LexCheck Terms of Service

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These General Terms and Conditions (“Legal Terms”) when incorporated by a separately executed LexCheck Inc. Order Form (“Order Form” or “SOW”) shall govern the supply of Services (as defined below) and the Legal Terms of Service and Order Form together constitute the entire agreement (collectively the “Agreement”) between the Client and the LexCheck entity (“SaaS Provider”) (each a “Party” and together the “Parties”) named in the Order Form. In the event of a conflict between the Legal Terms and any Order Form, the Order Form shall govern. Capitalized terms not defined within the Legal Terms are defined in the Order Form.

1. DEFINITIONS.

1.1. “Affiliate” means, with respect to any entity, any other present or future entity controlling, controlled by, or under common control with such entity. For the purposes of this definition, control (and its derivatives) means, with respect to any entity, the possession, direct or indirect, of the power to solely direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.

1.2. “Application Platform” or “Platform” means SaaS Provider’s proprietary application software and/or website, including all modules, functions, features identified in an Order, SOW, or otherwise generally made available by SaaS Provider to its customers, and all technology resources and infrastructure (e.g., hardware, third-party software, etc.) supporting the Services. The Application Platform includes all updates, releases, improvements, and corrections to the Application Platform.

1.3. “Cardholder Data” has the meaning provided in the PCI-DSS3, including (1) with respect to a payment card or similar data, the account holder’s name, account number, service code, card validation code/value, PIN or PIN block, valid to and from dates and magnetic stripe data; and (2) information relating to a payment card transaction that is identifiable with a specific account.

1.4. “Client Data” means any proprietary or confidential content, information, data, and materials of any kind, including End User Data and Cardholder Data, which is provided by Client or any end user of Client or any of Client’s affiliates to SaaS Provider in connection with its provision of the Services.

1.5. “Confidential Information” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business strategies and practices, methodologies, trade secrets, know-how, pricing, technology, software, product plans, services, relationships with any third-party, client lists and information regarding the Disclosing Party’s employees, clients, vendors, consultants and Affiliates regardless of whether such information is marked “confidential” or some other proprietary designation, but which by its nature is information that would reasonably be considered to be confidential information of the Disclosing Party. In the case of SaaS Provider, Confidential Information includes the Application Platform source code. In the case of Client, Confidential Information includes all Client Data and any information relating to Client’s users.

1.6. “Data Center” means the secure facility(ies) in which the servers, computer equipment and ancillary hardware used to host and operate the Application Platform reside. The primary Data Center(s) is/are located in Northern Virginia and the secondary Data Center(s) is/are located in Oregon as of the Effective Date, as each may be updated in accordance with this Agreement.

1.7. “Documentation” means SaaS Provider’s user guides and manuals relating to the Services and Application Platform, including online help, as updated and amended from time to time.

1.8. “End User Data” means all data and information collected from an end-user of Client or its Affiliates, including, without limitation, any personally identifiable information or Cardholder Data.

1.9. “Implementation Services” means the data migration, implementation, integration (e.g., APIs), enhancement, and development services described in an Order or SOW that SaaS Provider will complete to comply with the specifications and requirements set out in such Order or SOW.

1.10. “Include” and “including” mean including without limitation.

1.11. “Intellectual Property” means all algorithms, application programming interfaces (APIs), apparatus, concepts, Confidential Information, data, databases and data collections, deliverables, designs, diagrams, documentation, drawings, flow charts, formulae, ideas, and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos, and slogans), methods, models, procedures, processes, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology. For the avoidance of doubt, Intellectual Property includes Aggregated Statistics.

1.12. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.

1.13. “Order” means an order pursuant to which from time-to-time Client orders Services or rights to the Application Platform.

1.14. “Professional Services” means the services identified as such in a SOW or this Agreement. Professional Services include Implementation Services and consulting services. Professional Services do not include Services.

1.15. “SaaS Services” means the services that are ordered by Client under an Order, including (i) limited access and use rights to the Application Platform, (ii) hosting services, (iii) support services, and (iv) any other similar generally applicable services that SaaS Provider provides to its customers in accordance with the Documentation. Services do not include Professional Services.

1.16. “Security Event” is an event where: (i) End User Data or Confidential Information of Client in SaaS Provider’s or its subcontractors’ possession or control is accessed or received by an individual or entity not authorized to access or receive such information, (ii) there is a reasonable basis to believe that End User Data or Confidential Information of Client in SaaS Provider’s or its subcontractors’ possession or control may have been accessed or received by an unauthorized individual or entity, (iii) an individual or entity authorized under this Agreement to use or access End User Data or Confidential Information of Client is using, or reasonably suspected of using, any End User Data or Confidential Information of Client in a manner not authorized under this Agreement, or (iv) End User Data or Confidential Information of Client in Client’s (or its third-party contractors’) possession or control is accessed (or there is a reasonable basis to believe may have been accessed) through the Application Platform in a manner or for a purpose not authorized under this Agreement or permitted under applicable laws or regulations.

1.17. “Services” means, collectively, the Professional Services and SaaS Services. Other terms are defined in the context in which they are used throughout the Agreement.

2. SOFTWARE-AS-A-SERVICE RIGHTS, OBLIGATIONS, AND LIMITATIONS.

2.1. Provision of Services and Application Platform. Subject to the provisions of this Agreement, SaaS Provider will make available to Client and its designated Affiliates and their end users on a non-exclusive and non-transferable basis the Services, Application Platform, and Documentation in accordance with the applicable Order, Documentation, and other terms of this Agreement. Unless expressly provided otherwise, SaaS Provider will be responsible for: (i) hosting, operating, maintaining, and supporting the Application Platform; (ii) providing standard support at no additional charge (and/or specialized support if identified on an Order or SOW); (iii) making available and implementing upgrades, enhancements, and error corrections when such upgrades, enhancements and error corrections are generally made available; and (iv) providing disaster recovery and business continuity capabilities in accordance with industry standards. The Application Platform and Client Data may only be hosted at the Data Center(s) identified in this Agreement or otherwise approved by Client. SaaS Provider will furnish all equipment, computer programs, resources, and services necessary for furnishing the Services and Application Platform to Client and its end users, except as expressly provided otherwise in this Agreement.

2.2. Access and Use Rights. The Client will be responsible for providing its own Internet access to the Application Platform. SaaS Provider may specify reasonable procedures in the Documentation according to which Client and end users may establish and obtain such access to and use of the features and functions of the Services and Application Platform through the Internet, including, without limitation, provision of any access codes, passwords, websites, connectivity standards or protocols, or any other relevant procedures. Subject to the terms of this Agreement, SaaS Provider hereby grants to Client the non-transferable (except as otherwise permitted by this Agreement), non-exclusive, non-sublicensable, worldwide, royalty-free, limited right and license to use and access the Services and Application Platform in accordance with the applicable Order(s), Documentation, and other provisions of this Agreement. Such rights and license include the right for Client, its Affiliates, and all their employees, representatives, contractors, customers, and members, as applicable, to use and access the Application Platform in connection with their relationship to Client.

2.3. Orders. Orders will be substantially in the form of the Order Form. If Client desires to access or use additional Services and/or increase any limitation on the number of named users, concurrent users, devices, location, transactions, or other elements, as applicable (“Unit of Measure”), in the initial Order or any subsequent Order, the authorized representatives of the Parties will execute a new Order.

2.4. Limitations on Use. Except as otherwise provided in this Agreement, Client will not: (i) sell, rent, lease, sublicense or otherwise transfer or distribute the Application Platform or Documentation or any copies of the Application Platform or Documentation; (ii) modify, translate, reverse engineer, decompile or disassemble the Application Platform; (iii) create or prepare derivative works based upon the Application Platform; (iv) create any copy of or “mirror” the Application Platform; or (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Application Platform or Documentation.

2.5. Affiliate Participation. SaaS Provider agrees that Affiliates may procure additional Services and access to the Application Platform relating to their business and operations pursuant to the terms and conditions of this Agreement upon execution of an Order by an Affiliate, in which case such Affiliate will be deemed to be a party hereunder with the same rights and obligations as Client, and the terms of this Agreement will be incorporated into the Order executed by the Affiliate, but such Affiliate will be invoiced separately and will be solely responsible to SaaS Provider for its respective obligations and liabilities under this Agreement. An Affiliate or SaaS Provider may terminate this Agreement as it applies to such Affiliate in the same manner that Client or SaaS Provider may terminate this Agreement, but any such termination by an Affiliate will apply only to such Affiliate. All licenses or Services procured by Client and by all Affiliates will be aggregated for purposes of determining any volume-based price discounts under this Agreement.

2.6. Suspension. Notwithstanding anything to the contrary in this Agreement or any applicable Order Form, SaaS Provider may temporarily suspend Client's and any Authorized User's access to any portion or all of the Services if: (i) SaaS Provider reasonably determines that (A) there is a threat or attack by Client or any Authorized User on any of the SaaS Provider IP; (B) Client's or any Authorized User's use of the SaaS Provider IP disrupts or poses a security risk to the SaaS Provider IP or to any other customer or vendor of SaaS Provider; (C) Client, or any Authorized User, is using the SaaS Provider IP for (i) fraudulent or illegal activities or (ii) has allowed an individual to access any portion of the Services who is not the individual associated with the email address utlized to access the Services; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) SaaS Provider's provision of the Services to Client or any Authorized User is prohibited by applicable law; or (ii) in accordance with the terms of Section 7 (Term of Agreement and Default) (any such suspension described in subclause (i) a “Service Suspension”). SaaS Provider shall use commercially reasonable efforts to provide prior written notice of any Service Suspension to Client and a reasonable opportunity to present evidence disputing SaaS Provider’s belief or remedy the event giving rise to the Service Suspension, and in the event it is not commercially reasonable for SaaS Provider to provide such notice or opportunity to Client and SaaS Provider suspends Client’s access to the Service pursuant to the previous sentence, SaaS Provider shall notify Client and provide such opportunity as soon as reasonably practicable and provide regular updates regarding resumption of access to the Services following any Service Suspension. SaaS Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. SaaS Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension. Client shall remain responsible for full payment of the Fees and any amounts owed or owing under this Agreement and any Orders, even if there is either a Service Suspension or the Services are terminated for any breach of this Agreement by Customer or any Authorized User.

3. ANCILLARY PROFESSIONAL SERVICES.

3.1. Implementation Services. SaaS Provider will provide Implementation Services as described in the applicable Order or Statement of Work.

3.2. Additional Professional Services. Client may elect from time-to-time to obtain from SaaS Provider Professional Services relating to the Application Platform that are in addition to the Services including customized user training, specialized support, integration, enhancements, and development . Each Order for SaaS Provider Professional Services will describe in the Order Form the fees, costs, and expenses payable by Client to SaaS Provider and any assumptions or dependencies relating to such Professional Services.

3.3. Changes. A Party may request a modification to the Services, Application Platform, Professional Services, or any applicable SOW or Order by written request to the other Party. Any request for a Change Order to the Services or Application Platform that SaaS Provider intends to generally offer or provide to its other customers will not be chargeable to Client (or allocated to Client and such other customers as and if mutually agreed). Change Orders will be performed under the terms of this Agreement and the applicable SOW once mutually agreed. Changes in any SOW will become effective only when executed by authorized representatives of both Parties.

4. SERVICE LEVELS AND SUPPORT. 

4.1. Service Levels. Subject to the terms and conditions of this Agreement, SaaS Provider shall make the Services under an applicable Order Form Available at least 99.9% of the time as measured over the course of each calendar month during the Order Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 4.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services under an applicable Order Form to meet the Availability Requirement with respect to a Service Period. “Available” means the Services are available for access and use by Client and its Authorized Users over the Internet and operating in accordance with the specifications set forth in an applicable Order Form and applicable Documentation. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Client or its Authorized Users to access or use the Services that is caused, in whole or in part, by: (a) use by Client or any Authorized User of the Services or access to or use of the Services using Client’s or an Authorized User’s access credentials or account, that does not strictly comply with this Agreement and the applicable Order; (b) any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement; (c) Client’s or its Authorized User’s internet connectivity; (d) a Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied or controlled by SaaS Provider pursuant to this Agreement; or (f) Scheduled Downtime; or (g) disabling, termination, or suspension of the Services pursuant to Section 2.6 (Suspension).

4.2. Service Level Failure and Remedies. In the event of a Service Level Failure, SaaS Provider shall issue a credit to Client in the amount of fifty percent (50%) of one-twelfth of the annual Fees for the Services under the applicable Order Form due for the Service Period the Service Level Failure occurred (each a “Service Credit”), subject to the following:

4.2.1. SaaS Provider has no obligation to issue any Service Credit unless: (x) Client reports the Service Failure to SaaS Provider within thirty (30) days of the end of the applicable Service Period; and (y) requests such Service Credit in writing within such thirty (30) day period; and

4.2.2. If Service Level Failures occur with respect to any three consecutive Service Periods, Client may terminate this Agreement on notice in writing to SaaS Provider.

Any Service Credit payable to Client under this Agreement will be issued to Client in the calendar month following the Service Period in which the Service Level Failure occurred or, if Client has paid the final invoice under this Agreement, Service Credits shall be paid to Client via wire transfer in each case within thirty (30) calendar days following the determination that such Service Credit is due. This Section 4.2 sets forth SaaS Provider’s sole obligation and liability and Client’s sole remedy for any Service Level Failure.

4.3. Support. The access rights granted hereunder entitles Client to the support services described on the applicable Order Form during the Order Term and thereafter, solely if Client purchases additional support services. Further details of SaaS Provider's support services are incorporated and attached hereto as Exhibit A.

5. FEES.

5.1. SaaS Fees. Client will provide all accurate “Bill-to” information necessary to issue an invoice. Client shall pay to LexCheck all fees invoiced under this Agreement or an Order (“Fees”). Except as otherwise expressly specified herein or in the applicable Order, all payment obligations are non-cancelable, and Fees paid are non-refundable. Fees cannot be decreased during the relevant term of an Order

5.2. Professional Services Fees. Client will pay to SaaS Provider the charges set forth in the applicable SOW for the Professional Services (the “Professional Services Charges”), subject to the other provisions of this Section 5.

5.3. Automatic Renewal of Services. Within ninety (90) days of the expiration of the then-current Term and any renewal term for the Services, SaaS Provider will notify Client of the upcoming expiration and any proposed charges for the renewal term. The proposed charges for any SaaS Service renewal term will not exceed the charges for the prior year, plus the lesser of (i) 2% of such prior year’s SaaS Charges or (ii) the increase in SaaS Provider’s list prices for SaaS Charges. Except as expressly provided otherwise, there will be no other increase in the SaaS Charges. The provision of and rights to the Services and Application Platform will automatically renew at the end of the initial Term and any renewal term, unless: (i) Client notifies SaaS Provider in writing at least thirty (30) days prior to the expiration of the Initial SaaS Term or the then-current renewal term that Client does not desire to renew; (ii) Client fails to pay the undisputed SaaS Charges required under this Agreement and fails to cure such non-payment within ten (10) days’ notice from SaaS Provider; or (iii) SaaS Provider ceases to offer any other customer services similar to the Services and applications similar to the Application Platform and provides Client at least one (1) years prior notice of SaaS Provider’s intent to discontinue such services and platform for all its customers.

5.4. Payment of Fees. All SaaS Charges, Professional Service Charges, and other amounts payable by Client under this Agreement (collectively, “Charges”), which are not disputed in good faith, and unless the payment due date is stated differently in Section 5.1 (SaaS Fees), are due and payable within thirty (30) days of Client’s receipt of the applicable invoice. If an undisputed Charge is not paid within thirty (30) days after Client’s receipt of a notice from SaaS Provider of a past due Charge, a late payment fee of one percent (1.0%) of the balance due or the maximum amount permitted by law, whichever is lower, will be due and payable by Client to SaaS Provider for each month such invoice remains unpaid. Client will not have any obligation to pay any disputed amount until thirty (30) days after such dispute has been resolved and the amount owned (if any) by Client has been determined. In the event Client disputes all or any portion of the Charges in any properly submitted invoice, the Parties agree to engage in good faith efforts to promptly resolve any such dispute for at least ninety (90) days. SaaS Provider will continue to provide the Service and perform its obligations until a resolution is reached or the Agreement is terminated in accordance with its terms. Client shall remit all payments in US dollars.

5.5. Taxes. The Fees stated in any SOW do not include Taxes. Client is responsible for paying all Taxes associated with its purchases hereunder. If LexCheck has a legal obligation to collect Taxes for which Client is responsible, LexCheck will invoice Client and Client will pay the amount owing. If Client is lawfully required to withhold any sums from an invoice, Client must effect such withholding and remit such amounts to the appropriate taxing authorities, and ensure thate, after such deduction or withholding, LexCheck receives and retains, free from liability for such deduction or withholding, a net amount equal to the amount LexCheck would have received and retained in the absence of such required deduction or with holding.

5.6. LexCheck requires a satisfactory credit check on Clients prior to creating projects or starting subscriptions.

5.7. Setoff. Without prejudice to any other right or remedy it may have, each Party reserves the right to setoff at any time any amount owing to it by the other Party against any amount payable by it to the other Party under this Agreement.

6. OWNERSHIP.

6.1. Ownership Rights. Except for the license and other rights granted to Client in this Agreement, SaaS Provider retains all right, title, and interest in and to the Application Platform, Documentation, and SaaS Provider’s Confidential Information, including all Intellectual Property Rights therein. Further, Client acknowledges and agrees that the Application Platform, derivatives thereof, ideas, methods of operation, modifications, changes, enhancements, conversions, upgrades, additions, sub-systems, and modules included in the Application Platform are proprietary material which contain valuable trade secrets of SaaS Provider.

6.2. Ownership of Client Data. SaaS Provider acknowledges and agrees that, as between the Parties, Client exclusively owns all right, title, and interest in and to Client’s Confidential Information and the Client Data, including all Intellectual Property Rights therein, irrespective of whether such Client Data is stored or processed through or in the Services or Application Platform. If SaaS Provider is deemed to have any ownership interest in Client’s Confidential Information or the Client Data, including any and all derivative works, enhancements, or other modifications thereto, then SaaS Provider will assign, and hereby does assign, irrevocably and royalty-free, all of such ownership interest or other rights exclusively to Client and SaaS Provider will, at Client’s reasonable request and expense, complete, execute, and deliver any and all documents necessary to effect or perfect such assignments.

6.3. Deliverables. Any written materials or deliverables (collectively “Deliverables”) prepared for Client (excluding any derivative works to the Application Platform or Documentation) will be the property of Client, and SaaS Provider agrees to assign and hereby does assign to Client any and all of its rights in such Deliverables. Any Deliverable not assigned to Client is hereby licensed to Client as if it were part of the Application Platform or Documentation.

6.4. Residuals. Subject to Sections 6 (Ownership) and 8 (Confidentiality and Data Security), each Party will be free to use any general concepts, techniques, feedback, and know-how provided to it, used by it, or developed in the course of this relationship, so long as such feedback does not identify Client in any way and does not otherwise contain any Confidential Information of Client.

7. TERM OF AGREEMENT AND DEFAULT.

7.1. Term. The term of this Agreement will commence upon the Effective Date and will be coterminous with the initial Order. If any subsequent Orders or SOWs are executed by the Parties referencing this Agreement, this Agreement will continue in effect with respect to the term of such subsequent Orders or SOWs. The “Term” means the term of such initial Orders and any subsequent Orders or SOWs, including renewals and extensions. Unless otherwise agreed in writing and subject to Section 5.3 (Automatic Renewal of Services), the Term will automatically extend for additional one (1) year periods unless Client provides SaaS Provider with notice of its intent not to extend within thirty (30) days of the end of the then-current Term.

7.2. Termination by SaaS Provider. In the event that (x) Client fails to pay any Charges not disputed in good faith in accordance with this Agreement by the specified due date, and (y) Client fails to cure such failure within thirty (30) days of receipt of written notice from SaaS Provider of its intention to terminate, then SaaS Provider may, by written notice to Client, terminate this Agreement in its entirety, provided the total of all such overdue Charges exceeds, in the aggregate, the average monthly Charges invoiced in the prior twelve (12) months. In addition, SaaS Provider may, by written notice to Client, terminate this Agreement in its entirety if Client (a) materially breaches (i) a provision of this Agreement relating to SaaS Provider’s Confidential Information or Intellectual Property in connection with this Agreement, or (ii) a provision of this Agreement relating to restrictions on the use of the Application Platform by third-parties, and (b) fails to cure, to the extent reasonably practical, or mitigate such breach and implement safeguards to prevent similar future breaches in all other cases, within thirty (30) days of receipt of written notice from SaaS Provider of its intention to terminate. SaaS Provider acknowledges and agrees that this Section 7 sets forth SaaS Provider’s sole and exclusive right to terminate. If the SaaS Services are currently provided to the Client for no cost (a fee of zero dollars), then SaaS Provider may, at any time, terminate, at its convenience, this Agreement and any underlying Orders.

7.3. Termination by Client. Client will have the right to terminate this Agreement, any Order, or any SOW, in whole or in part, for cause, without penalty or payment to SaaS Provider, by giving written notice to SaaS Provider as of a date specified in the notice of termination and will further have the right to seek damages from SaaS Provider (unless expressly provided otherwise in an Order for a particular termination right): (a) if SaaS Provider commits a material breach (including, without limitation, the failure to successfully complete any critical implementation milestone under an Order, or SOW), which breach remains uncured for a period of thirty (30) days after the receipt of written notice thereof from Client or that is not capable of being cured within thirty (30) days or (b) if SaaS Provider fails to comply with any provision of this Agreement and such failure results in any payment card processor, credit card processor, bank, or other financial institution (A) imposing a fee or cost on Client that it would not have otherwise incurred which SaaS Provider does not pay within sixty (60) days of written demand therefor (along with reasonable documentation verifying such fee or cost), (B) imposing a fine or sanction on Client which SaaS Provider does not pay and/or fully reimburse Client for within sixty (60) days of written demand therefor (along with reasonable documentation verifying such fee or cost), or (C) refusing to do business with Client, as objectively demonstrated by Client, which such refusal materially adversely impacts Client’s business operations on an ongoing basis.

7.4. Bankruptcy. Either Party will have the right to terminate this Agreement by providing written notice to the other Party upon the occurrence of any of the following events, but only to the extent such events are not dismissed within 120 days from the date such events first occurred: (i) a receiver is appointed for the other Party; (ii) the other Party makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (iii) the other Party commences or has commenced against it, proceedings under any bankruptcy law; or (iv) the other Party ceases to do business.

7.5. Equitable Remedies. Subject only to a court’s finding as to the merits of Client’s action relating to a breach of the Agreement by SaaS Provider, the Parties agree to injunctive relief to cause SaaS Provider to return Client Data, continue performance, and, to the extent relevant, Termination Assistance Services without requiring Client to post a bond.

7.6. Effect of Termination. Except as expressly set forth otherwise in this Agreement, upon termination of this Agreement: (i) the licenses and rights granted hereunder will be terminated and Client will immediately cease using the Application Platform, Documentation, and SaaS Provider’s Confidential Information, (ii) the Application Platform (and associated hosting and support Services) will cease to be accessible to Client or to its users, (iii) upon the Disclosing Party’s written request, the Receiving Party will comply with the return/destroy requirements for Confidential Information in accordance with Section 8.5 (Return or Destruction), and (iv) Client will pay, as applicable, all accrued SaaS Charges, Professional Services Charges, and Service Level Credits within sixty (60) days of the invoice or the date termination occurred, whichever is earlier.

7.7. No Suspension. Under no circumstances may SaaS Provider suspend or terminate Client’s or any Affiliate’s access to or use of the Application Platform or receipt of the Service other than in accordance with Section 2.6 (Suspension) or pursuant to a proper termination of this Agreement in accordance with Section 7 (Term of Agreement and Default).

7.8. Survival. Any Sections that by their nature survive expiration or termination of this Agreement, will survive the expiration or termination of this Agreement.

8. CONFIDENTIALITY AND DATA SECURITY.

8.1. General. During the Term of this Agreement and thereafter, each Party will treat as confidential all Confidential Information of the other Party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will restrict disclosure of Confidential Information to those of its personnel who have a need to know such Confidential Information, but only to the extent that such disclosure is reasonably necessary for the performance of the Services, will implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the other Party’s Confidential Information, and will not disclose such Confidential Information to any third-party except as may be necessary and required in connection with the rights and obligations of such Party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the Parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement, but in no event less than commercially reasonable care.

8.2. Exclusions to the definition of Confidential Information. Except as otherwise provided below, Confidential Information will not include, or will cease to include, as applicable, Confidential Information that: (a) is or becomes generally available to the public through no violation of this Agreement by the Receiving Party; (b) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Disclosing Party’s Confidential Information; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by or for the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party. The exclusions in this section will not apply with respect to End User Data, Cardholder Data, or any other personal or private data that requires protection under applicable laws or regulations.

8.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the other Party only pursuant to the order, request, or requirement of a court, administrative or regulatory agency, or other governmental body and only provided that the Receiving Party, if legally permitted and reasonably practicable, provides prompt, advance written notice thereof to enable the Disclosing Party to, solely at Disclosing Party’s expense, seek a protective order or otherwise prevent such disclosure. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party will disclose only that portion of the Confidential Information that its legal counsel, including internal counsel, advises that it is legally required to disclose. Confidential Information so disclosed will continue to be deemed Confidential Information as between the Parties hereto.

8.4. Remedies. If either Party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the other Party is entitled to seek equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.

8.5. Return or Destruction. Upon the Disclosing Party’s written request, the Receiving Party will promptly return or destroy, at the Receiving Party’s option, all tangible copies of the Disclosing Party’s Confidential Information. Within ten (10) days of the Disclosing Party’s written request, the Receiving Party shall confirm in writing that it has satisfied its obligations under this subsection. Notwithstanding the foregoing, neither party is required to return or destroy: (a) Confidential Information that has been electronically archived in the ordinary course of business for disaster recovery and similar purposes, or (b) Confidential Information that the receiving party is required to retain under applicable law; provided in either case that such retained Confidential Information shall not be disclosed or used for purposes contrary to the terms of this Agreement and such retained Confidential Information will remain subject to this Agreement’s confidentiality restrictions.

8.6. Storage and Processing of Data. The Application Platform and/or the Services is provided from the United States and the Client Data will be stored and processed in the United States.. If SaaS Provider desires to store and/or process Client Data outside of the United States, it will do so only in compliance with all applicable export and privacy laws and will provide Client with at least ninety (90) days advance notice of any such changes in the processing location. If SaaS Provider plans to store the Client Data in a foreign jurisdiction that has not been approved in writing by Client, Client may terminate this Agreement without penalty and shall receive a pro-rata refund of any fees which have been paid to SaaS Provider as of the date of such termination.

8.7. Security Events. Without limiting any obligation of SaaS Provider herein, if at any time SaaS Provider discovers or otherwise becomes aware of any Security Event that impacts the Client, SaaS Provider will: (i) promptly notify Client of such Security Event and furnish Client with details of such Security Event; and (ii) reasonably cooperate with Client in any effort, action, or proceeding to protect the End User and/or Cardholder Data and to mitigate and/or remediate the impact of the Security Event, as such may be deemed necessary by Client and/or required by applicable laws or regulations, including breach notification laws and credit reporting laws. In the event of any Security Event, or at any time if requested by Client, SaaS Provider will, with prior reasonable notice, permit Client, a Payment Card Industry (“PCI”) representative, and/or a PCI-approved third-party (individually or collectively, the “PCI Auditor”), to conduct a review of SaaS Provider’s books, records, files, computer processors, equipment, systems, physical and electronic log files, and facilities relating to the Services, to investigate or remediate a Security Event (the “Breach Audit”). SaaS Provider will provide the PCI Auditor with full cooperation and access to enable such Breach Audit. If any Breach Audit identifies any failure of SaaS Provider to comply with the Security Requirements, SaaS Provider will promptly repair and/or remedy any such failure and deliver written notice of such efforts and remedy to Client. In any such audit above, SaaS Provider may charge Client reasonable fees for use of SaaS Provider’s personnel during such audits and determine reasonable access restrictions as required to protect other clients, except to the extent such audit arose due to a Security Event or SaaS Provider’s failure to maintain the required certifications or comply with its material security obligations under this Agreement.

8.8. End User Notice. If any disclosure, use, or breach of any End User Data requires Client, under applicable laws or regulations, to make a disclosure to any third-party, Client will be solely responsible for making such disclosure, including determining the content, methods, and means of such disclosure. SaaS Provider will reasonably cooperate with Client in formulating the disclosure, but SaaS Provider will not make any such disclosure at its own initiative without Client’s prior consent. To the extent the breach is caused by or related to a breach of the Agreement by SaaS Provider (or its employees, contractors, service providers, representatives, or advisors), SaaS Provider will pay all reasonable costs and expenses of: (i) such disclosures and notification (including any legal or forensic expenses, fulfillment service expenses, or call center expense relating to the breach), and (ii) any applicable monitoring and reporting on the impacted individuals’ credit records or the restoration of the impacted individuals’ credit or identity.

9. INDEMNIFICATION.

9.1. Indemnification. SaaS Provider will defend, indemnify, and hold Client and its successors, parents, subsidiaries, Affiliates, agents, representatives, officers, directors, employees, users, and attorneys harmless from and against any and all losses, damages, costs, judgments, liabilities, and expenses (including reasonable attorneys’ fees court costs, and disbursements and costs of investigation, litigation, settlement, judgment, interest, fines, and penalties) (collectively, “Losses”) arising out of or relating to: (i) any Security Event, (ii) any failure by SaaS Provider to comply with Section 8 (Confidentiality and Data Security), including any Security Requirement; or (iii) any third-party claims, demands, or proceedings (a “Claim”) asserting that the Application Platform, Services, or the use thereof (as permitted under this Agreement) infringes or misappropriates any third-party’s Intellectual Property Rights.

9.2. Procedure. Client will give SaaS Provider prompt written notice of all Claims for which indemnity is sought hereunder and will provide SaaS Provider with: (a) all related documentation in Client’s possession or control relating to such Claims; and (b) reasonable assistance to SaaS Provider in the defense of such Claims. SaaS Provider will control, at SaaS Provider’s sole cost and expense, the defense or settlement of all such Claims and will keep Client apprised of the status of all such Claims. Client will have the right, but not the obligation, to participate in the defense of all such Claims with counsel of Client’s choice at Client’s sole cost and expense. If any settlement requires any action or admission by Client, then the settlement will require Client’s prior written consent. Failure by Client to provide prompt notice of a claim or to provide such control, authority, information, or assistance will not relieve SaaS Provider of its obligations under this section, except to the extent that SaaS Provider is materially prejudiced by such failure.

9.3. Limitations. SaaS Provider will not have any liability or indemnification obligations to Client under Section 9.1(iii) (Indemnification) of this Agreement to the extent that any Losses arise directly as a result of: (a) use of an Application Platform or Services by Client or any third-party in combination with equipment, materials, products or software not authorized by SaaS Provider where the Application Platform or Services alone would not be infringing; or (b) compliance with designs, plans, or instructions provided to SaaS Provider by Client.

9.4. License, Replacement, or Refund. If the Application Platform or Services becomes the subject of a Claim as set forth in Section 9.1(iii) (Indemnification) or if SaaS Provider believes that the Application Platform or Services is likely to become the subject of a Claim, SaaS Provider may, at its sole discretion and expense: (i) obtain a license from such third-party for the benefit of Client; (ii) replace or modify the Application Platform or Services (“Replacement”) so it is no longer the subject of a Claim and so long as such Replacement performs substantially the same functions as the Application Platform or Services at issue; or (iii) if neither of the foregoing is commercially feasible, terminate this Agreement and refund, pro-rata, all pre-paid Charges for Implementation Services and any pre-paid SaaS Charges or Professional Services Charges (as applicable).

9.5. Compliance with Law. At its sole expense, SaaS Provider shall, and shall cause SaaS Provider Personnel to, perform its obligations under this Agreement in compliance with all applicable laws, including without limitation, any changes to such laws and with respect to SaaS Provider Personnel; SaaS Provider shall be responsible for any fines and penalties arising from any noncompliance with any law relating to the performance, receipt, or use of the Services and/or SaaS Provider IP.

10. LIMITATION OF LIABILITY.

10.1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL CHARGES PAID OR PAYABLE BY CLIENT TO SAAS PROVIDER DURING THE MOST RECENT 12 MONTH PERIOD PRIOR TO THE LAST EVENT GIVING RISE TO LIABILITY.

10.2. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.

10.3. THE PARTIES EACH ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 (LIMITATION OF LIABILITY) WILL NOT APPLY TO ANY LOSSES AS THE RESULT OF: (A) A SECURITY EVENT OR SAAS PROVIDER’S FAILURE TO COMPLY WITH SECTION 8 (CONFIDENTIALITY AND DATA SECURITY), INCLUDING ANY SECURITY REQUIREMENTS; (B) INDEMNIFICATION OBLIGATIONS HEREUNDER; (C) FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE; OR (D) SERVICE LEVEL CREDITS.

10.4. Except as otherwise expressly provided herein, all rights and remedies of the Parties are separate and cumulative. The waiver or failure of either Party to exercise in any respect any right or remedy provided herein will not be deemed a waiver of any further right or remedy hereunder.

11. REPRESENTATIONS AND WARRANTIES.

11.1. SaaS Provider’s Representations and Warranties. SaaS Provider represents and warrants to Client that:

11.1.1. SaaS Provider is the owner of or licensee of all rights necessary and appropriate to perform the Services and grant the rights hereunder to the Application Platform and other Deliverables;

11.1.2. SaaS Provider has the power and authority to enter into this Agreement;

11.1.3. the Services will be performed in a timely, professional and workman-like manner in accordance with industry standards, and with a degree of care, skill and expertise as is required for the provision of services of a similar nature;

11.1.4. the Application Platform and Services will be provided and perform in all material respects the functions and features described in the then-current Documentation and as otherwise required under the applicable Order or SOW; SaaS Provider will promptly repair or replace any non-conformity associated with the Application Platform or SaaS Service so that each are in compliance with the Documentation and this Agreement;

11.1.5. SaaS Provider shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services;

11.1.6. SaaS Provider will not violate any law or regulation or any agreements with any third-party as a result of performing its obligations under this Agreement;

11.1.7. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SaaS Provider or the providers of third-party products, or because of other causes beyond SaaS Provider's reasonable control, but SaaS Provider shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption;

11.1.8. there are neither pending nor threatened, nor to the best of SaaS Provider’s knowledge, contemplated, any suits, proceedings, actions, or claims which would materially affect or limit the rights granted to Client under this Agreement;

11.1.9. Prior to making available the Service or Application Platform (including any updates, upgrades, or enhancements) to Client or its Affiliates, SaaS Provider will use commercially reasonable efforts to detect and screen out any Virus or malicious code through the use of one or more current virus and malware detection programs. For purposes of this Agreement, “Virus” means a set of computer instructions that are self-replicating or self-propagating and whose purpose or effect is to contaminate software, consume computer resources, or modify, destroy, record or transmit data or programming without the intent or permission of the user, including, without limitation, Trojan horses, worms or like destructive code; and

11.1.10. the Documentation will be sufficient to allow a user qualified in the subject matter of the application to use the Application Platform or Services.

11.2. Client’s Representations and Warranties. Client represents and warrants to SaaS Provider that:

11.2.1. Client has the power and authority to enter into this Agreement;

11.2.2. the performance of Client’s obligations under this Agreement and use of Services will not violate any applicable law, rule or regulation or any applicable manufacturers' specifications or unreasonably interfere with SaaS Provider’s or its other customers' use of the Services or network; and

11.2.3. Client shall not carry out any act or omission that results in SaaS Provider breaching any law, rule, or regulation.

11.3. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SAAS PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, WHETHER ORAL OR WRITTEN, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION AND AS PERMITTED BY LAW, WARRANTIES AS TO SATSIFACTORY QUALITY, MERCHANTABILITY, ACCURACY OF RESULTS, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SAAS PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE APPLICATION PLATFORMS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CLIENT’S OR ANY THIRD-PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

12. PLATFORM MODIFICATIONS. From time-to-time SaaS Provider may make modifications to the Application Platform or Services and will not materially reduce or diminish functionality of the Application Platform or Services.

13. FORCE MAJEURE. Neither Party will be liable to the other for any loss, damage, delay or breach in performing any obligations hereunder to the extent resulting from any cause or event beyond the control of the Party being released hereby, including acts of God, telecommunication or power suppliers, and acts or omissions of civil or military authorities, but only to the extent such Party being released did not contribute to and could not have reasonably prevented or mitigated the impact thereof (e.g., through redundancies and workarounds which, in the case of SaaS Provider, include execution of the Disaster Recovery Plan and redundant Data Centers) (“Force Majeure”). Nothing herein releases SaaS Provider from performing its disaster recovery and business continuity obligations or being responsible for its contractors or subcontractors. SaaS Provider further agrees that (i) to the extent that any Force Majeure event prevents or hinders the use of the Services or Application Platform for more than five (5) consecutive days or ten (10) days in any calendar year, then Client may terminate and receive a pro-rata refund of any pre-paid Charges and fifty percent (50%) of the Implementation Service Charges (less a reasonable allowance for straight-line amortization over a three (3) year period from first productive use), and (ii) no Charges will apply during any period in which the Services are not provided or the Application Platform is not available for use due to Force Majeure. The Party seeking to be released under this Section will as soon as practicable notify the other Party of the Force Majeure event. A Force Majeure event does not release a Party from its payment obligations to the other Party.

14. INSURANCE.

14.1. SaaS Provider’s Insurance. SaaS Provider will maintain, for the Term, any reasonably necessary insurance to maintain performance under this Agreement.

14.2. Insurance Requirements. All insurance policies must be primary and non-contributing and must be issued by companies licensed in the state where the Services are to be performed who hold a current Policy Holder Alphabetic Category Rating of not less than “A-” and Financial Size Category Rating of not less than “VII” according to the latest edition of A.M. Best's Key Rating Guide. Any other insurance carried by Client, which may be applicable, will be deemed to be excess insurance and SaaS Provider's insurance must contain a provision that it is deemed primary and non-contributing with any insurance carried by Client. Each insurance policy required of SaaS Provider must contain a cross-liability or separation of insureds provision that provides that the insurance applies separately to each insured against whom a claim is filed and that the policies do not exclude coverage for claims or suits by one insured against the other. SaaS Provider's insurance may be provided on the basis of primary and umbrella/excess coverage as long as the primary coverage is a minimum of $1 million and the umbrella/excess coverage is at least as broad as the coverage under the primary policy, including the coverage for all additional insureds. It is the intent of the Parties to have SaaS Provider's, and not Client's, insurance cover claims brought against either Party that arise out of or are related SaaS Provider’s performance under this Agreement.

14.3. Additional Insured. All of SaaS Provider's insurance must not be terminated, permitted to expire, subject to non-renewal, or materially altered, except on 30 days' prior written notice to Client. Such insurance must be maintained with deductible amounts, with insurers, and with forms that are acceptable to Client and must name Client as an additional insured, with coverage provided such additional insured as broad as provided to the named insured; provided, however, that the foregoing will not apply with respect to the Workers' Compensation or Employer's Liability Insurance. Prior to execution of this Agreement and if requested by Client in writing, SaaS Provider must furnish certificates of insurance to Client evidencing all the insurance required above. SaaS Provider will not cancel or materially alter insurance coverage without providing thirty (30) days prior written notice to Client. Notwithstanding anything else, if SaaS Provider fails to promptly provide Client with any such certificates, Client may terminate this Agreement immediately upon notice to SaaS Provider.

14.4. Subrogation. SaaS Provider hereby waives all rights of recovery against Client on account of loss or damage occasioned to SaaS Provider or others under SaaS Provider’s control or for whom it is responsible to the extent such loss or damage is insured against under any of SaaS Provider’s insurance policies which may be in force at the time of the loss or damage or would have been insured against if SaaS Provider had complied with its obligations under this Article.

14.5. Cooperation. SaaS Provider agrees to reasonably assist and cooperate with Client with regard to the adjustment of all claims arising out of the performance of the Services and to reasonably cooperate with Client and any insurance companies in litigation or other disputes relating to such claims.

15. GENERAL.

15.1. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.2. Assignment. This Agreement will be binding on the Parties hereto and their respective successors and valid assigns. Neither Party may, or will have the power to, assign this Agreement without the prior written consent of the other Party, except that either Party may assign its rights and obligations under this Agreement, in whole or in part, to any then-existing Affiliate of such Party or in the event of any merger, sale of all or substantially all of such Party’s assets, or other similar transaction; provided that in no event will such assignment relieve such Party of its obligations under this Agreement. Subject to and except as set forth in the foregoing, any assignment by operation of law, by order of any court, or pursuant to any plan of merger, consolidation or liquidation, and any change of control of a Party will be deemed an assignment for which prior consent is required, and any assignment made without any such consent will be void and of no effect.

15.3. Governing Law. This Agreement is governed by and construed in all respects in accordance with the laws of the State of Delaware, U.S.A. other than such laws, rules, regulations, statutes, and case law that would result in the application of the laws of a State other than Delaware (without regard to conflicts of laws principles), excluding the United Nations Convention on Contracts for the International Sale of Goods.

15.4. Escalation. The Parties agree to use good faith in negotiating all disputes between the Parties arising out of this Agreement. Notwithstanding anything to the contrary, nothing in this section will prevent or delay either Party from exercising its right to terminate in accordance with this Agreement and each Party is authorized to institute formal proceedings at any time to: (i) avoid the expiration of any applicable limitations period, (ii) obtain equitable relief, (iii) preserve a superior position with respect to other creditors, (iv) resolve a Party’s rights with respect to intellectual property, Confidential Information, or compliance, or (v) obtain injunctive relief.

15.5. Venue. Any claim, whether based on contract, tort, or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out or relating to this Agreement or any Order or SOW, including its interpretation, performance, breach or termination, not resolved by good faith negotiations and escalation as specified above, will be brought only in the United States District Court for Delaware or, if such court would not have jurisdiction over the matter, then only in the State courts of Delaware, and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. Service of process in any such action may be effected in the manner provided in Section 15.7 (Notices) for delivery of notices. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING (WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF, OR RELATED TO, THIS AGREEMENT.

15.6. Severability. If any provision of this Agreement is found to be invalid, illegal, or unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and this Agreement will otherwise remain in full force and effect.

15.7. Notices. Wherever provision is made in this Agreement for the giving, service, or delivery of any notice, such notice shall be given using a method providing for proof of delivery, which shall include acknowledgement of receipt of email

● Enhancement Request - request to add functionality to the core software product. Enhancement requests may be scheduled at SaaS Provider's discretion, based on the perceived usefulness of the request for other customers. Note that enhancement requests may also be performed as paid custom development at SaaS Provider's request, should SaaS Provider choose not to incorporate them as a general enhancement.

15.8. Precedence. All Orders and SOWs are subject to and incorporate this Agreement, including its Exhibits. If there is a conflict between (i) an Order or SOW and (ii) the Terms and Conditions in this Agreement, these Terms and Conditions take precedence, unless expressly provided otherwise. In addition, these Terms and Conditions take precedence over the Exhibits.

15.9. Counterparts. This Agreement may be executed in several counterparts and by each Party on a separate counterpart, each of which, when so executed and delivered shall be an original, but all of which together shall constitute but one and the same instrument. This Agreement shall not become binding on any Party until all Parties to the Agreement have transmitted to the other Party a counterpart executed by the transmitting Party. A facsimile signature or signature delivered as an imaged attachment to an e-mail message shall be deemed equivalent to an original ink signature.

15.10. Compliance with Laws and Regulations. SaaS Provider will perform its obligations in a manner that complies with applicable federal, state, and local laws, regulations, ordinances, and codes (including identifying and procuring required permits, certificates, approvals, and inspections), including laws prohibiting discrimination on the basis of race, color, religion, age, sex, ancestry, medical condition, marital status, sexual orientation, veteran status, handicap, or national origin. If a charge occurs of noncompliance by SaaS Provider with any such laws, regulations, ordinances, or codes, SaaS Provider will promptly notify Client of such charge in writing.

15.11. Direction and Control. SaaS Provider’s personnel, whether employees, independent contractors or subcontractors, performing Services will at all times be under SaaS Provider’s exclusive direction and control and will not be deemed employees of Client. SaaS Provider will be responsible for payment of its independent contractors, subcontractors and its employees’ entire compensation and benefits, as applicable, including employment taxes, worker’s compensation, unemployment compensation and any similar taxes associated with employment or their relationship. SaaS Provider’s Personnel are not eligible to participate in any employment benefit plans or other benefits available to Client’s personnel. Client and SaaS Provider agree that neither Party will be an employee, agent, partner or joint venturer of or with the other. SaaS Provider, in furnishing the Services, is acting as Client’s independent contractor. SaaS Provider will be fully responsible for the acts and omissions of its employees, contractors, subcontractors, and other delegates as if they were performed by SaaS Provider, except as otherwise provided in this Agreement. Neither Party has any authority to represent, contract, or commit the other in any matters, except as expressly authorized in this Agreement.

15.12. Export. The Parties will not export, directly or indirectly, any technical data acquired from the other Party pursuant to this Agreement to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval.

15.13. Entire Agreement. This Agreement (including its Orders, SOWs, and Exhibits) constitutes the entire agreement between SaaS Provider and Client with respect to the subject matter of this Agreement and may only be modified by a written amendment or addendum signed by both SaaS Provider and Client. No employee, agent, or other representative of either SaaS Provider or Client has authority to bind the other with regard to any statement, representation, warranty, or other expression unless it is specifically included within the express terms of this Agreement or a written addendum signed by both SaaS Provider and Client. All purchase orders, prior agreements, representations, statements, proposals, negotiations, understandings, and undertakings with respect to the subject matter of this Agreement are superseded by this Agreement.

15.14. Publicity. SaaS Provider shall be permitted to use Client’s names, logos, service marks, trade names or trademarks or refer to Client directly or indirectly in any media release, Platforms, public announcement, or public disclosure relating to this Agreement and any Orders, including in any promotional, advertising or marketing materials, customer lists or business presentations, or make any public statements about this Agreement, the Services, or its relationship with Client without the prior written consent of Client; provided that any such usage shall be subject to the reasonable review and written approval of Client, and Client may revoke such approval at any time which shall result in the termination of all publicity rights and require the prompt removal of any such usage to the extent feasible.

EXHIBIT A

SUPPORT

SaaS Provider shall perform the technical support services (“Support Services”) described in this Exhibit A, with no additional consideration or compensation by Client, during the term of this Agreement in accordance with the terms and conditions of this Exhibit A.

1. PROBLEM CLASSIFICATION

All technical issues related to the use of the Services by Client (“Issues”) shall be reported to authorized personnel or person of contact of SaaS Provider (such report, “Support Request”) to be Resolved by SaaS Provider. Upon receipt of a Support Request from Client, SaaS Provider shall issue a support ticket (“Support Ticket”) to keep track of the status of the Issue and shall work to Resolve such Issue. “Resolve”, “Resolved”, “Resolution”, and correlative capitalized terms mean, with respect to any particular Support Request, that SaaS Provider has corrected the Issue that prompted that Support Request and that Client has confirmed such correction and its acceptance of it in writing. Upon Resolution of the Issue, SaaS Provider may close the corresponding Support Ticket issued to the Client and terminate the Support Services with respect to such Issue.

Upon submission of a Support Request by the Client, the Issues and corresponding Support Tickets are placed into three general categories as follows:

● Support Issue - a question about standard SaaS Provider functionality that does not involve changes to the core software product, although it may involve changes to the configuration made by the administrator using their browser. Support Issues can generally be Resolved within a few hours of submission of Support Request based on advice provided by support staff.

● Bug - a defect in the core software product. SaaS Provider shall respond to and use reasonable commercial efforts to Resolve Issues deemed to be Bugs in accordance with Section 3 (Exclusions), which priority shall be determined in good faith by Client. Because it is usually possible to accomplish the same task in more than one way in SaaS Provider's software, SaaS Provider is often able to provide reasonable workarounds to any functional bugs.

2. PRIORITY RESPONSE TIMES FOR PROBLEMS

SaaS Provider shall respond to Client’s Support Requests for Issues that have been classified as Bugs within the following Investigation Response Times and Resolve such Issues within Target Resolution Times. Investigation Response Times and Target Resolution Times will be measured from the time SaaS Provider receives a Support Request until the respective times SaaS Provider has (a) responded to that Support Request, in the case of Investigation Response Times and (b) Resolved that Support Request, in the case of Target Resolution Time. The hours during which SaaS Provider is obligated to work on Resolution of such Issues are restricted to standard business hours, which are from 9:00 am to 7:00 pm EST, Monday through Friday, except on federal holidays (“Standard Business Hours”). If a Support Request for Priority 1 Issue is submitted during Standard Business Hours, SaaS Provider will continue working on it outside of Standard Business Hours until Resolved, provided that SaaS Provider is given necessary access to relevant Client documents and Client personnel that are available as needed. SaaS Provider will use SaaS Provider's best efforts to meet the response times and resolution targets set forth in this Section.

3. EXCLUSIONS

Problems caused by or arising from the following will not be considered “Issues” for the purposes hereof and will not be subject to SaaS Provider's obligation to provide Support Services:

a. failure of server hardware or equipment not owned or directly controlled by SaaS Provider or its subcontractors (subcontractors include Amazon Web Services or any other cloud services provider);

b. failure of telecommunications or internet hardware or equipment not owned or directly controlled by SaaS Provider or its subcontractors (subcontractors include Amazon Web Services or any other cloud services provider);

c. failure directly resulting from errors made by the Client’s system administrator; and

d. irreversible destruction of data directly caused by direct actions taken by Client.

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