Master Service Agreement

Last Modified: July 29, 2020

THIS MASTER SERVICE AGREEMENT, TOGETHER WITH OUR PRIVACY POLICY, TERMS OF SERVICE, ANY ADDITIONAL POLICIES AND FUTURE MODIFICATION, AND ANY APPLICABLE ORDER FORM OR SCOPE OF WORK (COLLECTIVELY, THE “AGREEMENT”) GOVERNS YOUR ACCESS, EVALUATION, OR YOUR ACQUISITION AND USE OF OUR SERVICES. PLEASE READ CAREFULLY.

1. DEFINITIONS

“Agreement” means applicable Order Form, Scope of Work,Terms of Service, Privacy Policy, any additional policies and future modification and all materials referred to in here.

“Augmented Data” means information you submit to us to update, enhance, or augment such data to augment, verify, or correct through the use of our database, public sources, and/or through third party service providers.

“Consulting Services” means the professional services available to you, subject to applicable fees, which may include strategic development, Zoho products, SAAS, sales and business consulting, training services, software configuration, software development, integration, or any other consulting services.

“Confidential Information” means all non-public, confidential or proprietary information that one party or its representatives make available (“Disclosing Party”) to the other party (“Receiving Party”) in connection with this Agreement. Confidential Information includes, without limitation, the terms of this Agreement, Order Form, Scope of Work, technical data, programs, code, trade secrets, marketing strategies, software, documentation, business information as well as information related to the past, present and future plans, ideas, business strategies, customers and suppliers of each party and its affiliates, as case may be. Information already known to the Receiving Party prior to the receipt from the Disclosing Party, or public knowledge is not considered Confidential Information.

“Documentation” means works of authorship that we make generally available for the Client to use with the Services that comprises either:

“Free Services” means subscription services or other products and features made available to you, or a free trial basis. Free Services exclude Purchased Services.

“Intellectual Property” means the following: all algorithms, application programming interfaces (APIs), concepts, Confidential Information, data, databases and data collections, designs, diagrams, documentation, drawings, flow charts, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, architectures, procedures, processes, protocols, software code (in any form including source code and executable or object code), uniform resource identifiers including uniform resource locators (URLs), user interfaces, web sites, specifications, subroutines, techniques, works of authorship, and other forms of technology.

“Intellectual Property Rights” means all present and future rights of the following types, that may exist or be created under the laws of any jurisdiction in the world:

“Marks” means any trademark, service mark, or trade name of a party.

“Order” or “Order Form” or “Scope of Work (SOW)” means an online ordering document that has your information including your contact information, subscription tier, term, package details,project deliverables, activated products and so on.

“Purchased Services” means subscription services or other products and features made available for purchase. Purchased Services exclude Free Services.

“Services” or “Solutions” means the products and services that are available to you, ordered by you under an Order Form, or provided to you under Free Services. Services exclude third party applications or services not developed by or fulfilled by us.

“Your Data” means electronic data and information submitted to our Services by you or on your behalf

“User” means any individual or a legal entity accepting this Agreement or who is authorized by you to use Services. Users may include you, your employees, consultants, contractors, and your Customers.

2. SERVICES AND OUR RESPONSIBILITY

2.1 Provision of Purchased Services. Subject to this Agreement or any applicable Order Form or SOW, we will provide you with the level of support as described in the purchased service and use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week unless otherwise stated except for: (a) scheduled maintenance; (b) force majeure events, including an act of God, act of government, flood, fire, earthquake, war, terrorism, service provider failure, or denial of service attack; or (c) your acts or omission.

2.2 Subscription Upgrades and Downgrades. Detailed information on available tiers of subscription and what are included in each subscription is found on our website: www.breakthroughadvancement.com. You may upgrade your subscription tier at any time during the month. You may request to downgrade your subscription tier at any time, but it will only be effective at the end of your current term.

2.3 Free Services. You may register for Free Services subject to the terms of this Agreement until the earlier of: (a) the end of free trial period; (b) the start date of any Purchased Services; or (c) termination by us in our sole discretion without prior notice. You agree that we will not be liable to you or any third party for any damages arising from using the Free Services or terminating free access to our Services. Except as required by law, you are solely responsible to export your data from Free Services prior to termination. We will not be responsible for any data you have entered or any customizations made to the Services by or for you unless you purchase a service.

2.4 Modification. From time to time, we may modify any minor part of our Services to improve your experience. We will not make any material changes to our Services without providing notice.

2.5 Consulting Services. You may purchase professional consulting services within our background, subject to applicable fees, which may include strategic development, Zoho products, SAAS, sales and business consulting, training services, software configuration, software development, integration, or any other consulting services. Notwithstanding anything contained herein, you remain responsible for all of your business decisions.

2.6 Service Packages and Fixed Scope of Work. You may purchase the available service packages with the predetermined scope of work subject to this agreement. This scope of work is fixed and the project deliverables cannot be adjusted after purchase of the service. Making adjustments to the scope of work is subject to the applicable fees. Once the completed work has been delivered to you, you have ten (10) business days from receipt of the completed work to identify any bugs or tweaks to the system. We will fix any bugs that were identified in writing to us by submitting an email to support@breakthroughadvancement.com or via an online support request form within the 2 week review period at no additional cost so long as the cause of the bug was due to an error made by us. If the error was caused by changes/updates made by the third party platforms, servers, themes or your changes, lapses in licenses (which were not our responsibility) and similar events, then any additional time spent by us to repair and/or fix will be billed per the rates in this Agreement.

2.7 Hourly Fees and Additional Support. All services are subject to incur an hourly fee for additional work performed outside the SOW, Order Form, or the Subscription tier allowance. You have the right to indicate your hourly maximum prior to incurring the hourly fees. This hourly maximum will be honored by us by stopping any additional support to the client until the renewal of the next period or the client approves additional hourly work. Time will be tracked in 15-minute increments. All hourly work will be subject to the most current posted rates unless otherwise stated in the Order Form, SOW, or Subscription features. Our most current hourly rates can be found posted on: www.breakthroughadvancement.com/hourly-rates.

2.8 Performance of Services. The manner in which the Services are to be performed shall be determined solely by us; provided, however, we will perform such Services in a diligent and workmanlike manner and in accordance with industry standards and the agreed-upon schedule, if any.

2.9 Timeline. Any desired deliverable dates must be agreed upon prior to the start of service and are void if any of the following conditions occur: (i) we do not receive necessary information from you (or agents and/or contractors acting upon your behalf) on an agreed -upon time frame.; (ii) the platforms we are working on have bugs, downtime or extenuating circumstances outside of our control; and/or (iii) you do not meet payment due dates on invoices, or retainer balances run to $0, if any.

3. YOUR USE OF SERVICES

3.1 Acceptable Use. You will comply with our Terms of Service (www.breakthroughadvancement.com/terms-of-service) and Privacy Policy (www.breakthroughadvancement.com/privacy-policy)

3.2 Usage Restrictions. You will comply with all federal, state, provincial and local laws, rules, regulations and ordinances with respect to the performance of any of its obligations under this Agreement. You will not do the following: (a) modify, copy or create derivative works based on Services or any part thereof, (b) reverse engineer, disassemble, or decompile any of our Services or any part of them to try and find our source code; (c) use or launch any automated system, including, “robots”, “crawlers”, “spiders”, or “offline readers”; (d) use the Services in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Services; (e) attempt to gain unauthorized access to the Services; or (f) access the Services other than through our interface.

3.3 Your Responsibility. You will be responsible for the following: (a) User’s compliance with this Agreement, Documentation and Order Form(s); (b) for the accuracy, quality and legality of Your Data and your use of Your Data with our Services; and (c) use commercially reasonable efforts to prevent unauthorized access to and use of Services and notify us promptly of any unauthorized access.

3.4 Third Party Sites and Products. We or third parties may make available Solutions through our website or otherwise. We may make available information about you to these third party providers for enhanced user experience and/or any other customization unique for you. Third party products and services are not under our control. We do not endorse, warrant, guarantee the continued availability of, or support any of third party products or services. Any acquisition of third party products or services, and any exchange of data by you with applicable third party is solely between you and the applicable third party.

4. FEES AND PAYMENT

4.1 Fees

4.2 Invoicing and Payment. All amounts invoiced are due and payable immediately, unless otherwise provided in the Order Form or SOW. You are responsible for providing complete and accurate billing and contact information to us and notifying us for any changes to such information.

4.3 Payment Method. You will pay all fees via credit card or by other payment type specified in the applicable Order Form. You may be required to use a credit card transaction in order to activate some products and services immediately on demand. If you are making payments via credit card, you authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such that third party.

4.4 Overdue Charges; Late or Non-Payment. If you do not pay the invoice by the due date, then without limiting our rights or remedies (a) those overdue charges may accrue 2% of outstanding balance per month, or the maximum rate permitted by law, whichever is lower, (b) we may suspend or terminate the current subscription term, and/or (c) we may alter your payment terms on future subscriptions.

4.5 Payment Dispute. You will notify us immediately if there is any issue with your invoice. We will not suspend the Services while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

4.6 Fee Increase. The pricing of any fee during any renewal term may increase up to 8% above the applicable pricing in the prior term, unless we provide you notice of different pricing at least 30 days prior to the applicable renewal term.

5. TERM AND TERMINATION

5.1 Term and Renewal. This Agreement commences on the date you first accept until specified in the applicable Order Form, or in the Solutions, and will automatically renew for an additional term, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant term. If you have purchased Solutions during the subscription term, the fees for these Solutions will be on a monthly basis (or annually as the case may be), unless otherwise indicated in your Order Form. If a subscription is not renewed, any activated Solutions will be invoiced at its full period. If you use our Free Services, we will make the Free Services available to you subject to Section 2.3 above. Except as stated in the applicable Order Form, renewal of promotional or one-time priced subscription will be at our applicable list price in effect at the time of the applicable renewal.

5.2 Service Cancellations and Refunds. Purchased services may be cancelled at any time prior to the start date of services being delivered as stated in the Order Form, SOW, or otherwise agreed upon with the client. You may request a full refund of any payment submitted for the service, unless stated otherwise, prior to the service delivery start date. In the case of subscription services, the cancellation must be made before the renewal of the term unless otherwise stated in the Order Form. The subscription term will end on the expiration date and the subscription cannot be cancelled early. All fees are non-refundable. If you terminate this Agreement during the term, you agree to pay any outstanding fees due and payable for the remainder of the term.We are not liable for the cancellations and refunds of third party services.

5.3 Termination/Suspension. Either party may terminate this Agreement for cause, upon 30 days written notice of a material breach if such breach remains uncured at the expiration of such period.

We may terminate this Agreement for cause: (a) upon fifteen (15) days written notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (b) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, or (c) immediately, the Customer or the User violates the Terms of Service or applicable local, state, federal, or foreign laws or regulations. While any payment is delinquent, subject to our reasonable and sufficient notice: (a) any unpaid fees will incur a late fees; (b) we may terminate or suspend your and/or User’s access.

5.4 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) your right to use or access the Services shall cease and we have no further obligation to make the Services available to you; (b) all rights and licences granted to you shall cease; and (c) any amounts owed to us under this Agreement shall be immediately due and payable.

5.5 Return of Property. Upon expiry or termination of this Agreement, you may request within 30 days to export or download Your Data. After a 30-day period, we hold no obligation to maintain or provide any of Your Data and will delete or destroy all Your Data in our systems or otherwise in our possession, unless legally prohibited.

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Proprietary Rights. All our Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, create derivative works or use them in a fashion contrary to this Agreement. You have the right to access and use the Services subject to the terms of this Agreement.

6.2 Your Rights; Your Data. You own and retain all rights to Your Data. You grant us and our applicable third parties to use Your Data as necessary to provide the Services to you and as permitted by this Agreement. If you are using the Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so. Subject to the limited licenses granted, we acquire no right, title or interest from you or your licensors under this Agreement.

6.3 License to Use Feedback. You grant us license to use and incorporate into our services any comments, suggestion, enhancement, recommendation, correction or other feedback provided by you or Users, without any payment or attribution.

6.4 Augmented Data. If we make Augmented Data available to you, you may use Augmented Data during your Purchased Subscription period only or as determined by the Order Form or SOW. We will make Augmented Data based on Your Data and it will only be available to you.

7. LEGAL TERMS

7.1 CONFIDENTIALITY. During the term of this Agreement and following the expiration of this Agreement, all Confidential Information related to or obtained from either party shall be held in confidence by the Receiving Party to the same extent and in at least the same manner as its own confidential information. The Receiving Party will not use Confidential Information for any purpose outside the scope of this Agreement. The Receiving Party will limit access to Confidential Information to its employees, contractors, advisors and agents, who need access for purposes consistent with this Agreement. The Receiving Party will not disclose Confidential Information to any third party without a prior written consent of the Disclosing Party. Upon notice to the Disclosing Party, the Receiving Party may disclose Confidential Information to the extent compelled by law, to do so. The obligations of confidentiality shall survive the termination or expiry of this Agreement.

7.2 PUBLICITY. You grant us the right to add your name, logo, and feedback to our client list, podcast and website in all our media releases.

7.3 INDEMNIFICATION. The Parties hereby covenant and agree to indemnify, defend and hold each other harmless from and against any and all liabilities, damages, cost and expenses (including reasonably outside attorneys’ fees) arising out of or resulting from any third party claim, action or other proceeding (including any proceeding by any of the Parties employees, agents or contractors), based upon: (i) the conduct of a Part’s business or the performance of a Party’s obligations hereunder; (ii) any act or omission of a Party or any of its employees, agents, or representatives as it relates to this Agreement; (iii) a Party’s failure to comply with any applicable federal, state or local laws, ordinances, regulations and orders applicable to its obligations within this Agreement. Specifically, Client agrees to indemnify Breakthrough Advancement from any liability related to all third-party contracts or merchant contracts entered into by Client and merchants and/or third parties.

7.4 RELATIONSHIP OF PARTIES. It is understood by the Parties that Consultant is an independent contractor with respect to Client, and not an employee of Client. Consultant is not an attorney, nor licensed to practice law. Discussions can skirt legal issues and should be interpreted as opinions, or things to consider. If legal advice is desired, consult an attorney. Consultant is not a CPA, nor a Tax Professional. Discussions can and do involve accounting and presentation of financial results and projections. When tax advice is requested, contact a CPA or Tax professional. Client maintains control of all its business decisions and should reject advice that they do not agree with even if provided by Consultant. Consultant cannot control future events, therefore cannot be responsible for long term outcomes of business or growth strategies.

7.5 EMPLOYEES. Consultant’s employees and/ or contractors, if any, who perform Services for Client under this Agreement shall also be bound by the provisions of this Agreement.

7.6 DISCLAIMER; LIMITATION OF LIABILITY.

8. MISCELLANEOUS

8.1 Amendment; Entire Agreement; Precedence. This Agreement, including all appendices and Order Form(s), along with our Privacy Policy and Terms of Service, is the final, complete and exclusive agreement between us and you with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings. To the extent of any conflict or inconsistency, this Agreement shall control. We may update and change this Agreement at any time and such change will be posted here at: http://www.breakthroughadvancement.com/service-agreement. For any material change to this Agreement, we will send prior notice via email or in-app notification. The updated Agreement will have an indication of its effective and binding date, for example, Terms of Service will have “Last Modified” or “Effective As of” or similar language thereof. We encourage you to check our Agreement on a regular basis. Please notify us in writing if you do not agree with any changes within thirty (30) days. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion

8.2 No Waiver. Delay in exercising any right or remedy will be a waiver of such right or remedy. No course of dealings between you and us shall be construed as a waiver of any subsequent breach or modification hereof.

8.3 Currency. Unless expressed in the applicable Order Form, all references to money amounts are to the lawful currency of the United States Dollars (“USD”).

8.4 Severability. If, in any jurisdiction, any part of this Agreement is unenforceable, such provision is ineffective without invalidating the remaining provisions of this Agreement and such unenforceable provision will be deemed to superseded by a valid, enforceable provision that most closely matches the intent of original provision

8.5 Interpretation. Where the word “including” or “includes” is used in this Agreement, it means “including (or includes) without limitation”.

8.6 Assignment. You will not assign or transfer this Agreement without our prior written consent. We may assign this Agreement to any successor by way of any merger, consolidation or reorganization, sale of all or substantially all of our assets, change of control or by operation of law.

8.7 Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement

8.8 Survival. The following sections shall survive the expiration or termination of this Agreement: “Definitions”, “Your Use of Services”, “Fees and Payment”, “No Early Termination; No Refunds”, “Termination/Suspension”, “Effects of Termination”, “Return of Property”, “Proprietary Rights and Licenses”, “Confidentiality”, “Publicity”, “Indemnification”, “Disclaimer; Limitation of Liability”, “Relationship of Parties”, “Employees” and “Miscellaneous”.

8.9 Applicable Law. This Agreement shall be governed by the laws of the State of Arizona and the courts in the State of Arizona shall have the exclusive jurisdiction with respect to any matters arising under this Agreement.