Terms & Conditions May 2022
Effective May 28, 2022
SourceDay Terms and Conditions
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 http://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.
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.
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 8.4 (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.
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 to the Services 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 will immediately reinstate your access to the Services
as soon as such harm or illegal act is no longer a threat. We may also issue a written warning or, upon five
(5) business days’ written 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, except in the event of any gross negligent or willful misconduct by SourceDay or
its agents, sublicensees, partners, joint ventures, or employees in performing or failing to perform any obligation related to Your Data under this Agreement.
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.
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 and upon written approval by you in each
instance, 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 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.
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 within thirty (30) days of receiving notification of such charge; (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.
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 fileuploaded 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.
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 theIntellectual Property Rights of a third party or any gross negligent or willful misconduct by SourceDay or its agents, sublicensees, partners, joint ventures, or employees in performing or failing to perform any obligation under this Agreement (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 you 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 promptly refund to you any Unearned Fees.
continued use of the Services, or (iii) terminate your User subscriptions for such Services upon thirty
(30) days’ written notice and promptly 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).
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. The parties shall mutually agree in writing to renew any 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 either party terminates for cause under Section 12.3, you are required to
immediately pay to SourceDay any unpaid fees up to the effective date of termination or SourceDay will immediately refund to you any Unearned Fees covering the remainder of the term of all subscriptions after the effective date of such termination, as the case may be. In no event shall any termination relieve you of the obligation to pay any undisputed 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.
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 either party terminates for cause under Section 12.3, you are required to
immediately pay to SourceDay any unpaid fees up to the effective date of termination or SourceDay will immediately refund to you any Unearned Fees covering the remainder of the term of all subscriptions after the effective date of such termination, as the case may be. In no event shall any termination relieve you of the obligation to pay any undisputed 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.
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.
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. Either party 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 such force majeure event occurs for more than thirty (30) days, either party may
terminate this Agreement, and SourceDay will refund to you any Unearned Fees covering the
remainder of the term of all subscriptions after the effective date of such termination. 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”.
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.
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