Online Service Agreement

Last Updated:  September 27, 2016

ONLINE SERVICE AGREEMENT

This Online Service Agreement (together with all Exhibits, Order Forms and incorporated URL terms, collectively, this “Agreement”) is legally binding on the parties and shall govern your (“you” or “Client”) access and use of Motivation Science, Inc.’s d/b/a “Validic” (“us” or “Validic”), Service (as defined below).

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT INCORPORATES BY REFERENCE THIS AGREEMENT, YOU AGREE AND CONSENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “CLIENT”, “YOU” or “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

Agreement

The parties agree as follows:

  1. THE SERVICE.
    1. Service Description. Validic provides a digital health platform that (i) accesses, collects and standardizes authorized personal health and activity information (“Authorized Data”) collected using third party applications and devices (“Apps”) and often stored on servers owned or controlled by the owners of the Apps, and (ii) coordinates and manages permissions and credentialing between the Apps and Validic’s clients.  The digital health platform is comprised of a set standard features and services (the “Standard Service”), as well as additional supplementary features and services (each, an “Add-On Service” and, together with the Standard Service, the “Service”) that Client can order pursuant to one or more order forms submitted by Client to Validic (each, an “Order Form”).
      Client operates or seeks to operate a mobile application and/or website destination portal (collectively, the “Portal”) for its customers (“Portal Customers”).  Client desires to obtain access and use of the Service in order to provide its Portal Customers and their connected end users (the “Connected Users”) with access to the Authorized Data.
    2. License. Subject to the terms and conditions of this Agreement (including, without limitation, the limitations and restrictions described in Section d), Validic hereby grants to Client, and Client accepts, a non-exclusive, non-transferable and non-assignable (except as set forth in Section 12.c), right to access and use Validic’s application programming interface (the “API”) (the documentation for which is available at http://validic.com/api to enable Client’s Portal Customers and Connected Users to use the Service.  Use of the Service includes the ability to (i) manage permissions and credentialing between the Portal and the Apps and (ii) transfer the Authorized Data to the Portal.  Client acknowledges and agrees that use of the Service requires Client to format its data and system so that it can connect to the API and successfully exchange Client data.
    3. License Types. The Service is provided to Client subject to specific terms and conditions that further define the scope of Client’s rights with respect to its access and use of the Service based on the type of license (e.g., Starter, Developer, First Step, Growth or Enterprise) purchased in connection with its applicable Order Form (“License Type”).  The License Types, and the supplemental terms and conditions applicable to each License Type, are set forth at: http://validic.com/osa-features.  Licensee must not, and must not attempt to, use the Service outside of the scope of the License Type that applies to the licenses issued to Client.  Any actual or attempted use of the Service outside of the scope of the applicable License Type is a breach of this Agreement and an infringement of the rights of Validic.
    4. Client Responsibilities. Client shall: (i) ensure that each Portal Customer uses the Service solely to obtain Authorized Data of its Connected Users for use in the Portal and solely for use in a manner that is in compliance with the Permitted Uses (as defined in Section 4.a below); (ii) take appropriate action to ensure that non-Connected Users do not access or use the Service; and (iii) access and use the Service solely in compliance with all applicable local, state, federal, and foreign laws, rules, directives and regulations (including, without limitation, those relating to data protection and privacy).
    5. Limitations and Restrictions. Client agrees that it shall not, and shall not permit any third party to, directly or indirectly: (i) modify, alter, revise, decompile, disassemble, reverse engineer, create derivative works or attempt to derive the source code of the Service; (ii) lease, rent, sublicense, distribute or otherwise make available the Service, in whole or in part, to any third party other than Portal Customers and their Connected Users; (iii) use the Service in a way not intended by Validic or for any unlawful purpose; (iv) attempt to tamper with, alter, disable, hinder, by-pass, override, or circumvent any security, reliability, integrity, restriction or requirement of the Service; (v) remove, obscure or alter any copyright, trademark, patent or proprietary notice affixed or displayed by or in the Service; (vi) interfere with or disrupt the integrity or performance of the Service or the data contained therein; and (vii) access the Service in order to build a competitive product or service, copy any features, functions or graphics of the Service or monitor the availability and/or functionality of the Service for any benchmarking or competitive purposes.
    6. Supported Apps. Client acknowledges and agrees that Service currently supports and is able to collect Authorized Data from the Apps set forth at http://validic.com/integrations.  All Apps are owned and maintained by third parties and Validic is not responsible for the malfunction or other failure of any App.  Validic may add additional Apps during the term of the Agreement.  Validic shall not discontinue supporting any App during the Term of this Agreement unless Validic determines, in its sole discretion, that it is not commercially reasonable to continue to support any particular App, or the owner of any App terminates Validic’s right to obtain Authorized Data from that App.  Validic shall provide Client with notice (via email is sufficient) as soon as is commercially practicable of any such discontinuance of support for any App.
    7. Attribution. Client acknowledges and agrees that owners of Apps require data attribution such that when data generated using their respective App is displayed to a Connected User or Portal Customer, that such App owner, the name of the App and/or certain other information relating thereto be displayed.
    8. Data. Client hereby consents to Validic using data collected and generated by Validic (or on behalf of Validic), which results from Client’s and it’s Portal Customers’ and their Connected Users’ use of the Service for any purpose permitted by applicable law, including without limitation: (i) analysis and incorporation of the data in research, databases, reports, comparative data sets, scores, or scoring systems generated therefrom; and (ii) creation and distribution of works and derivative works based on the data.
  1. SERVICE UPDATES; CREDENTIALING.
    1. Service Updates. During the Term of this Agreement, Validic may make those commercially reasonable updates, upgrades, improvements, enhancements and/or modifications to its Service and its API.
    2. Credentialing. Validic shall have no obligation to provide the Service to any Portal Customer unless (i) Client’s connection to the API is functional in all material respects; (ii) with respect to a Portal Customer, Client fully complies with Validic’s then-current credentialing process.
  2. PROPRIETARY RIGHTS. Client acknowledges and agrees that (as between Client and Validic) Validic retains all ownership right, title, and interest in and to the Service and API, including without limitation all corrections, enhancements, improvements to, or derivative works thereof (collectively, “Derivative Works”), and in all intellectual property and proprietary rights therein or thereto (“Intellectual Property Rights”).  To the extent any Derivative Work is developed by Validic based upon ideas or suggestions submitted by Client to Validic, Client hereby irrevocably assigns all rights to modify or enhance the Service and/or API using such ideas or suggestions or joint contributions to Validic, together with all Intellectual Property Rights related to such Derivative Works.  Nothing contained in this Agreement shall be construed to convey to Client (or to any party claiming through Client) any Intellectual Property Rights in or to the Service or API other than the rights expressly set forth in this Agreement.
  3. DATA.
    1. Permitted Uses. Client shall be solely responsible for ensuring that each Connected User (i) designates the Apps from which that Connected User’s Authorized Data is to be collected, (ii) authorizes each such App to allow Validic to collect such Authorized Data for use with the Service and the Portal, and (iii) agrees to the permitted uses and disclosures by Client of that Connected User’s Authorized Data (“Permitted Uses”).  Client shall (and ensure that Portal Customers shall) not use or disclose any Connected User’s Authorized Data for any purpose other than the Permitted Uses without the express prior written consent of the Connected User.
    2. HIPAA. Validic and Client shall comply with any applicable obligations under any applicable laws, rules and regulations including, without limitation the Health Insurance Portability Act of 1996 (“HIPAA”), with respect to its processing, use, storage and disclosure of Authorized Data.
    3. Ownership and Responsibilities. Client acknowledges that (i) Authorized Data is owned by Connected Users and is not owned or controlled by Validic and (ii) as between Validic and Client, Client shall be solely responsible for all use, storage, and disclosure of Authorized Data received by it.
  4. PAYMENTS.
    1. Fees. Client shall pay to Validic the fees for the Service set forth on each Order Form.  All fees shall be paid in U.S. dollars in immediately available funds and shall be made payable to Validic.  Except as otherwise specified herein or in an Order Form, (i) fees are based on the level of Service purchased (g., number of permitted Connected Users and included deployments) and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable and (iii) quantities purchased pursuant to an applicable Order Form can only be decreased at the commencement of an applicable Renewal License Term for such Order Form.
    2. Invoicing and Payment. Unless otherwise stated in the Order Form, Client shall provide valid and correct credit card information and/or valid and correct ACH auto debit account information (in each case, the “Automated Payment Method”).  Throughout the Term, Client shall maintain and update, if necessary, its Automated Payment Method information to ensure that Validic can process required payments using the Automated Payment Method.  If Client provides Automated Payment Method information to Validic, Client authorizes Validic to charge such Automated Payment Method for the Service identified in the applicable Order Form (including, without limitation, the Standard Service and/or any Add-On Services purchased) for the License Term (as defined in Section 11.b) for such Order Form.  Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.  If the Order Form specifies that payment will be by a method other than the Automated Payment Method, Validic will invoice Client in advance and otherwise in accordance with the relevant Order Form.  Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date.  Client is responsible for providing complete and accurate billing and contact information to Validic and notifying Validic of any changes to such information.
    3. Overdue Charges. If any invoiced amount is not received by Validic by the due date, then without limiting Validic’s other rights or remedies, (i) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, and/or (ii) Validic may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 5.b.
    4. Acceleration. If any amount owing by Client under any Order Form is 30 or more days overdue (or 10 or more days overdue in the case of amounts Client has authorized Validic to charge Client’s Automated Payment Method), Validic may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such Order Forms so that all such obligations become immediately due and payable.  If Client is not required to make payments hereunder via an Automated Payment Method, Validic will give Client at least 10 days’ prior notice that its account is overdue to enable Client to cure such payment default before exercising its rights under this Section 5.d.
    5. Payment Disputes. Validic will not exercise its rights under Section 5.c or 5.d if Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
    6. Taxes and Additional Payments. In addition to all other fees payable under this Agreement, Client shall pay all taxes (other than taxes based on income), duties, import and export fees, and any other charges or assessments established by any government agency which are applicable to performance under this Agreement.  Client agrees to indemnify and hold Validic harmless from any encumbrance, fine, penalty or other expense, which Validic may incur as a result of Client’s failure to pay such taxes, duties and fees as required hereunder.
    7. Future Functionality. Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Validic regarding future functionality or features.
  5. CONFIDENTIALITY.
    1. Confidential Information Defined. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose Confidential Information in connection with this Agreement.  “Confidential Information” means all information disclosed by the Disclosing Party to the Receiving Party:  (i) that is marked or designated “confidential” or “proprietary,” or (ii) that reasonably appears to be proprietary or confidential because of legends or other markings, the circumstances of disclosure or the nature of the information itself.  “Confidential Information” also includes, without limitation, any information described above which either party obtains from a third party and which such party treats as proprietary or confidential information.  Validic’s Confidential Information shall include, without limitation, the terms and conditions of each Order Form.
    2. Protection of Confidential Information. The Receiving Party shall use Confidential Information solely in connection with the performance of this Agreement.  The Receiving Party shall protect Confidential Information (whether disclosed before or after the Effective Date) from unauthorized use, dissemination or publication by using the same degree of care, but not less than a reasonable degree of care, as the Receiving Party uses to protect its own confidential or proprietary information of a similar nature.  The Receiving Party will limit the use of and access to the Disclosing Party’s Confidential Information to the Receiving Party’s employees or independent contractors who have a demonstrable need to know, who have been notified that such information is Confidential Information and who are under binding obligations of confidentiality no less restrictive than those of this Agreement.  The Receiving Party agrees not to reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody the Disclosing Party’s Confidential Information.  Furthermore, the Receiving Party agrees not to copy any of the Disclosing Party’s Confidential Information unless and until the Disclosing Party approves in writing such copying, except as reasonably required to evaluate and/or conduct the parties’ transaction(s).  The Receiving Party agrees to reproduce the Disclosing Party’s proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original.
    3. Length of Confidentiality Obligation. The Receiving Party’s obligation to protect an item of Confidential Information under this Agreement will expire when an exception set forth in Section 6.d applies to such item of information.  Upon written request of the Disclosing Party, any and all written or electronic materials (and all copies, extracts, and summaries thereof) in the Receiving Party’s possession or control will be either promptly returned to the Disclosing Party, or promptly destroyed by the Receiving Party (with a certification of destruction transmitted to the Disclosing Party) at the Receiving Party’s expense.
    4. Exceptions to Non-Disclosure Obligations. The restrictions of nondisclosure set forth in this Section 6 will not apply to any Confidential Information: (a) after it has become generally available to the public through no fault of the Receiving Party or its consultants, agents or subcontractors; (b) that is rightfully in the Receiving Party’s possession before disclosure to the Receiving Party by the Disclosing Party; (c) is independently developed by the Receiving Party without the developing person(s) having access to the Disclosing Party’s Confidential Information, or (d) is lawfully received by the Receiving Party in good faith from a third party not subject to an obligation of confidentiality.
    5. Required Disclosures. In addition, the Receiving Party may disclose Confidential Information if required to do so by statute, administrative process or court order, provided that (i) the Receiving Party gives the Disclosing Party sufficient advance notice of such disclosure requirement (to the extent legally permitted), (ii) the Receiving Party cooperates with the Disclosing Party in trying to seek a protective order in connection therewith, and (iii) the scope of such disclosure is limited to the extent possible.
  6. WARRANTIES. Validic warrants to Client that, during the Term of this Agreement, it shall make the Service available to Client in the manner provided by this Agreement and in compliance with the service level agreement set forth on Exhibit A.  As Client’s sole and exclusive remedy for any breach of the foregoing warranty, Validic shall issue service credits to Client as provided in Exhibit A.  Validic warrants to Client that it shall maintain industry standard virus protection procedures to attempt to ensure that the Authorized Data provided to Client will be free of viruses, worms, contaminants, and other malicious code that was designed to threaten, infect, damage, disable, or shut down or harm Client’s systems.
  7. DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 OF THIS AGREEMENT, VALIDIC MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE, THE API, THE AUTHORIZED DATA OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.  VALIDIC DOES NOT MAKE ANY WARRANTY THAT THE USE OF THE SERVICE OR THE API WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL PROVIDE ANY BACK-UP FUNCTIONALITY FOR AUTHORIZED DATA, NOR DOES VALIDIC MAKE ANY WARRANTY WITH RESPECT TO THE ACCURACY OR PERFORMANCE OF THE APPS OR THE ACCURACY OF ANY AUTHORIZED DATA OBTAINED FROM THE APPS OR THAT AUTHORIZED DATA CAN BE USED TO MAKE ANY CONCLUSIONS REGARDING THE HEALTH STATUS OF ANY END USER.  NO ORAL INFORMATION OR STATEMENT MADE BY ANY PARTY OR ITS REPRESENTATIVES WILL CREATE ANY SUCH WARRANTY.
  8. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR (A) ANY SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION AND THE LIKE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DIRECT DAMAGES OR OTHER AMOUNT IN EXCESS OF THE CUMULATIVE FEES ACTUALLY RECEIVED BY VALIDIC UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.  NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S OBLIGATIONS AND LIABILITY UNDER SECTION 10, CLIENT’S OBLIGATIONS TO PAY FEES UNDER SECTION 5, AND ANY VIOLATION OR BREACH OF SECTION 1.b, 1.c AND/OR 1.d.
  9. INDEMNIFICATION. 
    1. Validic Indemnity. Validic shall defend, indemnify and hold harmless Client from any loss, damage or expense (including reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Client, in connection with any third-party (including any Portal Customer, Connected User or governmental claim) claim (each, a “Claim”) alleging that: (i) Validic failed to comply with its obligations under HIPAA in its collection, processing and storage of Authorized Data, except to the extent such claim arises out of or relates to (x) the use of the Service by Client, Portal Customers and/or Connected Users in a manner not authorized in this Agreement, or (y) the failure by Client to comply with its obligations with respect to data under Section 4 of this Agreement; and (ii) Client’s use of the Service as permitted hereunder infringes upon any United States patent, copyright or trademark of such third party, or misappropriates the trade secret of such third party (each, an “Infringement Claim”).  Notwithstanding the foregoing, Validic shall have no liability or obligation with respect to any Infringement Claim that is based upon or arises out of (1) the use of the Service in combination with any software or hardware not expressly authorized by Validic, (2) any modifications or configurations made to the Service by Client, Portal Customers and/or Connected Users without the prior written consent of Validic, and/or (3) any action taken by Client, Portal Customers and/or Connected Users relating to use of the Service that is not expressly permitted or authorized under the terms of this Agreement.
      In addition to the foregoing, if the Service becomes or is in Validic’s reasonable discretion likely to become the subject of any injunction preventing its use in the manner contemplated in this Agreement, or that Validic reasonably determines that the Service is likely to infringe or violate any third party intellectual property rights or that the use of the Service is likely to violate HIPAA, Validic may, at its option, (A) procure for Client the right to continue to use the Service in the manner permitted hereunder, without the payment of any additional fees by Client to any such third party; (B) replace or modify the Service so that it is compliant with HIPAA and/or non-infringing while continuing to perform all its material functions or (C) if in Validic’s reasonable opinion it is not commercially reasonable for Validic to take the actions set forth in (A) or (B), terminate this Agreement and release Client from any further payment obligations.  This Section 10.a states Validic’s sole liability and Client’s exclusive remedy for third party claims with respect to the Service or the Authorized Data.
    2. Client Indemnity. Client shall indemnify, defend and hold Validic harmless from and against any and all loss or damage arising out of a third-party claim against Validic (including any Portal Customer, Connected User or governmental claim) resulting from Client’s (i) use of the Service by Client, Portal Customers and/or Connected Users, or (ii) the failure by Client or Portal Customers to comply with the obligations with respect to data under Section 4 of this Agreement, except to the extent such claim arises out of or relates to (a) Validic’s gross negligence or intentional misconduct or (b) failure to comply with its obligations under HIPAA in its collection, processing and storage of Authorized Data.
    3. Indemnification Procedures. Each party’s obligation of indemnification is contingent upon the other party promptly notifying the indemnifying party of any such claim, providing the indemnifying party with exclusive control of the defense and/or settlement thereof, and cooperating with the indemnifying party in such defense and/or settlement.  The indemnified party shall have the right to employ separate counsel and to participate in (but not control) any such action, but the fees and expenses of such counsel shall be at the expense of the indemnified party.
  1. TERM AND TERMINATION.
    1. Term. Unless otherwise terminated in accordance with the terms of this Agreement, this Agreement commences on the date Client first accepts the terms of this Agreement, by either clicking a box indicating its acceptance or by executing an Order Form, and continues until all subscriptions hereunder have expired or have been terminated (the “Term”).
    2. Term of Purchased Licenses. The initial term of the licenses purchased pursuant to an Order Form (the “Initial License Term”) shall be as specified in the applicable Order Form.  Except as otherwise specified in an Order Form, Service licenses shall automatically renew for additional, successive license renewal terms (each, a “Renewal License Term” and, together with Initial License Term, the “License Term”) equal to the expiring license term or one year (whichever is shorter), unless either party gives the other party notice of non-renewal at least 30 days before the end of the relevant license term.  Except as expressly provided in the applicable Order Form, renewal licenses will be priced at Validic’s applicable list price in effect at the time of the applicable renewal.
    3. Termination. Either party may terminate this Agreement at any time upon written notice to the other party if the other party:  (i) breaches any material term hereof and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party; (ii) ceases to do business in the normal course, (iii) becomes or is declared insolvent or bankrupt; or (iv) is the subject of any proceeding related to its bankruptcy, liquidation or insolvency (whether voluntary or involuntary) which is not dismissed within ninety (90) calendar days; or (v) makes an assignment of the benefit of creditors.  Without limiting the foregoing, in the event of a breach that gives rise to the right by Validic to terminate this Agreement, Validic may elect, as an interim measure, to suspend its performance hereunder (including, without limitation, Client’s right to access and use the Service and/or the API) until the breach is cured and all fees shall continue to accrue during the period of such suspension.  Validic’s exercise of its right to suspend performance shall be without prejudice to its right to terminate this Agreement upon written notice to Client.
    4. Liquidated Damages. Client agrees that the damages suffered by Validic as a result of early termination of the Agreement would be extremely difficult to calculate with precision and therefore liquidated damages should be computed as set forth herein.  In the event of Validic’s termination of this Agreement arising from Client’s breach of this Agreement (or in the event of a termination or cancellation of this Agreement by Client in any manner not permitted by this Agreement), Client shall pay to Validic, as liquidated damages and not as a penalty, an amount equal to 100% of the fees required by each of the Order Forms that is in effect as of the date of such termination.
    5. Effect of Termination or Expiration. Upon termination or expiration of this Agreement, the rights and obligations hereunder shall terminate immediately, except that (i) any payment or other obligation that has accrued as of the date thereof shall survive and continue in full force and effect, and (ii) the provisions of Sections 3, 4, 6, 8, 9, 10 and 12 of this Agreement shall all survive and continue in full force and effect.
  2. ADDITIONAL TERMS.
    1. Entire Agreement. The parties agree that this Agreement represents the complete and exclusive statement of the agreement between the parties and supersedes any proposal or prior oral or written agreement, or any other communications relating to the subject matter of this Agreement.  This Agreement may be amended, modified or supplemented only by written agreement of both of the parties.
    2. Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of North Carolina, without giving effect to the principles of conflicts of law.  The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods from application to this Agreement.  All disputes arising under this Agreement must be brought in the Federal or North Carolina state courts located in Wake County, North Carolina, which shall be the sole and exclusive jurisdiction and venue for all such disputes.  The parties irrevocably consent to the personal jurisdiction of these courts.
    3. Assignment. Either party may assign this Agreement in connection with a merger or a sale or transfer of substantially all of its business or assets relating to this Agreement.  Except as provided above, neither party may assign this Agreement or any rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld.  This Agreement shall be binding upon and shall inure to the benefit of the parties’ respective successors and permitted assigns.  Any purported assignment in violation of the foregoing shall be void.
    4. Severability; Waiver. If any term of this Agreement shall be found invalid, the term shall be modified or omitted to the extent necessary, and the remainder of this Agreement shall continue in full effect.  The waiver by either party of a breach of any provision of this Agreement shall not constitute or be construed as a waiver of any future breach of any provision of this Agreement.
    5. Notices. All notices, instructions, requests, authorizations, consents, demands and other communications to a party pursuant to this Agreement shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); (c) by certified or registered mail, return receipt requested (upon verification of receipt); or (d) solely with respect to notices to Client, via electronic mail to the e-mail address maintained on Client’s account.  All notices to Validic shall be addressed as follows:  Motivation Science, Inc., 300 W. Morgan Street, Suite 1200, Durham, NC 27701, Attn: Accounting Department.  All notices to Client, unless otherwise provided via e-mail, shall be to the address set forth in Client’s applicable Order Form. Any party may change the address to which notice is to be given by notice given in the manner set forth above.
    6. No Rights in Third Parties. This Agreement does not grant any rights or remedies to any person or entity that is not a party to this Agreement.  No person or entity is a third party beneficiary of this Agreement.
    7. Independent Contractors. The parties shall be independent contractors and the relationship between the parties shall not constitute a partnership, joint venture or agency.  No party shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other party, without the prior written consent of such other party.
    8. Force Majeure. Each party will be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control of such party, for so long as such party acts diligently to attempt to remedy the cause of any such delay or failure.
    9. Acceptance of Privacy Policy. All data and information provided by Client through its use of the Service is subject to Validic’s privacy policy (as amended from time-to-time, the “Privacy Policy”), which is located at: http://validic.com/privacy-policy.   By using the Service, Client accepts and agrees to be bound and abide by the Privacy Policy.
    10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic format (g., “pdf” or “tif” file format) shall be effective as delivery of a manually executed counterpart of this Agreement.
    11. Publicity. Validic may factually identify Client as an existing customer on its website and in sales and marketing materials, so long as Validic does not do so in a manner that could reasonably lead any reader to assume that Client endorses, is responsible for or is associated with Validic or its Services.  Except as set forth in the preceding sentence and except as required by applicable laws, rules or regulations, neither party will, without the prior written consent of the other party, use in advertising, publicity or otherwise the names, trade names, service marks, trade dress or logo of the other party in any press releases, advertising, web sites or materials distributed or made available to prospective customers or other third parties.

 


Exhibit A

SERVICE LEVEL AGREEMENT

During the Term, the Service (excluding Third Party Services) will be operational and available to Client at least 99.5% of the time in any calendar month (the “SLA”).

DEFINITIONS

The following definitions shall apply to the SLA.

Downtime — shall be deemed to occur during a minute when more than 5% of the calls made to the API during such minute return an error, as logged by Validic’s servers.  Downtime shall not be deemed to occur during (i) system upgrades, enhancements and routine maintenance activities that are announced via customer email notification or on the Validic development blog upon two days advance notice or (ii) maintenance determined by Validic to be an emergency.

Monthly Uptime Percentage — means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.

Other Products Services — means mobile apps, devices, and third-party software that are not maintained, warrantied or otherwise guaranteed by VALIDIC, including without limitation, Apps, the Portal and products, technologies and services provided by Client.

SLA STANDARDS
Monthly Uptime Percentage Days of Service added to the end of the Term, at no charge to Client
< 99.5% – >= 98.0% 1
< 98.0% – >= 95.0% 3
< 95.0% 5

 

Service Credit — If the Monthly Uptime Percentage of the service falls below SLA Standards, a service credit may be issued to Client subject to the terms and conditions below.  The issuance of Service Credits is the sole and exclusive remedy of Client and Validic’s sole and exclusive obligation, for any failure by Validic to satisfy the SLA.  In order to receive a Service Credit, Client must notify Validic in writing within fifteen (15) days from the time Client becomes eligible to receive a Service Credit (the “Downtime Notice”).  Failure to comply with such requirement will result in Client forfeiting its right to receive a Service Credit.  The aggregate maximum number of Service Credits to be issued by Validic to Client for all Downtime that occurs in a single calendar month shall not exceed five days of Service added to the end of the Term.  Service Credits may not be exchanged for, or converted to, monetary amounts.  Service Credits shall automatically be forfeited upon the termination of the Agreement prior to the expiration of the Term.

SLA EXCLUSIONS

SLA Exclusions.  The SLA does not apply to any services that expressly exclude this SLA (as stated in the documentation for such services) or any performance issues: (i) caused by factors described in the “Force Majeure” section of the Agreement; or (ii) that resulted from Client’s equipment or third party equipment, or both.

Ineligible Clients.  Clients who at the time of Downtime claimed in a Downtime Notice are not current on their payment of the fees for the Services do not qualify for SLA Credits for such Downtime.  In addition, Clients who have not paid their fees when due for the Services three or more times in the previous twelve calendar months do not qualify for SLA Credits.

Errors in Implementation or Use.  The SLA does not apply to Downtime caused by Client’s use of the Services or any Connected User’s use of the Portal after Validic advised Client or any Connected User to modify such use, if Client or any Client Connected User did not modify its use as advised.

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