This Ohanafy Master Subscription Agreement (“Agreement”) is made between Ohanafy, Inc. (“Ohanafy”) and the Client identified on the Order Form (“Client”) and is effective as of the date that Client’s representative agrees to these terms (“Effective Date”). By accessing the Ohanafy Services, completing the Order Form, submitting any Client Materials or selecting or clicking any radial or other mechanism stating “I Accept,” “I Agree” or any other similar manifestation of assent in the Order Form, Client hereby agrees to be bound by this Agreement. If Client does not agree to be bound by this Agreement, Client shall not, and Client shall not have any right to, access or use the Ohanafy Services.

Ohanafy and Client together are referred to as the “Parties” and each individually as a “Party”. Specific services terms, product details, fees, payment terms, and any applicable license and/or subscription terms will be set forth in the applicable Order Form(s) and SOW(s), each of which shall be binding on the Parties and are incorporated by reference into this Agreement upon execution of such an Order Form and/or SOW. Each Party agrees that the terms and conditions of this Agreement govern each Order Form and/or SOW that references this Agreement.

1. DEFINITIONS

Ohanafy Services means, collectively, the Hosted Service, Platform, and Documentation.

Authorized User means Client’s employees, agents, and independent contractors who are authorized to access the Ohanafy Services pursuant to Client’s rights under this Agreement.

Client Materials means any content, information, materials, or data provided by or on behalf of Client in connection with the Ohanafy Services or this Agreement.

Content means information obtained by Ohanafy from publicly available sources or its third-party content providers and made available to Client through the Services, or pursuant to an Order Form, as more fully described in the Documentation.

Client means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.

Client Data means electronic data and information submitted by or for Client to the Services, excluding Content and Non-Ohanafy Applications.

Documentation means any user guide, help information, and other documentation and information regarding the Hosted Service or Platform that is delivered by Ohanafy to the Client in electronic or another form, if any, including any updates to such documentation provided by Ohanafy from time to time.

Hosted Service means the real-time website analytics service hosted by Ohanafy and provided to the Client as set forth on the Order Form and any SOW(s). The Hosted Service includes any change, improvement, extension, or other new versions thereof that are developed or otherwise made available to the Client.

Malicious Code means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

Non-Ohanafy Application means web-based, mobile, offline or other software functionality that interoperates with a Service, that is provided by Client or a third party. Non-Ohanafy Applications, other than those obtained or provided by Client, will be identifiable as such.

Order Form means the online form submitted by Client and accepted by Ohanafy which includes this Agreement and an initial selection of services and features to be included in the Ohanafy Services provided under this Agreement.

Platform means all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Ohanafy in providing the Ohanafy Services.

Purchased Services means Services that Client purchases under an Order Form.

Services means the products and services that are ordered by Client under an Order Form or provided to Client free of charge (as applicable), and made available online by Ohanafy, including associated Ohanafy offline or mobile components, as described in the Documentation. Services exclude Content and Non-Ohanafy Applications.

SOW means the online form(s) submitted by Client from time to time and accepted by Ohanafy which sets forth additional services and features to be added to the Ohanafy Services provided under this Agreement.

2. OHANAFY SERVICES

2.1 Provision of Services. Subject to Client’s compliance with the terms and conditions of this Agreement, Ohanafy will use commercially reasonable efforts to make the Hosted Service and the Documentation available to the Client and its Authorized Users via the Platform. On or as soon as reasonably practicable after the Effective Date, Ohanafy will provide to Client the necessary passwords, network links, and/or other relevant procedures necessary to allow Client and its Authorized Users to access the Ohanafy Services. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Ohanafy Services, and will notify Ohanafy promptly of any such unauthorized use. Ohanafy reserves the right to update and modify the Hosted Service (in whole or in part) at any time, provided that Ohanafy will not materially reduce the functionality of the Ohanafy Services. Ohanafy may provide the Ohanafy Services directly, or indirectly using third-party contractors, vendors, or service providers. Ohanafy shall be responsible for the performance of Ohanafy Services provided by any such third-party contractors, vendors, or service providers.

2.2 Base Pricing: The initial pricing tier and associated fees specified in the Order Form constitute the Client’s base price and establishes the minimum fee level for the duration of the contract term. Subsequent renewals or extensions will not reduce the Client’s fees below this base price, regardless of changes in usage, service tiers, or other factors, unless mutually agreed upon in writing by both Parties. Notwithstanding any reference to “unlimited users” in this Agreement or related materials, Customer’s license to access the Platform under a volume-based pricing model shall include a number of User licenses equal to the Annual Contract Value divided by $600, rounded down to the nearest whole User. Customer may purchase additional User licenses at a rate of $600 per User per year. Ohanafy reserves the right to enforce compliance with this allocation, and Customer agrees not to exceed the authorized number of Users without entering into an amendment or addendum to this Agreement.

2.3 Support. Subject to the terms and conditions of this Agreement, Ohanafy will use commercially reasonable efforts to provide Client with technical support in connection with its use of the Ohanafy Services and to maintain and from time to time provide updates to the Hosted Service.

2.4 Professional Services. Where the Parties have agreed to Ohanafy’s provision of any professional services, the details of such professional services will be set out in an Order Form and/or SOW. Such Order Form or SOW, as applicable, will include: (a) a description of such professional services; (b) the schedule for the performance of such professional services; and (c) the Fees applicable for the performance of such professional services. Each Order Form or SOW, as applicable, will incorporate the terms and conditions of this Agreement.

2.5 Limitations. Ohanafy will not be responsible or liable for any failure in the Ohanafy Services resulting from or attributable to (a) usage in excess of the usage for which Client has ordered pursuant to an applicable Order Form and/or SOW, (b) Client’s failure to use or access the Ohanafy Services in accordance with the Documentation or Ohanafy’s requirements, (c) failures in any telecommunications, computer network or other service or equipment that are not within Ohanafy’s reasonable control, (d) Client's hardware, products, services, negligence, acts or omissions, or (e) unauthorized access, breach of firewalls or other hacking by third parties, except to the extent such access, breach or hacking is caused by Ohanafy’s negligence or willful misconduct.

3. PROPRIETARY RIGHTS

3.1 Ohanafy Services. Subject to the terms and conditions of this Agreement, Ohanafy grants to Client a non-exclusive, non-transferable (except as permitted under Section 12.6 (Assignment) license during the Term (as defined below), solely for Client’s internal business purposes and in accordance with the limitations (if any) set forth in the Order Form and/or SOW(s), (a) to access and use the Ohanafy Services in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Client’s use of the Ohanafy Services. Client may permit any Authorized Users to access and use the features and functions of the Ohanafy Services as contemplated by this Agreement.

3.2 Retained Rights. Except for the limited rights and licenses expressly granted to Client hereunder, no other license or rights are granted, no other use is permitted, and Ohanafy (and its licensors) shall retain all rights, title, and interests (including all intellectual property and proprietary rights) in and to the Ohanafy Services.

3.3 Restrictions. Except as expressly permitted in this Agreement, the Client shall not, and shall not allow any Authorized User or third party to (a) access or use the Ohanafy Services to create any service, software, or product that is competitive with the Ohanafy Services, provided that the foregoing does not prohibit independent development of similar functionality by Client or third parties; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Ohanafy Services, or the underlying ideas, algorithms or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, sell, resell, loan, distribute, time-share, or allow the use of the Ohanafy Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, distribute, manufacture, adapt, alter, create derivative works of, translate, localize, port or otherwise modify any aspect of the Ohanafy Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction;(f) interfere in any manner with the operation of the Ohanafy Services or the hardware and network used to operate the Ohanafy Services; or (g) otherwise use the Ohanafy Services in any manner that exceeds the scope of use permitted under Section 3.1 (Ohanafy Services) or in a manner inconsistent with applicable law, the Documentation, or this Agreement. Any of the foregoing acts committed by Client shall trigger the immediate termination of all licenses granted hereunder and may result in legal action being taken against Client by Ohanafy.

3.4 Operating Data. Ohanafy shall own all rights, title, and interest to, and may use without restriction any data produced by the Ohanafy Services in connection to the Client’s use of the Ohanafy Services, provided any such data may only be shared in aggregated and anonymized form. Ohanafy shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Ohanafy Services and related systems and technologies (including, without limitation, information concerning Client Materials and data derived therefrom), and Ohanafy will be free (during and after the Term) to (i) use such information and data to improve and enhance the Ohanafy Services and for other development, diagnostic and corrective purposes in connection with the Ohanafy Services and other Ohanafy offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

3.5 Feedback. Client hereby grants to Ohanafy a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate into the Ohanafy Services any suggestions, enhancement requests, recommendations or other feedback provided by Client, including Authorized Users, relating to the Ohanafy Services. Ohanafy will not identify Client as the source of any such feedback.

3.6 Open Source Software. Certain items of software may be provided to Client with the Ohanafy Services and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (Ohanafy Services) or 9 (Indemnification). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Client’s rights under, or grants Client rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Ohanafy makes such Open Source Software, and Ohanafy’s modifications to that Open Source Software, available by written request at the notice address specified below.

4. USE OF SERVICES AND CONTENT 

4.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Client agrees that the Purchased Services provided in the applicable Order Form comprise the following breakdown: 25% for core platform, 25% for document generation, 25% for standard support, and 25% for integrations. Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Ohanafy regarding future functionality or features.

4.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Client exceeds a contractual usage limit, Ohanafy may work with Client to seek to reduce Client’s usage so that it conforms to that limit. If, notwithstanding Ohanafy’s efforts, Client is unable or unwilling to abide by a contractual usage limit, Client will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Ohanafy’s request, and/or pay any invoice for excess usage. 

4.3 Client Responsibilities. Client will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Client Data, the means by which Client acquired Client Data, Client’s use of Client Data with the Services, and the interoperation of any Non-Ohanafy Applications with which Client uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Ohanafy promptly of any such unauthorized access or use and (d) comply with terms of service of any Non-Ohanafy Applications with which Client uses Services or Content. Any use of the Services in breach of the foregoing by Client or Users that in Ohanafy’s judgment threatens the security, integrity or availability of Ohanafy’s services, may result in Ohanafy’s immediate suspension of the Services, however Ohanafy will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension. 

4.4 Usage Restrictions. Client will (a) not allow login sharing, sharing of user credentials, shared logins, or passwords (b) make any Service or Content available to anyone other than Client or Users, or use any Service or Content for the benefit of anyone other than Client or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (c) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (d) use a Service or Non-Ohanafy Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (e) use a Service or Non-Ohanafy Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of Ohanafy intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Client's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation.

4.5 Removal of Content and Non-Ohanafy Applications. If Client receives notice, including from Ohanafy, that Content or a Non-Ohanafy Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, Client will promptly do so. If Client does not take required action, including deleting any Content Client may have downloaded from the Services, in accordance with the above, or if in Ohanafy’s judgment continued violation is likely to reoccur, Ohanafy may disable the applicable Content, Service and/or Non-Ohanafy Application. If requested by Ohanafy, Client shall confirm deletion and discontinuance of use of such Content and/or Non-Ohanafy Application in writing and Ohanafy shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Ohanafy is required by any third-party rights holder to remove Content, or receives information that Content provided to Client may violate applicable law or third-party rights, Ohanafy may discontinue Client’s access to Content through the Services.

5. CLIENT OBLIGATIONS

5.1 Client Material. Client is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Client Material. Client will obtain all third-party licenses, consents and permissions needed for Ohanafy to use the Client Material to provide the Ohanafy Services. Without limiting the foregoing, Client will be solely responsible for obtaining from third parties all necessary rights for Ohanafy to use the Client Material submitted by or on behalf of Clients for the purposes set forth in this Agreement. Client grants Ohanafy a non-exclusive, worldwide, royalty-free and fully paid license during the Term (a) to use the Client Material as necessary for purposes of providing and improving the Ohanafy Services, (b) to use the Client trademarks, service marks, and logos as required to provide the Ohanafy Services, and (c) to use the Client Material in an aggregated and anonymized form to: (i) improve the Ohanafy Services and Ohanafy’s related products and services; (ii) provide analytics and benchmarking services; and (iii) generate and disclose statistics regarding use of the Ohanafy Services, provided, however, that no Client-only statistics will be disclosed to third parties without Client’s consent. The Client Material, and all worldwide intellectual property rights therein, is the exclusive property of Client. All rights in and to the Client Material not expressly granted to Ohanafy in this Agreement are reserved by Client.

5.2 Client Responsibility for Data and Security. Client and its Authorized Users will have access to the Client Material and will be responsible for all changes to and/or deletions of Client Material and the security of all passwords required in order to access the Ohanafy Services. Client will have the ability to export Client Material out of Ohanafy and is encouraged to make its own back-ups of the Client Material. Client will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Material.

5.3 Reporting. Client shall accurately complete and submit to Ohanafy a copy of their federal tax forms showing Client’s production and sales volumes for each calendar year during the Term. Client shall submit such forms within fourteen (14) days of the end of each calendar year. Client shall not be required to submit such forms for the first year of the Term.

6. CONFIDENTIALITY

6.1 Confidential Information. The Parties understand that in the course of performing under this Agreement, each Party may disclose business, technical and financial information, including, in the case of Ohanafy, features, functionality, and performance of the Ohanafy Service and, in the case of Client, recipe, sales, and Client information. All such information shall be deemed “Confidential Information” if designated in writing as confidential, proprietary, or similar terms, or is disclosed in a manner that a reasonable person would understand the confidentiality of the information disclosed. All Confidential Information is the exclusive property of the Party disclosing such information (the “Disclosing Party”) and its licensors and no right or license to the Party receiving such information (“the Receiving Party”) to use the Confidential Information is implied in such disclosure. Confidential Information does not include information that (a) is rightfully known to the Receiving Party without restriction on disclosure prior to disclosure by the Disclosing Party, (b) is or becomes known to the general public, through no act or omission on the part of the Receiving Party, (c) is disclosed to the Receiving Party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by employees or contractors of the Receiving Party without reliance on or access to the Confidential Information.

6.2 Protection of Confidential Information. Except as expressly and unambiguously allowed herein, the Receiving Party will hold in confidence and not use or disclose to any third party any Confidential Information and shall similarly bind its employees, consultants, and independent contractors. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Client) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. Upon the expiration or termination of this Agreement, the Receiving Party will return, or at the Disclosing Party’s option destroy, all of the Confidential Information (including any copies) and the Receiving Party will make no further use of such materials. The Receiving Party will, upon request, certify to the Disclosing Party its compliance with the preceding sentence.

6.3 Intellectual Property. Each Party grants the other a limited, revocable license to access and use its respective technology for the sole purpose of carrying out the Services described in this Agreement. This license may not be assigned or transferred to anyone else, and neither Client nor Ohanafy may resell the other’s products or services, except as set forth herein. Other than this limited license, no Party grants the other any other rights whatsoever to its intellectual property. All Client feedback and suggestions concerning Ohanafy’s Services shall become the exclusive property of Ohanafy and Client shall not have any rights to them. Each Party agrees not to reverse engineer, decompile, disassemble, or “hack” the other’s technology or intellectual property.

6.4 Permitted Disclosure. If required by law, or by the order of a court or similar judicial or administrative body, or to enforce its rights under this Agreement, the Receiving Party may disclose Confidential Information of the Disclosing Party provided the Receiving Party gives adequate prior notice of such disclosure to the Disclosing Party to permit the Disclosing Party to intervene and to request protective orders or other confidential treatment, therefore. Nothing in this Agreement prohibits Ohanafy from including the identity of the Client on a Client list that is circulated with any marketing or promotional materials. In the event Ohanafy desires to use the Client’s name in any other manner, it shall only do so with the Client’s written consent.

7. PAYMENTS

7.1 Fees. In consideration for the access rights granted to Client and any services performed by Ohanafy under this Agreement, Client agrees to pay Ohanafy all fees and expenses in the amounts and at the times specified in the applicable Order Form and SOW(s) or as otherwise provided in this Agreement (the “Fees”). Ohanafy has the right at all times to modify the Fees up to seven percent (7%) upon written notice to Client at least thirty (30) days prior to the end of the contract term.

7.2 Payment Terms. Unless specified otherwise or subject to a good faith dispute, all Fees shall be paid in full (without deduction, set-off, or counterclaim), after the Client’s receipt of the invoice, in U.S. dollars, via Ohanafy’s payment portal. Client shall provide authorized payment information through either credit card or ACH to Ohanafy, and its third-party service providers, via such payment portal upon execution of this Agreement and hereby authorizes Ohanafy, and its third-party service providers, to automatically charge its designated payment method and payment frequency for the Fees without any further authorization from Client. Client acknowledges and agrees that the foregoing authorization will remain in effect for the duration of the Term. Client may update such payment information via the payment portal or by providing written notice to Ohanafy. Client agrees to provide complete and accurate billing and contact information promptly following execution of this Agreement. Client agrees to update such payment information within thirty (30) days of any change. If the payment information provided to Ohanafy is false or fraudulent, Ohanafy reserves all legal remedies, including, without limitation, the right to terminate this Agreement and all licenses granted herein.

7.3 Late Payments. If any undisputed payment is not received by Ohanafy after thirty (30) days from the original payment due date, then Ohanafy may begin to accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month or the maximum amount permitted by law, whichever is less, plus all expenses of collection, at its discretion. Client agrees that Ohanafy may charge such unpaid Fees and interest charges to Client’s designated payment method or otherwise bill Client for such unpaid Fees and interest charges. Ohanafy reserves the right (in addition to any other rights or remedies Ohanafy may have) to discontinue the Ohanafy Services and suspend all Authorized Users’ and Client’s access to the Ohanafy Services if any Fees are beyond thirty (30) days’ overdue. Ohanafy will provide a written warning of possible stoppages in advance of all product discontinuations, email to suffice.

7.4 Disputes. In the event that Client, for any reason, objects to the contents of any invoice, it shall notify Ohanafy of the disputed amounts within fourteen (14) days after the Client’s receipt of the invoice. Any invoice not disputed within such window shall be deemed accepted by Client. All amounts not disputed on any invoice shall be due upon the standard due date as set forth in Section 7.2 (Payment Terms). The Parties agree to work in good faith to resolve any dispute regarding Fees.

7.5 Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Client will be responsible for payment of all such taxes (other than taxes based on Ohanafy’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees or the provision of the Ohanafy Services to Client. Client will make all payments of Fees to Ohanafy free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Ohanafy will be Client’s sole responsibility, and Client will, upon request, provide Ohanafy with official receipts issued by the appropriate taxing authority, or such other evidence as the Ohanafy may reasonably request, to establish that such taxes have been paid.

8. LIMITED WARRANTY AND DISCLAIMERS

8.1 General. Each Party represents and warrants that: (a) it is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions, and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

8.2 Ohanafy Warranty. Ohanafy warrants to the Client that (i) the Ohanafy Services will be provided in a professional and workmanlike manner; and (ii) the Ohanafy Services will perform in accordance with the Documentation in all material respects. Provided that Client notifies Ohanafy in writing of any breach of this Section 8.2 within thirty (30) days following such breach, specifying the breach in reasonable detail, Ohanafy will, as Client’s sole and exclusive remedy, remedy such breach or, at Ohanafy’s option, refund the Fees paid by Client for the Ohanafy Services which gave rise to the breach. Ohanafy further warrants to Client that the Ohanafy Services will operate in accordance with this Agreement or as specified in the Documentation during the Term, provided that such warranty will not apply to the extent such failures arise, in whole or in part, from (a) any use of the Ohanafy Services not in accordance with this Agreement or as specified in the Documentation; (b) any use of the Ohanafy Services in combination with other products, equipment, software or data not supplied by Ohanafy; or (c) any modification of the Ohanafy Services by any person other than Ohanafy or its authorized agents. Provided that Client notifies Ohanafy in writing of any breach of the foregoing warranty during the Term, Ohanafy will, as Client’s sole and exclusive remedy, provide the support described in Section 2.2 (Support).

8.3 Client Warranty. Client represents and warrants that any Client Material will not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage Ohanafy’s system or data; and (e) otherwise violate the rights of a third party. Ohanafy is not obligated to back up any Client Material; Client is solely responsible for creating backup copies of any Client Material at Client’s sole cost and expense. Client agrees that any use of the Ohanafy Service contrary to or in violation of the representations and warranties of Client in this Section 8.3 (Client Warranty) constitutes unauthorized and improper use of the Ohanafy Services in violation of Section 3.3 (Restrictions).

8.4 Disclaimers. THE LIMITED WARRANTY SET FORTH IN SECTION 8.2 (OHANAFY WARRANTY) IS MADE FOR THE BENEFIT OF CLIENT ONLY. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2 (OHANAFY WARRANTY), AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE OHANAFY SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS,” AND OHANAFY DOES NOT WARRANT THAT THE OHANAFY SERVICES WILL MEET CLIENTS' REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, OHANAFY HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, ORAL, WRITTEN, OR STATUTORY WITH RESPECT TO THE OHANAFY SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, SATISFACTORY QUALITY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

9. INDEMNIFICATION

9.1 By Client. Client agrees to defend, indemnify and hold harmless at its own expense Ohanafy, its officers, directors, shareholders, employees, agents, affiliates, parent and subsidiary companies against any and all costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in a settlement accepted by Ohanafy or by a court, arising from any third-party claim or allegation relating to or arising out of (a) Client’s use of the Ohanafy Services in a manner not permitted by this Agreement or the Documentation, in combination with other products, equipment, software or data not supplied by Ohanafy, or any modification of the Ohanafy Services by any person other than Ohanafy or its authorized agents; (b) the Client Materials; or (c) Client’s breach of Section 8.3 (Client Warranty).

9.2 By Ohanafy. Ohanafy agrees to defend, indemnify and hold harmless at its own expense Client, its officers, directors, shareholders, employees, agents, affiliates, parent and subsidiary companies against any and all costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in a settlement accepted by Client or by a court, arising from any third-party claim or allegation relating to or arising out of (a) a claim that the Ohanafy Services infringe such third party’s patents, copyrights or trade secret rights under applicable laws of any jurisdiction within the United States of America. If any portion of the Ohanafy Services becomes, or in Ohanafy’s opinion is likely to become, the subject of a claim of infringement, Ohanafy may, at Ohanafy’s option: (a) procure for Client the right to continue using the Ohanafy Services; (b) replace the Ohanafy Services with non-infringing software or services which do not materially impair the functionality of the Ohanafy Services; (c) modify the Ohanafy Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any unused prepaid Fees for the remainder of the Term then in effect, and upon such termination, Client will immediately cease all use of the Ohanafy Services. This Section 9.2 states the sole and exclusive remedy of Client and the entire liability of Ohanafy, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

9.3 Exclusions. Notwithstanding anything to the contrary, Ohanafy shall have no liability or indemnification obligation hereunder with respect to any claim based upon (a) use of any Hosted Service in an application or environment or on a platform or with devices, products, equipment, software, or data for which it was not designed or contemplated; (b) modifications, alterations, combinations or enhancements of the Ohanafy Services not created by or on the behalf of Ohanafy; (c) any portion of the Ohanafy Service that is provided based on Client's specifications, requests, or unique requirements; (d) Client's continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement; (e) any intellectual property right in which Client or any of its affiliates has an interest; or (f) any use of the Ohanafy Services not in accordance with this Agreement or as specified in the Documentation.

9.4 Procedures. The indemnifying Party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the Party to be indemnified provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (b) the indemnifying Party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying Party shall not make any settlement that requires a materially adverse act or admission by the indemnified Party without the indemnified Party's written consent (such consent not to be unreasonably delayed, conditioned, or withheld). The indemnifying Party shall not be liable for any settlement made without its prior written consent.

10. LIMITATION OF LIABILITY

10.1 EXCLUSION OF DAMAGES. EXCEPT FOR ANY BREACH OF SECTION 6 (CONFIDENTIALITY) OR INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9 (COLLECTIVELY THE “CARVEOUTS”), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, COST OF DELAY, BUSINESS INTERRUPTION, OR PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; OR (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES.

10.2 LIABILITY CAP. EXCEPT FOR THE CARVEOUTS, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID TO OHANAFY BY Client HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTHING IN THIS SECTION 10.2 WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF SUCH PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.

10.3 BASIS OF THE BARGAIN. The Parties agree that the limitations of liability set forth in this Section 10 (Limitation of Liability) will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The Parties acknowledge that all prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

11. TERM AND TERMINATION

11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. 

11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Ohanafy’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

11.3 Termination. A party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.

11.4 Effects of Termination. Upon any expiration or termination of any Order Form, SOW, or this Agreement, all corresponding rights, obligations, and licenses of the Parties granted therein shall cease, except that (a) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (b) promptly after the effective date of termination or expiration of this Agreement, each Party will comply with the obligations to return all Confidential Information of the other Party, as set forth in Section 6 (Confidentiality); (c) any amounts owed to Ohanafy under the applicable Agreement, Order Form, or SOW will accelerate and become immediately due and payable; and (d) the provisions of Sections 1 (Definitions), 3.2 (Retained Rights), 6 (Confidentiality), 8 (Limited Warranty and Disclaimers), 9 (Indemnification), 10 (Limitation of Liability), 12 (General Provisions) and this Section 11.3 shall survive.

12. GENERAL PROVISIONS

12.1 Entire Agreement. This Agreement (including all Order Forms and SOWs) constitutes the final, complete, and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings, or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms included in any Order Form or SOW shall govern with respect to the services set forth on such Order Form or SOW only, and this Agreement shall otherwise control. No terms or conditions included in any Client documents, such as invoices or purchase orders, shall be of any effect. This Agreement may be executed in one or more counterparts, each of which shall be an original, but taken together constituting one and the same instrument. Execution of a facsimile/electronic copy shall have the same force and effect as execution of an original, and a facsimile/electronic signature shall be deemed an original and valid signature. No modification, amendment, change, consent, or waiver under this Agreement will be effective unless in writing and signed by each Party. The failure of either Party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise or waiver of one right or remedy will not be deemed a waiver of any other right or remedy, or of such right or remedy on any other occasion. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be modified or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlled in all respects.

12.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, USA, without regard to its conflicts of law provisions. The exclusive jurisdiction and venue for actions or disputes related to this Agreement will be the state or federal courts located in North Carolina, and both Parties consent to the jurisdiction of such courts with respect to any such dispute or action. In any action or proceeding to enforce this Agreement, the prevailing Party will be entitled to recover from the other Party its costs and expenses (including reasonable attorneys' fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

12.3 Compliance with Laws. Client will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its license and use of the Ohanafy Services. Client agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Ohanafy, or any products utilizing such data, in violation of the United States export laws or regulations.

12.4 Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each Party agrees that, in the event of any breach or threatened breach of Sections 3.2 (Retained Rights) or 6 (Confidentiality), the non-breaching Party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching Party shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.

12.5 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected Party shall give written notice thereof to the other Party and its non-performance shall be excused for the period of delay or inability to perform due to such occurrence.

12.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either Party without the other Party's written consent, not to be unreasonably withheld. However, without consent, either Party may assign this Agreement to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation, or otherwise). For avoidance of doubt, if one of the Parties is purchased, acquired, or otherwise merged with another company, this Agreement would remain intact. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the Parties hereto.

12.7 Independent Contractors. The Parties shall be independent contractors under this Agreement, and nothing herein will constitute either Party as the employer, employee, agent, or representative of the other Party, or both parties as joint venturers or partners for any purpose. Neither Party will not have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.

12.8 Notices. All notices required or permitted under this Agreement must be delivered in writing, if to Ohanafy, by first-class mail (postage prepaid and return receipt requested) at the following address: 1838 Sir Tyler Drive, Suite 200, Wilmington, NC 28405, and if to Client by emailing the contact email address provided by Client on the Order Form or as updated in the Client’s account. Ohanafy may change its email address and/or address for receipt of notice by giving notice of such change to Client.

Ohanafy-MSA, January 6, 2025