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Terms and Conditions  (v111617.1)

These General Terms and Conditions form a part of the Agreement between Customer (End-User) and Virtual Data Partners with respect to any Products and/or Services purchased by Customer. From time to time, Virtual Data Partners may update these General Terms and Conditions to comply with applicable law or to support its then current business practices. Customer agrees that Virtual Data Partners may communicate changes to Customer via email, Virtual Data Partners website, or by any other reasonable means and that Customer’s continued use of the Services after the date of such notification shall constitute Customer’s agreement to such changes (subject to Customer’s right to cancel the Services in accordance with Section 18 below).

1.  SERVICES

Virtual Data Partners grants to Customer a non-exclusive, non-transferable (except to permitted successors and assigns in accordance with Section 19 below), limited right and license to use the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property, solely for Customer’s own internal business purposes during the term of the Agreement, subject to Customer’s compliance with the terms and conditions of the Agreement, including payment of all applicable charges. Customer agrees to accept all modifications that Virtual Data Partners in its sole discretion may make to the Services and provide to Customer at no additional charge, including any updates, upgrades and fixes. Customer agrees it will not (i) license, sublicense, sell, resell, rent, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property in any way; (ii) modify or make derivative works based upon the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property; (iii) create internet links to the Products, Services or Solutions, frame or mirror any Virtual Data Partners content on any other server or wireless or internet-based device; (iv) reverse engineer the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property; or (v) access the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property in order to (a) build a competitive product or service; (b) build a product using similar ideas, features, functions or graphics; (c) monitor its availability, performance or functionality or for any other benchmarking or competitive purposes; or (d) copy any ideas, features, functions or graphics of the Services, Virtual Data Partners Technology or Virtual Data Partners Content.

Customer further agrees it will not use the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable law; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violates third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (v) attempt to gain unauthorized access to the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property or any related systems or networks.

Virtual Data Partners will give Customer access to and use of the Products and Services via a browser interface, FTP (file transfer protocol), or proprietary software installed locally on Customer’s hardware. Customer is responsible for any and all activities that occur through Customer’s user account(s) and shall abide by all applicable law in connection with use of the Services.

Customer shall: (i) keep all passwords and user ID’s confidential and promptly notify Virtual Data Partners after discovery of any unauthorized use of any password or user account or any other known or suspected breach of security and (ii) not knowingly impersonate another user of the Products, Services, and Solutions, or provide false information to gain access to or use the Products, Services, and Solutions. Virtual Data Partners may suspend or deactivate Products, Services, and Solutions as reasonably required to investigate or stop illegal, fraudulent or suspicious activities, provided that Virtual Data Partners will give Customer notice of any such suspension or deactivation as soon as practicable if such notice is permitted by law enforcement or regulatory agencies and reinstate suspended Services promptly when the reasons for the suspension are cured.

Except for the limited license granted to Customer in this Section, Virtual Data Partners and its third-party licensors retain all right, title and interest, including all intellectual property rights, relating to or embodied in the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by Customer or any other party. The Agreement is not a sale of and does not convey to Customer any rights of ownership in or related to the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property. Virtual Data Partners name, logos and the product names associated with the Products, Services, and Solutions, are trademarks of Virtual Data Partners or third parties, and no right or license is granted for Customer to use them.

Customer agrees that all aggregated user data available from the Products, Services, and Solutions, provided by Virtual Data Partners, as well as, Virtual Data Partners technology, content, and intellectual property that is not specific to and does not identify Customer is owned exclusively by Virtual Data Partners.

2.  CUSTOMER’S OBLIGATIONS

Customer agrees to provide and maintain at its sole expense all Customer Systems and is responsible for upgrading and configuring Customer Systems to be and remain compatible with the Services and Virtual Data Partners Technology. Virtual Data Partners shall not be liable under the Agreement with respect to the Customer Systems and Materials, including the failure by Customer to timely provide the Customer Systems and Materials. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property rights to use, and the provision and maintenance of, all Customer Systems and Materials in connection with the Services. The Services are designed to facilitate the processing and transmission of business-to-business information. To the extent that Customer includes personal or consumer information within Customer Materials, Customer, and not Virtual Data Partners, shall be solely responsible for such information and compliance with all applicable law relating thereto, including any notices or remedies that may be required to be provided to any party, and Customer shall indemnify and hold Virtual Data Partners harmless against any liability that may arise in connection with such information. Notwithstanding the foregoing, Virtual Data Partners remains responsible for its confidentiality obligations under Section 12 below.

3.  CUSTOMER’S AUTHORIZATIONS

Customer authorizes Virtual Data Partners: (i) to use and disclose Customer Materials to the extent necessary to provide the Services; (ii) as may be applicable for any given Service, to act on behalf of Customer to facilitate electronic document receipt when available from Customer-selected, electronic submission-ready vendors, including the facilitation of email and data only submissions;

4. FEES AND PAYMENT

The fees for the Services are set forth on the approved statement of work or any/all applicable quotations. Customer agrees that invoices for the fees and any other amounts due and payable to Virtual Data Partners under the Agreement may be sent by check or transmitted electronically. Customer will give Virtual Data Partners complete and accurate billing and contact information, including Customer’s legal name, street address, email address and the name(s) and telephone number(s) of authorized billing contact(s) and administrator(s). Customer agrees to update this information as soon as practicable following any changes.

Any amounts due to Virtual Data Partners are payable via check or electronic funds (ACH, EFT or wire) and due within fifteen (15) days from the invoice date. Any late payment not disputed by Customer in good faith in writing by the applicable due date shall bear interest at the rate of 2.5% per month (prorated for partial periods), calculated daily, until payment is received by Virtual Data Partners. For the avoidance of doubt, Virtual Data Partners shall have no obligations under this Agreement until it has received cleared funds to cover the fees (for that period) of the Virtual Data Partners software support relating to the relevant Virtual Data Partners service and/or product. Customer shall reimburse Virtual Data Partners for any out-of-pocket costs incurred to collect past due amounts (including reasonable legal fees). Failure to timely collect any invoice amounts shall not constitute a waiver by Virtual Data Partners to collect or receive such amounts. Virtual Data Partners reserves the right to refuse to provide Services while any accrued and undisputed amounts remain unpaid. Notwithstanding any such suspension, Customer shall remain liable to Virtual Data Partners for all amounts payable under the Agreement.

If Customer is billed for any portion of the Services by an authorized reseller of Virtual Data Partners, Customer and Virtual Data Partners agree that the billing terms between Customer and such authorized reseller will govern Customer’s payment of the Service fees and related charges. Customer further agrees that if such reseller notifies Virtual Data Partners that Customer is in default of its payment obligations and instructs Virtual Data Partners to suspend the Services for non-payment, Virtual Data Partners shall have the right to suspend the Services without any obligation to verify such default has occurred and will make the Services available again when notice is received from the reseller that Customer has paid all past due amounts.

Fees and charges for the Services are exclusive of all taxes, levies, duties or other assessments by governmental authorities (collectively, “Taxes”), and Customer shall be responsible for payment of all Taxes in connection with the Services or arising from the Agreement, excluding only amounts based on Virtual Data Partners income. Virtual Data Partners shall add to each invoice, and Customer shall pay to Virtual Data Partners, any applicable Taxes. If any taxing authority determines at any time that Virtual Data Partners has incorrectly determined or not collected any Tax liability for which Customer is responsible, Virtual Data Partners, as applicable, shall have the right to invoice Customer for Taxes determined by such taxing authority to be due and owing or shall refund to Customer Taxes previously collected in error once such amounts have been refunded to Virtual Data Partners by the taxing authority.

5.  THIRD PARTY INTERACTIONS

Virtual Data Partners shall have the right to use third parties, including independent contractors and the employees of Virtual Data Partners Affiliates, in the performance of its obligations under the Agreement at no additional expense to Customer. Customer agrees that no employees of Virtual Data Partners or its contractors shall be required to individually sign any agreement with Customer in order to provide Services, including access, security, facilities or confidentiality agreements. Notwithstanding the foregoing, the Agreement is for the sole benefit of Virtual Data Partners and Customer and their respective successors and permitted assigns; and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.

6.  TERMINATION

The Agreement may be terminated prior to expiration of the term by either party upon the failure of the other party to perform any material obligation that is not cured within thirty (30) days after receipt of written notice and demand for cure from the affected party or within such longer period of time that may be agreed upon by the parties. Except as may be expressly agreed to otherwise by the parties, termination of the Agreement by a party shall be in addition to, and not in lieu of, any other remedies available to such party.

7.  RENEWAL OF AGREEMENT

This agreement will be renewed on the day following the last day of the initial signed contract.

8.  VARIATION AND CUSTOM DEVELOPMENT AMP

Virtual Data Partners has the right to increase their usage, licensing, service, support, and/or processing fees up to 5% per year without notice, unless noted otherwise within the pricing proposal and/or approved statement of work. Custom development (stand-alone or add-ons to current platforms) engagement items are subject to a 20% annual support and maintenance (AMP) fee starting year two, or otherwise notated in the project scope of work. Additionally, Virtual Data Partners may vary their non-financial terms of this Agreement relating to Support on one month’s written notice by email to the email address given on registration. Whenever such notice is given Customer shall have the right to terminate this Agreement if Customer has notified Virtual Data Partners in writing of their intention to terminate before the end of the notice period. Except as set out above, no amendment or variation shall take effect unless it is in writing and signed by an authorized representative of each of the parties. Without prejudice to any other rights, Virtual Data Partners may terminate this Agreement if Customer fails to comply with the terms and conditions of this Agreement or if Customer suffers any form of insolvency.

9.  INTELLECTUAL PROPERTY RIGHTS

All intellectual property rights and any analogous rights of any nature created prior, during, or after the provision of the Agreement are the property of Virtual Data Partners. Nothing in this Agreement shall prevent or restrict Virtual Data Partners from using and exploiting any intellectual property rights, techniques, tools, ideas or know-how created, used or developed during the provision of the support for the Agreement for any purpose whatsoever.

Customer will keep Virtual Data Partners fully indemnified against all reasonable costs, claims, expenses, judgments and liabilities suffered by Virtual Data Partners that arises through infringement of third party intellectual property rights in any software or other material Customer has combined with the Virtual Data Partners’ services, products, and/or solutions when Virtual Data Partners is performing its obligations in accordance with this Agreement.

10.  CHOICE OF LAW AND JURISDICTION

This agreement shall be governed by and construed in accordance with American law and the parties hereby submit to the exclusive jurisdiction of the laws in the United States, specifically in the State of Delaware.

11.  DATA PROTECTION

Both parties undertake to comply with provisions of the Data Protection Act 1998 (“the Act”) in relation to the disclosure, use and storage of any personal information as defined in the Act. Customer name, phone, fax number, address and email address will be put into the Virtual Data Partners database and processed by us in servicing our relationship with Customer. By submitting Customer data to us, Customer agrees to our storage and use, and will not disclose your data. Unless Customer notifies us otherwise, Customer agrees that we may use and analyze their data to give Customer information about our other services, which may be of interest to them.

12.  CONFIDENTIALITY

Each party may disclose (the “Discloser”) confidential and proprietary information (“Confidential Information”) to the other party (the “Recipient”) in connection with the performance of the Agreement. The Recipient shall hold such Confidential Information in confidence and shall not disclose it except to its employees or agents who have a need to know such Confidential Information in order to perform the Recipient’s obligations under the Agreement. Customer’s Confidential Information shall include all information relating to the trade secrets or business affairs of Customer, including its financial information and its computing environment. The Confidential Information of Virtual Data Partners shall include the Services and related fee information, Virtual Data Partners Technology, Virtual Data Partners Content and other information relating to the trade secrets or business affairs of Virtual Data Partners, its suppliers and agents.

Recipient shall protect and safeguard the Confidential Information of the Discloser and agrees not to, in whole or in part, sell, lease, license, assign, transfer or disclose such Confidential Information to any third party and shall not copy, reproduce or distribute the Confidential Information, except as contemplated by the Agreement. Recipient shall take reasonable precautions, but no less than those precautions used to protect its own Confidential Information, to prevent the theft, disclosure and unauthorized copying, reproduction or distribution of the Discloser’s Confidential Information. Recipient shall promptly notify Discloser if Recipient has a reasonable belief that Discloser’s Confidential Information has been disclosed other than as permitted by the Agreement. The parties acknowledge and agree that Virtual Data Partners may disclose Confidential Information on a confidential basis to a third party in connection with any work that the third party is performing on behalf of Virtual Data Partners.

Neither party shall have any rights in the other party’s Confidential Information and shall return or destroy all such Confidential Information upon the termination or expiration of the Agreement or upon receipt of written notice from the Discloser. Notwithstanding the foregoing, the parties agree that the Recipient shall not be required to return to the Discloser or destroy those copies of Confidential Information residing on Recipient’s backup, disaster recovery, or business continuity systems and that the obligations hereunder with respect to such Confidential Information shall survive until it is destroyed from such systems by the Recipient and for such additional period specified in this Section.

Recipient acknowledges that Discloser shall have the right to take all reasonable steps to protect its Confidential Information including, but not limited to, injunctive relief and any other remedies as may be available at law or in equity in the event the Recipient does not fulfill its obligations under this Section.

Confidential Information shall not include information that: (a) was already in the lawful possession of the Recipient prior to receipt thereof, directly or indirectly, from the Discloser; (b) becomes available to Recipient on a non- confidential basis from a source other than Discloser that is not under an obligation to keep such information confidential; (c) is generally available to the public other than as a result of a breach of the Agreement by Recipient or its representative(s); or (d) is independently developed by or for Recipient without reference to the Confidential Information. In addition, a party shall not be considered to have breached its obligations by disclosing Confidential Information of the other party as required to satisfy any request of a competent governmental body, provided that promptly upon receiving any such request, and to the extent that it may legally do so, such party advises the other party of the request prior to making such disclosure so that the other party may object to such disclosure, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information.

The terms and conditions of this Section shall survive termination or expiration of the Agreement for a period of three (3) years; provided, however, with respect to any information provided by the Discloser concerning the infrastructure or security of its computing network, these terms and conditions shall continue until such information is no longer protected as Confidential Information by the Discloser.

13.  INDEMNIFICATION

Customer shall defend, indemnify and hold harmless Virtual Data Partners, its Affiliates and licensors and their respective directors, officers, employees and agents against any and all third-party claims, damages, losses, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of or in connection with

(i) any claim alleging that use of the Customer Systems and Materials in connection with the Services infringes the rights of, or has caused harm to, a third party or (ii) a breach of Customer’s representations, warranties or obligations under the Agreement.

Virtual Data Partners shall defend, indemnify and hold harmless Customer, its Affiliates and their respective directors, officers, employees and agents against any and all third-party claims, damages, losses, liabilities, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of any claim made by any third party that the Services as supplied by Virtual Data Partners infringe a United States copyright or a United States patent. If such a claim is made or is likely to be made, Virtual Data Partners will, at its own expense and sole discretion, exercise one or more of the following remedies: (a) obtain for Customer the right to continue to use the Services consistent with the Agreement; (b) modify the Services so they are non-infringing and in compliance with the Agreement; or (c) terminate the infringing portion of the Services without liability for such termination other than the ongoing indemnity obligation hereunder. Virtual Data Partners will have no indemnity obligation or other liability hereunder arising from: (1) Customer’s negligence, breach of the Agreement or alteration of the Services as provided by Virtual Data Partners; (2) the Customer Systems and Materials or information, designs, specifications, directions, instructions, software, data or materials not furnished by Virtual Data Partners; or (3) the combination of the Services with Customer Systems and Materials or hardware, software, materials, products or services not provided by Virtual Data Partners. The foregoing states the entire obligation of Virtual Data Partners and its licensors, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.

A party claiming indemnification under this Section (the “Indemnified Party”) shall give the other party prompt written notice of such claim for indemnification, reasonable assistance in the defense of the claim and exclusive authority to defend, compromise or settle the claim, so long as no such settlement or compromise places any obligations on, or waives any rights of, the Indemnified Party without its prior written consent.

14.  WARRANTY AND DISCLAIMER

Virtual Data Partners warrants to Customer that the Services will conform in all material respects with the terms of the Agreement and any product documentation published by Virtual Data Partners. If Customer notifies Virtual Data Partners of a breach of warranty during the Agreement term, upon confirmation by Virtual Data Partners, Virtual Data Partners will use commercially reasonable efforts to correct the defect, which may include providing a work-around, patch or replacement technology of functional equivalence. Customer agrees to use reasonable efforts to assist Virtual Data Partners in diagnosing, replicating and correcting defects or other issues concerning the Services, which may include providing information and remote access to Customer Systems, but only to the extent reasonably required to resolve the issue. The foregoing remedy is sole and exclusive for any breach of warranty claim. Virtual Data Partners and its licensors make no other representation, warranty, or guarantee as to the suitability, quality, reliability, timeliness, truth, availability, accuracy or completeness of the Services or any content.

EXCEPT FOR THE EXPRESS WARRANTY GIVEN IN THIS SECTION, THE SERVICES AND ALL VIRTUAL DATA PARTNERS CONTENT ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

Service errors, defects, failures or other non-compliance caused, in whole or in part, by (a) Customer’s failure to comply with the Agreement; (b) the acts or omissions of any person other than Virtual Data Partners or its agents;

(c) Customer’s modification of the Services or any part thereof; (d) Customer’s use of the Services or any part thereof in combination with any Customer Systems and Materials or systems or materials furnished by a third party; or (e) any other cause beyond Virtual Data Partners reasonable control (e.g., computer viruses, hackers, failure of electric power, internet downtime) are excluded from Virtual Data Partners warranty.

15.  INTERNET AND OTHER DELAYS AND/OR FAILURES

Neither party shall be liable for any delay or failure to perform (excluding, however, Customer’s obligations to pay for Services provided) due to causes beyond its reasonable control, including without limitation, acts of God; fires; explosions; floods; stability or availability of the internet; telecommunication failures; war; technology attacks; epidemics; acts of terrorism; riots; embargoes; quarantines; viruses; strikes; lockouts; disputes with workmen or other labor disturbances; total or partial failure of transportation, utilities, delivery facilities or supplies; acts or requests of any governmental authority; or any other cause beyond its reasonable control whether or not similar to the foregoing.

16.  LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS BE LIABLE FOR ANY PUNITIVE, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR EXAMPLE, LOSS OF GOODWILL, DATA, REVENUE, PROFITS, SAVINGS, USE OR ECONOMIC ADVANTAGE) ARISING OUT OF, OR RELATING TO, THE SERVICES OR THE AGREEMENT, EVEN IF A PARTY OR ITS LICENSORS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE.

THE CUMULATIVE LIABILITY OF VIRTUAL DATA PARTNERS UNDER THE AGREEMENT IN CONNECTION WITH ANY GIVEN SERVICE, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED FROM CUSTOMER FOR SUCH SERVICE WITHIN THE MOST RECENT SIX-MONTH PERIOD UNDER THE AGREEMENT.

NO ACTION ARISING OUT OF THE AGREEMENT MAY BE BROUGHT MORE THAN ONE (6) MONTHS AFTER THE CAUSE OF ACTION HAS ACCRUED.

THE DISCLAIMERS AND LIMITATIONS OF LIABILITY IN THE AGREEMENT SHALL SURVIVE EXPIRATION

OR TERMINATION OF THE AGREEMENT, WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE AND FORM AN ESSENTIAL PART OF THE CONSIDERATION FOR THE PARTIES’ PERFORMANCE.

You agree that all access and use of websites, services, and its contents made available by Virtual Data Partners and its affiliates is at your own risk. By using these websites and services, you acknowledge that we specifically disclaim any liability (whether based in contract, tort, negligence, strict liability or otherwise) for any direct, indirect, incidental, common law, statutory, regulatory, consequential, compensatory, punitive, or special damages arising out of or in any way connected with your access to or use of the websites and services (even if we have been advised of the possibility of such damages) including, but not limited to, any liability associated with any viruses which may infect your computer equipment.

For purposes of this section, “Virtual Data Partners” includes its employees, sub-contractors and suppliers, partners, and affiliates.

17.  NOTICE

Any notice required or permitted to be given concerning a party’s obligations or rights under the Agreement shall be sent in writing by confirmed facsimile, first class mail (postage prepaid with return receipt requested) or by nationally recognized overnight delivery service and shall be deemed given upon receipt.  Virtual Data Partners shall use Customer’s then current contact information on record in Virtual Data Partners account information for all notices. Customer shall send notices to Virtual Data Partners at the following address or fax number: Virtual Data Partners, Inc., 10115 E Bell Road, Suite #107 PMB 422, Scottsdale, AZ 85260, Fax number: (360) 251-2150

18.  MODIFICATIONS

Virtual Data Partners reserves the right to modify its policies relating to the Services and these General Terms and Conditions at any time. Such changes may be communicated to Customer by posting them on Virtual Data Partners website or the web portal for the Services or by sending an email to Customer or by any other reasonable means of communication. Customer’s continued use of the Services after implementation of such changes constitutes Customer’s acceptance thereof.  If Customer notifies Virtual Data Partners in writing within 30 days following Virtual Data Partners implementation of such changes that they materially adversely affect Customer and Virtual Data Partners does not agree to a modification to mitigate such adverse effect to Customer, then Customer shall have the right to terminate the Agreement without penalty upon 30 days prior written notice provided that Customer has paid all amounts due and owing as of the termination date.

19.  ASSIGNMENT AND TRANSFERABILITY

Neither party may assign or transfer the Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may assign the Agreement without the prior written consent of the other party: (i) to any Affiliate of the assigning party, provided that the assigning party remains the guarantor of all the assignee’s obligations hereunder; (ii) in connection with the sale of all or substantially all of the assigning party’s assets or equity interests or (iii) to any lender where such assignment serves solely as collateral for security purposes. All of the terms of the Agreement shall be binding upon and inure to the benefit of the parties’ permitted successors and assigns.

20.  SUPPORT

Virtual Data Partners will provide a web-based support ticketing system, located at https://virdp.zendesk.com, and will follow-up by telephone, email, and/or on-site support to provide the level of required technical support needed to resolve the issue related to the following inquiry:

  • Installation of any Virtual Data Partners software products;
  • Basic functionality of the Virtual Data Partners software solution(s); and
  • Configuration of the Virtual Data Partners software application settings

Customer acknowledges that due to the multiple hardware and software environments into which our services, products, and/or software solution(s) may be installed and/or used on, Virtual Data Partners cannot guarantee that every inquiry or connectivity issue between our services, third-party services, service providers, and the hardware or software in question will be resolved. Subject to and in accordance with the terms of this Agreement, Virtual Data Partners sole support obligation is to provide reasonable and good faith efforts to resolve your inquiries arising from your use of the Virtual Data Partners services, products and software solution(s).

Support calls may be recorded to maintain quality of service and for training purpose.

21.  SUPPORT AVAILABILITY / SLS

Virtual Data Partners will provide technical support for, including but not limited to, DocXtraction, DocXchange, and DocXAP, on weekdays between the hours of 8:00am and 5:00pm (Mountain Standard Time) from the date of the purchase, with response time based on the severity of the issue as defined in the “Support” section listed above. We strive to provide 99% scheduled uptime of all services. Any downtime will be scheduled with at least 48 hour notice to our customers or downtime outside of scheduled uptime will not be considered downtime.

For our DocXtraction and DocXAP services, Virtual Data Partners will deliver all documents received through the solution back to our customers with an average of 99% data accuracy across all alphanumeric characters extracted, and an average response time of twenty-four (24) hours, unless another response time is agreed to within an approved Scope of Work. The average response time is measured for all documents received within any calendar quarter, and is defined as (x) the sum of all elapsed time between document receipt by either the DocXtraction or DocXAP solution and its availability to Customer by (y) the total number of documents processed.

Virtual Data Partners retains the right to refuse support if an invoice is not paid current or the agreement has been terminated. Virtual Data Partners will not provide support on United States public holidays or where it reasonably determines (in its sole discretion) that support staff will not be available.

Virtual Data Partners reserves the right to limit the number of individuals from the end user company that are authorized to solicit support.

22.  WHERE SUPPORT WILL NOT BE PROVIDED

Virtual Data Partners may not provide Support where it reasonably determines (in its sole discretion) that:

  • Customer inquiries relate to business practice, application consulting or training;
  • Customer use or request of the Virtual Data Partners solution is outside the parameters set out in the agreed upon statement of work;
  • Customer use of the Support is excessive, abusive or fraudulent;
  • Customer is not using a current release of a Virtual Data Partners product or its immediate predecessor;
  • Customer request falls outside or beyond the scope of work presented in a custom development enhancement or add-on to a service, product, solutions, or to the overall statement of work;
  • Customer request is to change, modify or enhance the original software solution release, custom development enhancement or add-on.

23.  GENERAL

The Agreement shall be deemed made in, and governed by the laws of, the state of Delaware without regard to any conflicts of law provisions of any jurisdiction. The parties agree that any claims will be resolved on an individual basis without resort to any form of class action and will not be consolidated with the claims of any other parties. No text or information set forth on any purchase order or other preprinted form or document shall add to or vary the terms and conditions of the Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the Agreement shall be modified to reflect the intent of the invalid or unenforceable provision to the greatest possible extent, with all other provisions remaining in full force and effect. The parties are independent contractors and no joint venture, partnership, franchise, employment or agency relationship exists between Customer and Virtual Data Partners as a result of the Agreement or use of the Services. The failure of Virtual Data Partners to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Virtual Data Partners in writing. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly stated in writing.

Except for materials already made public, neither party will publish any news releases or other information concerning the Agreement, nor use the other party’s name or trademarks, without the other party’s prior written consent. Notwithstanding the foregoing, Virtual Data Partners may use Customer’s name and trademarks in a list of customers or in connection with written sales or promotional materials.

All provisions of the Agreement which by their nature may require performance after expiration or termination of the Agreement shall survive such expiration or termination, including appropriate provisions of Section 2 (Customer’s Obligations), Section 3 (Customer’s Authorizations), Section 4 (Fees and Payment), Section 5 (Third Party Interactions), Section 12 (Confidentiality), Section 13 (Indemnification), Section 16 (Limitation of Liability), Section 23 (General) and Section 24 (Definitions).

24.  DEFINITIONS

Capitalized terms used in any of the Agreement documents shall have the following meanings, unless otherwise defined in such documents:

“Solution” refers to Virtual Data Partners providing one or more of the following services – data extraction, document/data workflow, enterprise content management, system integration – delivered based upon the understanding of requirements defined in the approved statement of work.

“Affiliate” means any third party that directly or indirectly controls, is controlled by, or is under common control with, either of the parties to the Agreement. For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of a party, whether through ownership of stock or other securities, by contract or otherwise. Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists.

“Virtual Data Partners Content” means the audio, visual and/or electronic information, data, documents, or materials made available by Virtual Data Partners or its third-party suppliers to Customer in the course of using the Services;

“Virtual Data Partners Technology” means all of Virtual Data Partners proprietary and/or licensed technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, documentation, and other tangible or intangible technical materials or information;

“Billing Cycle” means the period of time between billings for Services fees (e.g., one-time, monthly, quarterly, annually);

“Business Day” means any calendar day, excluding Saturdays, Sundays and United States federal government holidays;

“Customer” means the legal entity identified in the registration and identification data provided to Virtual Data Partners via an Order Form;

“Customer Materials” means the audio, visual and/or electronic information, data, documents, or materials provided by Customer in the course of using the Services;

“Customer Systems” means all necessary systems, facilities and resources of any kind required to be provided by Customer to effectively access and use the Services, including, as applicable, Customer or third party communication lines, databases, software, hardware, firewalls, internet connections, routing and network addresses and configurations and key contacts for problem escalation;

“Customer Systems and Materials” means Customer Systems together with Customer Materials; “days” means calendar days unless otherwise specified;

“Including” means including without limitation;

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature;

“Invoice” or “Bill” means any document related to accounts payable including an invoice, vendor statement, work order, purchase order or general vendor correspondence;

“Quotations” means the quote(s) evidencing any payment terms for Services, specifying, among other things, the Services contracted for, the applicable fees, the Billing Cycle, and other charges and terms as agreed to between the parties;

“Services” means the various services for sale to businesses by Virtual Data Partners, including services hosted by Virtual Data Partners, Inc. or one of its Affiliates via a secure web portal, as more particularly described on one or more Order Forms agreed to by Customer and Virtual Data Partners;

“Support” means the maintenance, hosting and support services for the Services; and

“Transaction” means each document, form, invoice, purchase order, contract, notice, statement, image, or any other item processed by Virtual Data Partners via the Services on a fee per item basis. A transaction charge applies to each individual item submitted into the Services by Customer.

Thank you so much for requesting a demo of our services. A member of our awesome team will get back to you shortly. We look forward to learning more about your business and your needs. Sincerely, Virtual Data Partners