FACILITYONE UNITY SOLUTION LICENSE AGREEMENT

As part of the ordering process, FacilityONE and Customer agree to the following terms and conditions. As a part of the service FacilityONE will provide Customer with use of the application, including a browser interface and data encryption, transmission, access, and storage. Customer’s registration for, or use of, the application shall be deemed to be the Customer’s agreement to abide by this Agreement including any materials available on the FacilityONE website incorporated by reference herein, including but not limited to the Privacy and Security Statements.

DEFINITIONS

AGREEMENT. The term “Agreement” as used herein shall mean this Customer Access & Service Agreement, including the Exhibits attached hereto, and any written modifications executed by the parties hereto from time to time that complies with the requirements for modifications specified below.
F1 WORKS - FacilityONE Technologies CMMS Application with Corrective/Preventative Maintenance capabilities and configured reporting.
F1 MAPS - Drawings built of CAD, with asset location & documentation.
F1 INSIGHTS - Visual data analytics reporting representation of UNITY collective input information.
EXHIBITS. The Exhibits include Exhibits A, B listed below:
1. 1. Exhibit A – FacilityONE General Terms and Conditions
  2. Exhibit B – FacilityONE Service Level Agreement

6. CUSTOMER. The term “Customer” as used herein shall mean include customer’s authorized users
7. USERS. The term “User” as used herein shall mean the ability to log into one or all of The UNITY Solution for Customer’s internal business requirements.
8. FacilityONE’s UNITY Solution. The term “FacilityONE’s UNITY Solution” used herein shall include all Solutions as listed on the FacilityOne Contract.
LOCATIONS. The term “Locations” as used herein shall mean any Customer location.

DESCRIPTION OF ACCESS & SERVICE

FacilityONE agrees to provide, and Customer agrees to accept the performance of the Customer Access set forth in subsection (a). Exhibit A (FacilityONE General Terms and Conditions) are attached hereto, incorporated herein, and expressly made a part of this Agreement, along with any subsequent Exhibits executed by the parties.

ACCESS:

FacilityONE will provide Customer access to the FacilityONE UNITY Solution:

Access is granted to the Customer as follows:
1. FacilityONE shall permit, create & establish unlimited Users and Passwords, as determined by the authorized FacilityONE Representative & Customer.
2. FacilityONE, shall provide Customer with a password-protected user identification code necessary for Customer to access the FacilityONE UNITY Solution.
3. FacilityONE requires the Customer to:
  1. - - Ensure their internet browser and operating system updates are current
    - - Ensure their computers have an updated version of anti-virus software.
    - - Log out of the system browser associated with the FacilityONE UNITY Solution at the end of session use.

4. The FacilityONE UNITY Solution & Services prescribed herein shall be accessed and provided only for the Customer locations.

2. Customer Support:
1. 365 24 x 7
2. During the term of this Agreement, telephone and/or electronic-based technical support for on-going questions relating to the FacilityONE‘s UNITY Solution. In no event shall FacilityONE intentionally lockout or prevent Customer from having access to the FacilityONE Application so long as Customer complies with the terms of this Agreement and all security protocols established by FacilityONE to prevent unauthorized access to the FacilityONE Application.

3. FacilityONE’s address and customer service phone number are:
3540 Toringdon Way Suite 200
Charlotte, NC 28277

Customer Support: Email: support@facilityone.com
Help Desk: 502-805-2100

4. Unlimited System Access: *Refer to General Terms and Conditions herein for exceptions regarding maintenance.

1.With the exception of scheduled and unscheduled maintenance, the FacilityONE UNITY Solution is accessible twenty-four hours a day, seven days a week, for every calendar day of the year.

5. Professional Services: You may retain FacilityONE to perform professional services (“Professional Services”) as you and we may agree upon in writing (“Scope of Work”). We will use commercially reasonable efforts to carry out the Professional Services contained in the Scope of Work to provide any resulting functionality in the Service made available to you and your Users. Except, as we otherwise agree in a Scope of Work, (a) Professional Services and the results of the Professional Services are made available “AS IS”, (b) we will provide the Professional Services on a time and materials basis at our then applicable rates, and subject to such deposits or advances as we may require. Access to the Professional Services will be available as part of the Service during the relevant subscription period, unless we otherwise agreed in writing. All aspects of the Professional Services not contained in a Scope of Work will be governed by the terms of this Agreement, including (without limitation) paragraph 8 regarding our ownership of all Intellectual Property Rights and Confidential Information associated with the Professional Services.

ACCESS FEE AND PAYMENTS:

All fees and payments for the FacilityONE UNITY Solution will be paid to FacilityONE one of the following methods unless otherwise authorized.
1. ACH
2. Credit Card: Customer is responsible for all merchant processing fees.

2. Payment terms: Payment in full is due upon execution of this Agreement by both parties. Any applicable sales, use, excise, or other transfer taxes due on the payments hereunder shall be the responsibility of Customer.

3. The Annual Access Fee is subject to upward or downward adjustment based on facility size.

TERM:

The Term of this Agreement shall commence as of the Effective Date and shall continue for the period unless otherwise terminated in accordance with this Agreement. Thereafter, the Term of this Agreement shall automatically renew for additional, consecutive one (1) year periods (each a “Renewal Term”) unless either party gives the other notice of non-renewal at least sixty (60) days before the end of the Initial Term or relevant Renewal Term.Vendor may increase the annual fee at the Consumer Price Index rate as published by the U.S. Bureau of Labor Statistics.

EXHIBIT A
FacilityONE General Terms & Conditions

1. FacilityONE and Customer Mutually Agree

A. Proposals, Orders, Statements of Work. The business terms of the specific engagement, including the actual facilities and systems to be documented, the access rights granted, the designated project team, project specifications (including square footage) and deliverables, contact information, fees, and training responsibilities are described in the Agreement and any mutually agreed upon attachments thereto, including exhibits. The parties agree that additional Proposals, Orders or Statements of Works may be entered by the parties for new facilities requested. Subsequent Proposals, Orders or Statements of Work shall be incorporated into the Agreement, made coterminous with the term, unless mutually agreed upon otherwise, and attached hereto as Exhibit A, Exhibit B, Exhibit C, and so on. To the extent of any inconsistency between this Agreement and any Proposals, Orders or Statements of Work, this Agreement shall control.

B. Term and Termination. The initial term as listed in Customer Access and Service Agreement.

C. Non-Cancellation Provision on Initial Term. The initial Term of the Agreement is Non-cancellable for any reason., other than for any uncured material breach of contract. Notwithstanding the foregoing, a party may terminate the Agreement if the other party hereto defaults in the performance of any of its material obligations under this Agreement and such default remains uncured for thirty (30) days after its receipt of written notice specifying the nature of such breach. Such notice shall describe in detail the alleged breach (provided however, the non-breaching party shall not be required to extend the breaching party more than one [1] cure period).

D. Termination. In addition to any other termination right provided herein, including, but not limited to the right to terminate for uncured material breach, either party may terminate this Agreement if the other shall (1) voluntarily or involuntarily commence any proceeding under Title 11 of the United States Code or any other federal, state or foreign bankruptcy, insolvency, receivership, liquidation or similar law, (2) consent to the institution of, or fail to contravene in a timely and appropriate manner, in any such proceeding or the filing of any such petition, or (3) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator or similar official for a substantial part of its assets. Upon termination, for any reason, (i) all rights of Customer as licensee hereunder shall terminate and (ii) Customer shall have no further financial obligation to FacilityONE (other than unpaid fees for services provided by FacilityONE prior to termination. FacilityONE shall have no financial obligation to the Customer, including, but not limited to reimbursement of any fees paid unless otherwise stated herein. Notwithstanding the forgoing, the terms as described on an applicable Proposals, Orders or Statements of Work.

E. Obligations upon Termination of Agreement. Upon termination of this Agreement, Customer shall (i) promptly return to FacilityONE all of the system materials in its possession or under its control, (ii) promptly return to FacilityONE all usernames granting access rights to the FacilityONE System, and (iii) safely destroy all usernames and related passwords granting access rights to the FacilityONE System and, upon request by FacilityONE, certify in writing such destruction. Also, upon termination of this Agreement, FacilityONE shall promptly return all data, confidential materials, and property of Customer in a format mutually agreed upon by both parties and FacilityONE shall retain no copies, extracts or other reproductions in whole or in part thereof.

2. Responsibilities of FacilityONE

A. Rights to FacilityONE Application. FacilityONE hereby grants Customer a non-exclusive, non-transferable license to access, operate and use the FacilityONE UNITY Solution (including the software embedded therein) residing on the UNITY Login page or as otherwise designated by FacilityONE (during the term of this Agreement as described in the Customer Access & Service Agreement (collectively, the “Access”). The rights of Access are for the internal use of the Customer only and may not be assigned, transferred or sub licensed.

B. FacilityONE Access. The FacilityONE Application is accessible 24/7 – 365-days per year, subject to the exceptions described herein. Customer shall be notified (24) twenty-four hours in advance of any scheduled maintenance that will result in loss of access to the Web Software for longer than 5 minutes. Scheduled maintenance lasting longer than 60 minutes will be performed on Saturday, Sunday. Scheduled maintenance lasting less than 60 minutes will be performed between the hours of 8:00 p.m. and midnight Eastern Time on any day. Unscheduled maintenance (maintenance which cannot be delayed until the next scheduled maintenance) will be performed as necessary. FacilityONE shall perform maintenance as efficiently as possible and with as little inconvenience to Customer as possible. At any time maintenance is being performed (scheduled or unscheduled), when practical, a message communicating this event will appear on the FacilityONE Website. In addition, the FacilityONE Website may be inaccessible for events outside its control, including, without limitation, cyber-terrorism, external hacking, and force majeure events.

C. Updates. Software updates will be provided automatically to the Customer and its Users. An announcement describing updates will follow distribution or roll-out.

D. Access Credentials. FacilityONE will issue login credentials to the Customer’s Users authorized to access the FacilityONE UNITY Solution by Customer and will permit Customer to issue passwords to its Users. Passwords shall be retained/created for all current Users for the Customer Facilities listed in the contract. Additional passwords shall be created for a total of Unlimited Users.

E. Customer Training. FacilityONE is responsible for training the Customer in its use of the FacilityONE UNITY Solution.

F. Technical Support. FacilityONE is responsible for systems support of the FacilityONE UNITY Solution.

G. Facility Documentation. FacilityONE is responsible for coordinating with Customer and documenting all Customer Facilities as described in the Proposals, Orders or Statements of Work. Upon completion of the project or any additions that impact additional facilities or square footage, FacilityONE will review and calculate the increase of Customer Facilities subject to this Agreement and communicate any adjustments to the Customer.

H. Customer Technical Support. FacilityONE agrees to promptly and professionally respond to the technical inquiries of Customer associated with the use and performance of FacilityONE and respond accordingly to resolve those related to FacilityONE or re-direct those identified as Customer technical issues not related to FacilityONE.

I. Compliance with Laws. FacilityOne shall at all times comply with all laws, rules, and regulations applicable to its activities hereunder.

3. Responsibilities of Customer:

A. Customer Data Responsibility. Notwithstanding any term or condition of this Agreement, Customer shall be solely responsible for verifying any output resulting from use of the FacilityONE UNITY Solution.

B. Enforcement of Security Protocols and FacilityONE Website Access. Customer shall adopt and enforce the following security protocols to ensure only authorized access to the FacilityONE UNITY Solution, including: (i) granting only authorized Users access, (ii) promptly logging out of FacilityONE sessions and closing browser windows upon task completion, (iii) ensuring that all internet browsers and operating systems are current and compatible with the FacilityONE Web-Based Software, (iv) ensuring that all computers interfacing with the FacilityONE System possess current anti-virus software, and (v) limiting access for only those purposes licensed to Customer in Section 2 above. The Customer is responsible for ensuring that no unauthorized access to the FacilityONE UNITY Solution or use of the Web-Based Software occurs by or through its employees or agents, or from any party accessing the FacilityONE UNITY Solution or using the Web-Based Software from passwords issued by the Customer. Prior to accessing the FacilityONE UNITY Solution for the first time, each of Customer’s Users shall read and approve the online FacilityONE Customer Access and Service Agreement . To the extent of any inconsistency between the terms and conditions stated in this Agreement and terms and conditions stated in the FacilityONE Access Agreement, the terms and conditions of this Agreement shall control, govern, and prevail.

C. Compliance with Laws. Customer shall at all times comply with all laws, rules, and regulations applicable to its activities hereunder.

D. Limited License for Web-Based Software. The FacilityONE UNITY Solution / Web-Based Software is and will at all times remain the property of FacilityONE. FacilityONE hereby grants Customer a non-exclusive, non-transferable license to use the FacilityONE UNITY Solution / Web-Based Software for the purposes described herein (including the Proposals, Orders, or Statements of Work). The Customer may not assign, transfer or sub license its rights without prior written consent which shall not be reasonably withheld, except in cases in which (i) an affiliate or a third party has acquired all or substantially all of the assets of Customer or the Customer assets to which this Agreement relates or (ii) where a Customer Facility is sold or sublicense its rights. The term of this limited license shall run concurrently with this Agreement; the license shall terminate upon termination of this Agreement. The Customer shall not be permitted to alter the FacilityONE UNITY Solution / Web-Based Software, or the way it functions, in any fashion. However, user interface customizations such as Customer branding and logos will be performed by FacilityONE where supported by the FacilityONE UNITY Solution / Web-Based Software. The Customer acknowledges FacilityONE’s complete ownership of the FacilityONE UNITY Solution / Web-Based Software and agrees to not take any action inconsistent with such ownership. Nothing in this limited license shall grant, or be construed to grant, Customer any right, title or interest to the FacilityONE UNITY Solution / Web-Based Software, except for the purposes described herein and in accordance with this Agreement. The parties agree and acknowledge that FacilityONE alone shall at all times own the goodwill associated with the Web-Based Software and the FacilityONE UNITY Solution in general.

E. Limited License for Customer Data.

The Customer grants FacilityONE a non-exclusive, non-transferable license to use the Customer data for bundled marketing purposes (on an anonymous basis). Data may be used for analytical based reporting and case studies. Upon this request, FacilityONE can provide a quote to the Customer associated with such analytical reporting and service.
In the event of termination of service, Customer data is available in PDF or Excel formats within the Application and can be downloaded by the active customer at any time, upon termination or non-renewal, the Customer should take the necessary steps to obtain the data.
In the event of non-renewal or termination, Customer may request FacilityONE to provide this data to them in a customized format. Upon this request, FacilityONE can provide a quote to the Customer for this service.
FacilityONE only retains customer data for 6-months post termination/non-renewal unless stated otherwise.

4. Intellectual Property; Confidentiality

A. Intellectual Property. The FacilityONE UNITY Solution is protected by copyright, trademark, patent, trade secret, and/or other intellectual property laws. Other than the limited licenses contained herein, FacilityONE does not grant Customer any express or implied rights to use any of such assets.

B. Confidentiality. Both parties recognize and acknowledge that during the term of the Agreement the parties may be exposed to or obtain trade secrets or other confidential or proprietary information of the other party, and that such information is a unique, valuable and special asset of the disclosing party. Neither party will disclose or use the other party’s Confidential Information except for the sole purpose of performing this Agreement, and each party will keep confidential and safeguard such information against unauthorized disclosure to others with at least the same degree of care as it exercises with its own information of a similar nature, but in no event less than reasonable care, for a period of five years after the termination of this Agreement. Both parties agree that they will not, during or after the term of this Agreement: (i) use or appropriate for themselves any trade secret or confidential or proprietary information concerning the other party’s business affairs, intellectual property, data, or any related information; or (ii) disclose, demonstrate, publish or otherwise make known any trade secret or confidential or proprietary information concerning the other party’s business affairs, intellectual property, data, or any related information (including any party to whom one of the parties owes an obligation of confidence), to any person, firm, company, association or other entity for any reason or purpose whatsoever. Notwithstanding the foregoing,
a party may disclose information with the written consent of the other party, or in order to comply with a federal, state or local law or regulation or court order (“Legal Order”) (it being understood that the recipient of a court order shall notify the other party promptly upon receipt of such court order, unless such court order prohibits such notification). Furthermore, except for Customer’s use of the FacilityONE UNITY Solution and Services in accordance with this Agreement, Customer agrees not to copy, republish, frame, download, transmit, modify, rent, lease, loan, sell, assign, distribute, license, sublicense, reverse engineer, or create derivative works based on the FacilityONE UNITY Solution. Customer agrees to not mine data, use robots, decompile, employ similar data gathering and extraction methods, or otherwise attempt to discover the source code of any software used in connection with the FacilityONE UNITY Solution Customer acknowledges that the specific business methods, pricing and technological procedures of FacilityONE represent confidential information, proprietary information and trade secrets.

C. Confidential Information will not include information that: (i) the receiving party can demonstrate by written records was already rightfully known to that party prior to its receipt from the disclosing party; (ii) is now, or becomes in the future, public knowledge through no fault, act or omission of the receiving party; (iii) is independently developed by the receiving party without any use of or reference to the disclosing party’s Confidential Information; or (iv) is acquired by the receiving party from a third party having a legal right to so disclose without restriction on such disclosures.

D. Upon expiration or termination of this Agreement, the party receiving Confidential Information will cease its use and upon request, within thirty (30) days, use commercially reasonable efforts to either (at the option of receiving party) return or destroy (and certify in a timely manner as to such destruction) all Confidential Information of the other party, including any copies thereof. Notwithstanding the foregoing, each party receiving Confidential Information will be entitled to retain copies of Confidential Information to the extent required by law or regulation; provided, that for so long as a party retains any Confidential Information, it shall employ reasonable security measures and shall exercise reasonable care in protecting the confidentiality of such information as it does in protecting its own information similarly recorded or saved and will continue to be bound by the obligations under this Agreement in regards to all such Confidential Information. The parties’ obligations under this Section regarding Confidential Information shall survive the expiration or termination of this Agreement, until such information ceases to be confidential information or a protectable trade secret.

5. Representations, Warranties and Covenants of FacilityONE. FacilityONE represents and warrants to the Customer as of the Effective Date hereof as follows:

A. Organization, Good Standing and Qualification. FacilityONE has been duly organized, validly exists, and is in good standing under the laws of the State of North Carolina. FacilityONE has the corporate power and authority to own and operate its properties and assets and to carry on its business as currently conducted and as presently proposed to be conducted.

B. Due Authorization. All corporate action on the part of FacilityONE’s managers and members necessary for the authorization, execution, delivery of, and the performance of all obligations of FacilityONE under this Agreement, has been taken, and this Agreement constitutes a valid and legally binding obligation of FacilityONE, enforceable against it in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditor’s rights generally and (ii) the effect of rules of law governing the availability of equitable remedies.

C. Intellectual Property. FacilityONE has good title or is the lawful licensed user of the FacilityONE System and agrees to hold harmless and indemnify Customer for any damages it incurs (including reasonable attorneys’ fees) as a result of any infringement claims against it for using the FacilityONE UNITY Solution in accordance with this Agreement.

6. Representations and Warranties of the Customer. The Customer represents and warrants to FacilityONE as of the date hereof as follows:

A. Organization, Good Standing and Qualification. The Customer has been duly organized, validly exists, and is in good standing under the applicable laws. The Customer has the corporate power and authority to own and operate its properties and assets and to carry on its business as currently conducted and as presently proposed to be conducted.

B. Due Authorization and Company Power. All corporate action on the part of the Customer’s authorized personnel necessary for the authorization, execution, delivery of, and the performance of all obligations of the Customer existing as of the Effective Date under this Agreement has been taken or will be taken prior to the Effective Date, and this Agreement constitutes a valid and legally binding obligation of the Customer, enforceable against it in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting the enforcement of creditor’s rights generally, and (ii) the effect of rules of law governing the availability of equitable remedies. The Customer has the corporate power and authority to execute and deliver this Agreement and to carry out and perform all its obligations under this Agreement.

7. Customer Covenants.

A. Non-Solicitation. During the term of this Agreement, both parties agree that such party will not knowingly or intentionally solicit for employment to any employees of the other party. Notwithstanding the foregoing, this section shall not preclude either party from hiring any person employed by the other party where such person independently responds to an employment opportunity broadcast by the other party to the general public (e.g.: via newspaper, magazine, broadcast, internet, employment agencies, etc.).

B. FacilityONE System. Except as otherwise permitted under this Agreement, if at all, customer shall not: (i) modify the FacilityONE UNITY Solution, the documentation or the underlying software or create derivative works thereof; (ii) merge any of the foregoing with any other products or software; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code to such software; or (iv) otherwise use, copy or distribute the FacilityONE UNITY Solution except as expressly allowed hereunder.

8. Data Ownership, Use and Consent.

A. Data Ownership and Use. Notwithstanding any term or condition of this Agreement, Customer shall be solely responsible for verifying any output resulting from use of the FacilityONE UNITY Solution. Any data stored by FacilityONE or its third-party hosting company is and will remain the property of the Customer (subject to the limited license described in Section 9). Customer agrees that FacilityONE is merely providing access rights to the FacilityONE UNITY Solution for purposes of utilizing the FacilityONE UNITY Solution and is permitting Customer data to be stored by FacilityONE or its third-party hosting company. FacilityONE shall not be liable for the output resulting from use of the FacilityONE UNITY Solution or the Customer decision-making. Customer data is available in PDF or Excel formats within the various modules and can be downloaded by Customer at its discretion and upon termination. Upon termination of this Agreement, the Customer may print all F1 MAPS units to paper or PDF and thus obtain a paper copy of all data stored by FacilityONE or its third-party hosting company. Upon termination of this Agreement, if the Customer desires data to be downloaded in a customized format other than PDF or Excel, FacilityONE can provide a quote to provide that service at its then applicable time and materials rate. FacilityONE agrees to retain Customer data for a minimum period of six (6) months after termination of this Agreement to help facilitate any customized data transfers as identified in Section 8. After such six (6) month period, FacilityONE will have no obligation to maintain the Customer Data and will securely delete or destroy the Customer Data.

B. Customer Consent. Upon Customer written approval or permission, which shall not be unreasonably withheld, the Customer may authorize FacilityONE to post the Customer’s name on the FacilityONE Website and identify the Customer on other FacilityONE literature for purposes of promoting the FacilityONE UNITY Solution. Other than identifying the Customer as a customer of FacilityONE, FacilityONE agrees to disclose no information regarding Customer. Upon termination of the Agreement, FacilityONE shall remove Customer’s name from the FacilityONE Website and any other FacilityONE literature.

9. Equitable Remedy. The parties agree that the covenants of this Agreement are of a special, unique and extraordinary character. Either party may be irreparably harmed by any breach of the confidentiality or other restrictive covenants of this Agreement. Accordingly, each party agrees that if the other violates any of the provisions of Section 1 or Section 4, such violation may cause irreparable injury to non-violating party for which it cannot be adequately compensated with monetary damages. Therefore, each party agrees that in the event of any such violation(s), such appropriate jurisdiction may enjoin and/or restrain its violation(s) and the violation(s) of any persons or entities acting for or in concert with it. Each party may be entitled to file suit in a court of competent jurisdiction to seek a temporary restraining order and a permanent injunction to prevent a breach or contemplated breach of the protective covenants, without the posting of bond or other security and without prior notice to it. Injunctive relief will be in addition to all other remedies and damages available to a party as provided under applicable law.

10. Governing Law and Jurisdiction; Attorneys’ Fees. The parties agree that this Agreement shall be governed by the statutes and laws of the State of North Carolina, without regard to or application of its conflicts of laws principles. This Agreement and its subject matter have substantial contacts with North Carolina, and all actions, suits, or other proceedings with respect to this Agreement shall be brought only in a court of competent jurisdiction sitting in Mecklenburg County, North Carolina, or in the Federal District Court having jurisdiction over that county. Notwithstanding Section 25 or any other provision of this Agreement to the contrary, if a party must resort to legal action and/or retain the services of any attorney or resort to litigation related to a breach of this Agreement, that party shall be entitled to recover from the other party all reasonable attorney's fees, collection fees and costs and court costs.

11. Headings. All headings are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision.

12. Terms. Common nouns and pronouns will be deemed to refer to the masculine, feminine, neuter, singular, and plural, as the identity of the person or persons, firm or corporation may in the context require.

13. Severability. Every provision is intended to be severable. Any term or provision of this Agreement that is invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, the provision will be interpreted to be only as broad as is enforceable.

14. Amendments. The Agreement may be amended or modified from time to time by FacilityONE and communicated to customer.

15. Notices. Except as expressly provided otherwise in this Agreement, any notice or other communication required to be given pursuant to this Agreement shall be in writing and shall be either: (a) delivered personally to the party notified; (b) sent by United States mail, first class registered or certified mail, postage prepaid; or (c) delivered by an overnight delivery courier service of national reputation.

Any notice to: Chief Executive Officer
FacilityONE
3540 Toringdon Way, Suite 200
Charlotte, NC 28277

Any such notice shall be deemed to have been given as of the earlier of: (i) the date of actual receipt of such notice; (ii) the third business day following the date on which the mail containing such notice is posted if sent by United States mail; or (iii) the first business day after such notice is delivered to an overnight delivery courier service for delivery to the party to be notified.

16. Waiver. No provision of this Agreement shall be deemed to have been waived unless such waiver is executed in writing by the party waiving such provision. No waiver of any provision of this Agreement shall constitute a waiver of any other provision of this Agreement. No waiver of any breach or violation of any provision of this Agreement shall constitute a waiver of any subsequent breach of such provision.

17. Successors and Assigns; Assignment and Sublicense. Each and all of the covenants, terms, provisions and agreements herein contained shall be binding upon and inure to the benefit of the parties hereto and, to the extent permitted by this Agreement, their respective legal representatives, successors and assigns. Except as provided in Section 3.D., neither this Agreement nor any of the rights, interests or obligations of a party may be assigned, delegated or sublicensed without the prior written consent of the other party, which shall not be unreasonably withheld, except that such consent may not be unreasonably withheld in the event of a sale of all or substantially all of the assets of the Customer.

18. References. The section and other headings and subheadings contained in this Agreement and the exhibits hereto are solely for the purpose of reference, are not part of the agreement of the parties hereto, and shall not in any way affect the meaning or interpretation of this Agreement or any exhibit hereto. All references to days or months shall be deemed references to a calendar days or months, as applicable, unless otherwise specifically provided. All references to “$” shall be deemed references to United States dollars. The words “hereof,” “herein” and “hereunder” and word of similar import referring to this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. A reference to any party to this Agreement or any other agreement or documents shall include such party’s successors and permitted assigns. Whenever the words “include,” “includes” or “including” are used this Agreement, they shall be deemed to be followed by the word “without limitation.”

19. Entire Agreement. This Agreement and the documents referred to herein contain the complete agreement between the parties hereto and supersede any prior understanding, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way.

20. Independent Contractor Relationship. The relationship created hereunder is that of independent contractor. Customer shall not be, and shall never be construed to be, a partner of FacilityONE and no partnership, joint venture, franchise or other business entity shall be created as a result of this relationship.

21. Disclaimer of Warranties. OTHER THAN WARRANTY OF TITLE, FACILITYONE MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED, AND ALL IMPLIED WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED.

22. Not Fault Tolerant. THE SERVICE IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SERVICE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. TO THE EXTENT CUSTOMER USES THE SERVICE IN SUCH ENVIRONMENT, IT EXPRESSLY ASSUMES ALL RISK THEREFORE.

23. Liability and Indemnification; Limitation of Liability. Each party agrees to indemnify, defend, and hold the other harmless from, against and with respect to any claim, liability, obligation, loss, damage, assessment, judgment, cost and expense of any kind or character, including reasonable attorneys’ fees and expenses, arising out of or in any manner incident, relating or attributable to: (a) any breach of, or inaccuracy in, any representation or warranty made by a party hereunder; or (b) any breach or default in performance by a party of any covenant, agreement or obligation in this Agreement. NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, WHICH MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, OR WHETHER CLAIMS OR REMEDIES ARE BASED IN CONTRACT, TORT OR OTHERWISE. IN NO EVENT SHALL FACILITYONE’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES TO CUSTOMER EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO FACILITYONE.

24. Intellectual Property Infringement Indemnification. FacilityONE will defend Customer against any third party claim that the FacilityONE UNITY Solution infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer’s actions) (“Claim Against Customer”), and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, FacilityONE will have no liability to Customer under this Section 30 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the FacilityONE UNITY Solution by Customer; (b) use of the FacilityONE UNITY Solution in combination with any other software or equipment not supported in the documentation; or (c) any modification or alteration of the FacilityONE UNITY Solution by anyone other than FacilityONE without the written approval of FacilityONE. In the event of a Claim Against Customer pursuant to this Section 30, FacilityONE may (at FacilityONE’s option and expense): (i) obtain for Customer the right to continue using the FacilityONE UNITY Solution; (ii) modify the FacilityONE UNITY Solution to make it non-infringing; or (iii) if subsections (i) and (ii) are not commercially viable, immediately terminate this Agreement and refund Customer on a pro-rated basis any fees paid to FacilityONE for the corresponding unused period of the FacilityONE UNITY Solution.

25. Expenses. All costs and expenses (including all legal, accounting, broker, or finder fees) incurred in connection with this Agreement and the transactions contemplated hereby are to be paid by the party incurring such expenses except as expressly provided herein.

26. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to, or shall confer upon or on behalf of, any party (other than the parties hereto), any rights, remedies or causes of action under or by reason of this Agreement.

27. Construction. The parties have participated jointly in negotiation and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

28. Force Majeure. A party is not liable for delay or failure to perform the party’s obligations hereunder if such delay or failure is as a result of Acts of God (including flood, earthquake, or other natural disasters), war, invasion, act of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, riots, government sanction, blockage, or embargo. No party is entitled to terminate this Agreement in such circumstances. A party seeking to invoke force majeure must demonstrate that it took reasonable steps to minimize delay or damages from foreseeable events and that it fulfilled all non- excused obligations.

The FacilityONE General Terms and Conditions are an essential part of the Customer Access & Service Agreement and are made a part of and accepted upon the execution of the Customer Access & Service Agreement attached hereto.

EXHIBIT B
Service Level Agreement

1. Performance Metrics

Supplier agrees to provide 99.9% Application Availability, 24 hours a day, 7 days a week, measuredly on a monthly basis. The term "Application Availability" means that the Services are available and working without material functional degradation, and that application response time performance allows for commercially reasonable productive use of the Services. Availability shall be measured at the point where the Services are made available on the Internet from Supplier's hosted data center(s) and does not include outages caused by the customer. Application Availability measures will not include pre-scheduled maintenance periods, about which the customer will receive commercially reasonable advance prior written notification, and which are of commercially reasonable frequency and duration. Maintenance shall be scheduled during non-peak use periods to the extent feasible.

2. Backups and Disaster Recovery

A. Backups. Supplier will provide the following backup services for Customer Data:

- A daily incremental backup of Customer Data entered into the hosted environment since the last backup will be initiated daily. A full backup will be initiated at least once per week. The full backup data will be stored to disk on a weekly basis.

- Daily incremental backups in combination with weekly full backups will be completed so that no more than 24 hours' worth of data will be lost in the event of a disaster.

B. Disaster Recovery. Supplier has both physical and logical contingency plans in place, which will be provided to the Customer upon request. Supplier reviews and amends such plans annually in accordance with technology advances and such amendments will be promptly provided to the Customer upon request.

3. User Support

A. Live Phone Support. Supplier offers technical support 365 days of the year at 24 / 7. A technical support ticket can be opened via phone support. While available, technical support response time varies during off business hours and on select Supplier holidays. The current Supplier holidays are set forth below:

Thanksgiving Day (fourth Thursday in November)
Christmas Eve (December 24)
Christmas Day (December 25)
New Year's Day (January 1)

B. Off-Hour Phone Support via Voicemail. Voice mail may be used as a backup when technical support representatives are assisting other customers or are otherwise not available for live technical support. A technical support representative is available 24 hours per day, 7 days per week via the voicemail system, including on the holidays.

4. Technical Support Issue Escalation, Severity Levels, Response Times and Resolution

A. Supplier will address technical support issues that can be reproduced by Supplier in accordance with Table 1 ("Service Level Response") below. The severity level assigned to technical support issues will be determined by Supplier.

B. Severity Level Descriptions

Severity Level 1 Either i) a complete loss of service in which the production system(s) or server(s) are down, or network components under Supplier's control or under the control of Supplier's hosting or network partner, or ii) application errors are preventing access to the Services, or use of significant portion of the Services.

Severity Level 2 System Users are unable to perform a mission-critical business function and where there is no workaround in place. "Mission-critical" is defined as any problem under Supplier's control that results in Users being unable to complete materially important business transactions via the Services.

Severity Level 3 System Users are unable to perform a non-mission-critical business function which results in a process or transactional slowdown.

Severity Level 4 The application problem is cosmetic in nature and/or displays minor flaws which are easily circumvented such as incorrect labels, colors, or screen configuration that have little or no impact on normal business operations.

C. Resolution Time.

Severity Level 1 and Level 2 Supplier will work 24 hours per day, 7 days per week, to resolve all Severity Level 1 and Severity Level 2 technical support issues until the issue has a temporary repair or workaround in place. A permanent repair will be performed during business hours.

Severity Level 3 and Level 4 Supplier will work during business hours to resolve Severity Level 3 and 4 incidents in order of their priority.

5. Updates. Supplier will test and provide updates to Customer at no additional charge. Updates do not require any additional or new subscription fees, maintenance fees or other fees.