Effective BEFORE December 6, 2023

These “Terms and Conditions” are an integral part of any Order Form (and overall relationship) between SourceDay, Inc., a Delaware corporation (“we,” “us,” “our,” or “SourceDay”) and you.  Together, these Terms and Conditions, the Order Form(s), and all exhibits, schedules, policies and annexes incorporated herein by reference, constitute the “Agreement”. “You” (or “your(s)”) refers to the party accessing the Services pursuant to an Order Form which both you and we have executed.  An Affiliate of yours may use the Services only to the extent set forth in an Order Form.  

SourceDay provides online tools, accessed via your username and chosen password, which integrates with your Enterprises Resource Planning and accounts payable system (collectively, “ERP”) and to automate and streamline management of your vendor’s purchase orders (“PO’s”) and vendor invoice payments. These tools are made available by us as remote online services via the customer login link at https://www.SourceDay.com and/or other web pages designated by Us (the “Services”).  

1.  DEFINITIONS

a. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.  “Control,” for purposes of this definition, means direct or indirect ownership of more than 50% of the voting interests of the subject entity or the actual ability to control the management decisions of the entity.

b. “Aggregate Data” means aggregated, non-identifiable data, which is combined with data from other customers and cannot be reasonably used to identify you or your customers or your vendors/suppliers (“Suppliers”), which results from your use of the Services and/or our provision of the Services to you.   

c. “Documentation” means any proprietary documentation made available to you by SourceDay for use with the Services, including any documentation available on our website or otherwise, and including the User Guide.

d. “Intellectual Property Rights” means patent rights, trademark rights, copyrights, moral rights, publicity and privacy rights, sui generis database rights, and all other proprietary rights, throughout the world.  

e. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts or programs.

f. “Order Form” means the documents for placing orders for the Services, including any amendments or addendums, that are entered into between the parties or any of their Affiliates.  By entering into an Order Form or using the Services, an Affiliate agrees to be bound by these Terms and Conditions as if it were an original party hereto. 

g. “Services” are defined above and include both Trial Services and Services for which you or your Affiliates are charged a fee by us.  The Services are provided solely as a remote online service (i.e., as a “software as a service” or “SaaS” product).

h. “Software” means any computer code (source, object or otherwise) which is used in providing the Services, including our proprietary software which generates any reports or dashboards (“Reports”).  You are not entitled to physical access to any Software under this Agreement.

i. “Service Term” has the meaning set forth in Section 12.2

j. “SourceDay Materials” means collectively Reports, Software, Services and Documentation.

k. “Trial Services” refers to Services which are provided to you on a temporary basis and without a fee.

l. “User Guide” means any online user guide for the Services that is currently, or may in the future, be provided for your reference, accessible via login at https://www.SourceDay.com, as updated from time to time. 

m. “Users” means individuals who are authorized by both you or your affiliates and us to use the Services, for whom subscriptions to a Service have been ordered, and who have been supplied user identifications and passwords. Users may include but are not limited to your employees, consultants, contractors, Suppliers, agents, and third parties with whom you transact business.

n. “Your Data” means all electronic data or information submitted by you (including by your Users and by Suppliers from whom you obtain any materials) to SourceDay whether through the Software or otherwise.

2.  LICENSE.  Subject to the terms and conditions of the Agreement and your payment of all fees required pursuant to the Agreement, SourceDay grants to you and your Users a terminable, revocable, non-exclusive, non-transferable (other than in connection with an allowed assignment under Section 14.4), worldwide license (without the right to sublicense) during the term of the applicable Order Forms, to access and use the Services solely in accordance with applicable User Guides and Documentation and solely for your internal business purposes.  SourceDay reserves the right to modify the Services or Software at any time provided such modifications do not reduce the functionality of the Service or Software.  You understand that this Agreement grants certain rights of access only, and that nothing in this Agreement shall be interpreted to require delivery of a copy of any Software to you or installation of a copy of such Software on your computers or systems.  This Agreement grants only a limited right of use and does not constitute a sale of Software and does not transfer to you any title or any ownership right or interest in any SourceDay Materials nor in any Intellectual Property Rights in the SourceDay Materials.  Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in these Terms and Conditions, is void from its inception.  SourceDay reserves all rights not expressly granted under this Agreement. 

3.  SERVICES 

3.1.  Provision of Services. We shall make the Services available to you pursuant to this Agreement and the relevant Order Forms during the subscription term set forth in the Order Form.  You agree that your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public or private comments made by us regarding future functionality or features.

3.2.  User Subscriptions. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions to which they were added even if they were ordered at a later date (i.e., added subscriptions end on a coterminous basis with pre-existing service terms).  User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users in replacement of former Users who no longer require ongoing use of the Services.  You must inform us of each User’s name, other information we may reasonably request related to Users, and any changes in such information. 

4. OUR ADDITIONAL OBLIGATIONS

4.1.  Compliance with Applicable Law.  We shall provide the Services in accordance with applicable laws and government regulations. 

4.2.  Data Security and Ownership.  We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, availability, confidentiality and integrity of Your Data.  We shall not (a) modify Your Data except to the extent necessary to provide the Services to you, (b) disclose Your Data except as compelled by law in accordance with Section 8.3 (Compelled Disclosure) or as expressly permitted in writing by you, or (c) access Your Data except: to provide or improve the Services, to prevent or address service or technical problems, at your request in connection with customer support matters, or to use Aggregated Data as permitted in accordance with Section 6.2 of this Agreement.  SourceDay hereby acknowledges that, as between you and SourceDay, you own all legal right, title, and interest in and to Your Data and all Intellectual Property Rights therein.  Notwithstanding the foregoing you hereby grant SourceDay a non-exclusive non-transferable (other than in connection with an allowed assignment under Section 14.4) right and license during the term of any Order Form to (i) store, transmit, manipulate/transform, copy, use, modify, distribute, display and disclose Your Data solely to the extent necessary for SourceDay to perform its obligations under this Agreement, (ii) copy, modify and use Your Data in connection with internal operations and functions, including, but not limited to, operational analytics and reporting, internal financial reporting and analysis, audit functions and archival purposes and (iii) copy, use, modify, distribute, display and disclose Aggregate Data in connection with its business services and offerings.

4.3.  Support.  We shall provide support for the Services as set forth in the Support Commitment attached as Exhibit A, and shall use commercially reasonable efforts to make the Services available to Users as set forth therein.  Trial Services are not entitled to any support, and the obligations set forth in this paragraph do not apply to Trial Services, for which all warranties are disclaimed.  

5. YOUR ADDITIONAL OBLIGATIONS

5.1.  Maintaining Access Controls; Backing Up Data.  You are responsible for maintaining the security and confidentiality of any User accounts, access codes, passwords, connectivity standards or protocols necessary to enable you to obtain access to the Services, and for notifying us of assigned User accounts that need to be terminated.  You are also responsible for protecting and backing-up the data in your ERP system that is created, used, stored and/or transmitted in connection with the use of the Services.  SourceDay shall have no liability whatsoever for any loss of, or failure to recover, such data, or any loss or disruption (“Data Loss”) caused by your failure to properly back-up Your Data on a periodic basis, except to the extent any Data Loss is a result of SourceDay’s failure to secure Your Data in accordance with Section 4.2.  

5.2.  Additional Obligations.  You are also responsible for (a) Users’ compliance with this Agreement; (b) using the Services only in accordance with the Documentation and applicable laws and government regulations; (c) obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services; (d) paying all third-party fees and access charges (e.g., ISP telecommunications services, etc.) incurred while using the Services and for providing sufficient bandwidth and network connectivity to ensure all Users can access and use the Services satisfactorily; (e) ensuring your firewalls and proxies permit access to the SourceDay URLs / IP Addresses through the TCP/IP Port which we advise you, and meet any other technical specifications of which we reasonably advise you; (f) determining the security configurations of your systems (e.g. password construction rules, expiration intervals, etc.); (g) promptly notifying us of any actual or reasonably suspected information security breaches of which you become aware, including without limitation compromised User accounts; and (h) for periodically reviewing your security configurations and access rights to determine if they are appropriate for your needs.

5.3.  Changes to Your ERP System.  

a. If you modify your ERP system (without changing the provider) in a way that may affect the functioning of our Services (including a minor version update), please notify us in advance so that we are aware of the change and may plan for it.  

b. If you change your ERP system to a different provider/different system or roll out a new major release within the same system during the term, additional engineering may be required in order to maintain compatibility with our Services.  You agree to cooperate with us in all reasonable ways to allow us to update our Services to work with your changed systems.  

c. If the new ERP system is one that we support, there will be no additional fee for the integration work required, but there may be a period during the transition during which you will be unable to use the Services.  The parties further agree to work together in good faith to minimize downtime of the Services.  

d. If the new ERP system is not a system we support, we will quote you costs for the engineering required to support the new system, and we will not proceed with the work until we have mutually agreed on the costs for the work.  If the quote for additional engineering is equal to or less than one monthly payment, you agree in advance that you will pay such amount upon being invoiced and cooperate to allow us to expeditiously perform the work, and we agree to do so.  However, if the parties are unable to agree upon such price within thirty (30) days of when we provided you the quote, and the quoted price exceeds per-month cost of the Services, either party may terminate this Agreement effective upon the commencement of use of the new ERP by providing thirty (30) days written notice. If so terminated, you shall be liable for all remaining fees owed to us under this Agreement and all Order Forms for the then-current term and shall pay such amounts within thirty (30) days of the termination.

5.4.  Suspension.  We may, in our reasonable discretion, and without prior notice under exigent or emergency situations where we deem suspension reasonably necessary to prevent potential harm to our or other’s networks or a potential illegal act (in which case we will give you notice as soon thereafter as is reasonably practicable). We may also issue a warning or, upon five (5) business days’ notice, suspend your account and access to the Services, (without waiving subsequent termination rights), if you breach or threaten to breach this Agreement or if we are unable to verify or authenticate any information you have provided.  We will reinstate your access as soon as you have demonstrated to our reasonable satisfaction that the issue has been resolved and will not reoccur, unless we have terminated this Agreement for cause prior to that time.

6.  PROPRIETARY RIGHTS

6.1.  Our Rights in Services; License Restrictions.  You acknowledge and agree that the SourceDay Materials represent Intellectual Property Rights and are the property of SourceDay or its licensors, and that they contain valuable assets, proprietary information and property of SourceDay, and are provided to you only for use strictly in accordance with the terms and conditions of this Agreement.  We reserve all rights, title and interest in and to the Services, including all related Intellectual Property Rights. No rights are granted to you hereunder other than as expressly set forth herein.  

You agree not to do any of the following: (a) use the Services to upload, record or otherwise transmit any data that: infringes any third party’s Intellectual Property Rights; violates any law, statute, ordinance or regulation; or is defamatory, trade libelous, threatening, harassing, obscene, harmful, or pornographic; (b) copy, frame or mirror any part or content of the Services, other than copying or framing on your own intranets or otherwise for your own internal business purposes, (c) download, use, install, deploy, perform, modify, license, display, reproduce, distribute or disclose the SourceDay Materials other than for your own internal business purposes and only among your Users; (d) sell, license, lease, transfer, rent, loan, pledge, or allow any third party that is not properly assigned as a User to access the SourceDay Materials; provided, however, the parties acknowledge that your Suppliers are permitted (when properly licensed by us if required) to access our vendor applications pursuant to the appropriate vendor license from us; (e) modify, translate, reverse engineer (except to the limited extent required to be permitted by any applicable laws), decompile, disassemble, create derivative works based on, sublicense or distribute any SourceDay Materials; (f) use the SourceDay Materials for benchmarking, timesharing or service bureau purposes; (g) remove, alter or obscure any copyright notice, proprietary notice, labels or marks on the SourceDay Materials; (h) bypass the measures we may use to prevent or restrict access to the Services or other security features; (i) share any user authentication information and/or password related to the Services with any third party to allow a third party to access the Services or SourceDay Materials, (j) use SourceDay Materials to develop any similar service; (k) use SourceDay Materials in violation of any federal, state, or local law, rule, or regulation, or any third-party right; (l) knowingly take any action that imposes, or may impose an unreasonable or disproportionately large load on our infrastructure; (m) upload Malicious Code or invalid data through the Services; or (n) collect information or content from our website using automated means (such as harvesting bots, robots, spiders, or scrapers).  You are responsible for all use (including the use by your Users or any of your employees or agents) of any SourceDay Materials and for compliance with this Agreement. 

6.2.  Your Data.  You agree that in connection with the Services, SourceDay has the right to collect Aggregate Data resulting from your use of the Services.  SourceDay will not use the Aggregate Data in any manner which could result in it being identified as your data.  You further agree that, for purposes of this Agreement, the Aggregate Data shall not be considered Your Data.  Subject to the limited rights granted hereunder, we acquire no right, title or interest from you or your licensors under this Agreement in or to Your Data, including any Intellectual Property Rights therein.  Under no circumstances will SourceDay be liable to you or to any person or entity for any alleged damages resulting from the use of Your Data in accordance with the rights granted by you in Section 4.2 to provide the Services.  

Upon termination of this Agreement, you agree that any of Your Data (excluding Aggregate Data) uploaded to the Service shall be delivered to you in accordance with Section 12.5 of this Agreement and thereafter promptly destroyed or deleted from our systems in the normal course of business, except as otherwise expressly set forth elsewhere herein provided, however, we will not be required to search archived electronic back-up files of our computer systems for Your Data in order to purge it from our archived files; provided further, that we may make no use of such data.

6.3.  Suggestions. You hereby grant, and we shall have, a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SourceDay Materials any suggestions, enhancement requests, ideas, error identifications, recommendations, or other feedback provided by you, including Users, relating to the operation of the Services.

6.4.  Publicity.  Only during the term of the Agreement, SourceDay shall have the right to identify you as a customer of SourceDay in presentations to customers, prospects and potential investors, to include use of your name and logo (“Marks”) provided we do so on an aggregated basis with the names of other customers. We will immediately modify or cease use of your name or Marks if you notify us to do so. Any other use of your name or Marks (for example, including linking to your website, or inclusion in customer lists for the purpose of advertising or publicizing SourceDay’s business) shall require that we obtain your written permission in each instance before any such use.  Nothing in this Agreement will confer on SourceDay any right of ownership or interest in your Marks or the Intellectual Property Rights therein.  You reserve all rights in your Marks not expressly granted under this Agreement.

7.  FEES AND PAYMENT

7.1.  Fees and Invoices.  You shall pay all fees specified in all Order Forms hereunder.  Except as otherwise specified herein or in an Order Form, fees are based on Services purchased and not actual usage; payment obligations are non-cancelable and fees paid are non-refundable; and the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form.  User subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; any later-added User subscriptions added to a subscription at any time during a Service Term will be charged on a prorated basis for the first month and the last month of the existing Order Form Service Term plus a full month for all other monthly periods remaining in the Service Term.  Unless stated otherwise on the Order Form, the initial annual fee is due in advance within thirty (30) days of execution of the Order Form, and thereafter all annual fees are due in advance prior to the start of the next annual period.  We will provide you an invoice at least thirty (30) days in advance of each new annual period. You shall submit the payment for all undisputed amounts by the payment due date specified in the Order Form. You are responsible for providing complete and accurate billing and contact information to us and keeping it updated for all changes.

7.2.  Overdue Charges.  If any undisputed charges are not received from you by the due date, we may impose interest on such amounts at the rate of 1.0% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.  You are responsible for any collection and/or attorney’s fees we incur in attempting to collect any undisputed amounts that you owe us hereunder.  In addition, if any undisputed amount is at least thirty (30) days overdue upon at least five (5) business days’ written prior notice, we may, without limiting our other rights and remedies including those remedies set forth in Section 12 hereof, suspend the Services until all amounts owed to us are paid in full.    

7.3.  Disputed Charges.  In order for a charge to be considered disputed for purposes of the preceding section, you must (a) notify us in writing of the dispute by the time the payment for it would otherwise have been due; (b) have a reasonable and good faith basis for the dispute, which you must describe in your notice to us in reasonable detail in order to give us an opportunity to address it; (c) pay the undisputed portion of the invoice owed to us by its due date; and (d) cooperate diligently to resolve the dispute.

7.4.  Taxes.  Unless otherwise stated, our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively—but excluding all taxes based solely on our income, properties, or employees—the “Taxes”).  You are responsible for paying all Taxes associated with your purchase of Services.  If we have the legal obligation to pay or collect Taxes for which you are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by you, unless you have provided us with a valid tax exemption certificate authorized by the appropriate taxing authority.  

8. CONFIDENTIALITY

8.1.  Definition of Confidential Information. “Confidential Information” means all non-public information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential/proprietary or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including business and marketing plans, technology and technical information, product plans and designs, employee information, vendor and supplier information, POs, and business processes.  Your Confidential Information shall include Your Data; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms.  However, Confidential Information (other than Your Data) shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of or reference to Disclosing Party’s Confidential Information.

8.2.  Protection of Confidential Information.  The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care to (i) not to use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have written confidentiality obligations to the Receiving Party containing protections no less stringent than those herein.  Notwithstanding the foregoing, a Receiving Party may disclose Disclosing Party’s Confidential Information to its attorneys, accountants, and potential investors, so long as such entities are bound by confidentiality agreements consistent herewith.

8.3.  Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law (including by order of a governmental authority of competent jurisdiction) to do so, provided the Receiving Party: (a) gives the Disclosing Party prompt notice of such compelled disclosure (to the extent legally permitted); (b) discloses only the minimum amount necessary to comply with the legal requirement; and (c) provides reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

9.  WARRANTIES AND DISCLAIMERS

9.1.  Mutual Warranties.  Each party warrants to the other party that it (i) has validly entered into this Agreement and has the legal power to do so; and (ii) will not knowingly transmit Malicious Code to the other party (provided that any file uploaded into the Services by the other party/its Users containing Malicious Code and then transmitted by warranting party is excluded from this warranty).

9.2.  SourceDay Limited Warranties.  As limited by Section 9.4 below, SourceDay warrants to you that (i) the Services will be provided in a good and workmanlike fashion generally consistent with the quality-of-service standards prevalent in the procurement SaaS industry; (ii) the Services shall perform materially in accordance with the Documentation; and (iii) subject to Section 5.3, the functionality of the Services will not be materially decreased during a subscription term.   If you inform us, with specificity and in writing, of any alleged breach of these warranties, we shall endeavor to cure such breach, if any, for up to thirty (30) days, and if we fail to do so, your sole and exclusive remedy shall be the right to immediately terminate this Agreement upon providing written notice and to receive a prorated refund for any prepaid fees you have paid for any periods of time during which you will not receive access to the Services as a result of such termination (“Unearned Fees”).  The warranties in this paragraph do not apply to Trial Services.

9.3.  Your Warranties. You warrant to SourceDay that you: (i) are the owner or authorized to use and share Your Data; (ii) are solely responsible for Your Data except as otherwise set forth in this Agreement; and (iii) acknowledge and agree that SourceDay neither controls nor guarantees the accuracy, integrity, or quality of Your Data as you submit it to SourceDay or the Software.  

9.4.  DISCLAIMER.  EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THOSE ARISING BY COURSE OF CONDUCT OR COURSE OF DEALING, AND INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  IN ADDITION, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR ALL ACTIONS YOU TAKE (OR ACTIONS YOU FAIL TO TAKE/OMISSIONS YOU MAKE) BASED ON ANY INFORMATION YOU RECEIVE FROM US.  WE EXPRESSLY DISCLAIM ANY WARRANTIES BASED ON ANY REPORTS, GUIDANCE, SUGGESTIONS OR RECOMMENDATIONS WHICH YOU MAY RECEIVE FROM US. 

9.5.  Beta Services and Trial Services.  From time to time, we may provide you with an opportunity to try such products or services that are not generally available in production to our customers (“Beta Services”).  You may accept or decline any such trial in your sole discretion.  Any Beta Services will generally be designated as beta, pilot, limited release, “not generally available”, developer preview, non-production, or by a similar description. Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms.  We may discontinue Beta Services at any time in our sole discretion and may never make them generally available.  BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTIES, AND ALL WARRANTIES REGARDING BETA SERVICES ARE EXPRESSLY DISCLAIMED.  TRIAL SERVICES ARE ALSO PROVIDED AS-IS WITH NO EXPRESS OR IMPLIED WARRANTIES, AND ALL WARRANTIES REGARDING TRIAL SERVICES ARE EXPRESSLY DISCLAIMED.

10.  INDEMNIFICATION 

10.1.  Indemnification by SourceDay.  We shall defend you (for purposes of this paragraph, including any of your or your Affiliates’ officers, directors, and/or  agents, the “Indemnified Parties”) against any claim, demand, suit, or proceeding made or brought against the Indemnified Parties by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the United States Intellectual Property Rights of a third party (a “Claim Against You”), and shall indemnify and hold the Indemnified Parties harmless from and against any damages, attorney fees and costs pursuant to any verdict against the Indemnified Parties or any settlement we have agreed to settle in respect of a Claim Against You.  Provided, however,  that our indemnification obligations with respect to a Claim Against You will not apply to the extent that the claim is based on or relates to (i) any modification to the Services made by persons other than SourceDay and without SourceDay’s authorization, (ii) Your Data, (iii) the combination of the Services (or any component thereof) with any software, hardware, equipment or materials not provided by us, (iv) Indemnified Parties’ use of the Services in violation of the terms, conditions or restrictions set forth in the Agreement, or (v) Indemnified Parties’ use of the Services after we have instructed you in writing to cease use because of the potential for an infringement claim, or Indemnified Parties’ use of a superseded version of the Services if we have made a newer version available to you at no additional charge.  

10.2.  Right to replace Infringing Services.  Without limiting our obligations under the preceding section, in the event of a Claim Against You, or if we reasonably believe the Services may infringe or misappropriate any Intellectual Property Rights, we may in our discretion and at no cost to you: (i) modify the Services so that they no longer infringe or misappropriate, (ii) obtain a license for your continued use of the Services, or (iii) terminate your User subscriptions for such Services upon thirty (30) days’ written notice and refund to you any Unearned Fees. 

10.3.  Indemnification by You.  You shall defend us (for purposes of this paragraph, including any of our or our Affiliates’ officers, directors, and/or  agents, the “Indemnified Parties) against any claim, demand, suit or proceeding made or brought against the Indemnified Parties by a third party alleging that Your Data, or your use of the Services in breach of this Agreement, infringes or misappropriates the Intellectual Property Rights of a third party or violates applicable law (a “Claim Against SourceDay”), and shall indemnify the Indemnified Parties from and against any damages, attorney fees and costs pursuant to any verdict against the Indemnified Parties or any settlement you have agreed to settle in respect of a Claim Against SourceDay.

10.4.  Indemnification Procedures.  In order to receive indemnification hereunder, the Indemnified Party must comply with the following: (a) the Indemnified Party shall promptly notify the indemnifying party in writing of each such claim or suit and provide the indemnifying party with all information known to Indemnified Party relating thereto; (b) the indemnifying party shall be given sole control of the defense and settlement (although the Indemnified Party may participate with its own counsel at its own expense); and (c) the Indemnified Party must cooperate as reasonably requested with the indemnifying party in the settlement and/or defense.  The Indemnified Party will be reimbursed for its reasonable out-of-pocket expenses incurred in providing any cooperation requested by the indemnifying party.  The indemnifying party is not entitled to settle any claim without the Indemnified Party’s prior written consent (not to be unreasonably withheld) unless the settlement involves only the payment of monetary damages by the indemnifying party.

10.5.  Exclusive Remedy. This Section 10 (Indemnification) states the indemnifying party’s sole liability to, and the Indemnified Parties’ exclusive remedy against, the other party for any type of claim described in this Section.

11.  LIMITATION OF LIABILITY

11.1.  Limitation of Liability.  EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND WITH RESPECT TO EACH PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY INCLUDING NEGLIGENCE OF EITHER PARTY) SHALL EXCEED THE AMOUNT PAID (OR THAT SHOULD HAVE BEEN PAID) BY YOU HEREUNDER FOR THE COMMITTED SERVICE TERM OF THEN-OUTSTANDING ORDER FORMS (THE “CURRENT COMMITTED AMOUNT”).

WITH RESPECT TO A PARTY’S INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIAIBLTY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY INCLUDING NEGLIGENCE OF EITHER PARTY) SHALL EXCEED THE LESSER OF THREE TIMES THE CURRENT COMMITTED AMOUNT OR ONE-MILLION DOLLARS ($1,000,000).  THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES AND PAYMENT).

11.2.  Exclusion of Consequential and Related Damages.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, COST OF COVER, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED (INCLUDING FOR THE NEGLIGENCE OF EITHER PARTY), WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING DISCLAIMERS IN THIS SECTION 11 INCLUDE EXPRESS DISCLAIMERS OF LIABILITY EVEN FOR THE OTHER PARTY’S NEGLIGENCE.  THE FOREGOING DISCLAIMERS IN THIS SECTION 11 SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW AND SUCH PROHIBITED PROVISION SHALL BE SEVERED HEREFROM AND SUCH REMAINING PROVISIONS SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW.

12.  TERM AND TERMINATION

12.1.  Term of Agreement. This Agreement commences on the date on which it is executed and continues until all User subscriptions granted in accordance with this Agreement and applicable Order Form have expired or been terminated.  

12.2.  Term of Purchased User Subscriptions.  User subscriptions that you purchase commence on the start date specified in the applicable Order Form and continue for the Service Term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term, unless either party gives the other written notice of non-renewal at least thirty (30) days before the end of the relevant subscription term.  The per-unit pricing during any such renewal term shall be the same as that during the prior term unless we have given you written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal.

12.3.  Termination for Cause.  A party may terminate this Agreement for cause (i) upon thirty (30) days’ written notice to the defaulting party of a material breach of this Agreement if the defaulting party fails to cure such breach within such notice period, or (ii) if the other party becomes the subject of a petition in bankruptcy (which in the case of involuntary filing, remains in effect for at least thirty (30) days) or any other proceeding relating to insolvency, receivership, or liquidation, or makes an assignment for the benefit of creditors.

12.4.  Termination if We Cease Providing the Services.  If we cease providing the Services generally to customers at any time, we may terminate this Agreement and all Order Forms upon thirty (30) days’ prior written notice to you; provided that in such case we will refund to you the prorated Unearned Fees.

12.5.  Effects of Termination.  Upon expiration or termination of this Agreement for any reason, the rights, licenses and access to the Services granted to you under this Agreement will immediately terminate.  Upon your written request made within sixty (60) days after the effective date of termination, we will make available to you for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format, provided you have made all payments required under the Agreement. After such 60-day period, we shall have no obligation to maintain or provide any of Your Data and shall thereafter delete Your Data from our systems in accordance with our data retention policies.  If you terminate with cause under Section 12.3, we will refund to you any Unearned Fees covering the remainder of the term of all subscriptions after the effective date of termination.  If we terminate for cause under Section 12.3, you are required to immediately pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination.  In no event shall any termination relieve you of the obligation to pay any fees payable to us for the period prior to the effective date of termination. Sections 1 (Definitions), 6 (Proprietary Rights), 7 (Fees and Payment), 8 (Confidentiality), 9.4 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.5 (Effects of Termination), 13 (Disputes/Arbitration; Governing Law) and 14 (General Provisions) shall survive any termination or expiration of this Agreement. 

13.  DISPUTES/ARBITRATION; GOVERNING LAW  

13.1.  Binding Arbitration.  Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be submitted to the American Arbitration Association (“AAA”) for mandatory binding arbitration in front of a single arbitrator chosen in accordance with the AAA Commercial Arbitration Rules and Mediation Procedures (using Expedited Procedures) (“Rules”) available at:

https://www.adr.org/sites/default/files/CommercialRules_Web-Final.pdf  (as of the date of these Terms and Conditions).  Unless provided otherwise herein, the arbitrator may not award non-monetary or equitable relief of any sort, and shall have no power to award damages inconsistent with this Agreement. The parties expressly waive their right to obtain such damages in arbitration.  All aspects of the arbitration shall be treated as confidential.  Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements.  Before making any such disclosure, a party shall give written notice to the other party and shall afford such party a reasonable opportunity to protect its interests.  The arbitrator shall render its award in writing and will include the findings of fact and conclusions of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the arbitrators’ award may be entered in any court having jurisdiction.  In addition to any and all other relief to which a party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs (if applicable), to the prevailing party (should there be one) in any such arbitration.  In the event of conflict between these Terms and Conditions and the Rules, these Terms and Conditions shall be first in precedence.

13.2.  Waiver of Jury Trial; Individual Basis; Equitable Relief.  THE PARTIES SURRENDER AND WAIVE THE RIGHT TO SUBMIT ANY DISPUTE TO A COURT OR JURY, OR TO APPEAL TO A HIGHER COURT.  THE PARTIES AGREE TO ARBITRATION ON AN INDIVIDUAL BASIS. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).  Notwithstanding the foregoing, nothing in this Agreement shall prohibit either party (prior to the commencement of arbitration) from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm which may be inadequately compensable by monetary damages, for example in respect of a threatened breach of the confidentiality or license-restriction provisions hereof.  Nothing in this Section 13 shall be construed to prohibit SourceDay from using an attorney or collections agency to collect unpaid fees.

13.3.  Where Held; Language; Governing Law.  The place of arbitration shall be Austin (Travis County), TX, USA, and the proceedings shall be conducted in the English language.  The Agreement shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and the arbitrator shall follow the law and judicial precedents that a United States District Judge sitting in the Western District of Texas would apply to the dispute. 

14.  GENERAL PROVISIONS

14.1.  Notice. Except for Legal Notices: (a) we may provide you notice via the Services (e.g., by the message center or dashboard) or via email or to your contact person on file as updated from time to time, and (b) you may provide us notice to the email address set forth in your Order Form, as updated from time to time.  Such notice is deemed received on the first business day after posting or sending.  Legal Notices must be in writing, are deemed received only upon actual delivery (or refusal), and shall be sent (if to you): to the address set forth on your most current Order Form (or such address as you have updated in writing), and (if to SourceDay) to SourceDay, Inc., Attn: Contracts, 9737 Great Hills Trail, Suite 100, Austin, TX 78759.  “Legal Notices” means any notice of termination (except if the recipient confirms receipt of the email by a human-generated response), notices alleging breach hereof, or pertaining to an indemnifiable claim.

14.2.  Export Compliance.  You agree to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.  You covenant that you will not — directly or indirectly — sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from SourceDay under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, SourceDay from and against any fines or penalties that may arise as a result of your breach of this provision.

14.3.  Relationship of the Parties; No Third-Party Beneficiaries; Waiver.  The parties are independent contractors to each other. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties, and neither party has the right to bind the other party to any agreement, understanding, or contract.  There are no third-party beneficiaries to this Agreement.  No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. A waiver of any default is not a waiver of any subsequent default.

14.4.  Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld), except that a party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. 

14.5.  Entire Agreement; No Reliance; Order of Precedence.  The Agreement (as defined above), constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  You acknowledge that you have not relied on any oral promises or any other terms, representations, commitments, understandings, or matters, other than those expressly set forth in writing in the Agreement.  No modification, amendment, or waiver of any provision of this Agreement shall be effective against us unless in writing and signed by us.  The order of precedence in the event of any inconsistency among different documents comprising the Agreement is as follows (from highest to lowest): (a) any conflicting provision of an Order Form expressly stating that is intended to modify or supersede a provision of these Terms and Conditions; (b) these Terms and Conditions; (c) Order Forms; (d) any online policy.  Other than the mutually executed Order Form(s), no PO’s, preprinted forms, order documentation, or any other forms provided by you (“Forms”) shall be deemed to vary, add to, or delete any provisions hereof, and all such unilateral terms of yours shall be null and void, even if we execute the Forms.

14.6.  Miscellaneous.  These Terms and Conditions are in effect pursuant to their incorporation into the executed Order Form; an Order Form (and/or this Agreement) may be executed by signature (electronic or “ink”), or via clicking to acknowledge acceptance, via click wrap and/or in counterparts, including counterparts delivered electronically, each of which will be deemed to be an original and such counterparts together will constitute one and the same agreement.  SourceDay shall be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control including acts of God, weather events, labor strife, acts of war (declared or not) or terrorism, acts of government, civil unrest, or denial of service attacks.  If any provision of the Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties (or deleted if reformation is not feasible), and the remainder of the Agreement shall continue in full force and effect.  The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act shall not apply to the Agreement.  The terms “including” and “includes” are not to be construed as words of limitation but rather shall be interpreted as if followed by the words “but [is/are] not limited to”.

EXHIBIT A

Support Commitment

We shall provide emailed support during normal business hours of 7am – 7pm CST Monday through Friday. 

1. Service Level Availability (SLA)

a. We shall use commercially reasonable efforts to make the Services available to Users, assuming User’s hardware, software and internet connections are functioning properly, at least 99.9% of the time during any month, excluding: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond our reasonable control, including without limitation, failures of internet access, acts of God, acts of government, floods, fires, earthquakes, other weather events, war (declared or not), civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or denial of service attacks. 

b. In respect of planned downtime, we shall use reasonable efforts to provide you with at least twenty-four (24) hours’ prior notice posted via the Services, and to the extent practicable, we shall schedule such downtime during the weekend hours (from 6pm Friday to 3am Monday Central Time). 

2. In the event we do not achieve the SLA in Section 1 above in any given month, you shall be eligible for a ten percent (10%) credit against the amounts owed to us for Services rendered for that month (prorated based on 1/12 of a yearly subscription cost to you). In order to receive this credit, you must inform us by submitting an email to [email protected] of a failure to comply with the SLA (including the dates and times of each unavailability incident that you are claiming) no later than fifteen (15) days after the end of the applicable month We will review your notice to us and if we agree with your conclusion, we will issue the service credit to you within sixty days following the date of your notification. In the event we disagree with your conclusion, we will jointly review and discuss the matter until we can arrive at a mutual agreement as to the applicability of a credit. The remedies set forth in this paragraph represent your sole remedy and our sole obligation in respect of failure of the Services set forth in this paragraph.

3. In the event that (i) availability of the Services is less than 90% in more than two months during the Service Term of an Order Form (including any Order Forms with additional quantities for the same Software or Services), together the “Affected Orders”; or (ii) if SourceDay fails to comply with the SLA set forth in the Section 1 for two consecutive months during the applicable subscription term, then you shall have the right to terminate this Agreement and any Affected Orders for cause immediately upon notice, subject to your notifying us within sixty days of the occurrence which created the termination right. In the event you do not so notify us within sixty days, the termination right shall not be available unless we again fail to comply with the SLA in Section 1. In the event of termination in accordance with this Section 3, SourceDay shall issue you a prorated refund of any Unearned Fees as defined in the Agreement. The remedies set forth in this paragraph represent your sole remedy and our sole obligation in respect of failure of the Services set forth in this paragraph.