MASTER SERVICES AGREEMENT

WHEN YOU CLICK A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT OR WHEN YOU EXECUTE AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU, THE COMPANY ENTERING THIS AGREEMENT (“CLIENT”), AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ACCEPT THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

This Master Services Agreement (“Agreement”) is dated and made effective as of the date specified in the signature block of the Order Form (the “Effective Date”) between Qualtik, Inc., a Delaware corporation located at 1500 SW 1st Avenue, Suite 680, Portland, Oregon 97201 (“Qualtik”), and the business entity that has executed a Qualtik Order Form (“Client”).  Qualtik and Client hereby agree as follows:

  1. PURPOSE; ORDERING.

Client is in the business of buying, selling and holding collateralized assets of Client’s customers and prospective customers (each, a “Customer”).   The written order form that has been executed by both parties (each, an “Order Form”) will set forth the licenses to access and use the specific Qualtik software solution described therein, including applicable modules (if any), that is designed to assist Client in managing and valuing their collateralized asset portfolios (the “Solution”) to be hosted and made available by Qualtik in object code format on a software-as-a-service basis, including any Qualtik API (as defined below) (collectively, the “Hosted Service”) that Client is procuring.  If applicable, the statement of work that has been executed by both parties (each, an “SOW”) will set forth related design, implementation or other services (collectively, “Services”) that Client is procuring.  For purposes of this Agreement, “Qualtik API” means the application programming interface, inclusive of software development kits and any accompanying or related Documentation (as defined below), source code, executable applications, and other related materials made available to Client by Qualtik, which such Qualtik API may be modified by Qualtik from time to time; provided that Qualtik shall not make any modifications that materially decrease or degrade the features or functions of such Qualtik API.

  1. USE RIGHTS AND RESTRICTIONS.
    • 2.1 Administrative Rights. The Solution includes a restricted-access dashboard component (“Bridge”) to allow employees or specific independent contractors designated by Client (“Administrative Users”) to access the configuration and settings components of the Solution to manage, configure and monitor the Solution for Client’s benefit.  Each Administrative User will be provided access to and use of the Bridge (“Admin User Access”).  Client shall be responsible for ensuring the security and confidentiality of all Admin User Access.  Client acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access.
    • 2.2 Access to Hosted Service.
      • 2.2.1 License Rights. During the applicable Subscription Term (as defined in Section 6.1 below) and subject to the terms and conditions of this Agreement, Qualtik hereby grants to Client a limited, worldwide, non-exclusive, non-transferable license to: (i) permit Clients Administrative Users (collectively, “Authorized Users”) to access and use the Solution via the Hosted Service; and (ii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by Qualtik that describes functionality of the Solution, if any (collectively, the “Documentation”), in each case solely for the benefit of Client in the ordinary course of its internal purpose of managing collateralized asset portfolios.  For purposes of clarification, Client may not change or add Brands following implementation of the Hosted Service without Qualtik’s prior written consent.
      • 2.2.2 Access Requirements. Client is solely responsible for (i) obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Hosted Service, including, without limitation, modems, hardware, software, and long distance or local telephone service and any fees associated therewith, (ii) ensuring that such equipment or ancillary services are compatible with the Hosted Service and (iii) procuring all necessary rights from applicable third parties and other entities described in the Documentation (collectively, “Third Parties”), that may provide any data, including personally identifiable data, in connection with Client’s use of the Hosted Service  (collectively, “Third Party Data”).  In order to use and access the Qualtik API, Client must obtain API credentials (a “Token”), which will be provided to Client by Qualtik.  Client shall keep the Token strictly confidential, not share its Token with any person who does not have a need to know, shall keep such Token and all login information secure and shall use it as Client’s sole means of accessing the Qualtik API.
    • 2.3 Restrictions. Except as otherwise expressly permitted under this Agreement, Client agrees not to, and shall ensure that Authorized Users do not: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Solution or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Solution (or any portion thereof) to third parties, including, but not limited to, making such Solution available as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Solution (or any element thereof) into applications of Client or third parties; (d) create modifications to or derivative works of the Solution; (e) reproduce the Solution or Documentation; (f) use the Solution in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws, or (g) in any way access, use, or copy any portion of the Solution code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Solution.
  2. CLIENT RESPONSIBILITIES.
    • 3.1 Client Data.  Client: (a) is solely responsible for any Third Party Data and/or other data that may be provided on behalf of, collected or utilized by Client through its use of the Hosted Service (collectively, “Client Data”); (b) acknowledges that Qualtik has no control over and will not monitor the content of the Client Data; and (c) agrees that Client will be responsible for (i) establishing and enforcing terms of use and privacy policies (“Client Policies”) with applicable Third Parties and Customers that authorize Client’s use of the Hosted Service as permitted under this Agreement and are in compliance with applicable law, including export regulation and data protection legislation, and (ii) obtaining all necessary consents of applicable Third Parties and Customers to the collection, processing, and use of Client Data, including any processing by Qualtik in connection with Qualtik’s provision of the Hosted Service or the Services.
  3. DELIVERY AND SUPPORT OF HOSTED SERVICE; SERVICES; USE OF CLIENT DATA.
    • 4.1 Delivery of Hosted Service. Qualtik shall grant Client access to use the Hosted Service within thirty (30) days following the effectiveness of the applicable Order Form or such other period as is necessary to implement the Solution pursuant to the implementation plan agreed upon by the parties in writing, including, if applicable, within any Order Form or SOW.  During the applicable Subscription Term, subject to Client’s payment of all related Fees, Qualtik or its third party hosting provider will set-up and host the Solution, including obtaining and maintaining all computer hardware, software, communications systems, network and other infrastructure (“Hosting Infrastructure”) necessary to permit Client to access and use the Solution in accordance with this Agreement.  Qualtik will manage and install all updates and upgrades that Qualtik makes generally available to its Clients for the Solution within the Hosting Infrastructure.
    • 4.2 Service Levels; Support Services. During the applicable Subscription Term, subject to Client’s payment of all related Fees, Qualtik shall, unless otherwise set forth on the applicable Order Form, (a) provide the Hosted Service in accordance with the service levels and other requirements set forth in Exhibit A; provided that Qualtik does not warrant that Client’s use of the Hosted Service will be error-free or uninterrupted; and (b) technical support services to Client regarding Client’s operation and use of the Hosted Service as set forth in Exhibit B (“Support Services”).
    • 4.3 Services.
      • 4.3.1 Generally. Qualtik will provide all Services and related deliverables (“Deliverables”) in accordance with the specifications and schedule, if any, set forth in each SOW.  If Client notifies Qualtik within thirty (30) days after the Deliverables are made available to Client that Qualtik is not in compliance with the forgoing covenant with respect to such Deliverables, then Qualtik will, as Client’s sole and exclusive remedy, and as Qualtik’s sole and exclusive liability, use commercially reasonable efforts to conform to such covenant at no additional cost to Client.
      • 4.3.2 Ownership Rights. Unless expressly stated otherwise in a SOW, Qualtik will retain all right, title and interest in and to all Deliverables (including any and all intellectual, property rights therein) and Client hereby irrevocably assigns to Qualtik any and all ownership rights it may have in or to such Deliverables (including any and all intellectual, property rights therein).  Client’s rights to the Deliverables shall be the same as the rights granted to Client under the Agreement with respect to the Hosted Service to which such Deliverable pertains.  Notwithstanding the foregoing, Client retains all right, title and interest in and to any Client Confidential Information (as defined in Section 8 below), including any and all Client Marks (as defined below) and other materials supplied by Client to Qualtik that may be incorporated into or provided with any Deliverable.
    • 4.4 Use of Client Data. Client acknowledges and agrees that, subject to Qualtik’s compliance with applicable law and Client’s obligations pursuant to the Gramm-Leach-Bliley Act, Qualtik may, directly or indirectly through the services of any third parties, collect and store Client Data.  Further, the Client agrees that Qualtik may use or share such Client Data (unless restricted by the terms of a third-party agreement or by applicable law) in accordance with the following:  (iii) during the Subscription Term, Qualtik may use applicable Client Data to develop new Qualtik products or services and/or otherwise improve the performance of the Hosted Service; provided that all such Client Data shall remain Client Confidential Information; and (iv) all Client Data is subject to the Qualtik Client Privacy Policy, as applicable, Qualtik shall have the right to use, create derivative works of, distribute and otherwise exploit anonymous, aggregate usage data derived from Client Data (“Usage Data”) such as the aggregate number of transactions that occur within a particular Hosted Service provided that in no event will Qualtik disclose or make available any Usage Data in a manner that does or reasonably could permit the recipient of such information to determine that such Usage Data pertained to Client in particular.
  4. FEES.
    • 5.1 Fees. Subject to the terms and conditions below, all one-time and recurring fees for, as applicable, the Solution, the Hosted Service, and the Services (collectively, the “Fees”) will be set forth on the applicable Order Form and SOW, as applicable.
    • 5.2 Annual Payment Terms. Unless otherwise agreed to in writing by the parties, Client will pay to Qualtik all undisputed Fees via ACH, check or wire transfer, owed either, in Qualtik’s sole discretion, within thirty (30) days, or such other period as may be specified in the Order Form, after Qualtik’s issuance of an invoice pertaining thereto.  If applicable, payments will be sent to the address included on the invoice.  All amounts payable shall be in the currency of the United States and specifically exclude (and Client is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Qualtik’s income).  Unless otherwise set forth in an Order Form, each party is responsible for its own expenses under this Agreement.  In cases where Client fails to make payment under this Agreement, Client shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
  5. TERM AND TERMINATION.
    • 6.1 Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein.  The initial subscription term for each Hosted Service license procured by Client will be as set forth in the applicable Order Form and subject to any renewal as set forth in Section 6.2 below (collectively, the “Subscription Term”). 
    • 6.2 Subscription Terms; Adjustment; Renewal. Each Subscription Term will commence on the date that both parties have executed the applicable Order Form under which Client acquires such license, unless a later commencement date is expressly set forth on such Order Form, and will continue for the initial Subscription Term.  Thereafter, each Solution license will automatically renew (i) for the renewal period specified on the applicable Order Form, if any, or, if not specified, for successive one (1) year periods and (ii) at the same Fees applicable during the immediately preceding term (based upon the latest applicable pricing tier) unless either party notifies the other at least sixty (60) days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms.
    • 6.3 Termination. This Agreement, any Order Form, and/or any SOW, if applicable, may be terminated (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five (5) days for breaches of Sections 2 or 8), or (b) as set forth in Section 10.  Additionally, a particular Order Form or SOW may be temporarily suspended or terminated by Qualtik in the event that Client fails to pay applicable Fees when due or otherwise violates any of the use restrictions set forth herein.
    • 6.4 Effect of Termination. Upon any termination of this Agreement, an Order Form, or an SOW without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.3, 5, 6.4, 7, 8, 9.3, 10, 11, 13 and 16 shall survive termination, (b) Client will promptly delete and destroy all copies of the Documentation in its possession or control, and (c) Client shall pay to Qualtik any outstanding Fees that have accrued under the Agreement, Order Form and/or SOW prior to the date of termination.
  6. PROPRIETARY RIGHTS.

As between the parties, (i) Qualtik will retain all ownership rights in and to the Solution and Hosted Service, all updates and/or upgrades thereto (including any changes which incorporate any ideas, feedback or suggestions provided by Client or any Customer), Documentation and other derivative works of the Solution, Hosted Service and/or Documentation that are provided by Qualtik, and all intellectual property rights incorporated into or related to the foregoing and (ii) Client will retain all ownership rights in and to the Client Data, and all intellectual property rights incorporated into or related to the foregoing.  The trademarks and service marks and other Qualtik logos and product and service names are trademarks of Qualtik (the “Qualtik Marks”).  Likewise, the trademarks and service marks and other logos and product and service names of Client are trademarks of Client (collectively “Client Marks”).  Without the other party’s prior written permission, the parties agree not to display or use in any manner, the Qualtik Marks or Client Marks, as applicable.  All rights not expressly licensed by Qualtik and Client under this Agreement are reserved.

  1. CONFIDENTIAL INFORMATION.

“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information.  Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such.  The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care.  The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information.  The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
    • 9.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement, (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party, (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations.
    • 9.2 By Qualtik. Qualtik warrants that (a) all Support Services and Services shall be provided in a professional, competent and workmanlike manner in accordance with the prevailing industry standards, (b) the Solution, as made available via the Hosted Service and when used in accordance with the Documentation, will perform in all material respects as specified in such Documentation during the applicable Subscription Term, and (c) Qualtik will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Solution that are intentionally designed to permit unauthorized access to or use of either the Solution’s or Client’s computer systems (“Viruses”).  In the event of any breach of the warranties in subsection (a) or (b) above, Qualtik shall, as its sole liability and Client’s sole remedy, diligently remedy any deficiencies that cause the Support Services, the Services and/or Solution to not conform to such warranties promptly after its receipt of written notice from Client.  Qualtik will not be liable to the extent that any breach of the foregoing warranties are caused by (i) third-party components (including in combination or as integrated with the Solution) not provided by Qualtik; (ii) unauthorized use or use of the Solution other than in accordance with the Documentation or (iii) Viruses introduced by Client or its agents (collectively, “Exclusions”).
    • 9.3 Disclaimer. The express warranties set forth in this agreement are the exclusive warranties offered by either party and all other conditions and warranties, including, without limitation, any conditions or warranties of fitness for a particular purpose, non-infringement, accuracy, quiet enjoyment, title, merchantability and those that arise from any course of dealing or course of performance are hereby disclaimed.  Qualtik does not warrant that Client’s use OF the Solution will be uninterrupted or error-free, or that errors will be corrected.
  2. INDEMNIFICATION, LIMITATION OF LIABILITY.
    • 10.1 Indemnification. Qualtik will defend at its own expense any action against Client brought by a third party to the extent that the action is based upon a claim that the Solution infringes any United States copyright or misappropriates any trade secret rights and Qualtik will pay those costs and damages finally awarded against Client in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Client will defend at its own expense any action against Qualtik brought by a third party to the extent that the action is based upon a claim that Client has breached any term or condition of this Agreement and Client will pay those costs and damages finally awarded against Qualtik in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.  The foregoing obligations are conditioned on the indemnified party notifying the indemnifying party promptly in writing of such action, the indemnified party giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, and the indemnified party cooperating and, at the indemnifying party’s reasonable request and expense, assisting in such defense.  If the Solution (or any component thereof) becomes, or in Qualtik’s opinion is likely to become, the subject of an infringement claim, Qualtik may, at its option and expense, either (a) procure for Client the right to continue exercising the rights licensed to Client in this Agreement, or (b) replace or modify the Solution so that it becomes non-infringing and remains functionally equivalent.  If neither of the foregoing options are, in Qualtik’s reasonable opinion, commercially reasonable, Qualtik may terminate this Agreement and will refund to Client a pro-rata portion of any applicable prepaid Fees.   Notwithstanding the foregoing, Qualtik will have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon any Exclusions.  This Section 10.1 states Qualtik’s entire liability and Client’s sole and exclusive remedy for infringement claims and actions.
    • 10.2 Limitation of Liability. EXCEPT WITH RESPECT TO CLAIMS BASED UPON THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY AND EACH PARTY’S CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNFER, in no event shall either party be liable to the other party or to any third party, whether under theory of contract, tort or otherwise, for any indirect, incidental, punitive, consequential, or special damages (including any damage to business reputation, lost profits or lost data), whether foreseeable or not and whether OR NOT SUCH PARTY is advised of the possibility of such damages. each party’s aggregate cumulative liability to the other, in connection with this Agreement, including the Solution, services, and intellectual property provided hereunder shall not exceed, in the aggregate and regardless of whether under theory of contract, tort or otherwise, the total of the Fees actually paid and the Fees payable to Qualtik by Client under this Agreement during the one (1) year period prior to the date that such liability first arises.
  3. PUBLICITY.

During the term of this Agreement, solely upon Client’s prior written approval, Client hereby agrees that Qualtik shall have the right, but not the obligation, to include Client’s name and logo as a customer who uses the Solution on the Qualtik website and in other materials promoting the Solution; provided that Qualtik may disclose Client as a current customer to potential customers in a non-public manner.

  1. INJUNCTIVE RELIEF.

The parties acknowledge that the Solution and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages.  Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of each party’s Confidential Information, the Solution, or any information or data contained therein.

  1. INSURANCE.

Qualtik, at its own expense, will maintain at a minimum the following insurance coverages: (a) Commercial General Liability Insurance with coverage in an amount equal to or greater than US $1,000,000 per occurrence combined single limit; (b) Worker’s Compensation Insurance with coverage complying with at least the statutory limits of coverage within the relevant state of employment; (c) Errors and Omissions Insurance with coverage in an amount equal to or greater than US $3,000,000 per occurrence combined single limit; and (d) Cyber, Technology, and Privacy Policy Insurance with coverage in an amount equal to or greater than US $2,000,000.  Qualtik will provide Client with necessary documentation, including certificates of insurance, evidencing the required coverage, if requested in writing.

  1. RECORDS AND AUDIT.
  • 14.1 Qualtik shall maintain current, accurate, and complete books and records in accordance with standard accounting practices relating to use of Confidential Information by or for Client, Hosted Service status reports, any regulatory obligations related to or resulting from this Agreement and all payments paid or owing hereunder.
  • 14.2 Qualtik acknowledges that federal and state regulatory agencies having jurisdiction over Client (each, a “Client Regulator”), may examine and audit performance of Client and may require access to Qualtik’s records related to this Agreement.  Qualtik agrees to cooperate fully at Client’s written requests with any audits and further agrees (to the extent legally permissible) to notify Client, as soon as practical of any formal request by any Client Regulator to examine Qualtik’s records pertaining to Client or Client’s customers.  Qualtik agrees to provide Client, within ten (10) days of any written requests, with copies of their disaster recovery plans or business resumption plan, internal privacy policy documenting how customer information is protected, Qualtik’s financial statements, a list of any third parties or subcontractors used to provide Services to Client, and security audit (or an alternative document acceptable to Client).  In order for Client to comply with various pieces of privacy legislation, Client may annually perform a security assessment to actively evaluate Qualtik’s information security measures.  The results of the security assessment may be documented in a written detailed report and presented to Qualtik.  Qualtik agrees upon written notice to remedy any breach of this Agreement and to cooperate in good faith to address material security weakness noted by Client or any of Client’s Regulators within thirty (30) days.  Both parties agree to cooperate in good faith to amend this Agreement in the event changes in applicable privacy and information security laws require changes to the Agreement.
  1. OFAC.

Qualtik represents, warrants and covenants that neither Qualtik, nor any of its subsidiaries, affiliates, directors, officers, agents or employees is (i) an individual or entity that is listed in the annex to, or is otherwise subject to the prohibitions contained in, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001 (“Executive Order”) of the Office of Foreign Asset Control (“OFAC”) regulations; (ii) an individual or entity with whom Client or any financial institution is prohibited from dealing or otherwise engaging in business under any U.S. law, regulation, executive order or list published by OFAC; or (iii) an individual or entity that is named on the current list of “Specially Designated Nationals and Blocked Persons” published by OFAC on its official website or any replacement website or other replacement official publication of such list.  During the term of this Agreement, Qualtik shall immediately notify Client in writing if the representations and warranties contained in this provision are no longer true, in which case Client shall have the immediate right to terminate this Agreement with no cure period applying and Qualtik shall reimburse Client any pre-paid fees.  In addition to the warranties set forth in this section, all Qualtik employees performing services or supporting Qualtik activities under this Agreement, regardless of their location, shall be validated by Qualtik to not be on any list published and maintained by the Government of the United States of America of persons or entities with whom any U.S. person or entity is prohibited from conducting business.  Currently, the lists of such persons or entities can include the following website:  The Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control – Department of Treasury at http://www.ustreas.gov/offices/enforcement/ofac/sdn/index.html.  Qualtik shall conduct a review at least annually of the list mentioned above.  Qualtik shall immediately report to Client in writing if the name of any Qualtik employee performing the services matches with the name of any person listed on any list published by the Government of the U.S. of persons or entities with whom any U.S. person or entity is prohibited from doing business.

  1. MISCELLANEOUS.

The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.  Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements.  The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.  This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals.  The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part)  without the other party’s prior written consent except, upon prior written notice, pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise.  Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void.  All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement.  This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules.  The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in Multnomah County, Oregon.  Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts.  The prevailing party shall be entitled to recover reasonable attorney’s fees and other costs from the other party.  These fees and other costs are in addition to any other relief to which the prevailing party may be entitled.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.  In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.  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 on any other party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.  This Agreement includes any Order Forms and SOWs agreed to by the parties in writing and all expressly referenced documents.  Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Qualtik.  The terms on any purchase order or similar document submitted by Client to Qualtik will have no effect and are hereby rejected.  All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Order Form.

EXHIBIT A – SERVICE LEVELS

Uptime Guarantee:  The Hosted Service will be available at least 99.9% of the time, as measured monthly, subject to the exclusions set forth below and also excluding planned downtime and any time necessary to implement updates, upgrades or modifications to the Hosted Service (“Uptime Guarantee”).  Qualtik will notify Client within four (4) business hours of any known and verified unscheduled downtime and will periodically update the status to Client.  Qualtik will promptly notify Client when the downtime has ended.  For purposes of this Exhibit, the Hosted Service is deemed “available” if the Hosted Service is able to pass incoming and outgoing TCP/IP traffic.

Scheduled Downtime:  With the exception of critical patches (i.e. security related), scheduled downtime will be no greater than four hours bi-weekly and will occur at a regularly scheduled time between the hours of (i) 8:00 p.m. Pacific time and 12:00 a.m. Pacific time.  Client will be notified of scheduled down time expected to be greater than 4 hours at least 72 hours in advance.

Exclusions:  The Uptime Guarantee shall not apply in the event that (i) any equipment (not in the custody or control of Qualtik or its third party hosting provider) malfunctions, including, without limitation, any necessary VPN access; (ii) any changes or modifications to the Hosted Service or the environment are made by any person or entity other than Qualtik or its subcontractors; or (iii) there is an occurrence of one or more causes beyond the control of Qualtik or its hosting provider, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion, denial of service attacks, failure of the Internet generally, or other failures.

Service Credits:  For purposes of this Exhibit, (a) a “week” means the period of time beginning at 12:00 a.m. Monday and ending at 11:59 p.m. on the following Sunday, U.S. Pacific Time, and (b) a “month” means the period of time beginning at 12:00 a.m. on the first day of each calendar month and ending at 11:59 p.m. on the last day of the calendar month, U.S. Pacific Time.

If Qualtik fails to meet the required Uptime Guarantee in a particular month, Client shall be entitled (as its sole and exclusive remedy) to a credit as set forth below (each an “Uptime Credit”).  Any Uptime Credit issued for a particular month will be calculated as a percentage of the actual Annual Subscription Fee for such month (which shall be 1/12 of the Annual Subscription Fee), exclusive of any usage-based fees, and will be determined as follows:

Actual Uptime Percentage                         Uptime Credit %:

≥99.9%                                                         0% of Annual Subscription Fee for such month

≥ 98.0% but < 99.9%                                  5% of Annual Subscription Fee for such month

≥ 90.0% but < 98.0%                                  10% of Annual Subscription Fee for such month

< 90.0%                                                         20% of Annual Subscription Fee for such month

Qualtik will provide Client with information on the Hosted Service’s uptime statistics within ten (10) business days of a request made by the Client.  The information will be sufficient to permit Client to determine whether the Uptime Guarantee has been achieved.  The Uptime Credits will be issued as a credit against future Annual Subscription Fees or, if no additional Annual Subscription Fees are payable when the Agreement terminates, will be provided to Client in the form of a refund paid within 30 days after the effective date of termination.  All requests for credits must (i) be sent by email to [Insert Email], (ii) include Client’s name and sufficient detail pertaining to the alleged outage to permit Qualtik to investigate (e.g. dates, duration, etc.) and (iii) be received by Qualtik within ten business days after the end of the calendar month during which such credit accrued.  All claims are subject to verification by Qualtik.

EXHIBIT B – TECHNICAL SUPPORT SERVICES

Qualtik shall provide Support Services in accordance with the terms and conditions of this Exhibit, which such terms and conditions may be amended from time to time by Qualtik.

  1. Client Obligations. Client agrees to provide Qualtik with all information and materials requested by Qualtik for use in replicating, diagnosing and correcting an error or other problem with the Hosted Service reported by Client.  Client acknowledges that Qualtik’s ability to provide satisfactory Support Services is dependent on Qualtik having the information necessary to replicate the reported problem with the Hosted Service.
  1. Business Hours; Scope of Support Services. Qualtik’s business hours are 8:00AM to 5:00PM Pacific, Monday through Friday, exclusive of nationally recognized holidays.
    1. (a) Support Services shall include:
      1. (i) email and/or phone support for all technical issues relating to use of the Hosted Service (including general assistance with Hosted Service capabilities and product features); and
      1. (ii) all updates and upgrades to the Hosted Service as they become available for general release.
    1. (b) Qualtik is not obligated to provide Support Services for errors or problems caused by the following:
      1. (i) third party components or integrations not provided by Qualtik (i.e., applicable platforms, Client applications, Third Party Client Data and/or technology, etc.); or
      1. (ii) use of the Hosted Service other than as described in the Documentation.
  1. Response Times.  In accordance with its then-current Support Services policies, Qualtik will provide a response by a qualified member of its staff to begin to diagnose and to correct issues with the Hosted Service based on the following severity levels:
Severity Level Definition Response Times
1

(Critical)

A Critical Severity issue has a critical business impact on use of the Hosted Service that impacts all users, including system unavailability and data integrity issues, with no workaround available. Within 4 business hours following notification by Client.
2

(Major)

A Major Severity issue has some business impact on use of the Hosted Service that impacts a majority of users, including loss of functionality and/or significantly degraded performance, with no workaround available. Within 6 business hours following notification by Client.
3

(Minor)

A Minor Severity issue includes a Hosted Service issue that affects functionality or impacts performance, with a workaround possible, but not sustainable. Within one business day following notification by Client.
4 (Enhancement) An Enhancement issue includes an inquiry or request with respect to desired Hosted Service functionality, Client application capability, implementation assistance or other Hosted Service issue that impacts a small number of users, with an acceptable workaround available. Within 3 business days following notification by Client.

 

  1. Issue Resolution and Escalation.  Qualtik shall use commercially reasonable efforts to resolve Qualtik Technology issues.  In the event that a Critical Severity incident is not tracking toward resolution within the timeframes below, Client may, upon request, escalate the issue within Qualtik’s management structure as follows:
Priority Resolution  Time
Level 1:  Technical Support Manager 6 business hours after incident creation
Level 2:  VP 8 business hours after incident creation