General Terms & Conditions

Use of the Solution
As part of the applicable Solution subscribed to by Customer (as further described on the Work Order),  Livly hereby grants Customer, for the term of this Agreement, a non-exclusive, non-transferable, non-sublicensable right to access and use the applicable Solution in accordance with the terms and conditions of this Agreement, solely for Customer’s internal use by Customer’s authorized users and Residents.    

‍Restrictions 
The Solution shall not be used for any purpose other than as expressly authorized by this Agreement.  In particular, but without limitation, Customer agrees that it will not (a) use the Solution for purposes of benchmarking or reverse-engineering; (b) compromise the integrity or performance of the Solution or of any system, network or data used to operate the Solution; (c) circumvent, disable or disrupt any technical measures that Livly uses to administer, protect, or operate the Solution; (d) develop a competing product or service based upon the Solution or any part thereof; or (e) use the Solution for any purpose that is deceptive, fraudulent, obscene, defamatory, threatening, harassing, tortious or unlawful. Nothing in this Agreement shall be deemed to grant Customer, either directly or by implication, estoppel, or otherwise, any license or rights other than those expressly granted in this Agreement.  Customer does not acquire any other rights or ownership interests.  Livly reserves all rights not expressly granted to Customer under this Agreement.   

If Customer is an agency of the U.S. Federal government (the “Government”), or a prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other arrangement with the Government, Customer hereby acknowledges that the software included in any Solution (“Software”) and any related technical data or documentation (“Documentation”) shall be deemed to be “commercial computer software” pursuant to FAR Section 12.212, DFAR Section 227.7202, or such other acquisition regulations as may be applicable to this procurement. Any use, modification, reproduction, release, performance, display, disclosure or transfer of the Software, the Documentation or technical data shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.   

Customer acknowledges that Livly may condition any user’s access to the Solution upon such user agreeing to any reasonable terms and conditions governing the use of the Solution (the “User Agreement”) that Livly may require from time to time, including Livly’s privacy policy (the “Privacy Policy”). To the extent that Livly processes any Personal Information (as defined in Livly’s data processing addendum) that is subject to Data Protection Legislation (as defined in Livly’s data processing addendum) on a user’s behalf in the provision of the Solution, the terms of the data processing addendum at https://www.livly.io/livly-data-processing-addendum (the “DPA”), which are incorporated herein by reference, shall apply, and the parties agree to comply with such terms. The User Agreement may be amended, from time to time, by written notice to Customer. Livly reserves the right to suspend or terminate any user’s access to the Solution in the event that Livly reasonably believes that a user has violated the terms of this Agreement, the User Agreement, or of any applicable laws or regulations. In no event shall any provision of the User Agreement be deemed to abrogate any of Customer’s obligations under this Agreement, and Customer shall remain directly liable to Livly for any acts or omissions of any Authorized User (as defined below), including without limitation any breach of the User Agreement. For the purposes of this Agreement, “Authorized User” shall mean Customer’s employees, contractor’s, agents and other members of its workforce, including the Property Managers.   

Customer shall only provide credentials to Authorized Users who are authorized, pursuant to this Agreement, to use the Solution on behalf of Customer, including any Property Managers of the Buildings, and Customer shall be responsible for ensuring the security of all such credentials.  Customer shall immediately notify Livly of any actual or suspected compromise of any credential or any other potential unauthorized access to the Solution and shall provide Livly with all reasonable cooperation to mitigate such unauthorized access.   

‍Payment
‍Customer shall pay to Livly all fees, if any, set forth in the Work Order.  Unless expressly provided otherwise in the Work Order, all fees are non-refundable and non-cancelable.  Customer shall pay any amounts owed to Livly on the date specified or 30 days after the date on which the Solution was provided by Livly (if no date is specified).  Livly may suspend the provision of the Solution until payment has been made in full.  Customer shall pay to Livly interest on any amount payable to Livly hereunder which is not paid promptly and when due at a rate equal to the lower of (i) 6% per annum or (ii) the maximum rate of interest allowable under applicable law.  All costs of collection (including reasonable attorney fees) shall be paid by Customer. Customer shall pay all import duties, levies or imposts, and all sales, use, value added, property, or other taxes of any nature, assessed upon or with respect to any products or services provided to Customer by Livly, excluding United States taxes based on Livly's net income. In the event that Livly is required at any time to pay any such tax, fee, duty or charge, Customer shall promptly reimburse Livly therefor.   

Livly will submit invoices via email to the email address indicated here by Customer. Livly does not have the ability to upload invoices to payment processing portals.   Unless otherwise stated, recurring subscription invoicing shall begin on the first day of the first full month following the completion of onboarding. In the event services are terminated, unused whole months of pre-paid recurring fees will be refunded to customer within 60 days of termination.  Onboarding and white label fees shall be invoiced at the execution of Agreements. Onboarding fees may be re-charged with integration changes or property requires rebuilding due to Customer updates  

‍Confidentiality
‍The party receiving (the “Recipient”) Confidential Information (as defined below) shall, by all appropriate means, protect the confidentiality of the Confidential Information of the other party (the “Discloser”); but in no event shall the Recipient use a lesser standard of care with respect to Confidential Information than it does with respect to Recipient’s own most sensitive confidential information.  Recipient shall hold the Confidential Information of Discloser in trust and confidence and shall not copy Discloser’s Confidential Information or disclose such information to third parties.  Recipient shall not use the Discloser’s Confidential Information for any purpose other than the performance of its duties under this Agreement.  Recipient shall cooperate with Discloser in investigating and resolving any suspected breach of confidentiality. 

Recipient may disclose Discloser’s Confidential Information, on a need-to-know basis, to Recipient’s auditors, attorneys or governmental authorities exercising a supervisory, examination or regulatory function in relation to Recipient.  All Confidential Information shall be returned by the Recipient to the Discloser when it is no longer needed or at the termination of this Agreement, whichever comes first.  The parties’ confidentiality obligations shall continue for a period of five years after termination of this Agreement. The term “Confidential Information” means any information that (i) is not generally known or available to others in the trade or (ii) the disclosing party designates in writing as confidential. 

Customer hereby designates the Customer Data as Confidential Information.  Livly hereby designates the Solution, the Software, the Documentation and any other information disclosed in the course of providing the Solution as Confidential Information.   
The parties’ confidentiality obligations shall not apply to information which (i) is in the possession of the Recipient prior to the disclosure by the Discloser, (ii) becomes known to the general public through no act or omission of the Recipient, (iii) is lawfully disclosed to the Recipient by a third party, or (iv) the Recipient develops independently without use of any Confidential Information.  If Recipient is required by a court or governmental agency to disclose Confidential Information of Discloser, Recipient shall immediately inform Discloser in writing of the order or request for such disclosure and shall take commercially reasonable steps to maintain confidentiality of the Confidential Information.   

Livly may prepare and retain an aggregated dataset (“Aggregated Dataset”) that may be partially derived from data generated by use of the Solution by Customer, its Authorized Users and the Residents.  Livly may use the Aggregated Dataset for any lawful purpose, such as statistical analysis, research, predictive analytics, profiling, targeted advertising, or data mining.  In order to qualify as an “Aggregated Dataset,” the data must be stripped of any personally identifiable information and any Confidential Information of Authorized Users, Customer, and Residents.   

‍Term and Termination
‍The “Initial Term” of this Agreement commences as of the date the Agreement is signed and, unless terminated as set forth below, will continue in effect for twelve (12) months. This Agreement will automatically renew for unlimited, additional successive twelve (12) month terms (each, a “Renewal Term” and, collectively, together with the Initial Term, the “Term”) unless terminated as set forth below.    

In the event that either party (the “Breaching Party”) materially breaches any of its duties or obligations this Agreement and does not substantially cure such breach within 30 days after being given written notice specifying the breach, then the other party (the “Non-Breaching Party”) may terminate this Agreement upon written notice thereof to the Breaching Party. Notwithstanding the foregoing, either party may terminate this Agreement upon thirty (30) days’ written notice. Said notice shall be deemed effective on the first day of the following billing cycle.  Customer shall have full use of services throughout that period. Termination of this Agreement shall not limit either party from pursuing any other remedies available to it. Any right or obligation of the parties in this Agreement that, by its nature, should survive termination of this Agreement, will survive any termination of this Agreement.     

‍Warranties 
THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION AND THE SOFTWARE ARE BEING PROVIDED “AS IS” AND LIVLY HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE.  WITHOUT LIMITING THE FOREGOING, LIVLY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION OR THE SOFTWARE WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE ACCURATE OR ERROR-FREE.    

Limitation of Liability 
IN NO EVENT SHALL LIVLY’S CUMULATIVE LIABILITY, WHETHER IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION, THE SOFTWARE OR THIS AGREEMENT, EXCEED THE AMOUNT OF ANY FEES PAID OR DUE TO LIVLY BY CUSTOMER FOR THE APPLICABLE SOLUTION(S) DURING THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR TORT DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM, THE SERVICES, THE SOLUTION(S), THE DOCUMENTATION, THE SOFTWARE OR THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   

‍Miscellaneous 
This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior understandings or agreements with respect to such subject matter.  This Agreement may be modified only by a writing that is duly executed by both parties.  This Agreement is to be governed by, construed and enforced according to the laws of the State of Illinois.  The parties agree that all disputes and proceedings in connection with this Agreement shall be heard exclusively by state and federal courts located in the City of Chicago, Illinois. 

Customer may not assign this Agreement without the prior written consent of Livly.  This Agreement shall be binding upon and inure to the benefit of the parties and their respective administrators, successors and assigns.  Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.  The parties desire that this Agreement be construed fairly, according to their terms, in plain English, without constructive presumptions against the drafting party.  The Agreement may be executed by electronic means and in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  If any provision or part of a provision in this Agreement is held to be illegal, invalid, or unenforceable, then the remainder of the provision will be enforced so as to effect the intention of the parties, and the validity and enforceability of all other provisions in this Agreement will not be affected or impaired. 

The parties acknowledge and agree that they are dealing with each other as independent contractors, and nothing in this Agreement may be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency relationship.  Neither party may bind the other party without a signed written consent from such other party, and employees and agents of one party are not for any purpose employees or agents of the other.  This Agreement is made for the benefit of Livly and Customer only, and the Agreement is not for the benefit of, and was not created for the benefit of, any third parties. All notices, requests and other communications called for by this Agreement must be deemed to have been given immediately if made by email to the other party at the addresses set forth below or to such other addresses as either party may specify to the other in writing.  Notice by any other means will be deemed made when actually received by the party to which notice is provided.   

CUSTOMER & LIVLY OBLIGATIONS
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Customer Obligations 
‍Promotional Services - Customer will provide digital and in-person services sufficient to introduce the available Solutions to Residents and to promote each Building as an official “Powered by Livly” building. Customer and Livly will work together, in good faith, to determine a promotional program that adequately supports Livly’s efforts in providing the available Solutions and facilitating the Services. Customer agrees to Livly representing an approved Customer logo or trademark on its marketing website.   

‍Operational Services - Customer will also provide the following operational support: (i) name and contact information of the Customer liaison (the “Livly Champion”).  The Livly Champion is the Customer personnel responsible for working alongside Livly to effectively onboard buildings and ensure continued project success through the lifetime of the engagement.  Customer shall contact Livly in the event of a change to the Livly Champion within 30 days of the change; (ii) adequate support from the Livly Champion to assist Livly in providing the available Solutions and facilitating the Services; (iii) adequate access to all applicable entryway doors to each Building; (iv) access to the relevant property management system, software, and hardware that Livly may need to provide the Solution or perform its obligations; and (v) such other support as reasonably necessary for Livly to provide or facilitate the Services.   

Livly Obligations 
‍Promotional Services – In order to provide the available Solutions and facilitate the Services, Livly will need to reasonably market the available Solutions and Services to the Residents.  Such marketing may occur via email or other methods, such as push notification. Livly will need to continue marketing the available Solutions and Services to Residents who have signed up for the applicable Solution(s) on an on-going basis.  Such on-going marketing may occur via emails, doorhangers, modal windows or other dialog boxes, events, push notifications, collateral, and mailers.    

Operational Services – Livly will maintain the security of the Platform and the Solutions.  Livly will also be responsible for the cost of integration, administration, and management of the Platform with Customer’s existing system, network and software/hardware as long as each is supported by Livly as of the date of any applicable order.  However, Livly shall not be obligated to provide or integrate with any hardware to the extent it is not permitted to do so by the manufacturer or developer of such hardware.

‍Base Web Training Services – Livly will provide standard remote training services to the applicable employees and agents of Customer in order to educate them in connection with the Platform and the applicable Solution(s).  Livly will also provide access to online resources for training materials, including documentation and videos.   

‍Additional Training Services – Upon Customer’s request, Livly will provide training services beyond the “Base Web Training Services” (i.e. in-person training), to applicable employees and agents of Customer. Such additional training services shall be at the Customer’s cost.

LIVLY CONNECT ADDITIONAL TERMS & CONDITIONS 

Technical Requirements
Livly shall provide Customer with detailed minimum technical requirements for the features selected in the Purchase Order as part of the implement implementation process.  Customer shall provide Livly a minimum of three (3) business days’ notice of any material modifications to Customer’s hardware or non-Livly software. In the event, Livly notifies Customer that the proposed modifications will impact the functionality of the Solution in a manner that Livly cannot support, and Customer decides to implement such modifications, Livly shall have no responsibility for any interruption or loss of functionality or be deemed to have breached this Agreement.  

Customer Obligations 
Customer shall provide Livly with access as necessary for Livly to perform its obligations under this Agreement, including to the Buildings and all units, rooms, and facilities located therein (collectively, the “Units”), the Property Managers, the Residents, and all applicable software and/or hardware.  

Third-Party Products and Services 
The solution may (i) inter-operate with certain software or hardware products of third parties (such third parties, “Third Parties,” and such products “Third Party Products”) and (ii) aggregate or utilize the services of Third Parties(such services, “Third Party Services”).  Livly makes no warranty and assumes no liability with respect to any such Third Party Products or Third-Party Services, except and to the extent Livly requires that Customer use such Third Party Products or Third Party Services in order to use the Solution. Third-Party Products and Third Party Services shall be conspicuously identified as such so that Customer shall be aware of the use of such and can review the applicable terms and conditions imposed by the applicable Third Parties. Customer’s use of Third Party Products and Third Party Services shall be subject to the terms and conditions, if any, imposed by the applicable third parties.  

Support Services 
Livly shall be responsible for supporting only the software developed by Livly, which includes mobile applications, gateway service, and the Livly access backend.  Livly is under no obligation to support issues with hardware, Third Party access control software, networking, or any other Third PartyProducts or Third Party Services.  

Indemnification by Customer 
Customer shall defend, indemnify, and hold harmless Livly and its subsidiaries, affiliates, and their shareholders, directors, officers, members, employees, agents, successors, permitted assigns, and representatives (collectively, the “Livly Indemnitee”) from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, awards, penalties, fines, interests, costs, fees, and expenses (including reasonable attorneys’ fees), including without limitation, the cost of enforcing any right to indemnification here under and the cost of pursuing any insurance providers, arising out of, resulting or relating to any third party claim against any Livly Indemnitee arising out of, or resulting from Customer’s (a) use of the Solution or any Customer Data, (b) breach of this Agreement, including, without limitation, any failure to comply with any of its obligations under this Agreement or (c)Customer’s (or any Authorized User’s) failure to comply with applicable law.   

Independent Allocations of Risk 
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY LIVLY TO THE CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.  THE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.   

Force Majeure 
Neither party shall be liable for any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, pandemics, acts of God, war, riot, civil disturbance, acts of any civil or military authority, judicial action, terrorist act, fire, flood, earthquake, strike, failure or delays in delivery of vendors and suppliers, interruption or failure of telecommunication or digital transmission links, Internet disruptions, breakdown in facilities, power failure or other unforeseen circumstances outside the reasonable control of the parties.  The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.  

CIRCUIT LIVING ADDITIONAL TERMS & CONDITIONS 

‍1.  Term and Termination.    
A. This Agreement shall commence on the date set forth above and shall continue for one (1) year (the "Initial Term"). If neither party gives notice of its intent not to renew in accordance with this paragraph, the terms of this Agreement will renew automatically upon the expiration of the Initial Term or any Renewal Term (as defined below), at Circuit Living’s then-current fees applicable to the Services under this Agreement, from effective date of expiration of such Initial Term or Renewal Term (as applicable) (each, an “Expiration Date”) for an additional one-year period from such Expiration Date (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”).  Either party may give the other party written notice of its intent to cancel with 30-day notice for any reason.  

B. Either party may immediately terminate this Agreement or Exhibit A under this Agreement for cause, in the event of a material breach of this Agreement by the other Party which is not cured within thirty (30) days after receipt of written notice in reasonable detail of the breach.

‍2. Pricing & Terms of Service.
Owner further agrees that it will make no warranties or representations about any Circuit Living products and services (including without limitation the Services) other than those specifically authorized by Circuit Living in writing in advance.
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A. Owner will pay Circuit Living each month for Services provided under this Agreement based on the fee schedule provided in the applicable Exhibit A. All amounts paid are non-refundable All amounts paid are non-refundable.
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B. If Owner uses Event Services, Owner will pay Circuit Living an agreed each month that will be used for Event Services only.  Owner is not obligated to use the Event Services budget on a monthly basis and may aggregate to use in a future period.  All amounts paid are non-refundable, however, and may only be used towards Event Services. Circuit Living may not exceed the budget set forth by Owner without written permission by Owner. If Owner agrees to go over the budget for Event Services that complies with Section 13 of this Agreement, Owner will pay Circuit Living in accordance with Section 2C of this Agreement. Circuit Living agrees that there are no additional fees for its services outside of the budget set forth.  

C. In accordance with the schedule specified in the applicable Exhibit A, Circuit Living will send Owner an invoice containing the amount due to Circuit Living by Owner for the Services rendered under this Agreement (“Invoice”) and Owner shall pay to Circuit Living upon receipt. A late charge equal to the lesser of 1.5% of the overdue balance or the highest amount permitted by applicable law will be assessed and added to the Invoice for each month or portion of a month that payment for any portion of the amount due stated in the Invoice is later than 30 days.

D. Unless otherwise specified in the applicable Exhibit A, Circuit Living does not provide design services for private labeling of Circuit Living Services. Should the Owner desire to private label any of Circuit Living’s goods, products, Services or intellectual property, Owner is responsible for any and all costs associated with such private labeling. For the avoidance of doubt, Owner’s private labeling product is subject to the agreement of the parties in the applicable Exhibit A.  

E. Unless otherwise provided in the applicable Exhibit A, Circuit Living may promote its Services and operate publicly utilizing Circuit Living's own branding with respect to Owner's residents and/or tenants. Should Owner desire to revise such practice, the cost of any private labeling redesign of how Circuit Living is marketed will be paid exclusively by Owner, and is subject to the agreement of the parties in the applicable Exhibit A.  

F. Circuit Living has the right to back bill Owner for purchased items by Circuit Living for Resident Events. A Resident Event shall be defined an event where a group of residents are invited to community event. All items purchased must be in accordance within the budget the Owner set for the particular event and/or month. Resident Event budgets can be confirmed in accordance with Section 13 of this Agreement.  

‍3. Property Access.
Circuit Living shall be permitted to conduct its business the Owner’s location and given access to and permitted to use any of Owner's premises, amenities and space at no charge.  

‍4. Marketing.
‍Owner shall provide Circuit Living the following marketing support:  
A. Send communications regarding Circuit Living’s Services to Owner's residents/tenants at least once per month; and  
B. Permit the display of Circuit Living business cards and other Circuit Living marketing material in Owner's resident/tenant welcome packets.  

‍5. Preferred Provider.
Owner shall ensure that its property refer Circuit Living to residents/tenants inquiring about any Services listed in Exhibit A to the exclusion of any other providers of similar products or services.  

‍6. Sub-Agency.  
Circuit Living may use independent contractors or agents to assist in its performance of this Agreement. It is understood that such independent contractors or agents (“Sub Agents”) provided, shall act individually and not as an employee for Circuit Living. Sub Agents shall abide by all rules set forth in this Agreement, and Owner shall notify Circuit Living of any breach or suspected breach of any obligation covered under this Agreement.  For the purposes of this section, the term Sub Agent shall include any person or entity not employed by Circuit Living, to which it delegates the work required or permitted under this Agreement.  

‍7.  Independent Contractors.  The relationship created by this Agreement shall be that of the independent contractor and not of employer and employee or partners. As independent contractors, the parties shall not have or hold themselves out as having, the power or authority to bind or create liability for the other by their intentional or negligent acts. Owner shall be solely responsible for and shall pay all its expenses incurred in connection with the performance of its duties under this Agreement and shall not be entitled to receive any fringe benefits or other benefits of any kind provided by Circuit Living to its employees. Circuit Living shall be solely responsible for the payment of all applicable commissions to Sub-Agents and of all taxes (including estimated taxes) payable with respect to commissions earned by Sub Agents pursuant to this Agreement.  

‍8. Confidentiality; Ownership.  

(A) Confidential Information.
‍Owner and Circuit Living agree to keep strictly confidential at all times all non-public business information which may be provided or made available to the other party in the course of the performance of this Agreement that a reasonable person would understand under the circumstances to be confidential, proprietary or competitively sensitive (“Confidential Information”). Confidential Information, includes, but is not limited to, the terms and conditions of this Agreement, business and marketing plans, prices, Services and related product specifications, software, mobile applications, algorithms, sales data and the like, as well as confidential specifications, drawings, sketches, data or technical business information for both parties. Any names or lists identifying Sub-Agents or potential Sub-Agents of Circuit Living are the Confidential Information of Circuit Living and the exclusive property of Circuit Living, are to be used by Owner solely in the performance of its obligations and duties hereunder, and all copies of its Confidential Information are to be returned to Circuit Living upon the termination of this Agreement.  

(a) Non-Disclosure; Non-Use. 
The parties agree not to reveal, divulge, make known, sell, exchange, lease or in any other way disclose any Confidential Information to any third party. Each party hereby agrees, on behalf of itself, its employees, agents, Sub-Agents, or representatives not to directly or indirectly utilize any Confidential Information except to the extent necessary to perform its obligations and exercise its rights under this Agreement. Both parties acknowledge the competitive and commercial value and confidential and proprietary nature of the Confidential Information and the irreparable damage that could result to either party if any part of the information were disclosed to any third party, without prior written permission.  

(b) Survival.  
The parties agree that this Section 8 shall survive the cancellation, expiration or termination of this Agreement.  

(c) The provisions of this paragraph are intended to be in addition to, and not a substitute for, any rights under applicable law relating to trade secrets and proprietary information.  

(d) In connection with this Agreement, Circuit Living may Process certain data (whether through the Services or otherwise) solely on behalf of Owner ("Owner Data"). Owner will be solely responsible for the accuracy and completeness of the Owner Data.  Owner represents, warrants, and covenants that:
(i) it has (and will have) Processed, collected, and disclosed all Owner Data in compliance with applicable law and provided any notice and obtained all consents and rights required by the applicable law to enable Circuit Living to lawfully Process Owner Data as permitted by this Agreement;
(ii) it has (and will continue to have) full right and authority to make the Owner Data available to Circuit Living under this Agreement; and
(iii) Circuit Living's Processing of the Owner Data in accordance with this Agreement or Owner's instructions does and will not infringe upon or violate any applicable law or any rights of any third party. “Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.  

(e) Notwithstanding any other provision to the contrary, the receiving party may disclose to potential acquirers, potential and existing lenders, and/or potential and existing investors the existence, terms and subject matter of this Agreement (including any Exhibit A hereunder), provided that such third parties are advised by the receiving party of the confidentiality requirements of this Agreement and are bound by an obligation of confidentiality to the receiving party that serves to protect such information on terms no less restrictive than those contained in this Agreement.  

(f) Notwithstanding any other provision in this Agreement to the contrary, Circuit Living may collect, analyze and anonymize data, statistics or other information obtained through the provision, use and performance of various aspects of the Services (collectively, “Analytics”) and aggregate such data, statistics or other information with data, statistics or other information obtained from other sources, and may use such Analytics for lawful business purposes, including improvement of the Services, as long as in doing so Circuit Living does not re-identify, or attempt to re-identify, any of the Analytics or otherwise link or associate Analytics with any information relating to (i) Owner, or (ii) an identified or identifiable natural person.  

(g) The parties expressly acknowledge and agree that any breach or threatened breach of this Section 8 by the receiving party may cause immediate and irreparable harm to the disclosing party that may not be adequately compensated by damages.  Each party therefore agrees that in the event of such breach or threatened breach of this Section 8 by the receiving party, and in addition to any remedies available at law, the disclosing party shall have the right to seek equitable and injunctive relief, without the need to post bond, in any court of competent jurisdiction, with respect to such a breach or threatened breach.  

(B) Reservation of Rights.
Nothing in this Agreement shall constitute a transfer of any proprietary right by Circuit Living to Owner.  The Services may be protected by patent, copyright, trade secret, and other intellectual property laws.  As between the parties, Circuit Living owns and retains all right, title and interest in and to the intellectual property rights in and to the Services (including any data and/or analytics made available through the Services) and any enhancements, modifications or derivative works thereof.  As between the parties, 
(i) each party retains ownership in and to its Confidential Information (as hereinafter defined) and
(ii) Circuit Living exclusively owns all right, title and interest in and to the Services and any derivative works and work product conceived, originated, or prepared in connection with the Services. All rights not specifically granted to Owner in this Agreement are retained by Circuit Living.  Owner acknowledges the proprietary rights of Circuit Living and its licensors in the Services and that Circuit Living retains all right, title and interest in and to the Services.  

(C) Affirmative Covenants.  
Owner shall:
(i) ensure Owner’s end users, residents, tenants, officers, directors employees, contractors, representatives, agents and affiliates (collectively, “Representatives”) comply with this Agreement;
(ii) take all necessary steps to prevent unauthorized access to or use of the Services,
(iii) notify Circuit Living immediately of any such unauthorized access or use;
(iv) comply with all applicable federal, state, local, municipal, domestic, foreign, and international laws, rules and regulations;
(v) use the Services in compliance with all applicable industry standards;
(vi) use the Services only for Owner’s own internal business purposes and solely in accordance with the terms of this Agreement; and
(vii) use the Services solely in accordance with Circuit Living’s instructions.    

(D) Restrictive Covenants.  
Owner shall not, and Owner will cause Owner’s Representatives to not:
(i) alter, change, modify, adapt, translate, or make derivative works of the Services;
(ii) use the Services in a manner that, or provide any direction to Circuit Living that, violates any applicable law;
(iii) transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system, data, or Personal Data;
(iv) transfer, resell, license, sublicense or otherwise make the Services (or any data or information accessible through the Services) available to any third party, except as expressly described in this Agreement;
(v) use the Services for timesharing, rental, outsourcing, or a service bureau operation;
(vi) attempt to gain, or assist others with attempting to gain unauthorized access to Circuit Living’s network, systems or the Services;
(vii) decipher, decompile, disassemble, or reverse engineer the Services or assist or encourage any third party to do so;
(viii) engage in any activity that violates the rights of others or that interferes with or disrupts the Services; or
(ix) upload any file containing any back door, time bomb, Trojan horse, worm, virus or similar malicious code.      

‍9. Non-Solicitation.  
While this Agreement remains effective and for two (2) years thereafter, Owner and any associated personnel or agents shall not, and agree that they will not, directly or indirectly, hire, engage, or solicit any Circuit Living employee, contractor, subcontractor, Sub-Agent, or vendor who provided services on behalf of the Circuit Living during the Term of this Agreement or encourage any such person or entity to leave such employment, contractor, subcontractor or Sub-Agent, or vendor relationship.  

‍10. Indemnification.  
Each party ("Indemnifying Party") shall indemnify, defend and hold the other party harmless from and against all losses, costs, claims, expenses, liabilities and damages of any kind, including reasonable attorneys’ fees, in each case arising out of a third party claim and arising out of breach of this Agreement by the Indemnifying Party or the Indemnifying Party's or its employees', agents', Sub-Agents' or contractors' gross negligence or willful misconduct. However, the provisions of this paragraph shall not be construed to reduce or eliminate any remedies that the parties may have against each other for breach of any contractual obligation.  

‍11. Force Majeure.  
Except with respect to Owner's payment obligations under this Agreement, in no event shall either party be liable for any failure of performance if such failure of performance is caused by or the result of causes beyond the reasonable control of such party, including, but not limited to, cable dig-up or cut by a third party; acts of God, fire, flood, explosion, or other catastrophes; epidemics, pandemics, quarantines, or other health emergencies; any law, order, regulation, action or request of a Federal, state or local governmental authority or of any civil or military authority; national emergencies; unavailability of rights-of-way or materials; or strikes, lock-outs or other labor difficulties.  

‍12. Assignment.  
Except as otherwise permitted by this Agreement, neither party may assign this Agreement or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempted assignment without such prior written consent shall be void. Notwithstanding the foregoing, Circuit Living may assign all or part of this Agreement immediately without the prior written consent of the Owner
(i) to any entity that controls, is controlled by, or is in common control with Circuit Living,
(ii) to any successor-in-interest to Circuit Living or in connection with a merger, sale of substantially all of its assets, acquisition, or other change of control with respect to Circuit Living or any division of its business, or
(iii) if necessary to satisfy the rules, regulations, and/or orders of any federal, state, or local governmental agency or body. Owner acknowledges and agrees that non-compliance with the terms of this Section 12 shall constitute a material breach of this Agreement.  

‍13. Notices.  
All notices under this Agreement shall be in writing and shall be given by e-mail to the email address set forth on the signature page to this Agreement (as such email addresses may be updated by either party from time to time via written notice to other party), and shall be deemed given 24 hours after an email is sent without bounceback.  

‍14.  Modification of Agreement.  
‍This Agreement, including its Schedule(s), may only be amended, modified, or supplemented by a separate written document duly executed by authorized representatives of both parties.  

‍15.  Waiver.  
No term or provision of this Agreement shall be waived, and no breach or default excused unless such waiver or excuse is in writing and signed by the party to which it is attributed. No consent by a party to, or waiver of, a breach or default, by the other, whether expressed or implied, shall constitute a consent to or waiver of any subsequent breach or default.  

‍16. Partial Invalidity.
 If any provision of this Agreement shall be held to be invalid or unenforceable, the validity or enforceability of the remaining provisions shall not in any way be affected or impaired thereby, but rather this Agreement shall be construed as if not containing the invalid or unenforceable provision. However, if such provision is an essential element of this Agreement, the parties shall promptly attempt to negotiate a substitute, therefore.  

‍17. Governing Law and Venue.  
This Agreement shall be construed and governed in accordance with the internal laws of Illinois, without the application of any principles of conflicts of law. With respect to any legal action, each party irrevocably submits to the exclusive jurisdiction of the state courts located in Cook County, Illinois or the federal courts of the Northern District of Illinois; and hereby further irrevocably and unconditionally agrees not to plead or claim that any such action in such court has been brought in an inconvenient forum or to raise any similar defense or objection.  

‍18. Survival. Any obligations of the parties relating to monies owed, as well as any provisions of this Agreement relating to confidentiality, intellectual property, indemnification, limitation of liability, term and termination, disclaimer, non-solicitation, interference with Circuit Living’s relationship with its customers, and commencement of legal proceedings shall survive any termination of this Agreement.  

‍19. Entire Agreement. The assent of the parties to this Agreement as of the date set forth at the beginning is established by the following signatures of their duly authorized representatives.  

‍20. Limitation of Liability. EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, ANY BREACH OF EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OWNER'S BREACH OF ITS PAYMENT OBLIGATIONS OR SECTIONS 8(A)(d), 8(C), or 8(D), OR VIOLATION OF CIRCUIT LIVING’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR:

(A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR LOST DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR

(B) ANY DAMAGES, COSTS, OR LIABILITIES IN AGGREGATE IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY OWNER TO CIRCUIT LIVING UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO WHICH SUCH DAMAGES, COSTS, OR LIABILITIES AROSE.

‍21. Disclaimer.  
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, CIRCUIT LIVING MAKES NO WARRANTY, (EXPRESS, IMPLIED OR STATUTORY) AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.  ALL SERVICES PROVIDED BY CIRCUIT LIVING ARE PERFORMED AND PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS.  CIRCUIT LIVING DOES NOT WARRANT THAT THE SERVICES, OR THE FUNCTIONALITY OR WORK PRODUCT THEREOF, WILL MEET OWNER’S REQUIREMENTS OR THAT THE SERVICES, OR THE FUNCTIONALITY OR WORK PRODUCT THEREOF, WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY.