Terms & Conditions

Effective March 2025

TERMS AND CONDITIONS (v2025.1)

THESE TERMS AND CONDITIONS GOVERN CUSTOMER’S RIGHTS TO USE THE SOURCEDAY SERVICES. CUSTOMER ACCEPTS THESE TERMS AND CONDITIONS, WHICH TOGETHER, WITH THE ORDER, AND ALL EXHIBITS, SCHEDULES, POLICIES AND ANNEXES INCORPORATED HEREIN BY REFERENCE (COLLECTIVELY, THE “AGREEMENT”) FORM A BINDING CONTRACT BETWEEN CUSTOMER AND SOURCEDAY, INC., A DELAWARE CORPORATION (“SOURCEDAY”).

DEFINITIONS

“Affiliate” means any entity (a) controlled, directly or indirectly, by, under common control with, or controlling a party to this Agreement, and specifically includes subsidiaries, partnerships, joint ventures, and other entities or operations for which the party has operational or management control, where “control” means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract or otherwise and, (b) in any event and without limitation of the previous sentence, owning the majority of the voting stock, shares, securities or assets of another entity, but in each case only for so long as such ownership or control will continue.

1. “Authorized User” means users of the SaaS Services consisting of Customer’s and its Affiliates employees, contractors, consultants, Suppliers, and agents and third parties with whom Customer transacts business, each of whom are uniquely assigned user IDs by Customer or SourceDay.
2. “Customer Data” means Customer’s data and materials of any kind submitted by Customer to or through the SaaS Services including into the SaaS Services by Customer’s Authorized Users.
3. “Documentation” means manuals, user guides, and other technical written materials related to the use of the SaaS Services made generally available to customers, as may be updated from time to time.
4. “ERP System” means, collectively, Customer’s enterprise resource planning and accounts payable system.
5. “ERP System Change” means a modification, update (including a minor version update), or replacement of the ERP System.
6. “Order” means the order schedule pursuant to which from time to time Customer orders SaaS Services and Implementation Services (as defined below).
7. “Order Effective Date” means the date an Order becomes effective and is generally set forth in the first line of the first table of the applicable Order.
8. “Project Kickoff Date” means the date Implementation Services commence.
9. “SaaS Services” means the online, web-based software-as-a-service (SaaS) made available to Customer by SourceDay as set forth in the Order and the Documentation (as defined below), including any updates and upgrades thereto provided or made available to Customer by SourceDay under this Agreement.
10. “Subscription Period” means the period set forth in an Order during which Customer may use the SaaS Services.
11. “Suppliers” means vendors/suppliers to whom Customer issues purchase orders and makes payments.
12. “Support Services” means the IT and other technical support for the SaaS Services described in Schedule A. For clarity, Support Services do not include Professional Services (as defined in Section 2.1).
13. “Unit” means an item, in addition to Authorized Users, described in the applicable Order upon which the Subscription Fees (as defined below) set forth in the Order are calculated.

SERVICES

Implementation and Professional Services.
In connection with the setup and provision of the SaaS Services, SourceDay will provide certain implementation services (“Implementation Services”) and may provide other professional services (together, referred to as “Professional Services”) each as set forth in the Order or in a separate Statement of Work (“SOW”).

SaaS Services. SourceDay will provide Customer with access to the SaaS Services during the Subscription Period solely for Customer’s internal use in accordance with the Documentation for the number of Authorized Users and other Units set forth in the applicable Order. Customer will be responsible for providing and maintaining its own ERP System, network connectivity, electric power, and the hardware and software infrastructure necessary to access the SaaS Services through the Internet (collectively, the “Customer Infrastructure”), and SourceDay will not be liable in any way for any failures of the SaaS Services caused by the Customer Infrastructure and not arising out of a failure of the SaaS Services to conform to the Documentation.

Support Services. SourceDay will provide Customer with the Support Services during the applicable Subscription Period. SourceDay may modify or otherwise change its Support Services but will not take any such action during a Subscription Period that would materially reduce or degrade the applicable Support Services. Support Services will terminate upon expiration or termination of the Subscription Period. Any customization, Professional Services, or any other support not included in the Support Services will be subject to a separate agreement and additional fees.

Security. SourceDay will maintain a security framework of policies, procedures and controls that includes administrative, physical and technical safeguards for the protection of Customer Data that is collected, downloaded, or otherwise received by SourceDay from Customer against accidental loss and from unauthorized access, use, alteration and disclosure, using the capabilities of currently available technologies and in accordance with prevailing industry practices and standards commensurate with the nature of the Customer Data.

ORDERS; PAYMENT

• Orders. The initial Order references these Terms and Conditions. Subsequent purchases of additional SaaS Services will be made by mutual execution of additional Orders. Any contractual terms and conditions, preprinted or otherwise, set forth in a Customer-issued purchase order, will be solely for the purpose of fulfilling Customer’s internal accounting processes and requirements and of no force and effect.
• Affiliate Orders. Customer may allow its Affiliates to use the SaaS Services made available to Customer hereunder for the benefit of Customer and its Affiliates, provided that Customer will be responsible for the acts and omissions of its Affiliates as if such acts and omissions were those of Customer. Customer Affiliates may also order SaaS Services under this Agreement by either of the following methods: (a) pursuant to an Order executed by Customer and SourceDay, in which case Customer will be responsible for such Affiliate’s compliance with the terms and conditions of this Agreement, including payment obligations, or (b) pursuant to an Order executed by such Affiliate and SourceDay under which such Affiliate agrees to the terms and conditions of this Agreement and will be “Customer” for all purposes under this Agreement with respect to such Order only. With respect to any such Order signed by an Affiliate, the relevant Affiliate will be solely liable for its own compliance with the terms and conditions of this Agreement, including payment obligations.
• Fees; Payment Terms. Customer will pay SourceDay the amounts set forth in the Order and any SOW for SaaS Services (“Subscription Fees”) and Professional Services in accordance with the payment schedule set forth therein. Unless otherwise set forth in the Order, payment from Customer is due within 30 days from the date of invoice. In SourceDay’ sole discretion, Except as expressly set forth in this Agreement, all fees are non-refundable and non-cancellable. In the case of multiple Orders for SaaS Services with overlapping Subscription Periods, SourceDay may adjust subsequent Orders to be coterminous with the initial Order Subscription Period and pro-rate Subscription Fees for the initial and end month of the additional Order(s) accordingly. Any disputes regarding payment must be in good faith and reasonably detailed by Customer on or before the due date of the applicable payment in written notice to SourceDay and addressed on an expedited basis by the parties and the undisputed portion of each invoice must be paid when due. Customer may be charged a late fee of 1.5 % per month (or the maximum rate allowed by applicable law if it is less) on any undisputed amount not paid when due. In addition, Customer is responsible for any collection and/or attorneys’ fees FaceFirst incurs in attempting to collect any past due amounts.
• Travel and Incidental Expenses. Customer will reimburse SourceDay for any pre-approved out-of-pocket expenses to be incurred by SourceDay in connection with performing any pre-approved on-site Professional Services at Customer’s location.
• Taxes. SourceDay’ fees do not include any local, state, federal or foreign taxes, levies, or duties of any nature (collectively, “Taxes”). Customer is responsible for timely paying all applicable Taxes arising from the performance of this Agreement, excluding only taxes based on SourceDay’ income. If SourceDay has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides SourceDay with a valid tax exemption certificate authorized by the appropriate taxing authority.

CUSTOMER OBLIGATIONS

SaaS Services Use Guidelines.
Customer will use the SaaS Services solely as contemplated by this Agreement and will not, and will not authorize any third party to: (a) license, sublicense, sell, resell, rent, lease, transfer, assign (except as expressly permitted in Section 12.6), distribute, time share or otherwise commercially exploit or make the SaaS Services available to any third party other than Customer’s Affiliates or Suppliers’ Authorized Users; (b) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of any of the software or systems comprising the SaaS Services; (c) copy any portion of the SaaS Services except as expressly provided herein; (d) modify, alter or create any derivative works of the SaaS Services or Documentation provided or made available by SourceDay hereunder; (e) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (g) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (h) interfere with or disrupt the integrity or performance of the SaaS Services; (i) use the SaaS Services in violation of any applicable laws or regulations (including any export laws, restrictions, national security controls and regulations); (j) use the SaaS Services to directly or indirectly engage, or participate, in any business or enterprise in competition with, the SaaS Services; or (k) attempt to gain unauthorized access to the SaaS Services or related systems or networks.

Account Activity.
Customer will: (a) maintain the security and confidentiality of Authorized User accounts, access codes, passwords, connectivity standards and protocols necessary for Customer’s access to the SaaS Services and (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services. Customer is responsible for Authorized Users’ and its Affiliates’ compliance with this Agreement. Customer will promptly notify SourceDay of any unauthorized account access or use of which Customer is aware. Customer is responsible for, and for notifying SourceDay of, assigned Authorized User accounts that need to be terminated and Source Day shall promptly terminate such accounts. Customer is also responsible for protecting and backing up the data in Customer’s ERP System that is created, used, stored and/or transmitted in connection with the use of the SaaS Services

System Administrator.
Customer will provide SourceDay contact information for Customer’s system administrator, who is authorized to provide the information required to configure and manage the SaaS Services.

Account Correspondence.
Customer agrees that SourceDay may rely on all information provided to SourceDay by the Customer from the Customer designated e-mail addresses. SourceDay may provide all notices, statements, and other communications arising under this Agreement (other than legal notices) to Customer through either e-mail or other method mutually agreed by the parties from time to time.

ERP System Change.
Upon Customer determining that Customer intends to make an ERP System Change, Customer shall contact SourceDay’s Support Services team and SourceDay will determine the type of ERP System Change and notice required as more particularly set forth in this Section 5 below.

Minor ERP System Change.
“Minor ERP System Change” means an ERP System Change which does not require, as determined by SourceDay in good faith: (i) modification to the SaaS Services’ application code (“Code Change”), (ii) Customer Data migration (“Data Migration”), (iii) integration testing other than arising out of an ERP System security patch or code patch (“Integration Testing”), (iv) a change to the integration method between the ERP System and SaaS Services used by SourceDay (“Integration Method Change”), or (v) replacing its ERP System (“ERP System Replacement”). In the event of a Minor ERP System Change:

• Customer shall provide not less than thirty (30) days written notice to SourceDay prior to making a Minor ERP System Change; and
• Upon receipt of such notice, the parties shall work together to coordinate the Minor ERP System Change and upgrade the SaaS Services production settings upon Customer’s completion of the Minor ERP System Change

Major ERP System Change.
In the event of an ERP System Change which SourceDay determines in good faith requires a Code Change, Data Migration, Integration Testing, a Integration Method Change, or an ERP System Replacement (“Major ERP System Change”):

• Customer shall provide not less than ninety (90) days written notice to SourceDay prior to making a Major ERP System Change (six (6) months notice with respect to an ERP System Replacement);
• Upon receipt of such notice, the parties shall work together to coordinate the Major ERP System Change and SourceDay will install, validate and test integration of the Major ERP System Change in Customer’s non-production environment and upgrade the SaaS Services production settings upon Customer’s completion of the Major ERP System Change at SourceDay’s then-current Professional Services hourly rates to be invoiced on a biweekly basis after commencement of the Professional Services; and
• With respect to an ERP System Replacement, SourceDay may require that Customer use either SourceDay’s standard API or a flat file integration.
• Delays. With respect to any ERP System Change, if SourceDay is unable to complete SourceDay’s responsibilities in completing the ERP System Change on or prior to the end of the applicable notice period provided by Customer above because of delays caused by (i) Customer (including without limitation the failure to fulfill any Customer responsibilities set forth above), Customer will not receive any credit or refund of pre-paid Subscription Fees for the period corresponding to the delays caused by Customer during which the SaaS Services are unable to be used by Customer and (ii) SourceDay, the Subscription Period will extend day for day for such delay.

TERM; TERMINATION

Term of Agreement. This Agreement will become effective on the Effective Date and will continue thereafter until there have not been any Subscription Periods in effect for a period of one year (“Term”), unless terminated earlier in accordance with the terms of this Agreement.

Subscription Period. Unless otherwise set forth in an Order, each Subscription Period will commence on the Order Effective Date and continue for the period set forth in the applicable Order. The Subscription Period will automatically renew (“Renewal”) for a term equal to the then-current Subscription Period and for the Subscription Fees set forth in such Order (except as set forth in this section below), unless either party provides written notice of the intent not to renew at least sixty (60) days before the end of the then-current Subscription Period. For any such Renewal, subject to Customer’s right not to renew pursuant to the preceding sentence, SourceDay may increase the Subscription Fees to then-current Subscription Fees upon written notice to Customer not less than ninety (90) days prior to the end of the then-current Subscription Period.

Termination. This Agreement may be terminated:

by either party in any breach of this Agreement by the other party and such breach has continued uncured for a period of 30 days after the breaching party is given written notice of such breach; or

by either party, effective immediately, if the other party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or similar proceedings pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors applies for or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, is wound up or liquidated, or ceases its business activities.

Effect of Termination. Upon termination of this Agreement, (a) SourceDay may immediately deactivate and terminate access to the SaaS Services, (b) Customer will within 30 days promptly pay to SourceDay any and all unpaid amounts due under this Agreement, and (c) each party will destroy all Confidential Information of the other party that such party possesses; provided, however, that to the extent that copies of Confidential Information are (i) contained in a party’s backup data storage archives, or (ii) (a) commingled with other information or documents of such party and it would pose a substantial administrative burden to excise such Confidential Information such party will not be obligated to delete such copies so long as it continues to comply with the confidentiality restrictions set forth herein. Upon Customer’s written request made within sixty (60) days after the effective date of termination, SourceDay will make available to Customer for download a Customer Data in comma separated value (.csv) format along with attachments in their native format. After such 60-day period, SourceDay shall have no obligation to maintain or provide any Customer Data and shall thereafter delete Customer Data in accordance with SourceDay’s data retention policies. If Customer terminates the Agreement due to an uncured breach by SourceDay under Section 6.3(a), SourceDay will refund to Customer pre-paid Subscription Fees corresponding to the remainder of the Subscription Period(s) after the effective date of termination. If SourceDay terminates the Agreement for Customer’s breach under Section 6.3(a), Customer shall immediately pay any unpaid Subscription Fees for the remainder of the Subscription Period(s) of all terminated Order Forms. In no event shall any termination relieve Customer of the obligation to pay any fees payable to SourceDay for the period prior to the effective date of any termination hereunder. The provisions of Sections 1, 3.2, 3.3, 3.4, 3.5, 3.6, 4.1, 6.4, 7, 8, 9.5, 9, 10, 11 and 12 will survive any termination or expiration of this Agreement.

Suspension of Service. SourceDay may suspend Customer’s access to and use of the SaaS Services: (a) if SourceDay reasonably deems it necessary to prevent or terminate any prohibited use by Customer that may cause material harm to SourceDay or the SaaS Services, or (b) upon notice to Customer if Customer commits a material breach of this Agreement including failure to pay fees when due. SourceDay will provide Customer with written notice and thirty (30) days from the date of such notice to remedy such breach or prohibited use (except if Customer is in default of its payment obligations hereunder, then 15 days written notice) before any such suspension unless SourceDay reasonably concludes that Customer’s use of the SaaS Services is causing an immediate, material and ongoing harm to the security, integrity or availability of the SaaS Services. SourceDay will promptly remove such suspension to the applicable SaaS Services once the applicable breach or prohibited use has been resolved. Suspension of SaaS Services under this Section 6.5 will not constitute a termination of the Agreement nor will it relieve Customer of any of Customer’s obligations or liabilities under the Agreement.

CONFIDENTIALITY

Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written, graphic or machine-readable form, and materials, documentation, designs, improvements, formulae, discoveries, inventions, networks, concepts, ideas, technical information and procedures, security related information including SOC 2 reports, ISO reports, information on the design or effectiveness of the implementation of security controls by SourceDay’s third party service providers, legal, financial or business affairs, markets, products, key personnel, suppliers, policies or operational methods, plans for future developments for the business of the Disclosing Party, and all other information disclosed to the Receiving Party by the Disclosing Party that is not readily available to the public, and all copies of the foregoing, that is either designated as proprietary or confidential or, by the nature of the circumstances surrounding disclosure, ought in good faith to be treated as proprietary or confidential. Notwithstanding the foregoing, this Agreement, all Documentation related to the SaaS Services and all information regarding the performance of the SaaS Services (including availability, uptime, and performance benchmarks) will be deemed to be the Confidential Information of SourceDay regardless of whether they are so marked. In addition, all Customer Data will be deemed to be the Confidential Information of Customer.

Non-Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (a) has entered the public domain through no action or failure to act by the Receiving Party; (b) before disclosure hereunder was already lawfully in Receiving Party’s possession without any obligation of confidentiality; (c) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the Receiving Party; or (d) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

Obligation of Non-Disclosure. The Receiving Party agrees (a) not to disclose the Confidential Information of the Disclosing Party to any third parties (except for its subcontractors or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision), and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information, but in any event not less than a reasonable degree of care. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Disclosing Party.

Authorized Disclosure. If the Receiving Party is compelled by law, regulation, or a court of competent jurisdiction to disclose any of the Disclosing Party’s Confidential Information, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment and continue to treat such Confidential Information in accordance with its obligations under this Section. Each party may disclose the terms and conditions of this Agreement: (a) on a confidential basis to legal or financial advisors; (b) pursuant to reports, applications or similar filings submitted to regulatory agencies and governing authorities as required by applicable law; or (c) on a confidential basis in connection with any financing transaction or due diligence inquiry.

Injunctive Relief. Each party acknowledges that the Disclosing Party may be irreparably harmed if Receiving Party’s obligations under this Agreement are not specifically enforced and that Disclosing Party may not have an adequate remedy at law in the event of an actual or threatened breach hereof. Accordingly, the Disclosing Party is entitled to seek specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.

AWS SOC 2 Report. In the event SourceDay discloses to Customer the AWS SOC 2 report such report is deemed Confidential Information and AWS is an intended third party beneficiary of this Agreement solely with respect to such AWS SOC 2 report and has the right to enforce this Agreement with respect to the AWS SOC 2 report as if it were a party hereto.

PROPRIETARY RIGHTS

Ownership. As between SourceDay and Customer, SourceDay owns all right, title, and interest in and to the SaaS Services (including any customizations, modifications, adaptations, interfaces or derivative works that may be developed as a result of the Professional Services set forth in any Order or SOW unless otherwise set forth in such Order or SOW), the Documentation for the SaaS Services, SourceDay’ Confidential Information, and all intellectual property rights related thereto (“SourceDay IP”). As between Customer and SourceDay, Customer owns all right, title, and interest in and to the Customer Data, Customer’s Confidential Information, all output generated by the SaaS Services resulting from the processing of Customer Data input into the SaaS Services and all intellectual property rights related thereto. This Agreement does not grant any right or license to any intellectual property except as expressly provided in this Agreement, and no other right or license is to be implied by or inferred from any provision of this Agreement or by the conduct of the parties.

Personal Data; Data Protection. The parties acknowledge that use by Customer of the SaaS Services may involve the disclosure in the SaaS Service by Customer and its Authorized Users of certain personally identifiable data as defined by applicable law such as Authorized User email addresses, (“Personal Data”). SourceDay will not use such Personal Data during the Term except for the purposes of (i) providing the SaaS Services to Customer; (ii) assisting in adoption of the SaaS Services by Customer and its Suppliers; and (iii) for outreach by SourceDay or its third party partners to Authorized Users, Suppliers and appropriate Customer personnel concerning product roadmap, product updates, new products, third party products compatible with the SaaS Service and the like. SourceDay will comply with all data protection and privacy laws applicable to its use and processing of Personal Data, provided that Customer as controller will be responsible for obtaining consent for the provision of such Personal Data to SourceDay and the uses set forth above. If required by any data protection and/or privacy law applicable to the processing of personal data in relation to the SaaS Services, SourceDay will, with reasonable notice and at Customer’s expense, provide reasonably requested information regarding the Services to enable Customer to carry out data protection impact assessments and prior consultations with data protection authorities. Suppliers may be provided with separate and substantially similar privacy provisions as set forth in this Section 8.2.

Customer Data. Customer hereby grants to SourceDay a limited, nonexclusive, royalty-free, license to access and use the Customer Data (excluding Personal Data) to (i) provide, perform, improve and enhance the SaaS Services and for other development, diagnostic and corrective purposes in connection with the SaaS Services and other SourceDay offerings (by way of example, Source Day may use such data to establish baseline data and measure performance against such data as part of the SaaS Services) and (ii) disclose such data solely in aggregate and anonymized form in connection with the provision and marketing of the SaaS Services. Under no circumstances will any such aggregate data be capable of being re-identified unless it is otherwise public information. Customer is solely responsible for maintaining backups and copies of all Customer Data input into the SaaS Services and has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. No other rights or licenses are granted by Customer except as expressly set forth herein.

Suggestions. To the extent that Customer submits to SourceDay any suggestions, ideas, enhancement requests, feedback, or recommendations relating to the SaaS Services (“Suggestions”), Customer hereby grants SourceDay a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Suggestions, including by incorporating the Suggestions into future versions of the SaaS Services.

No Exclusivity. Customer acknowledges that SourceDay is in the business of providing development and other services to other customers, and that SourceDay will have the right to provide to third parties services which are the same as or similar to the SaaS Services and Professional Services provided to Customer pursuant to this Agreement or a SOW, and to use or otherwise exploit any SourceDay IP in providing such services. In addition, Customer acknowledges that SourceDay will be free to use and employ its general skills, know-how, and expertise, and to use and employ any generalized ideas, concepts, know-how, or expertise gained during the provision of Professional Services hereunder, so long as SourceDay acquires and applies such items without disclosure of any Customer Confidential Information.

WARRANTIES

Mutual Warranties. Each party represents and warrants to the other party that (a) it has the right to enter into this Agreement and to perform its obligations hereunder, (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with or constitute a material breach or default of any organizational document, agreement or other writing to which it is a party, and (c) it will comply with all laws and regulations applicable to in the case of Customer, Customer’s use of the SaaS Services and provision of the Customer Data to SourceDay and in the case of SourceDay, in connection with SourceDay’s performance of Services and obligations hereunder.

Performance Warranty. SourceDay warrants that the SaaS Services will substantially perform the functions described in the then current Documentation for the SaaS Services. This warranty does not apply if the SaaS Services are not administered in accordance with the applicable instructions and training provided by SourceDay. If the SaaS Services fail to operate as warranted in this Section 9.2 and Customer notifies SourceDay in writing of the nature of the non-conformance (“Notice”), SourceDay will make commercially reasonable efforts to promptly repair or replace the non-conforming SaaS Services without charge. If, after a reasonable opportunity to cure, SourceDay does not remedy the non-conformance, Customer may no later than 60 days after giving the Notice terminate the Agreement and receive a refund of the prepaid Subscription Fees for the period following the date of termination. The foregoing provides Customer’s exclusive remedy, and SourceDay’ exclusive obligation and liability, for breach of the warranty in this Section 9.2.

Professional Services Warranty. SourceDay will perform the Professional Services in a professional and workmanlike manner, and SourceDay’ personnel will have sufficient skill, knowledge, and training to perform the Professional Services. Customer’s exclusive remedy, and SourceDay’ exclusive obligation and liability, for SourceDay’ breach of the warranty in this Section 9.3 will be SourceDay’ reasonable commercial efforts, at no additional charge, to remedy any Professional Services performed in a manner that is substantially less than workmanlike or to replace personnel with insufficient skill, knowledge, and training with qualified personnel for performance of the Professional Services.

Customer Representations and Warranties. Customer represents and warrants that (a) Customer has the right to furnish all Customer Data to SourceDay; and (b) Customer will comply with all laws and regulations applicable to Customer’s use of the SaaS Services and provision of the Customer Data to SourceDay.

Disclaimer of Implied Warranties. CUSTOMER ASSUMES FULL RESPONSIBILITY FOR CUSTOMER’S AND SUPPLIERS’ USE OF THE SAAS SERVICES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SOURCEDAY MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SAAS SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES, OR THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT (BUT NOT IN DEROGATION OF SOURCEDAY’S INDEMNIFICATION OBLIGATIONS HEREUNDER), MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Customer acknowledges and agrees that neither SourceDay nor its suppliers operates or controls the Internet and that: (a) viruses, worms, Trojan horses, or other undesirable data or software exist; and (b) unauthorized users (e.g., hackers) may attempt to obtain access to Customer Data, web site, computers, or networks. SourceDay uses reasonable efforts (including firewalls) consistent with industry standards to protect the SaaS Services from such unauthorized use, but subject to the foregoing, SourceDay is not responsible for issues related to acts or omissions of such unauthorized users. SourceDay shall not be liable for any loss of, or failure to recover, Customer Data, caused by Customer’s failure to back-up Customer Data on a periodic basis.
INDEMNIFICATION

SourceDay Indemnity. SourceDay will defend any action brought against Customer to the extent that it is based upon a third party claim (a) that the SaaS Services, as provided by SourceDay to Customer under this Agreement and used within the scope of this Agreement, infringe or misappropriate any U.S. patent, copyright or trade secret or violates any other intellectual property right of a third party, and/or (b) arising from the gross negligence, willful misconduct or fraud of SourceDay, and SourceDay will indemnify Customer from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against Customer or agreed upon by SourceDay in settlement.

Injunction. If Customer’s use of any of the SaaS Services hereunder is, or in SourceDay’ opinion is likely to be, enjoined due to the type of infringement specified in Section 10.1(a) above, or if a claim is brought against Customer due to the type of infringement specified in Section 10.1(a) above, then SourceDay may, at its sole option and expense: (a) procure for Customer the right to continue using such SaaS Services under the terms of this Agreement; (b) replace or modify such SaaS Services so that they are non-infringing and substantially equivalent or better in function to the enjoined SaaS Services; or (c) if options (a) and (b) above cannot be accomplished despite SourceDay’ commercially reasonable efforts, then SourceDay may terminate Customer’s rights and SourceDay’ obligations hereunder with respect to such SaaS Services and remit to Customer any pre-paid Subscription Fees for the remainder of the Term after termination under clause (c) above or if earlier, the date Customer ceases using the SaaS Services because of a third party claim under Section 10.1(a) above.

Exclusions. Notwithstanding the terms of Section 10.1 above, SourceDay will have no liability for any infringement or misappropriation claim of any kind to the extent it results from: (a) information, design, specification, instruction, software, data, or material furnished by or on behalf of Customer; (b) modification or alteration of the SaaS Services not made by or for SourceDay, if infringement would have been avoided by the absence of the modifications; (c) the combination, operation or use of the SaaS Services with equipment, devices, software or data (including Customer Data) not supplied or approved by SourceDay, if infringement would not have occurred but for such combination, operation or use; (d) use of the SaaS Services in violation of the applicable Documentation; (e) Customer’s continuing such allegedly infringing activity after being informed by SourceDay and provided, at no additional charge, with modifications that would have avoided the alleged infringement and reasonable time to implement such modifications; or (f) Customer’s or an Authorized User’s use of the SaaS Services in breach of this Agreement. Notwithstanding anything to the contrary in this Agreement, Sections 10.1, 10.2 and 10.3 set forth SourceDay’ exclusive obligations and liabilities, and Customer’s exclusive remedies, with respect to infringement of intellectual property rights under or in connection with this Agreement.

Customer Indemnity. Customer will defend any action brought against SourceDay to the extent that it is based upon a claim (a) that the Customer Data, as provided by Customer to SourceDay under this Agreement and used within the scope of this Agreement, infringes or misappropriates any patent, copyright or trade secret or violates any other intellectual property or other right of a third party or violates applicable law and/or (b) arising from the gross negligence, willful misconduct or fraud of Customer, and Customer will indemnify SourceDay from the costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded against SourceDay or agreed upon by Customer in settlement.

Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 10 will not relieve the indemnifying party of its obligations under this Section 10, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such claim. The indemnifying party will have control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of an action effected without its written consent, which consent will not be unreasonably withheld or delayed. The indemnifying party will not settle any claim without the indemnified party’s prior written consent, which consent will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability. The indemnified party may engage counsel of its choice at its own expense.

LIMITATIONS ON LIABILITY

EXCEPT FOR A GROSSLY NEGLIGENT, RECKLESS, OR WILFUL BREACH BY A PARTY, IN NO EVENT WILL SUCH PARTY BE LIABLE FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA (INCLUDING ANY CUSTOMER DATA) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR LOSS OF PROFIT, LOSS OF BUSINESS OR LOSS OF GOODWILL INCURRED BY A PARTY.

EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER, A PARTY’S VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE SAAS SERVICES, THE PROFESSIONAL SERVICES, THE SUPPORT SERVICES OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO SOURCEDAY FOR THE SAAS SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST CLAIM UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, SOURCEDAY’S LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION, ARISING OUT OF A BREACH OF SECURITY OBLIGATIONS HEREUNDER GIVING RISE TO UNAUTHORIZED DISCLOSURE OF CUSTOMER DATA (INCLUDING PERSONAL DATA)WILL BE LIMITED TO THE MAXIMUM AMOUNT AVAILABLE UNDER SOURCEDAY’S INSURANCE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. NOTHING IN THIS AGREEMENT WILL LIMIT A PARTY’S FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION 11 REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY.

MISCELLANEOUS

Force Majeure. Neither party will be liable under this Agreement for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure event, including natural catastrophe, fire, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, epidemic, pandemic, government acts, orders, or regulation, equipment failure, or any cause or matter whatsoever not within the reasonable control of such party, provided that such affected party shall take commercially reasonable measures to mitigate the effects of such force majeure event. In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement. If the force majeure event continues for more than 60 calendar days, then either party may terminate the Agreement upon written notice to the other party and Customer shall receive a refund of any prepaid unused prorated Subscription Fees from the date of such termination.

Publicity. SourceDay may identify Customer as a customer on its website using Customer’s name and logo and include Customer in a customer list during prospective customer presentations and the like.

Promotion and Press Release: Customer or SourceDay may each issue one press release on or before 30 days after an Order Effective Date. In either case, the press release will be mutually approved before release and such approval will not be unreasonably withheld, conditioned or delayed.

Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver by a party of any provision of this Agreement in any one instance will not be deemed or construed to be a waiver of such provision for any similar instance in the future or of any subsequent breach.

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.

Assignment. This Agreement will be binding upon and be enforceable by and against the parties hereto and, to the extent permitted hereby, their respective successors and assigns. This Agreement is not transferable or assignable by either party, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld or conditioned, provided, however, either party may, without the other party’s consent, assign or transfer all or part of this Agreement to any Affiliate or to any successor-in-interest to all or substantially all the business or assets of the assigning party pertaining to the subject matter hereof, whether voluntarily or by merger, reorganization, asset sale, or otherwise. Any attempted assignment in violation of this Section will be null and void.

Independent Contractors. The relationship between the parties created by this Agreement is that of independent contractors and neither party will have any authority to create any obligation on behalf of the other.

Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Texas, without reference to conflict of laws principles. Each party irrevocably submits to venue and exclusive personal jurisdiction in the federal and state courts in Austin, Travis County, Texas, for any disputes or claims arising out of this Agreement and waives all objections to jurisdiction and venue of such courts; provided that nothing in this Section will restrict either party from seeking injunctive relief in a forum of its choice. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Compliance with Laws. SourceDay and Customer will comply with all export laws, restrictions, and regulations of the United States or foreign agency or authority related to the SaaS Services. Customer will not use the SaaS Services, or allow the transfer, transmission, export, or re-export of the SaaS Services or portion thereof, in violation of any export control laws or regulations administered by the U.S. Department of Commerce, OFAC, or any other government agency or authority. Customer will obtain and bear all expenses relating to any necessary licenses or exemptions with respect to the export from the U.S. of the SaaS Services to any location so as to be in compliance with all applicable laws and regulations. By signing this Agreement, Customer confirms that Customer is not a resident or citizen of any country currently embargoed by the U.S. and that Customer is not otherwise prohibited from receiving the SaaS Services.

Language. This Agreement is in the English language only, which language will be controlling in all respects, and all versions hereof in any other language will not be binding on the parties hereto.

Notice. Notice to either party will be sent to the address shown on the first page of this Agreement. All notices shall be deemed to have been given: (a) when personally delivered (with written confirmation of delivery); (b) when delivered if sent by next business day delivery using a nationally recognized overnight courier or certified mail; or (c) on the date sent by e-mail to the e-mail address of the contact person set forth on the first page of this Agreement sent during normal business hours of the recipient, and on the next business day if sent after the normal business hours of the recipient. Notwithstanding the foregoing, notices of breach or termination sent by email are not valid unless also sent and received by one of the other methods set forth above.

Construction. The headings of Sections of this Agreement are included solely for convenience of reference and are not to be used to interpret, construe, define, or describe the scope of any aspect of this Agreement. The terms “include,” “including,” “includes” and similar terms mean “including, without limitation.” Each party represents that it has had the opportunity to participate in the preparation of this Agreement, and any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in connection with the construction or interpretation of this Agreement. Unless otherwise expressly stated to the contrary herein, all remedies are cumulative and the exercise of any express remedy by either party does not by itself waive such party’s right to exercise its other rights and remedies available at law or in equity.

Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together will constitute one single agreement between the parties. This signed Agreement or counterparts may be exchanged electronically or stored electronically as a photocopy (such as in .pdf format). The parties agree that electronically exchanged or stored copies will be enforceable as original documents and consent to the use of electronic and/or digital signatures for the execution of this Agreement and further agree the use of electronic and/or digital signatures will be binding, enforceable and admissible into evidence in any dispute regarding this Agreement.

Order of Precedence. To the extent there is a conflict between the terms in the main text of this Agreement and any terms in the Order and the other referenced documents, then the following precedence will apply: (1) the Order; (2) the main text of the Agreement; and (3) the other referenced documents.

Entire Agreement. This Agreement (together with the Orders, the SOWs and the Schedules referenced herein) contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all previous and contemporaneous agreements and understandings, whether oral or written, between the parties with respect to the subject matter hereof. All amendments and modifications to, or waivers of any provisions of, this Agreement must be in writing, signed by the duly authorized officers of both parties.

-END-

SCHEDULE A
Support Commitment

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

Service Level Availability

SourceDay shall use commercially reasonable efforts to make the SaaS Services available to Authorized Users, assuming Authorized Users’ hardware, software and internet connections are functioning properly, at least 99.9% of the time during any calendar month, excluding: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond SourceDay’s 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 (, or denial of service attacks (“Availability”).
In respect of planned downtime, SourceDay shall use reasonable efforts to provide Customer with at least twenty-four (24) hours’ prior notice posted via the SaaS Services, and to the extent practicable, SourceDay shall schedule such downtime during weekend hours (from 6pm Friday to 3am Monday Central Time).

In the event SourceDay does not achieve the Availability in Section 1 above in any given calendar month, Customer shall be eligible for a ten percent (10%) credit against the amounts owed to SourceDay for SaaS Services rendered for that month (prorated based on 1/12 of annual Subscription Fees). In order to receive this credit, Customer must inform SourceDay by submitting an email to support@sourceday.com of a failure to meet Availability (including the dates and times of each unavailability incident that Customer is claiming) no later than fifteen (15) days after the end of the applicable month SourceDay will review Customer’s notice to SourceDay and if SourceDay agree with Customer’s claim, SourceDay will issue the service credit to Customer within sixty days following the date of Customer’s notification. In the event SourceDay disagrees with Customer’s conclusion, SourceDay will jointly review and discuss the matter until SourceDay and Customer can arrive at a mutual agreement as to the applicability of a credit.

In the event that (i) Availability is less than ninety percent (90%) in more than two (2) calendar months during the Subscription Period (including any Orders with additional quantities for the same SaaS Services), together the “Affected Orders”; or (ii) if SourceDay fails to meet Availability set forth in the Section 1 for two consecutive calendar months during the applicable Subscription Period, then Customer shall have the right to terminate any Affected Orders for cause immediately upon notice, subject to Customer’s notifying SourceDay in writing on or before sixty (60) days after the last occurrence giving rise to the termination right. In the event Customer does not notify SourceDay within such sixty (60) day period, such termination right shall be null and void. In the event of termination in accordance with this Section 3, SourceDay shall refund to Customer a prorated refund of any pre-paid Subscription Fees corresponding to the remainder of the Subscription Term from the date of termination.

The remedies set forth in Sections 2 and 3 represent Customer’s sole remedy and SourceDay’s sole obligation for SourceDay’s failure to meet Availability commitments in this Schedule B, provided that the foregoing shall not be in derogation of any other remedies available to Customer to the extent such failure constitutes a breach of any other obligations of SourceDay under the Agreement.

SUPPLIER TERMS AND CONDITIONS

SourceDay, Inc. (“we”, “us”, “our”, “SourceDay”)) provides a software as a service solution to our customers to enable them to work with its suppliers to manage purchase orders (collectively, the ” Services“). As a supplier for one or more of our customers (each, a “SourceDay Customer”) , you have been invited to establish an account with us or if you have elected not to establish an account, to respond to emails we have sent as part of the Services or to work with your EDI system in accessing and using our Services.  The Services are provided to you subject to these Supplier Terms and Conditions and any operating rules, policies or guidelines that SourceDay may publish from time to time (collectively, the “Agreement“). BY ACCESSING OR USING ANY OF THE SERVICES, YOU ON BEHALF OF YOUR COMPANY (“COMPANY”) ACKNOWLEDGE THAT COMPANY HAS REVIEWED AND ACCEPTS ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU ARE DULY AUTHORIZED TO ACT ON BEHALF OF COMPANY AND BIND IT TO THIS AGREEMENT.

• Services and Terms

1. SourceDay may make changes or modifications to this Agreement at any time, and such changes or modifications are effective immediately upon the earliest of (a) SourceDay’s email notification to Company advising Company of such changes or modifications or (b) Company’s continued use of the Services after SourceDay posts the updated Agreement to its website. In addition, when using particular Services, Company and SourceDay will be subject to any guidelines or rules applicable to such Services that may be posted from time to time.
2. Company will (a) be responsible for Company’s and Company’s users’ compliance with the terms and conditions of this Agreement; (b) be responsible for the confidentiality of (and for all activities that occur under) Company’s account (if you establish an account) and the login ID/ authorized user IDs and passwords assigned to or selected by Company; and (c) prevent unauthorized access to or use of the Services using Company’s login ID/ authorized user ID and passwords assigned to or selected by Company, and notify SourceDay promptly of any such unauthorized access or use of which Company is aware. 
3. Company hereby agrees to upload into the Services, and/or permit SourceDay to remotely access data, information, materials and processes as are necessary and required for SourceDay to perform the Services for Company and the applicable SourceDay Customer(s) (“Company Content”) and grants SourceDay a worldwide, non-exclusive and royalty-free license to copy, use, store, host, make derivative works of, adapt, display, perform, transmit and distribute Company Content under or in connection with this Agreement as necessary and required to perform the Services for Company and the applicable SourceDay Customer. Company represents and warrants that Company has obtained all necessary permissions, rights and consents for all of Company Content provided to SourceDay under this Agreement to enable SourceDay to perform the Services for Company.
4. Company is solely responsible for complying with the laws affecting or regulating its business, employees and the like. Company understands that SourceDay’s provision of the Services does not relieve Company of any responsibility and liability for those matters that Company would otherwise have.  Company is solely responsible for ensuring Company’s use of the Services complies with applicable laws, rules and regulations including, without limitation, those related to financial reporting.  Except as expressly set forth with respect to SourceDay’s responsibilities under this Agreement, Company is solely responsible for any and all damages that flow from Company’s use of the Services.

• Proprietary Rights

1. Except for the limited rights expressly granted by SourceDay to Company hereunder, SourceDay reserves all right, title and interest in and to the Services and SourceDay Materials (defined below), including all related intellectual property rights, and no other rights are granted to Company, whether by estoppel, implication or otherwise. Title to the Services is not conveyed hereunder.
2. Except for the limited rights expressly granted by Company to SourceDay hereunder, Company reserves all right, title and interest in and to Company Content, including all related intellectual property rights, and no other rights are granted to SourceDay, whether by estoppel, implication or otherwise. Title to the Company Content is not conveyed hereunder.
3. This is an Agreement for services, and Company is not granted a license to any software, technology or intellectual property by this Agreement. Company will not: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the Services or any software, documentation or data related to the Services; (b) copy or frame any part or content of the Services other than as reasonably necessary for Company’s own internal use of the Services in accordance with the Agreement; (c) permit any third party to access the Services except as permitted herein; (d) modify, translate or create derivative works based on the Services; (e) distribute, pledge, assign or otherwise transfer or encumber rights to the Services; or (f) use the Services for timesharing or service bureau purposes. Company may download or copy content of the Services only as reasonably necessary for Company’s own internal use of the Services in accordance with the Agreement. No right, title, or interest in any downloaded materials is transferred to Company as a result of any such downloading and SourceDay reserves all right, title and interest in and to the materials Company downloads from the Services including all related intellectual property rights. Company may only access and use the Services for Company’s own internal use in connection with SourceDay Customer(s) and any other access or use by Company is strictly prohibited under this Agreement. Without limiting the generality of the foregoing, Company will not access or use the Services if Company is a direct competitor of Company or for purposes of copying any features, functions, content or graphics of the Services, or benchmarking or monitoring availability, performance or functionality of the Services, or any other competitive purpose.
4. As part of the Services, SourceDay makes available to Company certain SourceDay Materials. Solely in conjunction with the Services, SourceDay hereby grants Company a perpetual non-exclusive license (without the right of sublicense) to use the SourceDay Materials solely as incorporated into any finished document output created by the Services (“Document License”). “SourceDay Materials” includes, without limitation, any or all of the following used or provided by SourceDay to provide the Services hereunder and provide the finished output created by the Services, together with all associated intellectual property rights: (a) any templates, text, graphics, designs, art, information or other content, (b) web pages, graphic files, text files, scripts, software, code and other components, (c) software, tools, documentation, data and other material, and/or (d) any routines, methodologies, processes or technologies created, adapted or used by SourceDay in performing the Services.  SourceDay Materials are deemed SourceDay Confidential Information.
5. In using the varied features of the Services, Company may provide information (such as users’ names, contact information, or other registration information) to SourceDay (“Personal Data”). SourceDay may use this Personal Data  for the purposes of (i) providing the Services to Customer; (ii) assisting in adoption of the SaaS Services by Company and the applicable Customer(s); and (iii) for outreach by SourceDay or its third party partners to Company and Company’s users concerning product roadmap, product updates, new products, third party products generally related to the Service and market, and the like. SourceDay will comply with all data protection and privacy laws applicable to its use and processing of Personal Data, provided that the Customer as controller will be responsible for obtaining consent for the provision of such Personal Data to SourceDay and the uses set forth above.  
6. “SourceDay” and our logos (both words and design) either are trademarks, service marks, or registered trademarks of SourceDay, and may not be copied, imitated or used, in whole or in part without SourceDay’s prior express written consent. In addition, all page headers, custom graphics, design and user interface elements, and scripts are service marks, trademarks, and/or trade dress of SourceDay and may not be copied, imitated, or used, in whole or in part without our prior written permission, which consent may be withheld in our sole discretion. All other marks or logos not owned by SourceDay are the property of their respective owners.
7. SourceDay will own any and all Aggregate Data produced from Company’s use of the SourceDay Services.  For the purposes of this Agreement, “Aggregate Data” means any and all data produced from the Company’s use of the SourceDay Services for broad groups or categories in which the Company and any characteristics of individual persons, transactions, and customers are no longer identifiable, including but not limited to metadata.

• Term and Termination

1. Term.  This Agreement will remain in full force and effect for so long as Company is accessing the Services for use with a SourceDay Customer. 
2. Termination. Either party may terminate this Agreement immediately upon delivery of written notice for cause if the other party commits a breach of this Agreement and has not remedied such breach within 30 days of receipt of notice of such breach from the non-breaching party. Neither party has the right to terminate this Agreement for convenience or without cause.
3. Bankruptcy. Either party may terminate this Agreement immediately upon delivery of written notice if (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets. 
4. Non-Exclusive Remedy.  Except as otherwise expressly stated herein, termination of this Agreement by either party will be a nonexclusive remedy and will be without prejudice to any other right or remedy of such party. Except as otherwise expressly stated herein, the rights and remedies of the parties to this Agreement are cumulative and not alternative.
5. Survival.  The rights and obligations of the parties contained in Sections 1.4, 2, 3.4, 3.5, 4, 5, 6, 8, 9, 10, 11 and 12 and all other terms and conditions which by their nature are intended to survive, will survive the termination of this Agreement. Termination of this Agreement will not relieve Company of its obligation to pay all fees and expenses that accrued before such termination.

• Confidentiality

1. “Confidential Information” means all confidential information disclosed by one party to the other party under or in connection to this Agreement (including but not limited to Company Content, SourceDay Materials and templates, and technical information) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and circumstances of its disclosure.  
2. The receiving party will: (a) hold the disclosing party’s Confidential Information in confidence using 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); (b) restrict disclosure of the disclosing party’s Confidential Information to those of its employees, consultants, contractors, agents or representatives (“Representatives”) with a need to know such information and who have agreed, either as a condition of employment, representation or in a written agreement in order to obtain the Confidential Information, to be bound by terms and conditions or confidentiality undertakings no less restrictive than the terms and conditions applicable to the receiving party under this Agreement; and (c) not use the disclosing party’s Confidential Information for any purpose outside the scope of this Agreement or as otherwise not permitted hereunder. The receiving party will be responsible for any breach of this Agreement by its Representatives.
3. The restrictions in this Section 4 will not apply to Confidential Information to the extent that it (a) is already known to the receiving party and is not subject to confidentiality restrictions at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately before the time of disclosure, (b) has become publicly known and made generally available after disclosure by the disclosing party to the receiving party through no wrongful act of the receiving party, (c) has been rightfully received by the receiving party from a third party who is authorized to make such disclosure without a breach of such third party’s obligations of confidentiality, or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
4. The receiving party may disclose Confidential Information of the disclosing party pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that (if not prohibited by law) the receiving party gives the disclosing party prompt written notice of such requirement before such disclosure and reasonable assistance, at the disclosing party’s request and expense, to contest such order or requirement or seek confidentiality treatment. Each party may disclose terms and conditions of this Agreement (a) in connection with any financing transaction or due diligence inquiry,  (b) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished, and/or (c) on a confidential basis to legal or financial advisors.
5. Company acknowledges that SourceDay provides services similar to those provided under this Agreement to third parties and SourceDay may be providing deliverables to third parties that are substantially similar to the deliverables being provided to Company, but SourceDay will not use any of Company Content or Company Confidential Information in performing services for third parties. SourceDay will not be prevented from using SourceDay Materials or providing any services or deliverables to any third party, provided that SourceDay does not use or incorporate any Company Content or Company Confidential Information in connection with or into such services or deliverables.  
6. Company acknowledges and agrees that employees, consultants, contractors, agents and representatives of SourceDay who have received or have been exposed to Company’s Confidential Information may further develop their knowledge, skills and experience (including, but not limited to, ideas, concepts, know-how and techniques), which may be based on such Confidential Information.  The restrictions in this Section 4 will not apply to the subsequent use, and disclosures incidental to such use, by such employees, consultants, contractors, agents and representatives of such knowledge, skills and experience, as unintentionally retained in their unaided memories. The receipt of or exposure to Company’s Confidential Information under this Agreement will not in any way limit or restrict the work assignments of any of SourceDay’s employees, consultants, contractors, agents or representatives.
7. Company acknowledges that the following information is not Company Confidential Information and agrees to assist SourceDay with the following tasks related to publicity and marketing: (a) use of Company’s corporate name and corporate logo on the SourceDay website and in SourceDay marketing materials for the purposes of providing a supplier list to existing customers and potential prospects, (b) issuance of a press release which identifies Company’s organization as a supplier using the Services, and provides a high level description of the benefits expected to be achieved by the implementation, and (c) at Company’s discretion, support for a limited number of reference calls from potential customers. 

• Company Feedback

1. User feedback is essential to the continued improvement of SourceDay’s products and services. SourceDay will have the unrestricted right to use or act upon any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Company or any other party with respect to the Services. 

• Export of Services or Technical Data.

Company may not remove or export from the United States or allow the export or re-export of the Services, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.

• Backup

Even though SourceDay backs up data on its servers on a regular basis, Company understands and agrees that it can and should retain copies of its own files and not rely solely on SourceDay as the only back up source for Company’s files. UNDER NO CIRCUMSTANCES WILL SOURCEDAY BE LIABLE TO ANYONE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY FOR LOSS OF COMPANY’S FILES AND/OR DATA ON ANY SOURCEDAY SERVER.

• Representations and Warranties; Warranty Disclaimer

1. Each party represents and warrants that:  (a) it has the right to enter into this Agreement and to perform its obligations under this Agreement; (b) the execution, delivery and performance of this Agreement does not conflict in any material respect with, or constitute a material breach or default of, any organizational document, agreement, or other writing to which it is a party; (c) it has all licenses, permissions and agreements necessary or appropriate to grant the rights granted by it under this Agreement; (d) it will comply with all applicable laws, rules, and regulations in connection with its performance under this Agreement; and (e) with respect to Company, the Company Content, and with respect to SourceDay, the Services and SourceDay Materials, as applicable, does not and will not infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy.
2. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, SOURCEDAY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. FURTHERMORE, SOURCEDAY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  THE SERVICES ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND SOURCEDAY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
3. IN ADDITION, COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY SOURCEDAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS SUPPORT CENTER OR COMPANY SERVICE REPRESENTATIVES), WHETHER DIRECTLY OR INDIRECTLY, WILL (A) CONSTITUTE PERSONAL, LEGAL OR FINANCIAL ADVICE OR (B) CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND WITH RESPECT TO THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE. COMPANY SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE, AND COMPANY SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO ITS SITUATION.
4. THE FOREGOING DISCLAIMER OF REPRESENTATIONS, CONDITIONS AND WARRANTIES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR COMPANY’S USE OF THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO COMPANY. IN SUCH EVENT, SOURCEDAY’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WITH RESPECT TO THIS WEBSITE, THE SERVICES, AND SOFTWARE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.

• Limitation of Liability

1. SOURCEDAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS ASSUME NO RESPONSIBILITY WITH RESPECT TO COMPANY’S OR ITS END USER’S USE OF THE SERVICES AND WILL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT SOURCEDAY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. SOURCEDAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN $1000. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
2. IN ADDITION, COMPANY SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
3. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO COMPANY. IN SUCH EVENT, THE LIABILITY OF SOURCEDAY, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FOR SUCH DAMAGES WITH RESPECT TO THIS WEBSITE AND THE SERVICES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR COMPANY’S USE OF THIS WEBSITE OR THE SERVICES FOUND AT THIS WEBSITE.

Indemnification Obligations 

1. Each party (the “Indemnifying Party“) will, at its own expense, to indemnify, defend and hold harmless the other party, its officers, directors, employees, affiliates, agents, contractors, and its attorneys (collectively the “Indemnified Party”) from and against any claims, actions, liabilities, damages, costs or expenses, including reasonable attorneys’ fees and costs (collectively “Claim Costs”) incurred in defending against or settling third party claims (“Claims”) based on or arising as a result of: (a) the Indemnifying Party’s breach of Section 9.1 (Representations and Warranties); and/or (b) any action or omission of the Indemnifying Party constituting gross negligence, willful misconduct, or fraud.
2. Company will, at its own expense, to indemnify, defend and hold harmless SourceDay, its officers, directors, employees, affiliates, agents, contractors, and its attorneys (collectively the “SourceDay Indemnified Parties”) from and against any Claim Costs incurred in defending against or settling third party Claims based on or arising as a result of Company’s breach of any of this Agreement or use by Company or any third party (authorized, permitted or enabled by Company) of the Services, except to the extent the foregoing directly result from SourceDay’s own gross negligence, willful misconduct or fraud.
3. In the event a Claim arises, the Indemnified Party will: (a) promptly notify the Indemnifying Party of its receipt of notice of the Claim and provide the Indemnifying Party with all documents and material in its possession that are reasonably relevant to the Claim; (b) give the Indemnifying Party the right to assume sole responsibility for defense of the Claim, including but not limited to choice of counsel and settlement negotiations/decisions; and (c) give the necessary authorization, information and full co-operation and assistance to the Indemnifying Party (at the Indemnifying Party’s expense) for the sole defense of same; provided in all cases, however, that the Indemnifying Party may not settle any such Claim in any manner that imposes any admission of guilt or liability on the Indemnified Party without the prior written consent of the Indemnified Party. The Indemnified Party may participate in the defense of the Claim, at its expense, with counsel of its choice.

• Miscellaneous

1. Governing Law.  Disputes under this Agreement will be governed by the laws of the State of Texas excluding rules as to choice and conflict of law. Each party consents to the exclusive jurisdiction and venue of the State and Federal Courts for Travis County, Texas; provided, however, that an action for injunctive relief may be filed in a jurisdiction where the actions or party to be enjoined is located.  The parties hereby exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods. 
2. Force Majeure. Except with respect to any payment to be made to SourceDay hereunder, neither party will be liable for any failure, deficiency or delay in the performance of its obligations under this Agreement due to any force majeure, which will include but not be limited to any storm, flood, fire, aircraft damage, explosion, electrical or communication line failure, disturbance, war or military action, acts of terrorism, Government act or administrative delay, equipment failure or non-delivery, inability to obtain materials or any cause or matter whatsoever not within the reasonable control of such party.  In the event of such a force majeure, the affected party will be entitled to a reasonable extension of time for the performance of its obligations under this Agreement.
3. Independent Contractors.  The parties are independent contractors.  Nothing contained herein or done pursuant to this Agreement will constitute either party the agent of the other party for any purpose or in any sense whatsoever, or constitute the parties as partners or joint venturers.
4. Assignment. Company may not assign any of its rights or obligations hereunder without the prior written consent of SourceDay (not to be unreasonably withheld).  Notwithstanding the foregoing, Company may assign this Agreement in its entirety, without consent of SourceDay, by operation of law or otherwise in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets (“Change of Control Assignment”). SourceDay may assign or transfer its rights and obligations under this Agreement, without Company’s consent. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties, their respective successors and permitted assigns.
5. No Waiver.  The waiver of any provision of these Terms or the Agreement must be in writing signed by the party to be charged. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.  The express waiver by either party of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
6. Severability.  If, for any reason, a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
7. Notices.  All notices to Company will be sent to the email address of your email address and will be effective upon dispatch.  All notices to SourceDay will be in writing and will be deemed given when personally delivered, or three days after being sent by overnight courier, prepaid certified or registered mail, to the following address (or such other address as SourceDay designates through notice to Company as provided herein):

Attention: CEO

SourceDay, Inc.

9737 Great Hills Trail, Suite 100

Austin, TX 78759

1. Absence of Third-Party Beneficiary Rights. No provision of this Agreement is intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto will be personal solely between the parties hereto.
2. Entire Agreement.  This Agreement supersedes all proposals, quotations, oral or written, any letters of intent, all negotiations, conversations, or discussions between or among parties relating to the subject matter of this Agreement and all past dealing or industry custom. Other than as set forth in this Agreement (including, without limitation Section 1.1 above), (a) no changes, modifications, or waivers are to be made to this Agreement unless evidenced in writing and signed for and on behalf of both parties, and (b) only an officer of SourceDay is authorized to modify this Agreement or to make any warranty, representation or promise on behalf of SourceDay.

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