This CallMaX Services Agreement is entered into between MRI and Client (each a “Party” or both “the Parties”) and is subject to all of the terms and conditions of below and any corresponding Order Documents which incorporate the terms of this CallMaX Services Agreement (which shall jointly be referred to as the “Agreement”). The above Parties agree to the following:

1. DEFINITIONS

“Affiliate” means an entity controlling, controlled by or under common control with a Party to the Agreement where control means the ownership or control, directly or indirectly, of more than fifty percent (50%) of all the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.

“Client Data” means any data, media, content, and information that Client provides, generates, transfers, uploads or makes available to MRI under the Agreement, whether printed, electronic, or in some other format.  Information that is collected by the System as part of the Services shall be considered information that has been provided by the Client.  Client Data shall include, without limitation, documents, data, spreadsheets, photographs, video, and other media.  Client Data shall also include data and information belonging to Owner as well as Owner’s customers and Client’s customers. Feedback provided to MRI by the Client shall not be considered Client Data.

“Client User” means individuals who are authorized by Client to use the Services, for whom the Service has been procured. Client Users may include but are not limited to Client, Client employees, Client Affiliates, Client Affiliates’ employees, and Owners and Owners’ employees.

“Documentation” means the user instructions, release notes, Functional Specifications, manuals and on-line help files in the form generally made available by MRI, regarding the use of the applicable Services.

“Error” means a material failure the Services to conform to its Functional Specifications that is reported by Client to and replicable by MRI.

“Functional Specifications” means those MRI specifications as set forth on www.mrisoftware.com/MRIfunctionalspecs.asp , which specifications may be updated from time to time by MRI upon posting new specifications at such web page address.

“Order Document” means the document(s), regardless of its actual name, executed by the Parties which incorporates by reference the terms of this Agreement, and describes Client’s order-specific information, such as description of Services and/or Professional Services ordered, license scope, use and restrictions, fees, milestones, if any.

“Owner” means the non-Client property owner if the Client is the manager and not the owner of such property(ies) for which the Service is utilized; If Client is the manager and not the Owner, Client represents that Client either: (i) is entering this Agreement directly in privity with MRI; or (ii) is the duly appointed agent of the Owner and has the authority to enter into and perform the Agreement and use the pursuant to the terms set forth in this Agreement. Client shall at all times be solely liable for the payment of all fees and the observance of all obligations, terms and conditions of the Agreement, regardless of any action, inaction or nonpayment by any Owner.

“Professional Services” means data conversion, implementation, site planning, configuration, integration and deployment of Services, training, project management and other consulting services as outlined in the applicable Order Document and/or statement of work.

“Services” means the on-line, web-based CallMaX answering, resident communication, voice, leasing and/or office management services provided by MRI as specified on an applicable Order Document.

“System” means the total package of hardware and Software furnished and/or maintained by MRI.

2. GRANT OF USE; RESTRICTIONS

Subject to the timely payment of the applicable fees and the terms of this Agreement, MRI grants to Client and Client Users, for the Term, the right to access and use the Services, solely for Client’s internal business purposes and as specified on the applicable Order Document. Additional Services may be purchased under additional Order Documents at the pricing in effect at the time the additional Services are added, prorated for the remainder of the then-current Term. MRI shall also provide the Professional Services as outlined in the Order Document.

Except for the rights expressly granted under this Agreement, MRI retains all right, title, and interest in and to the Services and Professional Services, including all related intellectual property rights inherent therein. No rights are granted to Client hereunder other than as expressly set forth in this Agreement. Client shall not itself, or through any Affiliate, Client User, employee, consultant, contractor, agent or other third party: (i) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Services; (ii) decipher, decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Services, including the license keys, in whole or in part, for competitive purposes or otherwise; (iii) allow access to, provide, divulge or make available the Services to any user other than Client Users; (iv) modify, adapt, translate or otherwise make any changes to the Services or any part thereof; (v) use the Services to provide processing services to third parties, or otherwise use the same on a ‘service bureau’ basis, other than on behalf of Owner, if applicable; or (vi) disclose or publish, without MRI’s prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Services.

3. TERM; RENEWAL; TERMINATION

3.1              Term and Renewal. Services commence on the date specified in the Order Document and continue for the term set forth in the Order Document (“Initial Term”). Following the end of the Initial Term, Services shall automatically renew for consecutive one (1) year terms (each renewal a “Renewal Term”) at then-current pricing unless either Party gives written notice at least sixty (60) calendar days’ prior to the end of the Initial Term or any Renewal Term, as applicable, of its intention to not renew the Services. For the purposes of the pricing notice in this Section, email or first-class mail will suffice. The Initial Term and Renewal Terms are collectively referred to as the “Term”.

3.2              Termination. This Agreement may be terminated for cause by either Party provided the non-breaching Party has provided thirty (30) calendar days’ advanced written notice (ten (10) calendar days’ for breach of payment obligations) and opportunity to cure such breach during such notice period. Termination of this Agreement for any reason shall not excuse Client’s obligation to pay in full any and all amounts due, nor shall termination by either Party result in a refund of fees paid.

4. FINANCIAL TERMS

4.1              Fees and Payment Terms. Fees are specified in the applicable Order Document. Payment of all fees is due thirty (30) calendar days’ after the invoice date, unless otherwise agreed in the Order Document. Interest accrues on past due balances at the lesser of a 1½% per month or the highest rate allowed by law. Client is responsible for providing an accurate billing contact on the Order Document and updating that billing contact, as needed, from time to time such that MRI always has an accurate billing contact for Client. If Client fails to make payments of any fees due under the Agreement, Client shall be in material breach of this Agreement. MRI will be entitled to suspend its performance upon ten (10) calendar days’ written notice to Client and/or to modify the payment terms, and to require full payment before any additional performance is rendered by MRI. Notwithstanding any of MRI’s rights enumerated in this Callmax Services Agreement, if Client fails to timely pay applicable fees under an Order Document, MRI shall be entitled to collect all past and current amounts due and owing, and to accelerate all future amounts to be due, such that all remaining periodic payments for the then current term of the applicable Order Document are immediately due and owing. Client shall be responsible to pay any collection expenses (including attorneys’ fees) incurred by MRI. Unless otherwise specified, fees are not contingent in any way on the performance of Professional Services.

4.2              Taxes. Unless expressly provided otherwise, the prices in the Agreement do not include taxes. Client agrees to pay any taxes, other than those based on MRI’s net income, arising out of the Agreement. If Client is tax-exempt, Client agrees to send MRI a copy of its tax-exempt certificate prior to execution of an Order Document. Client agrees to indemnify MRI from any liability or expense incurred by MRI as a result of Client’s failure or delay in paying taxes due which shall not be subject to any limitation on liability contained herein.

5. SUPPORT AND AVAILABILITY

5.1              Service Availability. Client is solely responsible for obtaining and maintaining, at its own expense, all equipment needed to access the Services, including but not limited to Client’s Internet access. MRI shall use commercially reasonable efforts to make the Services available twenty- four (24) hours a day, seven (7) days a week, except for: (a) Scheduled Maintenance; (b) Client Error Incidents; (c) Emergency Maintenance; (d) any unavailability caused by circumstances beyond MRI’s reasonable control, including without limitation, Force Majeure Events; and (e) internet service provider failures or delays. Scheduled Maintenance is defined as any maintenance performed during MRI’s then-current standard maintenance windows and any other maintenance of which Client is given at least forty-eight (48) hours advance notice. Client Error Incident is defined as any Service unavailability related to Client’s applications, Client Data, or Client’s equipment, or the acts or omissions of any user of the Service. Emergency Maintenance means downtime of the Service due to the application of urgent patches or fixes, or other urgent maintenance, recommended by MRI’s vendors, that is performed outside of Scheduled Maintenance.

Client acknowledges that MRI does not control the transfer of data over telecommunications facilities, including the Internet. MRI does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of such Services. Client acknowledges further that the Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. MRI is not responsible for any delays, delivery failures, or other damage resulting from such problems.

5.2              Maintenance and Support. Subject to Client’s timely payment of applicable Services fees, MRI will provide to Client the Maintenance and Support services for the Maintenance and Support plan indicated in the Order Document, under MRI’s Maintenance and Support policies in effect at the time the Services are provided for the level of Services ordered. “Maintenance and Support” includes (i) phone assistance and workarounds so that the Services operate in material conformance with the Functional Specifications, and (ii) updates, all of which are provided under MRI’s Maintenance and Support Policies (as may be amended by MRI from time to time) in effect at the time the Support is provided. The Maintenance and Support Policies can be found at https://www.mrisoftware.com/maintenanceandsupport. For the avoidance of doubt, Support excludes Professional Services.

6. CERTAIN OBLIGATIONS

6.1              Passwords; Security. Client is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user. Client is entirely responsible for any and all activities that occur under Client’s account. Client agrees to immediately notify MRI of any unauthorized use of Client’s account or any other breach of security known to Client. MRI shall have no liability for any loss or damage arising from Client’s failure to comply with these requirements.

6.2              Client Data. Client shall comply with all applicable laws as it relates to the use of the Services and shall be solely responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which it acquired Client Data.

6.3              Acceptable Use. Client acknowledges and agrees that MRI does not monitor or police the content of communications or data of Client or its users transmitted through the Services, and that MRI shall not be responsible for the content of any such communications or transmissions. Client shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Client agrees not to post or upload any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains Malicious Code; (c) violates the rights of others, such as data which infringes on any intellectual property rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law. Client further agrees not to interfere or disrupt networks connected to the Services, not to interfere with another entity’s use and enjoyment of similar services and to comply with all regulations, policies and procedures of networks connected to the Services. Client shall be responsible for obtaining any necessary licenses, permits, and consents for MRI with respect to the installation, maintenance, and access to the System.  MRI may remove any violating content posted on the Services or transmitted through the Services, without notice to Client. MRI may suspend or terminate any user’s access to the Services upon notice in the event that MRI reasonably determines that such user has violated the terms and conditions of this Agreement.

7. LIMITED WARRANTY

During the Term, MRI warrants that the Services will be free of Errors. If the Services do not perform as warranted, MRI shall use commercially reasonable efforts to correct such Errors, as Client’s exclusive remedy for any claim under this warranty. Client shall promptly notify MRI in writing of its claim. Provided that such claim is determined by MRI to be MRI’s responsibility, MRI shall, within thirty (30) business days’ of its receipt of Client’s written notice, (i) correct such Error; (ii) provide Client with a plan reasonably acceptable to Client for correcting the Error; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from MRI, then MRI or Client may terminate the affected Service, and Client will be entitled to a refund of the pre-paid portion of the fees paid for the affected Service. The preceding warranty cure shall constitute MRI’s entire liability and Client’s exclusive remedy for cure of the warranty set forth herein. If Client elects not to terminate the Service, Client waives all rights for the applicable warranty cure set forth herein.

8. CONFIDENTIALITY AND DATA

8.1              Confidentiality. Each party (“Receiving Party”) may, during the course of its provision and use of the Service hereunder, receive, have access to, and acquire knowledge from discussions with the other party (“Disclosing Party”) which may not be accessible or known to the general public, such as technical and business information concerning hardware, software, designs, specifications, techniques, processes, procedures, research, development, projects, products or services, business plans or opportunities, business strategies, finances, costs, vendors, penetration test results and other security information; defect and support information and metrics; and first and third party audit reports and attestations or Clients and other third party proprietary or confidential information that Disclosing Party treats as confidential, (“Confidential Information”). Confidential Information shall not include Client Data, and shall cease to include, as applicable, information or materials that (a) were generally known to the public on the Effective Date; (b) become generally known to the public after the Effective Date, other than as a result of the act or omission of the Receiving Party; (c) were rightfully known to the Receiving Party prior to its receipt thereof from the Disclosing Party; (d) are or were disclosed by the Disclosing Party generally without restriction on disclosure; (e) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (f) are independently developed by the Receiving Party as shown by documents and other competent evidence in the Receiving Party’s possession. The Receiving Party shall not: (i) use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission, (ii) disclose or make the Disclosing Party’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality if its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting such Confidential Information. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance.

8.2              Data. All right, title and interest in and to the Client Data is owned exclusively by Client or Owner. MRI shall have the right to access and use the Client Data solely to perform its obligations in accordance with the terms of this Agreement during the Term, and as otherwise expressly permitted in this Agreement. MRI shall be permitted, to use the data generated in connection with Client’s use of the Service for any legitimate business purpose.

9. INDEMNIFICATION

9.1              MRI Indemnification Obligation. Subject to Section 9.3, MRI will defend Client from any and all claims, demands, suits or proceedings brought against Client by a third party alleging that the Service or Professional Services, as provided by MRI to Client under this Agreement infringe any patent, copyright, or trademark or misappropriate any trade secret of any third party (each, a “Claim”). MRI will indemnify Client for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by MRI, in connection with a Claim. In the event of any such Claim, MRI may, at its option: (i) obtain a license to permit Client the ability to continue using the Service; (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement as to the infringing Service and refund to Client any prepaid, unused fees for such infringing Service hereunder. Notwithstanding the foregoing, MRI will have no liability for any infringement claim of any kind to the extent that it results from: (1) modifications to the Service made by a party other than MRI; (2) the combination of the Service with other products, processes or technologies (where the infringement would have been avoided but for such combination); or (3) Client’s use of the Service other than in accordance with the Documentation and this Agreement. The indemnification obligations set forth in this Section 9.1 are MRI’s sole and exclusive obligations, and Client’s sole and exclusive remedies, with respect to infringement or misappropriation of third party intellectual property rights of any kind.

9.2              Client Indemnification Obligation. Subject to Section 9.3, Client will defend MRI from any and all claims, demands, suits or proceedings brought against MRI by a third party alleging a violation of a third party’s rights arising from Client’s provision of the Client Data or Client’s user’s misuse of the Services. Client will indemnify MRI for all damages and/or costs (including but not limited to, reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid to a third party in accordance with a settlement agreement signed by Client.

9.3              Indemnity Requirements. The party seeking indemnity under this Section 9 (“Indemnitee“) must give the other party (“Indemnitor“) the following: (a) prompt written notice any claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the claim, at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the claim, provided that the Indemnitee may participate in the defense of the claim at its sole expense.

10. DISCLAIMERS AND LIMITATION OF LIABILITY

10.1            Disclaimer of Warranties. THE WARRANTIES, IF ANY, SET FORTH HEREIN ARE IN LIEU OF, AND MRI, ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT ANY SOFTWARE, SERVICE, CONTENT, DELIVERABLES OR OTHER SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, (AND (iii) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ADVICE, STATEMENT OR INFORMATION GIVEN BY MRI, ITS AFFILIATES, CONTRACTORS OR EMPLOYEES SHALL CREATE OR CHANGE ANY WARRANTY PROVIDED HEREIN. ALTHOUGH CERTAIN OF THE SOFTWARE AND CONTENT MAY BE DESIGNED TO HELP CLIENTS COMPLY WITH APPLICABLE LAWS AND REGULATIONS, MRI HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SUFFICIENCY OR ACCURACY OF THE SOFTWARE AND CONTENT IN THIS REGARD; MOREOVER, VARIOUS STATE LAWS MAY APPLY, AND THE SOFTWARE DOES NOT INCORPORATE STATE LAW REQUIREMENTS. ALL SUCH LAWS AND REGULATIONS MAY CHANGE FROM TIME TO TIME, AND THE SOFTWARE AND CONTENT MAY NOT BE UPDATED TO REFLECT SUCH CHANGES. CLIENT SHOULD CONSULT AN ATTORNEY WITH RESPECT TO COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.

10.2            Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, MRI’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES AWARDED UNDER THE AGREEMENT) TO CLIENT FOR ANY CLAIM BY CLIENT OR ANY THIRD PARTIES UNDER THE AGREEMENT, WILL BE LIMITED THE FEES PAID FOR THE PRIOR TWELVE (12) MONTHS FOR THE SERVICE WHICH IS THE SUBJECT MATTER OF THE CLAIM.

10.3            No Special Damages. IN NO EVENT WILL MRI BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, STAFF TIME, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT MRI HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.4            Time to Bring Claim. NO CLAIM ARISING OUT OF THE AGREEMENT, REGARDLESS OF FORM, MAY BE BROUGHT AGAINST MRI MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS OCCURRED.

10.5            Survival. THIS SECTION 10 SHALL SURVIVE FAILURE OF ANY EXCLUSIVE REMEDY.

11. GENERAL PROVISIONS

11.1            Force Majeure. Neither Party shall incur any liability to the other Party on account of any loss, claim, damage or liability to the extent resulting from any delay or failure to perform all or any part of this Agreement (except for payment obligations), if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without any negligence on the part of the Party seeking protection under this Section. Such events, occurrences, or causes shall include, without limitation, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire or explosions (“Force Majeure Events”). Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

11.2            Assignment. MRI may assign the Agreement and all of its rights and obligations herein without Client’s approval to its parent company or other affiliated company, to a successor by operation of law, or by reason of the sale or transfer of all or substantially all of its stock or assets to another entity. Client may assign the Services related to a specific property receiving the Services but only in the event of sale or transfer of management of the property receiving the Services and provided that the new Owner or property management company enter terms and conditions acceptable to MRI to continue receiving the Services as the property that is subject to the assignment.

11.3            Notices. Any notice required or permitted to be sent under the Agreement shall be delivered by hand; by overnight courier; by certified mail, return receipt requested; or in a conspicuous banner to the Client within the product, to the Parties first set forth in the Agreement or to such other address of the Parties designated in writing in accordance with this subsection.

11.4            Relationship. The Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.

11.5            Invalidity. If any provision of the Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

11.6            Survival. The following provisions will survive any termination or expiration of the Agreement: Sections 1, 2, 8.1, 9, 10, and 11.

11.7            No Waiver. Any waiver of the provisions of the Agreement or of a Party’s rights or remedies under the Agreement must be in writing and include a signature by an authorized representative of each Party to be effective. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time. The waiver by either of the Parties hereto of a breach or of a default under any of the provisions of the Agreement shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any Party may otherwise have at law or in equity. Failure, neglect, or delay by a Party to enforce the provisions of the Agreement or its rights or remedies at any time, shall not be construed and shall not be deemed to be a waiver of such Party’s rights under the Agreement and shall not in any way affect the validity of the whole or any part of the Agreement or prejudice such Party’s right to take subsequent action.

11.8            Entire Agreement. The Agreement constitutes the Parties’ entire agreement relating to the Services provided for in the applicable Order Document. It cancels and supersedes all prior or contemporaneous oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the Parties relating to Services provided for in the applicable Order Document. No modification to the Agreement will be binding unless in writing and includes a signature by an authorized representative of each Party. All pre-printed terms of any Client purchase order or other Client business processing document shall have no effect. Each Party represents and warrants to the other that: (i) it has full power, authority, and legal right to execute, deliver, and perform this Agreement, (ii) each signor is duly authorized and has legal capacity to execute and deliver this Agreement and (iii) this Agreement constitutes the legal, valid, and binding obligation of the Parties, enforceable in accordance with its terms.

11.9            No Third Party Beneficiaries. This Agreement is for the benefit of the Parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a Party, any client of a Party, or any employee of a client of a Party.

11.10 Governing Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of Ohio without giving effect to its principles of conflict of laws. Any dispute shall be litigated in the state or federal courts located in the State of Ohio to whose exclusive jurisdiction the Parties hereby consent. For purposes of establishing jurisdiction in Ohio under this Agreement, each Party hereby waives, to the fullest extent permitted by applicable law, any claim that: (i) it is not personally subject to the jurisdiction of such court; (ii) it is immune from any legal process with respect to it or its property; and (iii) any such suit, action or proceeding is brought in an inconvenient forum. Each Party irrevocably waive its rights to trial by jury in any action or proceeding arising out of or relating to this Agreement or the transactions relating to its subject matter. The Parties agree that this contract is not a contract for the sale of goods; therefore, the Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA”), or any references to the United National Convention on Contracts for the International Sale of Goods.

11.11          Legal Fees and Costs. In the event of a dispute between the Parties regarding the enforcement of the Agreement, the prevailing Party in such dispute will be entitled to collect from the other Party the prevailing Party’s reasonable legal fees and costs.

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END OF THE CALLMAX SERVICES AGREEMENT

DATA PROTECTION AND SECURITY SCHEDULE

This Data Protection and Security Schedule is entered into between MRI Software company outlined on the applicable Order Document (“MRI”) and the Client named in the Order Document, and the authorized representatives of the Parties hereby execute this Data Protection and Security Schedule to be effective as of the Effective Date, as defined in the Order Document.  Capitalized terms not defined herein shall have the meaning set forth in the Agreement.

1. Definitions

“Controller” means the natural or legal person which determines (individually or jointly or in common with others) the purposes for which and the manner in which any Client Personal Data are or will be Processed.  For the purposes of this Agreement, the Client shall be deemed the Controller.  Controller shall include a Business under the CCPA.

“Data Breach” shall mean a breach of security resulting from an act or omission by MRI, its employees or its subcontractors, leading to an accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.  For the purposes of this Agreement.

“Data Protection Legislation” means any applicable laws relating to the Processing, privacy, and use of Personal Data applicable to the Parties, might can include California Consumer Privacy Act (“CCPA”).

“Personal Data” shall mean any information relating to an identified or identifiable natural person (‘Data Subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person which is provided by the Client to MRI.  The business information of the Client is not by itself deemed to be Personal Data, unless otherwise determined to be under applicable laws.  Personal Data is deemed to be Confidential Information of Client.

“Processing” means any operation or set of operations which is performed on Personal Data or sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and “Process” and “Processed” will be interpreted accordingly.

“Processing Instructions” means the written instructions for Processing Client Personal Data, as set out in this Schedule and in the Agreement, and otherwise as provided in writing by or on behalf of Client to MRI or a MRI Affiliate from time to time.

“Processor” means the natural or legal person, public authority, agency or other body which Processes Personal Data on behalf of the Controller.  For the purposes of this Agreement, MRI shall be deemed the Processor.  Processor shall include a Service Provider under the CCPA.

“Sub-contractor” or “Third Party” means any third party engaged by MRI in provision of the Services or otherwise delivering any part of the Services.

2. Security

2.1.             General. MRI shall ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to the Personal Data, which are appropriate to the harm that might result from the unauthorized or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures. During the Term of the Agreement, MRI shall maintain a documented information security plan (“Information Security Program”).  MRI agrees to comply with all of its own requirements contained in such Information Security Program.  MRI’s Information Security Program shall include, at a minimum, appropriate controls and measures in relation to: (1) physical security at all MRI locations involved in the provision of the Services; (2) technical security with respect to the Client Data in MRI’s possession; (3) organizational security arrangements regarding the employees and other representatives of MRI, its Affiliates, and its subcontractors, including training and awareness, staff vetting procedures and other security measures (e.g. use of passwords and security credentials); (4) securing Client Data contained within the SaaS Services; (5) Disaster Recovery and Business Continuity; (6) Vulnerability Testing and Security Audit; and (7) Data Breach Procedures.  Additionally, MRI’s Information Security Program shall comply with all laws applicable to MRI related to its security programs.  MRI may update its Information Security Program from time to time in its sole discretion.  Upon the occurrence of a disaster, MRI must evaluate the cause of the disaster as soon as possible, attempt to remediate the cause, and, if the outage will be sustained or cannot be remediated promptly, take appropriate actions to minimize the impact of the Disaster to the Client, such as implementing the Disaster Recover/Business Continuity Plan.  Client shall not be charged an additional fee for any disaster recovery services, including backups and database restorations, performed by MRI due to a Disaster (whether at the MRI hosting location, within the SaaS Services or otherwise).  MRI shall evaluate the effectiveness of its Information Security Program on a commercially reasonable periodic basis, but no less frequently than annually and (if it, acting reasonably, considers it necessary to do so) update the same.

2.2.             Disaster Recovery and Business Continuity.  MRI shall implement and maintain a disaster recovery plan with contingency measures as are reasonable within its industry in light of the sensitivity of the Services which MRI provides (the “Disaster Recovery/Business Continuity Plan”).  Upon the occurrence of a Disaster, MRI must promptly evaluate the cause of the Disaster, attempt to remediate the cause and, if the outage will be sustained or cannot be remediated promptly, then it will promptly implement the Disaster Recovery/Business Continuity Plan.  Client shall not be charged an additional fee for any disaster recovery services, including backups and database restorations, performed by MRI due to a Disaster (whether at the MRI hosting location, within the SaaS Services or otherwise). MRI shall evaluate the effectiveness of its Disaster Recovery/Business Continuity Plan on a commercially reasonable periodic basis, but not less frequently than annually.  MRI may modify the Disaster Recovery/Business Continuity Plan from time to time, in its sole discretion, provided that such modifications do not materially and negatively modify the services provided in the Disaster Recovery/Business Continuity Plan as of the execution of this Agreement.

2.3.             Vulnerability Testing and Security Audit.  MRI shall conduct regular penetration and vulnerability testing of its information technology infrastructure and networks, at a commercially reasonable frequency.  Upon Client’s request, MRI shall provide a letter of attestation to Client that the testing occurred.  MRI may modify the scope of such penetration and vulnerability testing provided however, that the scope shall not materially and negatively change from the execution of this Agreement.  During the Term of the Agreement, MRI shall comply with industry standard practices for audit and security procedures.

2.4.             Data Breach.  MRI will take commercially reasonable, but not less than industry standard, measures to protect the security of such Personal Data transferred by Client to MRI.  In the event that MRI becomes aware or reasonably suspects that a Data Breach involving Client’s Personal Data has occurred, MRI will without undue delay: (i) investigate the cause of the Data Breach; (ii) notify Client of the Data Breach and provide sufficient information to allow the Client to report the Data Breach and/or notify the data subject, if required; (iii) contain and remedy any Data Breach; (iv) take reasonable steps to mitigate the effects of and to minimize any damage resulting from the Data Breach; (v) reasonably assist Client in remediating or mitigating any potential damage from a Data Breach to the extent that such remediation or mitigation is within MRI’s control; (vi) take reasonable steps to restore the security and integrity of any Systems used by MRI and/or its subcontractors to provide the Services; (vii) if the Data Breach resulted from Client’s own actions the Client shall immediately, on demand, reimburse MRI for any costs incurred in relation to undertaking any of the foregoing and all costs, losses, damages, expenses or otherwise incurred by MRI to the extent that the same arise from such actions of the Client.

3. Provision of Personal Data. In addition to the terms and conditions set forth in the Agreement, Client agrees to only input into, transfer into the MRI Software and SaaS Services or provide access to MRI such Personal Data: (i) if and to the extent that Client is authorized to do so under applicable law, including obtaining any relevant consents from the Data Subject for such disclosure; (ii) if and to the extent that such Personal Data is necessary to enable MRI to provide the Services under this Agreement; (iii), and to do so only in fields specifically designed to house such Personal Data. MRI shall have no liability to Client, and Client shall indemnify MRI for all claims by third parties resulting from Client’s storing Personal Data in non-designated fields.  Client shall remove any Personal Data from its database(s) once it is no longer necessary for that purpose and may engage MRI (at MRI’s then-current rates to assist in such deletion).
4. Data Processing. As Processor, MRI will only act upon and Process the Client’s Personal Data for the purposes of performing its obligations under the Agreement or as outlined in MRI’s Privacy Policy, subject to the Processing Instructions.  MRI’s Privacy Policy may be found at https://www.mrisoftware.com/privacy-policy/ , and may be updated from time to time by MRI.  Where Client is purchasing any of MRI’s marketing products then MRI’s Web Marketing Privacy Policy shall apply which may be found at https://www.mrisoftware.com/webmarketingprivacypolicy  and which may be updated from time to time.  Client’s instruction to cease Processing Client Personal Data shall not alleviate Client’s obligations under the Agreement, including without limitation, its payment obligations.

Additionally, MRI shall be permitted to Process Client Personal Data, without regard for the Processing Instructions, if required to do so by Data Protection Legislation; in such case, MRI shall promptly notify the Client of that legal requirement before Processing, unless that law prohibits such notification.  If MRI is ever unsure as to the parameters or lawfulness of the Processing Instructions issued by Client, MRI will, as soon as reasonably practicable, revert to Client. MRI shall comply with its obligations as a Processor under the applicable Data Protection Legislation in relation to the Processing of Client Personal Data by it under this Agreement.

5. Data Subject Requests. MRI shall, at its option and subject to the requirements of the Data Protection Legislation, (i) respond directly to the request from the Data Subject, or (ii) forward to the Client any requests from Data Subjects in respect of Personal Data pursuant to Data Protection Legislation (including the ability to correct, delete, block or port Client Personal Data and rights of access) and reasonably cooperate with the Client in complying with any such Data Subject’s exercise of his/her rights in relation to such Personal Data as is Processed by MRI. Client may be required to make such requested modifications itself within the MRI system to fulfill the data subject request.  For the purposes of responding to data subject requests, MRI shall be permitted to disclose information related to the Client as it relates to the data subject request.
6. Duration of Processing. Processing of the Client’s Personal Data by MRI shall be for the Term of this Agreement, subject to restrictions outlined by Data Protection Legislation.  Any Client Data remaining within the accessible SaaS Services beyond the expiration of the Term of this Agreement, shall be permanently deleted, without notice to Client.  The Parties agree that the Personal Data, may be held in back up for up to one (1) year following the expiration of the Term.  Client may engage MRI to return the Client Data, at MRI’s then standard rates.
7. Scope of Personal Data. Client may provide and MRI may process the following types/categories of Personal Data for the following categories of Data Subject, or as otherwise provided to MRI by the Client:

8. MRI personnel. MRI shall ensure that its personnel and any Subcontractors will not Process the Client’s Personal Data except in accordance with the provisions of this Schedule; and MRI will procure that the same are contractually obligated to maintain the security and confidentiality of any Client Personal Data. MRI shall take reasonable steps to ensure that the personnel Processing the Client’s Personal Data receive adequate training on compliance with this Agreement and the Data Protection Legislation applicable to the Processing.
9. Subcontractors. The Client consents to MRI utilizing any of the sub-contractors listed on MRI’s Service Providers/Subprocessor list, which may be found at www.mrisoftware.com/subprocessors .   The MRI’s Service Providers/Subprocessor list may be updated by MRI from time to time without the Client’s prior approval, provided that MRI shall:(a) carry out adequate due diligence to ensure that the Sub-contractor is capable of providing the level of protection for Client Personal Data required by this Agreement; and (b) ensure that any additional or replacement Sub-contractors shall be contractually bound to obligations with respect to the Processing of Client Personal Data substantially similar to those to which MRI is bound by this Schedule.
10. Compliance. MRI shall maintain such records and information as are necessary to demonstrate its compliance with Data Protection Legislation in relation to the Processing of Personal Data on behalf of Client under this Agreement, containing as a minimum the information required under Data Protection Legislation, which shall be made available to Client upon request. MRI shall reasonably cooperate with the Client in good faith to ensure compliance with its obligations under the Data Protection Legislation in respect of Personal Data taking into account the nature of Processing and the information available to MRI.
11. Audit. As required by applicable Data Protection Legislation, MRI shall, at the Client’s cost, make available to the Client on reasonable request such information that is in its possession or control as is necessary to demonstrate MRI’s compliance with the obligations placed on it under this Schedule) provided that under no circumstances shall a Client be granted access to MRI’s offices, facilities, storage devices or infrastructure. MRI shall be entitled to withhold information and limit access to information on grounds of commercial sensitivity and/or confidentiality and shall not be obligated to provide such information that the Client can obtain for itself via the Services.
12. California Terms. Notwithstanding anything to the contrary in this Agreement, the following clause shall apply for Clients processing Personal Data of data subjects located in California:
13. MRI shall not: (1) “Sell” or “Share” Personal Data as those terms are defined under Data Protection Legislation; (2) retain, use, disclose, or otherwise Process Personal Data except as necessary for the business purposes specified in the Agreement or this Schedule; (3) retain, use, disclose, or otherwise Process Personal Data in any manner outside of the direct business relationship between Client and MRI except as necessary for the business purposes specified in the Agreement or this Schedule; or (4) combine any Personal Data with Personal Data that MRI receives from or on behalf of any other third party or collects from MRI’s own interactions with Data Subjects, provided that MRI may so combine Personal Data for a purpose permitted under Data Protection Legislation if directed to do so by Client or as otherwise expressly permitted by the Data Protection Legislation.
14. MRI shall: (1) notify Client if MRI becomes aware that it is no longer able to meet its obligations under applicable Data Protection Legislation; and (2) take reasonable and appropriate steps to help ensure that Personal Data use is consistent with Client’s obligations under applicable Data Privacy Legislation.

13.              Order of Precedence.  In case of any conflict or inconsistency between the provisions of this Schedule and the terms of the Callmax Services Agreement, the provisions contained in this Schedule shall prevail to the extent of the inconsistency, provided always that nothing in this Schedule shall permit MRI (or any sub-Processor) to handle Personal Data in a manner which is prohibited by this Agreement or by applicable law.