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LAYERED IT SUBSCRIPTION END USER LICENSE AGREEMENT

This Layered IT Subscription End User License Agreement (“Agreement”) is between Layered ECM dba Layered IT (“Layered IT”) and the person, company, organization, legal entity, or other party that purchases, orders, accepts, accesses, pays for, or uses the Services (“Licensee” or “Customer”).

This Agreement is effective as of the date Licensee first accepts, purchases, orders, pays for, accesses, or uses any Services, or as otherwise stated in an applicable Layered IT-issued quote, invoice, order form, statement of work, billing statement, or other ordering document (“Effective Date”).

By purchasing, ordering, paying for, accepting, accessing, or using any Services, Licensee confirms that: (i) Licensee is placing an order for the applicable Services; (ii) Licensee has read, understands, and agrees to be bound by this Agreement; and (iii) any terms or conditions contained in Licensee’s purchase order, procurement document, vendor onboarding document, payment portal, invoice instruction, statement of work, or similar document not issued by Layered IT shall not apply and shall have no force or effect unless expressly agreed to in a separate written agreement signed by an authorized representative of Layered IT.

This Agreement applies to all software licensed from Layered IT, including any pre-release or beta versions of software (“Software”); all support services; managed IT services; cybersecurity services; Microsoft 365, cloud, backup, monitoring, endpoint, email security, remote access, and related subscription services; professional services; project services; consulting services; any hardware sold, leased, configured, or loaned to Licensee by Layered IT (“Hardware”); any demonstration or trial versions of Software or Hardware; and all related documentation, quotes, invoices, statements of work, order forms, billing statements, and other Layered IT-issued ordering documents, collectively referred to as the “Services.”

1. Order of Precedence; Rejection of Customer Terms; Invoice Acceptance

If Licensee is bound to more than one agreement, quote, invoice, order form, statement of work, billing statement, or ordering document with Layered IT with respect to the Services, and if those terms vary, then the order of precedence shall be as follows:

  1. A written agreement executed by both Layered IT and Licensee that expressly supersedes all other agreements;
  2. The applicable Layered IT-issued quote, invoice, order form, statement of work, billing statement, or other ordering document;
  3. This Agreement; and
  4. Any other electronic agreement provided with the Software, Hardware, or Services.

No terms or conditions submitted by Licensee shall modify, supersede, supplement, or replace this Agreement or any Layered IT-issued quote, invoice, order form, statement of work, billing statement, or other ordering document unless expressly accepted in writing by an authorized representative of Layered IT.

Any purchase order, procurement form, vendor onboarding form, payment portal term, invoice instruction, or similar customer-issued document shall be used for administrative convenience only and shall not modify this Agreement or impose additional obligations on Layered IT.

Payment of any Layered IT invoice, continued use of Services, approval of work, acceptance of deliverables, or failure to timely dispute an invoice confirms Licensee’s acceptance of the applicable Services, Fees, billing terms, and this Agreement.

2. Definitions

“Confidential Information” means information that is designated as confidential or that reasonably should be understood to be confidential based on the nature of the information or circumstances of disclosure. Confidential Information includes pricing, rates, discounts, proposals, quotes, project documentation, technical documentation, security information, credentials, non-public business information, and proprietary information of either party.

“Customer Data” means data, files, records, communications, credentials, configurations, systems information, business information, and other materials provided by or on behalf of Licensee, or accessed by Layered IT in connection with the Services.

“Documentation” means documentation, instructions, specifications, diagrams, work notes, user guides, technical information, quotes, invoices, statements of work, order forms, billing statements, service descriptions, and related materials provided by Layered IT.

“Fees” means all amounts charged for Services, including subscription fees, license fees, managed service fees, support fees, project fees, professional service fees, hardware fees, pass-through vendor costs, third-party software costs, and other charges listed in an applicable quote, invoice, order form, statement of work, billing statement, service description, or other Layered IT-issued ordering document.

“Order Form” means any Layered IT-issued quote, invoice, order form, statement of work, billing statement, online order, written approval, email approval, service description, or other ordering document describing Services, pricing, quantities, service periods, rates, discounts, or payment terms.

“Professional Services” means consulting, implementation, configuration, troubleshooting, development, engineering, project management, documentation, training, technical support, after-hours support, software development, custom coding, custom applications, custom app development, workflow automation, data conversion, data extraction, data import/export, platform implementation, or other labor-based services performed by Layered IT.

“Third-Party Materials” means software, hardware, cloud services, vendor subscriptions, platforms, systems, tools, APIs, firmware, licenses, or services provided by third parties and resold, configured, managed, supported, or otherwise used by Layered IT in connection with the Services.

“User” means any employee, contractor, consultant, agent, customer, or other individual authorized by Licensee to access or use the Services.

3. Services; License Grant

Subject to this Agreement, payment of all applicable Fees, and any restrictions in the applicable Order Form, Layered IT grants Licensee a limited, non-exclusive, non-transferable, revocable, non-sublicensable right to access and use the applicable Software or Services during the applicable service term solely for Licensee’s internal business purposes.

Licensee may not exceed the number of users, devices, mailboxes, endpoints, licenses, storage limits, service quantities, or other usage metrics listed in the applicable Order Form or invoice.

Unless expressly authorized by Layered IT, Licensee may not use the Services for resale, sublicensing, service bureau use, timesharing, managed service resale, or use by third parties.

4. Restrictions

Licensee shall not, and shall not allow any User or third party to:

  1. Copy, modify, reverse engineer, decompile, disassemble, or attempt to discover source code or underlying technology of any Software;
  2. Remove or obscure proprietary notices;
  3. Sell, resell, sublicense, lease, lend, assign, distribute, or transfer the Services;
  4. Use the Services in violation of applicable law;
  5. Circumvent licensing, access controls, usage tracking, security controls, or technical limitations;
  6. Use the Services to transmit malware, unlawful content, infringing content, or harmful code;
  7. Interfere with or disrupt Layered IT systems, vendor systems, or third-party systems;
  8. Use the Services outside the scope authorized by the applicable Order Form, quote, invoice, statement of work, or other Layered IT-issued ordering document.

5. Customer Responsibilities

Licensee is responsible for:

  1. The accuracy, legality, integrity, and quality of Customer Data;
  2. Obtaining all rights and consents necessary for Layered IT to access, process, transmit, support, or manage Customer Data and systems;
  3. Maintaining appropriate backups unless backup services are expressly purchased from Layered IT;
  4. Maintaining appropriate internal security policies and user controls;
  5. Ensuring Users comply with this Agreement;
  6. Promptly notifying Layered IT of unauthorized access, suspected compromise, billing errors, system changes, or service-impacting issues;
  7. Providing timely access, credentials, approvals, information, and cooperation necessary for Layered IT to perform the Services;
  8. Reviewing invoices, quotes, reports, work summaries, recommendations, and service notices in a timely manner.

Layered IT is not responsible for delays, errors, security issues, failed deliverables, increased project hours, or additional costs caused by inaccurate information, lack of access, delayed approvals, undocumented systems, unsupported systems, third-party vendor issues, customer-side changes, or failure by Licensee to cooperate.

6. Customer Data

Licensee retains ownership of Customer Data. Licensee grants Layered IT a non-exclusive, worldwide, royalty-free license to host, access, copy, transmit, view, process, back up, restore, cache, analyze, and use Customer Data as reasonably necessary to provide, secure, support, bill, improve, troubleshoot, maintain, update, or administer the Services.

Layered IT will use commercially reasonable efforts to protect Customer Data within the scope of the Services purchased. However, unless expressly stated in a signed agreement, Layered IT does not guarantee that Customer Data will be immune from loss, corruption, unauthorized access, ransomware, malware, accidental deletion, third-party compromise, vendor outage, or system failure.

Licensee acknowledges that no information technology, cybersecurity, backup, monitoring, or cloud service can guarantee absolute protection against every risk.

7. Third-Party Services and Vendor Products

The Services may include Third-Party Materials, including but not limited to Microsoft 365, cybersecurity tools, endpoint protection, backup services, remote monitoring tools, cloud services, hosting services, software subscriptions, hardware, licensing, and vendor platforms.

Licensee agrees that Third-Party Materials are subject to the applicable third-party provider’s terms, conditions, limitations, service levels, warranty disclaimers, and support policies.

Layered IT is not responsible for third-party vendor outages, price increases, product changes, licensing changes, service discontinuation, API changes, security failures, delays, defects, or limitations outside Layered IT’s reasonable control.

Vendor subscription, software, licensing, hardware, and pass-through service fees may have limited or no margin and may not be discountable unless expressly stated by Layered IT.

8. Support and Managed IT Services

Layered IT will use commercially reasonable efforts to provide support and managed IT services described in the applicable Order Form, invoice, quote, billing statement, service description, or other Layered IT-issued ordering document.

Unless expressly stated otherwise in a signed written agreement, flat-rate support, managed IT services, or recurring support plans do not include unlimited project work, software development, custom coding, custom applications, custom app development, workflow automation, data conversion, data extraction, data import/export, platform implementation, system redesign, major system upgrades, after-hours work, emergency response, cybersecurity incident response, compliance work, litigation support, forensic investigation, hardware replacement, vendor remediation, or work outside the ordinary scope of support.

Layered IT may modify, suspend, or discontinue support for unsupported, end-of-life, insecure, misconfigured, undocumented, or high-risk systems.

9. Professional Services; Project Work

Professional Services may be billed hourly, fixed fee, milestone-based, recurring, or as otherwise stated in the applicable Order Form, invoice, quote, billing statement, service description, written communication, or other Layered IT-issued ordering document.

Unless expressly stated in a signed fixed-fee statement of work, all project work, consulting, implementation, configuration, troubleshooting, software development, custom coding, custom applications, custom app development, workflow automation, data conversion, data extraction, data import/export, platform implementation, engineering, project management, documentation, training, and other professional services are billable on a time-and-materials basis at Layered IT’s then-current rates.

Any estimate of hours, cost, timing, delivery date, or effort is a good-faith estimate only and is not a fixed fee, cap, guarantee, or not-to-exceed amount unless expressly stated in a signed written agreement by Layered IT.

Professional Services may require additional hours due to undocumented systems, vendor limitations, legacy software, damaged data, missing credentials, incomplete information, third-party delays, customer-side changes, changed scope, unsupported systems, or technical issues discovered during the work.

Licensee agrees to pay for Professional Services performed at Licensee’s request, with Licensee’s knowledge, in response to Licensee’s issue, or reasonably necessary to complete requested work.

10. Fees and Payment

Licensee shall pay all Fees in accordance with the applicable quote, invoice, order form, statement of work, billing statement, service description, or other Layered IT-issued ordering document.

Except as otherwise expressly stated by Layered IT:

  1. Fees are based on Services purchased, not actual usage;
  2. Payment obligations are non-cancelable and non-refundable;
  3. Quantities purchased may not be decreased during the applicable subscription term;
  4. Subscription, license, security, backup, cloud, vendor, and pass-through service fees are billable for the full applicable service period;
  5. Project and Professional Services are billable based on time incurred and work performed;
  6. Discounts must be expressly stated by Layered IT and may be conditioned on timely payment, annual prepayment, bundled services, minimum terms, or other requirements.

Payments more than thirty (30) days overdue may bear a late payment charge of 2.0% per month, or the maximum rate permitted by law, whichever is lower.

Licensee is responsible for all taxes, fees, duties, shipping, licensing, vendor charges, payment processing charges, and incidental expenses related to the Services, excluding taxes based solely on Layered IT’s income.

11. Invoice Review; Billing Disputes

Licensee must notify Layered IT in writing of any billing dispute, invoice error, or objection within thirty (30) days after receipt of the applicable invoice.

If Licensee does not provide written notice within that period, the invoice shall be deemed accepted, and Licensee waives any claim, allegation, dispute, offset, or objection related to that invoice, except to the extent prohibited by law.

Payment of an invoice, continued use of Services, approval of work, acceptance of deliverables, or failure to timely dispute an invoice confirms Licensee’s acceptance of the applicable Services, Fees, billing terms, and this Agreement.

Licensee may not withhold payment for undisputed amounts. Any billing dispute must identify the specific invoice, specific line item, disputed amount, and basis for the dispute.

12. Subscription Term; Renewal

The term for each subscription, license, managed service, vendor service, recurring service, or other ongoing Service shall be stated in the applicable Order Form, invoice, quote, billing statement, service description, or other Layered IT-issued ordering document.

If no termination date or service term is stated in the applicable Order Form, invoice, quote, billing statement, service description, or other Layered IT-issued ordering document, the initial term shall be deemed to be three (3) years beginning on the Effective Date or, if later, the date of the latest paid invoice for the applicable Services.

Unless otherwise stated in the applicable Order Form, invoice, quote, billing statement, service description, or other Layered IT-issued ordering document, recurring Services shall automatically renew after the initial term for successive one-year renewal terms.

The renewal term shall begin on the day following the expiration of the then-current term, or, if applicable service dates are not clearly stated, on the date of the latest paid invoice for the applicable Services.

Either party may elect not to renew by providing written notice of non-renewal at least ninety (90) days before the end of the then-current term.

Layered IT may adjust pricing for renewal terms due to vendor cost increases, labor rate changes, service scope changes, inflation, increased usage, licensing changes, or other reasonable business factors. Continued use of Services, payment of an invoice, or failure to timely object to renewal pricing confirms acceptance of the applicable renewal term, pricing, and billing terms.

13. Suspension; Termination

Layered IT may suspend or terminate Services if Licensee:

  1. Fails to pay amounts when due;
  2. Breaches this Agreement;
  3. Exceeds licensed usage;
  4. Uses the Services unlawfully or outside the authorized scope;
  5. Creates risk to Layered IT, its vendors, its systems, other customers, or third parties;
  6. Fails to provide required access, information, cooperation, or approvals;
  7. Becomes insolvent, ceases operations, or indicates inability or unwillingness to pay.

Upon termination, Licensee shall immediately stop using the applicable Services and pay all outstanding amounts due.

Termination does not relieve Licensee of payment obligations incurred before termination, including subscription commitments, vendor commitments, project hours, professional services, hardware charges, and pass-through costs.

14. Confidentiality

Each party shall protect the other party’s Confidential Information using reasonable care and shall not use or disclose Confidential Information except as necessary to perform under this Agreement, comply with law, enforce rights, obtain professional advice, or as otherwise permitted in writing.

The terms of this Agreement, pricing, discounts, quotes, invoices, technical documentation, system architecture, credentials, work product, and project materials constitute Confidential Information.

Layered IT may identify Licensee as a customer unless Licensee provides written notice requesting otherwise.

15. Proprietary Rights; Work Product

Layered IT and its licensors retain all rights, title, and interest in and to Layered IT tools, scripts, templates, automation, processes, documentation, know-how, methodologies, software, configurations, troubleshooting procedures, technical designs, and other proprietary materials.

Unless expressly stated in a signed agreement, Professional Services do not transfer ownership of Layered IT’s pre-existing intellectual property, tools, scripts, templates, automation, reusable code, documentation, methodologies, software, custom coding frameworks, custom application frameworks, workflow automation frameworks, or other reusable technical materials.

Upon full payment, Licensee receives a limited right to use deliverables created specifically for Licensee for Licensee’s internal business purposes.

16. Monitoring; Audit

Licensee understands that certain Software and Services may track usage, license counts, devices, users, endpoints, storage, access, events, logs, or other operational data.

Licensee consents to such monitoring and agrees not to circumvent, disable, interfere with, or misrepresent usage or licensing data.

Layered IT may audit Licensee’s usage of Services to verify compliance with this Agreement and applicable licensing requirements. If an audit reveals underpayment, unauthorized use, or usage beyond purchased quantities, Licensee shall promptly pay all additional amounts due.

17. Limited Warranty and Disclaimer

Layered IT will perform Services in a commercially reasonable manner. Except as expressly stated in this Agreement, the Services, Software, Hardware, Third-Party Materials, and Professional Services are provided “as is” and “as available.”

Layered IT does not warrant that the Services will be uninterrupted, error-free, completely secure, free from vulnerabilities, immune from malware or ransomware, compatible with all systems, or capable of preventing every security incident, data loss, outage, or unauthorized access event.

Layered IT does not warrant results of use, business outcomes, regulatory outcomes, vendor outcomes, migration outcomes, project outcomes, implementation outcomes, custom coding outcomes, custom application outcomes, automation outcomes, or financial results.

18. Limitation of Liability

To the fullest extent permitted by law, Layered IT and its suppliers, vendors, contractors, and licensors shall not be liable for any indirect, incidental, consequential, special, exemplary, punitive, or similar damages, including loss of profits, loss of revenue, loss of use, loss of data, business interruption, cost of substitute services, reputational harm, or system downtime.

Except for bodily injury caused by Layered IT’s gross negligence or willful misconduct, Layered IT’s total aggregate liability arising out of or related to this Agreement shall not exceed the Fees paid by Licensee to Layered IT for the affected Services during the six (6) months preceding the event giving rise to the claim.

The limitations in this section apply regardless of the legal theory asserted, including contract, tort, negligence, strict liability, warranty, indemnity, or otherwise, even if Layered IT has been advised of the possibility of such damages.

19. Indemnification

Licensee agrees to defend, indemnify, and hold harmless Layered IT and its officers, employees, contractors, vendors, affiliates, and representatives from and against any claims, liabilities, damages, losses, costs, and expenses, including reasonable attorneys’ fees, arising out of or related to:

  1. Licensee’s breach of this Agreement;
  2. Licensee’s misuse of the Services;
  3. Customer Data;
  4. Licensee’s violation of law;
  5. Licensee’s failure to obtain necessary rights, permissions, or consents;
  6. Customer-issued terms or procurement requirements not accepted by Layered IT;
  7. Third-party claims arising from Licensee’s systems, users, data, business operations, or instructions.

Layered IT shall not be responsible for any settlement it does not approve in writing.

20. Compliance With Laws

Licensee shall comply with all applicable laws, rules, and regulations in connection with the Services.

Licensee shall not use the Services for unlawful purposes, export violations, sanctioned-party transactions, unauthorized access, infringement, fraud, harassment, data misuse, or any activity that violates applicable law or third-party rights.

Layered IT may suspend or terminate Services where continued performance may violate law, create security risk, or expose Layered IT to liability.

21. Notices

Layered IT may provide notice by email to Licensee’s email address on file, through an invoice, through a customer portal, or by written communication to Licensee’s address on file.

Licensee shall provide legal notices to Layered IT by confirmed mail delivery to:

Layered ECM dba Layered IT 1809 S Street, Suite 101-265 Sacramento, California 95811 Attn: Trent Jones

Email notices are deemed given twelve (12) hours after sending. Mailed notices are deemed given forty-eight (48) hours after mailing.

22. Governing Law; Dispute Resolution; Collection Costs

This Agreement shall be governed by the laws of the State of California and applicable United States federal law, without regard to conflict-of-law rules.

Any dispute, claim, or cause of action arising out of or related to this Agreement, the Services, any invoice, any quote, any Order Form, any statement of work, any payment obligation, or any billing dispute shall be resolved through binding arbitration administered by the American Arbitration Association in California, unless otherwise required by law.

Any claim by either party must be brought no later than two (2) years after it accrues.

If Layered IT commences arbitration, legal action, collection activity, or other enforcement action to collect unpaid Fees, recover amounts owed, defend invoice validity, or enforce this Agreement, Layered IT shall be entitled to recover its reasonable attorneys’ fees, collection costs, arbitration fees, court costs, expert fees, and other expenses to the fullest extent permitted by law.

23. Force Majeure

Neither party shall be liable for delay or failure to perform, except for payment obligations, caused by events beyond its reasonable control, including acts of God, natural disasters, fires, floods, war, terrorism, labor disputes, utility failures, internet outages, vendor outages, cyberattacks, malware, ransomware, government action, supply chain issues, or other similar events.

24. Entire Agreement; Severability

This Agreement, together with the applicable Layered IT-issued quote, invoice, order form, statement of work, billing statement, service description, or other ordering document, constitutes the entire agreement between Layered IT and Licensee regarding the Services and supersedes all prior or contemporaneous communications, proposals, representations, understandings, or agreements regarding the same subject matter.

If any provision of this Agreement is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.

This Agreement may not be modified, supplemented, or waived except in writing signed by an authorized representative of Layered IT.

25. Waiver

Failure by either party to enforce any provision of this Agreement shall not constitute a waiver of that provision or any other provision.

26. Assignment

Licensee may not assign this Agreement or any rights or obligations under it without Layered IT’s prior written consent. Any attempted assignment without consent shall be void.

Layered IT may assign this Agreement in whole or in part, including in connection with a merger, acquisition, corporate reorganization, sale of assets, change of control, subcontracting arrangement, or transfer of business operations.

27. Survival

Sections concerning payment obligations, invoice disputes, confidentiality, proprietary rights, limitation of liability, indemnification, governing law, dispute resolution, collection costs, and any other provisions that by their nature should survive shall survive termination or expiration of this Agreement.