This Services Agreement (“Agreement”) is made between you (“Client”), and O-WOW, Inc. ("Provider"), with offices at 1012 18th Ave., Honolulu, HI 96816. Client desires to obtain and Provider is willing to provide services (“Services”) as defined and subject to the terms defined in this Agreement and the currently published Services Rate Card (“Rate Card”).

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants, representations and warranties contained in this Agreement, Client and Provider agree as follows:

1. EFFECTIVE DATE

This Agreement shall be effective as of date submitted by Client (the "Effective Date").

2. APPOINTMENT & SCOPE

(a) Appointment and Acceptance. Client hereby retains Provider to provide Scope of Services (“Scope”) that Client authorizes Provider to perform pursuant to one or more separate written authorizations by Client. Scope may be directed by Client via any written form including electronic submissions such as website form, email and text communications. Provider will perform Services in a professional and timely manner and in accordance with the standards and practices of care, skill and diligence customarily observed by similar providers under similar circumstances at the time they are rendered in accordance with applicable state, federal and local laws, rules, regulations and orders (collectively "Legal Requirements").

(b) Hourly Services. If Scope includes hourly Services, Client shall pay to Provider fee(s) as set forth in the Rate Card as published at the time of Service, and this Agreement.

(c) Website Support Monthly Retainer Packages. If Scope includes a Website Support Monthly Retainer Package (“Retainer Package”), Client shall pay to Provider Retainer Package fee(s) as set forth in the Rate Card, this Agreement and in accordance with time frames set forth therein. Retainer Packages include discounts on the Services of only website engineering, on-going website content management and recurring data entry Services all billed at respective Package discount rates and at minimum monthly fee allotments. All Retainer Packages require a minimum of 12 (twelve) months commitment. Retainer Package discount rates apply to all Web Engineer and Data Entry service hours, including hours that exceed any months' minimum. Consulting hours in excess of Retainer Package allotments will be billed in addition to the Retainer Package fee. Monthly consulting hours for a Retainer Package not used during each month are forfeited and thus do not carry over to future months. Services for other functions and roles including but not limited to Senior Engineer, Business Consultant, branding, UI/UX design, and digital marketing are not included in Retainer Packages and will be billed in addition to any Retainer Package fees and on hourly non-discounted rates per the current Rate Card.

(d) Set Fee Services. If Scope includes a Set Fee Package for content management, digital marketing, maintenance and/or support services (“Set Fee Package”) Client shall pay to Provider the Set Fee Package fee for the Package selected as set forth in the Rate Card.

(e) Website Hosting Services. If Scope includes Website Hosting Services (“Hosting”), such Services are offered on an annual basis as defined on the Rate Card. Client shall pay to Provider the Hosting Package fee for the Package selected as set forth in the Rate Card.

(f) Software Application Hosting Services. If Scope includes Software Application Hosting Services (“Hosting”), such Services are offered on a monthly basis as defined on the Rate Card. Client shall pay to Provider the Hosting Package fee for the Package selected as set forth in the Rate Card.

(g) Incidental Costs: Client shall pay Provider for any incidental costs (“Incidental Costs”) including but not limited to disbursements and other charges that reasonably and customarily arise in connection with the provision of any Service such as materials, supplies, shipping and/or subscriptions.

3. SERVICES

(a) Facilitation & Strategic Services. If Scope includes facilitation and/or strategic Services, Provider may provide Services including but not limited to facilitation, branding, forecasting and concept design, billable as hourly or package services as directed by Client.

(b) Software Design & Development Management Services. If Scope includes software design and/or development management Services, Provider may provide Design and Development Management Services including but not limited to business case, use case, feature specifications, user interface design, branding, graphic design and development management, billable as hourly services as directed by Client.

(c) Website & Digital Marketing Services. If Scope includes website and/or digital marketing Services, Provider may provide design, development, and/or support Services including but not limited to website design, user-interface design, graphic design, content generation, search engine optimization, pay-per-click advertising, research, data analytics, digital marketing, content placement, data entry, testing, maintenance and other support Services billable as hourly or package services as directed by Client.

(d) Hosting Services: If Scope includes Hosting, Client agrees to provide such services from the beginning Effective Date of this Agreement as Hosting of data files is required in the development process.

(1) If Client uses Hosting services by others (not Provider), Client agrees to allow Provider access to manage the Hosting account and further agrees that the Provider is not responsible for any occurrences or damages resulting from otherʻs services including but not limited to down time, poor performance or loss of data.

(2) If Scope includes Hosting by Provider, Client acknowledges that Provider may engage Third Party services to provide or enable Hosting and that Provider will not be responsible for any damages caused by Third Parties including but not limited to bugs, down time, poor performance and/or security breaches. From time-to-time the Provider may cease supporting aspects of Hosting (any such event, an “End of Life”). Should components of Hosting come to an End of Life, Provider will attempt to replace them with comparable components as part of maintenance Services, but may not be able to do so. An End of Life is not a breach of this Agreement, but if an End of Life occurs and Provider is unable to provide replacement components reasonably satisfactory to Client within thirty (30) days thereof, Client may terminate this Agreement with respect to Hosting Services without penalty and without further payment obligation. Charges for Hosting Packages are set forth in the Rate Card and are subject to change upon Providerʻs written notification. Client herein agrees to Overage Fees and/or changes in Hosting Package when Clientʻs Hosting usage exceeds the current Hosting Packageʻs limit for the number of monthly visitors, bandwidth or storage capacity for any given single month as defined in Rate Card.

4. CONFIDENTIALITY

The parties may wish, from time to time, in connection with work contemplated under this Agreement, whether before or after the date hereof, to disclose to each other proprietary information, data, know-how, designs, drawings, specifications, test and research results, market studies, price or cost information, supplier or customer lists, regulatory files to the extent they are not public information by law and other similar materials ("Confidential Information"). This Confidential Information will be treated as trade secrets and held in confidence. Provider and Client will use Confidential Information only in a manner consistent with this Agreement and may not disclose any Confidential Information to any third party during the term of this Agreement or for a period of one (1) year from the date of disclosure, whichever is longer. Non-disclosure obligations stated in this section shall not apply to information that:

(a) was disclosed pursuant to written permission by Client and Provider;

(b) is already in the recipient party's possession at the time of disclosure thereof;

(c) is a part of the public domain through no fault of the recipient party;

(d) is received from a third party having no obligations of confidentiality to the disclosing party;

(e) is independently developed by the recipient party; or

(f) is required by law or regulation to be disclosed, provided that the party claiming legal obligation to disclose the Confidential Information of the party to whom the Confidential Information belongs provides prompt notice and cooperates with the party to whom the Confidential Information belongs in seeks a protective order or otherwise limiting the scope of required disclosure.

5. CONTENT & INTELLECTUAL PROPERTY

(a) Work for Hire Ownership. The parties acknowledge and agree that all work-product created from the Scope performed by Provider hereunder (the “Work Product”), including reports that are created, software or website code that is written, textual content and graphic content prepared by Provider for Client, shall be considered to be a “work made for hire” and that such work-product and the intellectual property rights embodied therein are and shall become the sole exclusive property of Client. If and to the extent that Client does not acquire full legal ownership to the Work Product as noted above, Provider shall retain any and all intellectual property rights.

(b) Website Domain Registration. If Scope includes the publication of a website, Client is responsible for self-registering, paying for, and maintaining any and all Website Domain addresses, aka “URLs” (“Domain”). As a courtesy, the Provider may assist Client in configuring Domain settings however the Provider is not responsible for any configurations, down time, security violations, or negative outcomes caused by Domain registration or the Domain Registrar. Client is solely responsible for renewing Domain registration. For the purposes of receiving development services, Client agrees to provide access to Provider to their DNS registrar and permission to communicate directly with any relevant third parties. Client acknowledges that delivery of work product may be hindered if access is not granted.

(c) Client-Verified Content Rights. Client agrees to verify and unconditionally guarantee that all Work Product elements including but not limited to text, graphics, photos, designs, trademarks and/or artwork included in the Work Product or used in connection with this Agreement are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements.

(d) Limited Publication Rights for Hosting. If Scope includes Hosting, Provider does not claim any ownership rights in connection with Hosting customer content (“Customer Content“). However, to provide Hosting, Provider needs Client to grant Provider a right to publish Customer Content on behalf of Client. As such, Client hereby grants to Provider, its affiliates, providers of Third Party Services, and subcontractors a non-exclusive, fully-paid, perpetual, royalty-free, transferable, revocable, worldwide license to use, modify, publicly perform, publicly display, reproduce, and distribute Customer Content (in whole or in part) but only to the extent necessary to provide the Hosting. Provider shall exercise reasonable care to ensure that the aforementioned parties do not use any Customer Content for any purposes other than providing the Hosting or other applicable Services under this Agreement but is not liable for Third Party or their agentʻs actions including but not limited to negligence, omissions and willful acts.

(e) Acceptable Use Policy. If Scope includes Hosting, Client agrees to not to use or allow others to use Hosting in ways that violate any law or regulation or knowingly harm other people or Provider's network. Client agrees to not violate laws prohibiting: copyright, patent, trademark or trade secret infringement, misuse or misappropriation; distribution of child pornography, child erotica, non-consensual sex acts or beastiality; illegal gambling; defamation, harassment or libel; false advertising; slander or transmission of malicious code or to gain access to other networks. Client may not use Hosting in connection with any content that, as determined by court of competent jurisdiction: promotes, incites or threatens violence; contains harassing content or hate speech; is defamatory or violates a person’s privacy; infringes on another person’s copyright, trade or service mark, patent or other property right; constitutes illegal arms trafficking; or, is likely to result in retaliation against Provider's system, network or employees, including behavior that results in a server being the target of a denial of service attack.

(f) Personal Identity Protections. If Scope includes Hosting, Client is not permitted to use or cause Hosting to store or process sensitive or otherwise regulated personally-identifiable information such as Protected Health Information (as that term is defined under the HIPAA Act), cardholder data that is protected under the PCI DSS (including, but not limited to, credit or debit card data), or other financial data (such as bank account details). While it is possible to run an e-commerce site on our platform, Client is prohibited from processing or storing credit card and other sensitive personal identity information on Provider's platform, and instead must comply with statutory requirements and identity protection best practices.

(g) No Spam. If Scope includes Hosting and Client uses Hosting to transmit email, Client may only do so responsibly within best industry and ethical practices. Sending or promoting SPAM using Hosting is prohibited. Provider considers SPAM to be the transmission of any email messages that are in violation of the most recent regulations issued by the Federal Trade Commission implementing the CAN-SPAM Act or, if Client is sending emails to non-domestic end users, any foreign equivalent thereof. In addition and at Provider's discretion, Provider may place limits on the number of outbound messages Client sends if Provider's review of Client account indicates that Client is jeopardizing Provider's network stability.

(h) No Overburdening. If Scope includes Hosting, the Client may not knowingly overburden Hosting. The Client may not place excessive burdens on Provider's, or the Provider's of Third Party Services’, CPUs, servers or other resources or knowingly interfere with the services Provider provides to other customers. The Client may not use excessive (e.g. in excess of limits set forth in Summary) bandwidth or data transfer. The Client may not use, or provide, open proxies or Internet Relay Chat using Hosting. Additionally, clients may not use Hosting for video streaming.

(i) Backups. If Scope includes Work Product that has anything to do with data including but not limited to containing, storing, serving or publishing, while Provider may as a courtesy maintain or provide backup or active project code, design files or data, Provider does not guarantee that any backup will work properly or that any of the foregoing will be completely recovered or formatted properly. Providerʻs backup system is not intended as a solution for Client or as a Client Service, but rather as an internal Provider-side archive for use during the development of Work Product. While Provider's backup system is fully redundant, it is not guaranteed and does not support any content produced by the Client. Client is solely responsible for its own Backup and Restoration of any Work Product and any associated data.

(j) Security. If Scope includes Work Product that has anything to do with data including but not limited to containing, storing, serving or publishing, although Provider will make efforts to provide a secure Work Product, due to the nature of rapidly advancing technology, Provider can in no way guarantee that the Work Product will not be subject to security breaches and thus is not liable for any security breach related to Work Product or the development of Work Product under this Agreement. Provider recommends the use of strong passwords and the observance of contemporary security practices. In order to minimize the chances of security violations, systems and passwords should be updated on a regular basis. Client is solely responsible for tracking software updates and taking necessary actions unless otherwise noted in this Agreement.

6. DELIVERY
Upon final payment, Provider will, at its discretion, provide the Work Product to the Client in the form of published, source, rendered and/or asset files. At that time, such Work Product becomes the exclusive property of the Client. Work Product is deemed delivered and accepted by Client using the Work Product or allowing it to be publicly published for 10 business days. Client shall have 10 business days from delivery of Work Product to inspect and test Work Product for compliance with the terms of this Agreement and the specifications of the Summary. If in the reasonable opinion of the Client, the Work Product does not comply with the terms of this Agreement and/or Scope, Client may request the Provider to correct non-compliance per the terms of Clientʻs directed Scope of work.

7. PAYMENT

(a) Invoicing. Fees (“Fees”) for all Services rendered including but not limited to hourly, package and retainer Services are immediately due and payable upon receipt of invoice by Client.

(b) Hourly Services. If Scope includes hourly Services, Fees for such Services will be invoiced on a monthly basis at the end of each month.

(c) Retainer, Set Fee Packages. If Scope includes Retainer or Set Fee Packages, Fees for such Services will be invoiced at the beginning of each Package period in advance of Services to be rendered.

(d) Hosting Packages. If Scope includes Hosting, the term of Hosting is annual terms starting from the date of execution of this Agreement and upon expiration of the Initial Term, the terms of this Agreement automatically renews for successive annual periods (each a “Renewal Term”) unless one party, no later than thirty days prior to the expiration of the then-current Renewal Term or the Hosting services under this Agreement, notifies the other in writing of its intent not to renew are otherwise terminated in accordance with the terms of this Agreement.

(e) Incidental Costs. Fees for any Incidental Costs will be invoiced on a monthly basis at the end of each month.

(f) Tax Collection. Provider may be required to collect taxes (excluding taxes on Provider's income or attributable to Provider's employees) on Services provided to Client. Taxes will be added to Fees and Client agrees to pay them, unless Client submits to Provider a valid tax exemption certificate.

(g) Payment Methods. Payment options for Clients include check, credit card and debit card and wire transfer. All Fees are payable in U.S. dollars. Client agrees to keep automatic electronic methods of payment current and able to be debited. If Client elects to pay via a wire transfer or credit transfer then Client is responsible for any transfer fees, which may be automatically added to Fees.

(h) Late Fees. If Client does not make payment in full within 10 business days of the date of an invoice (the “Due Date”), Provider is entitled to charge a Late Fee (“Late Fee”) of one-half percent (1.5%) per month, rounded to the next highest whole month, with such Late Fees and any unpaid balance compounding monthly. Client herein agrees to pay for all debt collection costs, fees and damages that are incurred in order to satisfy unpaid fees by Client including but not limited to court costs, legal, accounting and any other consultant fees, and Providerʻs administration time billable at Business Consultant rates per Rate Card. Additionally, if Scope includes website Hosting Services and Client does not pay within 30 calendar days of the date of an invoice, Provider may elect to suspend or terminate Hosting until such time as Client brings its account current. In the event that a Client makes good on Hosting Services that have been suspended or terminated, Client agrees to hourly Engineering Services per the Rate Card to restore Hosting Services.

8. TERM AND TERMINATION

(a) Agreement Term. The term of this Agreement as it relates to services described in this Agreement shall commence on the Effective Date and continue until receipt of termination by either party under the notice terms noted below in this section.

(b) Client Change of Website and/or Application Hosting: If Scope includes Website or Application Hosting, Client may change or terminate a Website Hosting package at the end of the current annual term by delivering notice in writing at least 5 business days before the end of the term.

(c) Client Change of Retainer Package: If Scope includes a Retainer Package, Client may change or terminate a Retainer Package any time after the initial 12 (twelve) months commitment by delivering notice in writing at least 5 business days before the end of the period.

(d) Client's Termination for Convenience. Client may terminate this Agreement at any time for Client's convenience upon thirty (30) days prior written notice to Provider.

(e) Termination by Default. In the event that either party shall be in default of any material obligation under this Agreement and shall fail to remedy such default within thirty (30) days after receipt of written notice thereof, this Agreement may be terminated upon expiration of the thirty (30) day period by the party not in default (the “Termination Date”). Additionally, Provider may terminate this Agreement and delete Client Content upon written notice if (i) Client fails to pay for Hosting on time, (ii) Client's use of the Hosting violates the law, provided in all instances that Provider has given Client a period of not less than thirty (30) days from Provider's written notice to cure such deficiency and Client has failed to do so.

(f) Termination of Website and/or Application Hosting. Upon any termination or expiration of this Agreement Provider will stop providing Website and/or Application Hosting. This means that Client's Content will cease to be published or available. It is the Client's sole obligation to keep separate backups and to download all Client and Customer Content prior to termination or the expiration of this Agreement.

(g) Survival of Certain Rights and Obligations. Termination or cancellation of this Agreement shall not affect the rights and obligations of the parties accrued prior to the Termination Date provided that Client's sole payment obligation in the event of early termination shall be to pay Provider the fees owed pursuant to the Summary for Services rendered in accordance with the terms of this Agreement and the Summary prior to the effective date of termination. In addition, in the event of any termination notwithstanding anything in this Agreement to the contrary, all General Limitations, Indemnity and Miscellaneous provisions contained in this Agreement shall survive termination of this Agreement.

9. GENERAL LIMITATIONS

(a) Warranties. Each party represents and warrants that it has the power, authority and legal right to enter into this Agreement and to perform the obligations set out in it, and those set out in contracts incorporated by reference. Client represents and warrants that it owns or has a license for all intellectual property and other proprietary rights necessary to the terms of this Agreement as stated. Client represents and warrants that Client's use of the Work Product in accordance with such license strictly for the purposes contemplated herein will not infringe on the intellectual property or other proprietary rights of any individual or entity. Client represents and warrants that all information it provides to Provider is complete, accurate and up-to-date. Client also represents and warrants that if it is a natural person that it is over eighteen years of age.

OTHER THAN AS IS EXPRESSLY SET OUT IN THIS SECTION, WORK PRODUCT AND SERVICES ARE PROVIDED AS-IS, AS AVAILABLE, AND WITH ALL FAULTS. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION’S WARRANTIES TERMS ABOVE, (i) PROVIDER MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING BUT NOT LIMITED TO THIRD PARTY PERFORMANCE AND/OR HOSTING SERVICES, AND (ii) PROVIDER AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES RELATED TO WORK PRODUCT AND SERVICES, INCLUDING, BUT NOT LIMITED TO: ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, UNINTERRUPTED OR ERROR FREE SERVICE, ERROR CORRECTION, AVAILABILITY, ACCURACY AND ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

(b) Limitation of Liability and Remedies: Client herein agrees to assume sole responsibility for: (i) the accuracy and adequacy of information and data furnished by Client; (ii) handicap accessibility of all Work Product and any associated content including but not limited to ADA (Americans with Disabilities Act) access and any other statute, code or law that requires content be accessible to vision-impaired users, hearing-impaired users and those who must navigate by voice, screen readers or other assistive technologies; (iii) any use made by Client of the output of Work Product or any reliance thereon; and (iv) obtaining required licenses and/or copyright permissions for any and all third party assets including but not limited to fonts, media, and/or third-party software. Client shall also be solely responsible for any continued operation and maintenance of computer equipment and third party software used with the Work Product, and shall comply with all operational, environmental and maintenance recommendations and requirements of the applicable licensors, vendors and manufacturers. Client agrees that any liability of Provider relating to this Agreement and the services performed shall be limited to the amount of fees actually received by Provider from the Client for the portion of services related to the portion of Work Product in question and in no circumstances may exceed the total value of actual fees received by Provider under this Agreement. In no event shall Provider be liable for any special, incidental, indirect, cover, consequential, exemplary or punitive damages; any damages based on injury to person or property; or any lost sales, profits or data, even if such damages may occur.

EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF, OR RELATED TO WORK PRODUCT AND SERVICES, FOR ANY REASON, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO PROVIDER IN THE THREE MONTHS PRECEDING THE CLAIM.

EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE WORK PRODUCT OR SERVICES, INCLUDING, BUT NOT LIMITED TO, THE USE, OR INABILITY TO USE, THE WORK PRODUCT OR SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE DISCLAIMERS AND LIMITATIONS PROVIDED HEREIN DO NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10. INDEMNITY

(a) PROVIDER AGREES TO BE RESPONSIBLE FOR ITS OWN ACTIONS AND THE ACTIONS OF THE PROVIDER'S REPRESENTATIVES. PROVIDER AGREES TO INDEMNIFY, HOLD HARMLESS AND, UPON CLIENT'S REQUEST, DEFEND CLIENT AND ITS DIRECTORS, OFFICERS, ITS EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, LOSSES, COSTS, FEES, LIABILITIES, DAMAGES, OR INJURIES OF ANY TYPE, INCLUDING REASONABLE ATTORNEYS' FEES, IN CONNECTION WITH, IN WHOLE OR IN PART: (A) ANY NEGLIGENT ACT, OMISSION, OR WILLFUL MISCONDUCT OF PROVIDER IN THE PERFORMANCE OF THIS AGREEMENT, OR (B) PROVIDER'S FAILURE TO COMPLY WITH FEDERAL, STATE OR LOCAL LAW OR OTHER LEGAL REQUIREMENTS, OR (C) ANY BREACH OR TERM OR OBLIGATION UNDER THIS AGREEMENT BY PROVIDER OR ANY PROVIDER REPRESENTATIVE. PROVIDER SHALL HAVE NO LIABILITY REGARDING ANY CLAIM ARISING OUT OF: (I) USE OF OTHER THAN A CURRENT, UNALTERED RELEASE OF ANY SOFTWARE, WEBSITE OR CONTENT CREATED BY PROVIDER FOR CLIENT, UNLESS THE INFRINGING PORTION IS ALSO IN THE THEN CURRENT, UNALTERED RELEASE, AND PROVIDED THAT PROVIDER HAS MADE CURRENT, UNALTERED RELEASE OF SUCH SOFTWARE, WEBSITE AND/OR CONTENT AVAILABLE TO CLIENT AT NO EXTRA CHARGE OTHER THAN AS SPECIFIED IN THIS AGREEMENT OR SUMMARY WITHIN A REASONABLE PERIOD OF TIME TO TRANSITION TO USE THE CURRENT RELEASE AND CLIENT HAS FAILED TO DO SO, (II) USE OF SAID SOFTWARE IN COMBINATION WITH NON-PROVIDER NON-PROVIDER REPRESENTATIVE SOFTWARE, WEBSITE, CONTENT, DATA OR EQUIPMENT IF THE INFRINGEMENT WAS CAUSED BY SUCH USE OR COMBINATION, (III) ANY MODIFICATION OR DERIVATION OF THE SOFTWARE NOT SPECIFICALLY AUTHORIZED IN WRITING BY PROVIDER AND NOT MADE TO PROVIDER OR PROVIDER REPRESENTATIVE, OR (IV) USE OF THIRD PARTY SOFTWARE EXCEPT TO THE EXTENT PROVIDED BY PROVIDER REPRESENTATIVE. THE FOREGOING STATES THE ENTIRE LIABILITY OF PROVIDER AND THE EXCLUSIVE REMEDY FOR CLIENT RELATING TO INFRINGEMENT OR CLAIMS OF INFRINGEMENT OF ANY COPYRIGHT OR OTHER PROPRIETARY RIGHT BY ANY SOFTWARE CREATED BY PROVIDER FOR CLIENT.

(b) CLIENT SHALL DEFEND, HOLD HARMLESS, PROTECT AND INDEMNIFY PROVIDER AND ITS OFFICERS, AGENTS, DIRECTORS AND EMPLOYEES FROM ANY AND ALL CLAIMS AND DAMAGES, LOSSES OR EXPENSES, INCLUDING ATTORNEY'S FEES AND RELATED COSTS, CAUSED BY ANY SUIT OR CLAIM, THREATENED OR ACTUAL, ASSERTED BY ANY PARTY IN RELATION TO ANY BREACH OF THE TERMS OF THIS AGREEMENT INCLUDING BUT NOT LIMITED TO NEGLIGENT, UNINTENTIONAL, KNOWING OR RECKLESS BREACH OF THIS AGREEMENT BY CLIENT OR ANY OF CLIENT'S AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SUBCONTRACTORS, OR SUPPLIERS.

(c) EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS AND CONFIDENTIALITY OBLIGATIONS OF THIS AGREEMENT NEITHER PARTY TO THIS AGREEMENT NOR THEIR AFFILIATED COMPANIES, OFFICERS, AGENTS, DIRECTORS AND EMPLOYEES OF ANY OF THE FOREGOING, SHALL BE LIABLE TO ANY OTHER PARTY HERETO IN ANY ACTION OR CLAIM FOR CONSEQUENTIAL OR SPECIAL DAMAGES, LOSS OF PROFITS, LOSS OF OPPORTUNITY, LOSS OF PRODUCT OR LOSS OF USE, WHETHER THE ACTION IN WHICH RECOVERY OF DAMAGES IS SOUGHT IS BASED ON CONTRACT, TORT (INCLUDING SOLE, CONCURRENT OR OTHER NEGLIGENCE AND STRICT LIABILITY), STATUTE OR OTHERWISE. TO THE EXTENT PERMITTED BY LAW, ANY STATUTORY REMEDIES WHICH ARE INCONSISTENT WITH THE PROVISIONS OF THESE TERMS ARE WAIVED.

11. MISCELLANEOUS

(a) Applicable Law. THIS AGREEMENT IS MADE UNDER AND WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF HAWAII (EXCEPT THAT BODY OF LAW CONTROLLING CONFLICTS OF LAW) AND SPECIFICALLY EXCLUDING FROM APPLICATION TO THIS AGREEMENT THAT LAW KNOWN AS THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS. EXCLUSIVE VENUE FOR ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE THE STATE AND FEDERAL COURTS IN HONOLULU, HAWAII, AND EACH PARTY IRREVOCABLY CONSENTS TO SUCH PERSONAL JURISDICTION AND WAIVES ALL OBJECTIONS THERETO AND RIGHTS TO TRANSFER VENUE THEREFROM.

(b) Independent Contractor Relationship. This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. In fulfilling its obligations pursuant to this Agreement Provider will be acting as an independent contractor. Provider shall be solely responsible for withholding and timely payment of all required taxes related to Provider's employees and business operations. Nothing herein entitles Provider, and employee of Provider or any Provider Representative to participate in any benefits plan made available by Client to Client's employees.

(c) Arbitration. The parties agree to submit any dispute arising out of or in connection with this Agreement to binding arbitration in Honolulu, Hawaii before the American Arbitration Association pursuant to the provisions of this Section, and, to the extent not inconsistent with this Section, the rules of the American Arbitration Association. The parties agree that such arbitration will be in lieu of either party's rights to assert any claim, demand or suit in any court action, provided that either party may elect either binding arbitration or a court action with respect to a breach by the other party of such party's proprietary rights, including without limitation any trade secrets, copyrights or trademarks. Any arbitration shall be final and binding and the arbitrator's order will be enforceable in any court of competent jurisdiction.

(d) Unforeseen Circumstances. No delay or failure by the parties hereto in the performance of any obligation of this Agreement shall be deemed a breach of this Agreement nor shall it create any liability, if the same shall arise by reason of any cause beyond the reasonable control of the affected party, including, but not limited to, labor disputes, strikes, wars, riots, insurrection, civil commotion, accident, shortage of materials or equipment, government regulations, fire, flood, storm, or any other acts of God, including defects and/or breakdowns of equipment and programming errors not within the reasonable control of the affected party, provided that the party so affected shall use its best efforts to avoid or remove such cause of nonperformance and shall continue performance hereunder as soon as practicable. Failure of a Provider Representative shall not be considered a cause beyond the reasonable control of Provider. If an event described in the paragraph affects Provider's ability to perform hereunder for a period of fifteen (15) consecutive days or more, Client may terminate this Agreement upon written notice to Provider.

(e) Client List. Unless otherwise agreed to in writing, Client hereby consents to Provider having the right to publish Clientʻs name, logo, link to Clientʻs website, project description and screenshots.

(f) Entire Agreement. This Agreement, including the Scope (which Scope is hereby incorporated as an integral part of this Agreement), constitutes the entire Agreement of the parties with respect to the subject matter hereof, and supersedes all previous proposals, oral or written, and all negotiations, conversations, or discussions heretofore had between the parties related to this Agreement. No Agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the parties, except as otherwise expressly provided in this Agreement.

The parties have caused this Agreement to be executed as of the date of submission.