1. DEFINITIONS. Capitalized terms used but not otherwise defined in this Agreement will have the meaning ascribed to such terms in Schedule 1 and/or in the Sales Order.

2. SERVICES, PRODUCTS AND SALES ORDERS

A. Services
a. Sales Order. This Agreement states the terms and conditions under which Sourcepass will provide to Client the applicable Products and Services as determined between the Parties. Client acknowledges that the Services provided to Client will be accessed remotely through the use of reputable third-party software. All Products and Services, as well as the scope, Service-specific terms, and applicable charges and Fees will be described and embodied in a Sales Order/Sales Orders. If there is a conflict between the terms in a Sales Order and this Agreement, the Sales Order shall control. A Sales Order may be electronically signed or by physical signature, whereupon the Sales Order will automatically become incorporated into, and governed by, the terms of this Agreement.

Pursuant to the terms of this Agreement, Sourcepass shall provide to Client (i) the Products and Services as described in one or more Sales Order(s), and/or other documentation Sourcepass may provide from time-to-time; and (ii) the set-up, installation, implementation, configuration, and other Professional Services identified in Sales Orders (if applicable) and a Statement of Work (if applicable) in connection with the Products and Services. Client’s use of the Products and Services is governed by Sourcepass’ Acceptable Use Policy, which is set forth at https://sourcepass.com/legal/acceptable-use-policy/ and is incorporated herein by reference. Client may order Products and Services by executing one or more Sales Orders in a manner and format as required by Sourcepass. Applicable Professional Service Fees and/or installation Charges will be set forth in a Sales Order. Sourcepass may, in its sole discretion, accept or reject a Sales Order prior to execution. Once a Sales Order is executed, Sourcepass shall provide the applicable Products and Services and provide access credentials to the Account or applicable sub-account thereof.

b. Limited License. Subject to Client’s compliance with this Agreement, Sourcepass hereby grants Client and its Affiliates, a limited, revocable, personal, non-exclusive, non-transferable, and non-sublicensable license during the Service Term to: (i) provide Authorized Users access to the Products and Services via Client’s Account; and (ii) download, install, and use Software made available by Sourcepass in connection with the Services, subject to any additional terms and conditions accompanying such Software, as applicable.

c. Client Account. To access the Services, Client must maintain an active Account in good standing. Client shall provide and maintain accurate, complete, and up-to-date information within its Account. Client is solely responsible for the activity that occurs on its Account (which includes its sub-Accounts), and for keeping its Account credentials secure. Sourcepass will not be liable for losses caused by any unauthorized use of the Account; provided, however, that Client shall not be responsible for unauthorized Charges on its Account to the extent that it took reasonable precautions, and the unauthorized use is demonstrated to be solely due to Sourcepass’ gross negligence or willful misconduct. Client represents and warrants that it is duly authorized to do business and use the Products and Services in all jurisdictions in which Client operates. Client must notify Sourcepass promptly of any change in Client’s eligibility to use the Products or Services, breach of security, or any unauthorized use of Client’s Account. Notwithstanding closure of Client’s Account, Sourcepass may retain Client Data as reasonably necessary for compliance with applicable law, subject to the confidentiality obligations contained herein.

d. Client Affiliates. The foregoing licenses shall extend to Client Affiliates, provided that such Client Affiliates are acting via Client’s Account (or subaccounts thereof) and provided further that Client remains liable to Sourcepass for all acts and omissions of such Affiliates (or any other entities authorized by Client to use the Products or Services or act via Client’s Account) as if they were Client’s own acts or omissions, including payment for the Products and Services.

e. Third-Party Services. Sourcepass may use or rely on a Third-Party in conjunction with the provision of Services or the sale of Products, or such Third-Party may provide services separately. Third-Party Services may also be provided under Sourcepass’ trademarks or otherwise branded as a Sourcepass Service. Third-Party Services may be governed by Third-Party Terms which will be made available to Client either with the Sales Order, or upon request. Such Third-Party Terms are incorporated by reference into this Agreement and shall govern the use of Third-Party Products and Services. If no Third-Party Terms are provided, then such Third-Party Services are governed by this Agreement. Client agrees to comply with such terms and conditions of all Third-Party Products and Services. Third-Party Terms are deemed to be between the Third Party and Client. Any non-compliance with terms and conditions of Third-Party Products and Services shall be considered non-compliance with this Agreement. Client agrees to comply with the terms and conditions of all end user license agreements accompanying any Software, Product or Service (including Third-Party Services) or plug-ins to such Software distributed in connection with the Product or Service. All end user licenses shall immediately terminate on the date that the Service expires, or this Agreement is terminated. For the avoidance of doubt, any Fee or Service subject to Third-Party Terms are deemed a Third-Party fee or Service.

f. Recommendations. Sourcepass will make recommendations from time to time regarding security products and services for Client, in line with reasonable best IT and security practices, including risks associated with various solutions. However, responsibility to accept, reject, or change such solutions ultimately resides with the Client, not Sourcepass. Client understands and agrees that no security solution is 100% faultless or perfect in all situations, that failure to implement Sourcepass recommendations could result in a less secure IT environment, and that implementation of the Services under this Agreement is not a guarantee that security incidents or breaches will not occur.

B. Products and Equipment.

a. Product Selection. Client shall make final decisions regarding the purchase of any Product. Sourcepass will either arrange for the purchase of the specific items at quoted prices or recommend to Client local dealers and/or contractors who can assist in the purchase. With respect to such Product:
i. Client agrees to pay for Products in accordance with the Payment Terms.
ii. Client acknowledges that it is not relying on any promise or representation of Sourcepass not expressly set forth herein. Sourcepass is not responsible for Product specifications and has not provided any engineering or other advice concerning the Product or its fitness for Client’s intended use. Client waives, and hereby releases Sourcepass from, any liability for all damages, whether direct or indirect, and any loss or liability arising from property damage, death or personal injury, regardless of whether such loss or liability results in whole or in part from any delay, act or omission of Sourcepass, in connection with any Product.
iii. Sourcepass may install and set up the selected Product and configure the Product unless such configuration involves the illegal use, copying, or distribution of software or designed documents.

b. Equipment. Client understands and acknowledges that use of the Services may require the use of certain Client Equipment, Sourcepass Equipment, and/or Third-Party Equipment. Sourcepass’ Equipment Policy is set forth at https://sourcepass.com/legal/equipment-policy/ and shall apply to all equipment used, purchased or leased in connection with the Services.

c. Client Equipment. For Client Equipment, Sourcepass may provide support services as stated in the applicable Sales Order. Client agrees to provide Sourcepass with access as required during regular business hours, or at any time in the event of an emergency, to service or remove equipment at Sourcepass’ reasonable discretion. Loss, theft or physical damage to the equipment is Client’s sole responsibility. Client understands and acknowledges that installation and delivery of the Services may require the use of certain Client Equipment. Client represents that it owns or otherwise has the right to use the Client Equipment in connection with the Services. Client shall be fully responsible for the installation, maintenance, repair and operation of any Client Equipment and shall ensure the compatibility of any Client Equipment with Sourcepass Equipment and Services if and as applicable. Sourcepass will work with Client and provide guidance and applicable specifications relating to compatibility of the Client Equipment.

Client shall maintain Client’s equipment according to the following standards. Sourcepass may respond and attempt to resolve issues involving equipment not meeting these minimum standards using reasonable commercial efforts in Sourcepass’, and shall bill Client in addition to the Charges stated in any then-current Sales Order accordingly pursuant to this Agreement, subject to Customer’s prior written approval.
i. All operating systems must be manufacturer supplied and supported;
ii. All hardware must be manufacturer supplied and supported business grade machines;
iii. All server and desktop software must be genuine, licensed, and vendor-supported;
iv. Server, storage, and core networking equipment must be under manufacturer support while in industry-standard lifecycle;
v. Sourcepass enforces industry 39-to-60-month replacement life cycle;
vi. The environment must have a currently licensed business grade firewall in any physical business office;
vii. All wireless data traffic in the environment must be securely encrypted;
viii. There must be an outside static IP address assigned to the firewall for proper security filtering and support;
ix. All remote access to the network from the outside must be done via multifactor technology

d. Equipment and Data Backup. As part of the Service installation process, system files on Client Equipment may be modified to the extent required for operation of the Service. Such modifications may disrupt the normal operations of Client Equipment. Client understands and acknowledges that installation, use, inspection, alteration, maintenance, repair or removal of Sourcepass Equipment may result in temporary interruption to Service or damage to Client Equipment, software and loss of data. Client covenants to back-up all existing computer files by copying them to another storage medium prior to the installation of Sourcepass Equipment and Software. Client acknowledges, understands and accepts the risks of not making such a backup, including the loss of some or all of Client’s software or data. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SOURCEPASS SHALL HAVE NO LIABILITY FOR ANY DAMAGE TO, LOSS OF OR DESTRUCTION OF CLIENT’S EQUIPMENT, PERIPHERALS, SOFTWARE OR DATA DURING INSTALLATION EXCEPT AND TO THE EXTENT CAUSED BY SOURCEPASS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

C. Acceptance Period. Beginning immediately after Client’s receipt of notification from Sourcepass that the Service installation/activation is complete and fully operational as designed, Client shall have three full business days (the “Acceptance Period”) to perform acceptance testing on the Services. Thereafter, Client shall provide written notification to Sourcepass of whether the Service is accepted or not, provided, however, that the Service shall be deemed accepted if Client does not provide written notification to Sourcepass by the end of the Acceptance Period. If Client rejects the Service because the Service(s) fail to meet the applicable Service specifications or other terms of the applicable Sales Order or this Agreement (collectively, the “Specifications”), then Client shall advise Sourcepass and Sourcepass shall, within ten business days thereafter and at no additional cost to Client, remediate the ways in which the Specifications are not met. Thereafter, after remediation by Sourcepass, Client shall have an additional Acceptance Period to determine if the Services meet the applicable Specifications. If Client determines that the Services fail to meet the applicable Specifications for a second time, then Client may, at its option, terminate the applicable Sales Order upon written notice to Sourcepass (at no additional cost or expense, including any early termination charges), or require that Sourcepass remediate the Services and allow Client to perform further acceptance testing as set forth herein. Client is responsible to pay for the Services during the Acceptance Period and thereafter as contracted.

D. Service Term and Automatic Renewal

a. Each Sales Order shall state the Service Term commitment period. If a Sales Order does not set forth an Initial Term, the Initial Term shall be 36 months. The Initial Term for Services will commence on the applicable date set forth below. Notwithstanding the Term Start Date, billing for Services will commence as each Service is activated or made available to Client. The Initial Term for term-commit Services will automatically renew for successive periods of the same length as the previous Initial Term or Renewal Term (as applicable) except where either Party provides written notice of intent not to renew at least ninety (90) days prior to the end of the then-current Initial Term or Renewal Term. Upon termination of the applicable Initial Term or Renewal Term, Sourcepass will not be obligated to furnish Services to Client; provided however, if Client continues to use Services after termination of the Initial Term or Renewal Term, such use shall be on a month-to-month basis and Client shall be obligated to pay for such Services at Sourcepass’ then-current monthly rates. Either party may terminate such month-to-month term by providing at least thirty (30) days advance written notice.

b. The Service Term for Each Service is as Follows:
i. One-time or non-recurring project work – the date of execution of the Sales Order.
ii. Managed Services – the Term Start Date.
iii. Third-Party Services – the date the Third-Party license and/or Service is activated/made available.

E. Service Adds; Co-Term; Extensions. Unless otherwise stated in the applicable Sales Order, Managed Services added during the Service Term will be deemed to be part of the existing Sales Order for the purposes of determining the remaining Term commitment for such additional Service (i.e., co-term). However, some Services require a minimum commitment term which may not be co-terminus with the Term of the existing Sales Order (e.g., rental equipment and certain Third-Party Services). For any such Services, the Term will be set forth in the applicable Sales Order. If a Third-Party Service is added during an existing Managed Services Service Term which has a longer commitment period than the existing Managed Services Service Term, the Service Term for the existing Managed Services will be extended to be co-terminus with the Service Term of the added Third-Party Service.

F. Reservation of Rights. Notwithstanding anything to the contrary herein, Sourcepass reserves the right, but is not obligated, to (i) monitor and review Client’s use of the Services, including to ensure Client’s compliance with the Agreement; (ii) reject, refuse to transmit, block, or remove any content (including Client Data); and (iii) access, read, preserve, or disclose any information that Sourcepass reasonably believes is necessary to (a) comply with applicable law, regulation, legal process, or government request, (b) enforce the Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, (d) respond to Client’s support requests, or (e) protect the rights, property or safety of Sourcepass, its Clients, its Clients’ end users, and/or the public. Client agrees to provide Sourcepass with any information Sourcepass reasonably requests to investigate and resolve issues relating to Client’s Services and Account.

G. Required Maintenance; Support; Service Level Objectives and Agreement

a. Sourcepass has the right to perform repair and maintenance or to upgrade, update or enhance (collectively, the “Planned Maintenance”) its network, infrastructure, website(s), Services and/or Sourcepass Equipment with prior notice if such Planned Maintenance would cause a partial or full disruption of the Services. Sourcepass reserves the right to perform emergency maintenance if such work is required to protect Sourcepass, its Clients, the public, and if required by law, rule or regulation. Notice will be provided as soon as reasonably practicable.

b. Client will timely report any issues, trouble or problems affecting Service to Sourcepass using a Client-initiated trouble ticket (a “Trouble Ticket”). Trouble Ticket procedures and additional information for Sourcepass support can be found at portal.sourcepass.com. Calls to and from Sourcepass support, service, sales or other representatives may be recorded and/or monitored for quality assurance and training purposes. Client’s sole remedies for any non-performance, outages, failures to deliver or defects in Service are set forth in this Agreement.

c. Unless otherwise set forth in a Sales Order, remote help desk support will be billed in ¼ hour increments at the same rate stated in the Sales Order. Legal holidays (New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day), weekend and evening support will be provided at 1.5 times the normal hourly rate.

d. On-site emergency work outside of standard support hours (M-F, 8am-6pm local time based on Customer Location) requires a 2-hour minimum charge.

H. Acceptable Use Policy. Client shall not, and shall require that end users and Affiliates do not, and shall not authorize, assist, or enable any other third party to, use the Products and/or Services in any manner that violates the AUP.

I. No Resale. Client represents and warrants that it will be the ultimate end user of the Products and Services. Client shall not in any way resell the Services without receiving Sourcepass’ prior written consent, which will include entering into the applicable Sourcepass reseller contract.

J. Changes. Sourcepass may update, upgrade, discontinue, or otherwise modify the Services or specific Services in whole or in part in accordance with this section. Sourcepass shall make commercially reasonable efforts to provide at least sixty (60) days’ notice prior to any material changes of the specific Services, subject without limitation to urgency and security issues, which may require a shorter time period. Client shall use commercially reasonable efforts to cooperate with Sourcepass to effect modifications to the Services, including by promptly implementing all fixes, updates, upgrades, and replacements of Software or Services as reasonably required by Sourcepass, and Sourcepass shall not be responsible for any issues caused by Client’s failure to do so. Notwithstanding the foregoing, modifications to the Services shall not materially reduce the features, level of functionality, performance, availability, or security of the Services during the Service Term, unless Sourcepass makes available to Client, at no additional cost, an alternative Service that is substantially equivalent to the modified Service; provided that Client’s sole remedy for Sourcepass’ non-compliance with the foregoing shall be the right to terminate any affected Service within ninety days of receiving written notice of the modification, and will be provided with a refund of any fees paid for Services not provided up to the date of termination.

Sourcepass may discontinue, limit, modify any Service, or impose additional requirements to the provision of any Service, as may be reasonably required to comply with any Applicable Laws. If changes in Applicable Laws materially and adversely affect delivery of Service (including the economic viability thereof), Sourcepass will provide notification to Client and the Parties will use good faith efforts to negotiate appropriate changes to this Agreement. If the parties cannot reach agreement within thirty (30) days after Sourcepass’ notice requesting renegotiation, Sourcepass may, on a prospective basis after such thirty (30) day period, pass any increased costs resulting from such changes on to Client, if any; provided, however, that Sourcepass shall provide Client written notice of any increased costs or charges and Client may upon notice given to Sourcepass within sixty (60) days after delivery of the notice of the increased charges terminate the Agreement without penalty.

K. Door and Facility Access. Client agrees and accepts that Sourcepass requires access to Client’s facilities and location to provide Services pursuant to the applicable Sales Order. Client therefore agrees to grant Sourcepass reasonable access to Client’s facilities and locations, and will at all times accompany the Sourcepass employee while on-site. If a Client employee is not available, and Client grants unaccompanied access to Sourcepass, Client waives all liability and holds Sourcepass harmless from and against any and all liability associated with such unaccompanied access.

L. Camera Installation. If under any Sales Order Sourcepass provides security services using camera, door readers, door controllers, network switches, or UPS devices dedicated to servicing physical security hardware technologies (the “Physical Security Technologies”) that require certain placement to work effectively, Sourcepass shall consult with Client regarding placement of Physical Security Technologies. Client must object in writing to Sourcepass to the placement or sufficiency of any Physical Security Technologies. If Client does not object in writing, then Client is deemed to have approved the placement and sufficiency of Physical Security Technologies, including but not limited to field of view of any camera placement, and Client waives any rights regarding the placement or sufficiency of such Physical Security Technologies.

M. Structured Cable. Sourcepass shall comply with all relevant laws and regulations regarding the placement, construction, and protection of all structured cable installations.

N. Visitor Management. Client understands that no security solution is perfect, and that while Sourcepass does not guarantee any particular outcome, security services provided under any Sales Order are most effective when Client maintains a secure physical environment and manages the visitors to Client’s facilities and location.

O. Security Services Exclusions. Notwithstanding any of the foregoing, all security services exclude masts and support structures, placement of Physical Security Technologies requiring a lift rental, locksmith work, third-party interoperability fees, burglar alarm monitoring, fire alarm monitoring and testing, and remediation of prior breaches, unless specifically identified in a Sales Order as a Service.

P. Primary Contact. Client shall appoint a duly authorized primary contact person to provide direction, instruction and consent for Sourcepass’ performance of Services or the sale of any Product. The primary contact person shall be the signatory in a Sales Order unless Sourcepass is notified otherwise in writing.

3. FEES AND PAYMENT
A. Invoices; Billing and Payment Terms
a. Sourcepass will invoice Client and Client shall pay for all Charges pursuant to the Invoicing Frequency and Payment Terms as set forth in the applicable Sales Order(s). If the Payment Terms in a Sales Order do not state that the Service is billed in arrears, the default is billed in advance. Client will provide Sourcepass with valid and updated credit card or ACH information if paying via such method. If Client provides credit card or ACH information to Sourcepass, Client authorizes Sourcepass to charge such credit card or debit such ACH for all purchased Services listed in the Sales Order. Client is responsible for providing complete and accurate billing and contact information to Sourcepass and notifying Sourcepass of any changes to such information.
b. Recurring charges for Services purchased on a term-commitment begin on the date the Service is activated/available and will continue for the applicable Service Term. Po-rated billing will occur if such Services commence prior to the Term Start Date, with the first full monthly payment due as of the first of the month following the date that such Service began.
c. Professional Services and project Services (non-recurring charges) provided on a fixed price basis will be billed in advance, and Professional Services and project Services provided on a time and material basis will be billed as completed monthly in arrears pursuant to the Payment Terms. Payments will be made via progress payments as stated in the Sales Order.
d. A fifty percent (50%) deposit is required for all non-recurring Products and Services prior to Sourcepass ordering materials or performing Professional Services.
e. Payment obligations are non-cancellable, and Charges paid are non-refundable unless otherwise set forth in this Agreement.
f. Except as stated below, Managed Services purchased cannot be decreased or terminated early without cause during the relevant Service Term without the imposition of the applicable early termination charges per this Section.
g. Change Order fees, and ancillary expenses (e.g., incurred in connection with the Professional Services, if any, such as travel, hotel and subsistence expenses; such expenses to be invoiced by Sourcepass at cost and which Client will approve in advance) are payable in arrears. Once an onsite service has been scheduled, Sourcepass requires at least 48 hours’ notice to reschedule, or a 20% cancellation fee will be added to the invoice.
h. Equipment purchase Charges are billable upon execution of a Sales Order.
i. Third-Party fees and costs are subject to pricing changes during a Service Term. Sourcepass will use reasonable commercial efforts to provide notice of price changes for Third-Party Products or Services in advance, but failure to provide notice will not affect Client’s obligation to pay any such increase.
j. Overdue amounts other than amounts disputed in good faith bear interest at the lower of 1.5% per month or the maximum rate allowed by governing law. Sourcepass may suspend the Services upon prior written notice if Client’s payment on any undisputed amounts remains overdue at the end of the tenth (10th) day following such notice.
k. Client agrees to supply Sourcepass with the information necessary for Sourcepass to complete an initial credit evaluation prior to providing Client with Products and Services. Sourcepass may also update its information regarding Client’s credit rating from time to time. Sourcepass may limit Client’s purchasing of additional Products and/or Services or require another form of payment such as auto-payment in its reasonable discretion based on changes in Client’s creditworthiness or habitual payment delinquency.

B. Pricing. Pricing shall be set forth in the applicable Sales Order. Upon each annual anniversary of the Service Term, the Charges for Managed Services and Professional Services will increase by 5% or the Consumer Price Index (CPI), whichever is greater. In the event Sourcepass continues to provide Managed Services to Client on a month-to-month basis following a committed term, Sourcepass reserves the right to increase pricing to Sourcepass’ then-current month-to-month pricing. Pricing for Third-Party Services are subject to change based upon the particular Third-Party Service.

C. Commitment. Client agrees it is responsible for the full value of each Sales Order effective upon execution of the applicable Sales Order, subject to this Section and termination due to Sourcepass’ uncured default. Except as otherwise stated herein, if Services are reduced or terminated other than due to Sourcepass’ uncured default, all Charges due under the reduced or terminated Sales Order will be accelerated and Client shall pay Sourcepass the sum of all unpaid amounts for Services actually provided, plus all remaining contracted Charges as of the date of termination through the end of the Service Term (including any Services contracted but not yet activated), as well as any additional incurred Charges (including third-party charges and costs, plus collection costs and reasonable attorney fees).

Notwithstanding the foregoing, in the event of a reduction in the size or scope of Client’s operations, Client may request a reduction of up to 40% of the monthly recurring charges (“MRC”) of the add-on Managed Services following the Term Start Date without penalty. Any request to reduce add-on Managed Services without penalty shall be ineffective if such reduction would result in the reduced MRC exceeding 40% of the MRC for the add-on Service. Any MRC reduction shall be effective the month following the date the reduction is requested. For clarification, the remaining 60% MRC of each add-on Service shall continue as a commitment for the remainder of the then-current Service Term.

The reduction right is subject to the following additional conditions:
a. The reduction right shall apply to add-on Managed Services only.
b. The reduction shall not be the result of a decision by Client to transfer portions of the reduced Service(s) to providers other than Sourcepass.
c. Client is responsible for paying for all applicable Charges prior to the effective date of the reduction.
d. Client’s account must be current and Client must not otherwise be in default under the Agreement.
e. Any reduction other than in accordance with this Section will be subject to applicable early termination charges.

D. Taxes and Fees. Prices for Products and Services do not include applicable Taxes, Fees, Shipping and Handling, Duty and Customs charges. Client will be solely liable for and will pay upon demand all such charges associated with Client’s purchase of Products, and access to or use of the Services as set forth in the applicable Invoice, and shall not deduct any such amounts, or any other withholdings, set-offs, or deductions, from owed amounts, but will not be responsible for taxes based on Sourcepass’ net income. Client may present Sourcepass with an exemption certificate eliminating Client’s and Sourcepass’ liability to pay certain Taxes. Once Sourcepass has approved the exemption certificate, Client shall be exempt from those Taxes on a go-forward basis. If a tax authority determines that Client is not exempt from Taxes and assesses those Taxes, Client shall pay those Taxes to Sourcepass, plus any applicable interest or penalties. Client may be charged Taxes and Fees by an authorized distributor for non-Sourcepass products and services sold or licensed by that authorized distributor in connection with a Sales Order.

E. Billing Disputes. Billing disputes must be initiated within ninety (90) days of the disputed invoice date. Upon expiration of such ninety (90) day period, Client waives its right to dispute any fees paid or payable to Sourcepass. The Parties will work together in good faith to resolve billing disputes. A pending billing dispute shall not exempt Client from timely paying any undisputed amounts. Other than as stated in this Agreement, fees paid are non-refundable.

4. PROFESSIONAL SERVICES

A. Performance
a. Sourcepass will provide and Client shall pay for Professional Services as applicable and as specified in the Sales Order using trained and qualified personnel, who will provide such Professional Services in a professional and workmanlike manner.

b. Client’s exclusive remedy for breach of the foregoing shall be the re-performance of such Professional Services, except where Sourcepass is unable to re-perform the Professional Services, in which case, Client may recover fees paid with respect to such deficient Professional Services by written claim no later than ninety (90) days after the claimed deficient performance.

c. Professional Services are available either on a time-and-materials or fixed-fee basis as described in the relevant Sales Order. Professional Services fees will be paid via a progress payment schedule unless otherwise stated in the Sales Order. Professional Service Fees may be subject to change if Client modifies the scope of the Services or delays the Services to be installed, in which case a Change Order is required.

d. A change to the scope or execution of the Professional Services shall be agreed via Change Order prior to implementation of the changes. The Change Order shall set out the proposed changes and the likely effect on the Professional Services and/or the Professional Service Charges.

e. Upon completion of the Professional Services, if the Client uses the Products and/or Services or part thereof for any purpose other than for testing, such use shall constitute acceptance of the Products or Services.

f. Sourcepass may subcontract the performance of, or Client may utilize a third-party to perform any or all of the Professional Services. Any subcontract by Sourcepass shall not affect Sourcepass’ liability to the Client for the performance of its contractual obligations, and Client shall be solely responsible for any Professional Services performed by Client’s third-party.

B. Scheduling. The Parties will mutually agree upon the scheduling of Professional Services ordered by the Client. Sourcepass shall use all reasonable efforts to meet the agreed-upon schedule. In the event Client reschedules or cancels scheduled Professional Services, Sourcepass shall make reasonable efforts to mitigate incurred expenses and reschedule its resources to other engagements; provided that, to the extent Sourcepass cannot reasonably avoid such expenses or reschedule the applicable resources, Client shall be responsible for such expenses. In addition, in the event Client reschedules the Professional Services and the rescheduling is not due to delays caused by Sourcepass, the Subscription Service Term Start Date will commence on the date stated in the Sales Order unless otherwise agreed by the Parties in writing.

C. Cooperation. Client shall cooperate reasonably, timely, and in good faith with Sourcepass (including its subcontractors and personnel) in its performance of Professional Services, including by providing to Sourcepass in a timely manner and without charge (a) support as reasonably requested by Sourcepass; (b) information regarding health and safety rules and regulations and any other reasonable security requirements that apply at the applicable service location; (c) physical space, equipment, telephone and internet access, and access to other facilities if and as required; (d) access to appropriate and knowledgeable personnel; and (e) as applicable, permissions, consents, or authorizations reasonably necessary to activate, maintain, inspect, or repair applicable Products and Services or Sourcepass Equipment, including (if applicable) the right to access and enter the applicable service location upon reasonable prior notice.

D. Out of Scope Work. For all work performed outside of the Professional Services described herein (“Out of Scope Work”), Sourcepass’ hourly rates shall apply as stated in the Sales Order.

5. SUPPLEMENTAL TERMS AND POLICIES
A. This Agreement also incorporates all additional terms, conditions and policies that are set forth in an addendum, schedule or exhibit, as well the AUP, Privacy Policy, Copyright Policy, Equipment Policy, and the DPA (“Policies”) which supersede and replace all terms and conditions set forth in any documents issued by Client, including purchase orders and specifications not agreed to in writing by the Parties.

B. Sourcepass may update or replace the Policies from time to time (a “Policy Change”) and will provide notice to Client either via email to the address on file, or through Client’s invoice. If such Policy Change is (a) applicable to Client, and (b) materially and detrimentally impacts the Products and/or Services, upon receipt of notice from Sourcepass, Client will have thirty (30) days to notify Sourcepass that such changes are materially and adversely impacting, stating specifically which changes are impactful. The Parties will then attempt to reach a mutually agreeable workaround agreement. If agreement cannot be reached, Sourcepass may either waive or modify the requirement to Client’s reasonable satisfaction. If Sourcepass does neither, then Client can either, within thirty (30) days following Sourcepass’ notice of its refusal to waive or modify the requirement, accept the Policy Change or terminate those Products and/or Services affected without termination liability, without the right to continue to use those Products and/or Services thereafter. Notwithstanding the foregoing, Client’s right to object or terminate shall not apply to Policy Changes required by applicable law, regulation or governmental authority, or to changes required to protect the security and operability of Sourcepass, a Third-Party, the Products and/or Services, or Sourcepass’ other Clients.

C. Sourcepass may enter into arrangements with referral partners or resale agreements with authorized resellers (collectively “Partner” or “Partners”) who may market, refer or resell the Sourcepass Products and Services to prospective clients who then subscribe to this Agreement. Such clients are considered a client of Sourcepass only with respect to Sourcepass Products and Services. As an example, if a company provides managed services and also sells Sourcepass Products and Services, and a client subscribes to both the company and Sourcepass’ Products and Services, the client is considered, with respect to Sourcepass’ Products and Services, only a Client of Sourcepass. The terms and conditions of the Partner’s contractual arrangement with such client for products and services not provided by Sourcepass will not apply to the Sourcepass Products and Services, nor supersede this Agreement as to Sourcepass’ Products and Services.

6. INTELLECTUAL PROPERTY; CLIENT DATA
A. Client Data. As between Client and Sourcepass, Client owns and reserves all right, title, and interest in Client Data. Client authorizes Sourcepass to use the Client Data to provide the Services and perform in accordance with the Agreement.

B. Intellectual Property Rights
a. All Intellectual Property Rights and all other rights in the Services, including Third-Party Services, shall be owned by Sourcepass or its licensors, including without limitation any improvements, enhancements, modifications, and derivative works thereof made pursuant to any of the Services.
b. Upon termination of this Agreement, any licenses granted under this Agreement will automatically, without notice, terminate.
c. Neither party shall use the other’s trademarks, trade name, brands or images without the other’s prior written permission.

C. Suggestions. Client’s suggested improvements to and feedback regarding the Services are not Confidential Information, and Client grants to Sourcepass an unrestricted, irrevocable, fully paid-up, and non-exclusive right to use such suggestions and feedback for any purpose.

D. Sourcepass Services and Sourcepass Content. Sourcepass or the applicable Third-Party owns and reserves all right, title and interest in and to the Services and all improvements, modifications, and derivative works thereof. Other than the Client Data, all Sourcepass Content is as between Client and Sourcepass owned by Sourcepass. Client shall not (and shall not allow third parties to) (i) decipher, decompile, disassemble, reverse engineer, or otherwise attempt to derive any source code or underlying ideas or algorithms of Sourcepass Content, Service or Third-Party Service, except to the limited extent applicable laws specifically prohibit such reverse-engineering restrictions; or (ii) alter, modify, translate, or otherwise create derivative works of any part of the Sourcepass Content, Service or Third-Party Service except as may be authorized by specific licensing terms accompanying certain Software.

E. Other Rights. Except as explicitly granted herein, neither Party is granted a license or other right (express, implied, or otherwise) to use any trademarks, copyrights, service marks, logos, trade names, patents, trade secrets, or other intellectual property of the other Party or its Affiliates or licensors without the express prior written authorization of the other Party.

F. Restrictions. The Services may contain Sourcepass Content provided by Sourcepass, Sourcepass partners, licensors and Clients, or other third parties, that are subject to and protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. Client shall abide by and maintain all copyright notices, information, and restrictions contained in any Sourcepass Content accessed through the Services.

7. CONFIDENTIALITY AND DATA PROTECTION
A. Confidential Information. “Confidential Information” means any non-public information or data, regardless of whether it is in tangible form, disclosed by either Party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure, including the material terms of this Agreement. The terms of the Agreement are the Confidential Information of both Parties. Neither Party may identify the other Party using its name, trademarks, and/or logos in marketing collateral, press releases, presentations, websites, and/or case studies without the other Party’s written consent. Confidential Information does not include any information which can be demonstrably shown: (i) is publicly available through no fault of receiving Party, (ii) was properly known to receiving Party, without restriction, prior to disclosure by the disclosing Party, (iii) was properly disclosed to receiving Party, without restriction, by another person without violation of disclosing Party’s rights, or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information.

B. Restrictions. During the term of this Agreement, each Party agrees that it will use the Confidential Information of the other Party solely in accordance with the provisions of the Agreement (and for Sourcepass to provide the Services) and it will not disclose such Confidential Information to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder or for Sourcepass to provide the Services or make other uses and disclosures identified in Sourcepass’ Privacy Policy. Each Party agrees to exercise due care in protecting the other Party’s Confidential Information from unauthorized use and disclosure. Each Party may also disclose the Confidential Information of the other Party to its employees, representatives, Affiliates, actual or potential investors, and subcontractors who have a need to know and are bound to keep such information confidential consistent with the terms of this section. In addition, Sourcepass may disclose the Agreement under a comparable non-disclosure agreement in response to a third-party due diligence request supporting a financing or non-ordinary course of business corporate transaction. Either Party may disclose the Confidential Information of the other as required by law, legal process, or court order; provided that, subject to applicable law, it promptly notifies the other Party of such required disclosure in order to allow the other Party to seek a protective order or other appropriate remedy.

C. Data Security. Sourcepass agrees to use commercially reasonable efforts to safeguard the security of Client Data it handles, stores, processes, or transmits within its reasonable span of control, and will comply with all applicable laws, rules and regulations in accordance with applicable law. If Sourcepass discovers or is notified of a breach of security relating to Client Data, Sourcepass shall, upon confirmation of a breach impacting Client Data, notify Client within the period of time ascribed by applicable law but in no event less than seventy-two (72) hours following confirmation of the breach (a) notify Client of such breach; and (b) if the applicable Client Data was within the reasonable span of control of Sourcepass at the time of such breach, Sourcepass shall: (i) use commercially reasonable efforts to mitigate the effects of the breach; and (ii) take commercially reasonable steps to institute safeguards that are designed to prevent or attempt to prevent the recurrence of such breach.

D. Personal Data. Processing of personal data by Sourcepass on behalf of Client shall be subject to the terms of the Sourcepass Data Processing Addendum (“DPA”) and Business Associate Agreement (“BAA”) which are automatically incorporated into the Agreement by this reference.

8. WARRANTIES AND DISCLAIMERS
A. Sourcepass Warranty. Sourcepass will provide the Services using a commercially reasonable level of skill and care, in material compliance with all applicable laws and otherwise subject to the terms of this Agreement. To the extent permitted by law, Sourcepass shall pass through to Client any and all warranties Sourcepass receives in connection with equipment provided to Client. The Services will be provided substantially in accordance with this Agreement, the Sales Order and the applicable SOW. Client’s exclusive remedy and Sourcepass’ entire liability for a breach of this Section are set forth in Section 11 (Termination).

B. Client Warranty. Client and its Authorized Users’ use of the Services must at all times comply with all applicable laws and this Agreement. Client warrants that it has the right to use the Client Data at all times.

C. Assumption of Risk. Sourcepass has no special relationship with or fiduciary duty to Client. Notwithstanding anything to the contrary herein, Sourcepass shall have no liability for acts, faults, or omissions of any third party systems, networks, or operators (including, without limitation, suspension or termination of Sourcepass’ connections, or faults in or failures of such apparatus or network).

D. Disclaimer of Warranties. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, SOW AND SALES ORDER, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SOURCEPASS CONTENT ARE PROVIDED “AS IS”, “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. SOURCEPASS, AND SOURCEPASS’ SUPPLIERS, PARTNERS, AND LICENSORS, AND EACH OF SOURCEPASS’ AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, DO NOT WARRANT (AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES) THAT: (I) THE SERVICES WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, (II) THE CONTENT ON THE SOURCEPASS WEBSITES OR SERVICES (OR ANY THIRD PARTY SITES OR SERVICES LINKED THERETO) IS ACCURATE, ERROR-FREE, OR COMPLETE, OR (III) THE RESULTS OF USING THE SERVICES WILL MEET CLIENT’S REQUIREMENTS. SOURCEPASS DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT OF, COMMUNICATION BY, OR PRODUCT OR SERVICE ADVERTISED OR OFFERED BY, A THIRD PARTY THROUGH THE SERVICES, AND SOURCEPASS WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN CLIENT AND THIRD PARTIES. EXCEPT AS OTHERWISE AGREED IN A BUSINESS ASSOCIATE AGREEMENT SIGNED BY SOURCEPASS, SOURCEPASS MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICES OR THEIR USE WILL COMPLY WITH HIPAA OR WILL RENDER ANY PARTY COMPLIANT WITH HIPAA, AND IS RELEASED FROM ANY LIABILITY FOR ITS ACTS OR OMISSIONS RELATING TO HIPAA.

9. INDEMNIFICATION
A. Client Indemnification. Client agrees to defend, indemnify and hold harmless Sourcepass, its Affiliates, and each of their respective employees, licensors, contractors, directors, officers, representatives and Third Parties from and against any damages, liabilities, claims, demands, obligations, losses, fines, penalties and expenses (including reasonable attorney fees) (collectively “Losses”) incurred in connection with claims made or brought by a third party arising from or related to: (i) use of the Products and/or Services in a manner not authorized by this Agreement, including violations of the AUP or applicable law by Client, its Affiliates, or its or their Authorized Users, agents or subcontractors; (ii) Claims relating to Client Data and/or claims that the use of Client Data infringes the proprietary rights of such third party, and/or that its use by the Client or any direction by the Client for use by Sourcepass is in violation of this Agreement or applicable law; (iii) Claims related to Client’s failure to implement Sourcepass’ recommended guidance in connection with Products and/or Services; or (iv) gross negligence or willful misconduct of Client, its Affiliates, or its or their Authorized Users, agents or subcontractors.

B. Sourcepass Indemnification. Sourcepass agrees to defend, indemnify and hold harmless Client from and against any Losses incurred in connection with claims made or brought by a third party arising from or relating to Losses caused by (i) infringement of third-party Intellectual Property Rights due to Client’s authorized use of the Services (other than Client Data); or (ii) the gross negligence or willful misconduct of Sourcepass or its agents or subcontractors. Notwithstanding any of the foregoing, Sourcepass shall have no liability for Losses arising out of (x) any combination, operation, or use of the Services with any hardware, software, or services not provided by Sourcepass, except to the extent such combination, operation, or use is necessary for the use of the Services; or (y) use of any sample or reference code made available by Sourcepass or any third party, via the Sourcepass Website or otherwise.

C. Indemnification Procedure. The indemnified Party shall notify indemnitor promptly after the indemnified Party learns of the existence of an indemnifiable claim hereunder; provided, however, that failure to give such notice shall only affect the rights of the indemnified Party to the extent that indemnitor is prejudiced. The indemnified Party shall not admit any liability whatsoever. The indemnitor shall be entitled to take sole control of the defense and investigation of the indemnifiable claim at its own expense, by providing prompt written notice to the indemnified Party. The indemnified Party shall cooperate in all reasonable respects with the indemnitor and its attorneys in the defense of the claim (including by making available books, records, and personnel), and may reasonably participate at its own expense, through its attorneys or otherwise, provided that such participation does not interfere with the indemnitor’s defense. All settlements of indemnifiable claims under this Section shall: (i) be entered into only with the indemnified Party’s consent; and (ii) include an appropriate confidentiality agreement prohibiting disclosure of the terms of such settlement.

10. LIMITATION OF LIABILITY
A. Exclusions. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR SOURCEPASS’S SUPPLIERS, LICENSORS, PARENT, SUBSIDIARY, AFFILIATE, SUBCONTRACTORS OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER ANY CONTRACT, TORT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SERVICES OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR: (I) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, LOST PROFITS, GOODWILL, REVENUE, INCOME OR BUSINESS, DATA LOSS, INTERRUPTION OF BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, RIGHTS, OR SERVICES (HOWEVER ARISING AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES);

B. Direct Damages; Limitations.
a. EITHER PARTY’SAGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID OR ARE PAYABLE TO SOURCEPASS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO A CLAIM SUBJECT TO THIS SECTION. THE PARTIES ACKNOWLEDGE AND ACCEPT THE REASONABLENESS OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION.
b. NOTWITHSTANDING THE PROVISIONS IN THIS SECTION, NOTHING IN THIS AGREEMENT SHALL LIMIT FINANCIAL LIABILITY IN RESPECT OF THE CLIENT’S PAYMENT OBLIGATIONS, EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY, OR EITHER PARTY’S LIABILITY FOR WHICH LIABILITY IS NOT LIMITED UNDER APPLICABLE LAW.
c. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY, SOURCEPASS SHALL HAVE NO LIABILITY FOR DAMAGES WHICH WOULD HAVE BEEN PREVENTED BY A PRODUCT OR SERVICE OFFERED TO CLIENT WHERE SUCH PRODUCT OR SERVICE WAS DECLINED BY CLIENT. In addition, Client shall waive all liability to and hold Sourcepass harmless from damages caused by Client’s refusal or failure to accept a proposal or implement recommendations from Sourcepass.

11. TERM AND TERMINATION

A. Term. This Agreement shall be effective beginning on the Effective Date and continue for so long as Services are being provided to Client.

B. Termination; Suspension. Either Party may terminate the Agreement for cause: (i) if the other Party is in material breach of the Agreement and has failed to cure such breach within thirty (30) days after written notice thereof, or (ii) upon the other Party’s liquidation or dissolution, disposal of substantially all assets (subject to the Assignment obligations below), failure to continue its business in the ordinary course, assignment for the benefit of creditors, or becoming the subject of a voluntary or involuntary bankruptcy or similar proceeding. Sourcepass may suspend Services at any time with or without prior notice – depending on the nature of the breach and the actual/potential harm to Sourcepass and Sourcepass clients, vendors, partners, etc., – in Sourcepass’ sole discretion. Client shall remain responsible to pay for all Charges during any suspension period. Following Sourcepass’ determination that the issue which gave rise to the suspension has been resolved to Sourcepass’ reasonable satisfaction, Client may resume use of the Services. Sourcepass is not obligated to suspend services prior to termination in Sourcepass’ sole discretion, if due to the nature of the breach termination may be warranted.

C. Effect of Termination and Survival. Upon termination of the Agreement, and without limiting any of Sourcepass’ other remedies hereunder: (i) Client remains liable for all Charges and any other obligations accrued and owed by Client through the effective date of such termination, and (ii) except in the case of termination owing to Sourcepass’ uncured breach, Client remains liable for all Charges and any other obligations accrued and owed by Client from the date of termination through the end of the contracted Service Term, and (iii) except as expressly set forth herein, all of Client’s rights and licenses under the Agreement will immediately terminate and Client shall cease using the Services. All amounts accrued or owed to Sourcepass in connection with the Agreement, and any other provisions which by their nature would reasonably survive, shall survive any termination of the Agreement. Following any suspension or termination of the Agreement or Client’s Account other than for breach, Client may request reasonable post-termination assistance that Sourcepass may elect to make generally available with respect to the Services, subject to and conditioned upon Client’s advance payment of any applicable fees and acceptance of all terms and conditions that Sourcepass specifies in writing with respect thereto.

12. NOTICES
a. Sourcepass shall send notices hereunder via email to the email address Client provides on the Sales Order. It is Client’s responsibility to keep its email address current, and Client will be deemed to have received any email sent to the last known email address Sourcepass has on record for Client.
b. Client shall send notices hereunder as follows:
i. Formal Legal Notices – via email to legal@sourcepass.com.
ii. Billing Disputes – via email to ebill@sourcepass.com.
iii. Cancellation/Non-Renewal of Services – via email to ebill@sourcepass.com.
c. The addresses to which notices may be given by either Party may be changed upon written notice given to the other Party pursuant to this Section (Notices) or by Client to Legal@sourcepass.com.

13. GOVERNING LAW AND VENUE. The laws of the State of Delaware will govern this Agreement, without reference to its principles of conflicts of laws, and each Party irrevocably consents to the jurisdiction of such state. Because this agreement is a transaction in interstate commerce, the Federal Arbitration Act (“FAA”), and not state arbitration law, shall govern the interpretation and enforcement of the arbitration provision below.

14. ARBITRATION AND DISPUTE RESOLUTION

A. Management Resolution. In the event either Party has a dispute or claim against the other Party, the disputing Party shall provide written notice to the other Party per Section 13 (Notices). The Parties agree to escalate disputes (other than invoice disputes) to their respective executive management, who will use commercially reasonable efforts to resolve the dispute by consulting with each other in good faith to reach an equitable resolution satisfactory to both parties within thirty (30) days of the receipt of notice. Neither Party shall pursue or commence proceedings regarding the dispute in any court, administrative arbitral, or other adjudicative body prior to engaging in such consultations and negotiations.

B. Binding Arbitration. If negotiations fail to resolve the dispute within thirty (30) days, all disputed claims (except for claims relating to Intellectual Property Rights, indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of service, or matters relating to injunctions or other equitable relief) must be resolved by binding arbitration before a single arbitrator, in the English language. This agreement to arbitrate is intended to be given the broadest possible meaning under applicable law. The initiation of an arbitration dispute shall not otherwise prevent Sourcepass or Client from terminating Services in accordance with this Agreement.

C. Location and Procedure. A Party who intends to seek arbitration must first send to the other Party a written notice of dispute per Section 13 (Notices), which must describe the nature and basis of the dispute and set forth the specific relief sought. The arbitration location will be determined by Sourcepass unless the Parties mutually agree upon a location. The amount of any settlement offer made by Client or Sourcepass shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Client or Sourcepass is entitled. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with this Agreement. The prevailing Party in any action or proceeding to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs.

D. Jury Trial and Class Action Waiver. Subject to applicable law, each Party waives its right to a trial by jury for all Claims hereunder. The arbitrator may award relief only in favor of the individual Party seeking relief and only to the extent necessary to provide relief warranted by that Party’s individual claim. The arbitrator may not award special, indirect, punitive, incidental or consequential damages. CLIENT MAY BRING CLAIMS AGAINST SOURCEPASS ONLY IN CLIENT’S INDIVIDUAL CAPACITY AND NOT AS A CLAIMANT/PLAINTIFF, CLASS MEMBER OR GROUP ACTION IN ANY PURPORTED CLASS OR GROUP ACTION OR REPRESENTATIVE PROCEEDING AND CLIENT EXPRESSLY WAIVES ITS RIGHT TO BRING A CLASS OR GROUP ACTION SUIT. The arbitrator may not consolidate more than one person’s or entity’s claims and may not otherwise preside over any form of a representative or class proceeding.

E. Equitable Relief. Notwithstanding the foregoing, each Party shall be entitled to seek equitable relief to enforce its Intellectual Property Rights, and for Claims relating to indemnity, or confidentiality obligations, fraudulent or unauthorized use, theft, or piracy of service, or matters relating to injunctions or other equitable relief in any court of competent jurisdiction at any time.

15. MISCELLANEOUS

A. Force Majeure. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of a Party. Such acts or circumstances which would relieve a Party of performing under this Agreement are acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemics, pandemics, sabotage, denial of service attacks, or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 60 days and impacts a Party from performing hereunder, the impacted Party shall give notice in writing to the other Party to terminate this Agreement or reduce an impacted Service. Any such termination or reduction shall not relieve Client from paying all amounts due for the terminated or reduced Service up to the date of termination.

B. Insurance. Sourcepass and Client will each maintain during the Term, at its own expense, insurance coverage that is customary for comparably situated companies for the business being conducted and properties owned or leased by each Party and its Affiliates, with each insurance coverage to be adequate against all liabilities, claims and risks against which it is customary for comparably situated companies to insure. This insurance shall include, at a minimum, Commercial General Liability or Public Liability insurance, Workers’ Compensation and Unemployment Insurance coverages as required by any state and federal laws to which each Party is subject, Employer’s Liability Insurance, Professional Liability or Errors and Omissions insurance that covers the subject matter of this Agreement, Cyber Liability insurance (including, without limitation, coverage to address data loss, data security breaches, hacking and privacy law violations), and excess or umbrella liability in excess of the underlying coverage required above. All of the insurance policies described herein will not be canceled, materially reduced or renewal refused until at least thirty (30) calendar days written notice has been given to the other party. Each Party will furnish to the other Party certificates evidencing the foregoing insurance upon request.

C. Relationship of the Parties; Third Party Beneficiaries. The relationship between the Parties is that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, agency, joint venture, or employer-employee relationship for any purpose. Each Party shall, at all times during the term of this Agreement, perform the duties and responsibilities herein without any control by the other Party, and shall discharge their contractual obligations at their own risk subject to the terms of this Agreement. Neither Party is authorized to make any representations, contract, or contract commitment on behalf of the other Party. Except for Third-Party Services, for which the applicable Third-Party Service provider will be deemed a third-party beneficiary under this Agreement with respect to the licenses granted to Client, nothing in this Agreement shall confer upon any third parties any rights, benefits, or remedies.

D. Entire Agreement; Headings. This Agreement constitutes the entire agreement between Client and Sourcepass with respect to the Products and Services, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between the Parties with respect thereto. The section and paragraph headings in the Agreement are for convenience of reference only and shall not affect their interpretation. No oral or written information or advice given by Sourcepass or its employees and other representatives will create any obligations or warranty on behalf of Sourcepass unless otherwise agreed in a writing signed by an authorized Sourcepass representative. Any purchase orders, confirmations, payment documentation, or other terms provided by Client, even if signed by the Parties after the date hereof, shall have no force or effect. In the event that the Parties have executed versions of the Agreement drafted in more than one language, the English language version shall govern and prevail. Client represents that Sourcepass has made no commitments or promises orally or in writing with respect to delivery of any future features or functions. In relation to any future features or functions, all presentations, RFP responses, and/or product roadmap documents, information or discussions are informational only and are not the basis for, nor part of this Agreement or any Sales Order.

E. Modifications and Waivers. Except as expressly provided elsewhere in the Agreement, the Agreement may not be changed or modified, nor may any provisions hereof be waived, nor may any consent or confirmation be considered to have been given, except by an agreement in writing signed by the Party against whom enforcement of the change or modification is asserted, and any such modification, change, waiver, consent, or confirmation on Sourcepass’ behalf may only be given by an authorized signatory of Sourcepass. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any other rights hereunder.

F. Severability. If any provision of the Agreement, or any part thereof, is found to be unenforceable or invalid, that provision will be (to the minimum extent necessary) replaced by a valid and enforceable provision the effect of which comes as close as possible to the intended economic effect of the unenforceable or invalid provision, so that the Agreement will otherwise remain in full force and effect.

G. Assignment. This Agreement inures to and is binding upon the Parties’ successors and permitted assignees. Neither Party shall assign the Agreement without the other Party’s prior written consent, not to be unreasonably conditioned, withheld or delayed; provided that such assigning Party may, without consent, but with reasonable prior written notice, assign its rights and obligations hereunder to any parent, affiliate, or subsidiary of such assigning Party or pursuant to any merger, acquisition, reorganization, sale or transfer of all or substantially all its assets; provided, further, that with respect to an assignment by Client, (i) the successor shall not provide services that compete with Sourcepass; (ii) the successor must be at least as creditworthy as Client, as reasonably determined by Sourcepass; (iii) the successor shall agree in advance and in writing to assume and be bound by all provisions of the Agreement, and shall deliver to Sourcepass upon request fully-executed documents reasonably acceptable to Sourcepass establishing the terms of such an assignment; (iv) such assignment may not constitute or result in a violation of applicable trade control, export, or other law; and (v) Client shall remain liable for all of Client’s obligations that accrued prior to such assignment. Any assignment by a Party other than as permitted by this section shall be void and of no force or effect.

H. Trade Compliance. By using the Services, Client represents and warrants that (i) its use of the Services will not violate any embargoes, sanctions, trade restrictions, or similar restrictions issued by any applicable governmental entity; and (ii) Client, its Affiliates, and its Authorized Users have not been designated by any applicable government or any government agency as a prohibited or restricted party under any trade restrictions, export laws, or the like. Client shall not use the Sourcepass Website or Services for any purpose prohibited by applicable law, including the development, design, manufacture, or production of missiles, or nuclear, chemical or biological weapons. Client may not use, export, re-export, import, or transfer any technology or data related to the Services except as authorized by the Agreement and all applicable laws, rules, and regulations.

I. Government Terms. If Client is an agency, department or other entity of any government, then any use, modification, duplication, reproduction, release, performance, display, transfer, or disclosure of the Services and accompanying documentation shall be governed solely by this Agreement. Any other use shall be prohibited and no other rights are granted unless otherwise agreed by Sourcepass or as required by applicable law.

J. Authority and Execution. Each Party represents that (i) it has full authority to enter into and perform under this Agreement; (ii) the person accepting the Sales Order(s) and any other applicable documents on its behalf is properly authorized; and (iii) it has read the Agreement, understands it, and agrees to be bound by all of its terms, conditions, and provisions. This Agreement shall become effective upon execution of a Sales Order. Electronic signing of Sales Orders and any other applicable documents, and the incorporation by reference of this Agreement into all applicable documents shall be deemed valid, binding and enforceable by and against both Parties.

K. Basis of Bargain; Failure of Essential Purpose. Client acknowledges and agrees that Sourcepass has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement, and that they are an essential basis of the bargain between the parties and are material terms of this Agreement. The Parties agree that the limitations and exclusions of liability and warranty disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Client hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.

L. Export Compliance. The Products and Services and any derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on the United States’ government denied-party list. Additionally, the Client shall not permit its Authorized Users to access or use the Services while located in a United States embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any United States’ export law or regulation.

M. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (a) this Agreement; (b) the Sales Order; (c) the DPA and BAA (if applicable); and (d) Third-Party Terms (where relevant).

N. Choice of Language. Each Party hereby confirms its express wish that this Agreement and all related documents be prepared in the English language only.

O. Survival. The terms and conditions of this Agreement will survive the expiration or other termination of this Agreement to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate.

P. Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months thereafter, if Client, either on its own account or for any other person, firm, partnership, corporation, or other entity, directly or indirectly recruits, hires or employs any Sourcepass employee(s), which shall include all employees of Sourcepass at any time during the term of this Agreement, and without the prior written consent of Sourcepass, then, in such case, Client shall pay Sourcepass, within fifteen (15) days of such recruitment, hiring or employment, as a placement fee, and amount equal to the total scheduled annual compensation by Sourcepass to such employee for the forthcoming twelve (12) months as compensation to Sourcepass for the internal an external investment in recruitment, training and certifications (if any) (“Placement Fee”).

SCHEDULE 1

Definitions
“Account” means the numbered account established with Sourcepass and associated with Client and the Services provided to Client under this Agreement and the applicable Sales Order(s).

“Affiliate” means any entity that 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 or control of more than 50% of the voting interests of the subject entity.

“Agreement” means a Sales Order, this Agreement, and all applicable documents incorporated by reference and/or mutually agreed by the Parties, which shall collectively form a legally binding agreement.

“AUP” means the Acceptable Use Policy.

“Authorized User” means the authorized individual executing a Sales Order on behalf of Client, and to whom Sourcepass has supplied a user identification and password. Authorized Users may include, for example, employees, consultants, contractors and agents of Clients and its Affiliates, and third parties with which Client authorizes to access Client’s Account and use the Services.

“Change Order” means any mutually agreed change to Professional Services affected by a form, signed by the Client and Sourcepass, detailing the relevant change(s) and additional Charges, if any.

“Charges” or “Fees” means the charges and fees payable under the applicable Sales Order and this Agreement.

“Client” means the Client identified in the Sales Order.

“Client Data” means all data, information or material submitted by the Client or the persons to whom the Client Data relates, or Authorized Users to the Services, in connection with Client’s use of the Services.

“Client Equipment” means any equipment, software, software data storage, systems, cabling or facilities owned by the Client and used directly or indirectly with the Services. Client Equipment may include Managed Services and/or a Third-Party Service.

“Client Location” means the physical location(s) where the Services are provided.

“Effective Date” means the date of execution of the applicable Sales Order.

“Initial Term” means the initial term of the Services as stated on a Sales Order.

“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

“Invoicing Frequency” means the intervals at which Sourcepass will deliver its invoices for Charges as detailed on the Sales Order.

“Payment Terms” means the period of time Client is required to remit payment for an invoice in full, without deduction or set-off (except for amounts disputed in good faith), as stated in the Sales Order.

“Product” means software, equipment and other goods which are sold to Client and which all applicable ownership rights in such items transfers to Client upon full and complete payment of the item(s).

“Professional Services” means the set-up, implementation, configuration and other professional services identified in a Sales Order (and more fully described in an applicable SOW) that are to be provided by Sourcepass in connection with the Services.

“Professional Service Fees” means the fees for the Professional Services as set out in the Sales Order.

“Renewal Term” means the period immediately following expiration of the Initial Term which is the same duration as the Initial Term except as otherwise set forth in the Sales Order or amendment.

“Sales Order” means the Sourcepass ordering document, electronic or paper format, (together with any schedules), executed by Client and Sourcepass detailing the specific Products and Services purchased by the Client. By entering into a Sales Order Client agrees to be bound by the terms of this Agreement.

“Service Term” or “Term” means the term of any Services that are provided on a recurring basis, and shall include the Initial Term together with any Renewal Term. The Service Term shall be as specified in the applicable Sales Order.

“Services” means all software and services provided under this Agreement (including Third-Party Services (defined below) and Services provided on an ongoing recurring basis – “Managed Services”) that are ordered by Client and which are provided by Sourcepass as detailed on the Sales Order. Services also includes equipment rented, managed or otherwise used by Client in connection with the Services that is not Client Equipment – “Sourcepass Equipment”. Sourcepass Equipment may include Managed Services and/or Third-Party Services.

“Shipping and Handling” means any fees and costs payable by Client to Sourcepass in connection with packaging, shipping, or processing equipment.

“Software” means proprietary software (including documentation relating to such software) owned or licensed by Sourcepass, or which Sourcepass has a right to sublicense under this Agreement, which software is either provided to Client under this Agreement or is used by Client in connection with the Services.

“Statement of Work” or “SOW” means the document or content which describes the Professional Services to be provided.

“Taxes and Fees” means those country, province, federal, state, or local taxes, including without limitation, use, sales, value-added, privilege, or other taxes, levies, imports, duties, fees, surcharges, governmental assessments, and withholdings assessed against Client or the Products and Services, equipment purchases and Professional Services. Taxes and Fees do not include Sourcepass fees and surcharges that may be imposed on specific Products and Services, and which are described in the applicable Sales Order and/or Invoice.

“Term Start Date” means the commencement date for the Managed Services which shall be the first day of the month the Managed Services are activated/made available at the last Client Location, unless stated otherwise on the Sales Order.

“Third-Party” is any provider of services or products under this Agreement other than Sourcepass, including providers of Products and Services to Client through Sourcepass.

“Third-Party Services” are any services provided by a Third-Party.

“Third-Party Products” are any products, software and equipment provided by a Third-Party.

“Sourcepass” means the Sourcepass business entity identified on the Sales Order.

“Sourcepass Content” means all content made available by Sourcepass through the Sourcepass Website or the Services.

“Sourcepass Equipment” means all equipment that is used, leased or otherwise provided by Sourcepass to Client for use in connection with the Services, including hardware/equipment. Sourcepass Equipment does not include Client Equipment or Third-Party Equipment. Sourcepass Equipment may include Managed Services and/or a Third-Party Service as a bundled Service.

“Sourcepass Website” means the website set forth at www.sourcepass.com and/or other localized Sourcepass website as may be available or applicable in certain countries, through which Sourcepass’ products and services are described, as well as the online administrative portal through which Client manages the Account and/or can make additional purchases for the Account.