HEADSTREAM TECHNOLOGIES PLATFORM

SaaS and Hosting Terms of Service

This Software as a Service (SaaS) and Hosting Agreement ("Agreement") is effective as of the date of your acceptance ("Effective Date") and establishes the terms under which Headstream Technologies, LLC, a Delaware limited liability company with its principal office located at 224 S. Cochran Avenue, Charlotte, MI 48813 ("Company"), provides services to you ("Client"). 

By accepting this Agreement, whether by clicking a button indicating your acceptance, by executing an order form that references this Agreement, or by using or accessing our services, you agree to be bound by the terms of this Agreement.

Throughout this Agreement, Headstream Technologies and the Client may be referred to collectively as the "Parties" and individually as a "Party."

(1) Acceptance: You accept this Agreement and agree to its terms by: (a) clicking a button or checking a box marked "I Agree" (or something similar) linked to this Agreement; or (b) using or accessing the Headstream Technologies platform services in any way, after being provided with an opportunity to review this Agreement. (2) Legal Capacity: You represent and warrant that you have the legal capacity to enter into this Agreement. If you are entering into this Agreement on behalf of an entity, such as the company you work for, you represent and warrant that you have the legal authority to bind that entity.

     Please review this Agreement carefully. By accepting, you acknowledge that you have read, understood, and agree to be bound by the terms and conditions outlined         herein.

     WHEREAS, Company provides the services described herein through the use of a proprietary software application system accessible via the Internet and web-                   browser; and

     WHEREAS, Company is willing to provide the Services (as defined below), and Client is willing to obtain the Services, subject to the terms and conditions set forth               herein.

     NOW THEREFORE, in exchange for good and valuable consideration (the receipt and sufficiency of which is hereby acknowledged), including, but not limited to, the           mutual promises contained herein, the Parties hereby agree as follows:

  1. Definitions. Definitions not otherwise defined in this Agreement shall have the following meanings:
    1. “Affiliate(s)” means the corporate or legal entities controlling, controlled by, or under common control with a Party.
    2. “Certificate(s)” means any certifications, licenses, licensing, memberships, permits, or permissions generated by any regulatory, professional, educational, advisory, or governmental entity to any person or entity which is not the Client.
    3. “Client Property” means the entire Client system, Client trademarks, Client contracts, Reports and all other of Client’s and its Affiliates’ Confidential Information, and all IP Rights in any of the foregoing.
    4. “Confidential Information” means any non-public information (including the terms, conditions and existence of this Agreement) of or relating to either Party, their respective Affiliates and/or Users (as defined below) including, but not limited to, business plans, strategies, forecasts, analyses, financial information, information technology information, trade secrets, matter covered by a United States patent or provisional patent, and other proprietary information, regardless of the manner or medium in which it is furnished to or otherwise obtained by the disclosing party and including all information exchanged between the Parties regarding proposed business, regardless of whether the Parties enter into a definitive agreement regarding such proposed business. For clarification purposes, the intellectual property, programming, software, code, and functionality of Company’s Services shall always be Confidential Information and are also trade secrets of the Company.
    5. “User” means the previous or existing students, employees, administrators, counselors, volunteers or parents of the Client.
    6. “Data” means any information, documents, files, images, materials, and data which is tracked by, stored by, gathered by, entered into, or organized by or through the Services.
    7. “Documentation” means all user manuals, handbooks, specifications, and written or on-line materials relating to the functionality of the Company System.
    8. “EULA” means an End User License Agreement.
    9. “Fees” means the total costs, fees and expenses to be paid for the Services, as specifically set forth in each Work Order.
    10. “IP Rights” means any provisional patent, patent, copyright, trademark, technical information, know-how, trade secret, proprietary information, or other intellectual property right(s), whether currently existing or hereafter developed or acquired, and regardless of the jurisdiction or location where such right(s) exist.
    11. “Platform” means the Headstream / Faulkner Tech Platform, which includes MILearner Wallet, MiLearner Insight, MiCoach Insight and EdLusion. The Platform is a comprehensive digital environment offering a range of capabilities, applications, and modules designed to enhance educational engagement, learning outcomes, and coaching insights including but not limited to:
      1. MiLearner Wallet: A digital repository for learners to store, manage, and share their educational credentials, achievements, and learning resources.
      2. MiLearner Insight: An analytics tool that provides detailed insights into learner progress, performance metrics, and educational outcomes.
      3. MiCoach Insight: A specialized module for coaches and educators to access analytics, insights, and tools to support personalized coaching and instruction.
      4. EdLusion: A single platform for educator effectiveness.

                       The Platform's various capabilities are delivered through a cloud-based architecture, ensuring accessibility, scalability, and security. The definition of the                               Platform encompasses all current functionalities, applications, and modules, as well as any future updates, enhancements, or additions made available to                             users as part of the Headstream / Faulkner Tech service offering.

    1. “Personal Data” or “Personal Identifiable Information” (“PII”) is information that can be used to distinguish or trace an individual’s identity, such as name, social security number, date and place of birth, mother’s maiden name, or biometric records; and other information that is linked or linkable to an individual, such as medical, educational, financial, and employment information regardless of the media on which such information is stored (e.g., on paper or electronically). Examples of PII include, but are not limited to: (1) name, (2) personal identification numbers such as social security numbers, passport numbers, driver’s license numbers, taxpayer identification numbers, patient identification numbers, financial account numbers or credit card numbers, (3) personal address information such as street address or email address, (4) personal telephone numbers, (5) personal characteristics such as facial photographic images, fingerprints, or signatures, (6) biometric data such as retina scans, voice signatures, or facial geometry, (7) numbers identifying personally-owned property: VIN number or title number, and (8) asset information such as Internet Protocol (IP) or Media Access Control (MAC) addresses that consistently link to a particular person. Information and data which is publically available or does not personally identify an individual (or for which the legal consent for such PII has been obtained) is not “PII” as defined herein.
    2. “Reports” means written or computerized reports that are generated by the Company System or Services, or other tangible (including electronic) deliverables (hard or soft copy) created and/or delivered pursuant to the Services.
    3. “Services” means the following: via the Platform the Company will enable the Client to collect, track, generate, organize, and store Data and information regarding jobs, tasks, work, photographs, records, certifications, performance, alerts, and reports as well as facilitating, tracking and storing Certificates. The Services include enabling courses and training, assisting in the notification of certification expiration, and (when possible) offers initial and refresher training/certification courses. The Services include online teaching and learning tools which enable remote teaching, classes, meetings, and instruction. The Platform has built-in processes and checklists enabling the user to collect and store needed notifications, signatures, and documents. The Parties agree that the definition of “Services” may be expanded as the components of the Platform are expanded.
    4. “Term” means the period of time that this Agreement or a Work Order (as the context requires) shall be in effect.“Use” means to use, provide, display, access, perform, and test the Services for Client’s and its Affiliates’ business use.
    5. “Company Property” means the Company System including Company’s intellectual property (which includes Headstream Technologies’ Platform and, more broadly, the Services) and any such code and programming (or any portion thereof).
    6. “Company System” means Company’s software programs including the Headstream Technologies Platform, applications, hardware, equipment, servers and systems used in providing the Services.
    7. "Work Order" refers to a mutually-agreed-upon document that is executed by both the Company and the Client or its Affiliates. A Work Order specifies the particular Services the Client wants and which the Company will provide. This document includes, but is not limited to, a comprehensive description of the Services to be delivered, the Fees associated with these Services, and any other pertinent details or conditions. Each Work Order will incorporate by reference the terms and conditions of this Master Services Agreement. Importantly, nothing within a Work Order shall serve to diminish, waive, or otherwise limit the protections or rights afforded to the Company under this Agreement.
  2. The Services.
      1. Services. Via the Platform the Company shall provide the Services to Client. The Company shall provide MILearner Wallet, MILearner Insight, MICoach Insight, and EdLusion (and accompanying training) which facilitate Client’s compliance with educational requirements and which gives the Client greater tools to educate, organize, and administer.
      2. Work Orders. Services to be performed by Company under this Agreement may be detailed on an executed Work Order. A copy of the form of Work Order to be executed by Client is attached hereto and incorporated herein by this reference as Addendum A. Company shall perform the Services described in each Work Order in accordance with the terms of this Agreement and the applicable Work Order. A Work Order shall never limit, remove, or waive the protections or rights enjoyed by Company under this Agreement.
      3. Change Order Process. Change Orders shall be accomplished either through a new Work Order or in writing between the parties. Reducing or waiving Fees payable under a prior Work Order may only be accomplished by directly addressing such Fees pursuant to that prior Work Order in conjunction with the express approval to modify such Fees by the Company.

3. Testing; Deployment; Maintenance; Business Continuity and Disaster Recovery.

    1. Testing. Company shall appropriately test all Services and any upgrade thereto prior to installation and deployment as part of the Company System. Company shall use commercially reasonable efforts to perform such testing at time or in a manner as to minimally, negligibly, or not affect the performance of Client’s systems to the extent it is possible.
    2. Deployment. Company will provide the Services (and any deliverables in connection therewith) in accordance with the timetable set forth in the applicable Work Order or as otherwise agreed by Client. Notwithstanding any provision of the Work Order to the contrary, in Client’s sole discretion and upon notice to Company, Client shall have the right to delay deployment of the Services and, in such event, the commencement of the term of the applicable Work Order (but not the payment of Fees associated with such Work Order).
    3. Maintenance. Throughout the Term, Company shall provide technical support and maintenance services as part of the Services as necessary to ensure continued functionality of the Company System (“Maintenance”). Company shall use commercially reasonable efforts to perform such Maintenance at time or in a manner as to minimally, negligibly, or not affect the performance of Client’s systems to the extent such is possible. To the extent it is possible, Company shall provide Client reasonable advance notice of any Maintenance which will disrupt the Service or result in Company System unavailability and, except in the event of necessary Maintenance, all Maintenance shall be performed during Client’s off-peak hours. Company shall use its best efforts to minimize any disruption or downtime of the Services as a result of any Maintenance. Client shall have the right to defer Maintenance on notice to Company. At a minimum, Company shall make available to Client all updates, upgrades and improvements to the Services that it makes available to other clients receiving the same or similar services as the Services. Updates made to the Services, shall include updates to the mobile sites (if applicable), ensuring that all mobile sites have similar functionality where possible.
    4. Business Continuity and Disaster Recovery. Throughout the Term, Company shall:
      1. Maintain a disaster recovery and business continuity plan that is not only commercially reasonable but also aligned with SOC 2 Type 2 standards. This Plan is designed to protect the Company System against performance failures and ensure a prompt restoration of full functionality in the event of such failures.
      2. Implement the Plan appropriately in response to any unplanned system interruptions, and maintain open and timely communication with the Client about the progress of implementing the Plan.
      3. Provide the current Plan to the Client upon request, demonstrating our adherence to SOC 2 Type 2 compliance and our commitment to system availability and data integrity.
      4. Actively test, review, and update the Plan at least annually, in accordance with SOC 2 Type 2 requirements, to ensure its effectiveness and relevance. Upon request, the Company will provide the Client with a summary of the latest annual test results within ten (10) business days of, further evidencing our ongoing commitment to system reliability and client trust.

4. Fees, Invoicing and Payment.

      1. Fees. Client shall pay Company all Fees pursuant to or set forth in the Work Order, without setoff offset or counterclaim. Client shall additionally pay all reimbursable expenses agreed-upon in any Work Order. Company shall be responsible for its normal day-to-day expenses arising from its performance of the Services set forth in this Agreement.
      2. Invoice Issuance and Taxes. Company will deliver invoice(s) (electronic or written) to Client for the Fees due in accordance with the terms of this Agreement and the applicable Work Order. Invoices shall be payable no earlier than the time or times specified in the applicable Work Order. Where applicable, federal, state and/or local sales taxes, use taxes and transportation-related taxes shall be added to the Fees. Such taxes shall be reflected on Company’s invoices. At Client’s request, Company shall supply Client with a record of all taxes collected and paid. Company is incorporated in or formed under the laws of the United States and no U.S. withholding or foreign taxes will be payable as a result of the Company System or Services unless Client’s business triggers such taxes pursuant to the laws and regulations of the United States.
      3. Payment Due Date. Invoiced amounts are due the later of (i) thirty (30) days after Company’s mailing (electronically or via the U.S. Postal Service) of such invoice or (ii) the due date due under this Agreement or the applicable Work Order.
      4. Third Party Royalties. Company shall secure all necessary permissions, licenses or consents, and pay all amounts due in connection therewith, for any rights not owned and controlled by Company necessary for Company to provide the Services to be delivered or performed by Company to Client or its Affiliates pursuant to a Work Order unless otherwise specified in such applicable Work Order. This Agreement shall not commit Company or Client to expenses for a future license, program, product, app, plug-in, or other piece of intellectual property not utilized at the time of the execution of this Agreement but which may later become useful to the Services.
      5. Travel. In accomplishing the Services, implementation of the Services, testing, and training, travel and such expenses ancillary to travel shall be paid by the Client as invoiced and consistent with the Company’s travel and expense policy, attached hereto as Addendum B.

5. Term and Termination.

      1. Term of Agreement. The Term will begin as of the Effective Date and shall continue throughout the pendency of any Work Order. This Agreement’s provisions regarding confidentiality, arbitration, limitations of liability, trade secrets, and intellectual property shall survive termination of this Agreement.
      2. Termination and Suspension Rights. In addition to a Party’s other termination rights and remedies specified in this Agreement:
        1. Either Party may immediately terminate this Agreement, and/or any Work Order incorporated by reference into this Agreement, at any time by providing notice in writing to the other Party where the other Party commits a material breach of its obligations under this Agreement or such Work Order, and such other Party fails to cure such material breach within forty-five (45) days of receiving written notice of such material breach from the non-defaulting Party and a demand for cure.
        2. Company may terminate this Agreement and immediately suspend Services if the Client engages in unauthorized actions including, but not limited to, attempting to reverse engineer, modify, or convert any of the Company’s Confidential Information or intellectual property, as these terms are defined herein. Such termination and/or suspension will not constitute a waiver by the Company of any other remedies available under law or equity. Furthermore, in the event of such unauthorized actions by the Client, the Company is entitled to accelerate all payments due under this Agreement and any applicable work order, requiring immediate payment in full. The Company shall notify the Client of any breach, and the Client shall have 30 days to cure the breach, if curable, to the Company's satisfaction. Failure to cure such breach shall result in immediate acceleration of payments and termination of this Agreement. The Company reserves the right to pursue all legal and equitable remedies, including but not limited to seeking damages, injunctive relief, and compensation for any losses, costs, or expenses arising from the Client's unauthorized actions.
        3. Company may suspend the Services provided hereunder should any invoice not be fully paid within 90 days of invoicing.
        4. A suspension of services shall not terminate this Agreement, the applicable Work Order, or any payments due to Company hereunder prior to or following such suspension.
        5. For clarification, should the Company suspend the Services, Company’s responsibilities to provide Testing, Maintenance, Disaster Recovery, support, and any emergency services are also suspended. Upon the expiration or termination of this Agreement in its entirety for any reason whatsoever, Company shall cease providing the Services and Client shall cease all Use of the Services
        6. The Parties will comply with the provisions of Section 6 (Confidentiality) as it pertains to the return or destruction of Confidential Information.
        7. Provided all invoices have been paid to Company, Company will provide Client or its designee reasonable transition services to enable Client to transition to a new Company. Nothing in this paragraph or this Agreement shall require to Company (or permit the Client) to divulge any Confidential Information to a new Company or to the Client or the Client’s affiliate. Nothing in this paragraph shall obligate Company to enable any new Company, provide functionality to any new Company’s services, or migrate any information. Any new Company shall bear the responsibility of migrating transferable information. Company’s obligations shall be limited to that data transferable under this Agreement and necessary to allow a new Company to accomplish its own functionality and the migration of the Client’s data necessary to provide functionality going forward (not backward functionality) for Client.

6. Confidentiality.

    1. General. “Confidential Information” means any non-public information (including the terms, conditions and existence of this Agreement) of or relating to either Party, their respective Affiliates and/or Users (as defined below) including, but not limited to, business plans, strategies, forecasts, analyses, financial information, information technology information, trade secrets, and other proprietary information or data, regardless of the manner or medium in which it is furnished to or otherwise obtained by the disclosing party and including all information exchanged between the Parties regarding proposed business, regardless of whether the Parties enter into a definitive agreement regarding such proposed business. For clarification purposes, the intellectual property, programming, software, code, and functionality of Company’s Services shall always be part of the Confidential Information of Company.
    2. Receiving Party Obligations. Subject to the additional obligations set forth below regarding Personal Data, the receiving party shall protect the Confidential Information of the disclosing party using the same degree of care, but not less than a reasonable degree of care, that the receiving party uses to protect its own confidential information of like nature, to prevent the unauthorized use, access, disclosure, dissemination, or publication of such Confidential Information. The receiving party shall not use or make available in any form the Confidential Information of the disclosing party to any other party other than its employees, contractors, accountants, and attorneys (collectively, the “Representatives”) where such access is necessary to the job performance, and the receiving party shall take the necessary steps to ensure that any persons permitted access to such Confidential Information are legally bound to hold such Confidential Information in confidence without further disclosure to any third party. The receiving party will diligently enforce any and all confidentiality agreements with its Representatives to protect the Confidential Information. The receiving party shall use the Confidential Information of the disclosing party only for the purposes set forth in this Agreement. The receiving party acknowledges and agrees that the disclosing party might be irreparably harmed if any Confidential Information were to be disclosed to a third party.
    3. Compliance with Laws. Notwithstanding the provisions set forth herein, the receiving party may disclose the disclosing party’s Confidential Information to the extent required pursuant to an order or judgment of any court or governmental body or pursuant to any law, rule or regulation, provided that in either such event, the receiving party: (i) has received a written order, judgment, or subpoena from a court of competent jurisdiction necessitating that such disclosure is required;(ii) has given, to the extent lawfully permitted to do so, reasonable notice (not less than ten (10) days) to the disclosing party in advance of such disclosure so that the disclosing party may have an opportunity to prevent such disclosure or seek a protective order through appropriate legal means; and (iii) uses commercially reasonable efforts to seek confidential treatment of such information from the entity to which the disclosure is made (which shall include, at minimum, requesting that such Confidential Information be designated as “attorney’s eyes only” and as confidential). The receiving party shall cooperate with the disclosing party regarding the form, nature, content and purpose of such disclosure or any action which the disclosing party may reasonably take to challenge the validity of such requirement.
    4. Exclusions. The restrictions and obligations relating to the protection of Confidential Information, shall not apply with respect to any Confidential Information that: (i) the receiving party lawfully had knowledge of, or access to, without an obligation of confidentiality prior to the time of disclosure by disclosing party; (ii) the receiving party developed independently without access to or use of the Confidential Information of the disclosing party and without breach of this Agreement; (iii) has become generally known to the public other than by breach of this Agreement or wrongful act of the receiving party or its Representatives; or (iv) the receiving party obtained from a third party without an obligation to maintain confidentiality and not being in wrongful possession of such Confidential Information.
    5. Expiration or Termination Obligations. Regardless of the expiration or earlier termination of this Agreement, or the return or destruction of Confidential Information, the receiving party’s confidentiality obligations hereunder will continue for so long as the information constitutes Confidential Information as defined herein.
    6. Return or Destruction of Confidential Information. At the request of the disclosing party during or upon termination of this Agreement, the receiving party shall deliver to the disclosing party all Confidential Information of the disclosing party then in the receiving party’s possession or under the receiving party’s control or, if requested by the disclosing party, the receiving party must destroy all of its copies of such Confidential Information, whether tangible or electronic, and certify to the disclosing party in writing that such destruction has been accomplished.
    7. Personal Data. With regard to PII, the receiving party will comply with all applicable privacy and other laws and regulations relating to protection, collection, use, distribution and destruction of Personal Data. Company shall not use Personal Data for any purpose which violates applicable privacy and other laws and regulations relating to protection, collection, use, and distribution of Personal Data. Unless permitted by law or by consent, a receiving party shall not: (i) use Personal Data to market its services or those of a third party; (ii) commingle Personal Data with any records, files, data or information to a greater extent than necessary to perform the Services contemplated under this Agreement; (iii) sell Personal Data to third parties; or (iv) retain Personal Data after the expiration of this Agreement. Company may use for any purpose any Data which is public or which may not be traced to an individual or data for which Company has directly or indirectly obtained the consent of that individual (or entity) during or after the expiration or termination of this Agreement without limitation. Such Data or information shall not be defined as “Personal Data” or “PII”
    8. Student Data. The Company will not disclose personally identifiable information from education records to third parties without the prior consent of the parent or student, will use such information only for activities related to this Agreement, and will delete or destroy such information following termination of this Agreement or earlier if requested by the Client. The Company may retain and use anonymous demographic and statistical data and information (not individually identifiable) it collects pursuant to this Agreement to improve its Products or for any other purpose, but will comply with all applicable laws and regulations. For purposes of the Client meeting its obligations under the Privacy Laws the Company agrees that it will employ reasonable protections to prevent unauthorized access to personally identifiable student information in the Company’s control. The parties acknowledge and agree that the Client is responsible for compliance with the Children’s Online Privacy Protection Act (COPPA), the Family Educational Rights and Privacy Act of 1974 (FERPA), and other applicable laws and regulations regarding the dissemination of information regarding students (collectively, the “Privacy Laws”), and the Client agrees to indemnify, defend and hold the Company harmless from any claims, causes of action, costs (including reasonable attorneys’ fees) and any other liabilities related to Privacy Laws.
    9. Security Breach. If a security breach occurs or is suspected and that security breach involves Confidential Information (“Security Breach”), the Party whose system has been threatened or affected shall: (i) immediately investigate and take all steps to identify, prevent or mitigate the effects of such Security Breach; (ii) promptly notify the other Party (but in all such circumstances within seventy-two (72) hours of becoming aware of such occurrence), which notice shall include a detailed description of the incident, the information accessed or attempted to be accessed, the identity of affected Users and other individuals, and such other information as the notified Party may reasonably request concerning the Security Breach. The notifying Party shall coordinate and cooperate with the notified Party prior to sending any notices required under applicable law with respect to a Security Breach.
    10. Publicity & Non-Disparagement. The Parties shall not issue any press release or public announcement/disclosure (including promotional materials, marketing materials or otherwise) regarding the relationship between the Parties, any Security Breach, or the existence (or the terms and conditions) of this Agreement or any Work Order, without the prior express written consent of the other Party; provided that the foregoing will not prohibit any disclosure to the extent required by applicable laws. The Parties shall not, directly or indirectly, act in any way likely to damage or disparage the goodwill or reputation of the other Party or its Affiliates and/or any of their products or services. This provision shall survive the expiration or termination of this Agreement.
    11. Trade Secrets Acts. The rights and obligations of the parties hereunder are in addition to, and not in derogation of, their respective rights and duties under the Uniform Trade Secrets Act or the Defend Trade Secrets Act. Client agrees and represents here that Headstream Technologies Platform, its code, its functionality, and the methods by which such functionality is accomplished are trade secrets of the Company.

7. Intellectual Property Rights. The Parties agree as follows with respect to their respective rights and obligations pertaining to IP Rights:

      1. Ownership of Company System and Services. Company will retain all right, title, and interest, including all proprietary rights, in and to all and any portion of the Company Property. Company is providing a service to the Client and, accordingly, no license or right is transferred to Client by Company. Client Property. Client will retain all right, title, and interest, including proprietary rights, in and to all and any portion of the Client Property. Client Property detailed herein does not and will not confer or transfer any ownership right(s) to Company.
      2. Use by Company of the Client Property. Commencing on the Effective Date and continuing for the Term, Company shall have the right, subject to Section 6 (Confidentiality) and Section 8 (Security), to use the Client Property in accordance with the terms set forth herein and solely as necessary for Company to perform its obligations under this Agreement. Upon termination of this Agreement, Company shall return or destroy any such Client Property still in its possession in accordance with Section 6(f) (Return or Destruction of Confidential Information) and Section 6(g) (Personal Data).
      3. Data. The Company shall be permitted to collect, organize, store, and own all Data which passes through the Company System. Company will comply with all applicable privacy and other laws and regulations relating to protection, collection, storage, use, distribution, and destruction of PII. Company shall not use PII for any purpose which violates applicable privacy and other laws and regulations relating to protection, collection, use, and distribution of PII.
      4. Access to Client systems. Commencing on the Effective Date and continuing for the Term, Client shall ensure that Client has all necessary rights, licenses, and permissions allowing Company to access, transmit, convey, or facilitate the Data which Client wishes Company to transmit, convey, or facilitate in accordance with the terms set forth in this Agreement. Client shall indemnify Company from any third-party claims, costs and damages arising from Company’s transmission, conveyance, or utilization of any other company’s information, content, or intellectual property in furtherance of Company’s services to Client.

8. Security.

      1. General. Without limiting Company’s obligations pursuant to Section 6 (Confidentiality), Company shall: (i) protect the security and integrity of Client’s Confidential Information (including, Client Property) using and maintaining industry-standard administrative, technical and physical safeguards to protect against anticipated threats or hazards to, or the unauthorized access, disclosure or use of, Client’s Confidential Information, and in no event shall such measures be less restrictive than those Company employs to safeguard its most confidential information; (ii) implement, maintain and update adequate, sufficient and current security measures, procedures, policies, controls and practices (collectively, “Security Measures”) regarding the Company System as necessary to prevent unauthorized access to Client Property under Company’s control. Company shall appropriately test the Security Measures.
      2. Security Review. Client shall have the right to request a current update on the state of Company’s Security Measures and Company shall cooperate with Client in such audit as reasonably requested. Upon Client’s request, Company shall provide Client with the results of any audit performed by or on behalf of Company that assesses the effectiveness of Company’s information security program as relevant to the security and confidentiality of Client Property.

9. Warranties and Indemnification.

      1. General. Each Party represents, warrants and covenants (collectively, “Represents”) that this Agreement is executed by a duly authorized representative of the Party and that as of the Effective Date, and any date of execution of a Work Order, there are no actions, suits or proceedings or regulatory investigations pending or threatened against or affecting that Party before any court or administrative body or arbitration tribunal that might affect the ability of that Party to meet and carry out its obligations under this Agreement.
      2. IP Rights. The Company Systems and the Services are owned by Company (or properly licensed by Company) and Company has full right, authority, and ability to fulfill its obligations under this Agreement. The Company System and the Services do not infringe any IP Right of any third party and there are no claims of infringement against the Company. In the event the Company System or the Services are held to constitute an infringement, Company shall, at its own expense, modify the Services so that they are non-infringing and of equivalent performance and functionality.
      3. No Virus or Trap. Company will use commercially-reasonable efforts to ensure that the Services, including the transmission or delivery of information originating from Company or the use of any web beacon, cookie or similar means originating from the Company System, will not contain, deliver or transmit any computer instructions or programming whose purpose or effect is to disrupt, damage or interfere with any systems operated by Client (“Harmful Code”). Harmful Code includes, without limitation, code containing viruses, Trojan horses, worms, traps, spyware, back doors, disabling devices (other than User Credentials), or destructive self-replicating code.
      4. Compliance with Laws. Company Represents that it is and shall remain in compliance with all applicable federal, state and local laws, rules and regulations and the Services and Company System shall at all times comply with all applicable laws, rules and regulations, including, where applicable:
        1. the U.S. Foreign Corrupt Practices Act, all applicable anti-corruption laws of any countries with jurisdiction over this Agreement or any applicable Work Order and any amendments, related case law and legal authority (“Applicable Anti-Corruption Laws”) and to take no action that might cause Client to be in violation of the Applicable Anti-Corruption Laws. Company represents, covenants, and warrants that it has not and will not violate or knowingly let anyone violate the Applicable Anti-Corruption Laws, and Company agrees that no payment it makes or has made constitutes a bribe, influence payment, kickback, rebate, or other payment that violates the Applicable Anti-Corruption Laws.
        2. Company agrees that it is an Equal Opportunity Employer and is committed to complying with all federal, state and local equal employment opportunity (“EEO”) laws. Company agrees that it will not discriminate against its employees, applicants for employment and Company personnel it considers for assignment in connection with the Services described herein because of the individual’s disability, age, race, religion, sex (including pregnancy), national origin, sexual orientation, marital status, military or veteran status, or any characteristic protected by law.
      5. Qualified Personnel; Professional Services. Company shall utilize a sufficient number of professional, qualified personnel capable of providing the Services in a timely, competent and efficient manner and as required by this Agreement and the applicable Work Order. The services provided by Company in connection with this Agreement and any Work Order shall be performed in a good and workmanlike manner utilizing reasonable care consistent with not less than industry standards and in accordance with the timeframes set forth in the Work Order.
      6. Warranty Period. The representations, warranties and covenants set forth in this Section 9 (Warranties and Indemnification) shall apply for the period beginning on the Effective Date and continuing throughout the Term.
      7. No Implied Warranties. OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND IN ANY APPLICABLE WORK ORDER, Company AND CLIENT HEREBY DISCLAIM ALL OTHER WARRANTIES UNDER THIS AGREEMENT, EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER.
      8. No Representation. Company MAKES NO REPRESENTATION THAT THE SERVICES OR THE PLATFORM WILL ENSURE COMPLIANCE WITH ANY STATE, FEDERAL OR LOCAL LAW, REGULATION, OR REQUIREMENT. THE PARTIES AGREE THAT IT IS THE RESPONSIBILITY OF THE CLIENT TO ENSURE COMPLIANCE WITH ANY STATE, FEDERAL OR LOCAL LAW, REGULATION, OR REQUIREMENT.
      9. Indemnification.
        1. Company shall, at Company’s sole cost and expense, indemnify, defend and hold harmless Client and its directors, officers, employees, and agents from and against any and all claims, actions, suits, proceedings, judgments, penalties, and damage awards, from any third party claim that the Company Property, or the use thereof of any of the foregoing, infringes or violates another party’s IP Rights or to the extent such damages were proximately caused by the gross negligence, willful misconduct, or the fraud of Company.
        2. Client shall, at Client’s sole cost and expense, indemnify, defend and hold harmless Company and its directors, officers, employees, and agents from and against any and all claims, actions, suits, proceedings, judgments, penalties, and damage awards, from any third party claim that the Client’s Property, or the use thereof of any of the foregoing, infringes or violates another party’s IP Rights or to the extent such damages were proximately caused by the gross negligence, willful misconduct, or the fraud of Client.
        3. Client shall, at Client’s sole cost and expense, indemnify, defend and hold harmless Company and its directors, officers, employees, and agents from and against any and all claims, actions, suits, proceedings, judgments, penalties, and damage awards, from any third party claim in which the Client is accused of negligence, breach of contract, or the violation of any governmental regulation involving Medicare, Medicaid or involving public or governmental contracts, grants or awards. Company shall be permitted to chose its own counsel.

10. Limits of Liability.

  • LIMITATION ON DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, NEITHER PARTY (NOR SUCH PARTY’S AFFILIATES NOR THEIR SHAREHOLDERS, AUTHORIZED USERS OR PERSONNEL, NOR THOSE HEADSTREAM WORKS WITH TO PROVIDE THE SERVICES) WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PERFORMANCE OR OMISSION OF PERFORMANCE WITHOUT REGARD TO THE NATURE OF THE CLAIM (E.G.,BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
      1. CLIENT RELEASES AND HOLDS Company HARMLESS FROM ALL COSTS, FEES, DAMAGES, JUDGMENTS, LIABILITIES, INJURIES, OR PERSONAL OR REAL PROPERTY DAMAGE (“CLAIMS”) ARISING OUT OF OR RESULTING FROM CLIENT’S USAGE OF THE SERVICES OR ANY BUSINESS PARTNER OF CLIENT’S USAGE OF THE SERVICES, WHETHER OR NOT SUCH CLAIMS WERE CAUSED BY THE NEGLIGENCE OR DEFAULT OF Company.
      2. EXCLUSIONS. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 10(a) SHALL NOT APPLY TO DAMAGES ARISING FROM A PARTY’S OBLIGATIONS WITH RESPECT TO (i) THE “Company PROPERTY”; (ii) INDEMNIFICATION OBLIGATIONS; OR (iii) ARISING FROM A PARTY’S GROSS NEGLIGENCE, OR INTENTIONAL OR FRAUDULENT CONDUCT.

11. Personnel and Client Affiliate Participation.

      1. Personnel. Each Party’s personnel shall be regarded at all times as employees, agents or subcontractors of that Party, and no employment, agency, or contractual relationship shall arise between one Party’s personnel and the other Party to this Agreement under any circumstances regardless of the degree of supervision exercised over such personnel by such other Party.
      2. Client Affiliate Participation. Provided and to the extent it is specified in the Work Order, Client’s Affiliates are entitled to utilize the Company System and receive the Services hereunder.
      3. Subcontractor. Company shall be responsible for ensuring that any subcontractor of Company enters into a written agreement with Company pursuant to which the subcontractor agrees: (i) to be bound to maintain as confidential all Client Property and other Client Confidential Information under terms no less protective of Client than those applicable to Company set forth in this Agreement; (ii) to maintain, update and test security policies, procedures and controls no less protective of Client Confidential Information than those applicable to Company as set forth in this Agreement; and (iii) to provide for Client such information, reports and records relating to security procedures and Security Breaches as Company is required to provide hereunder.

12. Miscellaneous Terms.

  1. Notices. Any notice, request, approval, authorization, consent or other document to be served by a Party shall be in writing (except where oral notice is specifically authorized or accepted) and shall be deemed given on the earlier of: (i) actual receipt, regardless of the method of delivery;(ii) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (iii) on the sixth day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the address set out below or any such other notice address identified on a Work Order

To Client:   

[You name, your email address]

 

To Company:

Headstream Technologies, LLC

Attention:  Victoria Cox, COO

224 S. Cochran Ave

Charlotte, MI 48813

  1. Assignment. Client may not assign this Agreement or the duties hereunder (either directly or indirectly) including, without limitation, assignments by operation of law, in whole or in part, without: (1) the prior written consent of Company which is then (2) confirmed to Company in writing and noticed to Company in accordance with the Notice provision of this Agreement. ANY ATTEMPT BY CLIENT TO ASSIGN THIS AGREEMENT IN CONTRAVENTION OF THIS SECTION 12(B) (ASSIGNMENT), OR IN CONTRAVENTION OF SECTION 11(C) (SUBCONTRACTOR), WILL BE VOIDABLE AT Company’S OPTION.
  2. Modification and Waiver. No modification or amendment of this Agreement will be binding on the Parties unless agreed-to in writing (physically or electronically). No waiver regarding any breach of this Agreement shall constitute a waiver of any other breach. Any delay by a Party in exercising any right provided for in this Agreement, shall not be deemed a waiver of the subject right or any further right under this Agreement.
  3. Equitable Remedy. Without prejudice to any other rights or remedies of either Party, the Parties acknowledge and agree that monetary damages would not be an adequate remedy for any breach by it of the provisions of Section 6 (Confidentiality), Section 7 (Intellectual Property Rights), Section 8 (Security) and Section 9(d) (No Virus or Trap) and that each Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision by the other Party or its Affiliates, and no proof of special damages or posting of a bond shall be necessary for the enforcement of the rights under such sections.
  4. Relationship of the Parties. Nothing contained in this Agreement shall be construed to give either Party the power to direct and control the day-to-day activities of the other Party or to constitute a partnership or joint venture between the Parties. Neither Party has any right or authority to incur, assume, or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other Party.
  5. Force Majeure. If the performance of the Services, or any obligation hereunder is prevented or interfered with by any act or condition whatsoever beyond the reasonable control of and not occasioned by the fault or negligence of the affected Party such as natural disasters, fire, acts of God, terrorism, blackout, criminal activity, civil disturbances, and other deleterious activity (each, an event of “Force Majeure”), the Party so affected shall be excused from such performance to the extent of such prevention or interference, provided that the affected Party gives prompt notice to the other Party upon discovery of such Force Majeure event and promptly exercises commercially reasonable efforts to overcome, minimize and/or cure the Force Majeure to the extent it is within its power.
  6. Governing Law. The interpretation, validity and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the laws of the State of Delaware (notwithstanding its conflict of law principles).
  7. Jurisdiction. The Parties agree that any legal action brought in connection with the subject matter of this Agreement shall be brought only in Eaton County, Michigan. Jurisdiction and venue are proper only in Eaton County, Michigan. Each Party understands that it is submitting to the personal jurisdiction of the State of Michigan and the County of Eaton and may be summoned there. Each Party agrees not to commence any legal action relating to the subject matter of this Agreement in any other court or forum.
  8. Arbitration. THE PARTIES AGREE THAT THE AMERICAN ARBITRATION ASSOCIATION HAS EXCLUSIVE JURISDICTION OVER ANY AND ALL DISPUTES BETWEEN THE PARTIES. ANY LEGAL ACTION BROUGHT UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO THE UNIFORM TRADE SECRETS ACT OR THE DEFEND TRADE SECRETS ACT) SHALL BE BROUGHT ONLY IN THE AMERICAN ARBITRATION ASSOCIATION OFFICE CLOSEST TO EATON COUNTY, MICHIGAN. THE ARBITRATION AGREEMENT ATTACHED HERETO IS INCORPORATED FULLY INTO THIS AGREEMENT BY THIS REFERENCE ANY MAY NOT BE DISCLAIMED OR WAIVED OR MODIFIED UNLESS DONE SO EXPRESSLY WITH THE EXPRESS CONSENT OF BOTH PARTIES.
  9. Survival. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement shall survive termination or expiration of this Agreement and continue in full force and effect.
  10. Insurance Requirements: During the term of this Agreement and for two (2) years thereafter, both the Client and the Company shall adhere to the following insurance obligations to ensure comprehensive risk management and liability protection:
    1. Client's Insurance Obligations:
      1. The Client shall maintain occurrence-based Commercial General Liability insurance with a minimum limit of $1,000,000 per occurrence.
      2. The Client shall also maintain occurrence-based Cyber Liability insurance, which provides coverage for cyber-related security breaches and data privacy issues, with a minimum limit of $1,000,000 per occurrence.
    2. Company's Insurance Obligations:
      1. The Company agrees to maintain occurrence-based Professional Liability (Errors and Omissions) insurance that covers technical errors, omissions, and any other professional liabilities associated with the services provided under this Agreement, with a minimum limit of $1,000,000 per occurrence.
      2. In addition, the Company shall maintain occurrence-based Cyber Liability insurance to cover risks related to cyber incidents, including data breaches and cyber-attacks, with a minimum limit of $1,000,000 per occurrence.

                        Both parties agree to provide a Certificate of Insurance as proof of the aforementioned coverage upon the commencement of the Agreement and upon                                  renewal of each policy. Each party shall promptly notify the other of any significant changes to their insurance coverage, including cancellations, non-                                    renewals, or material modifications.

    1. Severability. In the event that any provision of this Agreement shall, for any reason, be held by a court of competent jurisdiction to be invalid, void or unenforceable in any respect, such holding shall not affect any other provisions of this Agreement, which shall remain in full force and effect unless such continuance will deprive one of the Parties of a material benefit hereunder or frustrate the main purpose(s) of this Agreement.
    2. Noncompetition. Client shall not attempt to develop a product, service, or program which competes with Headstream Technologies Platform during the Term. Client shall not utilize a competing product to the Company System during the Term. Company shall not attempt to develop a product, service, or program which competes with Headstream Technologies Platform or utilize a competing product to the Company System during the twenty-four months following the termination or expiration of this Agreement. Each and all of Client’s duties with regard to Company’s Confidential Information and Company’s Property or Company’s IP Rights shall survive the termination or expiration of this agreement.
  2. Non-Competition Agreement: Client acknowledges that in the course of this Agreement, they will gain access to highly confidential and proprietary information pertaining to the Headstream Technologies platform. The Client recognizes that this information is critical to the Company's competitive advantage and business success. During the Term of this Agreement, and for a period of twenty-four (24) months following its termination or expiration, the Client agrees not to directly or indirectly engage in, promote, invest in, or advise any business activity that competes with the core services and products offered by the Headstream Technologies platform. This includes, but is not limited to, the development, marketing, or distribution of any product or service that is substantially similar to or competes with the products or services offered by the Company as of the date of this Agreement or during the Term. The non-compete obligation is limited to the United States, reflecting the primary market area of the Headstream Technologies platform and the area where the Client's use of the platform would give them a competitive advantage.  This non-compete obligation shall not prevent the Client from engaging in business activities that are not directly competitive with the Headstream Technologies platform, or from making passive investments in competitive companies where such investments do not exceed a certain percentage of the competitive company's total equity securities. The Client's obligations under this Non-Competition Agreement shall survive the termination or expiration of this Agreement, as specified herein, and shall be binding upon the Client's successors and assigns.
    1. If any provision of this Agreement is found to be unenforceable, such provision shall be modified to reflect the parties' intention or removed to the extent necessary allowing the remainder of the Agreement to remain in full effect. The Company's failure to enforce any provision of this Non-Competition Agreement does not constitute a waiver of that or any other provision.
  1. Trade Secrets. Company’s programming and business systems are the trade secrets of the Company. Client will not reverse engineer the Headstream Technologies Platform services nor any part of the programming or business system nor will it engage others to do so.
  2. Entire Agreement. This Agreement, together with all Work Orders, exhibits, addendums, schedules, end-user-license agreements, and attachments, constitutes the entire and exclusive agreement and understanding between the Parties relating to the transactions and Services contemplated by this Agreement and supersedes any and all oral or written representations, understandings or agreements relating thereto.
  3. Execution and Transmission of Executed Agreement. This Agreement and any Work Order may be executed in multiple counterparts that together shall constitute one agreement.

ADDENDUM C ARBITRATION AGREEMENT

  1. Arbitration, Controlling Law, and Jurisdiction. The Parties agree that any disputes relating in any way to the Agreement or from access to or use of the Services, such claim or dispute shall be resolved by binding arbitration before the American Arbitration Association ("AAA") pursuant to their rules then in effect for the AAA, except as provided herein. The Federal Arbitration Act (“FAA”) and federal arbitration law are applicable. The dispute will be governed by the laws of the State of Delaware and the FAA without regard to or application of its conflict of law provisions or your state or country of residence.
    1. Agreed-Upon Process:
      1. If either Party intends to seek arbitration that party must first send written Notice to the other of its intent to arbitrate. The Notice must,
        1. describe the nature and basis of the claim or dispute; and
        2. set forth the specific relief sought.
      2. Each Party will be responsible for paying their respective AAA filing, administrative, and arbitrator fees in accordance with AAA rules.
      3. The Parties will agree on one arbitrator. If the Parties cannot agree on one arbitrator, each Party will submit a list of acceptable arbitrators approved by the AAA to the AAA and the AAA shall select an Arbitrator from the approved arbitrators common to both lists. If the Parties have no approved arbitrators in common, the AAA shall select a single arbitrator pursuant to their procedures.
      4. Any monetary judgment awarded by the arbitrator shall be paid within 90 days. If such judgment is not paid within ninety (90) days, such judgment may be entered in any court of competent jurisdiction.
      5. Nothing in this section shall prevent Company from seeking injunctive or other equitable relief from the courts for matters related to the unauthorized use of, reverse engineering of, copyright/patent violation of, or unauthorized modification of the Services (which shall include Headstream Technologies Platform).
      6. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE PARTIES UNDERSTAND AND AGREE THAT BY ACCEPTING THESE TERMS CLIENT AND Company ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

NOTICE. Read this paragraph carefully. This paragraph provides that the American Arbitration Association has exclusive jurisdiction over this Agreement and the relationship of the Parties pursuant to it and that all matters, issues and disputes of any and all kinds with be heard only before the American Arbitration Association. The sole exception are equitable claims described in paragraph (1)(a)(v) above and elsewhere in the Agreement. Each party is waiving the right to a jury trial and the right to be heard before the state and federal courts.

ACCEPTANCE OF AGREEMENT

The Parties have read and understood the terms and conditions of this Agreement. By accepting this Agreement, each Party agrees that the Agreement is legally binding upon them.

Company Acceptance:

This Agreement is accepted by Headstream Technologies, LLC, with its principal office located at 224 S. Cochran Avenue, Charlotte, MI 48813, through the action of its authorized representative.

- Authorized Representative: Anthony Faulkner, CEO

Client Acceptance:

By registering as a new user and selecting the checkbox next to the links provided, you, the Client, affirmatively indicate your agreement to the following:

- You have accessed, read, and understood the Terms and Conditions and Privacy Policy of Headstream Technologies, LLC, available via the provided links.

- You agree to be legally bound by the terms and conditions outlined in both the Terms and Conditions and the Privacy Policy.

- You acknowledge that your acceptance of these documents is a required step in the new user registration process and constitutes a legally binding agreement between you and Headstream Technologies, LLC.

- If accepting on behalf of an entity, you represent and warrant that you have full authority to bind that entity to the terms and conditions of both the Terms and Conditions and the Privacy Policy.

[ X ] I acknowledge that I have read and accept the Terms & Conditions and Privacy Policy of Headstream Technologies.

Digital Signature and Acceptance:

Your action of checking the box and completing the registration process serves as your digital signature and acceptance of the Agreement, Terms and Conditions, and Privacy Policy. The date and time of your registration and acceptance will be recorded as the moment of agreement to these terms.