5.MUTUAL CONFIDENTIALITY

• Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). OnTrack Financials’ Confidential Information includes, without limitation, the Service and pricing information. Customer’s Confidential Information includes, without limitation, the Customer Data.

• Protection of Confidential Information. Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to: (i) not use any Confidential Information of Discloser for any purpose outside the scope of this agreement; and (ii) limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient containing protections not materially less protective of the Confidential Information than those in this agreement.

• Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient before its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) is independently developed by the Recipient without use of or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

Data Security Measures.

• Security Measures. OnTrack Financial: (i) implements and maintains reasonable security measures appropriate to the nature of the Confidential Information including, without limitation, technical, physical, administrative, and organizational controls, designed to maintain the confidentiality, security, and integrity of  Customer’s Confidential Information; (ii) implements and maintains industry standard systems and procedures for detecting, preventing, and responding to attacks, intrusions, or other systems failures and regularly tests, or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures; (iii) designates an employee or employees to coordinate implementation and maintenance of its Security Measures (as defined below); and (iv) identifies reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer’s Confidential Information that could result in the unauthorized disclosure, misuse, alteration, destruction, or other compromise of such information, and assesses the sufficiency of safeguards in place to control these risks (collectively, Security Measures).

• Notice of Data Breach. If OnTrack Financial becomes aware that Customer Data was accessed or disclosed in breach of this agreement, OnTrack Financial will so notify Customer without undue delay, immediately act to eliminate the breach and preserve forensic evidence, and provide available information to Customer regarding the nature and scope of the breach.

6. PROPERTY 

• Reservation of Rights. OnTrack Financial and its licensors are the sole owners of the Service, including all associated intellectual property rights, and they remain only with OnTrack Financial. Customer may not remove or modify any proprietary marking or restrictive legends in the Service. OnTrack Financial reserves all rights that are not expressly granted in this agreement.
• Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity; (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service except as allowed by applicable law despite this limitation; or (vi) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. OnTrack Financial may suspend Service to Customer if OnTrack Financial believes in good faith that Customer’s use of the Service poses an imminent threat to the security, availability or legality of the Service; in such event, OnTrack Financial will work with Customer to address the issue and restore Service as quickly as possible.

• Statistical Information. OnTrack Financial may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. OnTrack Financial retains all intellectual property rights in such information.

7. TERM AND TERMINATION

• This agreement continues until the 30th day after all orders have expired, unless earlier terminated as provided below.

• Term of Orders. Unless otherwise stated in an order, (i) orders and all subscriptions under them will automatically renew for additional terms equal in length to the then current term of the order, unless a party notifies the other of non-renewal 30 or more days before the renewal date, (ii) an automatically renewing order will remain unchanged from the prior term except for any pricing increase of which OnTrack Financial has notified Customer 60 or more days before the renewal date, and (iii) upon automatic renewal, the per-unit pricing for any Service will not increase by more than 7% over that in the prior term unless the prior pricing was clearly designated in the order as promotional or one-time.

• Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.

• Effect of Termination. If this agreement is terminated for OnTrack Financial’s breach, OnTrack Financial will refund Customer fees prepaid for the remainder of the term of all orders after the termination effective date.  If this agreement is terminated for Customer’s breach, Customer will pay any unpaid fees for the term of all orders.  Upon request, following any termination of this agreement, Customer will destroy or return any OnTrack Financial property that it holds.  Upon termination, OnTrack Financial may destroy all Customer Data.

8. LIABILITY LIMIT   

• EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, ONTRACK FINANCIAL IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
• TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR ONTRACK FINANCIAL’S INDEMNITY OBLIGATIONS, ONTRACK FINANCIAL’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID BY CUSTOMER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.

9. INDEMNIFICATION FOR THIRD-PARTY CLAIMS.  

• OnTrack Financial will defend or settle any third-party claim against Customer to the extent that such claim alleges that OnTrack Financial technology used to provide the Service infringes a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies OnTrack Financial of the claim in writing, cooperates with OnTrack Financial in the defense, and allows OnTrack Financial to solely control the defense or settlement of the claim. OnTrack Financial will indemnify and hold harmless Customer from any infringement claim defense costs it incurs in defending Customer under this indemnity, OnTrack Financial-negotiated settlement amounts agreed to by OnTrack Financial, and court-awarded damages. Process. If such a claim appears likely, then OnTrack Financial may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If OnTrack Financial determines that none of these are reasonably available, then OnTrack Financial may terminate the Service and refund any prepaid and unused fees. Exclusions. OnTrack Financial has no obligation for any claim arising from: OnTrack Financial’s compliance with Customer’s specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; Customer Data; or technology or aspects not provided by OnTrack Financial. THIS SECTION CONTAINS CUSTOMER’S EXCLUSIVE REMEDIES AND ONTRACK FINANCIAL’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.

• If a third party makes a claim against OnTrack Financial: (i) that any part of the Customer Data is unlawful or infringes or violates that party’s patent, copyright, or other right, or (ii) with respect to an issue between Customer and its client, Customer will defend OnTrack Financial against that claim at Customer’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that OnTrack Financial promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.

10. GOVERNING LAW AND FORUM.

This agreement is governed by the laws of the State of Nevada (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Clark County, Nevada, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.

11. OTHER TERMS.  

• Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by OnTrack Financial.

• No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all a party’s businesses, assets, not involving a competitor of the other party, or at any time to an Affiliate.

• Export Compliance.  The Service and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions.  Each party represents that it is not named on any U.S. government denied-party list.  Neither party will permit its personnel or representatives to access any Service in a U.S.-embargoed country or in violation of any applicable export law or regulation.

• Independent Contractors. The parties are independent contractors with respect to each other.

• Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.

• Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.

• No Additional Terms. OnTrack Financial rejects additional or conflicting terms of a Customer’s form-purchasing document.

• Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.

• Survival of Terms.  All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.

• If Customer provides feedback or suggestions about the Service, then OnTrack Financial (and those it allows to use its technology) may use such information without obligation to Customer.

Last Revised 5/30/2024.

Exhibit A – Third Party Services Required for Use of Full 

OnTrack Financial offers receipt and bill upload through DEXT, and email through sendgrid.com, which is provided by DEXT. DEXT Terms of Service are available here: https://dext.com/en/terms-and-conditions. DEXT Privacy Policy is available here: https://dext.com/en/privacy-policy. By accepting this agreement with OnTrack Financial or using the Service, Customer agrees that it has reviewed and agrees to DEXT’s Terms of Service and Privacy Policy for the country in which Customer is located. If Customer has questions regarding the DEXT Terms of Service or Privacy Policy, please refer to the DEXT website https://dext.com/en or contact Twilio at support@dext.com