OperationsHERO

OperationsHero, Inc.

Online Subscription Agreement

Last Modified: May 17th, 2021

This Online Subscription Agreement (together with all other documents incorporated by reference, in each case as amended from time to time, this “Agreement”) is legally binding on the parties and shall govern Customer’s (as defined below) rights with respect to that certain cloud-based operations platform (including the software programs comprising such platform, the “Platform”) provided by OperationsHero, Inc. (“OperationsHERO,” “we,” “us” or “our”). This Agreement, and Customer’s access and use of the Platform, is also subject to the OperationsHERO Privacy Policy (the “Privacy Policy”), which is incorporated herein by reference and which can be viewed at www.operationshero.com/privacy. For purposes of this Agreement, “Customer” means the organization or entity that has executed a written proposal (the “Proposal”) to access and use the Platform.

PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY AND INDICATE YOUR ACCEPTANCE BY CLICKING THE “ACCEPT AND AGREE” BUTTON AT THE END OF THIS AGREEMENT. BY CLICKING THE “ACCEPT AND AGREE” BUTTON BELOW OR OTHERWISE ACCESSING OR USING THE PLATFORM, YOU (I) EXPRESSLY AGREE AND CONSENT, ON BEHALF OF CUSTOMER, TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND (II) REPRESENT AND WARRANT THAT YOU HAVE FULL POWER, AUTHORITY AND LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER. IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NEITHER CUSTOMER NOR ITS AUTHORIZED USERS MAY ACCESS OR USE THE PLATFORM.

Customer and OperationsHERO hereby agree as follows:

1. Authorization and Use of Platform.

a. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ (as defined below) compliance with the terms and conditions of this Agreement, OperationsHERO hereby authorizes Customer to access and use, during the Subscription Term (as defined in Section 3.a), the Platform and any related documentation made available by OperationsHERO via the Platform (the “Documentation”) solely for Customer’s internal business purposes by and through Authorized Users. This authorization is non-exclusive and non-transferable. “Authorized User” means each employee of the Customer that has been granted a valid user name and password that is used to verify such employee’s identity and authorization to access and use the Platform.

b. Use Limitations and Restrictions. Customer shall not, and shall not permit any Authorized User to, access or use the Platform or Documentation for any purposes beyond the scope of the rights granted in this Agreement. Without limiting the foregoing, Customer shall not, and shall not permit any Authorized User to, directly or indirectly: (i) share any access credentials or login information with anyone, except as otherwise authorized in this Agreement; (ii) copy, modify, or create derivative works of the Platform or Documentation, in whole or in part; (iii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or the Documentation to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (iv) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform, in whole or in part; (v) input, upload, transmit or otherwise provide to or through the Platform any Customer Data (as defined below) that is unlawful or injurious, or that contains, transmits or activates any viruses, worms, Trojan horses, corrupted files, hoaxes, bots, harmful code, denial-of-service attacks, backdoors, packet or IP address spoofing, forged routing, or any similar methods or technology that are of a destructive or deceptive nature; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Platform or our provision of the Platform to any third party, in whole or in part; (vii) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Platform or Documentation, including any copy thereof; (viii) access or use the Platform in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law, rule or regulation; (ix) access or use the Platform in any manner or for any purpose that is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; or (x) access or use the Platform for the development or provision of a competing software service or product or for any other purpose that is to our detriment or commercial disadvantage.

c. Customer Responsibilities. Customer is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a Dividereach of this Agreement if taken by Customer will be deemed a Dividereach of this Agreement by Customer. Customer shall take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Platform, and shall cause Authorized Users to comply with such provisions.

d. Changes. We reserve the right to make any changes to the Platform that we deem necessary or useful to maintain or enhance the quality or delivery of our products and services to our customers, to maintain or enhance the competitive strength of, or market for, our products and services, to improve the Platform’s cost efficiency, functionality or performance, and/or to comply with applicable laws.

2. Services.

During the Subscription Term, we will provide Customer with (i) our standard support services, which include reasonable e-mail and telephone support during our regular business hours (8:00 a.m. – 5:00 p.m. ET) for the purpose of providing technical and operational assistance for the use of the Platform, and (ii) any other services (including additional support services) we specifically agree to provide in the Proposal (collectively, the “Services”). Customer must provide all information and assistance that we reasonably request in connection with providing such Services. For the avoidance of doubt, unless otherwise expressly agreed to in the Proposal, OperationsHERO will not be providing any other services in connection with Customer’s use of the Platform, including (a) after-hours support, (b) support for software or hardware that is not ours, (c) on-site or remote training or implementation services, or (d) performance of any professional, customization, consulting or advisory services.

3. Term and Termination.

a. Subscription Term. Unless otherwise specified in your Proposal, the initial term of this Agreement shall commence on the date we activate your account and make the Platform available for use by your Authorized Users and shall continue for a period of one year, plus the length of any Trial period (the “Initial Term”). After the Initial Term, this Agreement will automatically renew for successive one-year periods, or such other successive periods as may be specified in your Proposal (each a “Renewal Term,” and each Renewal Term together with the Initial Term, the “Subscription Term”), unless (i) a party has given to the other party written notice of its intention not to renew at least 30 days prior to the expiration of the then-current Initial Term or Renewal Term, or (ii) this Agreement has been terminated as provided below.

b. Trials. To the extent your Proposal permits you to use the Platform for a specified period without payment (a “Trial”), you agree that we may automatically begin charging you for the applicable Fees on the first day following the end of the Trial, in accordance with Section 5.c below. We reserve the right to withdraw or modify a Trial at any time without prior notice and with no liability.

c. Termination. Either party may terminate this Agreement immediately if the other party fails to cure any material default or Dividereach of any term or condition of this Agreement within 30 days of receiving written notice thereof from the party seeking to terminate the Agreement; provided, however, that if such default or Dividereach arises from a failure by Customer to timely pay any amounts owed under this Agreement, the applicable cure period shall be five days. Without limiting the foregoing, in the event of a Dividereach that gives rise to the right by OperationsHERO to terminate this Agreement, OperationsHERO may suspend or otherwise deny Customer’s and/or any Authorized User’s access to or use of all or any part of the Platform, without incurring any resulting obligation or liability, until the Dividereach is cured, and all Fees (as defined below) shall continue to accrue during the period of such suspension. Our exercise of our right to suspend performance does not limit any of our other rights or remedies, whether at law, in equity or under this Agreement, including without limitation our right to terminate this Agreement upon written notice to Customer.

d. Effect of Termination. Upon any expiration or termination of this Agreement, (i) the rights granted hereunder will automatically terminate and we may immediately terminate Customer’s and its Authorized Users’ access to the Platform, (ii) Customer shall immediately pay to OperationsHERO all Fees and other amounts owed under the Proposal that accrued prior to the date of such expiration or termination, and (iii) if requested by Customer, OperationsHERO will provide Customer a copy, in machine-readable format, of any Customer Data in OperationsHERO’s possession or control. Notwithstanding anything in this Agreement to the contrary, this Section 3.d and Sections 1.b, 4, 6, 8, 9, and 10 shall survive any termination or expiration of this Agreement.

4. Ownership; Reservation of Rights.

a. Platform. Customer acknowledges that OperationsHERO owns all right, title, and interest, including all intellectual property rights, in and to the Platform and Documentation. Except for the limited rights expressly granted under this Agreement, nothing in this Agreement grants to Customer any intellectual property rights or other right, title, or interest in or to the Platform. OperationsHERO reserves all rights not expressly granted to Customer in this Agreement.

b. Customer Data. As between Customer and OperationsHERO, Customer is and will remain the sole and exclusive owner of all right, title and interest in and to any information, data or other materials that Customer or any Authorized User uploads to the Platform or that is collected or otherwise received, directly or indirectly, from Customer or any Authorized User (through the Platform or otherwise) (collectively, “Customer Data”). Customer hereby irrevocably grants OperationsHERO the right to use Customer Data (i) to provide the Platform to Customer; (ii) to enforce this Agreement and to exercise our rights and to perform our obligations under this Agreement; (iii) for our internal research purposes or to improve the quality of our Platform; and (iv) for any other internal business purpose of OperationsHERO and for any other purpose with Customer’s consent; provided that, in all cases, we will collect, store, use, disclose and otherwise process Customer Data in accordance with our Privacy Policy.

c. Feedback; Improvements. Customer may submit suggestions or recommend changes to OperationsHERO with respect to the Platform (“Feedback”). Customer hereby assigns to OperationsHERO all right, title, and interest in and to the Feedback, and OperationsHERO is free to use, without any attribution, restrictions or compensation, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. In addition, to the extent OperationsHERO makes any improvements to the Platform based upon Customer Data or Customer’s use of the Platform (“Improvements”), Customer agrees that OperationsHERO owns, and Customer hereby assigns, all right, title and interest in and to such Improvements, including all related intellectual property rights. Customer specifically acknowledges and agrees that any Improvements may be used for the benefit of our other customers.

5. Fees and Payment.

a. Fees. As consideration for the rights granted hereunder, Customer shall pay to OperationsHERO the fees and charges set forth in Customer’s Proposal and any other fees or charges mutually agreed by the parties (collectively, the “Fees”). OperationsHERO may increase the Fees for each Renewal Term as set forth in the Proposal. All payment obligations hereunder are non-cancelable and all Fees once paid are non-refundable.

b. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on OperationsHERO’s income.

c. Payment Terms. Customer will, upon request, establish and maintain in its account valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, Customer authorizes OperationsHERO (or its third-party payment processor) to charge the Fees when due under the Proposal using that Automatic Payment Method. If instead OperationsHERO invoices Customer for the applicable Fees, invoiced amounts are due within 30 days from the invoice date, unless a different time period is specified in the Proposal. Customer is responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information. If Customer fails to make any payment when due, then, in addition to all other remedies that may be available to us, (a) we may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly, or, if lower, the highest rate permitted under applicable law, and (b) Customer will reimburse us for all reasonable costs incurred in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs and collection agency fees.

6. Confidential Information.

Customer acknowledges and agrees that the source code for the Platform and the methods, algorithms, structure and logic, technical infrastructure, techniques and processes used by OperationsHERO in developing, producing, marketing and/or making the Platform available for use are OperationsHERO’s “Confidential Information.” Customer agrees to (a) hold in confidence and not publish or disclose to any third parties any of the Confidential Information and (b) use the same degree of care (and in any event not less than reasonable care) to safeguard the confidentiality of the Confidential Information that it uses to protect its own confidential and/or proprietary information.

7. Representations and Warranties.

a. Customer represents and warrants that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power and authority to enter into and perform its obligations under this Agreement and to grant the rights, licenses and authorizations granted by Customer hereunder; (iii) the individual that has clicked to agree and accept the terms and conditions of this Agreement on behalf of Customer has been duly authorized to do so by all necessary corporate or organizational action; (iv) this Agreement constitutes the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms; and (v) it has obtained all rights, licenses, approvals or consents necessary to provide and use all Customer Data and the inputting, uploading, storing, accessing and/or using of such Customer Data does not and will not misappropriate, infringe or otherwise violate any intellectual property right or other right of any third party.

b. THE PLATFORM AND DOCUMENTATION ARE PROVIDED “AS IS” AND WE HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. OPERATIONSHERO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. OPERATIONSHERO MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR DOCUMENTATION, OR ANY PRODUCTS, SERVICES, NOTIFICATIONS, INSTRUCTIONS OR RECOMMENDATIONS PROVIDED OR EQUIPMENT, SYSTEMS OR FACILITIES SERVICED IN CONNECTION WITH THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, MALFUNCTION OR FAILURE, WILL ACHIEVE ANY INTENDED RESULT, WILL BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, EQUIPMENT OR OTHER SERVICES, OR WILL BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

8. Indemnification.

Customer agrees to indemnify, defend, and hold harmless OperationsHERO and its officers, directors, employees, agents, representatives, affiliates, successors, and assigns (each, an “Indemnitee”) from and against any and all claims, losses, damages, liabilities, fines, costs or expenses (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding based on, or arising in connection with, (a) any negligence or willful or intentional misconduct by Customer or any Authorized User, (b) any personal injury, death or property damage caused, directly or indirectly, by the equipment, machinery, hardware, systems or facilities of Customer, or (c) any Dividereach of this Agreement by Customer or any Authorized User, including without limitation any access or use of the Platform in a manner that is not authorized or that otherwise violates the terms hereof. In the event an Indemnitee seeks indemnification or defense from Customer under this Section 8, such Indemnitee shall promptly notify Customer in writing of the claim(s) Dividerought against such Indemnitee for which such Indemnitee seeks indemnification or defense; provided that any delay in providing such notice shall not relieve Customer of its indemnification obligations hereunder. Each Indemnitee reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of its choosing. Customer may not enter into any third-party agreement that would, in any manner whatsoever, affect an Indemnitee’s rights, constitute an admission of fault by any Indemnitee or bind any Indemnitee in any manner, without such Indemnitee’s prior written consent.

9. Limitations of Liability.

IN NO EVENT WILL OPERATIONSHERO OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUCCESSORS OR ASSIGNS BE LIABLE UNDER THIS AGREEMENT OR IN CONNECTION WITH CUSTOMER’S USE OF THE PLATFORM FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (B) INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE PLATFORM, (C) LOSS OR CORRUPTION OF OR DAMAGE TO ANY DATA (INCLUDING CUSTOMER DATA), OR ANY BREACH OF DATA OR SYSTEM SECURITY, (D) LOSS, FAILURE, MALFUNCTION, IMPAIRMENT OR DETERIORATION OF OR ANY DESTRUCTION, DAMAGE OR HARM TO ANY EQUIPMENT, SYSTEMS, FACILITIES, BUILDINGS, INVENTORY, PRODUCTS OR SERVICES OF CUSTOMER; (E) HARM, LOSS OR DAMAGE CAUSED BY ANY VENDOR, CONTRACTOR, OR THIRD-PARTY SERVICE PROVIDER PROVIDING EQUIPMENT, PRODUCTS OR SERVICES TO CUSTOMER IN CONNECTION WITH OR AS A RESULT OF CUSTOMER’S USE OF THE PLATFORM; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE) AND REGARDLESS OF WHETHER OPERATIONSHERO OR SUCH OTHER PERSON WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF OPERATIONSHERO OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, AFFILIATES, SUCCESSORS OR ASSIGNS ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER TO OPERATIONSHERO DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

10. Miscellaneous.

a. Entire Agreement. This Agreement, the Privacy Policy and the Proposal constitute the entire agreement between Customer and OperationsHERO, and supersede all prior negotiations, understandings or agreements (oral or written) between the parties regarding the subject matter of this Agreement (and all past dealings and industry custom).

b. Amendment, Severability and Waiver. No change to, consent or waiver under, this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure by either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

c. Governing Law and Venue. This Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of North Carolina, without regard to its conflicts of law principles. The sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Wake County, North Carolina, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.

d. Notices. All notices to OperationsHERO under this Agreement must be in writing and may be delivered by electronic mail (which notices will be effective only if complete transmission is confirmed), certified or registered mail (return receipt requested), overnight courier, or personal delivery. All notices provided by OperationsHERO to Customer will be sent to the email address listed on Customer’s account as of the date of the applicable notice. All notices provided by Customer to OperationsHERO shall be sent to the following address (or to such other address(es) as we may specify in writing from time to time):

OperationsHero, Inc.


1249 Kildaire Farm Road, Suite 160


Cary, North Carolina 27511


Attention: Pat Buchanan


E-mail Address: notice@operationshero.com

e. Assignment. Customer may not assign, delegate or otherwise transfer its rights or obligations under this Agreement without our prior written consent. OperationsHERO may assign, delegate or otherwise transfer its rights or obligations under this Agreement without restriction. This Agreement will be binding upon, and will inure to the benefit of, the successors and permitted assigns of the parties.

f. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, the officers, directors, employees, agents, representatives, and affiliates of OperationsHERO shall be permitted to enforce their rights under Sections 8 and 9 hereof.

g. Relationship of the Parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.

h. Force Majeure. Neither party will be liable for any delays or non-performance of its obligations (excluding the obligation to pay Fees and other amounts due hereunder) arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, cyber-attacks, earthquakes, flood, and other natural disasters, war, terrorism, pandemics or epidemics, acts of God, or fire, except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards).

i. Equitable Remedies. Customer acknowledges and agrees that a Dividereach or threatened Dividereach by Customer of Section 1.b, 4, or 6 of this Agreement would cause OperationsHERO irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such Dividereach or threatened Dividereach, OperationsHERO will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.