EFFECTIVE DATE: Nov 22, 2023

OVERVIEW

Whereas, WealthConductor LLC (“WC”) owns and operates a proprietary retirement income plan management software-as-a-service (SaaS) known as IncomeConductor® access to which is by means of a website located at www.incomeconductor.com (collectively with all intellectual property rights therein, as the same may be supplemented, modified, updated or enhanced from time to time, the “Software”); and

Whereas, the Client desires to subscribe to, and access and use, the Software, subject to all of the terms and conditions hereof;

Now, Therefore, in consideration of the mutual covenants and other forms of consideration, the adequacy and receipt of which are hereby acknowledged, the parties hereto agree as follows:

1. SOFTWARE.

   • 1.1. Activation and Use. Upon the Activation Date, WC shall provide access to the Software. Client shall access the Software by means of a client account accessed via a unique client log-in and password for the Client (the “Client Account”). The Client Account shall be made available to the Client in executable object code form only. WC hereby grants to the Client a limited, non-exclusive, non-assignable and non-transferable right and license during the Term to (only in accordance with all of the terms and conditions set forth in this Agreement): (i) access the Client Account; and (ii) view, print, upload or download from the Client Account content, graphics, forms or documents containing Client Data.

2. SERVICE AND SUPPORT

   • 2.1. Generally. Subject to the service level set forth in Schedule III (the “Service Level”), WC shall, throughout any Subscription Period, provide Client with support and service for the Software and Client Account as set forth in this Section 2 (collectively, “Support”); provided that Client shall have paid the Subscription Fee during such Subscription Period in accordance with the terms of this Agreement. During the Subscription Period, and as part of Support, WC shall make available to Client through the SaaS all minor bug fixes, updates and upgrades (subject to Section 2.3) to the Software as and when the same are made generally available to customers by WC. Client hereby acknowledges and agrees that WC shall have no obligations, liabilities, costs, or expenses relating to any software other than the Software, or any hardware, or the installation thereof, and WC makes no representations, warranties, or covenants relating to any hardware or any other software or the services provided by any third party service provider. In connection with the integration of the Software with third party software applications, WC is not responsible for any integration tasks and services. Client hereby acknowledges and agrees that WC shall have no obligations, liabilities, costs, or expenses relating to such integration services provided by a third party, and WC makes no representations, warranties, or covenants relating to the integration services provided by any third party. Client’s right to claim any Support in accordance with this Agreement is conditioned on each of the following provisions:

     • (a) Client shall have complied with its responsibilities for Support under this Agreement; and

     • (b) Client shall have used the Software according to and in compliance with this Agreement, the Documentation and all other manuals, instructions and directions of WC, and shall have complied with all third party configuration requirements.

   • 2.2. Operating Environment. The Client shall be responsible for all costs and expenses of all communications connections, including hardware and telecommunications costs and expenses, required to enable Client to access the Software. The Client shall be responsible for ensuring that all computers and hardware from which the Client Account is accessed are free from viruses, worms, Trojan horses (as such terms are commonly understood in the software industry) or any other code designed or intended to have, or capable of performing or that without user intent will cause, any of the following functions: (i) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, any computer or other device on which the Client Account is used; (ii) damaging or destroying any data or file without the user’s consent; or (iii) sending information to Client or any other Person (all such viruses, worms, Trojan horses and other malicious code are collectively referred to as “Malicious Code”).

   • 2.3. Updates. WC reserves the right in its sole discretion, but shall not be obligated, to revise, update, upgrade, edit or delete any appearance or functions of, or any documents, information or other content appearing on or part of, the Software or Client Account.

   • 2.4. Security. Client shall keep all passwords and usernames to its Client Account, as well as its operating systems (and passwords and usernames thereto), confidential and secure, and Client shall be solely responsible and liable for any unauthorized access to the Software, Client Account or Client’s operating systems. Client shall not share its passwords or usernames with any other persons, or otherwise provide access to the Client Account to any other person. WC is not liable for any Client Data or other information or data of the Client obtained by unauthorized persons due to security breaches or Client’s negligence, nor is WC liable for any damage or loss of Client Data due to security breaches, virus attacks or Client’s negligence. Client shall not undermine, damage or cause harm to the Software, the Client Account, any other servers of WC, or any other client-member of WC.

   • 2.5. Client Personnel and Contacts.

     • (a) WC shall provide to the Client telephone number(s) and email addresses to enable communication with a service representative of WC who shall assist the Client in identifying, verifying and resolving technical problems with the Client Account and otherwise providing Support and Expanded Support (as defined in Schedule III). WC shall provide Support and Expanded Support only to the Client, and only the Client shall contact WC for any such Support or Expanded Support. WC shall have no obligation to provide, and shall not be liable for any failure to provide, (i) any technical services with the Client Account through any individual other than the Client, (ii) any resolution or dialogue with any individual other than the Client regarding any aspect of the Software other than technical services regarding the Client Account, or (iii) any Support during any observed holidays of WC, or outside of Monday through Friday, 9:00 AM through 5 PM (eastern time). WC shall have the right to change, replace, remove or add any business hours for Support by written notice to Client (and upon such written notice this Section 2.5(a) shall be deemed to have automatically been amended as provided in such written notice).

     • (b) Any and all Support or Expanded Support shall be provided by WC in accordance with, and subject to, this Agreement. WC shall not be responsible for any delays or access issues if a result of any breach of this Agreement by, or any act, omission to act or neglect of, Client, or any of its personnel, agents, representatives or contractors.

   • 2.6. Limitation on the Scope of Software.

     • (a) Neither WC nor any employees, contractors or personnel of WC (including those individuals giving any initial or on-going training) is being engaged to make recommendations or furnish any advice based on any Client Data, and therefore neither WC nor any employees, contractors or personnel of WC (including those individuals giving any initial or on-going training) have any liability or obligation to Client or any third-party based upon any reliance upon, application or use of any information or data or any reports furnished or actions taken as a result of Client’s use or access to the Software. Client shall be solely responsible for any and all decision-making with respect to its retirement plans (and asset allocations thereof), including use or misuse of the Software with respect to such plans (and asset allocations thereof).

     • (b) WC may develop and market new or different products or services, which use part or all of the Software, and which perform all or a part of the functions performed by the Software. Nothing contained in this Agreement shall give the Client any rights with respect to any such new or different products or services.

   • 2.7. Additional Covenants. Client shall:

     • (a) comply with all of the terms and conditions of this Agreement, and the terms and conditions of the Software as in effect from time to time (and WC shall have the right to change such terms and conditions at its sole discretion), which are set forth at www.incomeconductor.com and https://app.incomeconductor.com which terms and conditions are hereby incorporated herein by reference thereto;

     • (b) not permit any other person or entity to use or gain access to the Software (including the Client Account);

     • (c) not permit any other person to reproduce, copy, distribute, resell or incorporate into any information retrieval system (electronic or mechanical), any information, content, form or document delivered via the Software (including the Client Account); provided however that nothing contained in this subsection (c) shall prohibit Client from (i) sharing with its clients information or reports generated by Client with the Software for the purpose of advising such clients, or (ii) uploading such information or reports to other Client programs or systems;

     • (d) only use the Software (including the Client Account) for its benefit and internal use and not in the operation of a service bureau or for the benefit of any other person or entity;

     • (e) not use the Software (including the Client Account), in whole or in part, for any illegal, obscene, offensive or immoral purpose;

     • (f) not use the Software (including the Client Account), in whole or in part, in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of the Client (collectively, the “Client Materials”) that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance; and

     • (g) ensure that all Client Materials are free from all Malicious Code.

3. FEES

   • 3.1. Fees. In consideration of WC’s provision of the Software, Support and Expanded Support hereunder, the Client shall pay the fees as set forth in, and in accordance with, Schedule II (the “Fees”) subject to the terms and conditions of this Agreement.

   • 3.2. Payment Terms. WC shall invoice the Client for all Fees pursuant to Schedule II. All amounts shown due on any such invoice for such calendar month shall be paid by Client on or before the tenth (10th) day of the immediately following calendar month. If WC does not receive payment in full when due, all unpaid delinquent balances shall bear interest from the invoice date at one percent (1.0%) per month, or at the maximum lawful interest rate (whichever rate is less). If a delinquency occurs, WC may, at its option (and without relieving Client from its payment obligations), revoke, suspend or disclaim Client’s right to utilize any of the Software (including the Client Account), and all other rights of Client hereunder, until payment in full is made. Client shall be liable to WC for all costs and expenses of collection, including reasonable attorneys’ fees, and court costs with respect to any delinquent payment. In the event that the Client disputes any amount shown due on any invoice, the Client shall pay any undisputed portions of such amount and send written notice to WC detailing any disputed portions of such amount. Any such dispute will be resolved in accordance with Schedule IV.

4. TERM AND TERMINATION

   • 4.1. Term. The initial term of this Agreement shall commence on the Effective Date and shall continue until expiration of the Subscription Period (the “Term”).

   • 4.2. Termination. Subject to the terms and conditions of this Agreement, as well as any other termination, suspension or revocation rights set forth herein, either party may terminate this Agreement for cause if the other party breaches this Agreement and fails to cure such breach within thirty (30) days following written notice from the terminating party of such breach; provided, however, that: (a) the exercise of such right of termination shall not limit any other rights or remedies of the terminating party at law, in equity or hereunder; and (b) there shall not be an available cure or notice period for any material breach by Client of (i) any of its proprietary and/or confidentiality obligations or (ii) any of its obligations hereunder with respect to any payment due and owing from Client to WC hereunder, and WC shall have the right to immediately terminate this Agreement upon written notice to Client in the event of any such breach. If WC terminates this Agreement for cause, WC shall be entitled to retain any and all Fees previously paid to WC by Client.

   • 4.3. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement:

     • (a) Client shall at its own expense return to WC any Proprietary Information of WC in its possession and shall immediately cease using any of the Software and the Client Account. In connection therewith, upon the termination/expiration date of this Agreement, or at any time thereafter, WC shall have the right to de-activate the Client Account.

     • (b) Upon the expiration/termination date of this Agreement, or at any time thereafter, WC shall issue an invoice to Client indicating all amounts owing as of such termination date from Client to WC.

     • (c) Upon request of Client and payment by Client of all fees and any other amounts owed to WC hereunder, WC shall transfer all Client Data to Client, provided that Client shall be responsible for any and all costs and expenses incurred or to be incurred by WC in connection therewith.

     • (d) All rights and obligations of each party hereunder shall terminate, subject to Section 8.13.

Additional Terms for Registered Representatives of Cetera Financial Group:

Within five (5) business days of the expiration/termination date of this Agreement, WC shall notify Cetera Financial Group and Client’s affiliated broker dealer of the expiration/termination of this Agreement. Notice shall include Client’s name and the expiration/termination date.

WC agrees to retain Client audit history and historical reports (“Client Audits and Reports”) for a minimum period of ninety (90) days after the termination/expiration of this Agreement. WC and Client agree that Cetera Financial Group and its Affiliates (collectively, “Cetera”), shall have the right to access and obtain copies of Client Audits and Reports retained by WC. WC further agrees to provide copies of Client Audits and Reports to Cetera within 10 business days of Cetera’s written request at no cost to Cetera. For purposes of the section, “Affiliates” shall be defined as entities that currently exist or are later acquired that directly or indirectly (i) control, (ii) are controlled by, or (iii) are under common control with Cetera Financial Group

5. PROPRIETARY RIGHTS; CONFIDENTIALITY

   • 5.1. Intellectual Property Rights. WC owns and shall remain the owner of the Software, the Client Account, the Documentation and any other software developed by or for WC (collectively, the “Intellectual Property”), including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto (collectively, the “Intellectual Property Rights”). Client shall:

     • (a) not rent, lease, sublicense, distribute, transfer, copy or modify any Intellectual Property of WC, in whole or in part;

     • (b) only use the Intellectual Property made available to Client by WC for its own benefit and internal use and not in the operation of a service bureau or for the benefit of any other person;

     • (c) not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code to the Software or Client Account made available hereunder;

     • (d) not adapt any of the Intellectual Property of WC, in whole or in part, in any way or use it to create a derivative work; and

     • (e) not remove, obscure, or alter, in whole or in part, WC’s proprietary notices, trademarks, or other proprietary rights notices affixed or contained in or on any Intellectual Property of WC, including without limitation any proprietary notices of any third party service suppliers to any of the foregoing.

   • 5.2. Proprietary Information. Each party (the “Receiving Party”) agrees that all Proprietary Information of the other party (the “Disclosing Party”) which has heretofore been disclosed and which will hereafter be disclosed to the Receiving Party, or of which the Receiving Party may otherwise attain knowledge during the Term, in oral, written or other tangible form, shall be deemed to be confidential information and the sole property of the Disclosing Party. This Agreement shall govern all communications between the parties that are made during the Term.

     • (a) During and after the Term, the Receiving Party shall keep all Proprietary Information of the Disclosing Party strictly confidential and shall not disclose, distribute or disseminate in any way to any third party any of the Proprietary Information of the Disclosing Party. Furthermore, the Receiving Party shall not utilize for the Receiving Party’s own benefit or the benefit of any third party: (i) any Proprietary Information of the Disclosing Party disclosed by the Disclosing Party or by any person associated with the Disclosing Party; (ii) any Proprietary Information of the Disclosing Party of which the Receiving Party attains knowledge in connection with this Agreement; or (iii) any information, processes, inventions, intellectual property or the like generated by the Receiving Party based in whole or in part on the Proprietary Information of the Disclosing Party, including, without limitation, any improvements, analyses, compilations, studies or other documents or records prepared or generated from such Proprietary Information of the Disclosing Party, which foregoing materials shall be deemed part of the Proprietary Information of the Disclosing Party. Notwithstanding the foregoing: (A) in connection with the Proprietary Information of WC, the Client’s limitation on use and disclosure of such Proprietary Information shall be subject to Client’s rights to the Software hereunder; (B) in connection with the Proprietary Information of the Client, WC’s limitation on use and disclosure of such Proprietary Information shall be subject to the right of WC to Support, maintain, update and provide the Software and Client Account; and (C) WC shall be permitted to use and disclose such Proprietary Information to the extent necessary to provide the Software hereunder. The Receiving Party shall protect the Proprietary Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such Confidential Information as Receiving Party uses to protect its own Proprietary Information of a like nature. Notwithstanding the foregoing, the Receiving Party shall have the right to disclose any financial terms of this Agreement: (x) to its legal and financial advisors who are under a legal obligation of confidentiality or (y) to its trustees, officers, directors, members, managers, representatives, agents and employees, on a need-to-know basis, provided that each of the foregoing are under a legal obligation of confidentiality.

     • (b) Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Proprietary Information of the Disclosing Party to the extent that such disclosure is required by an order of a court, administrative agency or governmental authority, or by any law, rule or regulation, or by subpoena, discovery request, summons or other administrative or legal process, or by any formal or informal investigation by any governmental agency or authority; provided, however, that, unless prohibited by law: (i) the Receiving Party shall give prompt written notice of any such request or requirement to the Disclosing Party, including a description of the Proprietary Information it believes it is required to disclose; and (ii) the Receiving Party shall use its reasonable efforts to cooperate, to the extent practicable, with the Disclosing Party to avoid or minimize such disclosure or to obtain confidential treatment thereof or other protective order.

     • (c) The Receiving Party’s obligations under this Section 5.2 with respect to specific Proprietary Information shall terminate when the Receiving Party, upon seeking to avoid the Receiving Party’s obligations hereunder, can prove by clear and convincing documentary evidence that: (i) with respect to disclosure of any financial terms of this Agreement, such financial terms have entered the public domain; or (ii) with respect to any Proprietary Information of the Disclosing Party, such Proprietary Information (A) was in the public domain at the time of disclosure to Receiving Party by Disclosing Party, (B) entered the public domain without violation of this Agreement or any other confidentiality obligation subsequent to the time of disclosure to Receiving Party by Disclosing Party, (C) was communicated to the Receiving Party by a third party, free of any obligation of such third party to maintain the confidentiality of such, or (D) was independently developed by Receiving Party using no amount of the Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, specific information shall not be deemed to be within any of the foregoing exceptions merely because it is in the scope of more general information within any such exceptions, and a combination of features shall not be deemed to be within any such exceptions merely because individual features are within such exceptions.

   • 5.3. Irreparable Harm. Each party acknowledges that any breach of its obligations with respect to this Section 5 may cause the other party irreparable harm or injury for which there are inadequate remedies at law and that such other party may be entitled to equitable relief in addition to all other remedies available to it. Each party agrees that, if a court of competent jurisdiction determines that such party has breached, or attempted or threatened to breach, its obligations pursuant to this Section 5, the other party will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations, without the necessity of posting any bond or other security. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to such aggrieved party.

6. INDEMNITY

   • 6.1. Client Indemnity. The Client shall indemnify, defend, and hold harmless WC and its affiliates, subsidiaries and parent, and the directors, officers, members, managers, employees, representatives and agents of the foregoing from and against any and all claims, lawsuits and other civil actions or proceedings commenced, and all damages, awards, losses, liabilities, settlements, judgments, costs and expenses (including reasonable attorneys’ fees), arising out of, relating to or resulting from (i) any acts or omissions of Client, including without limitation any breach of any of the Client’s representations, warranties, obligations, covenants or agreements in this Agreement, (ii) any decision-making by the Client with respect to its retirement plans (and asset allocations thereof), including use or misuse of the Software with respect to such plans (and asset allocations thereof), or (iii) any use or misuse of the Software and/or the Client Account by Client or any other person.

   • 6.2. Indemnification Procedures. A party seeking indemnification hereunder (an “Indemnified Party”) shall give the party from whom indemnification is sought (the “Indemnifying Party”): (a) reasonably prompt notice of the relevant claim; (b) reasonable cooperation in the defense of such claim; and (c) the right to control the defense and settlement of such; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest (except as otherwise set forth in this Agreement). The Indemnified Party shall have the right to participate in the defense at its own expense.

7. LIMITATION OF LIABILITY

   • 7.1. Disclaimer. WC MAKES NO, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESSS FOR A PARTICULAR PURPOSE AND TITLE), THAT THE SOFTWARE (IN WHOLE AND IN PART), ANY DOCUMENTATION, THE CLIENT ACCOUNT (IN WHOLE AND IN PART), OR ANY INTELLECTUAL PROPERTY OF WC PROVIDED TO CLIENT, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET THE CLIENT’S REQUIREMENTS OR THAT THE CLIENT’S USE OF THE SOFTWARE OR THE CLIENT ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES AND AGREES THAT: (I) THE SOFTWARE MAY REQUIRE JUDGMENTS TO BE MADE THAT ARE BASED UPON LIMITED DATA RATHER THAN UPON SCIENTIFIC CERTAINTIES; AND (II) ULTIMATE OUTCOMES COULD BE INCONSISTENT WITH THE DATA AND TRENDS DEVELOPED BY THE SOFTWARE.

   • 7.2. Limitation of Liability. IN NO EVENT SHALL WC BE LIABLE TO CLIENT FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF WC HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.

8. MISCELLANEOUS TERMS

   • 8.1. Assignment. Client shall not assign, transfer, or otherwise dispose of this Agreement (or any rights or benefits hereunder), in whole or in part, or delegate is obligations under this Agreement, in whole or in part, to any other person without the prior written consent of WC, which consent shall not be unreasonably withheld or delayed; provided that: (a) any such assignment/delegation with written consent does not release the assigning/delegating party from any of its obligations under this Agreement unless such written consent so states; and (b) the rights of any permitted assignee hereunder shall be subject to any and all set-offs, counterclaims and other comparable rights arising hereunder. Any assignment/delegation of rights/obligations of any of this Agreement contrary to the above shall by null and void and of no force or effect.

   • 8.2. Governing Law; Jurisdiction Venue; Disputes. This Agreement is deemed to have been entered in the State of Connecticut, and its interpretation, construction, and the remedies for enforcement or breach are to be applied pursuant to, and in accordance with, the laws of the State of Connecticut, without giving effect to any choice or conflict of law provision or rule (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Connecticut. Venue and jurisdiction for any action or claim brought under this Agreement shall be in the courts with proper jurisdiction located in the State of Connecticut, and the parties expressly submit themselves to the personal jurisdiction of such courts. Disputes shall be resolved pursuant to the terms and conditions of Schedule IV.

   • 8.3. Force Majeure. WC shall not be liable to the Client for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to a Force Majeure Event. A “Force Majeure Event” is any event beyond the control of WC which occurs after the Effective Date and which was not reasonably foreseeable at that time and whose effects are not capable of being overcome with reasonable expense or loss of time or both, including (without limitation) war, terrorism, civil unrest, blockades, boycotts, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy, failures in external networks, defects or inefficiencies in Client’s software, defects or inefficiencies in computer equipment or hardware of Client, or any delay to the extent caused by the acts or omissions of Client.

   • 8.4. Binding. This Agreement shall be binding on the parties, their respective affiliates, parents, subsidiaries, successors, and permitted assigns (if any), and each party warrants that the undersigned representative of such party is authorized to execute this Agreement on behalf of such party.

   • 8.5. Complete Understanding. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and other agreements (as to all, written and oral) between the parties relating to the subject matter hereof.

   • 8.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.

   • 8.7. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.

   • 8.8. Independent Contractors. WC, and its personnel, contractors and agents, in their performance under this Agreement, are acting as independent contractors and not as employees or agents of the Client. Under no circumstance will either party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty or make any representation on behalf of the other.

   • 8.9. Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested; (iii) if by next day delivery service, upon such delivery, or (iv) if by electronic delivery (receipt confirmed). All notices shall be addressed to the applicable party at its respective address first set forth in the Preamble to this Agreement, or such other address as may be designated on notice to the other party pursuant these notice provisions.

   • 8.10. Cumulative Rights and Remedies. The rights and remedies of WC and Client provided for under this Agreement are neither exclusive nor mutually exclusive, and WC and Client shall be entitled to resort to any such rights and remedies, or any other remedy available to WC and Client at law or in equity, or some or all in any combination, at each of their discretion.

   • 8.11. Counterparts; Electronic/Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall constitute a complete and original instrument but all of which together shall constitute one and the same agreement (notwithstanding that all of the parties are not signatories to the original or the same counterpart, or that signature pages from different counterparts are combined), and it shall not be necessary when making proof of this Agreement or any counterpart thereof to account for any other counterpart, and the signature of any party to any counterpart shall be deemed to be a signature to and may be appended to any other counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine or other electronic means is to be treated as an original document. The signature of any party on any such document, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. At the request of any party, any facsimile or other electronic signature is to be re-executed in original form by the party which executed the facsimile or other electronic signature. No party may raise the use of a facsimile machine or other electronic means, or the fact that any signature was transmitted through the use of a facsimile machine or other electronic means, as a defense to the enforcement of this Agreement.

   • 8.12. Rules of Usage. In this Agreement, unless a clear intention appears otherwise: (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any law means such law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (f) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular section or other provision hereof; (g) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (h) “or” is used in the inclusive sense of “and/or”; (i) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (j) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; (k) references to “person” or “persons” means an individual, corporation, limited liability company, partnership, trust, joint venture or other legal entity; (l) article and section headings herein are for convenience only and shall not affect the construction hereof; and (m) section and article references shall be deemed to refer to all subsections and sections thereof, unless otherwise expressly indicated.

   • 8.13. Right to Audit. In this Agreement, (a) to meet the mandates associated with third party vendors, the Client may request annually from WC the following information: Insurance Coverage/Certificate; External Penetration Testing results; Data Encryption procedures, Business Resumption Plans and Disaster Recovery testing results. WC shall provide all such Information within thirty (30) days of receiving a written request for it. Additional vendor due diligence requirements not addressed in this Agreement and required by federal regulation will be provided within ninety (90) days of a written request for it. (b) As specifically permitted by law or regulation, the Client shall be permitted to audit WC's performance under this Agreement during normal business.

Survival. In addition to all other provisions which expressly survive termination/expiration of this Agreement, or whose context requires such survival, the following provisions shall specifically survive termination of this Agreement: Sections 4.3, 5, 6, 7 and 8, and Schedule IV.

SCHEDULE I

DEFINITIONS

“Activation Date” means the date WC provides access to the Client; such access to be deemed given when the Client is able to access the Client Account through the Client username and password therefor.

“Client Data” means data regarding the retirement plans of the Client (including asset allocations thereof).

“Documentation” means all manuals, guidelines, reports, media and other documentation regarding the Software or any Intellectual Property of WC which are provided in writing or electronic format by WC to the Client.

“Proprietary Information” means: (a) with respect to Proprietary Information of WC, (i) confidential or proprietary information, processes and material of WC relating to or associated with the Software that are conceived, made or possessed by WC including without limitation: plans, designs, performance specifications, marketing plans, algorithms, Intellectual Property, Intellectual Property Rights, ideas, inventions, formulas, techniques, and know how as well as any of the foregoing relating to the Software and the Client Account (and each of their respective source codes) and the Documentation, and (ii) the financial terms of this Agreement; and (b) with respect to Proprietary Information of Client, confidential or proprietary information, and material of Client relating to or associated with the Client Data including without limitation the Client Materials.

“Subscription Fee” means, with respect to the Initial Subscription Period (as defined within the definition of Subscription Period), the annual subscription fee set forth in the Proposal therefor; and, with respect to any Renewal Subscription Period (as defined within the definition of Subscription Period), the annual subscription fee shall be the Subscription Fee for the immediately preceding 12-month period of the Subscription Period as increased by the greater of (a) the percent change for such 12-month period in the Consumer Price Index for All Urban Consumers (CPI-U) U.S. City Average for All Items published by the Bureau of Labor Statistics for the United States Department of Labor and (b) five percent (5%).

“Subscription Period” means the subscription period set forth in Schedule II (the “Initial Subscription Period”) and each Renewal Subscription Period (as defined below) thereafter. The Subscription Period shall be automatically renewed for successive 12-month periods (each a “Renewal Subscription Period”) at the expiration of the Initial Subscription Period and any Renewal Subscription Period (as applicable) unless either party gives written notice to the other of its desire not to so renew at least thirty (30) days prior to the expiration date of the Initial Subscription Period or such Renewal Subscription Period (as applicable).

SCHEDULE II

subscription period; subscription fees

Subscription fees will be charged immediately upon subscribing and at the beginning of each subsequent billing period during the Subscription Period (1 Year).

Your subscription will be automatically renewed at the end of the Subscription Period unless either party notifies the other party 30 days prior to end of the current Subscription Period. All Fees exclude applicable taxes, if any.

SCHEDULE III

Support Services

WC will provide the Support Services listed below for the Software:

SUPPORT

Client access is limited to the Plan area and the Resource Center of the Software. WC will provide support for the these areas of the Software to Client which will include (i) diagnosis of problems or performance deficiencies of the Software and (ii) a resolution of the problem or performance deficiencies of the Software. WC will provide email software support on a Business Day basis. “Business Day” is defined as 9:00 AM through 5:00 PM eastern standard time, excluding holidays and weekends.

WC will use its commercially reasonable efforts to resolve, as described below, reported and reproducible errors in the Software. WC utilizes the following four (4) severity levels to categorize reported problems:

SEVERITY 1: CRITICAL BUSINESS IMPACT The impact of the reported deficiency is such that the Client is unable to either use the Software or reasonably continue work using the Software. WC will commence work on resolving the deficiency in the same Business Day of notification and will engage staff during business hours until an acceptable resolution is achieved.

SEVERITY 2: SOME BUSINESS IMPACT Important features of the Software are unavailable, but an alternative solution is available or non-essential features of the Software are unavailable with no alternative solution. The Client impact, regardless of product usage, is minimal loss of operational functionality or implementation resources. WC will commence work on resolving the deficiency within one (1) Business Day of notification and will engage staff during business hours until an acceptable resolution is achieved.

SEVERITY 3: MINIMAL BUSINESS IMPACT Client submits a Software information request, software enhancement or documentation clarification which has no operational impact. The implementation or use of the Software by the Client is continuing and there is no negative impact on productivity. WC will provide an initial response regarding the request within one (1) business week.

This agreement is not intended as a consulting agreement for Client services.

WC will provide on-demand video strategy and technology training, sales & marketing materials and other tools to the Client which are accessible on the Resource Center on the application (app.incomeconductor.com). Client will also be invited to monthly study group webinars and special webinars provided by WC at their discretion.

EXPANDED SUPPORT

Expanded support may be elected by the Client for case consultation. Case consultation support will be charged to the Client at $150.00/hour by separate invoice. Case consultation support will be provided in increments of 1 hour on a business day basis. Client and WC will schedule case consultation support via an on-line scheduler application based on the availability of the WC case consultant.

Limits of Support Services

Notwithstanding any contrary provision of the Agreement, Support does not include any of the following:

• (a) Remote or on-site training of the Client above and beyond the training expressly set forth above in this Schedule III;

• (b) Any additional interfacing to or with other systems;

• (c) Any servicing, monitoring or any other support of any hardware or software other than the Software;

• (d) Any servicing, monitoring or other support of networks;

• (e) Any defects or problems to the extent attributable to: (i) applications for which the Software is not intended; (ii) any hardware or any events or issues emanating from Client’s facilities, including without limitation: accidents, abuse, misuse, neglect, fire, water, lightning or other acts of nature; Client’s use of products, equipment, systems, utilities, services, parts, supplies, or other software; and incorrect electrical line voltage, fluctuations and surges; (iii) failure by Client to follow operating instructions; (iv) problems related to noise, echo, interference or other transmission and delivery problems; and (v) any violation of the limits of the license contained in this Agreement;

• (f) Services needed in response to requests that do not originate from the failure of the Software to perform, or, if, in WC’s reasonable opinion, such problems originate with Client’s equipment or hardware including without limitation services related to networks, communications, hardware, end user training/use of the Software, or issues related to third party software or virtual environments;

• (g) Assistance provided to Client in the creation of custom reports, functions or formats;

• (h) Problems with the Software occurring during any period that Client is in breach or default of any provision of this Agreement; or

• (i) Any problems, or services needed, as a result of: (i) any defect, malfunction or failure of any hardware or software other than the Software; (ii) virus attacks or security breaches; (iii) changes in the Client’s IT environment, such as, but not limited to, changing network addresses, or updates in other vendors’ software or systems; (iv) backups; (v) file reorganizations and restores; (vi) testing by Client in a production environment; (vi) downtime during loading of any software in a production environment; (vii) any design, specification or instruction provided by Client; (viii) Client’s failure to fulfill any of its obligations or responsibilities under this Agreement; (ix) the failure of any person other than WC to comply with WC’s written instructions or recommendations, or the Documentation; and/or (x) a Force Majeure Event.

• (j) Any repairs, problems or services needed as a result of Client exceeding the then-applicable Licensed Volume.

Expanded Support

Client may request that WC perform any of the services set forth above or any other services that do not comprise Support as “Expanded Support”, and WC (in its sole discretion) may provide such Expanded Support. The Client shall furnish a purchase order to WC for any requested Expanded Support. Any Expanded Support provided by WC under this Agreement, or deemed provided by WC under this Agreement, shall be charged at the then-current rates from the latest WC price list for Expanded Support, and Client shall be obligated to pay for such Expanded Support at such rates.

SCHEDULE IV

DISPUTE RESOLUTION

1. General Intent. Any and all disputes between the parties arising from or relating to this Agreement or the relationship between the parties as reflected by this Agreement (each a “Dispute”) shall be resolved in accordance with this Schedule III. The intent of the parties is to identify and promptly attempt to resolve all Disputes. Except as provided otherwise elsewhere in this Agreement, before attempting to exercise any legal or equitable remedy, including termination of this Agreement for cause, each party shall follow the dispute resolution procedure set forth in this Schedule III (the “Dispute Resolution Process”). Any periods of time specified in this Schedule III shall be independent of, and may run concurrently with, any periods of time indicated in the Term.

2. Notice. Each party shall notify the other party in writing within a reasonable period of time after becoming aware of any Dispute or of any breach by the other party of this Agreement, (a “Breach”). A notice of Dispute or Breach shall describe in reasonable detail the nature of the Dispute or Breach.

3. Escalation. If either party delivers to the other a notice of Dispute or Breach, then the parties shall promptly engage in good faith negotiations between progressively more senior representatives of each party over a period of thirty (30) days. Notwithstanding the foregoing, a party will not be required to engage in discussions of a Dispute or Breach pursuant to this Section 3 beyond a time that is ninety (90) days before expiration of the statute of limitations applicable to that Dispute or Breach. All discussions conducted pursuant to this Section 3 will be treated as confidential settlement discussions and none of the proposals, counter-proposals or statements made during discussions will be admissible for any purpose in any other proceeding.

4. Mediation. If the discussions described in Section 3 do not result in negotiated resolution, then either party may require the other to participate in non-binding commercial mediation proceedings, whereupon each party shall participate in such mediation in good faith in an effort to resolve their differences. The mediation shall be administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Rules then in effect (insofar as such rules are not inconsistent with the provisions of this Agreement), and shall be conducted in the State of Connecticut and City of Hartford at a location mutually agreed to by the parties (or determined by the mediator, if the parties fail to so agree), before a sole, neutral, and impartial mediator mutually agreed to by the parties or, if the parties fail to so agree, chosen by the AAA. Any person who serves as mediator shall possess the qualifications necessary to serve as an arbitrator under the American Arbitration Association’s Commercial Arbitration Rules for Large, Complex Commercial Disputes (with the intent of the foregoing being to ensure that the person serving as mediator possesses sufficient experience in large, complex commercial disputes to serve a useful role as mediator with respect to Disputes or Breaches arising under this Agreement) and, more specifically, shall possess significant knowledge and experience in the information technology industry. The person who serves as mediator hereunder for any given Dispute or Breach shall not be eligible to serve as an arbitrator for the same Dispute or Breach. The mediator shall be selected, as described above, and the mediation commenced, no later than twenty-one (21) days after the delivery of the applicable written demand for mediation. The mediation shall be concluded, regardless of whether the applicable Dispute or Breach has then been resolved, within sixty (60) days after delivery of the applicable written demand for mediation. Each party shall pay its own expenses incurred in connection with any mediation under this Section, and each party shall share equally the costs of the mediator and AAA and any other third-party costs and expenses of the mediation. The mediation will be treated as a confidential settlement discussion and none of the proposals, counter-proposals or statements made in the course of the mediation will be admissible for any purpose in any other proceeding. The mediator will not testify for either party in any later proceeding related to the dispute. No recording or transcript will be kept of the mediation proceedings. Notwithstanding the foregoing, a party will not be required to engage in mediation pursuant to this Section 4 of a Dispute or Breach beyond a time that is ninety (90) days before expiration of the statute of limitations applicable to that Dispute or Breach.

5. Arbitration. Any Dispute or Breach that is not resolved by the discussions or the mediation required by this Agreement, including any issue regarding the extent to which any Dispute or Breach is subject to arbitration and the applicability or enforceability of these dispute resolution procedures, shall, subject to Section 6, be decided by binding arbitration administered by the AAA under its Complex Commercial Arbitration Rules then in effect (insofar as such rules are not inconsistent with the provisions of this Agreement), and shall be conducted in the State of Connecticut and City of Hartford at a location mutually agreed to by the parties (or determined by the arbitrators, if the parties fail to so agree), before three arbitrators, each of whom shall possess the same qualifications and characteristics specified with respect to mediators in Section 4. Each of the parties shall choose one arbitrator and the third arbitrator shall be chosen by the first two arbitrators. If, for any reason, the parties cannot agree upon an arbitrator, either party fails to designate an arbitrator, such designated arbitrators fail to designate a third arbitrator, or any designated arbitrator refuses to serve in such capacity, an arbitrator shall be promptly designated by the AAA upon the demand of either party. Any counterclaims and other related actions shall be brought in the same venue. During the ninety (90) days following the commencement of arbitration, the parties will consult between themselves and with the arbitrator to define and limit the issues and will exchange those documents or other evidence each intends to use at the arbitration to support its case, and provide each other with names of all proposed witnesses. Each party shall cooperate fully in facilitating discovery. A majority of the arbitrators shall have the power to, as appropriate and consistently with the terms of this Agreement, determine and effect a fair resolution of the applicable Dispute or Breach, effect a termination of this Agreement, and/or award damages. The arbitrators (or a majority of them) shall decide all matters submitted to them within thirty (30) days following the conclusion of any necessary hearings. Any award rendered by a majority of the arbitrators shall be in writing and shall set forth in reasonable detail the facts of the Dispute or Breach, the decision of the arbitrators, and their reasons therefor. The award rendered by a majority of the arbitrators in any arbitration hereunder shall be final and binding upon the parties, and judgment on any such award may be entered in any court having jurisdiction thereof. The arbitrator shall have no power or authority to award exemplary or punitive damages, or non-monetary or equitable relief of any sort, or any relief not measured by the prevailing party’s actual damages (adjustments for time value of money permitted), and will not make any decision inconsistent with this Agreement. All aspects of the arbitration and any award shall be confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. Before making any such disclosure, a party will give written notice to all other parties and shall afford such parties a reasonable opportunity to protect their interests.

6. Exceptions to Arbitration; Forum. Notwithstanding anything to the contrary in this Agreement, either party may (a) seek equitable remedies from a court of competent jurisdiction and (b) in lieu of arbitration pursuant to Section 5, litigate Disputes or Breaches concerning privacy, or ownership or misuse of proprietary/confidential information or intellectual property in courts of competent jurisdiction, as provided below, and upon commencement of any such proceeding, any arbitration then pending shall be stayed, insofar as it concerns the matters subject to decision by such court. Any court proceedings pursuant to the preceding sentence, or any matter that may for any reason be litigated before a court notwithstanding the arbitration provisions hereof, shall be litigated and decided solely and exclusively in a court having jurisdiction and which is located in the county (for state courts) or the district (for federal courts) of the State of Connecticut and City of New Haven. Any counterclaims and other related actions may be brought in the same venue. This choice of venue is intended by the parties to be mandatory and not permissive, thereby precluding the possibility of litigation of Disputes or Breaches in any other jurisdiction or venue. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or any similar doctrine or to object to venue with respect to any proceeding brought in accordance with this paragraph, and stipulates that the state and federal courts used pursuant to this Agreement shall have in personam jurisdiction over each of them (and their respective indemnitees) for the purpose of litigating any such dispute, controversy or proceeding. Each party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this action by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Agreement. Nothing herein shall affect the right of any party to serve process in any other manner permitted by law. THE PARTIES HERETO WAIVE THEIR RIGHT TO A JURY TRIAL IN ANY ACTIONS THAT THEY MAY BRING, OR THAT MAY BE BROUGHT AGAINST THEM, UNDER OR IN CONNECTION WITH THIS AGREEMENT.

7. Equitable Relief. In the event of any breach or threatened breach of the provisions of this Agreement concerning ownership or misuse of confidential information or intellectual property, the parties acknowledge that monetary damages may be an inadequate remedy and the innocent party may suffer irreparable harm. Accordingly, those provisions may be enforced by appropriate equitable relief pursuant to Section 6 upon a showing that the moving party has no adequate legal remedy, is likely to suffer irreparable harm, and satisfies other applicable requirements for equitable relief.

8. Fees and Costs. During the pendency of any arbitral or court proceeding, each party shall bear its own attorneys’ fees and costs, and the parties shall each pay half the arbitration costs. The prevailing party in any arbitration or court proceeding under this Agreement will be entitled to recover its reasonable fees and costs incurred in the arbitration or proceeding including reasonable attorneys’ fees and costs and the costs of arbitration (but not the costs of mediation pursuant to Section 4) from the non-prevailing party, provided that the arbitrators or judge have the discretion to determine that there is no prevailing party or to eliminate or reduce the prevailing party’s recovery of its fees and costs to the extent that the arbitrators or judge determine that full recovery thereof would be unreasonable or disproportionate to the harm suffered by the prevailing party.

ADDENDUM FOR HVS ADD-ON PRODUCT (“Health+”)

WHEREAS, WC has partnered with HealthView Services, Inc. (“HVS”) in order to provide an optional add-on functionality to WC’s Software subscribers that enables such subscribers to access and utilize data provided by HVS (“HVS Data”) and associated functionality in IncomeConductor (collectively, the “HVS Add-On Product”), and Client wishes to subscribe to and access and use the HVS Add-On Product as part of its subscription to the Software, subject to the provisions of this Addendum and the Terms and Conditions of the Subscription Agreement;

NOW, THEREFORE, in consideration of the mutual covenants set forth herein and other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, WC and Client hereby agree as follows:

1. This Addendum shall be attached to and shall be deemed to constitute part of the Subscription Agreement as if fully set forth therein. Any reference in the Subscription Agreement to (i) the “Agreement” shall be deemed to include this Addendum, and (ii) the “Software” shall be deemed to include the HVS Add-On Product. Capitalized terms used but not defined in this Addendum shall have the respective meanings ascribed to such terms in the Subscription Agreement.

2. WC hereby grants to Client a limited, non-exclusive, non-assignable and non-transferable right and sublicense during the Term to access and use the HVS Add-On Product via specific functionality in its Client Account. Notwithstanding the foregoing, the initial term of the foregoing right and sublicense (the “Initial Add-On Term”) shall be for one (1) year, commencing on the Addendum Effective Date, subject to automatic renewal for additional 12-month periods unless Client gives 30 days’ prior written notice of non-renewal to WC, as more particularly described in the Agreement (each an “Renewal Add-On Term”). Notwithstanding the foregoing, and for the avoidance of doubt, (i) if this Addendum is executed and delivered by Client after commencement of the Initial Subscription Period or a Renewal Subscription Period, the Initial Add-On Term shall be a partial period (a “Partial Term”) which shall expire on the immediately successive annual anniversary of the Effective Date of the Subscription Agreement, and (ii) any notice of non-renewal of the HVS Add-On Product given by Client to WC shall not constitute notice of non-renewal, or affect the automatic renewal, of the Subscription Agreement.

3. The annual subscription fee for the HVS Add-On Product (the “Annual Add-On Fee”) is in addition to the Subscription Fee for the Software. The Annual Add-On Fee is subject to change by WC for a Renewal Add-On Term and WC will give notice of any such change to Client no less than ninety (90) days prior to the expiration of the Initial Add-On Term or then Renewal Add-On Term, as the case may be. For the purposes of the Subscription Agreement, the term “Fees” shall include the Annual Add-On Fee as applicable, and the provisions of the Subscription Agreement with respect to Fees shall apply to the Annual Add-On Fee. The Annual Add-On Fee for the Initial Add-On Term shall be paid by Client in advance upon execution and delivery of this Addendum; provided however that in the event the Initial Add-On Term is a Partial Term, the Annual Add-On Fee shall be prorated for such Partial Term. The Annual Add-On Fee for each subsequent Renewal Add-On Term shall be due and payable in advance by the first day of such Renewal Add-On Term.

4. Client’s use of the HVS Add-On Product, including input of data and download and reproduction of reports and information, is subject to instructions and protocols provided from time to time by WC (the “Instructions”), and Client shall at all times comply with the Instructions. Client hereby acknowledges and agrees that the HVS Add-On Product includes only access to the HVS Data and expanded IncomeConductor reports that include the HVS Data and WC will not provide any other services with respect to the HVS Add-On Product. WC shall have no obligation or liability to Client or any other person for the manner in which the HVS Add-On Product is used by Client or for the suitability, advisability or manner, terms or conditions, of any advice provided or investment decision made in connection with or as a result of the use of the HVS Add-On Product. Client shall indemnify and hold harmless WC and its affiliates, and its and their respective directors, officers, members, managers, employees, representatives and agents from and against any and all claims, lawsuits and other civil actions or proceedings commenced, and all damages, awards, losses, liabilities, settlements, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of, relating to or resulting from the use of the HVS Add-On Product by Client or any employee, consultant or customer of Client.

5. This Addendum is deemed to have been entered into in the State of Connecticut, and shall be interpreted and construed in accordance with the laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule (whether of the State of Connecticut or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Connecticut.