DOC1623880169.pdf

University of Nebraska Non-Competitive Purchase Documentation

Board of Regents Policy 6.2.1.10 (b) provides that “except as otherwise provided in this purchasing policy, any purchase committing the University to an expenditure of $150,000 or more shall be made to the lowest responsible bidder.” Board of Regents Policy 6.2.1.7 provides that “If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources. There are exceptions allowed to this policy in 6.2.1.10 (f), which explains when competitive bidding is not required.

This form is designed to assist in complying with policy. It is to be used for purchases of $150,000 or more that are not competitively bid or small purchases where quotations are not obtained It must be signed by the person seeking the non-competitive purchase, as well as the funding approver and returned to your campus procurement office or the Office of the Vice President for Business and Finance.

INSTRUCTIONS for Completion of this Form:

Please check the category below for which your particular transaction qualifies as a non-competitive purchase. The column § (subsection) refers to Board Policy 6.2.1.10 (f). Incomplete forms will be returned.

§ EXCEPTION TO COMPETITIVE PURCHASE

1. Purchase of unique or non-competitive articles or services (e.g., “Sole Source”). Without limiting the generality of the foregoing sentence, examples of unique or non-competitive articles and services are public utility services, regulated central office telephone services, books, pamphlets and periodicals, and specially designed business, research or scientific equipment and related software. This category of purchase shall be accompanied by a written justification from the requesting unit and must have the prior written approval by the principal business officer or their designee.

2. Contracts for professional services; provided, however, that any contract for architectural, engineering, land surveying or landscape architectural services shall be made in accordance with applicable law and Board of Regents policies requiring competitive negotiations for such services. “Professional Service” means (a) any type of service which requires a license or other legal authorization as a condition precedent to the rendering of the service, or (b) any other type of service commonly recognized as a professional service, including, but not limited to, accounting and auditing, actuarial, legal, personnel, financial, computing, management, marketing, educational program planning or evaluation, facilities planning or evaluation, insurance and risk management, or travel agency services. (See RP-6.2.1(4)(h))

3. Purchases necessary in emergency situations.

4. Contracts for maintenance or servicing of equipment with the manufacturer of the equipment or the manufacturer's authorized service agent, where in the judgment of the principal business officer such maintenance or service can be most effectively performed by the manufacturer or its authorized service agent.

5. Contracts on capital construction projects (a) for the services of a construction manager who may or may not at the discretion of the University also be engaged on the project as the general contractor or (b) for the services of a design/build contractor who will be engaged on the project to furnish design services by a qualified architect or engineer and to provide general contractor services; provided, the contracts shall be awarded in accordance with RP-6.3.7.

Additional Required Information:

Supplier Name: Amount of Purchase:

Description Supporting Non-Competitive Purchase Determination:

Check HERE if additional supporting documentation attached In accordance with Board of Regents Policy 6.2.1.16, Purchases Involving University Personnel, by signing below, you hereby affirm that you have no conflict of interest in the selection of this supplier, nor will you receive personal or financial benefit from this purchase.

Submitted By (Procurement Services): Approved By:

Signature Date

Name (Printed): _________________________________ _____

Signature Date

Name (Printed): ______________________________________

Cue Audio $13,000

Bailey Schlotfeld

Brandon Meier

See attached.

06/19/2025 | 14:18 CDT

06/20/2025 | 08:26 CDT

Shanon Wright

06/24/25 | 09:15 CDT

Doug Carlson

06/26/25 | 13:45 CDT

Procurement, Attached is a quote for Cue Audio ($13,000). Cue Audio is a fan interacting software that is used for selfie cam, trivia, and light shows that our produced during Husker Football &

Volleyball Games. Cue Audio is an industry leader in fan interaction and marketing and has been used by Nebraska athletics for years. Cue Audio has an SDK that interacts with our current HuskerVision video boards and is required to work with our stadium video boards.

Procure-to-Pay

3835 Holdrege Street | Lincoln, NE 68583-0742 | 402.472.2126 nebraska.edu/p2p

University of Nebraska Contract Summary

CONTRACTOR/COMPANY INFORMATION

Supplier Cue Audio LLC Contact Chris Saccoccia

Sourcing Agent Alex Caruso Email chris@connectwithcue.com

REQUESTING DEPARTMENT

Participating Campuses

UNL

Administrative Unit/Dept.

Athletics

Department Contact Blake Chramosta – bchramosta@huskers.com

CONTRACT DESCRIPTION/INFORMATION

Contract Summary (brief description and/ or event name)

Cue Audio is our Volleyball Light Show and marketing tool to be used in the FY26 season.

Contract Document Document Amt Total Amt Start Date End Date Notes

CW33337 $13,000.00 8/1/2025 12/31/2025

COMPETITION/BID INFORMATION

Bid Number N/A

Competition NCPD Approved

Contract Information

N/A

INTERNAL USE ONLY

CW33337

Services

Item & Description Quantity Unit Price Total

Light Show Volleyball Only- Synchronized mobile light show, powered by audio triggers.

1 $12,000.00 / year

$12,000.00 / year for 1 year

Custom Track custom programming of track

3 $750.00 / year $0.00 / year after 100% discount for 1 year

Annual SDK Update CUE engagement SDK Build

1 $1,000.00 $1,000.00

Lincoln, Nebraska 68588 United States

Reference: 20250606-183427221 chris@connectwithcue.com

(402) 472-4644 mailto:chris@connectwithcue.com mailto:bschlotfeld@huskers.com

Total $13,000.00

Total contract value $13,000.00

This Service Order (“SO”) is entered into as of the date signed below (the “Effective Date”) by and between CUE Audio, Inc. (“CUE Audio”) and the customer named above (the “Customer”).

1. SERVICES. CUE Audio agrees to provide the services in the above table (the "Services") to Customer as more fully described in the Terms of Service from the agreement previously executed on August 14, 2024 (the "Previous Agreement").

2. PRICING AND PAYMENT. Customer shall pay the fees in the Services table above. Access to the Services is conditioned on receipt of full payment as set forth in the Terms of Service or per the Payment Schedule in this SO, if applicable. All fees and other amounts paid for the Services are non-refundable.

3. TERM. Except as otherwise set forth below, the initial term for use of the Services shall be the period of August 1, 2025 - December 31, 2025 (the “Initial Term”). The parties may agree on additional renewal terms (“Renewal Term”). The Initial Term and any Renewal Terms shall collectively be referred to as the “Term.”

4. TERMS AND CONDITIONS. This SO, and the Services provided, are governed by the Previous Agreement.

All capitalized terms in this SO shall have the meaning ascribed to them in the Previous Agreement, unless otherwise defined in this SO.

5. COMPLETE AGREEMENT, AMENDMENTS. This SO and the Previous Agreement (collectively the “Agreement”) constitute the complete and exclusive statement of agreement among the parties with respect to the subject matter of the Agreement and replace and supersede all prior and contemporaneous written and oral agreements, negotiations, discussions or statements by and among the parties. The Agreement may be amended only by a subsequent writing that specifically refers to the Agreement and that is signed by both parties. No other act, document, usage, or custom, including any printed terms and conditions contained in any purchase order, shall be deemed to amend the Agreement.

Signature

Signature Date

Printed name

Countersignature

Countersignature Date

Printed name

Questions? Contact me

Chris Saccoccia "Head of Global Events" chris@connectwithcue.com

CUE Audio 157 S Main Street PO Box 2770 Albany, TX 76430 United States

06/24/25 | 10:16 CDT

Chris Saccoccia

06/26/25 | 13:45 CDT

mailto:chris@connectwithcue.com

Non-Competitive Purchase Documentation

Board of Regents Policy 6.2.1.10 (b) provides that “except as otherwise provided in this purchasing policy, any purchase committing the University to an expenditure of $150,000 or more shall be made to the lowest responsible bidder.” Board of Regents Policy 6.2.1.7 provides that “If small purchase procedures are used, price or rate quotations must be obtained from an adequate number of qualified sources. There are exceptions allowed to this policy in 6.2.1.10 (f), which explains when competitive bidding is not required.

This form is designed to assist in complying with policy. It is to be used for purchases of $150,000 or more that are not competitively bid or small purchases where quotations are not obtained. It must be signed by the person seeking the non-competitive purchase, as well as the funding approver and returned to your campus procurement office or the Office of the Vice President for Business and Finance.

INSTRUCTIONS for Completion of this Form:

Please check the category below for which your particular transaction qualifies as a non-competitive purchase. The column § (subsection) refers to Board Policy 6.2.1.10 (f). Incomplete forms will be returned.

§ EXCEPTION TO COMPETITIVE PURCHASE

1. Purchase of unique or non-competitive articles or services (e.g., “Sole Source”). Without limiting the generality of the foregoing sentence, examples of unique or non-competitive articles and services are public utility services, regulated central office telephone services, books, pamphlets and periodicals, and specially designed business, research or scientific equipment and related software. This category of purchase shall be accompanied by a written justification from the requesting unit and must have the prior written approval by the principal business officer or their designee.

2. Contracts for professional services; provided, however, that any contract for architectural, engineering, land surveying or landscape architectural services shall be made in accordance with applicable law and Board of Regents policies requiring competitive negotiations for such services. “Professional Service” means (a) any type of service which requires a license or other legal authorization as a condition precedent to the rendering of the service, or (b) any other type of service commonly recognized as a professional service, including, but not limited to, accounting and auditing, actuarial, legal, personnel, financial, computing, management, marketing, educational program planning or evaluation, facilities planning or evaluation, insurance and risk management, or travel agency services. (See RP-6.2.1(4)(h))

3. Purchases necessary in emergency situations.

4. Contracts for maintenance or servicing of equipment with the manufacturer of the equipment or the manufacturer's authorized service agent, where in the judgment of the principal business officer such maintenance or service can be most effectively performed by the manufacturer or its authorized service agent.

5. Contracts on capital construction projects (a) for the services of a construction manager who may or may not at the discretion of the University also be engaged on the project as the general contractor or (b) for the services of a design/build contractor who will be engaged on the project to furnish design services by a qualified architect or engineer and to provide general contractor services; provided, the contracts shall be awarded in accordance with RP-6.3.7.

Additional Required Information:

Supplier Name: Amount of Purchase:

Description Supporting Non-Competitive Purchase Determination:

Check HERE if additional supporting documentation attached In accordance with Board of Regents Policy 6.2.1.16, Purchases Involving University Personnel, by signing below, you hereby affirm that you have no conflict of interest in the selection of this supplier, nor will you receive personal or financial benefit from this purchase.

Requestor’s Signature Requestor’s Name (Printed) Date

Funding Approver's Signature Funding Approver’s Name (Printed) Date

Submitted By (Procurement Services): Approved By:

Signature Date

Name (Printed): _________________________________ _____

Signature Date

Name (Printed): ______________________________________

Cue Audio $18,000

Bailey Schlotfeld

Brandon Meier

See attached.

07/18/2024 | 07:43 CDT

07/19/2024 | 09:59 CDT

Shanon Wright

08/14/24 | 13:55 CDT 08/14/24 | 15:35 CDT

Procurement, Attached is a quote for Cue Audio ($18,000). Cue Audio is a fan interacting software that is used for selfie cam, trivia, and light shows that our produced during Husker Football &

Volleyball Games. Cue Audio is an industry leader in fan interaction and marketing and has been used by Nebraska athletics for years. Cue Audio has an SDK that interacts with our current HuskerVision video boards and is required to work with our stadium video boards.

nebraska.edu/p2p

University of Nebraska Contract Summary

CONTRACTOR/COMPANY INFORMATION

Supplier Cue Audio LLC Contact Chris Saccoccia

Email chris@cueaudio.com

REQUESTING DEPARTMENT

Participating Campuses

UNL

Administrative Unit/Dept.

Athletics

Primary Contact Name

Blake Chramosta – Business Office

Primary Contact Email bchramosta@huskers.com

CONTRACT DESCRIPTION/INFORMATION

Contract Summary (brief description and/ or event name)

Cue Audio is a fan interacting software that is used for selfie cam, trivia, and light shows that are produced during Husker football games as well as Husker Volleyball games.

Purchase Category IT/Software

Total Amount of Spend

$18,000.00 Start Date Upon Execution

End Date 5/31/2025 12:00

AM

BID INFORMATION

Bid Number NA

Competitive Review Findings

NCPD Approved

Contract Information

Manual Routing Form

University of Nebraska - 2024 - 2025 Deal Sec- Based Show University of Nebraska

One Memorial Stadium Drive

Lincoln, Nebraska 68588

United States

Bailey Schlotfeld bschlotfeld@huskers.com

(402) 472-4644

Reference: 20240112-155809323

Service Order Created: January 12, 2024

Service Order expires: August 31, 2024

Service Order created by: Chris Saccoccia

"Head of Global Events" chris@cueaudio.com

Services

Item & Description Quantity Unit Price Total

Light Show 1 $12,000.00 $12,000.00

Annual SDK Update 1 $1,000.00 $0.00

Custom Track 2 $750.00 $0.00

Section Based Light Show 1 $5,000.00 $5,000.00

Trivia Mania 1 $5,000.00 $1,000.00 for 6 months

CUE engagement SDK Update after 100% discount for 6 months custom programming of track after $1,500.00 discount for 6 months for 6 months

Customizable trivia with live video display output and on-demand play modes.

after $4,000.00 discount

Total $18,000.00

This Service Order (“SO”) is entered into as of the date signed below (the “Effective Date”) by and between

1. SERVICES. CUE Audio agrees to provide the services in the above table (the "Services") to Customer as more fully described in the Terms of Service from the agreement previously executed on August 25, 2023 (the

"Previous Agreement").

2. PRICING AND PAYMENT. Customer shall pay the fees in the Services table above. Access to the Services is conditioned on receipt of full payment as set forth in the Terms of Service or per the Payment Schedule in this SO, if applicable. All fees and other amounts paid for the Services are non-refundable.

3. TERM. Except as otherwise set forth below, the initial term for use of the Services shall be the period of

August 1, 2024 - May 31, 2025 (the “Initial Term”). The parties may agree on additional renewal terms

(“Renewal Term”). The Initial Term and any Renewal Terms shall collectively be referred to as the “Term.”

4. TERMS AND CONDITIONS. This SO, and the Services provided, are governed by the Previous Agreement.

All capitalized terms in this SO shall have the meaning ascribed to them in the Previous Agreement, unless otherwise defined in this SO.

5. COMPLETE AGREEMENT, AMENDMENTS. This SO and the Previous Agreement (collectively the

“Agreement”) constitute the complete and exclusive statement of agreement among the parties with respect to the subject matter of the Agreement and replace and supersede all prior and contemporaneous written and oral agreements, negotiations, discussions or statements by and among the parties. The

Agreement may be amended only by a subsequent writing that specifically refers to the Agreement and that is signed by both parties. No other act, document, usage, or custom, including any printed terms and conditions contained in any purchase order, shall be deemed to amend the Agreement.

Signature

Signature Date

Printed name

Countersignature

Countersignature Date

Printed name

Questions? Contact me

Chris Saccoccia

"Head of Global Events" chris@cueaudio.com

CUE Audio

157 S Main Street

PO Box 2770

Albany, TX 76430

United States

Chris Saccoccia

08/14/24 | 13:57 CDT

08/14/24 | 15:35 CDT

nebraska.edu/p2p

University of Nebraska Contract Summary

CONTRACTOR/COMPANY INFORMATION

Supplier CUE AUDIO LLC Contact Chris Saccoccia

Email chris@cueaudio.com

REQUESTING DEPARTMENT

Participating Campuses

UNL

Administrative Unit/Dept.

Athletics

Primary Contact Name

Blake Chramosta - Business Office

Primary Contact Email bchramosta@huskers.com

CONTRACT DESCRIPTION/INFORMATION

Contract Summary (brief description and/ or event name)

Cue Audio is a fan interacting software that is used for selfie cam, trivia, and light shows that our produced during Husker Football Games.

Purchase Category IT / Software

Total Amount of Spend

12,000.00 USD Start Date Upon Execution

End Date 11/30/2023 11:59

PM

BID INFORMATION

Bid Number N/A Competitive Review Findings

Non-Competitive Purchase Approved

Contract Information Cue Audio is a fan interacting software that is used for selfie cam, trivia, and light shows that our produced during Husker Football Games.

PRO-IT-002577

CUE AUDIO, INC.

TERMS OF SERVICE

Last Modified: February 14, 2023

These Terms of Service (the “Terms of Service” or “Agreement”) set forth the terms and conditions governing the relationship between CUE Audio, Inc. (“CUE”) and the customer identified in the applicable Customer Order, as defined below, (“Customer” or “you”) relating to the services provided by CUE through the CUE Platform or otherwise (the “Services”). CUE and Customer are individually referred to as a “Party” and collectively as the “Parties.”

1. Services.

1.1 Scope of Services. Subject to the terms and conditions of this Agreement, CUE shall provide the CUE Platform services, or other CUE development, customization, implementation and support services, agreed to by the Parties, or as set forth in a Services Order (“SO”), Statement of Work (“SOW”) or other agreement, as further described and defined in Schedule A (the “Services”).

1.2 Platform Terms of Use and Privacy Policy. By entering into this Agreement, Customer agrees to the CUE Platform Terms of Use located at www.cueaudio.com/tou (“Terms of Use”), and the CUE Privacy Policy located at www.cueaudio.com/privacy (“Privacy Policy”), which are incorporated herein by reference. Capitalized terms not defined in this Agreement shall have the meaning set forth in the Terms of Use and Privacy Policy. To the extent the Terms of Use or Privacy Policy are inconsistent with the Terms of Service, the Terms of Service shall control. Customer shall make sure that all users of the Services, including all users of the CUE Apps made available by Customer, agree to the Terms of Use and Privacy Policy.

1.3 Changes to Services. CUE reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of CUE’s Services to its customers, the competitive strength of or market for CUE’s Services or the Services’ cost efficiency or performance; or (b) to comply with applicable law.

1.4 Savings Clause. CUE’s failure to perform, or delay in performing, its responsibilities under this Agreement (including any Customer Order) shall be excused if and to the extent that CUE demonstrates that such non-performance or delay is caused by: (i) the failure of Customer or Customer personnel to perform their obligations under this Agreement; (ii) any act performed or omitted by CUE or CUE personnel at the request of Customer; (iii) any act performed by Customer or Customer personnel to the extent that such act was not otherwise agreed by the Parties; or (iv) system failure caused by a malicious third-party technical attack causing a sudden, unplanned increase in network activity above the threshold capacity of CUE systems.

1.5 Third Party Services. CUE may make certain third-party products or services available to Customer, or may make its Services available to be used by Customer within certain third-party products or services (all third-party products and services collectively referred to as “Third-Party Services”), for which CUE makes no representations, warranties or indemnities and will have no other liability hereunder, notwithstanding anything contained in this Agreement. Customer’s exclusive remedy with regard to Third- Party Services shall be against the Third-Party.

2. Access and Use, Customer Restrictions.

2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, CUE hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the term of the applicable Customer Order solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. “Authorized User” means Customer’s employees, consultants, contractors, and https://www.cueaudio.com/tou https://www.cueaudio.com/privacy agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased.

2.2 Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services, the CUE Platform, or third-party materials, whether expressly, by implication, estoppel or otherwise. All right, title and interest in and to the Services, the CUE Platform, and third-party materials are and will remain with CUE and the respective rights holders in the third-party materials.

2.3 Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services except as expressly permitted by this Agreement and, in the case of third-party materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

(a) copy, modify or create derivative works or improvements of the Services;

(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;

(c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part;

(d) bypass or breach any security device or protection used by the Services or access or use the Services other than by an Authorized User through the use of his or her own then valid access credentials;

(e) input, upload, transmit or otherwise provide to or through the Services or CUE Platform, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;

(f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, the CUE Platform or CUE’s provision of services to any third party, in whole or in part;

(g) remove, delete, alter or obscure any trademarks, specifications, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services, including any copy thereof;

(h) access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;

(i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

(j) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third-party privacy rights;

(k) send or store material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;

(l) attempt to gain unauthorized access to the Service or its related systems or networks;

(m) use the Services in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries);

(n) use the Services for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;

(o) engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, the CUE Platform, or which, as determined by CUE, may harm CUE or users of the CUE Platform or Services or expose them to liability;

(p) use any device, software or routine that interferes with the proper working of the Services or the CUE Platform;

(q) access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to CUE’s detriment or commercial disadvantage; or

(r) otherwise access or use the Services beyond the scope of the authorization granted under this Agreement.

2.4 Service Management. Customer shall, throughout the Term, maintain within its organization a service manager to serve as the primary point of contact for day-to-day communications, consultation and decision-making regarding the Services. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement.

2.5 Customer Obligations. In addition to any other provision of this Agreement, Customer shall: (i) have responsibility for the accuracy, quality, legality, reliability, and appropriateness of all Customer Materials (as defined in Section 6.2); (ii) timely supply CUE with all necessary information and resources including, without limitation, all files, materials, data necessary for the Services, and access to information, personnel, systems and facilities, reasonably requested by CUE (and CUE shall be entitled to rely upon any instructions, guidelines or information provided to CUE by Customer); (iii) use commercially reasonable efforts to prevent unauthorized control or tampering or any other unauthorized access to, or use of, the Services; (iv) comply with all applicable laws (including laws regarding privacy and protection of consumer information) in using the Service; (v) obtain and maintain all computer hardware, software and communications equipment needed to access the Services; (vi) retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer systems, and sole responsibility for all access to and use of the Services.

2.6 Notice Regarding Photosensitive Epilepsy. To the extent Customer, in its use of the Services, will display or implement the display of flashing lights or strobe lights at a live event, Customer shall provide reasonable notification to all individuals in the area of the show that a flashing light event will be occurring, and that individuals who are susceptible to photosensitive epilepsy or other photo sensitivities should not participate. Customer shall defend, indemnify and hold CUE harmless from all claims for damages relating to the use of flashing lights.

2.7 SDK For Integration with Customer App. To the extent the Services include CUE providing a software development kit (“SDK”) to Customer to allow for integration of CUE’s Services into Customer’s proprietary mobile app, or into Customer’s existing third-party mobile app (collectively the “Customer App”), Customer shall be solely responsible for use of the SDK and integration of the Services into the Customer App. As for a third-party Customer App, Customer shall be responsible for working with the third-party and app provider to perform the integration and shall make sure that an appropriate agreement has been entered into between CUE and the third-party to allow for the integration. The SDK may not be provided to the third-party without CUE’s prior written approval. The Services, including all content and materials included in the Services, that are integrated into the Customer App shall not be altered in any way by Customer or the third-party without the prior written approval and consent of CUE, and all users of the Customer App must agree to CUE’s Terms of Use and Privacy Policy.

2.8 Suspension or Termination of Services. CUE may, directly or indirectly, through disabling technology or other legal means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other person’s access to or use of all or any part of the Services, without incurring any resulting obligation or liability, if: (a) CUE receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires CUE to do so; or (b) CUE believes, in its discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of CUE; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated. This Section does not limit any of CUE’s other rights or remedies, whether at law, in equity, or under this Agreement.

3. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. CUE HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF CUSTOMER

DATA.

4. Security.

4.1 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ access credentials; and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Authorized Users’ access credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use. “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services or that incorporates or is derived from the processing of such information, data, or content by or through the Services.

4.2 Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all access credentials and protect against any unauthorized access to or use of the Services; and

(b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.

5. Fees; Payment Terms.

5.1 Fees. Except for fees for CUE Services paid by Customer to a reseller pursuant to a Reseller Order or paid by an advertiser or sponsor to CUE on behalf of Customer, Customer shall pay CUE the fees and expenses set forth in the applicable Customer Order, or as otherwise set forth in Schedule B (“Fees”). All Fees are non-refundable.

5.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is 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 payable by Customer hereunder, other than any taxes imposed on CUE’s income.

5.3 Payment.

(a) Web Orders/Subscription Services.

(i) If you purchase any Services through a Web Order, you agree to pay the applicable fees and taxes agreed to. CUE’s subscription charges are billed according to the schedule you signed up for (i.e.

based on the subscription start and end date, be it daily, monthly, quarterly, semi-annually, or annually) and are not refundable once they have been charged. CUE does not issue pro-rated refunds on any unused portion of your subscription.

(ii) A valid payment method, including credit card, is required to process the payment for your subscription Services. You shall provide CUE with accurate and complete billing information including full name, address, state, zip code, telephone number, and valid payment method information. By submitting such payment information, you automatically authorize CUE to charge all subscription Services fees incurred through your account to any such payment instruments. Should automatic billing fail to occur for any reason, CUE will issue an electronic invoice indicating that you must proceed manually, within a certain deadline date, with the full payment corresponding to the billing period as indicated on the invoice.

(iii) If you do not cancel any subscription Services prior to the end of the subscription Services term, the subscription Services will automatically renew at the current CUE monthly rate and be automatically billed and charged to you using the payment method originally used to purchase the subscription Services. CUE will provide you with a reasonable prior notice of any change in subscription fees to give you an opportunity to terminate your subscription Services before such change becomes effective. Your continued use of the subscription Services after the fee change comes into effect constitutes your agreement to pay the modified subscription Services fee amount.

(b) SOs and SOWs. For SOs and SOWs, CUE shall issue invoices to Customer as set forth in the applicable SO or SOW. CUE shall send invoices to Customer at the address set forth in the SO or SOW, or such other address as Customer may later specify by notice. Except as otherwise set forth in a SO or SOW, Customer shall pay all amounts due under this Agreement within 30 days after receipt of the applicable invoice. Payment terms shall be strictly enforced, and late payments shall be assessed monthly interest at the lesser of 1.5% and the maximum rate permitted by applicable law.

5.4 Expenses. Except as otherwise agreed to in an SO or SOW, Customer agrees to reimburse CUE for all preapproved, reasonable and necessary out-of-pocket expenses properly incurred or paid by CUE in connection with, or related to, the performance of the Services.

5.5 Late Payment. Should Customer fail to make timely payments pursuant to the Agreement, CUE may suspend further performance of any or all Services. If Customer fails to pay any due and payable amounts within 10 calendar days after receipt of CUE’s written notice that such amounts are past due, Customer shall be deemed to be in material breach of this Agreement.

6. Intellectual Property Rights.

6.1 Services and CUE Materials/Customer-Specific Content. All right, title and interest in and to the CUE Materials, including all Intellectual Property Rights therein, are and will remain with CUE and, with respect to third-party materials included as part of Third-Party Services, the applicable Third-Party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the third-party materials. Customer has no right, license, or authorization with respect to any of the CUE Materials except as expressly set forth in this Agreement. All other rights in and to the CUE Materials are expressly reserved by CUE. “CUE Materials” means the Services, the CUE Platform, specifications, documentation, and CUE systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, work product, technical or functional descriptions, requirements, plans, or reports, that are provided, created or used in connection with the Services or otherwise comprise or relate to the Services, including all data collected by the CUE Platform and Services. Notwithstanding the above, CUE Materials shall not include any text, images, graphic designs, audio, video or other proprietary content provided by Customer specific to the identification, description or marketing of Customer products and services (“Customer-Specific Content”). To the extent CUE obtains any rights to the Customer-Specific Content, CUE hereby assigns to Customer all right, title and interest in and to the Customer-Specific Content. To the extent Customer obtains any rights to the CUE Materials, Customer hereby assigns to CUE all right, title and interest in and to CUE Materials. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

6.2 Customer Intellectual Property License. Customer grants to CUE a limited, non-exclusive, royalty-free right and license during the Term, with the right to use the Customer Materials as necessary to fulfill CUE’s obligations under this Agreement, solely for the purpose of providing the Services. “Customer Materials” means trademarks, trade names, service marks, trade dress, designs, artwork and logos of Customer associated with the Services, all images, data and other materials provided by the Customer for the purposes of this Agreement, and all Customer-Specific Content and other content provided by Customer for posting on the CUE Platform or through the Services.

6.3 Feedback. If Customer or any Authorized User transmits or provides any communications or materials to CUE by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services or CUE Platform (“Feedback”), CUE is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to CUE on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and CUE is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although CUE is not required to use any Feedback.

7. Publicity. Customer agrees that CUE may use Customer’s business name, website URL and logo on its websites and in its marketing materials, identifying Customer as a current or former customer of CUE with prior approval.

8. Support.

8.1 First Level Customer Service. CUE will provide first level customer service to all Authorized Users with regard to the applicable Services, including without limitation, Authorized User sign-ups and cancellations, issuing Authorized User login information and passwords, and answering general customer service questions.

8.2 Second Level Technical Support. CUE will provide second level technical support to the Customer relating to technical aspects of the CUE Platform which will include email and phone support between the hours of 10 am and 5 pm Central Time, Monday through Friday, except federal holidays or days on which the banks in the City of Dallas, Texas are closed for business. CUE will provide support at no cost to the Customer for the first thirty (30) days from delivery of the Services, or five (5) hours of second level technical support, whichever occurs first.

9. Confidentiality. Each Party shall (a) use Confidential Information (as defined below) of the other Party only for the purposes of exercising rights or performing obligations in connection with this Agreement; and

(b) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other Party (including without limitation all precautions employed by a Party with respect to its own Confidential Information), in each case, for a period commencing upon the date of disclosure until the later of three years after disclosure or the termination of this Agreement. Notwithstanding the foregoing, either Party may disclose Confidential Information (a) to its employees or independent contractors for the purpose of performing its obligations or exercising its rights hereunder, provided that each such employee and independent contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein; and (b) if required by law or a court, provided the receiving Party uses reasonable efforts to limit disclosure and to obtain confidential treatment or a protective order and allows the disclosing Party to participate in the proceeding.

“Confidential Information” means and includes the terms of this Agreement and all confidential and proprietary information of a Party, including, without limitation, computer programs, software, technical drawings, algorithms, know-how, trade secrets, formulas, processes, ideas, inventions (whether patentable or not), designs, schematics and other technical, business, financial, customer and product information, data and development plans, of any nature and in any form whatsoever, provided that such information is marked or designated in writing as “confidential,” “proprietary,” or any other similar term or designation or is disclosed in such a manner that a reasonable person would understand that such information is confidential and proprietary. Customer agrees without limitation that CUE’s prices, proposals and quotes related to a SO or SOW are Confidential Information of CUE. Confidential Information does not include information that the receiving Party can document: (i) is or becomes (through no improper action or inaction by the receiving Party) readily available to the public; (ii) was in its possession or known by it without restriction on disclosure or use prior to receipt from the disclosing Party; (iii) was rightfully disclosed to it by a third party that rightfully received such information without restriction on disclosure or use; or (iv) was independently developed without use of any Confidential Information of the disclosing Party.

10. Term and Termination.

10.1 Term. Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the period set forth in the applicable Customer Order. For Web Order subscription Services, if you do not cancel any subscription Services prior to the end of the subscription Services term (you may cancel your subscription by logging into your account at portal.cueaudio.com), the subscription Services may be renewed for an additional term equivalent to the expiring term (e.g. if the term was 30 days it may be renewed for another 30 day term; if the term was 6 months, it may be renewed for an additional 6 month term) CUE will provide you with a reasonable prior notice of any change in Subscription fees to give you an opportunity to terminate your subscription Services before such change becomes effective. Your continued use of the subscription Services after the fee change comes into effect constitutes your agreement to pay the modified Subscription Services fee amount.

10.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

(a) either party may terminate this Agreement or any Customer Order, effective on written notice to the other party, if the other party materially breaches this Agreement or the applicable Customer Order, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ninety (90) days (ten (10) days for any failure to pay amounts due) after the non-breaching party provides the breaching party with written notice of such breach; and

(b) either party may terminate this Agreement (and all Customer Orders), effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

10.3 Surviving Terms. Any provision or other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.

11. Representations and Warranties.

11.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.

11.2 Additional CUE Warranties. CUE represents and warrants to Customer that CUE will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

https://portal.cueaudio.com

11.3 Additional Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to CUE that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Materials so that, as received by CUE and processed in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law, and that it will comply with all terms and conditions of any agreement between Customer and the provider of Third-Party Services.

11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET

FORTH IN SECTION 11.1, SECTION 11.2, ALL SERVICES AND CUE MATERIALS ARE

PROVIDED ON AN “AS IS” “WHERE IS” BASIS, AND CUE DISCLAIMS ALL REPRESENTATIONS

OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES OR CUE MATERIALS. CUE

SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS

FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES

ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING

THE FOREGOING, CUE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR CUE

MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET

CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT

INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY

SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE

OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY SERVICES AND MATERIALS ARE

PROVIDED “AS IS”, AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY

THIRD-PARTY SERVICES OR MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE

THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY SERVICES AND

MATERIALS.

11.5 CUE Indemnification. Subject to the limitations of Section 13, CUE shall indemnify, defend and hold harmless Customer…