minimum, Company’s financial responsibility to Podium shall include a service credit for the total value of any services affected by the Company’s Service Commitment failure(s) for the full duration of the failure(s).

3. CHANGES OR UPGRADES

Any changes to the server, (IP, DNS name, Username, Password, permissions) require an advanced warning of 30 days. Any changes to the format and data structure of the file (including filename) require advanced warning of 45 days.

4. BILLING

Invoices will be sent monthly on the client integration setup anniversary date. Payment for outstanding invoices is required within 10 days. Charges will include all server monthly maintenance fees and any overages for the month. Past due invoices will be assessed a 10% late fee, per month.