License for Proprietary Software and Agreement for Related Services

This Master Service Agreement (“Agreement”) is entered into as of signing this Agreement (the “Effective Date”) by and between Travel Trim, LLC, a Tennessee  limited liability company, 718 Thompson Lane, Suite 108-255, Nashville, TN 37204 (“Travel Trim”) and FitForward’s client (“Customer”).  Travel Trim and Customer are sometimes collectively referred to herein as the “Parties”.  The Parties now, for mutual and adequate consideration the receipt and sufficiency of which is hereby acknowledged, hereby agree as follows:

1. GRANT OF RIGHTS

Travel Trim grants to Customer, and Customer hereby accepts from Travel Trim, subject to the terms of this Agreement and License (the “Software Services”) and the Related Professional Services Agreement(s) (the “Professional Services”) attached as Exhibit(s). This Agreement supersedes all prior and contemporaneous Agreements, understandings, negotiations and discussions, written or oral, of the parties relating to any transactions contemplated by this Agreement.  The Agreement is intended to outline all general terms between Travel Trim and Customer. The corresponding Exhibit(s) executed during the Agreement’s term will detail specific Software Services and Professional Services terms that are not detailed in this Agreement. As the Parties agree on the various Software and Professional Services, the Exhibits will become part of this Agreement. In the event of any conflict between the language contained in an Exhibit and this Agreement, this Agreement shall govern.
2. TERM

A. Term
The term (the “Term”) of this Agreement will begin on the Effective Date and end one (1) year after the Effective Date, unless earlier terminated as provided below or automatically extended pursuant to Section 2.B below.
B. Extended Term.
Unless earlier terminated as provided below, the Term shall be automatically extended for one additional term of one (1) year each, unless either party delivers written notice of termination to the other not later than forty five (45) days prior to the expiration of the Term.
C. Termination for Default
Should either party materially default under this Agreement or any Exhibit, the other party may, at its option, in addition to any other available remedies, terminate this Agreement upon providing the defaulting party thirty (30) days written notice with an opportunity to cure.  Notwithstanding the forgoing, Customer’s failure to make any payment when due shall constitute a material default that will allow Travel Trim the right to immediately terminate this Agreement in its sole and absolute discretion without notice to Customer. Customer shall have no right to terminate this Agreement due to a sale of substantially all of the assets or a change in control of Customer.
D. Termination for No Cause
Either party may terminate this Agreement for any reason in its sole and absolute discretion by the delivery of ninety (90) days prior written notice.
3. Invoicing

A. Invoicing
Travel Trim shall submit monthly invoices to Customer on a monthly basis based on the terms and conditions listed in the Exhibit.  Invoices submitted by Travel Trim are presumed to be accurate and fully payable on the terms contained therein unless disputed by Customer in writing within five (5) business days of Customer’s receipt of the invoice. If Customer disputes any invoices submitted by Travel Trim, Customer shall still submit payment in full in accordance with the terms of this Agreement based upon the amount invoiced by Travel Trim. However, the Parties shall then schedule a meeting within thirty (30) days following the receipt of notice of any disputed invoice to resolve any such dispute.

B. Expenses
Customer shall reimburse Travel Trim for all ordinary, necessary and reasonable travel expense incurred by Travel Trim employee(s) while performing services on behalf of the Customer.  All travel will be preapproved by the Customer and will be billed through the standard monthly invoicing process.

C. Taxes
Where applicable, Customer shall pay all sales and use taxes with respect to the services provided by Travel Trim pursuant to this Agreement and corresponding Exhibit(s).

D. Purchase Orders
Payment of Travel Trim invoices shall be dependent up on a Customer generated purchase order.  Customer shall deliver to Travel Trim a written purchase order of any software access is provided or services rendered.

E. Payment
Payment in full for invoices shall be due within (30) days from invoice date.

F. Delinquent Payment
If any payment is not paid when due, Travel Trim may, at its option, in addition to any other remedies it may have, charge interest from the date such fee first became due at the lower of: (a) one and one-half percent per month (eighteen percent per annum) or (b) the highest rate allowed by applicable law. Customer’s payments to Travel Trim are not contingent upon, or related to Customer’s receipt of payments from its own clients or from any other entity.
4. WARRANTY AND LIMITATIONS OF LIABILITY

A. Limited Warranty
Travel Trim warrants that, for the duration of the contract, the Software Services will perform substantially in accordance with Travel Trim’s written technical specifications for the Software Services.  In the event of any defect or error covered by this warranty, Customer shall provide Travel Trim with sufficient detail to allow Customer to reproduce the defect or error. TRAVEL TRIM IS NOT RESPONSIBLE FOR ANY DEFECT OR ERROR IN THE SOFTWARE SERVICES THAT RESULTS FROM MODIFICATIONS, MISUSE, OR DAMAGE BY OR PERMITTED BY CUSTOMER. TRAVEL TRIM SHALL HAVE NO LIABILITY FOR THE SYSTEM OR ANY SERVICES PROVIDED WITH, BY, OR IN CONNECTION WITH IT, INCLUDING ANY LIABILITY FOR NEGLIGENCE; TRAVEL TRIM MAKES AND CUSTOMER RECEIVES NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND TRAVEL TRIM SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. TRAVEL TRIM MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY WITH REGARD TO ANY RELATIONAL DATABASE SOFTWARE OR SERVER WITH WHICH THE SYSTEM MAY BE REQUIRED TO COMMUNICATE.
B. Limitations of Liability
The cumulative liability of Travel Trim to Customer for all claims relating to the Licensed Materials and any related services rendered pursuant to this Agreement and all Exhibits, in contract, tort, or otherwise shall not exceed the total amount of all fees actually paid to Travel Trim for the Software Services or Professional Services within the prior 3 months. In no event shall Travel Trim be liable to Customer for any consequential, indirect, special, or incidental damages, even if Customer has been advised of the possibility of such potential loss or damage.  The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.  Customer may not bring any claims or any legal action related to or arising under this Agreement more than one year from the date such claim arose. Notwithstanding any other term or provision contained in this Agreement, Customer further agrees to indemnify, defend and hold Travel Trim harmless from any and all claims, suits, demands, and causes of action, whether or not based in tort or contract, brought by any third party against Travel Trim resulting from any service requested by Customer to be performed by Travel Trim. This indemnification shall include any attorney’s fees and litigation costs incurred by Travel Trim  in the event of any such claim or cause of action brought by a third party.
5. CONFIDENTIALITY

A. General Confidentiality
Each party agrees that it will not disclose any “Confidential Information” of the other party. For the purposes of this Agreement, Confidential Information means any information, in any form (whether reduced to writing or otherwise) of Disclosing Party and/or its affiliates provided to Receiving Party that is non-public, confidential or proprietary in nature.  Confidential Information does not include any information which was either in the public domain or already know to the recipient at the time of disclosure, independently developed by the recipient, disclosed to recipient by a third party without breach of an obligation of confidentiality or disclosed to recipient by a third party without breach of an obligation of confidentiality or disclosed pursuant to a court order.  Each party agrees to the keep the terms in nature of this Agreement and sequential Exhibit(s) confidential, and not disclosed pursuant to a court order.  Each party agrees to the keep the terms and nature of this Agreement confidential, and not disclose or distribute this agreement, or any part thereof, to any other party.

B. Confidentiality of Medical Records
Travel Trim and Customer acknowledge that Customer may provide to Travel Trim certain medical records and that Travel Trim, if it hosts such data, may provide access to such data to Customer’s employees and agents. Travel Trim  and Customer acknowledge that these medical records may constitute “Protected Health Information” as defined in 45 CFR § 164.501.  Travel Trim and Customer each agree (a) not to not use or disclose Protected Health Information other than as permitted or required by this Agreement or as required by law, (b) to use appropriate safeguards to prevent use or disclosure of the Protected Health Information other than as provided for by this Agreement (c) to mitigate, to the extent practicable, any harmful effect that is known to a party from an unauthorized use or disclosure of Protected Health Information , (d) to report to the other party any use or disclosure of the Protected Health Information not provided for by this Agreement of which it becomes aware, (e) to ensure that any agent, employee, or subcontractor, to whom it provides Protected Health Information agrees to the same restrictions and conditions that apply through this Agreement to Travel Trim and Customer with respect to such information, (f) to provide access to the other party to Protected Health Information in order to meet the requirements under 45 CFR § 164.524, and (g) to otherwise comply with all of the requirements of Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191. If Travel Trim experiences any incident of unsecured Protected Health Information or other improper disclosure, Travel Trim shall notify Customer, and Customer shall be responsible for all notifications required by applicable law, and Travel Trim will cooperate as reasonably necessary with Customer to comply with applicable law. Notwithstanding the foregoing, Customer acknowledges that Travel Trim shall not be responsible to any third party regarding any Protected Health Information or other information provided by Customer. Furthermore, Customer agrees to indemnify and hold Travel Trim harmless from the claims of third parties in accordance with Paragraph 4(B) above.

6. SECURITY AND USE OF SOFTWARE

A. Enhancements
Travel Trim encourages Customer to provide input and recommendations regarding possible features, improvements and enhancements to the Software Services. All such recommendations or requests shall become the sole property of Travel Trim. If Customer submits any specific requests for features, improvements or enhancements to the Software Services, Travel Trim may, in its sole discretion, (a) provide Customer with a written proposal setting forth the terms, conditions and costs to develop and complete such requests, and proceed to develop them only if Customer signs such written proposal, (b) decide not to develop any such proposed features or enhancements, or (c) incorporate such requests into Travel Trim product development roadmap at Travel Trim’s sole discretion, and develop them at Travel Trim’s cost and in Travel Trim’s sole discretion.
B. Hosted Services/Service Level
Travel Trim shall make commercially reasonable efforts to maintain the computer systems which host the Software Services and any data so that they are available twenty four (24) hours per day, seven (7) days per week, except for periods of scheduled maintenance that shall occur primarily during evening and week-end times. Travel Trim shall provide to Customer written or electronic communication at least twenty four (24) hours in advance of any scheduled maintenance or scheduled interruption of the Hosted Software Services. Travel Trim has SLA (service-level agreements) established with network providers to avoid network downtime of more than 130 minutes per month exclusive of system maintenance and other system updates required to maintain server operations by utilizing redundant connections and Network Operation Centers (NOCs).

Travel Trim shall not be responsible for failures of computer or Internet systems, telephone system failures, or other events beyond the reasonable control of Travel Trim, which may interrupt the Software Services or make data temporarily irretrievable.  Travel Trim shall issue a password to Customer to access the Software Services. Access is for the specified Customer, and Customer therefore agrees not to share the password. Customer shall use the Software Services only as permitted by applicable local, state, and federal laws and the terms of this Agreement.
7. General

A. Force Majeure
Neither party to this Agreement shall be in default hereunder by reason of its delay in the performance of or failure to perform in whole or in part, any of its obligations hereunder, if such delay or failure resulted from acts of God or other occurrences beyond its reasonable control, and without its fault or negligence. Such acts or occurrences shall include, but shall not be limited to, earthquakes, floods, fire, power failures, communications failures, epidemics, strikes, lockouts, war, terrorist activity, or governmental regulations which go into effect after the execution date of this Agreement.

B. Binding Effect
This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective heirs, legatees, personal representatives and other legal representatives, successors and permitted assigns.  Travel Trim  and Customer specifically acknowledge and agree that this Agreement governs and applies to the relationship between Travel Trim and the Customer, and not to any other relationship between the Customer and any other division, company, business unit, subsidiary or affiliate of Travel Trim.  Except as otherwise specifically provided, this Agreement is not intended and shall not be construed to confer upon or to give any person, other than the parties hereto, any rights or remedies.

C. Governing Law
This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Tennessee as they apply to a contract made and performed in such state. The parties agree that the exclusive jurisdiction and venue for any dispute arising hereunder shall be the state and federal courts located in Nashville, TN. The prevailing party in any litigation or proceeding regarding this Agreement shall be entitled to recover its attorneys’ fees and costs.

D. NOTICES
Any notice or other communication (“Notice”) required or permitted under this Agreement shall be in writing and either delivered personally or sent by facsimile, overnight delivery, express mail, or certified or registered mail, postage prepaid, return receipt requested.  Notice to any one or more parties, the time period shall commence only when all the required Notices have been deemed given.  Either party may designate, by Notice to the other, substitute addresses, addresses or facsimile numbers for Notices, and thereafter, Notices are to be directed to those substitute addresses, or facsimile numbers.

E. Time and Material Projects
Travel Trim must obtain written or electronic approval from Customer prior to initiating any time and material-based work.  All work performed by Travel Trim is covered in the corresponding Exhibits and any work requested by the Customer outside of the scope of the Exhibit(s) will be deem Time and Materials at an hourly rate of one hundred fifty ($150) per hour.