Master Services Agreement (SAAS)

Last Updated: January 18, 2024

This Master Services Agreement (“Agreement”) is between Valid8 Financial, Inc., a corporation (“Valid8”) and the party accepting this Agreement (“Customer”) and governs Customer’s access to and use of the Platform and Valid8’s provision of the Services. This Agreement is effective as of the date of Customer’s acceptance of this Agreement (the “Effective Date”). CUSTOMER ACCEPTS THIS AGREEMENT BY: (1) CLICKING A BOX INDICATING ACCEPTANCE; (2) ACCEPTING AN ORDER (AS DEFINED BELOW) THAT REFERENCES THIS AGREEMENT; (3) SUBMITTING PAYMENT INFORMATION; OR (4) OTHERWISE ACCESSING THE PLATFORM. IF CUSTOMER REGISTERS FOR A FREE TRIAL, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL GOVERN THAT FREE TRIAL.

ANY INDIVIDUAL AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

THE SERVICES AND CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM ARE EXPRESSLY CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THIS AGREEMENT, AND CUSTOMER MAY ONLY ACCESS AND USE THE PLATFORM, AND VALID8 WILL ONLY PROVIDE THE SERVICES, UPON THE TERMS AND CONDITIONS HEREIN. NOTWITHSTANDING THE FOREGOING, IF THE PARTIES HAVE OTHERWISE AGREED TO A SEPARATE WRITTEN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF EACH PARTY GOVERNING THE SERVICES AND CUSTOMER’S ACCESS TO AND USE OF THE PLATFORM (THE “SERVICES AGREEMENT”), SUCH SERVICES AGREEMENT APPLIES AND THIS AGREEMENT WILL BE OF NO FORCE OR EFFECT, EXCEPT WITH RESPECT TO SECTION 3.5, WHICH WILL ALWAYS APPLY WITH RESPECT TO FREE SERVICES.

1. DEFINITIONS.

1.1  “Affiliate” means, with respect to a party, any other entity that directly or indirectly controls, is controlled by or is under common control with such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such entity through the ownership of 50% or more of the outstanding voting securities (but only for as long as such entity meets these requirements). 

1.2  “Content” means content, data, and information that is owned by Valid8 or any of its licensors that is provided or made available by Valid8 through use of the Platform or as part of or in connection with Valid8’s provision of Services. Content does not include Customer Data.

1.3  “Customer Data” means the electronic data and information input into the Platform by or on behalf of Customer. Customer Data does not include Usage Data or Aggregated Data. 

1.4  “Documentation” means any user materials, instructions, and specifications made available by Valid8 to Customer for the Services.

1.5  “Free Services” means any Services that are offered to Customer by Valid8 without charge, on an internal pilot, evaluation, or testing basis only.

1.6  “Order” means any written order setting forth the terms and conditions relating to the Services agreed to by the parties (including, but not limited to, Customer’s selection of Platform access made by Customer through the Platform). Each Order is incorporated by reference into this Agreement.

1.7  “Platform” means Valid8’s proprietary platform utilized by Valid8 to provide the Software to Customer under this Agreement. The Platform does not include Customer’s connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Customer and its Users to connect to and obtain access to the Platform or to utilize the Services.

1.8  “Services” means, collectively, access to the Platform, Support Services, and the other services made available on, by, or through the Platform by Valid8 under this Agreement.

1.9  “Software” means Valid8’s proprietary software as a service offering as set forth in the applicable Order and made available through remote access by Valid8 to Customer and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.

1.10  “Support Services” means Valid8’s standard technical support and Software maintenance, as described in Exhibit B.

1.11  “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Services that does not identify Customer or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform.

1.12  “Users” means Customer’s employees, independent contractors, and other individuals who are authorized by Customer to use the Services or Free Services on behalf of Customer.

2. SERVICES.

2.1  Provision of Services. Subject to Customer’s compliance with the terms of this Agreement, Valid8 shall provide the Services to Customer and its Users in accordance with this Agreement, including the Service Level Terms in Exhibit A and Support Services Terms in Exhibit B. As part of the registration process, Customer will identify an administrative username and password for Customer’s Valid8 account. Valid8 reserves the right to refuse registration of or cancel passwords it deems inappropriate.

2.2  Cooperation. Customer shall supply to Valid8 the Customer Data along with access and personnel resources that Valid8 reasonably requests in order for Valid8 to provide the Services.

2.3  Resources. Customer is solely responsible for, at its own expense, acquiring, installing, and maintaining all connectivity equipment, internet and network connections, hardware, software, and other equipment as may be necessary for its Users to connect to and access the Platform.

2.4  Application Programming Interfaces. Valid8 may make certain application programming interfaces and software development kits that interoperate with the Platform (collectively, the “APIs”) available to Customer and its Users. Customer acknowledges that the APIs they are made available as a convenience only and, notwithstanding anything to the contrary in this Agreement, are not subject to any of the warranties, service commitments, or other obligations with respect to Platform under this Agreement. Access to and use of any API is at Customer’s own risk. Valid8 may modify, disable, or restrict access to any APIs at any time without notice. Valid8 is not liable for the APIs. 

3. GRANT OF RIGHTS. 

3.1  Access Rights; Customer’s Use of the Platform. Subject to the terms and conditions of this Agreement, Valid8 hereby grants to Customer, during the Term (as defined below), a non-exclusive, non-transferable (except as permitted by Section 11.3), non-sublicensable right to access and use the Platform for Customer’s and its Affiliates’ internal business purposes in accordance with the Documentation and the terms and conditions of this Agreement. Valid8 and its licensors reserve all rights in and to the Platform and the Services not expressly granted to Customer under this Agreement.

3.2  Restrictions on Use. Customer shall not, and shall ensure that its Users do not: (a) reproduce, display, download, modify, create derivative works of or distribute the Platform, or attempt to reverse engineer, decompile, disassemble or access the source code for the Platform or any component thereof; (b) use the Platform, or any component thereof, in the operation of a service bureau to support or process any content, data, or information of any party other than Customer or Customer Affiliates; (c) permit any party, other than the then-currently authorized Users for whom Customer has paid to applicable Fees to independently access the Platform; (d) use the Platform in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party, or that violates any applicable law; (e) use the Platform to store or transmit any code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses; (f) perform or attempt to perform any actions that would interfere with the proper working of the Platform or prevent access to or use of the Platform by Valid8’s other customers; (g) access or use the Platform to develop or sell a competing product or service or otherwise use the Platform for purposes that are competitive with Valid8; (h) access or use the Platform in any manner designed to circumvent the unique identity requirements for Users; or (i) access or use the Platform in any manner that superficially reduces the number of Users in order to circumvent the payment of Fees, including, but not limited to, sharing User accounts.

3.3  Users. Under the rights granted to Customer under this Agreement, Customer may permit its and its Affiliates’ independent contractors and employees to become Users in order to access and use the Platform in accordance with this Agreement and consistent with the relevant access rights granted by Customer; provided that Customer will be liable for the acts and omissions of all Customer Affiliates and Users to the extent any of such acts or omissions, if performed by Customer, would constitute a breach of, or otherwise give rise to liability to Customer under, this Agreement. Customer shall not, and shall not permit any User to, use the Platform, Software or Documentation except as expressly permitted under this Agreement. Customer is responsible for Users’ compliance with this Agreement. Users who are designated by Customer to have administrative rights to Customer’s account for the Services are responsible for the creation of new User accounts. Customer may add additional Users via the Platform at any point during the applicable Order Term on the condition that the Customer pays the applicable Fees (as defined below) for such Users. Customer shall take, and shall ensure that its Users take, commercially reasonable efforts to maintain the confidentiality of all User log-in account credentials (“User IDs”) and shall immediately notify Valid8 of any unauthorized use of User IDs or any other breach of security relating to the Platform known to Customer. Customer acknowledges that certain tiers of Users will have different access and use rights to the Platform consistent with the access rights described in the Documentation. User IDs are specific to particular individuals and are not assignable or transferable. Customer is not eligible for a refund or reduction in Fees for unused User IDs or User IDs that are not used for the entirety of the then current Order Term. Valid8 may (in its sole discretion and upon notice to Customer) change or disable any of the User IDs used in connection with the Platform where Valid8 reasonably suspects Customer transferred or assigned User IDs in violation of this Agreement, or there has been an attempted or actual security breach.

3.4  Prohibited Data. Notwithstanding anything to the contrary in this Agreement, Customer shall not, and shall take commercially reasonable efforts to ensure that its Users do not, upload to the Platform or otherwise submit or make accessible to Valid8 any financial account or government issued identifiers (e.g., social security numbers, credit card information, or bank information), protected health information, or other types of sensitive data that is subject to specific or elevated data protection requirements (other than personal data) (collectively, “Prohibited Data”). Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (i) the Software and Platform are not intended for the management or protection of Prohibited Data and may not provide adequate or legally required security for Prohibited Data; and (ii) Valid8 will have no liability for any failure to provide protections set forth in any laws, rules, regulations, or standards applicable to such Prohibited Data or to otherwise protect the Prohibited Data. If Customer or any Users upload any Prohibited Data to the Platform in violation of this Section 3.4, Valid8 may, without limiting any of its other rights and remedies, delete such Prohibited Data.‍

3.5  Free Services. Valid8 may make Free Services available to Customer and its Users. If Customer is accessing and using the Free Services, this Section 3.5 applies with respect to the Free Services and takes precedence over any inconsistent or conflicting terms.

1. Subject to the terms and conditions of this Agreement, Valid8 grants to Customer, during the Free Services Period (as defined below), a revocable, non-exclusive, non-transferable (except as otherwise provided in Section 12.3), non-sublicensable right to access and use the Free Services solely for Customer’s internal business purpose of evaluating the Services to determine whether to purchase a full right to access and use the Services and subject to any limitations specified by Valid8. Customer may elect to purchase a full right to access and use the Services by notifying Valid8 prior to the expiration of the Free Services Period and paying the applicable Fees (as defined below) for full access to and use of the Platform in accordance with this Agreement. “Free Services Period” means the period beginning when Customer first registers for the Free Services until the earlier of: (i) the date specified in the applicable Order for the end of the Free Services Period; (ii) the start date for any purchased Services order by Customer in accordance with this Agreement; and (iii) either party provides the other with written notice of termination of the Free Services Period, which either party may provide at any time in its sole discretion. During the Free Services Period, Valid8 may discontinue, suspend, or remove access to the Free Services at any time in Valid8’s sole discretion.
2. CUSTOMER ACKNOWLEDGES THAT THE FREE SERVICES MAY NOT INCLUDE OR ALLOW ACCESS TO ALL FEATURES AND FUNCTIONALITY AVAILABLE TO PAYING CUSTOMERS. CUSTOMER’S USE OF THE FREE SERVICES IS ENTIRELY AT CUSTOMER’S OWN RISK. VALID8 IS NOT REQUIRED TO CORRECT ANY BUGS, DEFECTS, OR ERRORS IN THE FREE SERVICES. NOTWITHSTANDING SECTIONS 7.1 AND 8.1 AND THE CAP ON DAMAGES IN SECTION 9, THE FREE SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTIES OF ANY KIND, AND VALID8 WILL HAVE NO SUPPORT OBLIGATIONS, WARRANTY, INDEMNIFICATION OR DEFENSE OBLIGATIONS, OR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE, IN NO EVENT WILL VALID8’S LIABILITY WITH RESPECT TO THE FREE SERVICES EXCEED $100. EXCEPT AS ALTERED IN THIS SECTION 3.5, ALL OTHER TERMS OF THIS AGREEMENT APPLY AND GOVERN CUSTOMER’S AND ITS USERS’ ACCESS TO AND USE OF, AND VALID8’S PROVISION OF, THE FREE SERVICES.

4. FEES AND PAYMENT TERMS. 

4.1  Price. Customer will pay Valid8 the then applicable fees described in the mutually agreed upon Order in accordance with the terms therein (the “Order Pricing). If Customer’s use of the Services: (a) exceeds any applicable usage limits set forth on the Order; or (b) otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Valid8 reserves the right to change the Order Pricing or applicable charges and to institute new charges and fees at the end of the Initial Term or then-current Renewal Term (each as defined below), upon 30 days prior notice to Customer (which may be sent by email). If Customer believes that Valid8 has billed Customer incorrectly, Customer must contact Valid8 no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Valid8’s customer support department.

4.2.  Billing; Late Payments. Valid8 may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Valid8 30 days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Valid8’s net income.

5. TERM AND TERMINATION.

5.1  Term. This Agreement commences on the Effective Date and, unless terminated earlier in accordance with this Agreement, continues until all Orders have terminated (“Term”).

5.2  Order Term. The initial term of an Order begins on the date set forth in the Order and continues for the period set forth in the applicable Order (the “Initial Term”). If no Initial Term is set forth in an Order, then the Initial Term will be deemed to be one-year. Each Order will automatically renew for additional periods equal in length to the Initial Term (each, a “Renewal Term”), unless a party gives the other party written notice of its intent to not renew at least 30 days prior to the end of the Initial Term or the then-current Renewal Term. The Initial Term and Renewal Term for an Order are collectively referred to as the “Order Term.”

5.3  Termination for Cause. A party may terminate this Agreement or an Order upon notice if the other party breaches any material provision of this Agreement and (provided that such breach is capable of cure) does not cure such breach within 30 days after being provided with written notice of such breach.

5.4  Effects of Termination. Upon termination of this Agreement and all Orders: (a) all amounts owed to Valid8 under this Agreement before such termination will be due and payable in accordance with Section 4; (b) Customer’s rights granted in this Agreement will immediately cease; (c) Customer shall promptly discontinue all access and use of the Platform and return or erase, all copies of the Documentation in Customer’s possession or control; and (d) Valid8 shall promptly return or erase all Customer Data, except that Valid8 may retain Customer Data in Valid8’s archived backup files. Sections 4, 5.4, 6, 7.3, 8, 9, 10, and 11 survive expiration or termination of this Agreement.

5.5  Suspension. Notwithstanding anything to the contrary in this Agreement, Valid8 may suspend Customer’s access to the Platform if Valid8 determines that: (a) there is an attack on the Platform; (b) Customer’s or any of its Users’ use of the Platform poses a reasonable risk of harm or liability to Valid8 and, if capable of being cured, Customer is not taking appropriate action to cure such risk; (c) Customer has breached Sections 3.2 or 10; (d) Customer’s or its Users’ use of the Platform violates applicable law; or (e) Customer has failed to pay any undisputed amounts owed under this Agreement when due and has failed to cure such late payment within 15 days after Valid8 has provided Customer with written notice of such late payment. Valid8 shall use commercially reasonable efforts to provide Customer with notice of such suspension. Valid8 may suspend Customer’s access to the Platform until the situation giving rise to the suspension has been remedied to Valid8’s reasonable satisfaction. Valid8’s suspension of Customer’s access to the Platform will not relieve Customer of its payment obligations under this Agreement. 

6. PROPRIETARY RIGHTS.

6.1  Customer Data. As between the parties, Customer owns all right, title, and interest in Customer Data, including all intellectual property rights therein.

6.2  Customer Data License Grant. Customer hereby grants to Valid8 and its authorized representatives and contractors, during the Term, a limited, non-exclusive, non-transferable (except as permitted by Section 11.3) license to use the Customer Data solely for the limited purpose of performing the Services for Customer and fulfilling its other obligations and exercising its rights under this Agreement.

6.3  The Services. All proprietary technology utilized by Valid8 to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of Valid8. Valid8 or its third-party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Platform, including without limitation the Software, APIs, Documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by Valid8 in performing under this Agreement. Any rights not expressly granted to Customer hereunder are reserved by Valid8.

6.4  Machine Learning Models; Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Valid8 may use or analyze Customer Data to train machine learning or artificial intelligence tools that are part of or utilized in connection with the Platform (collectively, “Machine Learning Models”) and/or create a de-identified or aggregated data set that does not identify Customer or its Users (collectively, “Aggregated Data”). Valid8 retains ownership of all right, title, and interest in and to Machine Learning Models and Aggregated Data. Valid8 may use the Machine Learning Models and/or  Aggregated Data for any lawful purpose, including, but not limited to, to improve, market, and provide the Services.

6.5  Usage Data. Valid8 retains ownership of all right, title, and interest in and to the Usage Data. Valid8 may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve Valid8’s services, systems, and algorithms.

7. WARRANTY; DISCLAIMERS.

7.1  Access to the Platform. Valid8 warrants that the Platform will perform materially in accordance with the Documentation and this Agreement. Valid8 does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies Valid8 of a reproducible error in the Platform that indicates a breach of the foregoing warranty (each, an “Error”) within 30 days after Customer experiences such Error, Valid8 shall, at its own expense and as its sole obligation and Customer’s exclusive remedy: (a) use commercially reasonable efforts to correct or provide a workaround for such Error; or (b) if Valid8 is unable to correct or provide a workaround for such Error within 60 days after receiving notice of such Error from Customer, Customer may terminate this Agreement upon notice to Valid8 and, Valid8 shall refund the amounts paid by Customer for access to the Platform on a pro rata basis for the period during which the Platform was not usable by Customer. The warranties set forth in this Section 7.1 do not apply to any APIs, Third Party Offerings, or cover any Error caused by: (i) Customer or its Users; (ii) use of the Platform in any manner or in any environment inconsistent with its intended purpose; (iii) Customer’s hardware or software if modified or repaired in any manner which materially adversely affects the operation or reliability of the Platform, or (iv) any equipment, software, or other material utilized by Customer in connection with the Platform contrary to the provider’s instructions. For the avoidance of doubt, an Error is distinct from unavailability of the Platform, which is subject to the terms of Exhibit A in lieu of this Section 7.1.

7.2  Right to Customer Data. Customer represents and warrants that it has the right to: (a) use the Customer Data as contemplated by this Agreement; and (b) grant Valid8 the license in Section 6.2.

7.3  Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

8. INDEMNIFICATION.

8.1  Claims Against Customer. Valid8 shall defend any claim, suit, or action against Customer brought by a third party to the extent based on an allegation that the Software infringes any intellectual property rights of such third party (a “Customer Claim”), and Valid8 shall indemnify and hold Customer harmless, from and against damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Losses”) that are specifically attributable to such Customer Claim or those costs and damages agreed to in a settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Valid8 in writing of such Customer Claim; (b) giving Valid8 sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Valid8’s request and expense, assisting in such defense. In the event that the use of the Platform is enjoined, Valid8 shall, at its option and at its own expense either: (i) procure for Customer the right to continue using the Platform; (ii) replace the Software with a non-infringing but functionally equivalent product; (iii) modify the Software so it becomes non-infringing; or (iv) terminate this Agreement and refund the amounts Customer paid for access to the Platform that relate to the period during which Customer was not able to use the Platform. Notwithstanding the foregoing, Valid8 will have no obligation under this Section 8.1 with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data that Valid8 did not supply or approve of if such infringement would have been avoided without the combination with such other products, equipment, software or data; (3) any modification of the Platform by any person other than Valid8 or its authorized agents or subcontractors; (4) any APIs; or (5) any Third-Party Offering. This Section 8.1 states Valid8’s entire liability and Customer’s sole and exclusive remedy for infringement claims or actions.

8.2  Claims Against Valid8. Customer shall defend, any claim, suit, or action against Valid8 brought by a third party to the extent that such claim, suit, or action is based upon Valid8’s use of any Customer Data in accordance with this Agreement or Customer’s use of any Customer Data (a “Valid8 Claim”) and Customer shall indemnify and hold Valid8 harmless, from and against Losses that are specifically attributable to such Valid8 Claim or those costs and damages agreed to in a settlement of such Valid8 Claim. The foregoing obligations are conditioned on Valid8: (a) promptly notifying Customer in writing of such Valid8 Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer will have no obligation under this Section 8.2 or otherwise with respect to any Valid8 Claim to the extent based upon Valid8’s use of the Customer Data in violation of this Agreement.

9. LIMITATIONS OF LIABILITY.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID OR OWED BY CUSTOMER TO VALID8 UNDER THIS AGREEMENT IN THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY OCCURRED. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 9 DO NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 8, TO LIABILITY ARISING FROM A PARTY’S BREACH OF SECTION 10, OR TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTION 3.2.

10. CONFIDENTIALITY.

10.1  Definitions. “Confidential Information” means all information disclosed by one party (“Discloser”) to the other party (“Recipient”) under this Agreement during the Term. Confidential Information includes information that is marked or identified as confidential and, if not marked or identified as confidential, information that should reasonably have been understood by Recipient to be proprietary and confidential to Discloser or to a third party. Valid8’s Confidential Information includes Software and Documentation. Customer’s Confidential Information includes Customer Data. 

10.2  Protection. Recipient shall not use any Confidential Information for any purpose not expressly permitted by this Agreement and shall not disclose Confidential Information to anyone other than Recipient’s employees and independent contractors who have a need to know such Confidential Information for purposes of this Agreement and who are subject to confidentiality obligations no less restrictive than Recipient’s obligations under this Section 10. Recipient will be liable to the Discloser for any of its employees’ and independent contractors’ acts or omissions, which, if performed by Recipient, would constitute a breach of this Section 10. Recipient shall protect Confidential Information from unauthorized use, access, and disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

10.3  Exceptions. Recipient shall have no confidentiality obligations under Section 10.2 above with respect to any information of Discloser that Recipient can document: (a) was already known to Recipient prior to Discloser’s disclosure; (b) is disclosed to Recipient by a third party who had the right to make such disclosure without violating any confidentiality agreement with or other obligation to the party who disclosed the information; (c) is, or through no fault of Recipient has become, generally available to the public; or (d) is independently developed by Recipient without access to or use of Confidential Information. Recipient may disclose Confidential Information if required to as part of a judicial process, government investigation, legal proceeding, or other similar process on the condition that, to the extent permitted by applicable law, Recipient gives prior written notice of such requirement to Discloser. Recipient shall take reasonable efforts to provide this notice in sufficient time to allow Discloser to seek an appropriate confidentiality agreement, protective order, or modification of any disclosure, and Recipient shall reasonably cooperate in such efforts at the expense of Discloser.

11. DATA PROTECTION.

‍Valid8 and Customer shall comply with the Data Processing Addendum located at https://www.valid8financial.com/data-processing-addendum (the “DPA”) with respect to the processing of any Personal Information (as defined in the DPA).

12. GENERAL.

12.1  Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party. 

12.2  Subcontractors. Valid8 may utilize subcontractors, subprocessors, and other third-party service providers (collectively, “Subcontractors”) in the performance of its obligations, provided that Valid8 will remain liable and responsible for the Subcontractors’ acts and omissions to the extent any of such acts or omissions, if performed by Valid8, would constitute a breach of, or otherwise give rise to liability to Valid8 under, this Agreement when they are performing for or on behalf of Valid8.

12.3  Assignment. Neither party may assign this Agreement or any of its rights under this Agreement to any third party without the other party’s prior written consent; except that a party may assign this Agreement without consent from the other party to (a) an Affiliate; or (b) any successor to its business or assets to which this Agreement relates, whether by merger, acquisition, or sale of all or substantially all of its assets, or otherwise. Any attempted assignment in violation of the foregoing will be void and of no force or effect. 

12.4  Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party’s reasonable control.

12.5  Notices. To be effective, notices under this Agreement must be delivered in writing by courier, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address for each party set forth below and will be effective upon receipt, except that e-mail may be used for routine communications and to obtain operational approvals and consents but may not be used for any other notices.

If to Valid8: Valid8, Inc.

Attention: Chief Executive Officer

1916 Pike Place Suite 12 #9

Seattle, WA 98101

If to Customer: The address that Valid8 has on file for the Customer.

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12.6  Customer Identification. Customer hereby grants to Valid8 a right to use Customer’s name and logo on Valid8’s website in order to identify Customer as a customer of Valid8. 

12.7  Governing Law; Venue. The internal laws of the State of Washington govern this Agreement, the Services, and any matters arising out of or related to either of the foregoing (whether in contract, tort, or otherwise). The parties hereby submit to the exclusive jurisdiction of, and waive any venue objections against, state or federal courts sitting in King County, Washington in any litigation arising out of or related to this Agreement, the Services, and any matters related to either of the foregoing (whether in contract, tort, or otherwise).

12.8  Remedies. Each party acknowledges that any actual or threatened breach of Sections 3.2 or 10 will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, the breaching party agrees to waive any bond that would otherwise be required. If any legal action is brought by a party to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other legal expenses, in addition to any other relief it may receive from the non-prevailing party.

12.9  Compliance with Laws. Each party shall comply with all laws, rules, and regulations, applicable to that party in connection with this Agreement.

12.10  Waivers. To be effective, any waivers must be in writing and signed by the party to be charged. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

12.11  Severability. If any provision of this Agreement is unenforceable, the other provisions of this Agreement will be unimpaired, and the unenforceable provision will be deemed modified so that it is enforceable to the maximum extent permitted by law (unless such modification is not permitted by law, in which case such provision will be disregarded).

12.12  Modification. Valid8 may modify this Agreement at any time, upon written notice to Customer. Any such modification will become effective with respect to the applicable Order upon the commencement of the Renewal Term for such Order following the date of such notice, except that, if Customer is using Free Services, Valid8 is not obligated to notify Customer of such modification and such modification will become effective upon Customer’s first access to or use of the Platform after “Last Updated” date at the top of this Agreement. If Customer does not agree to the modified Agreement, Customer may choose to not renew the then-current Initial Term or Renewal Term (as applicable) or, if using Free Services, not use the Free Services. Except as otherwise set forth in this Section, this Agreement may not otherwise be modified except by a written amendment signed by an authorized representative of each party.

12.13  Entire Agreement. This Agreement, including any Orders, constitutes the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party will be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order, the provisions of the Agreement will govern unless the Order specifically overrides this Agreement.

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EXHIBIT A:  SERVICE LEVEL TERMS

1. DATA EXTRACTION QUALITY

The system cross checks numbers and dates to ensure numeric accuracy.  Valid8 applies a combination of best in breed OCR and machine learning algorithms complimented with human quality assurance to provide best effort text transcription results. Text data like “Descriptions” cannot be checked for accuracy in the same manner as numbers and dates.  Documents contain a wide variety of image quality and resolution; higher quality images and higher dpi resolution generally provide more accurate text transcription results.

2. SOLUTION AVAILABILITY

The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Valid8’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Valid8's entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one hour, Valid8 will credit Customer 5% of Service fees for each period of 30 or more consecutive minutes of downtime, provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Valid8) recognizes that downtime is taking place and continues until the availability of the Services is restored. To receive downtime credit, Customer must notify Valid8 in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one week of Service Fees in any one calendar month in any event. Valid8 will only apply a credit to the month in which the incident occurred. Valid8’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of Valid8 to provide adequate service levels under this Agreement.

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EXHIBIT B:  SUPPORT SERVICES TERMS

Valid8 will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 7:00 am through 5:00 pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”).

Customer may initiate a help desk ticket during Support Hours by calling 425-448-2585 or any time by emailing support@valid8financial.com. Valid8 will use commercially reasonable efforts to respond to all help desk tickets within one (1) business day.

For any security incident deemed "High" per Valid8's Incident Response policy, a communication will be provided by Valid8 to any affected Customers within two (2) business days.