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Benevate Inc. (dba Neighborly Software) SAAS Services Order Form
<br />4.3 The parties acknowledge that appropriation of fiords is a
<br />governmental function which the Customer cannot contractually
<br />commit itself in advance to perform and this Agreement does not
<br />constitute such commitment. The Customer's obligation to pay
<br />under this Agreement is contingent upon Customer's annual
<br />appropriation of funds for such purpose, and the non -appropriation
<br />of funding for such purpose in any fiscal year shall immediately
<br />relieve both parties of their respective obligations hereunder, as of
<br />the last day for which funds have been appropriated. The
<br />Customer shall endeavor, upon determining that sufficient funds
<br />will not be budgeted and appropriated in any fiscal year under this
<br />Agreement, to provide prompt written notice within 30 days of
<br />such event.
<br />5. TERM AND TERMINATION
<br />5.1 Subject to earlier termination as provided below, this
<br />Agreement is for the Initial Service Term as specified in the Order
<br />Form, and may only be renewed for additional periods upon
<br />written approval of Customer (collectively, the "Term").
<br />5.2 In addition to any other remedies it may have, either party
<br />may also terminate this Agreement upon thirty (30) days' notice
<br />(or without notice in the case of nonpayment), if the other party
<br />materially breaches any of the terms or conditions of this
<br />Agreement. Customer will pay in full for the Services up to and
<br />including the last day on which the Services are provided.
<br />5.3 Upon the termination of this Agreement Company shall,
<br />within five (5) business day following the termination of this
<br />Agreement, provide Customer, without charge and without any
<br />conditions or contingencies whatsoever (including but not limited
<br />to the payment of any fees due to Service Provider), with a final
<br />extract of the Customer Data in electronic format. Further,
<br />Company shall certify to Customer the destruction of any
<br />Customer Data within the possession or control of Company, but
<br />such destruction shall occur only after the Customer Data has been
<br />returned to Customer. This Section shall survive the termination
<br />of this Agreement.
<br />6. WARRANTY AND DISCLAIMER
<br />Company shall use reasonable efforts consistent with
<br />prevailing industry standards to maintain the Services in a manner
<br />which minimizes errors and interruptions in the Services and shall
<br />perform the Implementation Services in a professional and
<br />workmanlike manner. Services may be temporarily unavailable
<br />for scheduled maintenance or for unscheduled emergency
<br />maintenance, either by Company or by third -party providers, or
<br />because of other causes beyond Company's reasonable control,
<br />but Company shall use reasonable efforts to provide advance
<br />notice in writing or by e-mail of any scheduled service disruption.
<br />HOWEVER, COMPANY DOES NOT WARRANT THAT THE
<br />SERVICES WILL BE UNINTERRUPTED OR ERROR FREE;
<br />NOR DOES IT MAKE ANY WARRANTY AS TO THE
<br />RESULTS THAT MAY BE OBTAINED FROM USE OF THE
<br />SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
<br />SECTION, THE SERVICES AND IMPLEMENTATION
<br />SERVICES ARE PROVIDED "AS IS" AND COMPANY
<br />DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
<br />INCLUDING, BUT NOT LIMITED TO, IMPLIED
<br />WARRANTIES OF MERCHANTABILITY AND FITNESS
<br />FOR A PARTICULAR PURPOSE.
<br />7. INDEMNITY
<br />As permitted by law, Company shall hold Customer
<br />harmless from liability to third parties resulting from infringement
<br />by the Service of any United States patent or any copyright or
<br />misappropriation of any trade secret, provided Company is
<br />promptly notified of any and all threats, claims and proceedings
<br />related thereto and given reasonable assistance and the opportunity
<br />to assume sole control over defense and settlement; Company will
<br />not be responsible for any settlement it does not approve in
<br />writing.
<br />8. LIMITATION OF LIABILITY
<br />NOTWITHSTANDING ANYTHING TO THE
<br />CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON
<br />OR PROPERTY DAMAGE, COMPANY AND ITS SUPPLIERS
<br />(INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT
<br />AND TECHNOLOGY SUPPLIERS), OFFICERS,
<br />AFFILIATES, REPRESENTATIVES, CONTRACTORS AND
<br />EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE
<br />WITH RESPECT TO ANY SUBJECT MATTER OF THIS
<br />AGREEMENT OR TERMS AND CONDITIONS RELATED
<br />THERETO UNDER ANY CONTRACT, NEGLIGENCE,
<br />STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR
<br />OR INTERRUPTION OF USE OR FOR LOSS OR
<br />INACCURACY OR CORRUPTION OF DATA OR COST OF
<br />PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR
<br />TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY
<br />INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
<br />CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER
<br />BEYOND COMPANY'S REASONABLE CONTROL; OR (D)
<br />FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS
<br />ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE
<br />SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS
<br />PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY,
<br />IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN
<br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
<br />9. INSURANCE
<br />9.1 During the course of performing services under this
<br />Agreement, Company agrees to maintain the following levels of
<br />insurance: (a) Commercial General Liability of at least
<br />$2,000,000; (b) Professional Liability (E&O) of at least
<br />$5,000,000; (c) Cyber Liability of at least $5,000,000; (d)
<br />Commercial Auto Insurance for Hire and Non -owned vehicles of
<br />at least $1,000,000; and (e) Workers Compensation complying
<br />with applicable statutory requirements. Company will add
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