This SaaS Subscription Agreement and all materials attached hereto or made a part hereof by an external link (collectively, this “Agreement”) is effective as of the Effective Date of the Order Form (“Order Form”) signed between the parties, AccredTech, having an office at 1120 S. Rackham Way, Suite 300, Meridian ID 83642 (“Vendor”) and the Customer signing the relevant Order Form (“Customer” or “Client”). As used in this Agreement, “Party” means either Vendor or Customer, as appropriate, and “Parties” means Vendor and Customer. By signing an Order Form, Customer agree to be bound to this Agreement and all other documents, contracts and policies linked herein, all of which are made a part hereof through incorporation by reference. In the event of a conflict between the terms of the Order Form and this Agreement, the terms of this Agreement shall govern unless provision herein for a specific Order Form provisions to govern.

WHEREAS, Vendor provides the Services defined in the Order Form and Customer desires to obtain the Services; and

WHEREAS, the Parties desire to enter into this Agreement to establish the terms and conditions of their relationship regarding the Services under the Order Form.

NOW, THEREFORE, in consideration of the mutual obligations described in this Agreement and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

Defined terms used in this Agreement are set forth in Exhibit One. 

1. Services (defined in the Order Form).
   1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and payment of the fees set forth in Addendum A hereto, Vendor hereby grants Customer a non-exclusive, non-transferable (except in compliance with 15.8) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein.  Such use is limited to Customer’s internal use.  Vendor shall provide to Customer the Access Credentials within a reasonable time following the Effective Date.
   2. Customer must also agree to the terms and conditions set forth in the Mobile Application End User License Agreement (the “EULA”) to access and use Vendor’s proprietary software and trade content on the mobile application.  If Customer fails to comply with any term or condition set forth in the EULA, or accesses or uses Vendor’s software offering beyond the scope of the rights granted or for a purpose not authorized under any of Customer’s agreements with Vendor, then such conduct shall be considered both a material breach of the Subscription Agreement and the EULA. THE EULA IS AVAILABLE HERE AND MAY BE CHANGED OR UPDATED BY VENDOR IN ITS SOLE DISCRETION.  CONTINUED USE OF THE MOBILE APPLICATION OR THE SERVICES THEREAFTER BY CUSTOMER SHALL BE DEEMED ACCEPTANCE OF THE NEW EULA TERMS. 

BY USING THE SERVICES OR MOBILE APPLICATION, CUSTOMER ALSO AGREES TO VENDOR’S TERMS OF SERVICE (“TOS”) AVAILABLE HERE AND PRIVACY POLICY AVAILABLE HERE. THE TOS AND PRIVACY POLICY MAY BE CHANGED OR UPDATED BY VENDOR IN ITS SOLE DISCRETION AT ANY TIME.  CONTINUED USE OF THE MOBILE APPLICATION OR THE SERVICES THEREAFTER BY CUSTOMER SHALL BE DEEMED ACCEPTANCE OF THE NEW TOS OR PRIVACY POLICY TERMS.

1. Documentation License. Vendor hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with 15.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
   1. Vendor has and will retain sole control over the operation, provision, maintenance, and management of the Vendor Materials; and
   2. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Vendor Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Vendor; (ii) results obtained from any use of the Services or Vendor Materials; and (iii) conclusions, decisions, or actions based on such use.
3. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Vendor Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Vendor Materials, and the Third-Party Materials are and will remain with Vendor and the respective rights holders in the Third-Party Materials.
4. Changes. Vendor reserves the right, in its sole discretion, to make any changes to the Services and Vendor Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Vendor’s services to its customers; (ii) the competitive strength of or market for Vendor’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. 
5. Subcontractors. Vendor may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”). 
6. Suspension or Termination of Services. Vendor may, directly or indirectly, and by use of a Vendor Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Vendor Materials, without incurring any resulting obligation or liability, if: (a) Vendor receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Vendor to do so; or (b) Vendor believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; (iii) Customer or any Authorized user  or (iv) this Agreement expires or is terminated. This Section 2.7 does not limit any of Vendor’s other rights or remedies, whether at law, in equity, or under this Agreement.

1. Use Restrictions; Service Usage and Data Storage. 
   1. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Vendor Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement.  For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
      1. copy, modify, or create derivative works or improvements of the Services or Vendor Materials;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Vendor Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the Source Code of the Services or Vendor Materials, in whole or in part;
      4. bypass or breach any security device or protection used by the Services or Vendor Materials or access or use the Services or Vendor Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
      5. input, upload, transmit, or otherwise provide to or through the Services or Vendor Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
      6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Vendor Systems, or Vendor’s provision of services to any third party, in whole or in part;
      7. remove, delete, alter, or obscure any trademarks, Specifications, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Vendor Materials, including any copy thereof;
      8. access or use the Services or Vendor Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
      9. access or use the Services or Vendor Materials for purposes of competitive analysis of the Services or Vendor Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Vendor’s detriment or commercial disadvantage; or
      10. otherwise access or use the Services or Vendor Materials beyond the scope of the authorization granted under this Section 3.1. 
2. Customer Obligations.
   1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Vendor Personnel with such access to Customer’s premises and Customer Systems as is necessary for Vendor to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Vendor may reasonably request to enable Vendor to exercise its rights and perform its obligations under and in connection with this Agreement.
   2. Effect of Customer Failure or Delay.  Vendor is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”). 
   3. Corrective Action and Notice.  If Customer becomes aware of any actual or threatened activity prohibited by 3.1, then Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Vendor Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) immediately notify Vendor of any such actual or threatened activity. 
3. Service Levels
   1. Service Levels. Subject to the terms and conditions of this Agreement, Vendor will use commercially reasonable efforts to make the Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications.[For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User/access to or use of the Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not strictly comply with this Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Vendor pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to 2.7.
   2. Scheduled Downtime.  Vendor will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 9 p.m. and 2 a.m., MST Time; and (b) give Customer at least 4 hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).
   3. Service Support.  The Services include Vendor’s standard customer support services (“Support Services”) at no additional cost to Customer. 
4. Data Backup.  The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. VENDOR HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, EXFILTRATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
5. Security. 
   1. Information Security. Vendor will employ security measures in accordance with Vendor’s data privacy and security policy as amended from time to time.  A copy of Vendor’s security policies is available upon request. 
   2. Data Breach Procedures. Vendor will notify the Customer in writing as soon as practicable and without unreasonable delay in the event Personal Information or Sensitive Personal Information is affected in a Security Incident.  In such event, Vendor will take reasonable and appropriate steps necessary to contain, remediate, and recover from each identified Security Incident, using appropriate internal and external resources, in its sole discretion.
   3. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer System”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Vendor Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
   4. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
6. Fees and Payment.
   1. Fees. Customer shall pay Vendor the annual subscription fees for the selected Service or Services as set forth in the Order Form
   2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Vendor’s income. 
   3. Payment. Customer shall pay all Fees on or prior to the Effective Date. Customer shall make all payments hereunder in US dollars, and Customer shall make payments to the address or account as Vendor may specify in writing from time to time.
   4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, Vendor may suspend performance of the Services until all past due amounts have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.
   5. No Deductions or Setoffs. All amounts payable to Vendor under this Agreement shall be paid by Customer to Vendor in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
   6. Fee Increases. Vendor may increase Fees  for any contract year after the first contract year of the Initial Term, by providing written notice to Customer at least 60 calendar days prior to the commencement of such Renewal Term. 
7. Confidentiality.
   1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.  For the avoidance of doubt, Customer Data shall be considered Confidential Information and subject to this Section 9.
   2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement, including Personal Information and Sensitive Personal Information; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
   3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for a period of five (5) years after the expiration or termination of the Term: 
      1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; 
      2. except as may be permitted by and subject to its compliance with 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this 9;
      3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
      4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
      5. notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
   4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under 9.3.  If the Disclosing Party waives compliance or, after providing the notice and assistance required under this 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
8. Intellectual Property Rights.
   1. Vendor Materials.  All right, title, and interest in and to the Vendor Materials, including all Intellectual Property Rights therein, are and will remain with Vendor and, with respect to Third-Party Materials, the applicable third-party Vendors own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Vendor Materials except as expressly set forth in 2 or the applicable third-party license, in each case subject to 3.1.  All other rights in and to the Vendor Materials are expressly reserved by Vendor.  In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Vendor an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
   2. Customer Data.  As between Customer and Vendor, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in 10.3.
   3. Consent to Use Customer Data.  Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Vendor, its Subcontractors, and the Vendor Personnel to enforce this Agreement and exercise Vendor’s, its Subcontractors’, and the Vendor Personnel’s rights and perform Vendor’s, its Subcontractors’, and the Vendor Personnel’s obligations hereunder.
9. Representations and Warranties.
   1. Mutual Representations and Warranties. Each party represents and warrants to the other party that: 
      1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
      2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
      3. the execution of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
      4. when executed, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
   2. Additional Vendor Representations, Warranties, and Covenants.  Vendor represents, warrants, and covenants to Customer that Vendor will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
   3. Additional Customer Representations, Warranties, and Covenants.  Customer represents, warrants, and covenants to Vendor that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Vendor and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
   4. DISCLAIMER OF WARRANTIES.  EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN 11.1 AND 11.2, ALL SERVICES AND VENDOR MATERIALS ARE PROVIDED “AS IS” AND WITH ALL FAULTS ACCEPTED. VENDOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, VENDOR MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR VENDOR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
10. Indemnification. 
    1. Customer Indemnification.  Customer shall indemnify, defend, and hold harmless Vendor and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Vendor Indemnitee”) from and against any and all Losses incurred by such Vendor Indemnitee resulting from any Action by a third party (other than an Affiliate of a Vendor Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from: 
       1. Customer Data, including any Processing of Customer Data by or on behalf of Vendor in accordance with this Agreement;
       2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Vendor’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Vendor; 
       3. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
       4. gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
    2. Indemnification Procedure.  Vendor Indemnitee shall promptly notify Customer in writing of any Action for which Vendor Indemnitee believes it is entitled to be indemnified pursuant to 12.  Vendor Indemnitee shall cooperate with Customer at the Customer’s sole cost and expense. Customer shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Customer’s sole cost and expense. Vendor Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.  Customer shall not settle any Action on any terms or in any manner that adversely affects the rights of the Vendor Indemnitee, without the Vendor Indemnitee’s prior written consent.  If Customer fails or refuses to assume control of the defense of such Action, Vendor Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to Customer, in each case in such manner and on such terms as Vendor Indemnitee may deem appropriate.  The Vendor Indemnitee’s failure to perform any obligations under this Section 12.2 will not relieve Customer of its obligations under this 12, except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure.
    3. Mitigation. If any of the Services or Vendor Materials are, or in Vendor’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Vendor Materials is enjoined or threatened to be enjoined, Vendor may, at its option and sole cost and expense: 
       1. obtain the right for Customer to continue to use the Services and Vendor Materials materially as contemplated by this Agreement; 
       2. modify or replace the Services and Vendor Materials, in whole or in part, to seek to make the Services and Vendor Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Vendor Materials, as applicable, under this Agreement; or 
       3. by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Vendor Materials, and require Customer to immediately cease any use of the Services and Vendor Materials or any specified part or feature thereof, provided that if such termination occurs prior to one (1) year after the Effective Date, subject to Customer’s compliance with its post-termination obligations set forth in 14, Customer will be entitled to a full refund.
    4. Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND VENDOR’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND VENDOR MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 
11. Limitations of Liability.
    1. EXCLUSION OF DAMAGES.  EXCEPT AS OTHERWISE PROVIDED IN 13.3, IN NO EVENT WILL VENDOR OR ANY OF ITS LICENSORS, SERVICE VENDORS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN 13.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF VENDOR AND ITS LICENSORS, SERVICE VENDORS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO VENDOR UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. 
    3. Exceptions.  The exclusions and limitations in 13.1 and 13.2 do not apply to liability for Vendor’s gross negligence or willful misconduct.
12. Term and Termination.
    1. Initial Term.  The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect until one (1) year from such date (the “Initial Term”). 
    2. Renewal Term.  This Agreement will automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”).
    3. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
       1. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
       2. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    4. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
       1. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
       2. Vendor shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Vendor directly or indirectly controls, provided that, for clarity, Vendor’s obligations under this Section 14.4(b) do not apply to any Resultant Data;
       3. Customer shall immediately cease all use of any Services or Vendor Materials and (i) promptly return to Vendor, or at Vendor’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Vendor Materials or Vendor’s Confidential Information; and (ii) permanently erase all Vendor Materials and Vendor’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Vendor in a signed written instrument that it has complied with the requirements of this Section 14.4(c);
       4. notwithstanding anything to the contrary in this Agreement, Vendor may retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course;
       5. Vendor may disable all Customer and Authorized User access to the Vendor Materials;
       6. if Customer terminates this Agreement pursuant to 14.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Vendor will: (i) refund to Customer Fees paid in advance for Services that Vendor has not performed as of the effective date of termination;
       7. if Vendor terminates this Agreement pursuant to 14.3(a) or 14.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of Vendor’s invoice therefor.
    5. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 3.1, 9, 11.4, 12, 13, 14.4, this 14.5, and 15.
13. Miscellaneous.
    1. Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
    2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    3. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Vendor may, without Customer’s consent, include Customer’s name and other indicia in its lists of Vendor’s current or former customers of Vendor in promotional and marketing materials.
    4. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
    5. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. 
    6. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Vendor’s prior written consent.  For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Vendor’s prior written consent is required.  No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement.  Any purported assignment, delegation, or transfer in violation of this Section 15.7 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
    7. Force Majeure.
       1. No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s] reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency; and (vii) shortage of adequate power or transportation facilities]. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.
       2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    8. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    9. Amendment and Modification; Waiver. No amendment to or modification of or rescission or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission or discharge of this Agreement and signed by an authorized representative of each party.  No termination of this Agreement is effective unless it is in writing, identified as a termination of this Agreement, and signed by the terminating party’s authorized representative.  No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    10. Severability.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    11. Governing Law; Submission to Jurisdiction.  This Agreement is governed by and construed in accordance with the internal laws of the State of Idaho without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Idaho. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Idaho in each case located in the city of Boise and County of Ada, and each party irrevocably submits to the exclusive]jurisdiction of such courts in any such suit, action, or proceeding.  Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. 
    12. Dispute Resolution.  The Parties shall attempt to settle any dispute between them amicably and agree to exercise reasonable commercial efforts to resolve the controversy or dispute prior to seeking a judicial resolution. To invoke the dispute resolution process, the invoking Party shall give to the other Party written notice of its decision to do so, including a description of the issues subject to the controversy or dispute and a proposed resolution thereof. Designated representatives of both Parties with the closest responsibility for implementing the Services shall attempt to resolve the controversy or dispute within thirty (30) business days after receipt of such notice. If those designated representatives cannot resolve the controversy or dispute, the Parties shall meet at Vendor’s office and describe the controversy or dispute and their respective proposals for resolution to their respective Chief Operating Officer or another designated person with comparable authority who shall act in good faith to resolve the controversy or dispute. If the controversy or dispute is not resolved within ten (10) business days after such meeting, then the parties by mutual agreement may submit the controversy or dispute to non-binding mediation with a mediator who is accredited through the Center for Public Resources or the American Arbitration Association. However, nothing in this clause shall preclude any Party from commencing suit if said negotiations do not reach a resolution within thirty (30) days after written notice that the negotiations have commenced. This Section shall not be construed to prevent a Party from instituting, at any time, including before or during the dispute resolution process, and a Party is authorized to institute, at any time, including before or during the dispute resolution process, (i) formal proceedings to avoid the expiration of any applicable limitation period, (ii) claims for injunctive relief or (iii) proceedings to preserve a superior position with respect to other creditors.
    13. Waiver of Jury Trial.  Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
    14. Equitable Relief.  Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under 3.1, 4.3, 7.3, or Section 9 would cause Vendor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Vendor will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    15. Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
    16. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.  A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
14. Notices. All notices or other communications given pursuant hereto by one Party to the other Party shall be in writing and deemed given when delivered personally by messenger (with acknowledgement of receipt), sent by facsimile and email (with receipt confirmed), received by the addressee, if sent by Express Mail, Federal Express or other acceptable express delivery service (receipt requested), in each case to the appropriate addresses and fax numbers set forth below (or to such other addresses and fax numbers as a Party may designate as to itself by notice to the other Party), or seven (7) days after mailing by certified or registered United States mail, or mail of the country of the place of business of such Party set forth in the first paragraph hereof, postage prepaid, return receipt requested.  If to Vendor:

AccredTech 

Attn: Ian Bellais Executive VP

1120 S Rackham Way Suite 300 

Meridian, ID 83642

Email: ibellais@accredtech.com 

Confirmation: 1-480-263-0562

and if to the Customer: by email, or otherwise as specified in the Order Form 

1. [Reserved.]

EXHIBIT ONE

Definitions

“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

“Affiliate” has the meaning set forth in the Agreement.  

“Agreement” has the meaning set forth in the preamble.

“Authorized User” or “Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.

“Availability Requirement” has the meaning set forth in 5.1.

“Available” has the meaning set forth in 5.1.

“Confidential Information” has the meaning set forth in 9.1.

“Customer” means the Person entering into this Agreement with AccredTech for the use of the Services. For purposes of this Agreement, “Customer” includes its Authorized Users who access and use the Services on behalf of the Customer, subject to the terms and conditions herein.

“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

“Customer Failure” has the meaning set forth in 4.2.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

“Services” has the meaning set forth in the Agreement. 

“Disclosing Party” has the meaning set forth in 9.1.

“Documentation” means any manuals, instructions, or other documents or materials that the Vendor provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Vendor Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Effective Date” has the meaning set forth in the preamble.

“Exceptions” has the meaning set forth in 5.1.

“Fees” has the meaning set forth in 8.1.

“Force Majeure Event” has the meaning set forth in 15.9.

“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Vendor Systems as intended by this Agreement. Harmful Code does not include any Vendor Disabling Device. 

“Initial Term” has the meaning set forth in 14.1.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. 

“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Vendors.

“Natural Person” means a living human being. 

“Person” means a Natural Person, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other legal entity.

“Personal Information” means information that Customer provides or for which Customer provides access to Vendor, or information which Vendor creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies a Natural Person (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an natural person (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, answers to security questions, and other personal identifiers)], in case of both subclauses (i) and (ii), including Sensitive Personal Information (as defined herein). 

“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

“Vendor” has the meaning set forth in the preamble of this Agreement.

“Vendor Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Vendor or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Vendor or its designee.

“Vendor Indemnitee” has the meaning set forth in 12.2.

“Vendor Materials” means the Services, Specifications, Documentation, and Vendor Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Vendor or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Vendor Systems. For the avoidance of doubt, Vendor Materials include Resultant Data and any information, data, or other content derived from Vendor’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Vendor Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Vendor or any Subcontractor.

“Vendor Systems” means the information technology infrastructure used by or on behalf of Vendor in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Vendor or through the use of third-party services.

“Receiving Party” has the meaning set forth in 9.1.

“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, agents, and legal advisors. 

“Resultant Data” means data and information related to Customer’s use of the Services that is used by Vendor in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

“Scheduled Downtime” has the meaning set forth in 5.3.

“Security Incident” means any unauthorized access, use, or loss of Customer Data or Personal Information, including Sensitive Personal Information, that compromises the confidentiality, integrity, or availability of such data. 

“Sensitive Personal Information” means an individual’s (i) government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number and (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account.

“Service Level Failure” has the meaning set forth in 5.1.

“Service Period” has the meaning set forth in 5.1.

“Services” means the Services selected by the Customer pursuant to the Order Form(s)  executed between the parties.

“Source Code” has the meaning set forth in the Agreement. 

“Specifications” means the specifications for the Services. 

“Subcontractor” has the meaning set forth in 2.7.

“Support Services” has the meaning set forth in 5.4.

“Term” has the meaning set forth in 14.1/14.2. 

“Territory” means the United States of America (“US”). 

“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Vendor.