End User License Agreement

YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE USING THIS SERVICE. BY CLICKING THE ACCEPTANCE BUTTON AND LOGGING INTO OR OTHERWISE ACCESSING THE SOFTWARE YOU, OR THE BUSINESS ENTITY ON BEHALF OF WHICH YOU ARE ENTERING INTO THIS AGREEMENT, ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS IN THIS DOCUMENT, YOU MAY NOT USE THE JOURNEY PLATFORM.

This End User License Agreement (the “Agreement”) sets forth the terms and conditions of your use of the accompanying software known as the Journey Strategic Platform, a modular based software for enhancing strategic planning, (the “Software”), powered by New Orchard LLC, a Tennessee Limited Liability Company (“New Orchard”). For purposes of this Agreement, “CLIENT” means you, the end user. If the use of the Software is in connection with a business and/or business entity that will have several users of the Software, “CLIENT” specifically means that business, not you as an individual. This Agreement governs your use of the Software from the date you click the acceptance button (the “Effective Date”) through the Term (as defined below).

1. License and Intellectual Property.

a. License.

i. Subject to the terms and conditions of this Agreement and the License Restrictions as set forth below, New Orchard grants to CLIENT a limited, non-exclusive, non-transferrable (except as expressly set forth herein) license for CLIENT to use the Software during the Term of this Agreement, solely for the purposes described in this Agreement. New Orchard agrees to provide CLIENT with digital environment and configuration testing, including logging in under the CLIENT’s login credentials for purposes of testing the Software, new releases, and program updates during the Term of the License (“Support”). CLIENT further agrees not to use the Software for any other purpose beyond the provisions of this Agreement as expressly set forth herein.

ii. In addition to the non-exclusive license granted above, New Orchard further grants to CLIENT an exclusive license to grant sub-licenses to businesses engaged by CLIENT to use the Software (“Permitted Sublicensees”) during the Term for data gathering, strategic planning and executing strategies pertaining to the sublicensee and/or its clients. Any such sub-license shall be subject to the license restrictions and limitations set forth in this Agreement, to which Permitted Sublicensee shall agree when logging into the Software, and CLIENT’s payment obligations under this Agreement shall continue to apply.

iii. Except as expressly permitted in this Agreement, CLIENT is prohibited from sublicensing the Software to third parties, or otherwise allowing access to the Software.

b. New Orchard Intellectual Property.

CLIENT acknowledges that the rights granted to CLIENT for use of the Software pursuant to this Agreement do not include any ownership rights, nor rights to download, attempt to download, or to reverse engineer, retain, or attempt to retain an electronic copy of the Software or any portion thereof. New Orchard, as the sole author of the Software, and its licensors (if any), exclusively owns and retain all rights in and to the Software, including any modifications, upgrades, improvements and updates thereto any derivative works based upon the same, and all intellectual-property rights, title and interest thereto including all ideas, concepts, know-how, documentation, and/or other property New Orchard provides under this Agreement, including, without limitation, the Software itself and any worldwide patent, copyright, trademark, trade dress and trade secrets contained in, resulting from, or reflected by the Software, regardless of which party suggested any particular modification improvement, customization, or update (“New Orchard Intellectual Property”). To the extent CLIENT is deemed an author of any of the New Orchard Intellectual Property (as the term “author” is customarily used in U.S. copyright law), CLIENT hereby perpetually and irrevocably assigns all rights, title and interest in and to those properties, including the worldwide copyright and any other proprietary right in those properties, to New Orchard. CLIENT agrees and acknowledges that it has no title, rights or interest in or to the New Orchard Intellectual Property and CLIENT agrees and acknowledges that no title, rights or interest shall pass to CLIENT under this Agreement, with the exception of the licenses set forth above, neither of which constitute transfer of ownership to CLIENT. Any rights not expressly licensed to CLIENT under this Agreement are reserved by, and exclusive to, New Orchard. This subsection shall survive termination or expiration of this Agreement.

c. CLIENT Content and Data.

i. Notwithstanding anything to the contrary in this Agreement, all data loaded by CLIENT within the Software or otherwise supplied by CLIENT under this Agreement (collectively, “CLIENT Data”), shall remain CLIENT or its licensor’s exclusive property. Data that results from Client’s usage of the Software – including, but not limited to, capacity scores, KPIs, assigned actions, and similar data (all, “CLIENT Transactional Data”) is considered New Orchard Intellectual Property. New Orchard’s treatment of CLIENT Data is at all times subject to the Client Privacy Policy located at https://www.neworchard.com/new-orchard-client-privacy-policy

ii. New Orchard will perform routine back-ups of CLIENT Data, as such is incorporated into the Software, for the term of this Agreement following industry standards.

iii. The Parties are each responsible for complying with any obligations applying respectively to them under the applicable data protection and personal information privacy protection laws (collectively, “Privacy Laws”). CLIENT agrees that New Orchard will not be responsible for any unlawful access to or use of CLIENT Data resulting from any negligent or intentional act or failure to act of CLIENT or its agents or representatives.

iv. The Parties agree that this Agreement, and the Client Privacy Policy, may be amended from time to time as needed, including for reasons of compliance with Privacy Laws. If such amendment to this Agreement is necessary, New Orchard will post an amended Agreement to its website. CLIENT’s continued use of the Software after the amended Agreement is posted to its website shall constitute agreement to the terms and conditions contained in that amended agreement.

vi. The provisions contained in this subsection 1(c) shall survive termination or expiration of this Agreement.

d. License Restrictions.

Except as expressly provided in this Agreement, CLIENT will not permit or authorize or permit any third party to (a) copy the New Orchard Intellectual 4 Property; (b) modify, translate or otherwise create derivative works of the New Orchard Intellectual Property; (c) disassemble, decompile or reverse-engineer the New Orchard Intellectual Property; (d) publish, re-sell, or otherwise make available to any third party, the New Orchard Intellectual Property; or (e) export or re-export the New Orchard Intellectual Property in violation of any United States export law or regulation; or (f) use the New Orchard Intellectual Property in any manner that could damage, disable, overburden, or impair such property or interfere with any other party’s use and enjoyment of such property. This subsection shall survive termination or expiration of this Agreement.

e. Intellectual Property Notices.

All copies of the New Orchard Intellectual Property, including, but not limited to, reports derived and/or exported by using the Software shall include any trademark and copyright notices required by New Orchard in the location(s) as directed by New Orchard. Further, all output created by or through any use of the Software presented by CLIENT to Permitted Sublicensee or any other third party must bear the following notice:

Powered by Journey

CLIENT shall not remove, obscure, or modify any such notices without the express written consent of New Orchard. This subsection shall survive termination or expiration of this Agreement. This subsection does not apply if CLIENT is a private-label, Founders-level customer of New Orchard.

2. Support and Additional Services.

a. CLIENT acknowledges that New Orchard has no obligation to provide technical support services where the Software is used in any computing environment not meeting the minimum standards of published New Orchard supported computing environments, or for any problems caused as a result of CLIENT negligence, abuse, or misuse.

b. New Orchard shall also provide phone and email technical support to CLIENT regarding any critical error that completely disables the Software on CLIENT’s end, any isolated 5 error that does not significantly affect the functionality of the Software, any benign errors, and any Software-enhancement requests.

3. Implementation and Training.

a. CLIENT acknowledges that successful implementation and support is contingent on the cooperation and assistance of CLIENT and CLIENT agrees to cooperate and to assist New Orchard as needed for the successful use and operation of the Software. New Orchard shall configure the Software to be implemented for ordinary use by CLIENT. CLIENT expressly permits New Orchard to use CLIENT’s login information and/or access CLIENT’s account for purposes of Software setup, troubleshooting, and CLIENT training.

b. CLIENT agrees and acknowledges that permission to use the Software as outlined in this Agreement is contingent on CLIENT’s full and ongoing training on proper use of the Software. CLIENT must complete New Orchard-required training and must maintain the ongoing training standards of New Orchard. New Orchard may periodically require CLIENT’s affirmative certification (re-certification) that CLIENT has completed such training requirements at New Orchard’s discretion.

c. New Orchard agrees to provide training to CLIENT on the use and operation of the Software and CLIENT agrees to make available the appropriate staff to New Orchard during implementation at reasonable times and as mutually agreed to by both parties. New Orchard may provide a demo login to CLIENT for purposes of training and demonstration. This login will specifically state “Demo”. There may be no fee to utilize this login or provide an assessment under this login. Support in the form of training in order to become a Certified Journey Administrator and coach is subject to an additional fee.

4. Availability and Service Interruption.

The Software shall be routinely accessible twenty four (24) hours a day, seven (7) days a week, except for occasional scheduled maintenance times that users will be notified of in advance, to the extent possible, and required repairs, and except for any loss or interruption of hosting services due to causes beyond the control of New Orchard or that are not reasonably foreseeable by New Orchard, including, without limitation, interruption or failure of telecommunication or digital transmission links and Internet slowdowns or failures. New Orchard will employ its best efforts to provide CLIENT wherever 6 possible advance notice of scheduled server computer or network outages. CLIENT understands and acknowledges that the Software is not intended to function on any mobile or tablet platform and is intended for use on a desktop or laptop computer only. As of the Effective Date, the Software functions at its best in the Chrome browser. The Software is likely to function on Safari, Edge, FireFox, and Opera browsers but such functionality is not guaranteed.

5. Duration and Termination.

a. This Agreement shall commence on the Effective Date and shall continue for the mutually agreed time period after the Effective Date, defined as the "Term". Following the initial Term, this Agreement shall automatically renew for further equivalent periods (each hereafter referred to as "Renewal Term"), unless the CLIENT expresses their intention to terminate the Agreement.

b. In the event that the CLIENT wishes not to renew the Agreement, they are required to notify New Orchard at least 90 days prior to the end of the current Term or Renewal Term.

c. The CLIENT's license for the Software will be immediately terminated if the CLIENT breaches any term or condition of this Agreement or declares bankruptcy.

6. Other Terminations.

a. Default. In the event of default under this Agreement on the part of CLIENT, New Orchard may cease all further performance of provision of Services under this Agreement and disable, revoke access to, and/or otherwise terminate the Services to CLIENT and shall not be liable for any losses or damage suffered by CLIENT as a result of New Orchard’s cessation of performance.

b. Events on Termination. Upon termination of this Agreement, any and all CLIENT rights to access the New Orchard Intellectual Property, and to access any CLIENT Data submitted through the Software or otherwise incorporated into the New Orchard Intellectual Property, automatically and immediately terminate. CLIENT will discontinue its use of the New Orchard Intellectual Property and, within ten (10) business days, return or provide verification of destruction related to any confidential information of New Orchard that CLIENT may possess. This subsection shall survive termination or expiration of this Agreement.

c. Client Responsibilities Prior to Termination. Prior to expiration or termination of this Agreement, CLIENT and CLIENT alone shall bear the sole responsibility to download and/or 7 otherwise preserve reports, scores, and/or assessments made through the Software. CLIENT agrees and acknowledges that CLIENT shall not have access to the Software upon expiration or termination of this Agreement and New Orchard has the option, but no obligation, to save or otherwise preserve any reports, scores, assessments, CLIENT Data or other information connected to CLIENT’s account with New Orchard for use by New Orchard. New Orchard may dispose of CLIENT Data at its discretion, subject to any applicable Privacy Laws and the terms of this Agreement and any other written agreement between the Parties governing the same. This subsection shall survive termination or expiration of this Agreement.

7. Confidentiality.

New Orchard and CLIENT agree and covenant to each other that they shall not, during the performance of this Agreement or at any time after the termination hereof, use or disclose to any third party other than during the proper performance of their duties hereunder, any confidential or proprietary information, including but not limited to, business procedures or practices, information, model contracts, internal documents, non-public documents, business models and structuring, financial statements, costs, expense data, marketing and customer data or other confidential dealings or confidential information that is not generally ascertainable from public information concerning the business, finances, transactions, or affairs of the other Party, including any written or other documentation thereof. CLIENT Transactional Data is expressly excluded from the definition of confidential information under this Agreement. The provisions of this Section shall not apply to disclosures required by law or to disclosures made in the ordinary course of business to attorneys, accountants, and similar professionals retained to perform services for either New Orchard or CLIENT; provided, however, that any such disclosures shall be subject to the confidentiality restrictions contained herein and any receiving party shall recognize such restrictions and agree to be bound by the terms hereof in respect thereof. Confidential information shall not include any information that (i) was already known by the receiving party free of any obligation to keep it confidential at the time of its disclosure by the disclosing party, (ii) becomes publicly known through no wrongful act of the receiving party, (iii) is rightfully received from a third person without knowledge of any such restrictions, (iv) is independently acquired or developed without violating any of our obligations under this Agreement, (v) is disclosed by a third person to the disclosing party without similar restrictions on such third persons rights, or (vi) is approved for release by written authorization of the disclosing party. This section shall survive termination or expiration of this Agreement.

8. Taxes.

CLIENT is solely responsible for all sales, 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 based upon CLIENT’s use of the Software in its business.

9. Independent Contractors.

None of the provisions of this Agreement are intended to create nor shall be deemed or construed to create any relationship between the Parties other than that of independent entities contracting with each other hereunder solely for the purpose of effecting the provisions of this Agreement. Neither of the Parties, nor any of their respective employees, representatives or agents, shall be construed to be the employee of the other.

10. CLIENT’s Warranties.

CLIENT warrants that (a) it has the full right and authority to enter into this Agreement and, if CLIENT is a business, that the CLIENT representative agreeing to the terms of this Agreement on behalf of CLIENT is authorized by any and all necessary corporate action to bind CLIENT to this Agreement; (b) CLIENT will use the New Orchard Intellectual Property only for lawful purposes, and not in any manner that infringes any law or regulation or that infringes the rights of any third party; and (c) that CLIENT has all necessary rights, licenses and/or permission to use its logo and any third party logos it uploads to the Software for purposes of assessing a business and/or creating a report so as not to infringe on the rights of any third party, including, but not limited to, trademark rights.

11. New Orchard’s Warranties.

New Orchard warrants that (a) it has the full right and authority to enter into this Agreement; (b) it shall perform the Support and the Services in a commercially reasonable and workmanlike manner in accordance with the standard in the industry; (c) it owns or controls the New Orchard Intellectual Property and has the right to grant all licenses granted herein or those necessary for CLIENT to exercise the rights granted hereunder; and (d) the New Orchard Intellectual Property, to New Orchard’s knowledge, does not violate any applicable law or regulation or infringe, violate or misappropriate any proprietary, intellectual property, contract or tort right of any person.

12. Indemnification.

Each Party shall indemnify, defend and hold harmless the other Party and their respective officers, directors, members, affiliates, subsidiaries, parents, employees, contractors, licensors, agents, and representatives from and against any and all charges, claims, losses, demands, damages, liabilities, costs, expenses, causes of action or suits, and reasonable attorneys’ fees (collectively “Claims”) asserted by third parties, by reason of, based upon, relating to, or arising out of this Agreement and/or relating to any negligent or intentional act or omission or willful misconduct of the indemnifying Party, its employees, agents or representatives or the breach of any warranty by the indemnifying party, including, without limitation, Claims arising out of Client’s handling or processing of third-party data, and/or any claims or damages arising out of CLIENT’s or any other party’s authorized use of the Software in any manner for which it was not intended or inconsistent with the restrictions set forth in this Agreement or the intended purpose of the Software. The Party entitled to be indemnified hereunder shall promptly notify the indemnifying Party of any Claim to which it seeks 9 indemnification and the indemnifying Party shall at all times have the right to defend, settle, or compromise such claims, demand, suit, or proceeding with counsel of its own choosing and in such manner as it may deem advisable. This section shall survive termination or expiration of this Agreement.

13. Disclaimers.

NEW ORCHARD MAKES NO WARRANTY AS TO ANY RESULTS OR PARTICULAR OUTCOMES FROM CLIENT’S OR ANY PERMITTED SUBLICENSEE’S USE OF THE SOFTWARE OR FROM RELYING ON ANY INFORMATION OR RECOMMENDATIONS PROVIDED FROM OR OBTAINED THROUGH USE OF THE SOFTWARE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, NEW ORCHARD AND ITS LICENSORS DO NOT MAKE ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLIENT ACKNOWLEDGES AND ACCEPTS THAT NEW ORCHARD DOES NOT GUARANTEE CONTINUOUS OR UNINTERRUPTED ACCESS TO SOFTWARE, AND OPERATION OF THE SOFTWARE MAY BE INTERFERED WITH OR ADVERSELY AFFECTED BY NUMEROUS FACTORS OR CIRCUMSTANCES OUTSIDE OF NEW ORCHARD’S CONTROL. NEW ORCHARD DISCLAIMS RESPONSIBILITY FOR ANY CONSEQUENCES ATTRIBUTABLE TO OR RELATED TO ANY USES, NON-USE OR INTERPRETATIONS OR INFORMATION CONTAINED IN THE SOFTWARE. This section shall survive termination or expiration of this Agreement.

14. Limitation of Liability.

EXCEPT FOR THE INDEMNITY OBLIGATIONS SET FORTH IN SECTION 13 ABOVE, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF FEES PAYABLE BY CLIENT TO NEW ORCHARD PURSUANT TO THIS AGREEMENT (INCLUDING FEES BOTH PAID AND DUE) BASED ON DURING THE MOST RECENT 12 CONSECUTIVE MONTHS AT THE TIME OF THE EVENT GIVING RISE TO THE LIABILITY; AND (ii) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITIES LIMITED BY THIS SUBSECTION 15 APPLY: (A) TO LIABILITY FOR NEGLIGENCE; (B) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (C) EVEN IF PARTY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (D) EVEN IF RECIPIENT’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. TO BE CLEAR, IN NO WAY WILL NEW ORCHARD BE RESPONSIBLE OR LIABLE FOR ANY CLAIM, ACTION, OR DAMAGES OF ANY KIND ARISING OUT OF CLIENT’S HANDLING OR PROCESSING OF CLIENT’S OWN CLIENTS’ DATA. This section shall survive termination or expiration of this Agreement.

15. Injunctive Relief and Remedies.

CLIENT acknowledges and agrees that monetary damages alone would be an inadequate remedy in the event of a breach by CLIENT of its obligations under this Agreement and that, in such event, New Orchard shall be entitled to obtain injunctive relief to require CLIENT to comply with its obligations hereunder. Any remedy of New Orchard under this Agreement shall be cumulative and not exclusive of any other remedy available to New Orchard under this Agreement, at law or in equity. This section shall survive termination or expiration of this Agreement.

16. Assignment.

Notwithstanding any other term of this Agreement, each Party has the right to assign its rights hereunder to another party in connection with an assignment of all or substantially all of its assets or a merger, subject to the prior written approval by the other Party, which approval will not be unreasonably withheld. This section shall survive termination or expiration of this Agreement.

17. No Third-Party Beneficiary.

Nothing contained in this Agreement may be construed by any party as creating or evidencing a contractual relationship between New Orchard and any potential customer of CLIENT, nor shall any potential customer of CLIENT be a third-party beneficiary to this Agreement.

18. Successors.

The rights and obligations of each Party under this Agreement shall inure to the benefit of, and shall be binding upon, the successors and assigns of each such Party. This section shall survive termination or expiration of this Agreement.

19. Governing Law.

This Agreement shall be governed by Tennessee law without reference to its choice of law rules. The Parties consent to the personal jurisdiction of the courts of the State of Tennessee located in Nashville, Tennessee, and the United States District Court for the Middle District of Tennessee and further waive objection to venue in any such court. In the event that litigation or a similar proceeding is brought by a Party in connection with the Agreement, the prevailing Party in such litigation or other proceeding will be entitled to recover from the other Party all reasonable costs, attorneys’ fees and other expenses incurred by the prevailing Party in any such litigation or proceeding. This section shall survive termination or expiration of this Agreement.

20. No Waiver.

Failure by New Orchard to insist upon strict compliance with any of the terms or conditions hereof shall not be deemed a waiver of such term or condition, nor shall any waiver or relinquishment of any right or power hereunder at any time be deemed a waiver or relinquishment of such right or power at any other time. This section shall survive termination or expiration of this Agreement.

21. Construction.

The section and other headings in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. In case one or more provisions of this Agreement shall be deemed invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby. No provision of this Agreement shall be construed in favor of, or against, any particular Party by reason of any presumption with respect to the drafting of this Agreement; both Parties, having fully participated in the negotiation of this Agreement, agree that this Agreement shall not be subject to the principle that a contract would be construed against the Party that drafted the same. This section shall survive termination or expiration of this Agreement.

22. Entire Agreement.

This Agreement, together with any Customization Development Agreement between CLIENT and New Orchard, if applicable, constitutes the entire agreement between the Parties with respect to all subject matter contained within this Agreement, and supersedes all prior agreements and understandings, oral or written, between the Parties with respect to that subject matter. This Agreement may not be altered, amended, or modified without written approval by both Parties. This section shall survive termination or expiration of this Agreement.

23. Acknowledgement.

By accessing, logging into, or using any part of the Software, CLIENT indicates that CLIENT has read this Agreement, understands it, and agrees to be bound by its terms and conditions.

Last Updated May 22, 2024