Yello End-User License Agreement

This End-User License Agreement (this “Agreement”) is a legal contract between you, either (a) a business organization, or (b) an individual user (in either case, the “Customer”) and RECSOLU, Inc., DBA Yello, a Delaware corporation with its principal offices at 55 E. Monroe Street, Suite 3600, Chicago, Illinois 60603 (“Yello”). Each of Yello and Customer may hereinafter be referred to as a “Party” and collectively as the “Parties.”

This Agreement describes your rights and the conditions upon which Customer may use the Yello Services and System. By accepting this Agreement or using the Services or System, Customer agrees to all of these terms. If Customer does not accept and comply with these terms, then Customer may not use the Services or System.

Section 1: Definitions.

The following terms used in this Agreement shall have the meanings stated below:

1. “Admin User” means an Authorized User having full permission to read, write and edit functionality with respect to the Cloud Services.
2. “Authorized User” means any individual user that is authorized by Customer to access and use the System on behalf of Customer in accordance with an Order. 
3. “Business Day(s)” means Monday through Friday, excluding all U.S. Federal holidays.
4. “Cloud Services” means access to use or view the System provided by Yello as a hosted software service pursuant to any Order to or for the benefit of Customer.
5. “Customer Data” means the information and data that is submitted by or on behalf of the Customer to be processed by the System.
6. “Documentation” means the technical specification documentation generally made available by Yello to its licensees with regard to the Cloud Services.
7. “Error” means a material failure of the System to conform to the Service Levels or Documentation, provided that notwithstanding the foregoing, “Error” shall not include, and Yello shall not be liable for or have any obligation to remedy any issues caused by or arising out of (i) any use of the System by Customer or its Authorized Users which is not in accordance with the Documentation or the terms and conditions of this Agreement or any Order; (ii) any occurrence that is attributable to an interface or link, or attempted interface or link, by Customer, its Authorized Users or anyone acting on their behalf between the System and any telecommunications hardware, software, connections, or materials not provided by Yello hereunder; (iii) any misuse or improper or illegal use of the System; (iv) any malfunction of any telecommunications hardware, software, connections, or materials not provided by Yello hereunder; or (v) any issue that can be resolved by restarting a system or allowing for momentary systems or internet browser load spikes to pass.
8. “Intellectual Property Rights” means, on a worldwide basis, all patents (including originals, divisionals, continuations, continuations-in-part, extensions, foreign applications, utility models, and re-issues), patent applications, copyrights (including all registrations and applications therefor), trade secrets, service marks, trademarks, trade names, trade dress, trademark applications, moral rights, and any and all other proprietary and intellectual property rights (and improvements, updates, new versions, enhancements, modifications and derivative works therefrom), and any goodwill relating to any of the foregoing.
9. “Order”, “SOW” or other equivalent ordering documents means a document mutually executed by the Parties pursuant to which Customer procures specific Services from Yello, which document shall specify, among other things, a description of the Services to be provided, the compensation for such Services, the term of the Order, and any other details specifically related to such Services.
10. “Other Services” means implementation services and/or any other services described in an Order that do not constitute Cloud Services, including professional or consulting services.
11. “Reporting” means Yello’s cloud-based data visualization tool that allows customers to view aggregate analytics and drill down data.
12. “Reports” means any reports that incorporate Customer Data generated by or through the Cloud Services or System by, or for the benefit of, Customer.
13. “Services” means, collectively, the Cloud Services and the Other Services.

14. “Spin-Off” means the creation of a separate entity through the sale or distribution of shares of an existing entity or the division of a parent entity. This includes a divestiture and a split-up resulting from a dissolution.
15. “Staff Users” means an Authorized User having read-only permissions with respect to the Cloud Services.
16. “System” means Yello’s cloud-based software, data, technology, and related materials (in each case, including any modifications, corrections, enhancements or upgrades, whether made pursuant to this Agreement, any Order or otherwise) made available to Customer as part of any Cloud Services described in an Order. The System includes the online portal maintained by Yello pursuant to which the Services are provided, as the same may be updated, upgraded, improved or modified.

Section 2: Services

1. Yello shall provide Customer with a limited, revocable, non-exclusive, non-transferable (except to a permitted assignee as set forth in Section 11(c) below), non-sublicensable license to access and use the Services in accordance with the Documentation and the terms and conditions of this Agreement and any applicable Order, including, if applicable, the right to provide access for Authorized Users to the System.  The terms of each Order are incorporated into this Agreement by reference and shall be binding upon the Parties.  In the event of a conflict or ambiguity between any provision of this Agreement and an Order, the provision of the Order shall govern, but only with respect to the subject matter and scope of such Order.  
2. Customer will work with Yello to set an accommodating schedule to integrate and implement the System to maximize its usage by the Customer.
3. The Cloud Services will be provided in accordance with the service levels described on Exhibit A.
4. The Parties agree to the confidentiality agreements and covenants set forth on Exhibit B.
5. The portion of the System used by Customer will be password protected.  Yello will utilize at least industry standard protections to limit access to such portion of the System to Authorized Users who have the requisite access codes, and to Yello’s administrators who have a need to access the System.  Yello will grant access codes to the Authorized Users designated in writing by Customer and will use reasonable efforts to assist Customer in promptly disabling access codes for any Authorized User upon Customer’s written request. For the sake of clarity, the license for use of the Services granted hereunder is limited by the number of Authorized Users for which Customer has purchased access pursuant to the applicable Order.  Usernames and passwords for Authorized User accounts may not be shared or redistributed, except where an Authorized User is no longer engaged by Customer, or with Yello’s prior written consent, and Customer shall not allow more than one individual to access any Authorized User account. Customer is solely responsible for maintaining the confidentiality of its passwords.
6. Customer shall cause its Authorized Users, agents and personnel to comply with all of the terms and conditions of this Agreement and any Order. Customer consents to Yello’s use of subcontractors and cookies in the provisioning of the Services.
7. Yello shall maintain commercially reasonable controls and safeguards to mitigate security risks to the System, and to protect any Customer Data that is processed by Yello.
8. Yello will maintain commercially reasonable safeguards to protect against the destruction or loss of Customer Data in its possession, including regularly maintaining the Customer Data using reasonable backup procedures.
9. Yello reserves the right, as reasonably necessary or convenient for Yello’s own purposes or to improve the quality of the Services, to change or update components of the System or the Cloud Services at any time.  
10. Customer shall notify Yello of the existence of any Errors promptly upon discovering and verifying the same.  Yello shall provide written notice to Customer upon resolution of any Error identified by Customer and reproducible by Yello, which resolution shall be implemented without additional cost to Customer. Customer shall reasonably assist Yello in identifying and attempting to resolve Errors.
11. Customer shall not introduce any viruses, Trojan horses, worms or other “malware” into the System.
12. Customer agrees to use the System and Cloud Services solely for the legitimate business purposes of Customer’s talent recruitment efforts, and to not access or use the System or Cloud Services for the benefit of any other person or entity, such as a time sharing, service bureau, hosting, service provider or like purposes. Customer is solely responsible for any misuse of the System, including any hijacking of the System attributable to Customer or its Authorized Users.
13. Customer hereby acknowledges and agrees that it is not authorized to submit health data, financial data, or social security information into the System or Services (“Unauthorized Information”). Yello disclaims all liability in connection with, and Customer agrees to indemnify and hold Yello harmless for, any and all Losses (as defined below) resulting from, Customer’s or Customer’s Authorized Users’ or candidates’ insertion of Unauthorized Information into the System or Services.
14. Customer is solely responsible for supplying internet access to its Authorized Users in order to access and use the Cloud Services. Customer acknowledges and agrees that, as of the Effective Date, the System supports Internet Explorer version 11 or later and the most recent versions of Firefox, Safari and Google Chrome, and that the Cloud Services will be configured in English (other language pack modules can be purchased for additional fees).  Yello may, by advance written notice, update the System support requirements in its sole discretion from time to time.
15. Customer shall be responsible for the following:
    1. Managing user authentication and authorization to the System, including user provisioning procedures;
    2. Adopting strong operating system and application password management procedures, including using passwords that cannot be easily compromised;
    3. Reporting any issues or bugs to Yello via an email to infosec@yello.co or directly to a representative of Yello, within twenty-four (24) hours following discovery;
    4. Ensuring the legality of all data that Customer inputs into the System or otherwise provides to Yello in connection with this Agreement, and the means by which Customer acquired such data (including, but not limited to, ensuring that Customer has obtained and maintains at all times all necessary consents to transfer such data to Yello for use as contemplated hereunder);
    5. Using commercially reasonable efforts to protect its local IT systems against corruption by possible viruses, Trojan horses, or similar malware;
    6. Using commercially reasonable efforts to prevent unauthorized access to or use of Services, and notifying Yello within twenty-four (24) hours following any discovery of such unauthorized access or use, and reasonably assisting Yello in remediating and preventing any recurrence of such unauthorized access or use;
    7. Ensuring that Authorized Users are aware of their responsibilities and obligations under this Agreement, and comply with them;
    8. Using the Services only in accordance with the Documentation and applicable laws and government regulations;
    9. Ensuring that, upon termination of any Authorized User’s contract of employment or engagement, such terminated Authorized User’s access to the Services is revoked within twenty-four (24) hours of such termination;
    10. Complying with and causing its employees, agents, representatives, contractors, and subcontractors to comply with all applicable laws and regulations related to receipt and use of the Services; and
    11. Complying with and causing its employees, agents, representatives, contractors and subcontractors to comply with all personnel, safety, facility, and security policies, rules and regulations and other reasonable instructions of Yello, when accessing the System or Services, and conducting its work on the System or Services in such a manner as to avoid endangering the safety, or interfering with the convenience or efficiency of, Yello’s representatives or customers.

Section 3: Payment and Taxes

1. Customer will pay Yello the applicable fees associated with the Services as set forth in an Order. All fees and dollar amounts referred to under this Agreement or any Order are in United States Dollars (“USD”). Yello will invoice Customer and Customer will pay for such fees at the times set forth in the applicable Order. If the Order does not contain payment terms, Customer will pay invoices within thirty (30) days of Yello sending said invoice.  Customer must dispute any invoiced amounts by written notice within such 30-day periods and, if such written notice of dispute is not provided within 30 days, then such invoiced amount shall be deemed accepted by Customer.  If applicable, Customer will reimburse Yello for reasonable travel expenses to Customer’s site for purposes of providing in-person implementation meetings, trainings, or Other Services.
2. If any payment for Services is more than thirty (30) days past due of the invoicing and payment terms designated on the applicable Order, then such payments shall be subject to a finance fee of one and one-half percent (1.5%) per month (or the maximum amount permitted by applicable law, if less). Furthermore, Yello shall have the option to suspend the provision of the Services to Customer until payment is brought current, without waiving or prejudicing other rights or remedies available to Yello. Yello shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, incurred in connection with pursuing payments which are past due, without waiving its right to immediately terminate this Agreement and any applicable Order without penalty.
3. If Customer materially breaches this Agreement or Order or any fees owing by Customer under this Agreement or Order for services is 30 days or more overdue, Yello may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such Agreement or Order so that all such obligations become immediately due and payable. 
4. Customer agrees to be solely responsible for, and to pay and discharge when due, any and all federal, state and local sales, use or other similar taxes that may be levied, assessed, imposed or charged in connection with the performance of this Agreement (other than taxes based upon the income or revenue of Yello). If Customer has an applicable tax exemption certificate, Customer shall provide Yello with evidence of such exemption within five (5) days of mutual execution of this Agreement and/or Order(s), as applicable.

Section 4: Representations and Warranties

1. Yello hereby makes the following representations and warranties:
   1. Yello is validly existing and in good standing under the laws of the jurisdiction of its formation.
   2. Yello has all requisite company power and authority to execute and deliver this Agreement and any Order and to carry out and perform its obligations under the terms of this Agreement and any such Order.
   3. Any Other Services shall be performed by Yello in a professional and workmanlike manner in accordance with standards provided to Yello’s other customers.  Customer’s sole and exclusive remedy for any alleged or actual breach of this Subsection shall be the performance of the Other Services affected by such alleged or actual breach.
   4. Yello shall comply in all material respects with applicable federal, state and local laws, rules and regulations applicable to its provision of the Services. 
   5. Yello is not aware of any viruses, Trojan horses, worms or other “malware” in the System and Yello has taken commercially reasonable steps to protect the System against any such “malware.”
2. Customer hereby makes the following representations and warranties:
   1. Customer is validly existing and in good standing under the laws of the jurisdiction of its formation.
   2. Customer has all requisite power and authority to execute and deliver this Agreement and any Order and to carry out and perform its obligations under the terms of this Agreement and any such Order.
   3. Customer is not aware of any facts that indicate the Customer Data infringes or otherwise violates on any third party’s Intellectual Property Rights or privacy rights, and Customer has obtained and shall maintain all consents, permissions, and authorizations necessary to provide the Customer Data to Yello as contemplated hereunder.
   4. Customer shall comply with all applicable federal, state, and local laws, rules, and regulations.
3. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY ORDER, THE SERVICES, SOURCING, REPORTING, AND ALL DATA THEREIN, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  YELLO DOES NOT MAKE ANY, AND HEREBY DISCLAIMS ALL, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, YELLO MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, SOURCING, REPORTING, ALL DATA THEREIN, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS OR SATISFACTION, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, AVAILABLE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM YELLO OR THROUGH OR FROM YELLO SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

Section 5: Intellectual Property 

1. Yello agrees that, as between Yello and Customer, Customer owns the Customer Data and all Reports generated with such Customer Data.  During the term of this Agreement, Customer may provide Yello with Customer Data for use in the provision of the Services.  Customer hereby grants to Yello a non-exclusive, non-transferable (except to a permitted assignee in connection with an assignment pursuant to Section 11(c) below) and irrevocable license to use the Customer Data solely in the provision of the Services.  In addition, Yello may also use statistics and other de-identified or anonymized information and data generated from the provision of the Services to Customer in an aggregated [and/or segmented] form for purposes of benchmarking system performance, system metrics and other business purposes to the extent that personally identifiable information and any relationship to or association with Customer has been de-identified or removed from, so that Customer is not identifiable as a result of, such statistics (for example, using the number of QR Code scans made by Customer at a particular conference, without attribution to Customer, in preparing aggregate conference statistics). Notwithstanding any of the foregoing, Yello and Customer hereby acknowledge and agree that in no event shall the transfer of Customer Data from Customer to Yello pursuant to this Agreement constitute a sale of such data to Yello, and nothing herein shall be construed as providing for the sale of any Customer Data to Yello.  
2. Yello may use Customer’s Intellectual Property Rights (including logos and trademarks) to customize the Services for Customer. In furtherance of the foregoing, Customer hereby grants to Yello, and Yello hereby accepts, a non-exclusive, revocable license to use and display Customer’s Intellectual Property Rights (including logos and trademarks) for purposes of providing the Services under this Agreement.
3. Except for (i) the limited rights to access and/or use the System pursuant to the terms and conditions set forth herein or any Order and (ii) Customer’s rights in the Customer Data, Customer agrees that, as between Customer and Yello, Yello owns all right, title, and interest in and to (i) the System, the Services, all data therein and derived therefrom, the Documentation and all Intellectual Property Rights in and to any of the foregoing, and (ii) any other Intellectual Property Rights of Yello, and all such rights therein are reserved for Yello.  For the avoidance of doubt, any rights associated with recommendations, suggestions or other feedback from Customer and/or its Authorized Users shall be the exclusive property of Yello and Yello shall hold all right, title and interest thereto. 
4. Use Restrictions. Customer shall not use the Services or System for any purposes beyond the scope of the access and use granted in this Agreement. Customer (and its Authorized Users) shall not encourage any unlawful activities when using the Services or the System, or post anything to the System that is obscene, defamatory, threatening, harassing, abusive, slanderous, hateful, or embarrassing to any person. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users or other third parties to: (i) copy, modify, translate, adapt, or create derivative works of the Services, System, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, System, or Documentation to any third party; (iii) reverse engineer, modify, translate, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code or any software component of the Services or System, in whole or in part; (iv) remove any proprietary notices from the Services, System, or Documentation; (v) bypass or breach any security device or protection used for or contained in the Services or System; (vi) use the Services or System for benchmarking purposes or in any manner that is competitive with the business of Yello; or (vii) use the Services, System, or Documentation in any manner or for any purpose (a) to develop (directly or indirectly with or through a third-party) services, products or other offerings that are competitive with the System or Services or (b) that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person, or that violates any applicable law.

Section 6: Indemnification

1. Yello shall indemnify and hold Customer harmless from any and all losses, damages, costs (including reasonable attorneys’ fees), settlements and liabilities (collectively, “Losses”) resulting from third-party claims, suits, actions or proceedings arising from or relating to (i) the infringement or misappropriation of the Services or System of any United States Intellectual Property Rights of any third party, or (ii) the gross negligence or willful misconduct of Yello or its personnel or agents; provided that notwithstanding the foregoing, Yello shall not be liable for any Losses relating to any alleged infringement, misappropriation or other violation of any Intellectual Property Rights of any third party to the extent based upon: (A) Customer’s use of the Services or System in combination with data, software, hardware, equipment or technology not provided or authorized by Yello or with other products or services if such Losses would have been avoided but for such combination; (B) Customer’s use of the Services or System other than in accordance with the Documentation and the terms and conditions of this Agreement and any Order; (C) modification of the Services or System by anyone other than Yello; (D) Yello’s compliance with specifications provided by Customer; or (E) Customer Data or other materials provided by Customer. 
2. Customer shall indemnify and hold Yello harmless for any and all Losses resulting from third-party claims, suits, actions or proceedings arising from or relating to (i) the infringement or misappropriation by Customer or its Authorized Users of any United States Intellectual Property Rights of any third party, (ii) the use by Customer or the Authorized Users of the Services or the System other than in accordance with the Documentation and the terms of this Agreement and any Order (including using the Cloud Services or System for illegal purposes), (iii) Customer Data or other materials provided by Customer, or (iv) the gross negligence, willful misconduct, or a violation of law of Customer or its personnel or agents in connection with this Agreement or the Services.
3. Upon becoming aware of events giving rise to an indemnification claim under Section 6(a) or 6(b) above, the Party seeking indemnification pursuant to Sections 6(a) or 6(b) (the “Indemnified Party”) shall provide prompt written notice of such claim, including a reasonable description of the basis thereof, to the Party responsible for indemnification pursuant to Sections 6(a) or 6(b) (the “Indemnifying Party”) and allow the Indemnifying Party to control the defense of such third-party claim at the Indemnifying Party’s expense.  The Indemnifying Party shall not settle any claim without the Indemnified Party’s written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in injunctive relief against, a monetary contribution from, or admission of wrongdoing by, the Indemnified Party.  If the Indemnifying Party elects to control the defense of such third-party claim, the Indemnified Party shall have the right to participate in such defense at its own expense.  The Indemnified Party shall provide reasonable non-monetary assistance to the Indemnifying Party, at the Indemnifying Party’s expense, in connection with the defense and/or settlement of any third-party claim.
4. If at any time Yello reasonably believes that the Services or System may infringe the Intellectual Property Rights of any third party or that Customer’s use thereof may be enjoined, Yello may, at its option and expense, either (i) procure from such third party the right for Customer to continue using the System and receiving the Services, or (ii) modify the System or Services to make them non-infringing, but functionally substantially equivalent.  If Yello determines that neither of these alternatives is reasonably available, either Party may terminate this Agreement and Customer will receive a prorated refund of any prepaid but unused fees. NOTWITHSTANDING ANYTHING ELSE IN THIS SECTION 6 OR ELSEWHERE IN THE DOCUMENTATION, THIS SUBSECTION (d) STATES YELLO’S ENTIRE OBLIGATION TO CUSTOMER, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

Section 7: Limitations on Liability

1. THE AGGREGATE LIABILITY OF YELLO FOR ALL CLAIMS OR LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), STRICT LIABILITY, INFRINGEMENT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT, ANY ORDER OR THE SERVICES OR SYSTEM SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID AND PAYABLE BY CUSTOMER TO YELLO DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
2. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT OR ATTORNEYS’ FEES INCURRED AS A RESULT OF CUSTOMER’S FAILURE TO SATISFY ITS PAYMENT OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDER OR THE SERVICES OR SYSTEM, EVEN IF THE PARTIES HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.

Section 8: Insurance Requirements

1. During the term of this Agreement, Yello shall maintain commercially reasonable levels of insurance coverage to secure the performance of its obligations under this Agreement, including, but not limited to, comprehensive general liability, automobile/umbrella liability, and worker’s compensation.
2. Upon written request, Yello will provide Customer with written evidence of the coverage described in Section 8(a).

Section 9: Independent Contractor Relationship

1. In connection with this Agreement, the Parties acknowledge that they are independent contractors.  Neither this Agreement nor any Order shall create a relationship of employment, agency, or partnership between the Parties, nor shall they give either Party any authority to bind or commit the other Party.
2. Neither Yello nor any of its personnel or agents shall be entitled to any benefits provided by Customer to its employees.  Yello shall be solely responsible for payment of all employment related and compensation related charges to its personnel and agents in connection with the performance of the Services.
3. This Agreement shall not be deemed to be an exclusive contract.  Subject to the Parties’ obligations in Section 5 (Intellectual Property) and Exhibit B (Confidentiality), Customer may utilize any other vendor to provide similar services, and Yello may provide similar services to any other customer.

Section 10: Termination

1. This Agreement shall be effective as of the Effective Date and shall remain in effect for a period of one (1) year, unless sooner terminated as provided under this Agreement. This Agreement shall automatically renew for additional one (1) year terms thereafter, unless either Party delivers written notice of non-renewal to the other Party at least ninety (90) days prior to the expiration of the initial or any renewal term or this Agreement is otherwise terminated as set forth herein.
2. This Agreement may be terminated at any time upon the mutual written agreement of the Parties.
3. Either Party may terminate this Agreement or any Order if the other party: (i) materially breaches any provision of this Agreement or any Order, as applicable, and such breach is not cured within thirty (30) days following written notice, where such written notice provides a reasonable description of such breach; or (ii) becomes insolvent, makes a general assignment for the benefit of creditors, or has a voluntary or involuntary bankruptcy proceeding filed by or against it and such proceeding is not dismissed within forty-five (45) days.
4. Notwithstanding the terms of Section 10(c), Yello may immediately terminate this Agreement or any Order if Customer materially breaches either Section 5 (Intellectual Property) or Exhibit B (Confidentiality) of this Agreement.
5. Any termination or expiration of this Agreement shall not terminate or affect the obligations of the Parties to each other under existing Order(s) issued pursuant to this Agreement, and such Order(s) shall continue in full force and effect and shall continue to be governed by the terms of this Agreement until their expiration or until any such Order(s) are themselves terminated pursuant to this Section.
6. After termination or expiration of this Agreement and all existing Orders, and only upon Customer’s written request, Yello will export any Customer Data it has to Customer in Yello’s standard export format at no additional charge. Customer must submit such request to Yello within 45 days after termination or expiration of this Agreement and all existing Orders. Yello is not obligated to maintain or provide any Customer Data after such 45-day period and may, at its sole discretion unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control, and delete Customer’s instances of the Services.
7. Sections 1, 3, 4(c), 5, 6, 7, 9, this Section 10(g), Section 11 and Exhibit B, and any other provisions of this Agreement which expressly provide that they survive shall survive the expiration or termination of this Agreement.  Other than with respect to the provisions of this Agreement which survive expiration or termination, neither Party will be liable to the other Party for damages in connection with this Agreement following expiration or termination of this Agreement or any Order except for those arising due to a material breach by a Party of this Agreement or any Order prior to such expiration or termination. Both Parties waive any right it may have to receive compensation or reparation under the law of any jurisdiction in the event of such an expiration or termination other than as a result of a material breach of this Agreement or any Order arising prior to such expiration or termination.

Section 11: General Provisions

1. Force Majeure. Except with respect to Customer’s payment obligations, neither Yello nor Customer shall be held responsible nor be deemed to be in default under this Agreement or any Order for any delay in performance or failure in performance of any of their respective obligations to be performed hereunder or thereunder if such delay or failure is the result of causes beyond the control and without negligence of the Party with respect to whose obligations such delay in performance or failure in performance has occurred (each a “Force Majeure Event”).  Such causes shall include, without limitation, acts of God, strikes, lockouts, riots, insurrections, civil disturbances, sabotage, embargoes, blockades, acts of war, acts or failures to act of any governmental or regulatory body (whether civil or military, domestic or foreign), governmental regulations superimposed after the fact, power failures, fires, explosions, floods, epidemics, earthquakes or other natural or man-made disasters, and all occurrences similar to the foregoing.
2. Notice. Any notices required to be given hereunder shall be in writing and deemed to have been sufficiently given, (i) when delivered in person, (ii) on the fifth business day after mailing by registered or certified mail, postage prepaid, return receipt requested, or (iii) on the next business day after mailing by overnight courier service, to the following applicable address:  (i) if to Yello: RECSOLU, Inc., DBA Yello, 55 E. Monroe, Suite 3600, Chicago, IL 60603, Attn: Legal Dept, contracts@yello.co; and (ii) if to Customer: the address set forth in the Order.

Alternatively, except for notices in relation to a) termination, b) indemnification, or c) breach, the Parties may utilize email as the method of delivery of any such notice to be provided hereunder. Any notices sent by email shall be delivered to the email addresses set forth above. Notices sent by email shall be deemed effective upon confirmation of delivery by a “read receipt” or other such notice generated by the applicable email system, but in any event, by reply of the recipient of such notice (with confirmation not to be unreasonably withheld or delayed).

3. Assignment. This Agreement may not be assigned by either Party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, except that either Party may assign this Agreement, without the other Party’s written consent, to (i) an affiliate; (ii) any corporation or other entity resulting from merger or consolidation with such assigning Party or to any person or entity which acquires all or substantially all of the assets of such Party’s business to which this Agreement relates; or (iii) in Yello’s case, Yello’s financing sources as collateral.  Any assignment in violation of this Section 11(c) shall be null and void and of no force and effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
4. In the event of any Customer Spin-Off or instances permitted under Section 11(c), Customer hereby acknowledges and agrees that it may be required to pay certain fees, as mutually agreed upon and set forth in an applicable Order, for the costs incurred by Yello in connection with Customer’s continued use of the Services as a result of such Customer Spin-Off, if work is required above and beyond that which is already being provided to Customer prior to such Spin-Off.
5. This Agreement, together with the Order(s) being entered into in connection herewith, any Scope of Services delivered to Customer in connection with this Agreement, and the exhibits and schedules attached hereto, sets forth the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications, whether oral or written, between the Parties with respect to the subject matter hereof. An Order shall supplement the terms and conditions of this Agreement solely for purposes of the scope of the Services described in such Order.
6. No amendment, change, or modification of this Agreement or any Order shall be effective unless it is made in writing, is signed by an authorized representative of each Party, and expressly states that it amends this Agreement or a respective Order.  No waiver of any breach of this Agreement or any Order shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
7. No terms or conditions of either Party’s invoice, purchase order, or other administrative document (unless signed by both parties and expressly referencing that it amends this Agreement) will be effective as a modification of the terms and conditions of this Agreement, regardless of the other Party’s failure to object to such. 
8. If any phrase, clause or provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction or arbiter, such phrase, clause or provision shall be deemed severed from this Agreement, but will not affect any other provision of this Agreement, which shall otherwise remain in full force and effect.
9. Yello and Customer intend that this Agreement shall not benefit or create any right or cause of action in favor of or for the benefit of any person or entity other than the Parties.
10. This Agreement, and any Order entered into in connection with this Agreement, shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to principles of conflict laws.  SUBJECT TO THE MANDATORY ARBITRATION PROVISIONS BELOW, EACH OF THE PARTIES IRREVOCABLY SUBMITS, IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, ANY ORDER OR THE SERVICES, TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN COOK COUNTY, ILLINOIS, AND CONSENTS THAT ANY SUCH ACTION OR PROCEEDING SHALL BE BROUGHT IN SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING WHICH PERTAINS DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR ANY ADDENDUM, ORDER OR OTHER AGREEMENT WHICH, IN ANY WAY, ARISES OUT OF OR RELATES TO THIS AGREEMENT.
11. The following dispute resolution procedure will be adhered to in all disputes or disagreements arising out of this Agreement:
    1. Corrective Action Meeting. The aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible. Each Party shall designate at least one (1) representative with full authority to address and/or resolve the dispute or disagreement. The designated representative(s) shall meet (in person in Chicago, Illinois or by telephone) within fifteen (15) Business Days after the date of the written notification to reach an agreement about the nature of the dispute or disagreement and the corrective action to be taken by the respective parties (the “Corrective Action Meeting”).  The Corrective Action Meeting shall last for a maximum of eight (8) hours. If the Corrective Action Meeting is unsuccessful, either Party may resort to arbitration to resolve the dispute in accordance with the provisions below.
    2. Arbitration. If the Corrective Action Meeting is unsuccessful, such dispute shall be settled by arbitration, which shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the claim or dispute and in accordance with Title 9 of the United States Code. Notice of the demand for arbitration must be filed in writing with the other Party and must be made within a reasonable time after the dispute has arisen. If the amount claimed to be in dispute is equal to or greater than One Million Dollars ($1,000,000), then the arbitration will be decided by a panel of three (3) arbitrators selected under the Commercial Arbitration Rules of the American Arbitration Association. If the amount claimed to be in dispute is less than that amount, then the arbitration will be decided by one (1) arbitrator selected pursuant to the same rules. Arbitration will be initiated in Chicago, Illinois. Said arbitration will occur within sixty (60) calendar days after the Party demanding arbitration delivers the written demand on the other Party, unless the Parties mutually agree otherwise in writing. The award rendered by the arbitrators will be final and specifically enforceable under applicable laws, and judgment may be entered upon it in any court having jurisdiction thereof. The prevailing party’s reasonable attorney fees shall be paid by the other party, and if a decision is split with each party prevailing on certain aspects of the case, such fees shall be distributed by the arbitrator. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with arbitrator’s award, the other party is entitled to costs of suit including a reasonable attorney’s fee for having to compel arbitration or defend or enforce the award. No arbitration arising out of or relating to this Agreement may include, by consolidation, joinder or in any other manner, any person or entity not a Party to this Agreement. Neither Party will appeal such award nor seek review, modification, or vacation of such award in any court or regulatory agency. Nothing herein will be construed to prevent any party’s use of injunction, and/or any other prejudgment or provisional action or remedy.
12. [US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.]
13. The headings assigned to the Sections and subsections of this Agreement are for convenience only and shall not limit the scope and applicability of the Sections or subsections.
14. Neither Party shall be deemed to be the drafter of this Agreement and if this Agreement is construed in any court proceeding, said court shall not construe this Agreement or any provision hereof against either Party as the drafter hereof.
15. This Agreement may be executed in one or more counterparts (including by means of facsimile or PDF), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In no event shall any terms or conditions be added or modified by purchase order.

Exhibit A

Service Level Terms

A. Service Levels

Yello commits to 99% availability of access to the Cloud Services as measured on a quarterly basis (excluding unavailability as a result of any of the Exceptions described below). Following implementation of the Cloud Services, the scheduled availability for access to the Cloud Services shall be twenty-four (24) hours a day, seven (7) days a week.  

For purposes of calculating the availability requirement, no period of downtime, inoperability, or degradation of the Services will be included in such calculation to the extent that such downtime, inoperability, or degradation is due, in whole or in part, to any of the following (“Exceptions”): (i) excluding scheduled downtime for preventive maintenance, (ii) a Force Majeure Event, (iii) downtime due to acts or omissions of Customer or its Authorized Users or agents or malicious acts by third-parties outside of Yello’s control and (iv) any failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Yello pursuant to the Agreement.

Yello will provide at least three (3) Business Days’ notice of any preventive maintenance which will render the System temporarily unavailable and any such preventive maintenance will be conducted outside of Business Hours.  In the event that emergency maintenance or repairs which will render the System temporarily unavailable are necessary, Yello shall use its commercially reasonable efforts to (i) provide at least four (4) hours’ notice prior to its performance of such emergency maintenance or repairs; (ii) perform such emergency maintenance or repairs outside of Business Hours; and (iii) minimize the period of time required for the performance of such emergency maintenance or repairs. “Business Hours” means 8:00 AM to 6:00 PM U.S. Central Time on Business Days, provided that Yello may modify these Business Hours by advance written notice to Customer.

B. Support

Yello will provide Customer with telephone technical support for Cloud Services troubleshooting during Business Hours. Yello shall designate a severity level for each Error reported by Customer, and shall use its commercially reasonable efforts to respond to Customer’s request for assistance in accordance with the following: