Master Services Agreement (SAAS)

Last Updated: January 6, 2025

This Master Services Agreement (“Agreement”) governs all Services set forth in one or more orders (“Orders”) executed by and between Valid8 Financial, Inc. (“Valid8”) and the entity listed in the initial Order referencing this Agreement (“Customer”).

1. DEFINITIONS.

All capitalized terms used in this Agreement and defined in the context in which they are used will have the meanings given to them herein. All other terms used in this Agreement will have their plain English (U.S.) meaning.

2. TERM.

This Agreement begins on the date the first Order referencing this Agreement is executed by the parties (the “Effective Date”) and will continue in effect so long as any Order remains in effect, unless terminated as specified herein (“Term”). The term of each Order will begin as specified in the Order and will continue for the term stated in the Order (“Initial Term”) and shall automatically renew for successive periods of equal length thereafter (each a “Renewal Term”), unless either party provides written notice of intent not to renew at least 30-days prior to the expiration date of the Initial Term or the then-current Renewal Term, if any. The Initial Term and any Renewal Term are collectively the “Order Term”. The term of any then-active Order will end upon termination of this Agreement.

3. ORDERS.

All Services provided by Valid8 under this Agreement will be strictly as set forth in Orders under this Agreement. All Orders will be as agreed to in writing by the parties and no other Order will be valid or binding on either party unless signed by the authorized representatives of both parties. Once signed by the authorized representatives of both parties, each Order will become a part of this Agreement. In the event of a conflict between the terms of an Order and the other terms of this Agreement, the other terms of this Agreement will control, except where an Order expressly indicates it is intended to control.

4. SERVICES.

4.1 Generally. Subject to the terms of this Agreement, including Customer’s payment of all applicable Fees, Valid8 shall provide Customer the Services set forth in one or more Orders referencing this Agreement. The “Services” consist of all subscriptions, licenses, services, and other offerings set forth in one or more Orders entered into by Valid8 and Customer, including the features and functionality provided through Valid8’s cloud-based verified financial intelligence platform (the “VFI Platform”).

4.2 VFI Platform.

• (a) Access and Use. Subject to the terms of this Agreement, including all Usage Limits (defined below) and Customer’s payment of all applicable Fees, Valid8 hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the VFI Platform, during the Term, for Customer’s internal business purposes. Access to and use of the VFI Platform will be through an account on the VFI Platform provided for Customer (“Account”). Customer will be permitted to authorize its and its Affiliates employees and contractors to access the VFI Platform under Customer’s Account (“Users”) solely for the purpose of exercising the rights granted to Customer under this Agreement. Customer will designate a User as the administrator of Customer’s Account (the “Admin”). Until an Admin is designated by Customer, the Admin will be the first User added to Customer’s Account. Admins are responsible for the creation of new User accounts, under Customer’s Account. Customer will ensure that all information about each User provided to Valid8 is and remains accurate and complete. Customer will implement commercially reasonable measures to protect the security and confidentiality of all User credentials associated with Customer’s Account and to prevent unauthorized access to or use of the VFI Platform through any User credentials. Customer will notify Valid8 promptly of any such unauthorized access or use of the VFI Platform or if any User credentials are lost, stolen, or otherwise compromised. 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 VFI Platform. Customer will advise its Affiliates and its and their Users of the restrictions set forth in this Agreement and Customer will be solely responsible for all acts and omissions of its Affiliates and Users (including its Affiliates’ Users) just as if each were “Customer” under this Agreement. “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).‍
• (b) Processing Customer Data. The VFI Platform is designed to convert Customer Data (defined below) into machine-readable text and associate check images and deposit items to corresponding banking activity in bank account and brokerage statements. To enjoy this functionality, Customer must first provide all relevant Customer Data to the VFI Platform. The VFI Platform then applies a combination of optical character recognition technology and machine learning algorithms, to render Customer Data images into machine-readable text (the “Initial Output”). Because the Initial Output is generated through machine learning processes it is inherently probability-based and dependent upon the quality of the initial Customer Data. Customer acknowledges this, and that text data like check “descriptions” cannot be checked for accuracy in the same manner as numbers and dates, that files contain a wide variety of image quality and resolution, and that higher quality images and higher dpi resolution generally provide more accurate Initial Output. While Valid8 cross-checks check numbers and dates to ensure numeric accuracy and provides human quality assurance, Customer agrees to also review all Initial Outputs and either correct any inaccuracies or confirm no inaccuracies are present prior to using the VFI Platform to associate the Initial Output to corresponding banking activity in bank account and brokerage statements, thereby creating an “Enhanced Dataset”. Customer may use the functionality of the VFI Platform to analyze the Enhanced Dataset and generate further outputs, such as graphs and spreadsheets, to display the Enhanced Dataset in an easily cognizable context (collectively, “Reports”).

4.3 Application Programming Interfaces. Valid8 may make certain application programming interfaces and software development kits that interoperate with the VFI 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 VFI 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.

4.4 As Is Services. If an Order provides for access to or use of the Services without charge, on an internal pilot, evaluation, or testing basis (“Pilot Access”) or if Customer elects for Valid8 to continue hosting Customer Data following the Order Term for $100 per month (“Optional Hosting” and together with Pilot Access the “As Is Services”), then this Section 4.4 applies with respect to the As Is Services and takes precedence over any inconsistent or conflicting terms.

• (a) Pilot Access. Subject to the terms and conditions of this Agreement, including all Usage Limits (defined below), Valid8 hereby grants Customer, a revocable, non-exclusive, non-transferable, non-sublicensable right to access and use the VFI Platform, during the Order Term, solely for the purpose of internally evaluating the VFI Platform to determine whether to purchase a full right to access and use the Services. Customer may elect to purchase a full right to access and use the Services by notifying Valid8 prior to the expiration of the Order Term and entering into an Order and paying all applicable Fees for full access to and use of the VFI Platform. If Customer has not entered into an Order for full access to the VFI Platform and Customer’s Pilot Access exceeds the Usage Limits set forth in the Order, then Customer shall pay for such excess usage in accordance with the terms of this Agreement and the applicable Order. Customer acknowledges that Pilot Access may not include or allow access to all features and functionality available to paying customers. Either party may, upon written notice, terminate an Order providing Pilot Access without cause and for convenience. Upon expiration of the Order providing Pilot Access, Customer’s Pilot Access will automatically terminate and, unless Customer has executed an Order with Valid8 providing for continued access to and use of the Services, Customer will cease all access to and use of the Services and either return to Valid8 or destroy any Valid8 Content in Customer’s possession or control.‍
• (b) Special Disclaimer. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY: (1) CUSTOMER’S USE OF THE AS IS SERVICES IS ENTIRELY AT CUSTOMER’S OWN RISK ; (2) VALID8’S CUMULATIVE LIABILITY RELATING TO ANY AS IS SERVICES, AND ANY ACCESS TO THE PLATFORM OR HOSTING OF CUSTOMER DATA IN CONNECTION THEREWITH, IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT CUSTOMER ACTUALLY PAID FOR THE AS IS SERVICES; AND (3) VALID8 PROVIDES THE AS IS SERVICES: (A) “AS IS,” “AS AVAILABLE,” “WITH ALL DEFECTS,” AND WITHOUT WARRANTY OF ANY KIND; (B) WITHOUT SUPPORT, MAINTENANCE, TRAINING, OR OTHER SERVICES RELATING TO THE VFI PLATFORM; AND (C) WITHOUT ANY OBLIGATION OR DUTY TO INDEMNIFY, DEFEND, OR HOLD CUSTOMER HARMLESS FROM ANY CLAIMS OR LOSSES. EXCEPT AS ALTERED IN THIS SECTION 4.4, 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 AS IS SERVICES.

5. VALID8 TECHNOLOGY.

Customer acknowledges that the Services, including the VFI Platform, Valid8 Content, and all server integrations, software, hardware, data, information, all other technology used by or on behalf of Valid8 to provide the foregoing, and any updates, upgrades, new versions, modifications, or enhancements to any of the foregoing (collectively the “Valid8 Technology”), constitute the valuable IPR of Valid8. As an express condition to the rights granted to Customer under this Agreement, and in addition to the other conditions in this Agreement, Customer will not and will not permit any third party to: (1) use or access any Valid8 Technology or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, revise, translate, or create derivatives (including derivative works) from any Valid8 Technology; (3) sublicense, distribute, sell, rent, lend, loan, lease, convey, sublicense, assign, pledge, or otherwise transfer or in any way encumber any Valid8 Technology or any portion thereof; (4) use any Valid8 Technology for the benefit of any third party or make any Valid8 Technology available to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for any Valid8 Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Valid8 Technology; (7) access or utilize any Valid8 Technology for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation or hosting of any Valid8 Technology or attempt to gain unauthorized access to any Valid8 Technology; (9) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on any Valid8 Technology; or (10) access or use the Valid8 Technology or any component thereof in order to build a competitive product or service. All use of all Valid8 Technology will be in accordance with any documentation for the applicable Valid8 Technology provided by Valid8. As used in this Agreement, “IPR” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information. All rights and restrictions in this Agreement applicable to any Valid8 Content apply to all data, information, and other elements comprising the Valid8 Content, including any enhancements, corrections, or other updates provided by Valid8 from time to time. 

6. PROPRIETARY RIGHTS.

6.1 Valid8 IP.

• (a) Valid8 Technology. Valid8 and its licensors own and will continue to retain all right, title, and interest, in and relating to the Valid8 Technology and all IPR therein and relating thereto. Except as set forth in this Agreement, Customer is granted no licenses or rights in or to any Valid8 Technology, or any IPR therein or related thereto.
• (b) Valid8 Content. For purposes of this Agreement, the “Valid8 Content” means, with the exception of Customer Data and Customer Confidential Information, all information, data, and datasets (including the structure, organization, selection, coordination, and arrangements thereof), and all other content presented on the VFI Platform or otherwise provided by or on behalf of Valid8, including (1) the layout, design, look and feel of the VFI Platform and any Reports and (2) any information, files, or reports, including all audit or information security reports, available through Valid8’s Trust Center. As between Valid8 and Customer, Valid8 retains all right, title, and interest, including all IPR, in and to the Valid8 Content. All Valid8 Content is provided for informational purposes only and Customer is solely responsible for verifying the accuracy, completeness, and applicability of all Valid8 Content prior to making use of that Valid8 Content. Subject to the terms of this Agreement, including Customer’s payment of all applicable Fees, Valid8 grants Customer a nonexclusive right to use Valid8 Content (a) during the Term, in connection with Customer’s use of the VFI Platform and (b) to the extent incorporated in a Report, after the Term, solely as incorporated into such Report. Customer shall not copy, resell, transfer, republish or use any Valid8 Content for any other purpose. 
• (c) Usage Data. Valid8 may generate and maintain information about the duration and frequency of the use of the Services by Customer and its Users, including statistical data, trends, usage patterns, traffic logs, and user conduct (“Usage Data”). Valid8 retains ownership of all right, title, and interest in and to the Usage Data. Valid8 may use Usage Data to determine Fees, to improve, test and provide the Services, and to offer services beyond the scope of Customer’s then existing Orders.

6.2 Customer Data. As between the parties, Customer and its licensors own and will continue to retain all right, title, and interest, in and relating to the Customer Data and all IPR therein and relating thereto. Except as set forth in this Agreement, Valid8 is granted no licenses or rights in or to any Customer Data, or any IPR therein or related thereto. “Customer Data” means any data or information Customer uploads or otherwise provides to the VFI Platform or creates via use of the VFI Platform, including (a) the raw banking data Customer initially provides, which may be comprised of any of the following bank data and file types: bank statements and credit card statements (PDF), check images and deposit slips (PDF), bank transaction lists and check item lists (CSV), and brokerage statements (PDF); (b) the Initial Outputs; (c) the Enhanced Dataset; and (d) any Reports, excluding any Valid8 Content incorporated into the Reports, such as the report template or design). 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. 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 15.3) right and 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 Machine Learning Models; Aggregated Data. Notwithstanding anything in this Agreement to the contrary, Customer further authorizes Valid8 to use or analyze Customer Data to train machine learning or artificial intelligence tools that are part of or utilized in connection with the VFI 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.

7. FEES AND PAYMENT TERMS.

7.1 Fees. Customer shall pay all fees specified in each Order, including any Overage Fees, (collectively, “Fees”) as and when due. Valid8 may increase all the Fees at each Renewal Term by up to 7% above the applicable pricing in the prior term, unless otherwise set forth in the applicable Order or unless Valid8 provides Customer notice of different pricing at least 30 days prior to the applicable Renewal Term. 

7.2 Overage Fees. If an Order provides that Customer may use a certain quantity of Services, (e.g., Total VPUs or Total Cases of a certain size, each as set forth in the Order) for a certain pre-paid recurring Fee, then Customer may use up to that quantity of the Services (in each case, the “Usage Limit”) without paying any Overage Fees. If Customer’s use of the particular Services in any Order Term exceeds the Usage Limit, then, at its next billing cycle Valid8 shall invoice, and Customer shall pay, for each unit (e.g., Case or VPU, as set forth in the Order) exceeding the Usage Limit, the “Overage Rate” amount set forth in the Order (the product of the Overage Rate and the excess usage is the “Overage Fees”). During the Order Term, any unused Usage Limit applies to the Initial Term or then-current Renewal Term only and will expire and not roll-over to the next Renewal Term. Customer may increase its Usage Limits at any point by entering into a new Order with Valid8 accounting for such increased use.

7.3 Payment. With the exception of Overage Fees, all Fees are due in advance for the Initial Term and any Renewal Term. Unless otherwise expressly indicated in the Order Form, Customer shall pay all Fees within 15 days after the date of the applicable invoice by means of an automated clearing house transfer. All Fees are non-refundable once paid to Valid8. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. If Valid8 requires use of collection agencies, attorneys, or courts of law for collection of Customer’s account, Customer will be responsible for those expenses. Customer will be responsible for any and all use, sales, and other taxes imposed on the Services provided under this Agreement.

7.4 Payment Disputes. Customer may withhold payment of any charge or amount on any invoice that Customer disputes in good faith, provided that Customer pays all amounts due under this Agreement minus the amount disputed in good faith and the parties diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (a) Customer delivers a written statement to Valid8 on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Customer, (b) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (c) all other amounts due from Customer that are not in dispute have been paid in accordance with the terms of this Agreement. 

8. TERMINATION.

8.1 Termination for Cause. This Agreement and any Order may be terminated by either party if the other party materially breaches any provision of this Agreement or such Order and fails to cure such breach within 30 days after receiving notice thereof from the non-breaching party.

8.2 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 7; Valid8 may cease providing all access to the Services under this Agreement or such Order; (c) all rights and licenses granted to Customer with respect to any Services will terminate and Customer will cease all access and use of the Services; and (d) except as may be expressly permitted under this Agreement, including Section 8.3, each party will return to the other party or, at the option of the other party, permanently destroy any Confidential Information of the other party in such party’s possession or control. 

8.3 Removal of Customer Data. The VFI Platform includes functionality allowing Customer to delete its Customer Data from the VFI Platform. Customer may access and use such functionality during the Term of this Agreement and for 30 days following termination of this Agreement. Valid8 will delete Customer Data (a) automatically, when Customer uses the features of the VFI Platform to delete the Customer Data and (b) in any event, in accordance with Valid8’s standard procedures.

8.4 Survival. Sections 6, 7, 8, 11, 12, 13, and 15 will survive termination of this Agreement for any reason.

9. Suspension.‍

Notwithstanding anything to the contrary in this Agreement, Valid8 may suspend Customer’s access to the VFI Platform if Valid8 determines that: (a) there is an attack on the VFI Platform; (b) Customer’s or any of its Users’ use of the VFI 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 5 or 10; (d) Customer’s or its Users’ use of the VFI 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 VFI 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 VFI Platform will not relieve Customer of its payment obligations under this Agreement. 

10. WARRANTY; DISCLAIMERS.

10.1 General. Each party represents, warrants and covenants to the other party that: (a) such party has full power and authority to enter into this Agreement; (b) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound; and (c) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms. 

10.2 Compliance. Each party represents, warrants and covenants to the other party that: (a) such party will comply with all laws applicable to its performance under this Agreement or use of Offerings provided under this Agreement; and (b) such party’s performance under this Agreement will not cause the other party to violate any laws applicable to such party. 

10.3 No Viruses. Each party represents, warrants, and covenants to the other that it has taken commercially reasonable measures to test all data and materials provided to the other party under this Agreement, including all Customer Data and Valid8 Content, for the presence of any viruses, trojan horses, or other devices which would disable or impair the other party’s networks, systems, data, or software and to the best of its knowledge, no such devices are present in such data and materials.

10.4 Services. Valid8 represents, warrants, and covenants that it will provide the Services to Customer and its Users in accordance with the Service Level Agreements available at https://www.valid8financial.com/service-level-agreements.

10.5 Customer Data. Customer represents, warrants, and covenants to Valid8 that Customer has and will maintain all necessary consents, permissions, and rights necessary to (a) provide Valid8 the Customer Data and (b) for Valid8 to use such Customer Data as permitted under this Agreement.

10.6 Disclaimer. EACH PARTY ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL VALID8 TECHNOLOGY IS PROVIDED BY VALID8 AND ITS LICENSORS “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND. VALID8 EXPRESSLY DISCLAIMS, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESSED OR IMPLIED, REGARDING THIS AGREEMENT AND ANY SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY A PARTY OR ITS AGENTS OR REPRESENTATIVES WILL CREATE ANY REPRESENTATIONS, WARRANTIES OR COVENANTS UNLESS CONFIRMED IN WRITING BY SUCH PARTY AS AN AMENDMENT TO THIS AGREEMENT.

11. INDEMNIFICATION.

11.1 By Customer. Customer will defend, indemnify, and hold harmless Valid8, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all losses, liabilities, costs, judgments, awards, settlements, penalties, damages, fines, expenses, costs and fees (including reasonable attorneys’ fees and costs of collection) (“Losses”) incurred in connection with any claim, allegation, action, or suit (“Claims”) brought against any of them by an unaffiliated third party insofar as the Claim arises out of or relates to the Customer Data or Valid8’s permitted use of the Customer Data under this Agreement. Customer will have no obligation under this Section 11.1 to the extent a Claim is based upon Valid8’s use of the Customer Data in violation of this Agreement.

11.2 By Valid8. Valid8 will defend, indemnify and hold harmless Customer, its affiliates and licensors, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all Losses incurred in connection with any Claims brought against any of them by an unaffiliated third party insofar as the Claim arises out of or relates to the Services, or Customer’s permitted use of the Services, infringing the third party’s IPR. Should any Claim relating to the Services infringing a third party’s IPR be made, or in Valid8’s reasonable opinion be likely to be made, in addition to Valid8’s indemnification obligations under this Section, Valid8 may, at its option and expense: (a) procure for Customer the right to continue using the applicable Services; (b) replace or modify the applicable Services so as to no longer infringe; or (c) terminate the applicable Order and/or this Agreement. Valid8’s obligations under this Section will not extend to, and Valid8 shall have no liability under this Section for, any Claim based on, arising out of, or relating to any: (i) Customer’s negligence or violation of law; (ii) failure by Customer to comply with the terms of this Agreement or any documentation or instructions provided by Valid8; (iii) Customer Data; (iv) any products, services, or other offerings not provided by Valid8; (v) any API or As Is Services. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VALID8’S ENTIRE LIABILITY FOR INFRINGEMENT CLAIMS RELATING TO THIS AGREEMENT AND THE SERVICES. 

11.3 Conditions. As a condition to obtaining indemnification from the other party under this Section, each party will: (a) give the other party prompt notice of any claim for indemnification, provided however that the failure to give such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent that such indemnifying party is materially prejudiced by such failure; (b) grant to the other party sole control of the defense or settlement of any resulting legal proceedings, provided that any settlement that involves more than the payment of money and a full release of the indemnified party will require the indemnified party’s written consent; and (c) provide the other party with reasonable cooperation and, at the other party’s request and expense, assistance in the defense or settlement of any claim for indemnification. Notwithstanding the foregoing, the indemnified party may participate in any defense, settlement, or other legal proceedings relating to any such indemnification at such party’s expense through counsel of such party’s choice

12. 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. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE SOFTWARE LICENSE FEES PAID BY CUSTOMER TO VALID8 IN THE 12 MONTHS PRECEDING THE LIABILITY; PROVIDED THAT THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ANY OBLIGATIONS UNDER SECTION 11 SHALL BE LIMITED TO $1,000,000. THE EXCLUSIONS AND LIMITATION OF LIABILITIES SET FORTH IN THIS SECTION 12 DO NOT APPLY TO A PARTY’S (1) INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S IPR; (2) GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD; OR (3) BREACH OF SECTION 5 OR SECTION 10. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF VALID8 WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

13. CONFIDENTIALITY.

‍Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care, and to only use the Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under this Agreement. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (i) to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its Affiliates in connection with its corporate and financial reporting requirements. If Customer provides any feedback, comments, or ideas to Valid8 regarding the Valid8 Technology or improvements thereto, Customer agrees that Valid8 will be free to use, disclose, and exercise any rights in the same in connection with its products and services with no financial, credit, confidentiality, or other obligation to Customer. Except as set forth in Section 8.3, upon Discloser’s written request, Recipient will promptly return to Discloser, or destroy (if requested), all the Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section 13 shall continue for 3 years after the termination of this Agreement, except such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable laws.

14. 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).

15. GENERAL.

15.1 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. 

15.2 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 its Subcontractors’ acts and omissions relating to this Agreement 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. 

15.3 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. 

15.4 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.

15.5 Notices. All notices, consents, and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; (3) certified mail, return receipt requested, to the other party. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused). Notices to Valid8 shall be addressed to 1916 Pike Place Suite 12, Seattle, WA 98101, attention “Legal Department” with a copy to legal@Valid8Financial.com. Notices to Customer shall be addressed to the Customer’s address set forth on the Order. Either party may change its address for notice by giving notice of the new address to the other party.

15.6 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 state or federal courts sitting in King County, Washington will have sole and exclusive jurisdiction over any litigation or disputes 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) and the parties hereby irrevocably submit to the personal jurisdiction of such courts.

15.7 Remedies. Each party acknowledges that any actual or threatened breach of Sections 5 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.

15.8 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.

15.9 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).

15.10 Third Party Rights. No term of this Agreement will be construed to confer any third-party beneficiary rights on any non-party.

15.11 Entire Agreement. This Agreement includes the DPA, any documents referenced herein, and each Order entered into hereunder, each of which is incorporated in and made a part of this Agreement. This Agreement constitutes the final and entire agreement between the parties regarding the subject hereof and supersedes any and all other agreements, whether written or oral, between the parties concerning such subject matter. Except as noted herein, this Agreement may be amended or changed only by a writing signed by both parties. 

15.12 Interpretation. In this Agreement: (a) any headings are for reference purposes only and shall not be used in the construction and interpretation of this Agreement; (b) the singular number shall include the plural, the plural number shall include the singular; (c) if a term is defined as one part of speech (such as a noun), it shall have a corresponding meaning when used as another part of speech (such as a verb); (d) “includes”, “including”, “for example”, “such as” and similar terms are not words of limitation; (e) a monetary amount is in U.S. dollars; and (f) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement.

15.13 Export Compliance. The Valid8 Technology may be subject to U.S. export control laws and regulations and may be subject to export or import regulations in other countries. Customer agrees to strictly comply with all such laws and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. Customer will indemnify and hold Valid8 harmless from any and all Losses arising from or relating to any breach by Customer of its obligations under this Section.

15.14 U.S. Government Customers. The Services consist of "commercial computer software," “commercial computer software documentation” and "commercial services", as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (or an equivalent provision, e.g. in supplements of various U.S. Government Agencies, as applicable), all U.S. Government Customers, whether this concerns GSA Multiple Award and Federal Supply Schedule acquisitions, FAR acquisitions, DOD acquisitions or other acquisitions whatsoever, acquire the Services only as "commercial computer software," “commercial computer software documentation” and "commercial services", and only with those rights as are granted to all other customers pursuant to the terms and conditions set forth herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable.