Legal Information and Policies → Terms and Conditions

THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF DOCUPACE TECHNOLOGIES, LLC (“DOCUPACE OR SUPPLIER”), PRODUCTS AND SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, OR BY (2) EXECUTING THE SCHEDULE THAT INCORPORATES THESE TERMS AND CONDITIONS (THE “SCHEDULE”), CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THE SCHEDULE AND THE TERMS AND CONDITIONS IN THIS MASTER SERVICES AGREEMENT. IF THE INDIVIDUAL IS PLACING SUCH AN ORDER ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE SCHEDULE AND TO THESE TERMS AND CONDITIONS AND, IN WHICH CASE, THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. TO PLACE ORDERS SUBJECT TO THESE TERMS AND CONDITIONS, THE SEVEN EXHIBITS (AS DEFINED BELOW) THAT ARE ATTACHED TO THESE TERMS AND CONDITIONS MUST BE INCORPORATED INTO THIS MASTER SERVICES AGREEMENT.

Customer may not access our products or services if Customer is a direct competitor, except with our prior written consent. In addition, Customer may not access our products or services to monitor their availability, performance, or functionality, or for any other benchmarking or competitive purposes.

The provisions of this Agreement are as follows:

1. Definitions

“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 this Master Services Agreement or the “MSA”.

“Authorized User”, unless otherwise stated in a Schedule, means a specified (named) employee of Customer, or of a person to whom Customer has outsourced services, each of whom is able to access the Services described in the Schedule.

“Change Request” means any request for work outside the scope of the Statement of Work.

“Client Software” shall mean the Web browser plug-in or similar software program that allows an end user’s computers or other electronic devices to access or use the functionality provided by the Server Software.

“Customer Content” means information obtained by Docupace from publicly available sources or its third-party content providers and made available to Customer through the Services, or pursuant to a Schedule, as more fully described in the Documentation.

“Customer Data” means the data submitted by Users, or otherwise on your behalf, into the Services.

“Developed Materials” shall mean any materials that are created or developed by Supplier pursuant to this Agreement at Customer’s request.

“Documentation” shall mean any user guide, manuals, or other instructional materials related to the Software.

“Schedule” means the online or paper ordering document or other document between Customer and Docupace specifying the relevant Docupace Services ordered and purchased by Customer.

“Professional Services” means any Docupace Services provided that are set forth in a Schedule or Statement of Work.

“Server Software” shall mean the software that provides services or functionality on a computer acting as a server.

“Statement of Work” or “SOW” means a separate document or Estimate/Schedule between Docupace and Customer that details the Professional Services to be delivered by Docupace.

“Software” shall mean the Server Software and Client Software collectively.

“Supplier Personnel” shall mean the employees, agents, representatives, independent contractors, and/or subcontractors of Supplier.

“Third-Party Service” means any product (e.g., software, cloud services, or forms), tool (e.g., integration or development tools), or service (e.g., implementation, configuration, or development) provide by a party other than Docupace (a “Third-Party Provider”).

“Updates” shall mean all updates, modifications, and new releases of the Services that Supplier makes generally available to its customers at no additional cost.

“We”, “Us” or “Our” means Docupace Technologies, LLC.

“You” or “Your” means the person accepting this Agreement, provided that if such acceptance is on behalf of a company or other legal entity then: (i) the signatory represents that he/she has the authority to bind such entity to the terms of this Agreement; (ii) “you” and “your” refers to such entity; and (iii) you may be referred to as “Company” in pricing Schedules or other documents.

2. Services

2.1. Subject to the terms and conditions of this Agreement, Docupace shall (1) host the Server Software on Docupace application server(s) for Customer’s secure access and use over the Internet, (2) provide Client Software if required to access the Server Software, (3) provide the Documentation and (4) provide hosting, support, maintenance, infrastructure, and other related services, all as further described in this Agreement and on the applicable Statement of Work (collectively, the “Services”). Customer and Docupace may enter into one or more Statements of Work which shall be consecutively numbered and make specific reference to being governed by the terms and conditions of this Agreement. Docupace hereby grants to Customer a non-exclusive, worldwide license, during the Term (as defined below) to access and use, and permit the users described on an applicable Statement of Work (the “Authorized Users”) to access and use, the Services, including the Server Software’s functionality, the Client Software, and the Documentation, for Customer’s business purposes and for the benefit of Customer’s customers.

2.2. Customer shall be responsible for the confidentiality of and shall not disclose its username(s) and password(s) to any person not permitted access to the Services in accordance with the Agreement. Customer shall notify Docupace at support@docupace.com upon an unauthorized disclosure of its username(s) and password(s) and Supplier shall immediately cancel such username(s) and/or password(s) which have been subject to unauthorized disclosure.

2.3. Restrictions. Customer shall not (and shall not permit others to) do the following with respect to the Services: (i) use the Services with external programs in a manner that intentionally circumvents contractual usage restrictions; (ii) license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any of it available for access by third parties except as otherwise expressly provided by written authorization; (iii) access it for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Services; (iv) disassemble, reverse engineer or decompile it; (v) copy, create derivative works based on or otherwise modify it except as permitted in this Agreement; (vi) remove or modify a copyright or other proprietary rights notice in it; (vii) use it to reproduce, distribute, display, transmit or use material protected by copyright or other intellectual property right (including the rights of publicity or privacy) without first obtaining the permission of the owner; (viii) use it to create, use, send, store or run viruses or other harmful computer code, files, scripts, agents or other programs or otherwise engage in a malicious act or disrupt its security, integrity or operation; or (ix) access or disable any Docupace Services or third party data, software or network. Before Customer exercises any of the foregoing actions that Customer believes it is entitled to, Customer shall provide Docupace with thirty (30) days prior written notice to Docupace Legal Department (or, if applicable law or the relevant court order does not allow for such notice, then the maximum amount of notice allowable), and provide reasonably requested information to allow Docupace to assess Customer’s claim and, at Docupace’ sole discretion, provide alternatives that reduce adverse impacts on Docupace’ intellectual property and other rights.

2.4. Docupace Conduct. Docupace shall (and shall ensure that its employees and contractors): (a) provide the Services to Customer in accordance with the Statement of Work and with reasonable skill and care and in accordance with generally recognized commercial practices and standards; (b) as required in the Statement of Work report to the Customer regarding the progress and performance of the Services; and (c) not (unless specifically authorized to do so by the Customer in writing): (i) have any authority to incur any expenditure in the name of or for the account of the Customer; or (ii) hold itself out as having authority to bind the Customer.

2.5. Protection of Customer Data. Docupace will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Authorized Users). Customer acknowledges Docupace’s Privacy Policy, and Customer recognizes and agrees that nothing herein restricts Docupace’s right to alter such privacy policy, in its sole discretion. Docupace will establish and maintain and comply with safeguards against the destruction, loss, or alteration of the Customer Data in the possession of Docupace.

2.6. Third-Party Software. Docupace may resell and facilitate the installation, access, and use of third-party software (“Third-Party Software”). The Customer acknowledges and agrees that Docupace’s use of Third-Party Software is subject to and governed by the applicable Third-Party Software license(s) and is not subject to the terms and conditions of this MSA.  By using the Third-Party Software, the Customer agrees to, accepts, and shall comply with such Third-Party Software licenses.  The Customer’s breach of any Third-Party Software license shall be a breach of this Agreement. Nothing herein limits Docupace or the Customer’s rights under, or grants Docupace or the Customer rights that supersede, the terms and conditions of any applicable license for the Third-Party Software. For further information, please review: http://www.docusign.com/company/terms-and-conditions/reseller, and Terms and Conditions (walkme.com).

2.7. Data Sharing. If Customer obtains a Third-Party Service that requires access or transfer of Customer Data, Customer acknowledges that any such access or transfer is between you and the Third-Party Provider pursuant to the Third-Party Provider’s own privacy notices and policies and that Docupace is authorized to provide the Customer Data as requested by the Third-Party Service. Docupace will not be responsible for any modification, loss, damage, or deletion of Customer Data by any Third-Party Service obtained by Customer.

3. Term and Termination

3.1. Term of Agreement. This Agreement commences on the date Customer first accepts this Agreement and continues until the 30th day after all terms (“Initial” and “Renewal”) hereunder have expired or have been terminated.

3.2. Term of Services. The term of the Services shall be as specified in the applicable Schedule. Except as otherwise specified below or in a Schedule, Schedules and all Renewals thereunder will automatically renew for additional periods of one year, on the same terms and without entry into a new Schedule, unless either party gives the other notice of non-renewal at least 90 days before the end of the relevant term. The pricing during any automatic renewal term shall be outlined in the initial Schedule during the prior term unless Docupace has given Customer written notice of a pricing change at least 90 days before the end of that prior term, in which case the pricing change will be effective upon renewal and thereafter.

3.3. Either Party may terminate this Agreement (including any and all Statements of Work hereunder) if the other party (a) materially breaches this Agreement and fails to cure the breach within 90 days after written notice by the non-breaching party detailing the breach, or (b) immediately in the event a party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within 60 days. Termination of this Agreement will result in termination of all Schedules.

3.4. Effect of Termination. Upon termination of this Agreement, (1) the Customer will pay Supplier for all Services completed and Developed Materials accepted in accordance with this Agreement and related Statements of Work prior to the effective date of termination and for any post-termination Services provided in accordance with the mutually agreed upon Transition Plan, and (2) Supplier will deliver to Customer all work in process, Customer Content and Confidential Information. Confidential Information shall be considered a defined term throughout its use in the Agreement.

3.5. Pursuant to SEC Rule 17a-3 and SEC Rule 17a-4, and as noted in Schedule, upon termination of this Agreement for any reason, Supplier shall deliver the Customer-owned records to the Customer in a format and manner consistent with these rules. Further, for records currently under retention, Docupace continues to maintain those records in WORM storage consistent with SEC rules governing such retention. Customer acknowledges upon execution of this agreement that Docupace cannot alter a retention date or destroy any record or document under retention until that retention period has expired.

3.6. Customer acknowledges that Supplier is obligated to retain such records in compliance with § 240.17a-4. Pursuant to (g) If a person who has been subject to § 240.17a-3 ceases to transact a business in securities directly with others than members of a national securities exchange, or ceases to transact a business in securities through the medium of a member of a national securities exchange, or ceases to be registered pursuant to section 15 of the Securities Exchange Act of 1934 as amended ( 48 Stat. 895, 49 Stat. 1377; 15 U.S.C. 78o), such person shall, for the remainder of the periods of time specified in this section, continue to preserve the records which he theretofore preserved pursuant to this section.

3.7. Surviving Provisions. The sections titled “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Docupace retains possession of Customer Data.

4. Payment of Fees and Expenses

Payment of Fees and Expenses. The Customer will pay Supplier the fees for Services as described in the Schedule or Statement of Work. Unless otherwise specified in a Statement of Work or approved in writing in advance by the Customer, (1) actual fees will not exceed the amount specified in the Schedule or Statement of Work; and (2) Supplier is responsible for the payment of all of its expenses related to the Services (for example, but not limited to, computer, telephone, photocopying, postage, courier charges), and will not be reimbursed for such expenses by the Customer, except that the Customer will reimburse Supplier for Supplier’s pre-approved travel expenses. Supplier shall provide Customer with copies of receipts or other documentation evidencing expenses incurred. Expenses will be reimbursed in accordance with Customer’s policy pursuant to which it reimburses its own employees for similarly incurred expenses.

4.1. Docupace will submit invoices for fees and expenses to the Customer on a regular basis and will provide appropriate supporting documentation reasonably requested by the Customer. Invoices will be delivered electronically to the billing email address specified in the applicable Schedule. Customer will immediately provide Docupace with electronic notice of any change in Customer’s contact or billing information. All payments will be due net thirty (30) days.

4.2. In the event Customer elects to remit amounts due under any invoice via credit card or ACH/direct withdrawal, all amounts due under each invoice will be charged to either Customer’s credit card or bank account, as applicable, at the beginning of each billing period.

4.3. If any invoiced amount is not received by Docupace by the due date, then without limiting Suppliers’’ rights or remedies, those charges, without the need for notice of default, may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower and/or (b) Docupace may condition future renewals, Change Request and Schedules on payment terms shorter than those specified in the “Payment of Fees and Expenses” section above.

5. Taxes

Taxes. Customer is responsible to pay for all sales, use, excise, and similar taxes, if any, invoiced under this Agreement. The Customer shall not be responsible for paying any other taxes or fees of Docupace, including Docupace licensing or business fees or assessments that are not specified as a sale or use tax, and taxes or fees based upon Docupace net income or gross receipts. Once the Customer has paid such tax to Docupace, the Customer shall have no other responsibility with respect to such sales and use taxes and Docupace shall be responsible for promptly paying such tax to the appropriate taxing authority. If it is later determined that such tax, or any portion thereof, was not due, Docupace will promptly refund the amount thereof to the Customer, provided Docupace has recovered such amount from such taxing authority. Docupace shall, on every taxable event, make all reasonable efforts to limit any and all tax consequences to the Customer. Docupace is solely responsible for paying any and all taxes (including social security, employment, and income) required by any federal, state, or local law or regulation pertaining to Docupace Personnel relating to this Agreement.

6. Proprietary Rights and Licenses

Proprietary Rights and Licenses. Customer acknowledges that Suppliers’ service model is to provide Services with respect to and to develop customizations and improvements for certain software applications and that Docupace must retain ownership of and control over such customizations and improvements. Accordingly, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights“) in and to all documents, work product, including source code, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Supplier in the course of performing the Services, including any items identified as such in the SOW (collectively, the “Deliverables“), except for any Confidential Information of Customer, shall be exclusively owned by Supplier. To the extent, Customer acquires any rights in such Deliverables, by operation of law or otherwise, Customer hereby assigns all rights, title, and interests in such Deliverables to Supplier, without the need of additional consideration. Supplier hereby grants to Customer a worldwide, perpetual, irrevocable, non-exclusive, transferable, fully paid-up license, with the right to grant sublicenses, to use, execute, reproduce, display, perform, modify, enhance, distribute, and create derivative works of all Deliverables provided by Supplier to Customer hereunder for Customer’s own internal commercial use and provided that such Deliverables are not separately commercially exploited for the benefit of any third party. Notwithstanding the foregoing, Supplier may independently create derivative works of the Deliverables without reference to any Customer’s derivative works and Supplier shall own all Intellectual Property Rights in and to the derivative works created by Supplier.

6.1. Supplier warrants that: (1) it has full legal rights to grant the licenses and rights granted in this Agreement; and (2) the Services, Software and Developed Materials and Customer’s use thereof as contemplated hereunder do not infringe upon any patent, copyright, trade secret, or other proprietary or intellectual property right of any third party. Supplier also warrants that as of the Effective Date, Supplier is not subject to any litigation regarding the Services and Software.

6.2. Customer warrants that: (1) it has full legal rights to grant the licenses and rights granted in this Agreement; and (2) the Customer Content and Supplier’s use thereof as contemplated hereunder do not infringe upon any patent, copyright, trade secret, or other proprietary or intellectual property right of any third party. Customer also warrants that as of the date of this Agreement, Customer is not subject to any litigation regarding the Customer Content.

6.3. Subject to the limited rights expressly granted hereunder, Supplier, its Affiliates and its licensors reserve all of their rights, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. Customer has the right to access and use applicable Customer Content subject to the terms of applicable Schedules, this Agreement, and the Documentation.

7. Confidentiality

7.1. Definition of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Schedule to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Supplier may disclose the terms of this Agreement and any applicable Schedule to a subcontractor or Non-Supplier Application Provider to the extent necessary to perform Supplier’ obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

7.2. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Schedule to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Docupace may disclose the terms of this Agreement and any applicable Schedule to a subcontractor or Non-Docupace Application Provider to the extent necessary to perform Docupace’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

7.3. Permitted Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

8. Indemnification

8.1. Indemnification by Docupace. Docupace will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that the use of Services in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees, and costs finally awarded against Customer as a result of, or for amounts paid by Customer in settlement of, a Claim Against Customer, provided Customer (a) promptly give Docupace written notice of the Claim Against Customer, (b) give Docupace sole control of the defense and settlement of the Claim Against Customer (except that Docupace may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) give Docupace all reasonable assistance, at Docupace’ expense. If Docupace receives information about an infringement or misappropriation claim related to the Services, Docupace may at our discretion and at no cost to Customer (i) modify the Services so that they no longer infringe or misappropriate, without breaching our warranties outlined in this Agreement.

8.2. Indemnification by Customer. Customer will defend Docupace against any claim, demand, suit or proceeding made or brought against Docupace by a third party alleging that the Customer Data, or use of any of the Services in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Docupace”), and will indemnify Docupace from any damages, attorney fees, and costs finally awarded against Docupace as a result of, or for any amounts paid by Docupace in settlement of, a Claim Against Docupace; provided Docupace (a) promptly gives Customer written notice of the Claim Against Docupace, (b) gives Customer sole control of the defense and settlement of the Claim Against Docupace (except that Customer may not settle any Claim Against Docupace unless it unconditionally releases Docupace of all liability), and (c) gives Customer all reasonable assistance, at Customers’ expense. The above defense and indemnification obligations do not apply if (1) the allegation does not specifically state that Customers’ Data or Customers’ use of the Services in breach of this Agreement is the basis of the Claim Against Docupace, or (2) a Claim Against Docupace arises from the use or combination of Customers’ Data with software, hardware, data, or processes not provided by Customer if Customers’ Data or use thereof would not infringe without such combination.

8.3. Indemnification Procedure. Customer will defend Docupace against any claim, demand, suit or proceeding made or brought against Docupace by a third party alleging that the Customer Data, or use of any of the Services in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Docupace”), and will indemnify Docupace from any damages, attorney fees, and costs finally awarded against Docupace as a result of, or for any amounts paid by Docupace in settlement of, a Claim Against Docupace; provided Docupace (a) promptly gives Customer written notice of the Claim Against Docupace, (b) gives Customer sole control of the defense and settlement of the Claim Against Docupace (except that Customer may not settle any Claim Against Docupace unless it unconditionally releases Docupace of all liability), and (c) gives Customer all reasonable assistance, at Customers’ expense. The above defense and indemnification obligations do not apply if (1) the allegation does not specifically state that Customers’ Data or Customers’ use of the Services in breach of this Agreement is the basis of the Claim Against Docupace, or (2) a Claim Against Docupace arises from the use or combination of Customers’ Data with software, hardware, data, or processes not provided by Customer if Customers’ Data or use thereof would not infringe without such combination.

8.4. Exclusive Remedy. The indemnification obligations set forth above represent the sole and exclusive liability of the indemnifying party and the exclusive remedy of the indemnified party for any type of third-party claim described in this section.

9. Representations

Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

9.1. Docupace Warranties. Docupace warrants that during the Term of this Agreement (a) this Agreement, the Schedules and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Customer Data, (b) Docupace will not materially decrease the overall security of the Services, and (c) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” section below.

9.2. Except as expressly provided herein, neither party nor, its Affiliates, or its licensors make any warranty of any kind, whether express, implied, statutory, or otherwise, and each party and its Affiliates, its licensors specifically disclaim all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law. Docupace does not guarantee that Services will be error-free, will meet Customer requirements, or will address all laws, rules, or standards applicable to Customers’ accounting, finance, or human resources.

10. Limitation of Liability

10.1. Except for indemnification obligations under Section 8, the Parties agree that, to the maximum extent permitted by applicable law, neither party’s liability with respect to any single incident arising out of or related to this Agreement will exceed the amount paid by Customer and/or due from Customer hereunder in the 12 months preceding the incident, provided that in no event will either party’s aggregate liability arising out of or related to this Agreement exceed the total amount paid by Customer hereunder. The above limitations will apply whether an action is in contract or tort and regardless of the theory of liability.

10.2. Exclusions. In no event will either party have any liability to the other party for any lost profits, revenues, goodwill or indirect, special, incidental, consequential, cover, business interruption or punitive damages, and in no event will either party’s licensor have any liability under this Agreement for any damages, however caused, whether an action is in contract or tort and regardless of the theory of liability, even if a party has been advised of the possibility of such damages or if a party’s remedy otherwise fails of its essential purpose. The foregoing disclaimer will not apply to the extent prohibited by law.

10.3. Limitation of Restrictions. The above limitations will not limit Customers’ payment obligations under Section 4 (Payment, Fees, and Expenses) above. In addition, if Customer is domiciled in the European Union, then nothing in this Section 10 (Limitation of Liability) shall exclude or limit the liability of either party for death or personal injury caused by that party’s negligence or for fraud or fraudulent misrepresentation or for any other liability to the extent that the same may not be excluded or limited as a matter of applicable law.

11. General Provisions

11.1. Export Restriction and Compliance with Laws. Customer acknowledges that the Services, Content, other Docupace technology, and derivatives thereof may be subject to U.S., foreign, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but not limited to, the U.S. Export Administration Regulations (“EAR”) and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”). Customer also specifically agrees not to, directly or indirectly, allow access to or use of the Services in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for prohibited end-uses under U.S. law without authorization from the U.S. government. Both parties also agree to comply with all other laws, rules, and regulations applicable to that party under this agreement.

11.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

11.3. Equal Opportunity Employer. Supplier affirms that it provides equal employment opportunities for all individuals without regard to race, color, religion, national origin, sex, age, disability, sexual preference, or other characteristics protected by law.  Supplier will not recruit, hire, train, assign, compensate, discipline, promote, transfer, or discharge any individuals who may be assigned to provide Services in violation of this equal employment opportunity policy. The equal employment opportunity and affirmative action requirements set forth in 41 C.F.R. Part 60-1.4(a) (women and minorities), 41 C.F.R. Part 60-250.5(a) (covered veterans) and 41 C.F.R Part 60-741.5(a) (individuals with disabilities) are hereby incorporated by reference into this Agreement. The affirmative action program (AAP) requirements set forth in these regulations apply to Supplier through this Agreement only if: (1) Supplier employs 50 or more employees, and this Agreement is for the provision of goods and services values at $50,000; and such goods or services are necessary to the Customer’s performance (or the Customer’s Affiliates) of any one or more of its government contracts.

11.4. Violent Crime Control Act. According to the Violent Crime Control Act, the Customer is prohibited from having any individual who has been convicted of a felony involving dishonesty or a breach of trust (a “Felony”) performs the Services.  In order to assist the Customer in complying with this statutory requirement, Supplier will not assign any person to provide Services to the Customer if they have a Felony, and Supplier will have the ongoing duty to inform Customer immediately upon learning that one of Supplier’s employees or subcontractors has been convicted of a Felony.  Should Supplier learn after assigning an individual to provide Services that the individual has been convicted of a Felony, Supplier will promptly advise Customer and shall immediately remove the individual from performing the Services.

11.5. Updates. From time to time, Supplier may amend these terms. Supplier will notify the Customer of any material changes by promptly sending an email or posting a notice in the Services. By continuing to access or use the Services after such notice, Customer indicates that Customer agrees to be bound by the modified terms. Notwithstanding the foregoing, if the changes have a material adverse impact on and are not acceptable to the Customer, then the Customer must notify Supplier within 30 days after receiving notice of the change. If we cannot accommodate your objection, then the prior terms shall remain in force until the expiration of Customers’ then-current term of Customers’ Schedule or SOW. Any renewed terms of the Services will be governed by our then-current terms and conditions.

11.6. Internet Delays the services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Supplier is not responsible for any delays, delivery failures, or other damages resulting from such problems.

11.7. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Supplier and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Schedules) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Schedule, (2) this Agreement (including any annexes or exhibits hereto); and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

11.8. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

11.9. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

11.10. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

11.11. Service Analyses. Supplier may (i) compile statistical and other information related to the performance, operation, and use of Supplier Services, and (ii) use data from Supplier Services environment in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). Supplier may make Service Analyses publicly available; however, Service Analyses will not incorporate Customer Content in a form that could serve to identify Customer or any individual, and Service Analyses do not constitute Personal Data. Supplier retains all intellectual property rights in Service Analyses. If any rights in or to any Service Analyses vests the Customer, the Customer hereby unconditionally and irrevocably assigns to Supplier all worldwide intellectual property and proprietary rights to such Service Analyses, and if such assignment cannot (as a matter of law) be made, Customer hereby licenses all such Service Analyses to Supplier to use, incorporate, and distribute in any manner Supplier sees fit on a worldwide, perpetual, irrevocable, transferable, royalty-free and fully-paid basis.

11.12. 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.

11.13. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Schedules), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

11.14. Non-Solicitation. Customer and Supplier agrees that, during the term of this Agreement, and for a period of twelve (12) consecutive months after termination of such Agreement, Customer or Supplier will not knowingly (i) directly induce or attempt to induce or otherwise counsel, advise, solicit or encourage any employee to leave the employ of either Party or accept employment with Customer or Supplier or any other person or entity, (ii) directly induce or attempt to induce or otherwise counsel, advise, solicit or encourage any person who at the time of such inducement, counseling, advice, solicitation or encouragement had left the employ of either Party within the previous six (6) months to accept employment with any person or entity besides Customer or Supplier or (iii) solicit, interfere with, or endeavor to cause any customer, client, or business partner of either Party to cease or reduce its relationship with Supplier or induce or attempt to induce any such customer, client, or business partner to breach any agreement that such customer, client, or business partner may have with either Party.

11.15. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (excluding Customer’s failure to pay amounts owed when due), when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including without limitation: strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), trespassing, sabotage, theft or other criminal acts, failure of energy sources or transport network, acts of God, export bans, sanctions and other government actions, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, explosions, collapse of building structures, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions (each a “Force Majeure Event”). The party suffering a Force Majeure Event shall use reasonable efforts to mitigate against the effects of such Force Majeure Event.

11.16. THE PARTIES AGREE THAT THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT OR ANY VERSION THEREOF ADOPTED BY ANY STATE IN ANY FORM (“UCITA”) SHALL NOT APPLY TO THIS AGREEMENT.  TO THE EXTENT THAT UCITA IS APPLICABLE, THE PARTIES AGREE TO OPT-OUT OF THE APPLICABILITY OF UCITA PURSUANT TO THE OPT-OUT PROVISION(S) CONTAINED THEREIN.

11.17. Dispute Resolution. All disputes between the Parties arising out of this Agreement will first be subject to the cure period set forth in this Agreement. Each of Customer and Supplier acknowledges that the provision of the Services is critical to the business and operations of Customer. Accordingly, in the event of any dispute between Customer and Supplier, including a dispute pursuant to which Customer in good faith and reasonably believes it is entitled to withhold payment, Supplier shall continue to provide the Services, and Customer shall continue to pay to Supplier undisputed amounts.  Supplier waives any right to exercise self-help remedies or to otherwise terminate access to or use of the Services based on any claim for fees due under the Agreement.  Supplier will not interfere with Customer’s quiet enjoyment of the Services, and it will not seek to cancel or otherwise limit or terminate Customer’s right to use the Services or its access to the Software, except under authority of a court order from a court of competent jurisdiction ruling that absent the requested termination of licenses, Supplier would be irreparably harmed.  Supplier may seek an injunction to cause Customer to cease and desist from any infringement or misappropriation of Supplier’s intellectual property or from any act of unfair competition in connection with that intellectual property, except to the extent that the claim is based on nonpayment of fees for the Services and Customer may seek an injunction to prohibit Supplier from disclosing or continuing to disclose Customer Confidential Information in violation of this Agreement.

11.18. Notices, Governing Law, and Venue. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of California, excluding its principles of conflicts of law. The Parties further agree that service of any process, summons, notice or document by U.S. registered mail, return receipt requested to the address set forth in the Schedule shall be effective service of process for any action, suit or proceeding brought against a Party in any such court.

Exhibit A

Product Description Deliverables

(See Schedule)

Exhibit B

Form of

CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT
Standard

1. THIS CONFIDENTIALITY AND NON-DISCLOSURE AGREEMENT (“the Agreement”) is entered into on the date of the last signature set forth on the Schedule executed by and for which this Exhibit B is hereby incorporated by reference (“Effective Date”) Customer and Supplier. The parties agree as follows:
2. In connection with the consideration of the engagement of the Supplier pursuant to the Schedule between Customer and the Supplier entered into on the date of the last signature, Customer or its Representatives (as such term is defined herein) furnished or will furnish to the Supplier or its Representatives Confidential Information (as such term is defined herein) related to the business and operations of Customer. As used herein, the term “Representatives” shall mean, as to either party, such party’s directors, officers, employees, agents, consultants, advisors, or other representatives including legal counsel, accountants, and financial advisors.
3. The Supplier acknowledges the confidential and proprietary nature of the Confidential Information, agrees to hold and keep the same as provided in this Agreement, and otherwise agrees to each and every restriction and obligation in this Agreement.
4. As used in this Agreement, the term “Confidential Information” means and includes any and all:
   1. 1. trade secrets concerning the business and affairs of Customer, product specifications, data, know-how, formulae, compositions, processes, designs, sketches, photographs, graphs, drawings, samples, inventions and ideas, past, current, and planned research and development, current and planned manufacturing or distribution methods and processes, customer lists, current and anticipated customer requirements, price lists, market studies, business plans, computer software and programs (including object code and source code), computer software and database technologies, systems, structures and architectures (and related processes, formulae, composition, improvements, devices, know-how, inventions, discoveries, concepts, ideas, designs, methods, and information), and any other information, however documented, that is a trade secret within the meaning of California law;
   2. 2. nonpublic personal information concerning Customer’s customers, which information shall include, without limitation, nonpublic personal financial information and nonpublic health information concerning such Customer customers which is further defined as “non-public personal information” in Title V of the Graham Leach-Bliley Act of 1999 and its implementing regulations, as the same may be amended from time to time, or as “personal information” in California Civil Code Section 1798.80; and
   3. 3. information concerning the business and affairs of Customer (which includes historical financial statements, financial projections, and budgets, historical and projected sales, capital spending budgets and plans, the names and backgrounds of key personnel, personnel training techniques, and materials), however documented, that has been or may hereafter be provided or shown to the Supplier by Customer or its Representatives or is otherwise obtained from review of Customer documents or property or discussions with Customer or its Representatives by the Supplier or the Supplier’s Representatives (including current or prospective financing sources) irrespective of the form of the communication, and also includes all notes, analyses, compilations, studies, summaries, and other material prepared by the Supplier or the Supplier’s Representatives containing or based, in whole or in part, on any information included in the foregoing.
5. 5. Any trade secrets of Customer will also be entitled to all of the protections and benefits under California law and any other applicable law. If any information that Customer deems to be a trade secret is found by a court of competent jurisdiction not to be a trade secret for purposes of this Agreement, then such information will be considered Confidential Information for purposes of this Agreement. In the case of trade secrets, the Supplier hereby waives any requirement that Customer submits proof of the economic value of any trade secret or posts a bond or other security.
6. 6. The Confidential Information is being furnished without liability on the part of Customer or any of its Representatives. This Agreement creates no obligation on the part of Customer to furnish any information to the Supplier. However, the actual dissemination of Confidential Information pursuant to the terms of this Agreement shall serve as consideration for the covenants made hereunder.
7. The Supplier agrees on its own behalf, and agrees to cause its Representatives:
   1. to maintain the confidentiality of the Confidential Information;
   2. 2. not to use or allow the use of any portion of such Confidential Information for any purpose other than performing the services contemplated hereby or in any way detrimental to Customer (it being understood and acknowledged that any use other than performing the services contemplated hereby will be deemed detrimental to Customer;
   3. 3. not to disclose or allow disclosure to others of any portion of the Confidential Information provided to it, except to those of its Representatives who need to know such Confidential Information for the purpose of performing the services contemplated hereby and who are made aware of, and who agree to be bound by, the terms of this Agreement (collectively, the “Permitted Representatives”) and then only for the purpose described in clause (2) above;
   4. 4. not to disclose or allow disclosure to persons other than the Permitted Representatives that Confidential Information has been made available to it or that it has inspected any portion of such Confidential Information (the term “person” to be broadly interpreted to include, without limitation, any individual, corporation, estate, group, LLC, partnership, trust or other entity);
   5. 5. not to make or allow to be made copies of or otherwise reproduce the Confidential Information provided to it or any part thereof, except as reasonably required in connection with performing the services contemplated hereby or as permitted with the specific prior written consent of Customer; and
   6. 6. within ten (10) days of a request by Customer, to destroy all of the Confidential Information provided to it in written form, including all copies thereof and any works derived therefrom or containing Confidential Information and to certify to such destruction, such certification, at the request of Customer, specifically listing all such Confidential Information destroyed.
8. 8. All of the foregoing obligations and restrictions do not apply to that part of the Confidential Information that the Supplier demonstrates (a) was or becomes generally available to the public other than as a result of a disclosure by the Supplier or the Supplier’s Representatives or (b) was available, or becomes available, to the Supplier on a non-confidential basis prior to its disclosure to the Supplier by Customer or an Customer Representative, but only if (1) the source of such information is not bound by the Confidentiality Agreement with Customer or is not otherwise prohibited from transmitting the information to the Supplier or the Supplier’s Representatives by a contractual, legal, fiduciary, or other obligation and (2) the Supplier provides Customer with written notice of such prior possession either (A) prior to the execution and delivery of this Agreement or (B) if the Supplier later becomes aware of (through disclosure to the Supplier or otherwise through the Supplier’s work on the contemplated herein) any aspect of the Confidential Information of which the Supplier had prior possession, promptly upon the Supplier becoming aware of such aspect.
9. 9. In the event that the Supplier or its Representatives, is, in the opinion of legal counsel acceptable to Customer, required by legal process, law or regulation to disclose any portion of the Confidential Information provided to it, such party shall provide Customer with prompt written notice of such requirement as far in advance of the proposed disclosure as possible so that the Customer (at its expense) may either seek a protective order or other appropriate remedy which is necessary to protect its interests or waive compliance with the non-disclosure provisions of this Agreement to the extent necessary (provided that one or the other be done). The Supplier and its Representatives shall cooperate in all reasonable respects with Customer in seeking to prevent or limit disclosure and, in the event a protective order or other remedy is not obtained, the Supplier will limit the disclosure to the information actually required to be disclosed, provided, that the Supplier shall not be required to incur any out-of-pocket costs in complying with this paragraph.
10. 10. Without the prior written consent of Customer neither the Supplier nor any of the Supplier’s Representatives will initiate or cause to be initiated any communication with any employee of Customer concerning the Confidential Information or any possible engagement.
11. 11. The Supplier shall indemnify and hold Customer and its Representatives harmless from any damages, loss, cost, or liability (including reasonable legal fees and the cost of enforcing this indemnity) arising out of or resulting from any unauthorized use or disclosure by the Supplier or the Supplier’s Representatives of the Confidential Information or other violation of this Agreement. In addition, because an award of money damages (whether pursuant to the foregoing sentence or otherwise) would be inadequate for any breach of this Agreement by the Supplier or the Supplier’s Representatives and any such breach would cause Customer irreparable harm, the Supplier also agrees that, in the event of any breach or threatened breach of this Agreement, Customer will also be entitled, without the requirement of posting a bond or other security, to equitable relief, including injunctive relief and specific performance. Such remedies will not be the exclusive remedies for any breach of this Agreement but will be in addition to all other remedies available at law or in equity to Customer.
12. 12. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement, which shall remain in full force and effect. If any of the covenants or provision of this Agreement are determined to be unenforceable by reason of its extent, duration, scope or otherwise, then the parties contemplate that the court making such determination shall reduce such extent, duration, scope or other provision and enforce them in their reduced form for all purposes contemplated by this Agreement.
13. 13. Customer reserves the right to assign all of its rights under this Agreement, including the right to enforce all of its terms. In the event of a transaction that involves a sale of assets, Customer currently intends to assign to the acquirer rights to enforce the restrictions and other obligations of this Agreement, including the right to enforce all of its terms.
14. This Agreement shall be governed by the laws of the State of California, without regard to conflicts of laws principles.
15. This Agreement may be signed in counterparts, each of which shall constitute an original.

Exhibit C

Dispute Resolution

1. 1. The parties agree to establish an internal hierarchy to facilitate resolution of Disputes as set forth below.
2. 2. The employees of each of the parties who are responsible for the day-to-day aspects of the subject matter of the Dispute shall discuss the Dispute and negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding relating thereto (“Level 1 Review”).
3. 3. Upon the written request of either party’s Project Manager, a senior level representative representing each party, shall hold ad hoc meetings and/or informal discussions for the purpose of resolving such Dispute (“Level 2 Review”). Such designated persons shall meet in person, or by telephone, as often as they reasonably deem necessary in order to gather from and furnish to the other all information with respect to the Dispute which they believe to be appropriate and germane in connection with its resolution. Such designated persons shall discuss the Dispute and negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceeding relating thereto.
4. If the Dispute cannot be resolved within 14 days of the first Level 2 Review meeting any Dispute (an “Arbitrated Dispute”) shall, after completion of the procedures set forth above, be fully and finally settled and determined by binding arbitration in accordance with the then-current version of the rules of the American Arbitration Association (the “Rules”), and judgment upon any award arising in connection therewith may be entered in any court of competent jurisdiction. The arbitration shall be held before a panel of three arbitrators (one chosen by Supplier, one chosen by Customer, the third mutually agreed upon by Supplier and Customer (or appointed by the other two arbitrators if Supplier and Customer cannot agree on the appointment of the third)). Any arbitration, mediation arising out of, related to, or in connection with this Agreement shall be held in a neutral location chosen pursuant to the rules of the American Arbitration Association. All arbitration proceedings and submissions, and the arbitration award, shall be in the English language and the rules of evidence shall apply to all proceedings.
5. The arbitrators shall apply California law to all aspects of the Arbitrated Dispute, including but not limited to, the interpretation and validity of the applicable documents, the rights and obligations of the parties, the mode of performance and the remedies, consequences of the breach of the applicable documents and the rules of evidence.
6. The parties may, without inconsistency with this agreement to arbitrate, seek from any court having jurisdiction any interim measures or provisional remedies pending the establishment of the arbitral tribunal’s final award has been satisfied or as permitted by Section 24.2 of the Agreement. The parties agree that the award made by the arbitrator shall be final and binding on the parties, and they waive any right to appeal the arbitral award, to the extent that an appeal may be lawfully waived.
7. Notwithstanding the foregoing, the parties agree to continue performing their respective obligations under this Agreement to the extent practicable while the Dispute is being resolved unless and until such obligations are terminated or expire in accordance with the provisions hereof. Nothing on this Exhibit C shall be construed to prevent any party from seeking from a court a temporary restraining order or other temporary or preliminary relief pending final resolution of a Dispute pursuant hereto.

Exhibit D

Docupace Support Services Program and Service Level Agreement

1. Customer Support Overview

1.1. The Platinum Support services described herein (“Support”) are provided by Supplier to Customer pursuant to the terms and conditions of the Master Services Agreement between Customer and Supplier to which this Exhibit is attached (“Agreement”). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Agreement.

1.2. Customer Support Scope. Technical knowledge and experience are available within the Support organization and engaged as deemed necessary following procedures outlined in the Prioritization, Escalation, and Notification Table in Section 4.2. Each Customer reported problem is assigned the appropriate severity level by Supplier, in consultation with the Customer (Critical – “Severity 1”, High – “Severity 2”, Medium – “Severity 3”, Low – “Severity 4”). The scope of Support for Customer is defined as follows:

• Isolate and assist to correct reproducible programming errors to the extent possible by telephone or e-mail, remote, or direct access to systems.
• Provide direction and clarification of functions and features of Supplier systems (“Systems”).
• Provide clarification of documentation pertaining to the Systems.
• Manage the distribution of Updates, Hot Fixes, and Releases to the Software, including problem corrections.
• Provide feedback to the Product Development organization on behalf of Customer.
• Alert Customer in the event of a service alert.

2. Support Services Operational Information

2.1. Minimum System Requirements

Receipt of Support is subject to Customer maintaining a minimum level of hardware, software and internet access including but not limited to the following – Adobe Reader installed for all users, Internet access, Docuscan installed on scanning stations (Customer is responsible to install and configure DocuScan software on individual scanning workstations), Uploader on Network Server (interim on one scanning pc), install and configure Uploader software, and install a Java runtime environment (current version) on the designated hardware.

2.2. Standard Maintenance Windows

Supplier Scheduled Maintenance Windows will not be performed during Peak and will not be scheduled to cause interruptions to Application Service Availability in Off-Peak Time more than once a month.  Supplier will provide Customer a Scheduled Maintenance calendar and a description of the types of maintenance or planned application enhancements to be performed.  The types of maintenance that will occur during Scheduled Maintenance include, but are not limited to: Database maintenance, bug fixes, configuration changes, hardware upgrades, and replacement, and performance fine-tuning.

For the purposes of this agreement, Peak Time hours are considered 5:30 am PST to 5 pm PST Monday through Friday, excluding National and NYSE Holidays.  All other times shall be considered Off-Peak Time.

Supplier agrees, if reasonably possible, to not perform maintenance at times that would be inconvenient to Customer.

2.3. Emergency Maintenance

2.4. Periodically emergency situations present themselves and must be managed outside the standard maintenance windows. An emergency situation is one that is required to complete the application of urgent patches or fixes or undertake other urgent maintenance activities. Supplier shall implement emergency changes (e.g., security vulnerabilities) at all necessary times based on the assessed risk(s). The level of risk and commensurate urgency will generally be determined based on the criteria provided by Supplier. Such changes may result in the application being down and may affect the overall availability time for the applicable month. If the site is unavailable to Customer for any reason, then the outage shall be included in the availability statistic. Scheduled maintenance windows are not scrubbed from reported availability numbers. Supplier is required to notify Customer of maintenance before making changes to the System. Supplier and Customer shall discuss how this information will be reported and what the ultimate impact will be to the monthly results.

2.5. Contacts and Hours of Support

2.5.1. Hours

Peak Time Office hours are considered 5:30 am PST to 5 pm PST Monday through Friday, excluding National and NYSE Holidays. During Off-peak hours, contact our normal support line.

2.5.2. Contacts

Customer will have assigned a support number that will be provided to up to 8 named users. Issues should be reported to Supplier via these 8 named users.

2.5.3. Platinum Support

Supplier will provide Platinum Support, included in this package:

Supplier will provide a technical Support resource that will respond to and take immediate action on both Severity 1 and Severity 2. Customer should follow the call escalation path according to the chart below.

• For Off-peak hours, Supplier shall be available via answering service and will respond within a one (1) hour time period for Severity 1 issues.
• Additional duties include:
  • Responsible for logging Customer trouble tickets, providing case IDs and managing open tickets to closure.
  • Owner of incident reports
• Weekly Support calls to review all outstanding issues/trouble tickets.
• Trained backup resource available if the primary person is ‘not available’. Not available means if CSA is on PTO or not physically available during standard work hours (Travelling, onsite, etc.).  Response times and trouble ticket management will be the same as for the primary technical support representative.

3. SERVICE LEVELS AND CREDITS

3.1. Measurement and Reporting

3.1.1. Except as otherwise agreed upon by the Parties, Supplier shall monitor its performance of the Services against the Service Levels. This monitoring shall include the following 5 categories: document capture monitoring, database monitoring, application server monitoring, security monitoring, and hardware monitoring. Supplier shall collect and provide to Customer the data reasonably made available to it by such tools and be responsible for measuring performance as against the Service Levels. Failure to properly measure performance with respect to any particular Service Level for any month shall be deemed to be a Service Level Default (as defined below) with respect to such Service Level for such month.

3.1.2.On a monthly basis, the Supplier shall provide Customer with a set of soft copy reports to verify Supplier’s performance and compliance with the Service Levels. Detailed supporting information for all reports shall be provided to Customer in spreadsheet form, or such other form as reasonably requested by Customer. The raw data detailed supporting information and other data produced or derived from measurement of the Services shall be deemed Customer Data and may be accessed by Customer on-line and in real-time, where feasible, at any time during the Term.

3.2. Service Level Evaluation and Modification

3.2.1. Reevaluation of Service Levels. The numerical values associated with the Service Levels and the agreed-upon percentage shall be subject to Customer’s and Supplier’s mutual reevaluation 6 months after the Effective Date. The purpose of such reevaluation shall be to confirm or change the numerical value based upon the average performance of Supplier with respect to the applicable Service Level during such 6-month period. Customer and Supplier may agree to adjust the Service Levels at this time. The Parties agree that all Service Levels conformed or changed in accordance with Section 2.1.1 hereof shall not be less than those levels reasonably and consistently achievable with the systems and environments used to provide the Services if used in accordance with the practices and standards used in well-managed operations performing services similar to the Services.

3.2.2. Improvements to Service Levels. Customer and Supplier shall review the Service Levels at least annually and shall make adjustments to them as appropriate to reflect improved performance capabilities associated with advances in the technology and methods used to perform the services or to reflect new information or circumstances affecting the Service Levels. During such reviews, Supplier shall work with Customer to identify possible cost/service level tradeoffs (but any resulting changes in Service Levels shall be implemented only if approved in writing by both parties). The parties expect and understand that, insofar as possible, there shall be continuous improvement in Supplier’s delivery of the Services during the Term.

3.2.3 Additions/Modifications to Service Levels. The parties shall cooperate to identify additional Service Levels in furtherance of the objective of having a comprehensive set of Service Levels that provide a fair, accurate and consistent measurement of Supplier’s performance of the Services. In response to changes in Customer’s business needs or to reflect changes in or evolution of the Services, Customer and Supplier shall, at least once per year, review and assess any changes and agree to add or substitute new Service Levels to meet such objective(s) as may be redefined from time to time during the Term.

3.3. Service Levels

3.3.1. Application Availability. The Service shall be available 24 hours a day, 365 days a year, except for the minimum time required for planned, routine maintenance.

3.3.2. Application Performance Response Time. The Service shall respond and users will be able to access the system within the following minimum Performance Response Times: (i) Peak Time: 7 seconds, (ii) Off-Peak Time: 10 seconds.

3.3.3. System Capacity. Supplier shall provide sufficient hosting capacity to meet the Service Levels for availability and performance. Customer shall work with Supplier to forecast and anticipate unexpected increases in System usage due to organizational changes, changes in business strategy or other events that could change the rate of System usage typically observed in normal site operation.

3.3.4. Content Upload. Supplier shall make immediately and dynamically available any user updates to the System, including documents scanned into the System, indices applied, document workflow activities, and other normal course of business interactive system functions once such updates have been processed within Supplier’s System. Supplier will ensure that any core technical system changes uploaded (i.e., Rep & Security Hierarchy, batched document uploads) will be processed, applied and made available to the System based on mutually agreed upon functional design specifications.

3.4. Credit for Failure to Meet Service Levels

3.4.1. In General. Supplier recognizes that its failure to meet the Service Levels designated herein may have a material adverse impact on the business and operations of Customer and that the damage from such failure is not susceptible to precise determination. Accordingly, if Supplier fails to meet any such Service Level for any reason other than a Force Majeure Event under the Agreement (“Service Level Default”), then in addition to other remedies that may be available to Customer, Customer shall recover the corresponding Service Level Credit specified herein, which shall be a credit against the Prorated Annual Support Contract owed by Customer for the month during which the Service Level failure occurs (“Service Level Credit”).

3.4.2. Documentation. Supplier shall provide an adequately detailed, technical, written explanation of each incident including a root-cause analysis. Such information shall be provided within 1 business day following the occurrence of the problem.

3.4.3. Application Availability Service Level Credits for Peak Time. If Customer an Application and Captured Image Availability incident during Peak Time is the result of Supplier errors, then Customer shall receive the following Service Level Credits:

3.4.4. Application Availability Service Level Credits for Off-Peak Time. If an Application and Captured Image Availability incident during Off-Peak Time is the result of Supplier errors, then Customer shall receive the following Service Level Credits:

3.4.5. Performance Response Time Service Level Credits. If performance incidents are the result of Supplier errors, then Customer shall receive the following Service Level Credits based upon either the number of incidents or upon the performance degradation units. An instance will begin when Supplier confirms the performance degradation and an instance will end when Customer confirms the solution. A performance degradation unit is defined as the time difference between the Performance Response Time minimum requirement and actual Performance Response Time as recorded by Supplier (and mutually agreed upon by Customer) multiplied by the total number of hours spent resolving the performance incident.

Example #1:  If the response time of the System was 31 seconds and it took a total of 26 hours during the month to work on the problem for all reported instances then the total number of credits would be (31-7) x 26 =624 units. This will entitle Customer to a 10% credit.

Example #2: If there is intermittent system response time, this could be either a severity 1 or severity 2 issue and also entitle Customer to Performance Response Time Service Level Credits.

3.5. Persistent SLA Breach. In the event of a persistent SLA breach, Customer may immediately terminate this Agreement, without liability, upon 60 days written notice to Supplier.

4. Incident Management

4.1.Problem Reporting and Resolution Process

4.1.1. Problem Reporting. Support Services requires the following information to assist in troubleshooting.

• Identify Customer (Customer 6-digit PIN#)
• Time of Incident
• Initial thoughts on Severity or Classification as Critical, High, Medium, Low (as described below)
• Location or business unit affected
• Problem description
• Current status (Intermittent or still happening)
• Steps to follow to recreate the scenario
• Number of Users or Workstations affected
• Name of Agent or Agents affected
• Ideally, a screenshot of the error or issue
• Customer Tracking Number
• Software Version
• Operating System

4.1.2. First Contact Resolution. “First Contact Resolution” is defined as solving Customer problem upon initial contact, preferably while Customer is still on the phone, or with the initial response to the problem notification. Circumstances may require the problem to be solved after time is spent on research or the problem being recreated. In this case, the update frequency with Customer will have been established. First Contact Resolution is achieved by directing Customer contact to the Technical Support Specialist, (“TSS”), prime for the account, who is familiar with the installation and a knowledgeable technical resource on Supplier products and services. This TSS is responsible for solving the issue where possible and will manage delivery of the solution when the issues require escalation to Technical Operations.

4.1.3. Problem Tracking and Analysis. All Customer contacts regarding problems are captured in Supplier’s Problem Tracking System where details of the problem, work history and updates, and ultimately the resolution are captured. Based on the content of each trouble ticket, customized reporting capability will enable an analysis on Hot List issues and Root Cause Analysis on problems organized by Customer, by application, or by supporting technologies.

4.2. Prioritization, Escalation and Notification (PEN) Procedures

4.2.1. Introduction. This Section summarizes Supplier’s escalation guidelines for assigning appropriate prioritization for problems and issues. These guidelines also apply to problems and issues detected by Supplier within hosted Customer environments and installations in addition to environments where Support of Customer applications is outsourced to resellers. The following defines Supplier’s escalation criteria with whom to contact, in addition to identifying appropriate notifications where necessary, and in what timeframe. The Support primary contact will initiate the type of escalation defined by the severity of the issue as outlined in this Section.

As related to Severity 1 and 2 issues, Customer shall provide continuous access to appropriate Customer personnel during Supplier’s response related to the Severity 1 and 2 issues, or Supplier shall be permitted to change the severity of the error.

5. EXCLUSIONS FROM SUPPORT SERVICES.

The following items are excluded from Support services. If Customer wishes to have Supplier perform services related to any of the above items, such services will be performed pursuant to a mutually executed SOW.

5.1. In-depth training. If the Support request is deemed to be training in nature and will require an extended amount of time, Customer will be referred to Supplier’s training or consulting departments.

5.2. Assistance in the customization or configuration of the application. Support services do not include providing assistance in developing, debugging, testing or any other application customization or configuration.

5.3. Information and assistance on Third-Party products. Issues related to the installation, administration, and use of enabling technologies such as Third-Party software and hardware, databases, computer networks, and communications, with the exception of the Minimum System Requirements, are not provided under Support.

5.4 Assistance in the identification of defects in user environment. If Supplier concludes that a problem being reported by a Customer is due to defects in Customer’s environment, Supplier will notify the Customer. Additional support by Supplier personnel to remedy performance issues due to the user environment is categorized as consulting services, which are provided for an additional fee.

Exhibit E

PERMISSION AND USE AGREEMENT

WHEREAS Customer wishes to display and distribute the Supplier Marks (as defined herein) on the Supplier Content (as defined herein) and as otherwise agreed by Supplier, subject to the terms and conditions of this Addendum.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Parties agree as follows:

1. DEFINITIONS.

“Marks” means the trademarks, service marks, logos, and identifiers of the Party, which is hereby incorporated herein.

“Intellectual Property” means, in the case of Customer, the Customer print publication and related materials provided by Customer, and in the case of Supplier, the Supplier Marks and Supplier Content.

2. PROPRIETARY RIGHTS.

2.1. Ownership of Materials. All rights, title, and interest in and to the Supplier Intellectual Property, including all intellectual property rights therein, are owned and retained exclusively by Supplier and its affiliates. All rights, title, and interest in and to the Customer Intellectual Property, including all intellectual property rights therein, are owned and retained exclusively by Customer and its affiliates.

2.2. Use of Supplier Content and Supplier Marks. Customer may display the Supplier Marks and Supplier Content on the Customer Print Publication as set forth in this Addendum, in the manner approved in advance in writing by Supplier. Customer agrees and acknowledges that the limited right granted in this Section 2.2 is revocable by Supplier immediately on written notice to Customer provided that (a) Customer is no longer using Supplier’s services, and (b) no such removal shall require the re-work or destruction of existing tangible materials including collateral, sales brochures, reports, and other materials that Customer may use internally or may distribute publicly or to a limited group.

3. REPRESENTATIONS AND WARRANTIES.

3.1. Use of Marks and Intellectual Property. Customer represents and warrants that: such Party will not (i) use, register, or attempt to register any of the other Party’s Intellectual Property as its own, (ii) use, register, or attempt to register any name, logo, mark, domain name, or other identifier which is likely to lead to confusion with the other party’s Intellectual Property, (iii) use the other party’s Intellectual Property in a manner that disparages or misrepresents such other Party, (iv) use the other party’s Intellectual Property in a manner not expressly permitted by this Addendum or approved in writing by such other Party, or (v) make any change to the other party’s Intellectual Property except as approved in writing in advance by other Party. In addition, each Party will use reasonable efforts to promptly replace any of the other Party’s Intellectual Property displayed by such other Party with updated Intellectual Property received by such Party after receiving such updated Intellectual Property.

3.2. Customer Intellectual Property. Customer represents and warrants with regard to the Customer Intellectual Property that (i) Customer is the owner or otherwise has the right to use and provide the Customer Intellectual Property; (ii) the Customer Intellectual Property content does not and will not infringe on any copyright, trademark, patent, trade secret, right of publicity or privacy, or any copyright, trademark, patent, trade secret, right of publicity or privacy, or other proprietary right; (iii) the Customer Intellectual Property is not and will not be obscene, defamatory, libelous, or otherwise offensive to a reasonable person; and (iv) the Customer Intellectual Property will not be fraudulent, misleading, or in violation of any applicable law.

3.3. Supplier Intellectual Property. Supplier represents and warrants with regard to the Supplier Intellectual Property that (i) Supplier is the owner or otherwise has the right to use and provide the Supplier Intellectual Property; (ii) the Supplier Intellectual Property does not and will not infringe on any copyright, trademark, patent, trade secret, right of publicity or privacy, or any copyright, trademark, patent, trade secret, right of publicity or privacy, or other proprietary right; (iii) the Supplier Intellectual Property is not and will not be obscene, defamatory, libelous, or otherwise offensive to a reasonable person; and (iv) the Supplier Intellectual Property will not be fraudulent, misleading, or in violation of any applicable law.

3.4. DISCLAIMER OF WARRANTY. EXCEPT AS SET FORTH HEREIN EACH PARTY EXPRESSLY DISCLAIMS, AND THE OTHER PARTY HEREBY EXPRESSLY WAIVES, ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO SUCH PARTY’S INTELLECTUAL PROPERTY. EACH PARTY’S INTELLECTUAL PROPERTY IS PROVIDED ON AN “AS IS” BASIS.

4. INDEMNIFICATION; LIMIT ON LIABILITY.

4.1. Indemnification. Each party shall indemnify and hold harmless the other party from any third-party claims, suits, actions, or proceedings arising from such party’s violation of third-party intellectual property rights by such party’s Intellectual Property provided under this Addendum.

4.2. LIMIT ON LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS ADDENDUM, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM THIS ADDENDUM, EVEN IF THE CUSTOMER WAS AWARE OF THE LIKELIHOOD OF SUCH DAMAGES.

5. TERMINATION.

There is no termination for convenience. This Addendum shall continue during the term of the MSA and applicable Statement of Work and shall terminate upon termination of the applicable MSA or Statement of Work. The obligations of the Parties regarding indemnification and limits on liability shall survive the termination of this Addendum for any reason.

Exhibit F

CONFERENCE AGREEMENT

WHEREAS Customer desires Docupace (“Supplier”) to attend its Annual Conference (“Conference”) to assist Customer in promoting the Docupace Platform solution to its Advisor Users and other interested parties, Customer agrees to assist such efforts as follows:

1. Customer agrees to notify Supplier of its scheduled Conference no less than 90-days in advance of its occurrence.
2. Supplier agrees to send one or more Supplier representatives to Customer’s Annual Conference.
3. Customer agrees to provide exhibit space and speaking time to Supplier’s representative for purposes of promoting the Docupace Platform solution to Customer’s Advisor Users and other interested parties.
4. Customer agrees to waive any attendance fees, exhibitor fees, or other fees it would otherwise charge an attendee of its Annual Conference.
5. Supplier agrees to cover its own transportation and lodging costs.

Exhibit G

SEC Rule 17a-4 – Electronic Storage Media Requirements

In accordance with SEC Rule 17a-4, Supplier agrees as follows:

1. The media upon which the Customer Content is stored as part of the Services will meet the following requirements:

a) preserve the Customer Content exclusively in a non-rewriteable, non-erasable format;

b) verify automatically the quality and accuracy of the storage media recording process;

c) serialize the original, and if applicable, duplicate units of the storage media, and time-date for the required period of retention the Customer Content placed on the storage media; and

d) have the capacity to download indexes and records preserved on the storage media to any medium required by the SEC or any self-regulatory organization of which the Customer or its Affiliates are members or to whose jurisdiction the Customer is subject (each an “SRO”).

Notwithstanding the foregoing, it is understood and agreed between the parties that the Services shall in all respects meet the requirements of SEC Rule 17 a-4.

2. Supplier will cooperate with the Customer in permitting the Customer and its attorneys, accountants, and auditors to audit the Services for compliance with the requirements of this Exhibit.

3. Upon the Customer’s request, Supplier will sign and deliver to the SEC or an applicable SRO, in a form acceptable to the Customer, a representation that the storage media meets the conditions described in paragraph 1 of this Exhibit or such other conditions as the Customer deems necessary to comply with SEC Rule 17a-4 or other applicable laws or regulations.

4. Upon the Customer’s request, Supplier will sign and deliver to the SEC or an applicable SRO an undertaking as described, in a format and containing the content required by SEC Rule 17a4(f)(3)(vii) or such other content as the Customer deems necessary to comply with SEC Rule 17a-4 or other applicable laws or regulations.

Information current as of 1/11/2022.