Real Factors Service Agreement

EXHIBIT A

TERMS AND CONDITIONS

1.              SERVICES AND SUPPORT

1.1            Services.  Subject to the terms of this Agreement, Real Factors will use commercially reasonable efforts to make the services set forth on the Order Form (the “Services”) available to Customer as set forth in Exhibit B (the “Service Level Agreement”).

1.2            Software License.  The Services may include computer software provided to Customer by Real Factors hereunder (“Software”).  Such Software is licensed to Customer, not sold, and Real Factors accordingly hereby grants Customer a non-exclusive, non-transferable (except as set forth in Section 9.1), non-sublicensable, worldwide (except as set forth in Section 9.8), fully-paid, royalty-free license during the Term to install and use such Software, only for Customer’s internal business purposes and only for use in connection with the Services.

1.3            Technical Support.  Real Factors will use commercially reasonable efforts to provide Customer with technical support as set forth in the Service Level Agreement.

2.              RESTRICTIONS

2.1            Software.  Customer will not, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms of the Software except to the degree such restriction is expressly prohibited by applicable law; (ii) modify, translate, or create derivative works based on the Software; or (iii) remove any proprietary notices from the Software.

2.2            Services.  Customer will not use the Services (for clarity, including the Software) in a manner that violates any applicable law or regulation.  Customer will not provide the Services to any third party (except as set forth in Section 9.5) including for timesharing or service bureau purposes.  Although Real Factors has no obligation to monitor Customer’s use of the Services, Real Factors may do so and may prohibit any use of the Services that breaches this Agreement.

2.3            Credentials.  Customer will maintain the security of Customer’s credentials for use of the Services, including account passwords.

3.              CONFIDENTIALITY

3.1            Definition.  Each party (when disclosing information, the “Disclosing Party”) may disclose non-public business, technical or financial information relating to Disclosing Party’s business (“Confidential Information”) to the other party (“Receiving Party”).  The Confidential Information of Real Factors includes non-public information regarding features, functionality and performance of the Services.  Confidential Information of Customer includes all non-public data provided by Customer to Real Factors to enable the provision of the Services (“Customer Data”).  Notwithstanding the foregoing, Confidential Information does not include any information that (i) is or becomes publicly available through no fault of Receiving Party, (ii) was known to Receiving Party prior to disclosure by Disclosing Party, (iii) was rightfully received by Receiving Party from a third party without violation of any obligation of confidentiality, or (iv) was independently developed by Receiving Party without use of any Confidential Information of Disclosing Party.

3.2            Non-Use and Non-Disclosure.  During the Term and for ten years thereafter, Receiving Party will not, without the prior written consent of the Disclosing Party, (i) use Confidential Information except to exercise its rights or perform its obligations under this Agreement or (ii) disclose Confidential Information to any third party, except as set forth in Section 9.5 (subject to each such contractor executing a non-disclosure agreement no less protective of the Confidential Information than the provisions of this Agreement) or Section 3.4.

3.3            Maintenance of Confidentiality.  Receiving Party will take commercially reasonable measures to protect the Confidential Information from any disclosure, access, or exfiltration not expressly authorized by this Agreement, provided that such measures will be no less protective of the Confidential Information than the measures that Receiving Party employs to protect Receiving Party’s own confidential information of similar nature or importance.  Without limiting the generality of the foregoing sentence, if Real Factors hosts the Services using a third party hosting services vendor, Real Factors will use only a reputable vendor and will, upon Customer’s request, inform Customer which hosting vendor is being used to host the Services.  As of the Effective Date, the Services are hosted using Amazon Web Services.

3.4            Compelled Disclosure.  Receiving Party may disclose Confidential Information to the extent such disclosure is required by law or compelled by judicial process, provided that Receiving Party promptly notifies Disclosing Party (if notification is allowed by law) of such requirement and provides reasonably requested assistance to Disclosing Party to seek a protective order or confidential treatment of such Confidential Information.

3.5            Reservation of Rights.  Each party reserves and retains all rights (including intellectual property rights) that such party may have in such party’s Confidential Information and other data (including, in the case of Customer, rights in the Customer Data).  By providing Confidential Information under this Agreement, neither party assigns any right, title, or interest in such Confidential Information to the other party.

4.              PAYMENT

4.1            Fees.  Customer will pay Real Factors the fees set forth in this Agreement (the “Fees”).  The Fees for the Initial Term are set forth in the Order Form.  The Fees due for each Renewal Term will be equal to the Fees due in the prior Initial Term or Renewal Term, pro-rated to account for any difference in the length of such Renewal Term; provided, however, that Real Factors may change the Fees due in respect of any Renewal Term if (i) Real Factors provides notice to Customer of such increase at least 60 days before the start of such Renewal Term, and (ii) Customer may reject such change by giving notice of non-renewal as set forth in Section 5.1.

4.2            Payment Terms.  Real Factors may invoice Customer for the Fees, and Customer will pay each such invoice within 30 days after the date thereof.  All amounts due hereunder are denominated and will be paid in United States dollars by bank check, wire transfer, or bank deposit to a United States bank account designated by Real Factors.  If Customer believes that any portion of any invoice is incorrect, Customer will, within 30 days after the date of such invoice, give notice to Real Factors explaining such dispute and Customer will pay at least the undisputed portion of such invoice.  The parties agree to meet and attempt resolution of any such dispute in good faith.  Amounts not timely paid as set forth herein are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is less, plus all reasonable expenses of collection.

4.3            Taxes.  All amounts payable under this Agreement are exclusive of all sales, use, value-added, withholding, and other taxes and duties.  Customer will pay all such taxes and duties arising assessed by any competent government authority on the use of the Services or payments due under this Agreement, other than taxes based on Real Factors’s net income.  If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due to Real Factors, then the sum payable to Real Factors will be increased by the amount necessary so that Real Factors receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

5.              TERM AND TERMINATION

5.1            Term.  The initial term of this Agreement will begin on the Effective Date and will continue thereafter for the period of time set forth as the initial term on the Order Form or, if no such period of time is identified, then for one year (the “Initial Term”).  Thereafter, this Agreement will automatically renew for subsequent periods of one year (each, a “Renewal Term”, and all Renewal Terms together with the Initial Term, the “Term”) until either party gives notice to the other party at least 30 days prior to the end of the then-current Initial Term or Renewal Term that such party does not wish to renew this agreement or until this Agreement is terminated as set forth in Section 5.2.

5.2            Termination.  Either party may terminate this Agreement immediately upon notice if the other party (i) materially breaches any provision of this Agreement and fails to remedy such breach within 30 days after receiving written notice thereof, (ii) becomes insolvent or otherwise unable to pay its bills when due, files a petition in bankruptcy, or has a bankruptcy trustee, receiver, or similar official appointed to manage such party’s assets or affairs, or (iii) is the subject of a bankruptcy petition filed by a third party which petition is not dismissed in such party’s favor within 60 days after the initial filing thereof. 

5.3            Destruction of Customer Data.  For 30 days following any expiration or termination of this Agreement, Real Factors will make the Customer Data available to Customer in a digital format upon Customer’s request.  Within 60 days after any expiration or termination of this Agreement, Real Factors will destroy all Customer Data; provided, however, that any Customer Data in inactive storage within Real Factors’ backup systems will be destroyed in accordance with Real Factors’ standard policies and schedules for destruction of backup data.

5.4            Survival.  Upon any expiration or termination of this Agreement, the following obligations will survive: (i) all obligations of either party, accrued prior to such expiration or termination, to pay money to the other party; and (ii) the obligations set forth in Sections 3, 5.3, 5.4, 6.3, and 7 through 9.

6.              REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

6.1            Mutual Representations.  Each party represents and warrants to the other party that it is a business entity, duly organized and validly existing under the laws of the state in which it is incorporated; that it has the corporate power and authority to execute this Agreement and perform its obligations hereunder; and that such performance does not and will not conflict with any other obligation or agreement to which it is bound.

6.2            Service Warranty.  Real Factors warrants to Customer that Real Factors will provide the Services and technical support in the manner set forth in the Service Level Agreement.  In the event of nonperformance of the foregoing warranty, Real Factors’ sole obligations are the provision of service credit to Customer as set forth in the Service Level Agreement and Real Factors’ commercially reasonable efforts to promptly cure such nonperformance.

6.3            Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND REAL FACTORS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING SENTENCE, REAL FACTORS DOES NOT WARRANT THAT THE SERVICES WILL PERFORM IN ANY PARTICULAR MANNER, THAT THE PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY ERRORS WILL BE CORRECTED.  REAL FACTORS DOES NOT WARRANT THE SERVICES, INCLUDING ANY DATA OR INFORMATION PROVIDED THROUGH THE SERVICES.  REAL FACTORS DOES NOT GIVE FINANCIAL ADVICE AND DOES NOT ADVISE CUSTOMER TO CONDUCT ANY TRANSACTION OR TO MAKE ANY PARTICULAR BUSINESS DECISION IN ANY PARTICULAR MANNER.  REAL FACTORS ENCOURAGES CUSTOMER TO EXERCISE DUE DILIGENCE IN THE CONDUCT OF CUSTOMER’S BUSINESS AND TO USE OTHER APPROPRIATE SOURCES OF INFORMATION IN ADDITION TO THE SERVICES.

7.              INDEMNITY

7.1            By Real Factors.  Subject to Section 7.3, Real Factors will indemnify and hold Customer harmless from all costs, losses, liabilities, and expenses (including attorneys’ fees) arising from claims made by third parties to the extent alleging that the Services infringe any United States patent or any copyright or misappropriate any trade secret, but not including alleged infringement or misappropriation arising from (i) information or elements of the Services that are derived from Customer Data, (ii) the combination of the Services with any products, services, or intellectual property not provided by Real Factors, if such infringement or misappropriation does not arise in the Services alone, (iii) Customer’s continued use of Services components after Real Factors has provided modifications that avoid the alleged infringement or misappropriation, or (iv) use of the Services in a manner that violates any applicable law or breaches this Agreement.

7.2            By Customer.  Subject to Section 7.3, Customer will indemnify and hold Real Factors harmless from all costs, losses, liabilities, and expenses (including attorneys’ fees) arising from claims made by (i) third parties to the extent arising from Customer’s use of the Services in a manner that is negligent, violates any applicable law, or breaches this Agreement or (ii) Customer’s end users or customers.

7.3            Procedure.  Either party seeking indemnification hereunder (“Indemnified Party”) will give the other party (“Indemnitor”) (i) prompt notice of such claim, (ii) full control of the defense and settlement of such claim, provided however that Indemnitor will not settle the claim on terms that admit any wrongdoing by the Indemnified Party or that impose any obligations on Indemnified Party other than payment of money for which Indemnitor is responsible hereunder, and (iii) reasonably requested information and assistance in the defense and settlement of such claim.   

7.4            Remediation.  If Real Factors determines that a third-party claim under Section 7.1 is reasonably likely, Real Factors may, at Real Factors’s option and expense, (i) replace or modify the Services to be non-infringing, provided that such modification or replacement contains substantially equivalent features and functionality, (ii) obtains a suitable license allowing Customer’s continued use of the Services, or (iii) only if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.

7.5            Limitation.  This Section 7 sets forth the entire liability of Real Factors, and the sole remedy of Customer, with respect to any infringement or misappropriation of intellectual property rights in connection with this Agreement and the Services.

 

8.              LIMITATIONS OF LIABILITY

8.1            Limitation on Indirect Damages.  EXCEPT FOR DAMAGES ARISING FROM BODILY INJURY OF A PERSON OR BREACH OF SECTION 3 (CONFIDENTIALITY), AND OBLIGATIONS ARISING UNDER SECTION 7 (INDEMNITIES), UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS OFFICERS, REPRESENTATIVES, CONTRACTORS, VENDORS, OR EMPLOYEES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, EXPRESSLY INCLUDING LOST PROFITS AND LOST DATA, REGARDLESS WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY.

8.2            Cap on Amount of Damages.  IN NO EVENT WILL THE LIABILITY OF EITHER PARTY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO REAL FACTORS UNDER THIS AGREEMENT DURING THE PERIOD OF 12 MONTHS IMMEDIATELY PRECEDING THE ACTS OR CIRCUMSTANCES FROM WHICH SUCH LIABILITY AROSE.

8.3            Application.  THE LIMITATIONS SET FORTH IN THIS SECTION 8 ARE PART OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND WILL APPLY (i) TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, (ii) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (iii) NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

9.              GENERAL PROVISIONS

9.1            Assignment.  Neither party may assign or transfer this Agreement without the other party’s prior written consent; except that either party may, without such consent, assign this Agreement in its entirety to such party’s successor in interest in connection with a merger, acquisition, consolidation, reorganization, or the sale of substantially all such party’s stock or assets to which this Agreement pertains.  Any assignment in violation of this section is void.

9.2            Governing Law.   This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. 

9.3            Dispute Resolution.  All disputes arising out of or related to this Agreement or the Services will be finally settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, such arbitration to be conducted in English in New York City, New York, by a single arbitrator selected in accordance with such rules; except that either party may apply to any court of competent jurisdiction for injunctive relief.  Customer and Real Factors will each pay one‑half of the costs and expenses of the arbitration and each will separately pay their own counsel fees and expenses.  Judgment on the award rendered by the arbitrator may be entered in and enforced by any court of competent jurisdiction.  Each party prefers arbitration for resolution of all disputes arising hereunder and each party agrees that this Section 9.3 IS A WAIVER OF EACH PARTY’S RIGHT TO A JURY TRIAL.

9.4            Relationship Between the Parties.  The relationship between the parties is that of independent contractors.  No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement.  Neither party has the authority to bind the other party in any respect whatsoever.

9.5            Contractors.  Each party may exercise its rights or perform its obligations hereunder through third-party contractors, provided, however, that (i) each party remains liable for all its obligations hereunder, (ii) each party will be liable for the actions and inactions of its contractors taken in connection with this Agreement, and (iii) any action or inaction by any such contractor which, if performed by the party, would breach this Agreement, will be deemed a breach of this Agreement by such party.

9.6            Notices.  All notices required or expressly permitted under this Agreement will be in writing and will be deemed to have been given when received, if personally delivered; one day after being sent, if sent via next day delivery by a nationally recognized overnight delivery service such as Federal Express; or upon receipt, if sent by certified or registered mail, return receipt requested, to such party at the address for such party set forth on the Order Form, or such other address as such party may provide from time to time by notice given in accordance with this section.

9.7            Force Majeure.  If either party is unable to perform any of its obligations under this Agreement, other than payment of money, due to natural disaster, acts or war or terror, riot, strike, fire, flood, acts or orders of any applicable government, or failure of infrastructure such as power or communication systems (“Force Majeure Event”), such party will be not be liable for such failure provided that such party promptly notifies the other party of such Force Majeure Event and makes diligent and continuing efforts to resume performance as soon as reasonably practicable.

9.8            Export Compliance.  Customer will not export (or encourage or permit any third party to export) the Services or Software in violation of any applicable laws or regulations including, without limitation, the applicable regulations promulgated by the United States Department of Commerce and the United States Department of Treasury Office of Foreign Assets Control.

9.9            U.S. Government Licensing.  The Software and related documentation are “commercial items” as defined in FAR section 2.101 and “commercial computer software” and “commercial computer software documentation” as set forth in DFAR section 252.227‑7014(a)(1) and (5).  Any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the United States Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

9.10         Entire Agreement.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.

9.11         Severability, Modification, and Waiver.  If any provision of this Agreement are found to be unenforceable or invalid, such provision will be modified to the minimum extent necessary to make such provision enforceable and valid or, if such provision cannot be so modified, such provision will be deemed deleted from this Agreement; and, in either case, all other provisions of this Agreement will remain in full force and effect. Any modification or waiver of any provision of this Agreement must be in a writing signed by both parties (in the case of a modification) or by the party against who such waiver is to be asserted (in the case of a waiver), except as otherwise expressly provided herein.  No different or contradictory terms set forth on a purchase order will modify or supersede this Agreement, even if such purchase order is accepted and fulfilled.  No waiver of or failure to enforce any provision of this Agreement will serve as a waiver of any future breach of such provision or of any other provision.

9.12         Counterparts.  This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one instrument.

 

SERVICE LEVEL AGREEMENT

Uptime Commitment

Real Factors will deliver at least 99.5% Uptime for the Services. If Customer experiences Uptime below 99.5% in any calendar month, Customer may give notice to Real Factors and Real Factors will provide a service credit calculated as a percentage of the total fees paid and/or payable by Customer to Real Factors for Services in respect of such calendar month, as more specifically set forth in the following table (“Service Credit”):

 

Monthly Service Availability                                                      Service Credit (Monthly)

Less than 99.5% but greater than or equal to 99%                            5%

Less than 99% but greater than or equal to 98%                              10%

Less than 98% but greater than or equal to 97%                              15%

Less than or equal to 97%                                                           20%

For the avoidance of doubt, Service Credits will not exceed 20% of fees paid and/or payable for any given calendar month. Service Credits as described herein are Customer’s sole remedy and Real Factors’s sole liability for failure to deliver the required Uptime under this Agreement.

Definitions:

Uptime” means the result of the following calculation:

Total minutes in any calendar month – Total minutes of Unavailability

Total minutes in same calendar month

Unavailability” means that Services are unavailable to the Customer for any reason other than: (i) interruption of the Services during a Maintenance Window, (ii) outages caused by software, hardware, or personnel not provided and controlled by Real Factors, or (iii) outages or disruptions attributable to Force Majeure Events.

Maintenance Window” means periods of time during which Real Factors may perform technical maintenance that impacts the responsiveness or availability of Services.  Maintenance Windows will generally be scheduled during lower-usage times of day in order to minimize impact on customers.

 

Technical Support

Real Factors will provide Technical Support to Customer via telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Pacific time, with the exclusion of United States federal holidays (“Support Hours”).

Customer may initiate a support ticket during Support Hours by calling 917-567-1903 or any time by emailing andrew@realfactors.com.

Real Factors will use commercially reasonable efforts to respond to all support tickets within one business day.