SaaS Subscription and Professional Services Agreement

Parties

This Agreement is entered into by and between Island Pitch LLC, a California limited liability company with a location at 3716 E 7th Street, Long Beach, CA 90804 (“Island Pitch”), and the customer entity identified on the signature block or the executed Order Form or Work Order that references this Agreement (“Customer”).

Preamble

WHEREAS, Island Pitch operates the NextWave Platform, a membership-management software-as-a-service offering, and provides onshore and offshore software design, development, hosting, and maintenance services through Crew Members on an hourly basis;

WHEREAS, Customer wishes to subscribe to the NextWave Platform and to engage Island Pitch to provide professional services in support of Customer's deployment;

NOW THEREFORE, in exchange for the mutual promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows.

1. Definitions

• • Agreement means this SaaS Subscription and Professional Services Agreement together with all Order Forms, Work Orders, the Rate Card, the Privacy Policy, the Acceptable Use Policy, the Service Level Agreement (cloud-hosted only), and the Data Processing Addendum (where applicable).
• • Plugin means the NextWave Platform WordPress plugin in object-code form, including updates, configurations, license-validation logic, and any proprietary additions made by Island Pitch.
• • SaaS Services means the hosted NextWave services, including the licensing service, license-validation API, software-update delivery, account and billing services, and (where Customer subscribes) NextWave Cloud Hosting.
• • Self-Hosted Deployment means installation of the Plugin on Customer's own (or Customer's contractor's) WordPress site and infrastructure.
• • Cloud-Hosted Deployment means a NextWave-managed WordPress instance with the Plugin pre-installed and operated by Island Pitch on Amazon Web Services on Customer's behalf.
• • Crew Members means the Island Pitch personnel — employees, contractors, and consultants — assigned to perform Professional Services for Customer.
• • Professional Services means the consulting, design, development, integration, hosting, training, and maintenance services performed by Crew Members under one or more Work Orders.
• • Work Order means an ordering document substantially in the form of Appendix B, executed by both parties, describing the Crew Members assigned, work hours, scope, milestones, deliverables, and any rates that supersede the Rate Card for that engagement.
• • Order Form means an ordering document executed by both parties that specifies subscription plan, term, fees, and quantities for the SaaS Services.
• • Rate Card means Island Pitch's then-current rate sheet for Professional Services, separately maintained by Island Pitch and made available to Customer; the rates in effect at the time a Work Order is executed apply to that Work Order unless the Work Order specifies different rates.
• • Deliverable means any work product (including software, source code, documentation, designs, configurations, or written materials) delivered to Customer under a Work Order.
• • Customer Data means all data, content, and information that Customer, its end users, or its members submit to, generate within, or store using the Plugin or SaaS Services.
• • Confidential Information has the meaning set forth in Section 6.
• • Intellectual Property has the meaning set forth in Section 7.

2. Description of Services

2.1 SaaS Services

Subject to Customer's compliance with this Agreement and timely payment of fees, Island Pitch grants Customer, during the SaaS Subscription Term, a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to install and use the Plugin in object-code form on the number of WordPress sites authorized by Customer's subscription plan, to access and use the SaaS Services, and to permit its employees and contractors with a need-to-know to use them on Customer's behalf, provided Customer remains responsible for their compliance.

Customer's use of the SaaS Services is further subject to the Acceptable Use Policy, the Service Level Agreement (where Customer subscribes to a Cloud-Hosted Deployment), and the Data Processing Addendum (where Island Pitch processes personal data on Customer's behalf).

Deployment Models. The Plugin and SaaS Services are offered in two deployment models — Self-Hosted and Cloud-Hosted — with different responsibility allocations. In a Self-Hosted Deployment, Customer installs and operates the Plugin on Customer's own infrastructure; Island Pitch's role is limited to license validation, update delivery, and (where purchased) Professional Services. In a Cloud-Hosted Deployment, Island Pitch operates a managed WordPress instance on AWS for Customer; the SLA applies and Island Pitch acts as Customer's data processor under the DPA. Customer is, in both models, the data controller for member and end-user personal data and remains solely responsible for: the lawfulness of its data collection; obtaining all consents and providing all notices to end users; compliance with the laws applicable to Customer's industry; and the legality of any benefit, drawing, sweepstakes, contest, raffle, or promotion Customer operates using the Plugin.

2.2 Professional Services

From time to time, on an as-needed basis, Island Pitch agrees to provide Crew Members on an hourly basis for information technology services as identified to Island Pitch by Customer. The number of Crew Members, work hours, scope, milestones, deliverables, and price shall be described in greater detail on Work Orders attached hereto from time to time in the form of Appendix B. The external scope for the work to be performed will be provided by Customer after this Agreement and may include analysis, design, development, testing, installation, hosting, customization of the Plugin, integrations with third-party systems, and maintenance, among other things; the parties on an ongoing basis will scope the individual milestones and deliverables. The scope and individual milestones or deliverables identified in a Work Order are external to this Agreement and govern the engagement to which they relate.

3. Term

This Agreement commences on the Effective Date set forth on the signature block or the first executed Order Form or Work Order referencing this Agreement, and continues for a period of three (3) years (the “Term”). If any Work Order or Order Form remains in effect upon expiration of the Term, the Term automatically extends to cover the completion of such Work Order or Order Form.

Each Order Form for SaaS Services has its own subscription term as specified on the Order Form. Subscription terms automatically renew at the end of each subscription term for an additional period of equal length at the then-current price, unless either party gives written notice of non-renewal at least thirty (30) days before the renewal date. For self-service plans, cancellation through the Stripe Customer Portal before the renewal date constitutes notice of non-renewal.

4. Third-Party and Other Customer-Approved Costs

Customer is responsible for any third-party software, hardware, or services needed for Customer's deployment, including (without limitation) hosting (in Self-Hosted Deployments), network hardware, operating systems, third-party WordPress plugins or themes, payment-gateway accounts, email/SMS provider accounts, and any other custom third-party software that may be required. Where Island Pitch agrees to procure third-party items on Customer's behalf, those items are passed through to Customer at cost plus any agreed handling fee, and remain subject to the third party's license and terms.

5. Fees and Payment Terms

5.1 SaaS Subscription Fees

• • SaaS subscription fees are paid in advance for the applicable subscription term, on the cadence specified in the Order Form (or, for self-service plans, the cadence selected at checkout).
• • Self-service subscriptions are processed by Stripe, Inc. and charged automatically. Order-form subscriptions are invoiced in accordance with the Order Form.
• • Subscription fees are non-refundable except as expressly provided in this Agreement or required by law.
• • Island Pitch may change subscription prices on at least thirty (30) days' notice; price changes take effect on the next renewal.

5.2 Professional Services Fees

For the Professional Services provided by Island Pitch, Customer agrees to pay Island Pitch an hourly rate as indicated on the then-current Rate Card, which may be superseded by rates in individual Work Orders, without reduction for any reason including for income tax withholdings or other deductions. Island Pitch shall invoice Customer periodically. Customer must pay Island Pitch's invoices no later than fifteen (15) days after receipt. Any amount past due in excess of fifteen (15) days will be subject to 1.5% interest per month. If any dispute, legal action, or other proceeding is brought regarding Customer's non-payment of Island Pitch's invoices, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs, whether incurred before suit, during suit, or at the appellate level.

5.3 Suspension for Non-Payment

Island Pitch may suspend Professional Services and the SaaS Services if any undisputed amount is more than ten (10) days past due, without affecting the accrual of fees or the parties' other rights and remedies.

5.4 Taxes

Fees are exclusive of all sales, use, value-added, withholding, and similar taxes (other than taxes on Island Pitch's net income). Customer is responsible for paying all such taxes, except where Island Pitch is required to collect and remit them, or where Customer provides a valid exemption certificate.

6. Solicitation of Personnel

Island Pitch acknowledges and understands that the hiring of its personnel by Customer can be mutually beneficial, providing opportunities for collaboration and professional growth. It is important to note that acquiring, training, and supporting personnel incurs costs for Island Pitch, which Island Pitch passes along under some circumstances when solicitation occurs.

If personnel have been assigned to Customer projects for collectively less than twenty-four (24) months, Customer is obligated to pay Island Pitch a fee per employee, independent contractor, or consultant hired. The specific amount of compensation shall be determined based on the nature of the personnel's role and the expenses incurred by Island Pitch in acquiring and training them.

In such cases where personnel are solicited with less than thirty (30) days' notice to Island Pitch, a minimum fee of $50,000 per employee, independent contractor, or consultant hired applies. This fee is not a penalty, but a reasonable estimation of Island Pitch's investment.

Depending on the duration of the parties' business relationship, the need for compensation may be waived at Island Pitch's discretion.

Violation of this Section 6 may result in Island Pitch seeking injunctive relief and damages. These measures ensure fair compensation and protect Island Pitch's interests.

7. Confidential Information

Each party (“Recipient”) acknowledges that they have or will come into possession or knowledge in the course of performance of this Agreement, of certain material and information supplied by the other party (“Owner”) that is the Owner's confidential and proprietary information, including, but not limited to, software, source code, trade secrets, processes, data, know-how, program codes, documentation, flowcharts, algorithms, marketing plans, software architecture, forecasts, unpublished financial statements, budgets, licenses, prices, costs, and employee, past, present, and potential customer lists (“Confidential Information”).

Confidential Information shall not include any information which: (i) is or becomes generally known to the public through no action on Recipient's part; (ii) Recipient rightfully receives from a third party without restriction; (iii) Recipient develops independently or already had knowledge of prior to disclosure by Owner; or (iv) is approved for release by written authorization of Owner.

Upon termination of this Agreement or at any other time upon request, Recipient will promptly deliver to Owner all notes, memoranda, notebooks, drawings, records, reports, files, documented source codes, and other documents (and all copies or reproductions of such materials) in its possession or under its control, whether prepared by Recipient or others, which contain Confidential Information.

Recipient acknowledges that Confidential Information is the sole property of Owner. Recipient agrees that disclosure of such information to, or use by, third parties, either during or after this Agreement, will cause Owner irreparable damage. Recipient agrees to use best efforts to hold Confidential Information in the strictest confidence, not to make use of it other than for the performance of its obligations hereunder, to release it only to Recipient's employees or contractors with a need to know such information, and not to release or disclose it to any other party. Recipient further agrees not to release such information to any employee or contractor who is not bound by confidentiality. Recipient will notify Owner in writing of any circumstances within its knowledge relating to any unauthorized possession, use, or knowledge of such Confidential Information.

Non-Disparagement. Neither party shall threaten the other party or make, post, publish, or communicate to any person or entity or in any public forum any comments or statements (written or oral) that intentionally seek to denigrate or disparage, or are detrimental to, the reputation or stature of the other party or its businesses, or any of its employees, directors, officers, and existing and prospective customers, suppliers, investors, and other associated third parties.

8. Intellectual Property; Assignment

“Intellectual Property” means: (i) works of authorship, improvements, innovations, technical information, software architecture, project plans, procedures, software, source code, flow charts, diagrams, firmware, technology, and other intellectual property, as reflected in any form (including computer programs), including but not limited to emails, documents, patent applications, patents, copyrights, trade secrets, trademarks, trade identities, trade dress, know-how, Confidential Information, and other proprietary information; and (ii) rights relating to possession, ownership, and use of the foregoing, including without limitation, the right to license, sublicense, franchise, assign, divide, pledge, mortgage, sell, offer to sell, transfer, convey, grant, import, make or have made, enforce, and register.

8.1 NextWave Platform, Plugin, and SaaS Services

The NextWave Platform, the Plugin, the SaaS Services, and all related Intellectual Property (including the NextWave name, the “Do Cool Things the Right Way!®” mark, the IP Bot character, and Island Pitch's license-validation logic, telemetry, and update infrastructure) are and remain the sole and exclusive property of Island Pitch. Customer's rights to use them are limited to the subscription license granted in Section 2.1 for the duration of the SaaS Subscription Term. Nothing in this Agreement transfers ownership of the Plugin, the SaaS Services, or any element of the NextWave Platform to Customer, and the “work made for hire” treatment in Section 8.3 expressly excludes them.

8.2 Island Pitch Existing Intellectual Property

“Island Pitch Existing Intellectual Property” means any Intellectual Property created, developed, or reduced to practice by Island Pitch prior to the commencement of Professional Services under this Agreement that is used by Island Pitch in creating, or is incorporated within, any Deliverable, the Professional Services, or other work performed under this Agreement. Island Pitch shall retain all right, title, and ownership to any Island Pitch Existing Intellectual Property that is incorporated into any Deliverable or the Professional Services. Subject to Customer's compliance with this Agreement and payment in full, Island Pitch grants Customer a worldwide, irrevocable, non-exclusive, fully-paid-up, royalty-free, transferable, and sub-licensable license to use, sell, and distribute the Island Pitch Existing Intellectual Property only insofar as it is incorporated in, or required for Customer to use, sell, or distribute, the Deliverables or any work product resulting from the Professional Services. For the avoidance of doubt, the foregoing license does not extend to the Plugin, the SaaS Services, or the NextWave Platform, which are licensed solely under Section 2.1.

8.3 Island Pitch Created Intellectual Property

“Island Pitch Created Intellectual Property” means any Intellectual Property created, developed, or reduced to practice by or for Island Pitch in performing the Professional Services under this Agreement, excluding the Plugin, the SaaS Services, the NextWave Platform, Island Pitch Existing Intellectual Property, and any modifications, improvements, updates, or derivative works of any of the foregoing made by Island Pitch (which remain the property of Island Pitch). Island Pitch Created Intellectual Property shall be considered “work made for hire” under applicable copyright law and the copyright will, subject to Customer's compliance with this Agreement and upon receipt of payment in full, be owned solely and exclusively by Customer.

8.4 Customer Data

As between the parties, Customer retains all right, title, and interest in and to Customer Data. Customer grants Island Pitch a non-exclusive, worldwide, royalty-free license to access, host, copy, transmit, display, and process Customer Data solely as necessary to provide and improve the SaaS Services and Professional Services, enforce this Agreement, and comply with law.

8.5 Open-Source and Third-Party Components

The Plugin and Deliverables may incorporate open-source software and third-party components subject to their own licenses. Those components remain subject to their original licenses; the assignments and licenses in this Section 8 apply to Island Pitch's proprietary additions. Customer is responsible for compliance with open-source and third-party licenses with respect to its use.

8.6 Feedback

Customer assigns to Island Pitch any feedback, suggestions, or recommendations Customer provides regarding the SaaS Services, Plugin, NextWave Platform, or Professional Services, and Island Pitch may freely use such feedback without obligation.

8.7 Reservation of Rights

Except as otherwise specifically provided in this Agreement, each party acknowledges and agrees that no licenses or rights to any of the Intellectual Property of the other party are given or intended to be given.

8.8 Island Pitch Marks

The following are registered or pending trademarks, service marks, or trade dress of Island Pitch (collectively, the “Island Pitch Marks”): (a) NextWave and the NextWave Platform name and logo; (b) “Do Cool Things the Right Way!”®, the registered service mark of Island Pitch; (c) Island Pitch and associated logos; (d) IP Bot and related character imagery; and (e) other product, feature, character, and tagline names used in the Plugin, the SaaS Services, the Professional Services, the Deliverables, or on Island Pitch's websites.

This Agreement does not grant Customer any license to use any Island Pitch Mark, except for limited nominative fair use to truthfully and accurately identify Island Pitch's products and services, provided that the use is non-misleading, does not imply sponsorship, endorsement, partnership, or affiliation that does not exist, includes the appropriate ® or ™ symbol on first prominent use, and does not depict the Plugin, SaaS Services, or Deliverables as a Customer-branded product. Any other use, including in advertising, on packaging, in domain names, in social-media handles, in trademark applications, or as part of any company, product, service, or website name, requires a separate written trademark license from Island Pitch.

Customer will not, and will not authorize any third party to: (a) use any Island Pitch Mark, or any confusingly similar mark, in a manner likely to cause confusion, mistake, or deception, or in a manner that disparages Island Pitch or dilutes any Island Pitch Mark; (b) modify, abbreviate, translate, animate, stylize, recolor, or create derivative works of any Island Pitch Mark; (c) combine any Island Pitch Mark with any other mark or material to form a composite mark; (d) register, attempt to register, or assist any third party in registering any Island Pitch Mark or any confusingly similar mark, in any jurisdiction or domain registry; (e) remove, obscure, or alter any trademark notice, copyright notice, or proprietary legend on the Plugin, the SaaS Services, the Deliverables, or any Island Pitch material; (f) incorporate any Island Pitch Mark into a Deliverable in a manner that would suggest Customer ownership or that would survive Customer's license to the Deliverable as a Customer trademark; or (g) use any Island Pitch Mark with any product, service, business, or activity that is unlawful, sexually explicit (other than as expressly permitted in writing for legitimate adult-industry deployments), or that violates the Acceptable Use Policy.

“Do Cool Things the Right Way!®”. The “Do Cool Things the Right Way!®” mark is a registered service mark of Island Pitch and is core to Island Pitch's brand and reputation. Customer acknowledges Island Pitch's exclusive ownership of this mark, agrees not to challenge its validity or Island Pitch's ownership, and agrees that any goodwill arising from any permitted use of the mark inures solely to Island Pitch. Use of the “Do Cool Things the Right Way!®” mark in advertising, promotion, marketing collateral, packaging, signage, on apparel, in audio or video productions, or in any other commercial context requires a separate written trademark license from Island Pitch.

Notice of Misuse; Quality Control. Customer will promptly notify Island Pitch at legal@islandpitch.com of any actual or suspected unauthorized use, infringement, dilution, or misappropriation of any Island Pitch Mark of which Customer becomes aware. Where Customer is permitted to use any Island Pitch Mark, Customer will use the mark only in accordance with Island Pitch's then-current trademark guidelines, and Customer's use is subject to Island Pitch's reasonable quality-control review. Island Pitch reserves all rights, including the right to suspend or terminate any permitted use that fails to meet quality standards or that disparages, dilutes, or harms the goodwill of any Island Pitch Mark. The trademark restrictions and acknowledgments in this Section 8.8 survive termination of this Agreement.

9. SaaS-Specific Terms

9.1 Cloud Service Levels

For Cloud-Hosted Deployments, the Service Level Agreement applies, including uptime commitments, service-credit remedies, scheduled-maintenance windows, support response targets, and backup/recovery objectives. The SLA does not apply to Self-Hosted Deployments.

9.2 Data Processing

Where Island Pitch processes personal data on behalf of Customer in connection with the SaaS Services or Professional Services, the parties' respective rights and obligations are governed by the Data Processing Addendum, which is incorporated by reference. The DPA includes the schedule of sub-processors, the technical and organizational measures, and the EU Standard Contractual Clauses (Module Two) and UK Addendum where international transfers occur.

9.3 Telemetry

The Plugin transmits limited operational telemetry to Island Pitch and Island Pitch's analytics provider (PostHog) to validate licenses, deliver updates, monitor errors, and improve the product. Telemetry includes plugin version, WordPress version, anonymized feature-usage events, error events, and license-check pings, and does not include end-user personal data, member contact details, redemption details, or Customer Data content. Customer may disable optional telemetry from the Plugin's Settings > Privacy screen; license-validation pings cannot be disabled while a license is active. Customer's use of telemetry is governed by the Privacy Policy.

9.4 Acceptable Use

Customer's use of the SaaS Services and Plugin is subject to the Acceptable Use Policy. Island Pitch may suspend the SaaS Services for material violations of the Acceptable Use Policy in accordance with the policy.

9.5 Customer Responsibility for End-User Data

Customer is and remains solely responsible for: (i) the lawfulness of Customer's collection, use, and disclosure of end-user personal data through the Plugin or SaaS Services; (ii) obtaining all consents and providing all notices required by privacy law before collecting NFC card identifiers, contact details, payment information, or other personal data from end users; (iii) the legality of any drawing, sweepstakes, contest, raffle, or promotional rules Customer operates (including any required state registrations, bonding, or disclosures); (iv) compliance with all laws applicable to Customer's industry; and (v) responding to data-subject requests, regulatory inquiries, breach notifications, and consumer complaints from Customer's end users. Island Pitch is not responsible for, and disclaims all liability arising from, how Customer chooses to deploy, configure, customize, integrate, extend, or use the Plugin or SaaS Services.

10. Warranties; Acceptance; Disclaimer

10.1 Mutual Authority

Each party represents and warrants that it has full right and authority to enter into this Agreement and perform its obligations hereunder.

10.2 Professional Services Performance

Island Pitch warrants that the Professional Services will be performed in a workmanlike and professional manner consistent with industry standards. If Customer notifies Island Pitch in writing of a material breach of this warranty within thirty (30) days of performance of the affected Professional Services, Customer's sole and exclusive remedy is, at Island Pitch's option, re-performance of the affected portion or, if re-performance is not commercially reasonable, refund of the fees paid for the affected portion.

10.3 Custom Deliverable Acceptance Window

Following the delivery of any software or Deliverables under a Work Order, Customer shall have a period of ten (10) days to thoroughly review and test the work product to identify any defects or issues. During this period, should Customer notify Island Pitch of any such defects or issues within the scope of the Work Order, Island Pitch agrees to use reasonable efforts to correct them at no additional cost to Customer. This remedy shall be Customer's sole and exclusive remedy for any defects, errors, or issues related to the quality of Island Pitch's work product. After the expiration of the aforementioned review period, the acceptance of the work product by Customer is presumed, and any further modifications, corrections, or enhancements requested by Customer will be considered new work and subject to additional agreements and compensation.

10.4 SaaS Services and Plugin — As Is

Notwithstanding the foregoing, Island Pitch commits to providing software development and maintenance services with a reasonable level of skill and care. However, due to the inherent complexities and uncertainties involved in software development, especially in the creation of prototypes and configurable platform software, Island Pitch provides the Plugin, the SaaS Services, and all related software and deliverables “as is” and “with all faults,” without any warranties of any kind, express or implied, except as specifically provided in this Agreement.

10.5 Disclaimer

EXCEPT AS EXPRESSLY STATED IN THIS SECTION 10, ISLAND PITCH DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE AND DELIVERABLES RESTS WITH CUSTOMER. ISLAND PITCH DOES NOT WARRANT THAT THE SAAS SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.

11. Indemnification

11.1 By Customer

Customer agrees to indemnify, defend, and hold harmless Island Pitch, its affiliates, and their respective officers, directors, employees, and agents (collectively, the “Indemnified Parties”) from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or in any way connected with: (a) Customer's use of the Plugin, the SaaS Services, the Deliverables, and any other software or services provided under this Agreement; (b) Customer Data, including any claim that Customer Data infringes, misappropriates, or violates the rights of any third party or applicable law; (c) Customer's configuration, customization, integration, or extension of the Plugin or SaaS Services; (d) Customer's breach of this Agreement, the Acceptable Use Policy, or applicable law; (e) any drawing, sweepstakes, contest, raffle, or promotion Customer operates using the Plugin or any Deliverable; (f) any claim regarding Customer's end-user consent, notices, or data-collection practices; or (g) any incident affecting Customer's self-hosted environment — except to the extent such claims directly result from the gross negligence or willful misconduct of Island Pitch.

11.2 By Island Pitch (Limited IP Infringement)

Island Pitch will defend Customer against any third-party claim alleging that the Plugin or the SaaS Services, when used by Customer in accordance with this Agreement, directly infringe a U.S. patent, U.S. copyright, U.S. trademark, or trade secret of that third party, and will pay damages and costs finally awarded by a court of competent jurisdiction or agreed to in settlement of such a claim.

If the Plugin or SaaS Services become, or in Island Pitch's reasonable opinion are likely to become, the subject of an infringement claim, Island Pitch may, at its option and expense: (i) procure for Customer the right to continue using them; (ii) modify or replace them with non-infringing alternatives of substantially equivalent functionality; or (iii) terminate the affected portion of this Agreement and refund any pre-paid, unused subscription fees attributable to the affected portion.

Exclusions. Island Pitch will have no obligation under this Section 11.2 for any claim arising from: (a) modifications to the Plugin or SaaS Services not made by Island Pitch; (b) combination of the Plugin or SaaS Services with software, services, hardware, content, or data not provided by Island Pitch (including third-party WordPress plugins, themes, and custom code); (c) Customer Data, Customer Materials, or Customer's configuration; (d) use of the Plugin or SaaS Services in violation of this Agreement, the Acceptable Use Policy, or applicable law; or (e) Customer's continued use after Island Pitch has provided a non-infringing alternative.

This Section 11.2 states Island Pitch's sole liability and Customer's sole and exclusive remedy with respect to third-party intellectual-property infringement claims relating to the Plugin or SaaS Services.

11.3 Process

The party seeking indemnification will: (a) promptly notify the indemnifying party of the claim; (b) give the indemnifying party sole control of the defense and settlement (provided that no settlement requiring an admission or unindemnified payment from the indemnified party may be made without the indemnified party's consent); and (c) reasonably cooperate at the indemnifying party's expense.

12. Limitation of Liability

NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS OPPORTUNITY, OR LOSS OR CORRUPTION OF DATA), OR EXEMPLARY DAMAGES, EVEN IF SUCH PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR RIGHTS; OR (III) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID BY CUSTOMER (OR, IN THE CASE OF ISLAND PITCH, RECEIVED) UNDER THE WORK ORDER, ORDER FORM, OR (IF NEITHER) THIS AGREEMENT GIVING RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

The limitations and exclusions of damages set forth in this Section 12 shall not be applicable to claims by either party (a) arising under Section 7 (Confidential Information) or Section 6 (Solicitation of Personnel); (b) based on gross negligence, willful misconduct, including fraud, or personal injury or death; or (c) for Customer's payment obligations.

The limitations are an essential basis of the bargain and apply even if any limited remedy fails of its essential purpose.

Self-Hosted Carve-Out. For Self-Hosted Deployments, Island Pitch's liability further excludes damages arising from: (i) Customer's hosting environment, including outages, data loss, or security incidents originating from Customer's hosting provider; (ii) third-party plugins, themes, or services Customer has installed; (iii) custom code, modifications, or integrations Customer or Customer's contractors make; or (iv) Customer's failure to apply security updates Island Pitch has made available.

13. Marketing Permission

Island Pitch may use Customer's name, logo, and general descriptions of the engagement in its marketing and promotional materials, including website content, case studies, and social-media posts, provided that:

• • Such use does not include any reference to Protected Health Information (PHI) or specific details about the services provided that would constitute Confidential Information of Customer;
• • Customer will be notified in advance of publication date for an opportunity to review for any specific content related to the engagement before publication;
• • Any public statements or materials comply with all applicable laws, including HIPAA and HITECH.

14. Termination or Conclusion of Services

Should Customer be in breach of this Agreement (including, but not limited to, default in payment), Island Pitch may terminate this Agreement and/or any Work Order or Order Form issued hereunder, at any time effective immediately and without notice.

When Island Pitch's services conclude or are terminated under this Agreement, any Work Order, or any Order Form, all unpaid charges shall become immediately due and payable. Customer will pay for all fees and costs incurred prior to conclusion or termination of services including any notice period.

If upon conclusion or termination of this Agreement, any Work Order, or any Order Form, Island Pitch has in its possession property of Customer, including source code or Customer Data, Island Pitch shall return such property to Customer upon receipt of Customer's payment of pending invoices. For Cloud-Hosted Deployments, Customer will have thirty (30) days to export Customer Data, after which Island Pitch may delete it (subject to retention required by law and Island Pitch's ordinary backup-retention cycle). For Self-Hosted Deployments, Customer's local installation will continue to function in a degraded “expired” mode without updates, premium features, or license validation; Customer must uninstall it within ninety (90) days of termination upon written request by Island Pitch.

Survival. Sections 6 (Solicitation of Personnel), 7 (Confidential Information), 8 (Intellectual Property; Assignment), 10.5 (Disclaimer), 11 (Indemnification), 12 (Limitation of Liability), 14 (Termination), 15 (Governing Law and Consent to Jurisdiction), and 16 (General Provisions) shall survive the termination of this Agreement.

15. Governing Law and Consent to Jurisdiction

This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without regard to conflict-of-laws principles. If any provision of this Agreement, or the application thereof to any party or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. The parties agree that any suit, action, or other legal proceeding arising out of this Agreement shall be brought exclusively in Los Angeles County, California. Customer and Island Pitch consent and hereby waive any objection to jurisdiction (personal and/or subject matter) and/or venue in such court.

16. General Provisions

Waiver. Neither party's failure to exercise any of its rights under this Agreement will constitute or be deemed a waiver or forfeiture of those rights.

Force Majeure. Neither party will be liable to the other for failure to perform its obligations hereunder if and to the extent that such failure to perform results from causes beyond its control, including, without limitation, strikes, lockouts, or other industrial disturbances; civil disturbances; fires; acts of God; acts of a public enemy; compliance with any regulations, order, or requirement of any governmental body or agency; pandemic; cyber-attack on third-party infrastructure; outages of Amazon Web Services, Stripe, or other third-party providers; or inability to obtain transportation or necessary materials in the open market.

Notices. All notices required under or regarding this Agreement from Customer to Island Pitch shall be in writing and will be considered proper only if delivered by e-mail to info@islandpitch.com (with a copy, where the matter is legal in nature, to legal@islandpitch.com). Notices to Customer may be sent by email to the address associated with Customer's account or as set forth on the signature block.

Injunctive Relief. Any breach of any provision of this Agreement, including non-payment for services, by either party shall entitle the other party to recover damages and injunctive relief. Customer and Island Pitch agree that because monetary damages are likely to be inadequate, the affected party shall be entitled to temporary injunctive relief (by providing to a court a likelihood of breach by the other party) and to permanent injunctive relief (by providing to a court such breach). If the first party is successful in recovering damages or obtaining injunctive relief, the second party agrees to be responsible for paying all of the first party's expenses in seeking such relief, including all costs of bringing suit and all reasonable attorneys' fees.

Jury Waiver. The parties hereby voluntarily, knowingly, irrevocably, and unconditionally waive any right to jury trial in resolving any dispute (whether based upon contract, tort, or otherwise) between or among them arising out of or in any way related to this Agreement, any documents, or any relationship between them.

Execution in Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic transmission (including e-mail) shall be as effective as delivery of a manually executed original counterpart of this Agreement. Delivery of a counterpart to this Agreement executed with an electronic signature shall be the same and as effective as a manually executed original counterpart.

Customer Cooperation. Customer shall cooperate with Island Pitch by providing: (i) timely responses to Island Pitch's inquiries and requests for approvals and authorizations; and (ii) access to any information or materials reasonably requested by Island Pitch which are necessary or useful in connection with providing the services under this Agreement. Customer acknowledges and agrees that the services are dependent upon the timeliness, completeness, and accuracy of information provided by Customer and the knowledge and cooperation of the agents, employees, or subcontractors (“Personnel”) engaged or appointed by Customer who are selected by Customer to work with Island Pitch. Schedule and budget impacts caused by Customer delays may be addressed via change order at Island Pitch's then-current rates.

Entire Agreement; Order of Precedence. This Agreement and all exhibits, Order Forms, Work Orders, and the documents incorporated by reference (Privacy Policy, Acceptable Use Policy, Service Level Agreement, Data Processing Addendum) represent the entire understanding and agreement between the parties regarding the subject matter of this Agreement, and supersede all other negotiations, understandings, and representations (if any), whether oral or written, made by and between such parties. Customer expressly agrees that it did not rely upon statements or representations not contained within this Agreement. Customer hereby waives and releases all rights or claims of fraud and fraud in the inducement arising from any pre-contract representations. There have been no representations, express or implied, other than as set forth in this Agreement. The terms of this Agreement may be modified or changed only by a written agreement signed by both parties and which provides it is an amendment to this Agreement.

In the event of a conflict, the documents control in the following order: (1) an executed Order Form or Work Order, with respect to its specific subject matter; (2) this Agreement; (3) the Data Processing Addendum; (4) the Service Level Agreement; (5) the Acceptable Use Policy; (6) the Privacy Policy.

Representation on Authority of Parties/Signatories. Each person signing this Agreement represents and warrants that he or she is duly authorized and has legal capacity to execute and deliver this Agreement. Each party represents and warrants to the other that the execution and delivery of this Agreement and the performance of such party's obligations hereunder have been duly authorized and that this Agreement is a valid and legal agreement binding on such party and enforceable in accordance with its terms.

Approved and Accepted by

Appendix A — Rate Card

Professional Services are billed at the rates set forth in Island Pitch's then-current Rate Card, which Island Pitch maintains separately and provides to Customer. Rates may be superseded for a specific engagement by the rates stated in the applicable Work Order. Island Pitch may update the Rate Card from time to time on at least thirty (30) days' notice; updated rates apply to Work Orders executed after the effective date of the update and to time-and-materials work performed after that date. Rates in effect at the time a Work Order is executed apply to that Work Order for its duration unless the Work Order specifies otherwise.

Appendix B — Form of Work Order

Each Work Order issued under this Agreement will include, at minimum, the following sections:

1. Parties and Effective Date of the Work Order
2. Reference to this Agreement (incorporation by reference)
3. Description of Crew Members and roles assigned
4. Scope of Professional Services and Deliverables
5. Milestones, schedule, and any guaranteed delivery dates with specific remedies (if any)
6. Acceptance criteria (incorporating the 10-day acceptance window in Section 10.3 unless otherwise stated)
7. Hourly rates (or fixed fee, where applicable) and any deviations from the Rate Card
8. Estimated hours, budget cap (if any), and invoicing cadence
9. Pre-approved expenses and reimbursement terms
10. Customer responsibilities and dependencies
11. Engagement-specific security or compliance commitments (if any)
12. Engagement-specific IP treatment, including any deviations from Section 8 (e.g., a different Work-Made-for-Hire scope) — only effective if the Work Order is signed by both parties
13. Engagement-specific liability or indemnification adjustments (if any) — only effective if the Work Order is signed by both parties and recites that the adjustment is intended to deviate from Section 11 or Section 12
14. Signatures of both parties

Work Orders are governed by and incorporate this Agreement. Engagement-specific terms in a Work Order apply only to the Work Order in which they appear.

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