MASTER SERVICES AGREEMENT

 

This Master Services Agreement (“Agreement”) is entered into by and between Agatha Global Tech, LLC, a California limited liability company with its principal place of business at 24031 El Toro Road, Suite 304, Laguna Hills, CA  92653, E-Mail: legal@annuitiesgenius.com (“Agatha”), and the subscriber who is agreeing to this Agreement (“Subscriber”) as of the date it is agreed to by Subscriber (“Effective Date”).

1. DEFINITIONS.
   1. “Affiliate” means, with respect to any specified party, any other person or entity who, directly or indirectly, controls, is controlled by, or is under common control with such party.
   2. “Annuities Genius Service” means a unique instance of the object code version of the “Annuities Genius” platform containing content about annuities products, including any Updates to the foregoing, that is (i) hosted on servers owned or leased by Agatha and (ii) made available to Subscriber via the website located at www.annuitiesgenius.com.
   3. “Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is marked as “confidential” or “proprietary” or with a similar designation at the time of the disclosure, or is or should be reasonably understood to be confidential or proprietary to the disclosing party given the nature of the information and the circumstances of the disclosure, including, without limitation, information about the Annuities Genius Service, the Documentation, and the terms of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information, (ii) was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records, (iii) is received from a third-party that is not under an obligation of confidentiality to the disclosing party with respect to such information, or (iv) is independently developed by the recipient of the information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records.
   4. “Documentation” means such manuals, documentation and any other supporting materials relating to the Annuities Genius Service that are provided to Subscriber by Agatha in connection with this Agreement.
   5. “Intellectual Property Rights” means any and all rights existing from time to time under patent, copyright, trademark, trade secret, unfair competition, moral rights, publicity rights, privacy rights laws, and any and all other proprietary rights.
   6. “Legal Requirements” means all applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities.
   7. “SLA” means the Service Level Agreement set forth on Exhibit A to this Agreement.
   8. “Subscriber Content” means any and all data, materials, information, and content (including, without limitation, any Subscriber Marks) (i) provided to Agatha by Subscriber or any third-party authorized by Subscriber for use in connection with the Annuities Genius Service or (ii) posted by Subscriber directly on the Annuities Genius Service. “
   9. Subscriber Marks” means the tradenames, stylized trademarks and service marks, domain names, and logos of Subscriber provided by Subscriber to Agatha for use pursuant to this Agreement. 
   10. “Updates” means any modifications, error corrections, bug fixes, new releases, or other updates of or to the Annuities Genius Service and/or Documentation that are generally made available by Agatha to its customers at no additional charge during the term of this Agreement.  Updates do not include any releases, options, or future products that Agatha licenses separately.
   11. “Usage Data” means information collected by Agatha about Subscriber’s use of the Annuities Genius Service.  
2. ANNUITIES GENIUS SERVICE.
   1. License to Annuities Genius Service. Subject to the terms and conditions of this Agreement and the timely payment of all fees hereunder, Agatha grants to Subscriber a nonexclusive, nontransferable, non-sublicensable limited right and license, during the term of this Agreement, to access and use a single seat of the Annuities Genius Service through a compatible Internet browser or other remote Internet interface approved by Agatha on a single computer for the sole purpose of providing investment advice to Subscriber’s clients; provided, however, that Subscriber’s use of the Annuities Genius Service in accordance with the licenses above must be exercised solely (a) in accordance with the Documentation, (b) for Subscriber’s own internal business use, and (c) subject to the limitations and restrictions set forth in this Agreement.   SUBSCRIBER MAY NOT PROVIDE ACCESS TO THE ANNUITIES GENIUS SERVICE TO ANY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, TO ANY AGENCIES, MARKETERS, OR AFFILIATES OF SUBSCRIBER.  Except as set forth in this Section 2(a), no other right or license of any kind is granted by Agatha to Subscriber hereunder with respect to the Annuities Genius Service.  Except as otherwise expressly set forth in this Agreement, Agatha is not obligated to customize or alter the Annuities Genius Service for Subscriber.
   2. Restrictions.
      1. Subscriber acknowledges that the Annuities Genius Service, including, without limitation, the know-how embodied therein, constitute the valuable trade secrets of Agatha. Subscriber may not, and may not allow others, to (a) copy, disassemble, decompile, “unlock,” reverse translate, reverse engineer, decode, modify, create derivative works based on, or customize the Annuities Genius Service or any component thereof, (b) copy, use, or commercially exploit in any way the Annuities Genius Service or any component thereof, other than as expressly allowed in this Agreement, (c) distribute, assign, sell, lease, sublicense, grant a security interest in, or otherwise offer the benefits of the Annuities Genius Service to any third party, whether such arrangement is in the nature of a service bureau, an outsourcing service, or any other similar service or business, (d) access (or attempt to access) the Annuities Genius Service by any means other than through a compatible Internet browser, or (e) gain unauthorized access to the Annuities Genius Service.
      2. Subscriber is solely responsible for all Subscriber Content accessible on or through the Annuities Genius Service.   Notwithstanding the foregoing, Agatha reserves the right to (a) suspend or permanently terminate Subscriber’s use of the Annuities Genius Service (or any portion thereof) if Agatha believes, in its sole discretion, that such use could be harmful to Agatha or Subscriber in any way, including, without limitation because such use could create liability for Agatha or Subscriber or otherwise negatively impact Agatha’s or Subscriber’s reputation or goodwill and (b) remove any Subscriber Content from the Annuities Genius Service that Agatha believes, in its sole discretion, violates any Legal Requirement or the terms of this Agreement or if Agatha believes, in its sole discretion, that such Subscriber Content could be harmful to Agatha or Subscriber in any way, including, without limitation, because it could create liability for Agatha or Subscriber or otherwise negatively impact Agatha’s or Subscriber’s reputation or goodwill.
      3. Service Level Agreement.  The maintenance of the Annuities Genius Service will be governed by the SLA attached hereto as Exhibit A.  
   3. Subscriber Responsibilities.
      1. Subscriber agrees that its use of the Annuities Genius Service will comply with all Legal Requirements.
      2. Subscriber is responsible for providing and paying for all hardware, system software, access devices, networks and telecommunications or other connections required to access the Annuities Genius Service through a compatible Internet browser.
      3. Subscriber agrees to make available to Agatha, at Subscriber’s expense, any Subscriber Materials (as defined below) reasonably necessary for Agatha to provide the Annuities Genius Service.   
      4. Subscriber is responsible for ensuring that Subscriber Content is collected in compliance with Legal Requirements and that the contemplated use of Subscriber Content by Agatha as set forth in this Agreement does not violate the rights of any third party.
   4. Trademark Licenses.  Subscriber hereby grants to Agatha a non-transferable, non-exclusive, non-sublicensable, royalty-free, limited right and license, during the Term, to use and display Subscriber Marks on the Annuities Genius Service as contemplated in this Agreement. Subscriber must provide Agatha with a Subscriber Mark for each permitted use set forth in this Section 2(e).  All materials in which Agatha wishes to use Subscriber’s Marks will be subject to Subscriber’s prior approval.
3. CONFIDENTIAL INFORMATION.  
   1. Confidentiality Obligations.  Each party will (i) hold all Confidential Information of the other party in strict confidence and will not disclose any Confidential Information to any third party except to its officers, employees, contractors and agents (collectively, “representatives”) who have a need to know such Confidential Information in connection with the performance of its obligations under this Agreement, provided that the receiving party’s representatives have been informed by the receiving party of the confidential nature of such Confidential Information and have been instructed by such receiving party to keep such Confidential Information confidential in accordance with the terms of this Section 3(a), it being understood that the receiving party will be responsible for any breaches of this Section 3(a) by such representatives, (ii) avoid the unauthorized use or disclosure of the other party’s Confidential Information using the same degree of care that it uses in safeguarding its own confidential information, but in no event less than a reasonable degree of care, and (iii) use the other party’s Confidential Information only in connection with the performance of its obligations under this Agreement.  Notwithstanding the foregoing, the restrictions on Confidential Information contained in this Section 3(a) will not apply to the extent that such disclosure is: (i) approved in writing by the disclosing party, (ii) necessary for the receiving party to enforce its rights under this Agreement in connection with a legal proceeding, or (iii) required by law or by the order of a court or a similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
   2. Equitable Relief.  The parties acknowledge that (i) the covenants contained in Section 3(a) are reasonable and necessary to protect the legitimate interests of the parties, (ii) the parties would not have entered into this Agreement in the absence of such covenants, and (iii) any violation or threatened violation of such covenants would cause irreparable harm for which monetary damages would not be adequate.   Therefore, the parties agree that, in the event of a breach of Section 3(a) by a party, the other party will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law, and the breaching party will reimburse the non-breaching party for the reasonable costs associated with such enforcement (including any attorney’s fees).
4. PAYMENT.
   1. Fees. Subscriber will pay Agatha the fees set forth on Exhibit B (collectively, the “Fees”). If Agatha incurs any fees or expenses resulting from Subscriber’s chosen method of payment, Subscriber will reimburse Agatha for such fees and expenses.
   2. Invoices and Terms.  At the beginning of each payment period as described on Exhibit B, Agatha will deliver an invoice to Subscriber for the Fees due to Agatha for such payment period and any prior payment periods.  Subscriber will pay each invoice in United States dollars via ACH (initiated by Subscriber) to Agatha’s bank account or by credit card within thirty (30) calendar days of the invoice date. If Subscriber breaches the immediately preceding sentence at any time during the Term, Subscriber hereby authorizes Agatha to debit Subscriber’s designated bank account (ACH) for any Fees then accrued or thereafter accrued until the expiration or termination of this Agreement, without any further authorization from Subscriber. If Subscriber wishes to alter its designated bank account, Subscriber will immediately provide Agatha with the information regarding the new designated account necessary for Agatha to debit such account pursuant to this paragraph. If any Fee or other amount owed is past due, Agatha reserves the right to (i) apply a service charge to such overdue balance at the rate of 1.5% per month (but in no event more than the maximum rate allowed by law) and/or (ii) suspend Subscriber’s access to the Annuities Genius Service.    
   3. Taxes.  Subscriber will also be responsible for payment of all taxes (other than taxes based on Agatha’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of Fees to Agatha under this Agreement.  Subscriber will pay all Fees to Agatha free and clear of, and without reduction for, any withholding taxes. 
5. TERM; TERMINATION.
   1. Term. The term of this Agreement will commence on the Effective Date.  If  either party notifies the other party that it wishes to terminate this Agreement, the Agreement will terminate on the last day of the then-current period for which the Subscriber has subscribed to the Annuities Genius Service (the “Term”). Notwithstanding the foregoing, if Subscriber is in breach of Subscriber’s obligation to pay Agatha any Fees, Agatha may terminate this Agreement and the Term without notice to Subscriber by merely cancelling Subscriber’s access to the Annuities Genius Service.
   2. Termination.  Agatha may terminate this Agreement at any time and for any reason by providing written notice to the Subscriber (e-mail being sufficient).  Subscriber may terminate this Agreement at any time and for any reason by providing notice to Agatha either within the Annuities Genius Service, by e-mail to help@annuitiesgenious.com, or by telephone. 
   3. Effects. Upon the termination of this Agreement for any reason: (i) all rights and licenses granted to Subscriber hereunder will terminate on the last day of the Term, (ii) Subscriber will stop using the Annuities Genius Service after the last day of the Term, and (iii) within thirty (30) days of the end of the Term, each party will, at the other party’s option, either destroy or permanently erase all copies of the other party’s Confidential Information under its control; provided, however, that each party may retain one archival copy the other party’s Confidential Information. Upon any termination of this Agreement, (i) Subscriber will still be obligated to pay all Fees that have accrued pursuant to this Agreement prior to the effective date of termination within five (5) days after such date of termination and (ii) Agatha may retain all Fees paid prior to the end of the Term, which amounts will not be refundable to Subscriber under any circumstances. Either party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve either party of breaches occurring prior to the effective date of such termination.  Sections 1, 2(b), 2(e), and 3-10, and any other provisions in the Exhibits to this Agreement that by their nature would reasonably be expected to survive, will survive the expiration or termination of this Agreement.  
6. PROPRIETARY RIGHTS.
   1. Agatha. As between Agatha and Subscriber, Agatha will exclusively own and retain all right, title, and interest, including all Intellectual Property Rights, in and to (i) the Annuities Genius Service (including all Documentation), including, without limitation, all software, technology, information, content (including, without limitation, annuities rate information and product data), and materials relating thereto and/or generated thereby, (ii) Usage Data, (iii) all Confidential Information of Agatha, (iv) any suggestions, recommendations, or other feedback relating to the Annuities Genius Service provided by Subscriber to Agatha, and (v) any modifications, Updates, copies, translations, improvements, derivative works, or adaptations of any of the foregoing, irrespective of who authored, invented, or made same. For clarity, Subscriber may not use any content obtained from the Annuities Genius Service, including, without limitation, annuities rate information and product data, outside of the Annuities Genius Service. 
   2. Subscriber. As between Agatha and Subscriber, Subscriber will exclusively own all right, title, and interest, including all Intellectual Property Rights, in and to (i) all Confidential Information of Subscriber and (ii) all Subscriber Content (collectively, the “Subscriber Materials”). Subscriber hereby grants Agatha a royalty-free, worldwide, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display, and make derivative works of the Subscriber Materials, or any portion thereof, solely for the purpose of performing its obligations under this Agreement.  
7. LIMITED WARRANTY.
   1. Mutual.  Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement (i) is within its corporate powers, (ii) has been duly authorized by all necessary corporate action on such party’s part, and (iii) does not and will not contravene, violate, or constitute a default under, and is not and will not be inconsistent with, any Legal Requirement, judgment, decree or order, or any contract, agreement, or other undertaking, applicable to such party.
   2. Annuities Genius Service. Agatha warrants that, when operated in accordance with the Documentation, the Annuities Genius Service will substantially conform to the specifications set forth in the Documentation. Notwithstanding the foregoing, Agatha’s warranty in this paragraph will not apply to the extent that Agatha’s breach of such warranty arises from (i) any use of the Annuities Genius Service not in accordance with the terms of this Agreement or any Legal Requirements, (ii) any Subscriber Content, (iii) any use of the Annuities Genius Service in combination with other services, products or data provided by Subscriber or third parties, or (iv) any modification of the Annuities Genius Service by Subscriber or any third party.  Agatha’s sole obligation, and Subscriber’s sole remedy, for a breach of the warranty in this paragraph will be, at Agatha’s option, either to (i) remedy the purported defect within a reasonable time or (ii) terminate this Agreement and refund any Fees that have been prepaid by Subscriber for the Annuities Genius Service for any period of time after such termination.  
   3. General Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 7(a) and 7(b) OR any SLA, THE ANNUITIES GENIUS SERVICE IS PROVIDED “AS-IS” AND “AS AVAILABLE”, AND AGATHA EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE ANNUITIES GENIUS SERVICE OR ANY OTHER ASPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. AGATHA DOES NOT WARRANT THAT THE ANNUITIES GENIUS SERVICE WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT ITS ACCESSIBILITY OR OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT THE ELECTRICAL, INTERNET, WIRELESS, OR CELLULAR NETWORKS NECESSARY TO OPERATE THE ANNUITIES GENIUS SERVICE WILL BE AVAILABLE, OR THAT THE ANNUITIES GENIUS SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. AGATHA IS NOT LIABLE TO SUBSCRIBER FOR ANY LOSS OR CORRUPTION OF SUBSCRIBER CONTENT ON THE ANNUITIES GENIUS SERVICE.  SUBSCRIBER ACKNOWLEDGES THAT ACCESS TO INFORMATION STORED IN THE ANNUITIES GENIUS SERVICE IS NOT GUARANTEED, AND SUBSCRIBER AGREES TO EMPLOY APPROPRIATE BACK-UP PROCEDURES FOR DATA STORAGE IN ORDER THAT ANY LOSS OF DATA CAUSED BY THE ANNUITIES GENIUS SERVICE OR THE ANNUITIES GENIUS SERVICE’S UNAVAILABILITY WILL NOT ADVERSELY AFFECT SUBSCRIBER. TO THE EXTENT AGATHA MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
   4. Third-Party Data.  THE ANNUITIES GENIUS SERVICE MAY CONTAIN DATA FROM THIRD-PARTY PROVIDERS AND/OR WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY AGATHA. AGATHA HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, SUCH DATA OR POLICIES, OR PRACTICES OF ANY THIRD-PARTY DATA PROVIDER. SUBSCRIBER EXPRESSLY RELIEVES AGATHA FROM ANY AND ALL LIABILITY ARISING FROM SUBSCRIBER’S USE OF ANY SUCH THIRD-PARTY DATA. 
8. LIMITATION OF LIABILITY. AGATHA’S AGGREGATE LIABILITY TO SUBSCRIBER FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO AGATHA PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM INITIALLY AROSE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE) WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, FROM SUCH PARTY’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY’S BUSINESS. 
9. INDEMNIFICATION. 
   1. Agatha.   Agatha will, at its sole expense, defend, indemnify, save and hold harmless Subscriber from any and all damages, losses, liabilities, costs or expenses, including reasonable attorneys’ fees (collectively, “Losses”), resulting from third-party claims, demands, suits, or proceedings (collectively, “Claims”) arising out of or relating to (i) Agatha’s breach of its representations, warranties, or covenants set forth in this Agreement, (ii) the infringement of any valid United States copyright or trade secret by the Annuities Genius Service (which, for clarity, does not include Subscriber Materials), and (iii) Agatha’s gross negligence or willful misconduct.  Notwithstanding the foregoing, Agatha’s indemnity obligation in this paragraph will not apply to the extent that such obligation arises from (i) any use of the Annuities Genius Service not in accordance with the terms of this Agreement or any Legal Requirements, (ii) any use of the Annuities Genius Service in combination with other services, products or data provided by Subscriber or third parties, or (iii) any modification of the Annuities Genius Service by Subscriber or any third party.  
   2. Subscriber.  Subscriber will, at its sole expense, defend, indemnify, save and hold harmless Agatha and Agatha’s officers, directors, agents and employees from any and all Losses resulting from Claims arising out or relating to (i) an alleged breach by Subscriber of any representation, warranty or covenant of Subscriber in this Agreement, (ii) the Subscriber Materials, (iii) acts or omissions of Subscriber in connection with the use of the Annuities Genius Service, and (iv) Subscriber’s gross negligence or willful misconduct.
   3. Requirements.  Any party seeking indemnification under this Agreement will (i) promptly notify the indemnifying party in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such delay), (ii) provide the indemnifying party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at the indemnifying party’s expense, to the extent of any out-of-pocket expenses), and (iii) give the indemnifying party full control and sole authority over the defense and settlement of such claim, subject to the indemnified party’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.
10. MISCELLANEOUS.
    1. Export Restrictions.  Subscriber understands and acknowledges that Agatha is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, that prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of Agatha to provide access to the Annuities Genius Service are subject in all respects to such United States laws and regulations as from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, Bureau of Export Administration (“BXA”).  Subscriber agrees to comply in all respects with the export and re-export restrictions applicable to the Annuities Genius Service and will otherwise comply with the EAR or other United States laws and regulations in effect from time to time.  
    2. Entire Agreement; Amendments. This Agreement, including any exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter, including, without limitation,  any purchase orders or other business forms drafted by Subscriber, whether or not signed by Agatha, which are hereby terminated and of no further force or effect. This Agreement may be modified or amended only by a writing signed by an authorized representative of both parties. 
    3. Waivers.  The waiver by either party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement.  No delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operates as a waiver of any right or remedy.   
    4. Severability.  If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
    5. Assignment. The rights granted and obligations undertaken in this Agreement are personal to Subscriber and Subscriber agrees not to transfer, assign or sublicense such rights or obligations to any third-party. Any attempted transfer, assignment or sublicense of such rights or obligations by Subscriber will be null and void.
    6. Relationship.  The relationship of Agatha and Subscriber established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties or any of its respective agents or employees. Nothing in this Agreement grants to either party the authority to make any promise, warranty, guarantee, or representation that will create any obligation or liability whatsoever, whether express or implied, on behalf of the other. 
    7. Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any contrary choice of law rules, and applicable United States federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any action or proceeding brought by one party to this Agreement against the other party to this Agreement that seeks to enforce any provision of, or based on any right arising out of, this Agreement will be brought exclusively in a state or federal court located in Orange County, California. Each of the parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. 
    8. Prevailing Party.  If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one party against the other party relating to this Agreement or the breach or alleged breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, will be entitled to reimbursement from the other party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
    9. Notices. All notices under this Agreement will be in writing and will be delivered to a party at the physical address or e-mail address specified in the first paragraph of this Agreement by Agatha or as provided by Subscriber to Agatha, Attn: Chief Legal Officer, by: (1) depositing the notice in the mail, using registered mail, return receipt requested, (2) overnight delivery service, (3) e-mail, or (4) hand delivery to an individual authorized to accept such delivery. The notice will be effective (i) seven (7) calendar days after deposit in the mail, (ii) the next business day after deposit with an overnight delivery service, (iii) upon receipt by e-mail, or (iv) on the date of hand delivery.
    10. Force Majeure. Except for Subscriber’s obligations to pay Agatha hereunder, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.
    11. Construction. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent. This Agreement will be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under this Agreement. 
    12. Headings.  The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
    13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same Agreement. All signed fax copies of the Agreement will be deemed as valid as an original.

 

 

 

EXHIBIT A

 

SERVICE LEVEL AGREEMENT

 

1. DEFINITIONS.
   1. “Error” means, with respect to this Exhibit A only, an event that causes interruption to, or a reduction in, the quality of, the Annuities Genius Service. 
   2. “Response Time” means, after Agatha receives notice of an Error, the amount of time it takes Agatha to provide Subscriber with an update and potential resolution time for such Error.  
   3. “Resolution Time” means, after Agatha receives notice of an Error, the amount of time it takes Agatha to resolve such Error, which may include a permanent fix or temporary workaround.
   4. “Scheduled Downtime” means the number of hours in a given calendar month that one or more material elements of the Annuities Genius Service is not available to Subscriber because of scheduled system maintenance across the Annuities Genius Service (i.e., not Subscriber-specific) for which Agatha has provided Subscriber with at least 72 hours prior notice.   Notwithstanding the foregoing, Annuities Genius Service downtime that occurs  on Sunday will qualify as “Scheduled Downtime” without the need for Agatha to provide prior notice to Subscriber. Agatha will use commercially reasonable efforts to perform Scheduled Downtime from 11:00 p.m-4:00 a.m. Pacific Time.
   5. “Severity Levels” mean the categories of Errors set forth below:

Severity Level	Description of Error
1	The Annuities Genius Service is inoperable, unavailable, or inaccessible.
2	The functionality or availability of one or more key features of the Annuities Genius Service is either interrupted or materially degraded (e.g., page time-out, sessions freeze-up, etc.)
3	One or more features or components of the Annuities Genius Service is not operating in accordance with the Documentation but the matter does not qualify as a Severity Level 2 error
4	The Annuities Genius Service remains available and operable although some inconvenience and minor interruption is sufficiently persistent or consistent as to warrant a correction, often through a patch, work-around or bypass until a more permanent or suitable correction can be made.

 

1. AVAILABILITY.   The Annuities Genius Service will be available to Subscriber twenty-four (24) hours a day, seven (7) days a week, 99.5% of the time (the “Availability Percentage”), measured on a calendar monthly basis, excluding (a) Scheduled Downtime, (b) up to a total of four (4) hours per month of Unscheduled Downtime, and (c) downtime caused by Subscriber or its agents or by other forces beyond the reasonable control of Agatha (including, without limitation, hardware or software failures).   Notwithstanding anything to the contrary in this Exhibit A, the unavailability of certain specific features or functions of the Annuities Genius Service that are not, in the aggregate, material to the Annuities Genius Service as a whole will not constitute unavailability of the Annuities Genius Service.

1. RESOLUTION OF ERRORS.

1. Categorization of Errors.  The Severity Level of any Error will be determined by Agatha in its reasonable discretion.
2. Response & Resolution Times.  Subscriber will use commercially reasonable efforts to provide detailed, accurate, and immediate notification to Agatha of any Error so that Agatha can take remedial action as soon as possible.  Agatha will use commercially reasonable efforts to respond to and resolve each Error in accordance with its Severity Level as set forth in the table below:

Severity Level	Response Time	Workaround Time**	Full Resolution Time
1*	2 Hours	8 Hours	24 Hours
2*	3 Hours	24 Hours	72 Hours
3*	1 Business Day	Seven days	Next release of Annuities Genius Service
4*	2 Business Days	None	Next release of Annuities Genius Service

 

* Notwithstanding anything to the contrary contained in this Agreement, Agatha is not obligated to remedy any Error caused by user error or Subscriber’s or any Authorized User’s failure to access the Annuities Genius Service with a compatible system or web browser.

 

Days	Time	Contact
Monday to Friday (excluding Agatha corporate holidays)	7:00 AM – 4:00 PM, Pacific Time	Agatha Account Director or the Agatha support phone number or e-mail address set forth above

 

 

 

 

EXHIBIT B

 

SUBSCRIPTION FEES

 

 

 

Description of Service	Amount of Subscription Fee*
Elite Plan	$59/month $588/year
Prime Plan	$179/month $1,788/year
Pro Plan	$249/month $2,508/year