Validity, Inc.##Software License Agreement####BY CLICKING “CONFIRM PURCHASE”, SIGNING THE ORDER FORM, OR BY ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE USE ANY OF THE SOFTWARE.####This Software License Agreement (“Agreement”), together with any order form(s), annexes, schedules, exhibits, and any documentation provided by Validity from time to time (collectively, “Documentation”), is an agreement between you (“Licensee”) and Validity, Inc. (“Validity”) for the Validity software products ordered by Licensee below (the “Software”) for the number of designated users ordered by Licensee below (the “Users”). The provisions of this Agreement are as follows:####1. License Grant##(a) Validity hereby grants to Licensee a non-exclusive and non-transferrable license for the Users to use the Software solely for the internal business purposes of Licensee. Software shall also include any upgrades, modified versions, bug fixes or updates of the Software provided by Validity. Licensee may make a reasonable quantity of copies of the Documentation for use only in connection with Licensee’s operation of the Software, provided that all such copies retain Validity’s trademark, copyright and other proprietary legends and logos.##(b) Licensee will comply with all applicable laws and regulations in connection with Licensee’s use of the Software. Licensee will not use the Software to post or transmit any illegal material, including, without limitation, any transmissions that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law or regulation. In particular, Licensee shall not:##(i) Provide, rent, lease, lend, use for timesharing, application service provider or service bureau purposes, or otherwise use or allow others to use the Software for their own benefit or for the benefit of third parties;##(ii) Modify, adapt, translate, incorporate into or with other software, or create a derivative work or an improvement of, any part of the Software;##(iii) Disclose the results of any benchmarking of the Software, or use such results for its own competing software development activities;##(iv) Copy, reproduce or duplicate the Software, by any means or in any manner, except for backup purposes; ##(v) Decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatever;##(vi) Transmit or post chain letters or pyramid schemes, or undertake other acts that involve deceptive online marketing practices or fraud;##(vii) Affect the quality of other users’ experience;##(viii) Undertake actual or attempted unauthorized use or sabotage of any computers, machines or networks or introduce malicious programs into the Software;##(ix) Engage in any monitoring or interception of data not intended for Licensee;##(x) Attempt to circumvent authentication or security of any host, network or account;##(xi) Use any method, software or program designed to collect identity information, authentication credentials, or other information;##(xii) Transmit or receive, upload, use or reuse material that (A) is abusive, indecent, defamatory, harassing, obscene or menacing, or a breach of confidence, privacy or similar third party rights, (B) violates any intellectual property rights of a third party, including, without limitation, patents, trademarks, trade secrets or copyrights, (C) Licensee does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements), or (D) Licensee has not collected directly from live web forms or other opt-in collection mechanisms directly related to Licensee’s business; or##(xiii) Falsify user identification information or impersonate any person or entity.##(c) Licensee is responsible and liable for all uses of the Software and Documentation through access thereto by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its authorized Users or by any other person to whom Licensee or an authorized User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this Agreement. Licensee shall defend, indemnify, and hold harmless Validity from and against any claims, loss, liability, or damages (including reasonable attorneys’ fees) arising from Licensee’s use of the Software.##(d) Notwithstanding the foregoing, Licensee may configure or modify those support files that are provided by Validity and are not compiled or encrypted, and such configured or modified files can be copied and distributed by Licensee.##(e) Licensee will create a password and account. Licensee is responsible for maintaining the confidentiality of the password and account, and is fully responsible for all activities that occur under its account, including, without limitation, all actions by sub-users registered under its account. In addition, Licensee is solely responsible to review the instructions and user policies provided in conjunction with the Software and bears all responsibility for using the Software correctly in accordance with such instructions and user policies. Licensee will (i) immediately notify Validity of any unauthorized access to or use of its password or account or any other breach of security; and (ii) ensure that Licensee exits (logs off) from its account at the end of each session. For the avoidance of doubt, Validity cannot and will not be liable for any loss, damage or other liability arising from Licensee’s failure to comply with the requirements or from any unauthorized access to or use of Licensee’s account.##(f) Collection and Use of Information: ##(i) Licensee represents and warrants that all Contact Data (defined below) sent to Validity or otherwise processed through or used in connection with the Software has been legally obtained and that its use is not in violation of any laws, rules, regulations, legislation or directives governing Contract Data, including, without limitation, any relevant local data protection laws, rules, regulations, legislation or directives pertaining to any country or territory the Software is used. In the event Licensee provides access to its or any Contact Data in a file stored with a third party source, Licensee represents and warrants that Licensee has all legal rights and authority to grant Validity access to such files in order to download or process such Contact Data using the Software. “Contact Data” shall mean any combination of names, e-mail addresses, post address, phone number, and IP addresses. ##(ii) Licensee acknowledges that Validity may, directly or indirectly through the services of third parties (including, without limitation, Validity’s vendors, affiliates, and licensees), collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through (A) the provision of maintenance and support services; and (B) security measures included in the Software. Validity may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including, but not limited to, (A) improving the performance of the Software or developing updates; and (B) verifying Licensee’s compliance with the terms of this Agreement and enforcing Validity’s rights, including all intellectual property rights in and to the Software. Notwithstanding the foregoing, Licensee further represents and warrants that Licensee has (A) carried out an independent risk assessment as to the security of the Contact Data as stored by such third party to ensure Licensee’s compliance with any relevant data protection laws, rules, regulations, legislation, or directives, including an independent risk assessment into whether the transfer of the Contact Data provides an adequate level of protection for the rights of the data subjects; and (B) where appropriate, put in adequate safeguards to protect the rights of the data subjects.##2. Price and Payment##(a) Licensee shall pay Validity the license fees set forth below for the Software for the first year of the term of this Agreement. Such fees shall increase by 3% for each subsequent year of the term of this Agreement. ##(b) The Software fees for each year of the term of this Agreement shall be paid by Licensee, as applicable, in advance for each such year or on the first day of each month for the previous month. All amounts not paid when required shall bear interest at the rate of 12% per annum or the lower of the maximum amount allowed by applicable law until paid in full.##(c) Such fees are exclusive of and do not include any taxes, duties, or similar charges imposed by any government. Licensee will pay or reimburse Validity for all federal, state, dominion, provincial, or local sales, VAT, use, personal property, import, export, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement, other than taxes based upon Validity’s net income.##(d) Licensee will be required to set up an account with Validity prior to using the Software. Validity may require credit card payments, unless Validity requires pre-payment by Licensee or agrees, in its sole discretion and in writing, to accept payment via check. If Licensee has provided a credit card as its payment method, Licensee hereby authorizes Validity to charge at the time payment is due for all amounts due. If Licensee does not pay Validity when due or if Licensee’s credit card is declined at any time, or in the event that Licensee’s check does not allow Validity to receive payment, Validity has the option to suspend the provision of the Software immediately until such amounts are paid. ##(e) Validity and any of its employees, officers, or agents are authorized to obtain information concerning Licensee’s creditworthiness. Any person to whom a credit application is presented and completed is authorized to disclose to Validity and any of its employees, officers, or agents any information requested, and Licensee hereby waives any claim against, and fully releases from any and all liability, such persons by reason of any disclosure. Licensee authorizes Validity to verify the truthfulness of all financial representations including a grant of authority to check credit with various credit reporting agencies or any listed financial institutions named in the application for credit separately requested by Validity in connection with this Agreement. Licensee will notify Validity in writing of any development which may adversely affect Licensee’s financial condition, promptly after the occurrence thereof. All statements by Licensee in this connection are true and correct and are made for the purpose of obtaining credit from Validity. Credit granted to Licensee may, at the option of Validity, be cancelled at any time upon notice to Licensee.##3. Intellectual Property Rights##(a) The Software is owned by Validity, and its structure, organization and code are the exclusive intellectual property and valuable trade secrets of Validity. All intellectual property rights in and to the Software, including, without limitation, all copyright, trade secret, patent, trademark, and other proprietary or industrial property rights in and to the Software, are the sole and exclusive property of Validity. Except for the right to use the Software as specifically stated in Section 1, Licensee is not granted any other right, title, or ownership in the Software. Licensee acknowledges that the Software is protected by copyright and other intellectual property laws. Only Validity shall have the right to maintain, enhance, or otherwise modify the Software. Licensee shall not contest or challenge, or take any action inconsistent with or that may damage or impair Validity’s ownership or intellectual property rights of Validity’s affiliates or authorized users. The Software and Documentation, including, without limitation, trade secrets, performance data, design, features, layouts, configurations, processes, formulae, specifications, programs, test results, technical know-how, methods and procedures of operation and other information relating to or obtained therefrom, by use, examination or otherwise, which is not generally publicly known are the valuable trade secrets of Validity, and shall be deemed to be confidential information of Validity (“Confidential Information”). Licensee shall use the same degree of care to protect the Confidential Information from improper use or non-disclosure as Licensee would use with respect to Licensee’s own information of like importance which Licensee does not desire to have published or disseminated, but in any event no less than reasonable care. Licensee will not use any Confidential Information for any purpose not expressly authorized under this Agreement and will not disclose to third parties any such Confidential Information. Licensee acknowledges that Validity may retain certain transactional information for data aggregation services or to permit data analyses, provided that any such retention and use shall be governed by the Validity Privacy Policy found at ________________ _____________________.##(b) Licensee shall promptly notify Validity if Licensee becomes aware of any infringement of the Validity’s intellectual property rights in the Software and fully cooperate with Validity in any legal action taken by Validity to enforce its intellectual property rights.##4. Software Warranty##(a) Validity warrants to Licensee during the period in which Licensee is current in the payment of all fees (“Warranty Period”) that (i) the Software will be free from any virus, mechanism, feature or any other code or instruction that (A) cause the Software (without the knowledge of Licensee) to remotely transmit information to Validity or any third party; or (B) may be used to permit access to, or use of, the Software or computer system on which the Software is loaded, or to which the Software is linked, by Licensee or any third party; and (ii) the Software will be free from defects in its media and will operate substantially in accordance with the Documentation. If Licensee discovers a failure to comply with this Section 4(a) during the Warranty Period, Licensee shall promptly notify Validity of such failure and provide Validity with sufficient information in written or electronic form so that Validity can reproduce such failure. ##(b) Validity’s sole liability and Licensee’s exclusive remedy with respect to breach of such limited warranty shall be limited to providing Licensee with an error correction, replacing the non-conforming Software, or if neither is commercially feasible, refunding the license fees received for the non-conforming Software provided Licensee thereafter discontinues all use of such Software. ##(c) Validity does not warrant the performance or the results Licensee may obtain by using the Software or Documentation. Licensee acknowledges that there is a risk data can be damaged or corrupted and there is no guarantee that such damage or corruption can be reversed or recovered. Licensee shall be responsible for backing up its own data and the costs of restoring such data from any backup.##(d) Licensee acknowledges that the Software interacts with other software and databases operated by Licensee’s specific Customer Relationship Management System (“CRM”) or other systems. Licensee acknowledges that Validity is not responsible in any manner for the performance of the Software or any issues of accessibility to the extent the same are caused by any changes by Licensee’s CRM or other systems to its application programming interface.##(e) Except as expressly set out in this Section 4, Validity makes no representations, warranties or conditions, express, statutory or implied, with respect to the Software or the Documentation. VALIDITY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Validity does not warrant that the Software will meet Licensee’s requirements or that it will function uninterrupted, error free or that all defects in the Software will be corrected. Validity makes no representation or warranty regarding accessibility to, or the privacy or security of, any of Licensee’s information, files or data. Licensee assumes the entire risk as to the results and performance of the Software. Licensee acknowledges that it has independently determined that the Software meets its business requirements and that it has not relied on any representation by Validity as to the suitability of any item for any particular purpose. Validity does not represent or warrant that the Software will be capable of achieving any particular result or results in Licensee’s business or operations. Except as expressly stated otherwise in this Agreement, Software is provided and licensed on an “AS IS” basis without warranty or representation of any kind.##5. Intellectual Property Indemnification##(a) Validity shall indemnify Licensee against all liability to third parties (including reasonable attorney’s fees) arising from any claim alleging that the Software infringes any patent or copyright of any third party within Canada, the United States of America or any current member state of the European Union, provided that (i) Licensee promptly notifies Validity of any such third party demand, action, suit or proceeding, threatened or actual, against Licensee (a “Claim”), (ii) Licensee may not settle or compromise any Claim, and (iii) Validity, at its sole option, may elect to conduct the defense of any Claim, including, without limitation, any settlement or compromise thereof, in which case Licensee shall cooperate reasonably in such defense at Validity’s cost. Validity may at any time (i) procure for Licensee the right to continue the use of the Software; (ii) replace or modify the Software so as to be non-infringing without materially diminishing the functionality thereof; or (iii) if Validity reasonably determines that options (i) and (ii) are not commercially practical, terminate this Agreement effective immediately upon written notice to Licensee and refund to Licensee a pro-rated amount of fees starting from the date of infringement. ##(b) The indemnification obligations of Validity in this Section 5 set forth the sole and exclusive remedy of Licensee, and the sole and exclusive liability of Validity, with respect to any Claim.##6. Limitation of Liability##(a) In no event whatsoever will either party be liable for punitive, exemplary or similar damages; damages for loss of profits or revenue, failure to realize expected savings, loss of use or lack of availability of computer resources or any stored data; or indirect, consequential or special damages of any kind.##(b) The maximum total liability of Validity, for any claim whatsoever, under any circumstances, regardless of the cause of action and including, without limitation, claims for breach of contract, tort, negligence or otherwise, and Licensee’s sole remedy therefor, shall be strictly limited to an amount not to exceed the amount of fees paid by Licensee to Validity hereunder during the one (1) year period immediately preceding the date of such claim.##(c) No action arising out of or relating to this Agreement, or Validity’s obligations hereunder, regardless of form, may be brought by Licensee more than twelve (12) months after the facts giving rise to the cause of action are known to Licensee.##7. Term and Termination##(a) The term of this Agreement shall commence on the start of the service period set forth below and shall thereafter continue for the initial term specified below. This Agreement shall thereafter renew for a series of successive one year terms, provided that either party shall have the right to terminate this Agreement as of any such renewal date by providing at least 60 days prior written notice of termination.##(b) Without limiting any other rights or remedies available to Validity, either party has the right to terminate this Agreement immediately and without notice to Licensee, if:##(i) Licensee is in breach or default of any of its obligations under this Agreement, other than with regard to payment, and such breach or default continues unrectified for 10 days following the provision of written notice of such breach or default to Licensee;##(ii) Licensee voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against Licensee under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to Licensee’s assets;##(iii) Licensee ceases to carry on its business; or##(iv) Validity has not received any payment when due either under this Agreement or otherwise.##(c) Upon termination of this Agreement for any reason whatsoever, any license that Licensee has to use any Software will terminate immediately and Licensee shall, at Validity’s option, destroy or return all Software and Documentation.##8. Governing Law and General Provisions##(a) This Agreement will be governed by the laws of the Commonwealth of Massachusetts, excluding the application of its conflict of law rules. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. ##(b) If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. ##(c) Licensee shall not ship, transfer or export the Software into any country or use it in any manner prohibited by the United States Export Administration Act or any other applicable export control law, restriction or regulation. ##(d) If Licensee is the U.S. Government or an agency thereof, Licensee (i) with respect to civilian agencies, will grant protection for the Software as “commercial computer software” and related documentation in accordance with the terms of 48 C.F.R. 12.212 of the Federal Acquisition Regulations; and (b) for use by or on behalf of the Department of Defense, will grant protection for any Software as “commercial computer software” and related documentation in accordance with the terms of 48 C.F.R. 227.7202-1 of the DoD FAR Supplement.##(e) Validity shall be authorized to identify Licensee as a customer of Validity software and services in public relations and marketing materials.##(f) This Agreement may not be assigned by Licensee without the prior written consent of Validity, and any such purported assignment shall be null and void. This Agreement shall be binding upon and inure to the benefit of the successors and assignees of Validity.##(g) The termination of this Agreement will not affect the survival and enforceability of any provisions of this Agreement which are expressly or impliedly intended to remain in force after such termination or expiration, including, without limitation, Sections 1(b), 1(c), 1(e), 2, 3, 6, 7(c) and 8 shall survive any termination of this Agreement. ##(h) Validity will have no obligation to perform its obligations hereunder to the extent and for the period that Validity is prevented from doing so by reason of force majeure or any cause beyond its reasonable control.##(i) All notices, requests, demands and other communications required or permitted under this Agreement shall be deemed to have been delivered to a party at the address indicated below (i) when actually received in the case of hand delivery as evidenced by a signed receipt; (ii) the business day after being given to a reputable overnight courier service, with a reliable system for tracking delivery, for delivery the following day; (iii) when sent by confirmed facsimile with a copy sent by United States mail within two (2) business days of the transmission; or (iv) upon receipt, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid. A party may from time to time change its address, facsimile number or designee for notification purposes by giving the other party prior written notice of the new address, facsimile number or designee and the date upon which such change will become effective.##(j) This Agreement sets forth the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements. There are not and shall not be any oral statements, representations, warranties, undertakings or agreements between the parties. Validity may elect to change or supplement the terms of this Agreement from time to time at its sole discretion. Validity will exercise commercially reasonable business efforts to provide notice to Licensee of any material changes to this Agreement. Within thirty (30) business days of posting changes to this Agreement, they will be binding on Licensee. If Licensee does not agree with the changes, Licensee should discontinue using the Software. If Licensee continues using the Software after such thirty (30) business day period, Licensee will be deemed to have accepted the changes to the terms of this Agreement.##9. Service Level Offering and Uptime Percentage##(a) This Section 9 only applies to Validity’s BriteVerify products (the “Products”). Validity will use commercially reasonable efforts to make all Products available with a Monthly Uptime Percentage (defined below) of at least 99.5% during any monthly billing cycle (the “Service Commitment”). In the event that Products do not meet the Service Commitment, Licensee will be eligible to receive a Service Credit as described below.##(b) The following definitions are applicable:##(i) “Error Rate” means (i) the total number of internal server errors returned by the Products as error status “InternalError” or “ServiceUnavailable” divided by (ii) the total number of requests during that five minute period. Validity will calculate the Error Rate for each Product account as a percentage for each five minute period in the monthly billing cycle. The calculation of the number of internal server errors will not include errors that arise directly or indirectly as a result of any of the Product SLA Exclusions (as defined below).##(ii) “Monthly Uptime Percentage” is calculated by subtracting from 100% the average of the Error Rates from each five minute period in the monthly billing cycle.##(iii) A “Service Credit” is a dollar credit, calculated as set forth below, that Validity may credit back to an eligible account.##(c) Service Credits are calculated as a percentage of the total charges paid by Licensee for Products for the billing cycle in which the error occurred. If the Monthly Uptime Percentage is (i) equal to or greater than 99% but less than 99.5%, there will be a 10% Service Credit for fees paid in the affected month; and (ii) less than 99%, there will be a 25% Service Credit for fees paid in the affected month. Validity will apply any Service Credits against future payments otherwise due from Licensee, provided that Validity may issue the Service Credit to the credit card that Licensee used to pay for the billing cycle in which the error occurred. Service Credits shall not entitle Licensee to any refund or other payment from Validity. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than One Dollar (US$1.00). Service Credits may not be transferred or applied to any other account. Licensee’s sole and exclusive remedy for any unavailability or non-performance of the Products or other failure by Validity to provide Products is the receipt of a Service Credit (if eligible) in accordance with the terms of this Section 9 or termination of Licensee’s use of Products.##(d) To receive a Service Credit, Licensee must submit a request by sending an e-mail message to accounting@validity.com. To be eligible, the credit request must include Licensee’s account username in the subject of the e-mail message, the dates and times of each incident of non-zero Error Rates that Licensee claims to have experienced, and Licensee’s server request logs that document the errors and corroborate the claimed outage. This request must be received by Validity within ten (10) business days after the end of the calendar month in which the errors occurred. If the Monthly Uptime Percentage applicable to the month of such request is confirmed by Validity and is less than 99.5%, then Validity will issue the Service Credit to Licensee (i) with the next block in the event of a block purchase, or (ii) on the term renewal in all other cases. ##(e) The Service Commitment does not apply to any unavailability, suspension or termination of Products, or any other Product performance issues which result from (i) a suspension caused by factors outside Validity’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of Products; (ii) any actions or inactions of Licensee or any third party; (iii) Licensee’s equipment, software or other technology or third party equipment, software or other technology (other than third party equipment within Validity’s direct control); or (iv) Validity’s suspension and termination of Licensee’s right to use Products.
