2019 Contract Standard Terms and Conditions

KidKare® Access Terms and Conditions

This KidKare Access Terms and Conditions (the “Agreement”), entered into as of the date the Customer first places an order for services (the “Effective Date”), is by and between Minute Menu Systems LLC, a Texas limited liability company dba KidKare (”KidKare”) and Customer as indicated in the applicable access request form (“Access Form”). Customer and Company may each be referred to individually as a “Party” and collectively as the “Parties.”

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions.

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Product and Services.

“Access Fee” means the fee for using the software as specified in the Access Form.

“Active” means any home provider or center that was set to the status of ‘Active’, associated with a manual claim, or tracked meal attendance to support a claim in the software at any time during the billing period.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.

“Ancillary Product” means any computer programs, databases and related user documentation, and all refinements and improvements thereon, used or usable in connection with the Product, developed by or for Company or as to which Company has the right to grant licenses or sublicenses, that add distinct functionality to the Product and that are marketed by Company as a product separate and independent from the Product.

“Authorized User” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Product and Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Product and Services has been purchased hereunder.

“Billable Center” means a Center or other data entity displayed in the Product under the “Centers List” associated with the Customer’s account, with such Center or other data entity displaying any status except “Demo” or “Deleted.”

“CACFP” means the United States Department of Agriculture’s Child and Adult Care Food Program.

“CACFP Centers” means Centers participating in the CACFP.

“CACFP Claims” means monthly claims by CACFP Centers for reimbursement of meal costs under the CACFP. “Claims” includes “claimable” and “claimed”.

“Center” means any child or day care center, facility, site, or program that participates in the CACFP, Including: a child care center, at-risk afterschool care center or site, an adult day care center, an emergency shelter, or an outside-school-hours care center or site.

“Center CACFP Regulations” means the body of regulations promulgated by agencies of the federal government and by state agencies to implement and control the CACFP as such regulations pertain to CACFP Centers.

“Child Care Center” means any public or private nonprofit institution or facility (except day care homes), or any for-profit center, as defined in this section, that is licensed or approved to provide nonresidential child care services to enrolled children, primarily of preschool age, including but not limited to day care centers, settlement houses, neighborhood centers, Head Start centers, and organizations providing day care services for children with disabilities. Child care centers may participate in the Program as or under the auspices of a sponsoring organization.

“Child Care Facility” means a licensed or approved child care center, at-risk afterschool care center or site, day care home, emergency shelter, or outside-school-hours care center or site under the auspices of a sponsoring organization.

“Company Materials” means the Product, Services, Specifications, and Company Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Company or any Subcontractor in connection with the Product and Services or otherwise comprise or relate to the Product, Services, or Company Systems. For the avoidance of doubt, Company Materials include Resultant Data and any information, data, or other content derived from Company’s monitoring of Customer’s access to or use of the Product and Services, but do not include Customer Data.

“Company Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Company or any Subcontractor.

“Company Systems” means the information technology infrastructure used by or on behalf of Company in performing the Services or maintaining the Product, including all computers, software, hardware, databases, electronic systems, and networks, whether operated directly by Company or through the use of third-party services.

“Custom Development Rate” means the hourly rate for custom development as specified in the Access Form.

“Customer Data” means information, data, and other content, in any form or medium that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Product and Services. For the avoidance of doubt, Customer Data does not include Resultant Data, any data that does not or cannot be used to identify Customer, or any other information reflecting the access or use of the Product and Services by or on behalf of Customer or any Authorized User. “Customer Paid Enhancements” means modifications to the Product that are not required to conform to Center CACFP
Regulations, but that would be of specific use to Customer, including, but not limited to changes to user interface, additions to support file export formats, and new functions to support state and federal regulatory programs distinct from the Center CACFP Regulations.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

“Home Provider” means facilities that provide care under a home license rather than a Center but are referred to as Center under this Agreement and only differ from Centers in pricing method.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Percent of Reimbursable Meal Fee” means the fee specified in the Access Form based on the total federal reimbursement amounts multiplied by the rate.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or device or by or from which a specific individual or device may be identified, contacted, or located.

“Process” means to take any action or perform any operation or set of operations that the Product or Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or
destroy. “Processing” and “Processed” have correlative meanings.

“Product” means Minute Menu CX and Minute Menu HX software, comprised of (i) access to Company’s internet-based database software named Minute Menu (CX or HX), (ii) Company’s computer software designed to create the required interface between Customer’s computer systems and Minute Menu (CX or HX), and (iii) access to KidKare.com meal and attendance functionality (iv) access to “eForms” online enrollment and (v) access to the site monitoring tool. The term “Product” shall include all updates to existing features, Regulatory Software Updates, upgrades or modifications of the current Product and support services documentation and specifications but shall not include Ancillary Products or any version of the Product that includes new features or capabilities that Company, in its sole discretion, deems constitute a separate product because of differences in function or features.

“Regulatory Software Update” means updates developed by Company and integrated into the Product to maintain material compliance with Center CACFP Regulations.

“Representatives” means, with respect to a party, that party’s employees, officers, directors, agents, independent contractors, service providers, and legal advisors.

“Resultant Data” means aggregated and anonymized data used to compile statistical and performance information related to the provision and operation of the Product or Services. Resultant Data may be derived from processing Customer Data and Customer’s interactions with the services.

“Services” means the software-as-a-service offering described in the Access Form that accompany the use of the Product.

“Specifications” means the specifications for the Product and Services as provided by Company to Customer.

“Sponsor” means a legal entity, which acts in a supervisory capacity to one or more Centers with respect to those Centers’ participation in the CACFP. Sponsoring organization includes a public or nonprofit private organization that is responsible for the administration of the food program.

“Support Fee” means the hourly fee specified as such in the Access Form for support services.

“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Product and Services that are not proprietary to Company.

“Training Fee” means the hourly fee specified in the Access Form for remote training services.

2. Services.

2.1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Company hereby grants Customer and its Authorized Users a non-exclusive, non-transferable (except in compliance with Section 16.2) right to (i) access and use the Services and Product during the Term, solely for use by Authorized Users on an unlimited number of computers (both in-office and off-site, and whether directly associated with Customer or with a computer associated with a Center for which Customer is a Sponsor or authorized site) and (ii) download, install, and use applicable downloadable software on devices owned or controlled by Customer strictly in accordance with this agreement or applicable documentation related to the downloadable software. Such use is limited to Customer’s internal use. Company shall provide to Customer the Access Credentials within a reasonable time following the Effective Date.

2.2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

(a) Company has and will retain sole control over the operation, provision, maintenance, and management of the Company Materials; and

(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Company Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to Company; (ii) results obtained from any use of the Services, Product, or Company Materials; and (iii) conclusions, decisions, or actions based on such use.

2.3. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, the Product, Company Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Product, the Company Materials, and the Third-Party Materials are and will remain with Company and the respective rights holders in the Third-Party Materials.

2.4. Changes. Company reserves the right, in its sole discretion, to make any changes to the Services, the Product, and Company Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company’s services to its customers; (ii) the competitive strength of or market for Company’s services; or (iii) the Services’ or the Product’s cost efficiency or performance; or (b) to comply with applicable Law.

2.5. Changes due to Regulatory Software Updates Provided by Company. Company, in its sole discretion, may provide Regulatory Software updates the Product to comply with changes to CACFP Regulations. Such Regulatory Software Updates are installed on Company’s servers and may not be readily apparent to the Customer. Company shall have no responsibility to assure and makes no warranty that Regulatory Software Updates come out on a timely basis to comply with all changes in CACFP Regulations and procedures in all jurisdictions. Responsibility for such compliance with CACFP Regulations and procedures shall be the
Customer’s sole responsibility.

2.6. Changes due to Regulatory Software Updates Requested by Customer. From time to time, Customer may have the need for a Regulatory Software Update that Company has not yet determined essential to produce in the ordinary course of business. In the event that Customer requires such a Regulatory Software Update, Company will provide such a Regulatory Software Update on written request based in accordance with terms governing a Customer Paid Enhancement.

2.7. Customer Paid Enhancements. From time to time, Customer may request Customer Paid Enhancements to the software. Customer Paid Enhancement requests must be in writing and Company will provide estimated costs, delivery estimated timing, and statements of work or Company may refuse the requested Customer Paid Enhancement at its sole discretion.

2.8. Ownership of Regulatory Software Updates and Customer Paid Enhancements. Any Regulatory Software Update or Customer Paid Enhancement provided by Company for the Product shall be considered part of the Product and subject to the terms and conditions of this Agreement, with all intellectual property ownership and related rights retained by Company.

2.9. Ancillary Products. Ancillary Products, such as Kids Pro, KidKare Accounting, payment processing, and features to be developed, are not included in this Agreement but may be added to Product for a separate fee.

2.10. Limited Data Access License. At Customer’s request, Customer may purchase a limited license to the Services or the Product which allows Customer to access its previously-entered data, including reports and related analytical functions, for a period of one calendar year from the payment date of the Data Access Fee (the “Data Access Period”). No Customer Data less than 4 years old shall be archived or otherwise removed from Company Systems during an active Data Access Period. If at any time during the Data Access Period, Customer adds new data, processes CACFP Claims, or otherwise uses the Services or Product for
any purpose other than historical data retrieval, the Data Access Period shall be terminated, Customer’s account shall be re-activated, and Customer will be charged as an active licensee as described in this Agreement. Failure to renew the limited data access license prior to its expiration shall result in Customer’s loss of access to its data at the conclusion of the then current Data Access Period.

2.11. Service Level Upgrades. At any time after the Effective Date, Customer may pay the difference to upgrade the service level, and Customer will be billed at the new pricing level for each invoice generated after the receipt of the additional payment.

2.12. Subcontractors. Company may from time to time in its discretion engage third parties to perform services (each, a “Subcontractor”).

2.13. Suspension or Termination of Services or use of Product. Company may, directly or indirectly, and by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services, the Product, or Company Materials, without incurring any resulting obligation or liability, if: (a) Company receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Company to do so; or (b) Company believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services or Product beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated; or (iv) Customer or any Authorized User has intentionally manipulated center, provider or claim data with the intent of circumventing the terms of this agreement or avoiding the financial agreements herein. This Section 2.13 does not limit any of Company’s other rights or remedies, whether at law, in equity, or under this Agreement.

3. Use Restrictions.

3.1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services, the Product, or Company Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

(a) copy, modify, or create derivative works or improvements of the Services, the Product, or Company Materials;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services, the Product, or Company Materials to any Person, including on or in connection with the Internet or any time-sharing, service bureau, software-as-a-service, cloud, or other technology or service;

(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services, the Product, or Company Materials, in whole or in part;

(d) bypass or breach any security device or protection used by the Services, the Product, or Company Materials or access or use the Services, the Product, or Company Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;

(e) input, upload, transmit, or otherwise provide to or through the Services, the Product, or Company Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;

(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, the Product, Company Systems, or Company’s provision of services to any third party, in whole or in part;

(g) remove, delete, alter, or obscure any trademarks, Specifications, end user license agreement, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, the Product, or Company Materials, including any copy thereof;

(h) access or use the Services, the Product, or Company Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law;

(i) access or use the Services, the Product, or Company Materials for purposes of competitive analysis of the Services or Company Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage; or

(j) otherwise access or use the Services, the Product, or Company Materials beyond the scope of the authorization granted under this Section 3.1.

4. Customer Obligations.

4.1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services or Product are accessed or used which shall be amended by Company from time to time and posted on the KidKare website located at www.KidKare.com; (b) provide Company Personnel with such access to Customer’s premises and Customer Systems as is necessary for Company to perform the Services or administer the Product in accordance with the Specifications; and (c) provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with this Agreement.

4.2. Downloadable Updates. In the event Customer is using a downloadable portion of the services and Company, in its sole discretion, develops and provides downloadable software updates, which may include upgrades, bug fixes, patches, and/or other error corrections, Customer agrees that Customer shall promptly download and install all updates and acknowledges and agrees that the Services may not properly operate should Customer fail to do so. Customer further agrees that all Updates will be deemed part of the Services and be subject to all terms and conditions of this Agreement.

4.3. Effect of Customer Failure or Delay. Company is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.

4.4. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services, the Product, and Company Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b)
notify Company of any such actual or threatened activity.

5. Service Levels and Support.

5.1. Scheduled Downtime. Company will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services or Product between the hours of (12:00) a.m. and (6:00) a.m. Central Time; and (b) give Customer at least 24 hours prior notice of all scheduled outages of the Services or Product.

5.2. Service Support. The Services and use of the Product include Company’s standard customer support services at the support levels Customer purchases and as amended from time to time. Customer may purchase premium support services, additional support time, and audit support separately at Company’s then current hourly rates.

5.3. Training Support. Customer may request training classes from Company. All training will be provided by Company remotely (unless travel requested and paid by client) via a web-based interface and conference call at a time mutually acceptable to the parties. Customer training is subject to the Training Fee.

5.4. Customer Data Conversion Services. Customer may possess pre-existing data which is of use to or may be optimized by the Product. Customer may request Company to convert such data into a format compatible with the Product, and to the extent possible, Company will convert pre-existing data into data compatible with Product and import that data into the Product (a “Data Conversion”), for a fee specified in the Access Form (the “Data Conversion Fee”).

6. Data Storage.

6.1. Data Backup. The Services or use of the Product do not replace the need for Customer to maintain regular data backups or redundant data archives for customer stored data. COMPANY HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA stored locally.

6.2. Data Retention of Historical Data for Active Accounts. Company shall retain Customer’s historical data for a period of not less than four (4) years from the date of entry, unless otherwise deleted by Customer or at Customer’s express written request. Data that is older than four (4) years old may be removed or archived into long-term storage facilities at Company’s sole discretion. Customer agrees to pay storage and access fees if Customer requests that data is stored longer than 4 years.

6.3. Data Retention Following Termination. Upon termination of this Agreement, Customer’s access to the Services or the Product and to Customer Data accessed through the Services or the Product shall cease, except as otherwise specifically provided for in this Agreement. If Customer desires to retain access to Customer Data after termination, Customer may:

(a) Export the data using the “Export Data” function of the Product prior to the termination of the Agreement;

(b) Request a custom data extract from Company in which Customer’s data is exported into a specific format as specified by Customer. In this case, Company will provide Customer with an estimate for the requested data extraction which shall be the lesser of (a) the actual number of labor hours the extraction required or (b) the number of hours specified in the estimate, multiplied by the Custom Development Rate. If Customer elects to proceed with the extraction, then Customer agrees that it will pay in advance a fee computed by Company; or

(c) Purchase limited data access subject to the Data Access Fee.

7. Security.

7.1. Company Systems and Security Obligations. Company employs commercially reasonable efforts customary to the applicable industry standards to protect and secure all Customer Data. Company agrees to (a) maintain customary and reasonable safeguards and controls against the destruction, loss, or alteration of Customer Data; and (b) maintain customary and reasonable safeguards against unauthorized access to the Services, the Product, and Customer Data.

7.2. Data Breach Procedures. Company maintains a data breach plan and shall implement the procedures required under such data breach plan on the occurrence of a data breach. Company shall provide Customer timely notice of any breach of the confidentiality, protection and security of Customer Data of which Company becomes aware.

7.3. Customer Control and Responsibility. With the exception of information that Customer has submitted to Company, Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services or Product; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services, the Product, and Company Materials directly or indirectly by or through the Customer Systems or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

7.4. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services or the Product; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services or through the Product.

8. Fees and Payment.

8.1. Fees. Customer agrees to pay Company the then applicable and undisputed fees set forth in the Access Form (“Fees”) in accordance with this Section 8, including all monthly access fees and training, support, or audit fees.

8.2. Percent of Reimbursable Meals Fee. For each CACFP claimed meal entered in whole or in part in the software for a Billable Center, Customer hereby agrees to pay the percent of total federal reimbursement calculated using the software. The percent of reimbursable meal Fee will be charged based on the total federal reimbursement calculated for all processed claims or claim adjustments. If the federal reimbursement amount is not calculated but the center is active then a monthly usage fee of $99 will be assessed. Usage will be determined based on at the center’s status during the claim month where a claim was not calculated and will be assessed 60 days beyond the end of the relevant claim period.

8.3. Implementation Monthly Fees. During the onboarding of a new sponsor, the KidKare team will be training and helping the sponsor implement their providers and/or centers. The normal monthly access fee will be charged based on the number of locations specified on the access form. Centers fee will be $69/center until center claims are calculated

8.4. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.

8.5. Payment. Unless otherwise agreed to in writing, fees are calculated on a monthly basis and payments are due upon invoice receipt for the services consumed in the previous month. In the event that an Implementation Monthly Fee applies, it shall begin 30 days after signing the access agreement and will be billed on the 1st day of the calendar month following the 30 day period. Customer shall make all payments hereunder in US dollars. Customer shall make payments to the address or account specified in the Access Form or such other address or account as Company may specify in writing from time to time.

8.6. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available: (a) Company may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (b) Customer shall reimburse Company for all costs incurred by Company in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for thirty (30) days following written notice thereof, Company may suspend performance until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer by reason of such suspension.

8.7. No Deductions or Setoffs. All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). The invoiced amount shall be due in full regardless of the actual funds received from the state and no deduction shall be made in the case that the sponsor is forced to repay funds received to the state.

8.8. Fee Increases. Fees may automatically increase by the lower of 3% or CPI annually. Notwithstanding the foregoing, Company may increase Fees for any Renewal Term after the Initial Term by providing written notice to Customer at least sixty (60) days prior to the commencement of such Renewal Term, and the Access Form will be deemed amended accordingly.

9. Confidentiality.

9.1. Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Company Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:

(a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made

9.2. available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or
any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

9.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for a period of four (4) years:

(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;

(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and

(d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.

Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

9.4. Compelled Disclosures. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings.

10. Intellectual Property Rights.

10.1. Company Materials. All right, title, and interest in and to the Company Materials, including all Intellectual Property Rights therein, are and will remain with Company and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Company Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Company Materials are expressly reserved by Company. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

10.2. Customer Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3. Nothing in this agreement shall prohibit Company from using non-identifiable data for any reason.

10.3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Company, its Subcontractors, and the Company Personnel to enforce this Agreement and exercise Company’s, its Subcontractors’, and the Company Personnel’s rights and perform Company’s, its Subcontractors’, and the Company Personnel’s obligations hereunder.

10.4. Ownership of Resultant Data. As between Customer and Company, Company is and will remain the sole and exclusive owner of all right, title and interest in and to all Resultant Data, including all intellectual property rights relating thereto.

11. U.S. Government Rights; Compliance with Laws and Regulations.

11.1. Commercial Computer Software. With respect to any acquisition of the Product by or for any unit or agency of the United States Government (the “Government”), the Product shall be classified as “commercial computer software”, as that term is defined in the applicable provisions of the Federal Acquisition Regulation (the “FAR”) and supplements thereto. The Product was developed entirely at private expense, and no part of the Product was first produced in the performance of a Government contract. If the Product is supplied for use by a Federal agency, the Product is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212(a); (ii) FAR 52.227-19; or (iii) FAR 52.227-14(ALT III), as applicable. The contractor/manufacturer is Company Systems, LLC.

11.2. Right to Audit. In accordance with 2 CFR 400 and 415, the USDA, FNS, the Comptroller General of the United States, or any of their duly authorized designees have the right to inspect, evaluate, and audit any pertinent contracts, books, documents, papers, and records of the Company involving transactions related to Customer’s USDA contract or that pertain to any aspect of services performed, reconciliation of liabilities, and determination of amounts payable under Customer’s USDA contract. With respect to all other downstream entities, the USDA, FNS, the Comptroller General of the United States, and their
designees shall have direct access (e.g., on-site access) to such downstream entities, and the downstream entities will make such books and records directly available to the USDA, FNS, and the Comptroller General of the United States, or their designees for such inspection, evaluation, and audit. Company shall maintain all required records for three years after institutions make final payment to Customer and all other pending matters are closed.

11.3. EOC. Company agrees, to the extent applicable, to comply with the provisions of the Equal Opportunity Clause set forth in 41 CFR 60 and Executive Order 11246, as amended.

11.4. Environmental Laws. Company agrees, to the extent applicable, to comply with all applicable standards, orders, or requirements issued under the Clean Air Act, as amended, the Clean Water act, as amended, Executive Order 11728, and Environmental Protection Agency Regulations set forth in 40 CFR 15 (collectively, the “Environmental Laws”). Any violations of the Environmental Laws shall be reported to FNS and to the U.S. EPA Assistant Administrator for Enforcement.

11.5. Energy Policy and Conservation Act Compliance. Company agrees, to the extent applicable, to recognize mandatory standards and policies relating to energy efficiency which are contained in the energy efficiency conservation plan issued in compliance with the Energy Policy and Conservation Act, as amended.

12. Representations and Warranties.

12.1. Mutual Representations and Warranties. Each party represents and warrants to the other party that:

(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;

(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;

(c) the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and

(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

12.2. Additional Company Representations, Warranties, and Covenants. Company represents, warrants, and covenants to Customer that Company will perform the Services and maintain the Product using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

12.3. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Company that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Company and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.


13. Indemnification.

13.1. Company Indemnification. Company shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any action by a third party (other than an Affiliate of Customer) that Customer’s or an Authorized User’s use of the Services or Product (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party’s US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:

(a) Third-Party Materials or Customer Data;

(b) access to or use of the Company Materials in combination with any hardware, system, software, network, or other materials or service not provided by
Company, unless otherwise expressly permitted by Company in writing;

(c) modification of the Company Materials other than: (i) by or on behalf of Company; or (ii) with Company’s written approval in accordance with Company’s written specification;

(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Company; or

(e) act, omission, or other matter described in Section 13.2(a), Section 13.2(b), Section 13.2(c), or Section 13.2(d), whether or not the same results in any action against or Losses by any Company Indemnitee.

13.2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Company and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Company Indemnitee”) from and against any and all Losses incurred by such Company Indemnitee resulting from any action by a third party (other than an Affiliate of a Company Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from:

(a) Customer Data, including any Processing of Customer Data by or on behalf of Company in accordance with this Agreement;

(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Company’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Company;

(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or

(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of
Customer or any Authorized User, in connection with this Agreement.

13.3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any action for which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel
reasonably acceptable to the Indemnitee to handle and defend the same at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such action, the Indemnitee shall have the right, but no obligation, to defend against such action, including settling such action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 13.3 will not relieve the Indemnitor of its obligations under this Section 13, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.

13.4. Mitigation. If any of the Services, the Product, or Company Materials are, or in Company’s opinion are likely to be, claimed to infringe, misappropriate, or
otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services, the Product, or Company Materials is enjoined or threatened to be enjoined, Company may, at its option and sole cost and expense:

(a) obtain the right for Customer to continue to use the Services, the Product, and Company Materials materially as contemplated by this Agreement;

(b) modify or replace the Services, the Product, and Company Materials, in whole or in part, to seek to make the Services, the Product, and Company Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services, Product, and Company Materials, as applicable, under this Agreement; or

(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services, the Product, and Company Materials, and require Customer to immediately cease any use of the Services, the Product, and Company Materials or any specified part or feature thereof.


14. Limitations of Liability.




14.3. Exceptions. The exclusions and limitations in Section 14.1 and Section 14.2 do not apply to Company’s obligations under Section 13 or liability for Company’s gross negligence or willful misconduct.

15. Term and Termination.

15.1. Initial Term. This Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, shall remain in effect for twelve 12 months (the “Initial Term”).

15.2. Renewal Term. This Agreement will automatically renew for up to five (5) additional successive twelve (12)-month terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).

15.3. Termination for Convenience. After the Initial Term, either party may terminate this Agreement upon providing ninety (90) days written notice to the other party.

15.4. Termination for Cause. Either party may terminate this Agreement, effective on written notice to the other party, if the other party breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach. If a sponsor is terminated by the state and can no longer participate in the food program they can terminate at any point with thirty (30) days notice.

15.5. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;

(b) Customer shall immediately cease all use of any Services, the Product, or Company Materials and Company may disable all Customer access to the Services, the Product, or Company Materials;

(c) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) Company may retain Customer Data; (iii) Customer may retain Company Materials, in the case of each of sub-clause (i), (ii), and (iii) in its then current state and solely to the extent and for so long as required by applicable law; (iv) Company may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 15.4(c) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;

(d) Company may disable all Customer and Authorized User access to the Company Materials;

(e) if Customer terminates this Agreement pursuant to Section 15.4, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination;

(f) if Company terminates this Agreement pursuant to Section 15.4, all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Company’s invoice therefor; and

(g) if Customer requests in writing at least thirty (30) days prior to the effective date of expiration or termination, Company shall, within sixty (60) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Company, provided that Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Company’s services in transferring such Customer Data.

15.6. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 12.4, Section 13, Section 14, Section 15.5, this Section 15.6, and Section 16.

16. Miscellaneous.

16.1. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, which may include email, and approved by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

16.2. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Company’s prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 16.2 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

16.3. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

16.4. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

16.5. Dispute Resolution. Company is committed to working with Customer to reach a reasonable resolution that satisfies Customer in the event of a dispute. For any problem or dispute that Customer may have with Company, Customer acknowledges and agrees that Customer will first give Company opportunity to resolve Customer’s problem or dispute. In order to initiate this dispute resolution process, Customer must first send Company a written description of
Customer’s problem or dispute within thirty (30) days of services being performed by sending Notice to Company. Customer then agrees to negotiate with Company in good faith about Customer’s problem or dispute.

16.6. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference. In the event of any conflict between this Agreement and any “click through,” “click wrap,” automatic update agreements, or other agreement between Company and Customer, this Agreement shall govern.

16.7. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.1, or Section 4.3 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

16.8. Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.

16.9. Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions as may be necessary to give full effect to this Agreement.

16.10. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Dallas and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

16.11. Limitation of Time to Bring Claims. No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either Party against the other more than one (1) year after knowledge of the action accrues.

16.12. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

16.13. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. Notice to Customer shall be given at any address affiliated with Customer account.

16.14. Public Announcements. Either party may include the other party’s name and other indicia in its lists of partners in promotional and marketing materials.

16.15. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

16.16. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

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