Master Agreement

MASTER SERVICES AGREEMENT TERMS & CONDITIONS
IMPORTANT – THIS IS A LEGAL AGREEMENT BETWEEN EACH CLIENT (“Client”) AND 2RIVER CONCULTING, LLC (“2River“). YOU SHOULD FIRST READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. 
These MASTER SERVICES AGREEMENT TERMS & CONDITIONS (referenced herein as the “Agreement”) are effective the earlier of Client (or its representative) (1) clicking a box indicating acceptance (online), (2) executing a Statement of Work that references this agreement, or (3) using Services (defined below) under a Trial Period (defined below).  Client and 2River are each a “Party,” and collectively, the “Parties” to this Agreement.
WHEREAS, 2River makes available for use the “2River Solution” (as further defined below);
WHEREAS, 2River is also in the business of offering associated “Services” (as further defined below);
WHEREAS, Client desires to license from 2River, and 2River agrees to license to Client, certain usage rights in order to enable Client and its “Authorized Users” (as further defined below) to access and use the 2River Solution, subject to the terms and conditions as set forth in this Agreement;
WHEREAS, Client also desires to receive the Services from 2River in accordance with the terms and conditions of this Agreement; and
NOW, THEREFORE, in consideration of the mutual promises contained herein, the sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS.  As used in this Agreement and in addition to any other terms defined herein, the capitalized terms used herein will have the meanings set forth below.
1.1. “Authorized User(s)” means the following person or entities (as further specified in the SOW (as defined below)):
(a) Client’s designated employee(s) who are given access by Client to the 2River Solution;
(b) Client and Client’s designated and wholly-owned subsidiaries, and their respective employees, as designated by Client, given access by Client to the 2River Solution; and
(c) If applicable and only to the extent they are working solely for Client or Client’s designated and wholly-owned subsidiaries, the designated agents, contractors, and subcontractors of Client or Client’s wholly-owned subsidiaries who are given access by Client to the 2River Solution; and
(d) Client’s customers and clients (with such customers and clients referenced herein as the “Customers”) when Client has agreed (in the SOW (as defined below)) to receive access to the 2River Solution along with Services that provide for particular configuration for Client.
1.2. “Confidential Information” means information which has been or which may be disclosed, either orally or in writing, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) in confidence, that is marked “Confidential,” or which is reasonably understood to be the proprietary or confidential information of the Disclosing Party, including, without limitation, all Client Content, confidential information associated with or related to the 2River Solution, confidential or nonpublic information concerning any aspect of the business of the Disclosing Party or its affiliates, trade secrets, financial statements, business and marketing plans, business and technical data, pending or threatened litigation, prospective contractual relations, collection, tabulation, and analysis of data, computer programming methods, designs, specifications, plans, drawings and similar materials, programs, software, databases, inventions and works (whether or not eligible for legal protection under patent, trademark, or copyright laws), research and development, and/or work in progress.  Notwithstanding the foregoing, Confidential Information does not include any information which (i) is or was in the public domain at the time communicated to the Receiving Party, or which becomes public through no fault of the Receiving Party; (ii) is or was obtained by the Receiving Party, with permission to disclose, from a third party not subject to a contractual, fiduciary or other duty not to disclose; (iii) has been independently developed by the Receiving Party, as shown by the Receiving Party’s documentation; or (iv) was lawfully in the Receiving Party’s possession free of any duty to the Disclosing Party before the date of disclosure to the Receiving Party by the Disclosing Party.
1.3. “Client Content” means any information, lists, designs, content, or materials provided by Client to 2River to be stored, processed, transmitted, or otherwise utilized by 2River in connection with the Services.
1.4. “Documentation” means the user documentation and any other operating or reference manuals associated with the 2River Solution, as supplied or provided by 2River to Client, as well as any Updates thereto.
1.5. “2River Site” means the site located at the URL address of http://lift.2rcg.com (or such other address(es) designated by 2River in the SOW (as defined below)) from where the 2River Solution will be made available to Client and its Authorized Users.
1.6. “2River Solution” means the 2River proprietary online solution(s) (to be further specified on the statement of work (the “SOW” as further defined below) together with any associated interfaces or software (including, without limitation, any third party software) and any Updates as made available by 2River (or 2River’s vendors, licensors or suppliers on behalf of 2River) through the 2River Site.  Unless otherwise noted herein, references to the 2River Solution shall also include the 2River Site and Documentation.  But, for the avoidance of doubt, the 2River Solution does not include the Client Content, any third party product acquired by Client, any software to the extent it is licensed directly by Client from a third party (e.g., web browser software used by Client), or any equipment, communications, networks, or systems not under the control of 2River or 2River’s vendors, suppliers, or licensors (e.g., the Internet).
1.7. “Updates” mean any updates, enhancements, improvements, additions, or modifications.
2. LICENSED RIGHTS.
2.1. 2River Solution Access Grant.  
(a) General.  Subject to the terms and conditions of this Agreement, 2River hereby grants to Client during the Term of this Agreement, and Client hereby accepts from 2River, a non-exclusive and worldwide right and license, with a limited right to sublicense (as set forth below) such right and license to Authorized Users, to access and use solely for personal and internal business purposes the 2River Solution (and its available functionality) only in the form made available by 2River.  The foregoing grant will include the right by Authorized Users to print hard copies of reports made for Client through use of the 2River Solution, but only for personal and internal business purposes and only so long as all printouts contain 2River’s proprietary notices.  Client expressly acknowledges that the foregoing grant is provided on a non-exclusive basis, and 2River shall retain the right to provide the 2River Solution and the Services to others and to enter into similar business arrangements with other entities or persons during the Term of this Agreement.
(b) Right to Sublicense.  Subject to the terms and conditions of this Agreement and as the only permissible right to sublicense in instances when Client has agreed (in the SOW) to receive access to the 2River Solution along with Services that provide for particular configuration for Client, 2River hereby grants to Client, during the Term of this Agreement, and Client hereby accepts a limited right and license, on a non-exclusive, non-transferable basis, to enable Authorized Users to use the 2River Solution in accordance with this Agreement.
(c) Promotion & Private Labeling. Subject to the terms and conditions of this Agreement, and for the purposes of providing Customers with access to the 2River Solution (as agreed in the SOW), 2River hereby grants to Client, during the Term of this Agreement, and Client hereby accepts a nonexclusive, non-sublicenseable, nontransferable right and license to market and promote the 2River Solution to Customers.  In connection with the foregoing, 2River will create for Client a private labeled solution that will be co-branded with Client Marks and 2River Marks (each as defined below) (the “Private Label Service”).  All references to “2River Solution” throughout this Agreement shall be deemed to include any Private Label Service but exclude the Client Content. This subsection shall not apply during any Trial Period (as defined below) offered.
2.2. Restrictions.  Except as expressly permitted in this Agreement, Client may not (i) reverse engineer, decompile, disassemble, translate or create any derivative work of the 2River Solution; or (ii) sublicense, distribute, or sell or use or permit use of the 2River Solution for any other purpose or for or by any person or entity (including Client’s affiliates and subsidiaries) other than Client’s Authorized Users.
2.3. Availability.  Specifics for Authorized User access, including any limitations, are set forth in the “SOW,”, and a copy thereof may be found online at the 2River Site.  The content layout, formatting, and arrangement of the 2River Solution as made available through the 2River Site shall be as designated by 2River.  2River will manage and monitor the 2River Solution and otherwise take all commercially reasonable steps to ensure that the 2River Solution will be available for use and accessible by Authorized Users in accordance with this Agreement ninety-nine percent (99%) of the Available Hours (“Uptime Commitment”) during each calendar month of the Term.  The “Available Hours” for the 2River Solution refer to the total number of hours and minutes in an applicable calendar month less (i) downtime caused by scheduled or emergency maintenance or failure of third party networks and communications facilities outside of the control of 2River or 2River’s vendors and suppliers, (ii) events of force majeure as further set forth in this Agreement, and (iii) downtime requested by Client or caused in whole or in part by Client or its contractors or agents, or the failure of any Client network, equipment, software or hardware.  The Uptime Commitment does not include any other times outside of the Available Hours, although 2River shall use commercially reasonable efforts to make the 2River Solution available at such other times outside the Available Hours unless maintenance is required.  2River shall use its commercially reasonable efforts to provide Client at least one (1) week’s advance written notice (email is sufficient) of any scheduled maintenance, and in no event shall 2River provide Client with less than forty-eight (48) hours’ advance written notice of any scheduled maintenance.  If, after receiving notice of scheduled maintenance, Client reasonably requests that 2River conduct such maintenance at a different date and/or time than proposed by 2River, 2River shall use its commercial best efforts to accommodate such request to the extent 2River can manage such scheduled maintenance specifically for Client. Moreover, 2River shall use commercially reasonable efforts to generally schedule all scheduled maintenance for dates and times that are outside of Client’s normal business hours of operation. This Section is not applicable to or during any Trial Period offered.
3. SERVICES.
3.1. Statement of Work. 2River shall provide, during the Term of this Agreement, the service(s) that are outlined further in one or more mutually agreed upon statements of work (referenced collectively herein as the “SOW”).  To the extent the SOW contains any terms pertaining to the provision of such Services, including any Client responsibilities, such terms shall also apply. To the extent of any conflict or inconsistency between the terms and conditions of a SOW and the terms and conditions of this Agreement (excluding from the definition of “Agreement,” solely for the purpose of this sentence, any SOW), the terms and conditions of a SOW as it relates to the actual fees to be charged, the specific description of the Services to be performed, and the related schedule and timeline shall control as to the delivery of the Services described in the particular SOW.  Except for the foregoing, however, the Parties acknowledge and agree that (i) each SOW shall be deemed to incorporate the terms and conditions of this Agreement, (ii) the terms and conditions of this Agreement shall prevail over any inconsistent terms and conditions set forth in any SOW unless such terms and conditions expressly state otherwise, and (iii) the termination of this Agreement shall terminate all outstanding Statements of Work.  Any additional legal terms may only be added by amendment to this Agreement in accordance with the terms of this Agreement.
3.2. Services.  Any services outlined or set forth in the SOW shall be identified collectively herein as the “Services.”  2River will perform the Services in accordance with applicable laws.  Moreover, any enhancements to the 2River Solution shall be considered Updates thereto.  However, with respect to any Services to be provided by 2River under the Agreement and subject to 2River complying with this Agreement, Client acknowledges and agrees to the following: (i) 2River has the right to control and direct the means, manner, and method by which the Services are performed and may perform the Services at any place or location and at such time as 2River may determine reasonable; and (ii) 2River may, from time to time engage independent contractors, consultants, or subcontractors to aid 2River in performing the Services under the Agreement.  Client acknowledges and agrees that no third party may rely on any report, analysis, or other work product provided by 2River.
3.3. Additional Services.  To the extent Client requests from 2River additional services that are beyond 2River’s stated obligations in this Agreement or the then-current SOW, 2River may provide such services, in its sole discretion, at its standard time and materials rates (or such other pricing (or fees) as agreed to by the Parties) and subject to the terms of this Agreement and a new SOW.  Services, however, shall continue to be provided pursuant to the then-current SOW in effect until a new SOW (intended to replace or modify the then-current SOW) is mutually agreed upon by the Parties.
4. TRIAL PERIOD.
4.1. Trial Period. 2River may choose to offer a promotional trial period (“Trial Period”) for a particular 2River Solution. During such Trial Period, Client will have access to such particular 2River Solution for no additional charge (unless otherwise specified) for a limited time. The specific terms of the Trial Period shall be set forth online at https://www.2rcg.com/trial-period-terms or in the SOW.
4.2. Additional Terms and Conditions during Trial Period. During such Trial Period, this Agreement shall apply.  But, as noted above, additional terms and conditions shall apply as set forth in the SOW. Further, without limitation of the foregoing and notwithstanding anything to the contrary herein, any Client Content provided by Client during the Trial Period or any customizations made by or for Client during the Trial Period will be permanently deleted at the end of the Trial Period unless Client purchases the applicable 2River Solution. Moreover, 2RIVER DOES NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF THE 2RIVER SOLUTION DURING THE TRIAL PERIOD WILL MEET CLIENT’S REQUIREMENTS, OR (B) CLIENT’S USE OF THE 2RIVER SOLUTION DURING THE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR. FURTHER, 2RIVER WILL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY TYPE WITH RESPECT TO THE 2RIVER SOLUTION DURING THE TRIAL PERIOD. Your use of the 2River Solution during the Trial Period remains subject to these additional terms and conditions.
5. GENERAL OBLIGATIONS.  
5.1. Delivery of Client Content.  To assist with the foregoing, Client shall provide 2River with the Client Content in a timely manner and in the form and format reasonably requested by 2River.  In connection with delivering and providing 2River with access to and use of the Client Content, Client hereby grants to 2River a non-exclusive right and license to copy, distribute, create derivative works from, display, modify, reformat, transmit, and otherwise use any Client Content in connection with this Agreement.  Client must obtain at its sole expense, and provide 2River with reasonable proof thereof, all necessary consents, rights, permissions, and clearances required for 2River to use the Client Content.  Client shall also ensure that all Client Content is complete and accurate.
5.2. Authorized Users.  Client shall be permitted to provide access to the 2River Solution to up to the number of Authorized Users specified in the SOW.  Client further agrees to require all Authorized Users to accept the online “2River™ End User License Agreement” (the “EULA”) as 2River may revise from time to time, a current copy of which can be found online at https://www.2rcg.com/eula.  As it relates to use of the 2River Solution, this Agreement and the EULA shall be binding upon and applicable to each and every Authorized User of Client.  Client must therefore ensure that its and its Authorized Users’ use of the 2River Solution stays within the defined limits and parameters designated by 2River.  If Client learns that any Authorized User has breached any provision of the Agreement or the EULA, Client will immediately notify 2River and will also provide such reasonable assistance to 2River as it reasonably requests in enforcing the Agreement or the EULA.  2River, however, reserves the right to review and monitor compliance with the Agreement and the EULA and to otherwise protect its rights in the 2River Solution by monitoring usage and implementing other controls, processes, or security.  2River also reserves the right to suspend Client’s or any Authorized User’s access to the 2River Solution if Client or an Authorized User fails to comply with this Agreement or the EULA or otherwise uses the 2River Solution in a manner that exceeds good faith use or constitutes an excessive usage burden on 2River until such time as such failure or unauthorized use has been cured or 2River terminates the Agreement for breach.  In such event, 2River shall be relieved of its obligations under the Agreement and the SOW during the period of suspension and shall not be found to be in breach of the Agreement for such relief.
5.3. Other Client Responsibilities.  Client agrees that it shall be responsible and liable for its Client Content and for any activity undertaken by its Authorized Users through the 2River Solution.  Moreover, in addition to any other obligations set forth herein, Client agrees to undertake the following: (i) provide 2River with reasonable assistance in the implementation and ongoing maintenance of the 2River Solution by Authorized Users, (ii) reasonable cooperation with respect to performance of the Services and the delivery of any Client Content or other necessary information, materials, feedback or assistance (from personnel with the necessary expertise), approval (from persons with Client’s authority), or Client input (or resources), (iii) take such steps as reasonably necessary to protect the 2River Solution from unauthorized use, reproduction, copying, or third party access, including, using commercially reasonable efforts to maintain the confidentiality and limited use of user I.D.’s and passwords for Authorized Users, (iv) keep 2River reasonably informed as to any problems encountered with the 2River Solution, (v) remain responsible for obtaining, paying for, negotiating for or abiding by, or providing communication lines, modems, routers, interface equipment, and servers (and the related legal agreements) as necessary for access to the 2River Solution, and (vi) remain responsible for obtaining, paying for, negotiating for or abiding by, or providing all third party software, hardware, and firmware (and the related legal agreements) necessary for access to the 2River Solution.
5.4. Independent Contractors.  Neither Party shall enter into any contractual relationship or other legally binding obligation with any third party or person which shall have the purpose or effect of encumbering the other Party or use of the 2River Solution.
5.5. Compliance with Laws.  Client and 2River shall each undertake all measures necessary to ensure that each Party’s respective performance and fulfillment of duties under this Agreement complies in all respects with applicable U.S. laws, regulations, and other federal and state rules promulgated by governing authorities having jurisdiction over Client or 2River.
6. CONSIDERATION.
6.1. Fees. Client agrees to pay 2River in a timely manner the fees and charges set forth in the SOW for use of the 2River Solution and any other Services provided by 2River under this Agreement.
6.2. Payment.  Client shall be responsible for and shall pay all taxes, duties and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under the Agreement, including interest and penalties thereon (exclusive of taxes on 2River’s net income).  Client shall provide copies of any and all exemption certificates to 2River if Client is entitled to any exemption.  Client shall not offset or reduce any amount owed to 2River.  Client will reimburse 2River for any travel expenses incurred by 2River for any Services requiring an on-site visit at a location outside of 2River’s principal office.  2River will invoice Client for such travel expenses as provided for herein.  Client shall forward the payment of any fees to 2River at the address designated by 2River.  All fees and reimbursement are to be paid in US Dollars (USD/US$).  2River may generally increase any fee in its sole commercial discretion after any designated initial period or the first twelve (12) months of this Agreement (the “Initial Period”).  Unless otherwise indicated by 2River in the applicable SOW, all invoices that 2River submits to Client must be paid within thirty (30) days of the date of the invoice.  In the event Client exceeds the scope of the license granted above to the 2River Solution, and in addition to any other rights or remedies available to 2River, Client shall pay the then-standard fees (as designated by 2River) for the excessive use of the 2River Solution and such fees shall become immediately due and payable to 2River.  Client, however, may add other Authorized Users or obtain additional (permitted) license rights from 2River upon 2River’s prior written consent, which it may withhold in its sole discretion, so long as Client pays any required additional fees as specified by 2River.  All past-due payments will accrue interest at a rate of one and one-half percent (1.5%) or the highest rate permissible by law, whichever is less, per month on the unpaid balance from the due date until paid in full.  2River also reserves the right to terminate or suspend performance of the Services or access to the 2River Solution if Client fails to pay any amounts within thirty (30) days of when due.  Client shall reimburse 2River for all reasonable costs incurred (including reasonable attorney’s fees) in collecting past-due amounts.  Unless otherwise specified herein, all obligations with respect to the amounts due to 2River under the Agreement shall survive any expiration or termination of the Agreement.
7. PROPRIETARY RIGHTS.
7.1. Client Content.  All Client Content sent or transmitted into the 2River Solution by Client and its Authorized Users, as between the Parties, shall be and remain at all times the property of Client.  Any Client Content or any reports generated from and strictly using Client Content by Client or its Authorized Users from their use of the 2River Solution shall be considered the Confidential Information of Client, although Client’s rights shall not extend to any interface, unique formatting, or template reporting features that are incorporated into any report.  Client shall also own all rights to any copies of any Client Content generated from utilization of the 2River Solution or the Services.
7.2. 2River. This Agreement is not a sale of the 2River Solution nor is it a transfer or assignment of any rights in the 2River Solution.  The 2River Solution (and any Updates thereto) and all inventions, improvements, modifications, enhancements, derivatives, compositions, discoveries, know-how, processes, methodologies, formulas, designs, drawings, data, information, and works of authorship (including reports, drawings, art, schematics, notes, analyses, records lists and other documents, whether in draft form or final form, and whether in written, electronic or other format) in which any proprietary right exists or may be acquired or asserted anywhere in the world, and which are conceived, made, developed, discovered, written, authored, invented, created, or first reduced to practice by 2River or any of its personnel, alone or jointly or with any third party or parties in the course of performing Services under this Agreement and any patents, patent applications, continuations, continuations-in-part, divisionals, renewals and reissuances, copyrights, trademarks, service marks, trade names, and trade dress, trade secrets, design rights, data rights, mask work rights, moral rights, foreign equivalents of any of the foregoing, any other intellectual property rights, registrations of, and applications for, any of the foregoing, and the right to sue for any present or past violation, infringement, or misappropriation of any of the foregoing (collectively, the “2River Intellectual Property”) shall not be considered, and are not, a “work for hire” as determined under United States law and shall remain the property of 2River for all purposes and in all respects.  2River reserves all rights in and to the 2River Intellectual Property.  Except as set forth herein for the 2River Solution, no other license is granted to Client under this Agreement, by implication or otherwise, with respect to any 2River Confidential Information or 2River Intellectual Property.  Moreover, Client may not use the 2River Solution on a service bureau basis with any third party, for any other purposes not expressly permitted by 2River, or for the benefit of persons or entities other than Client and its Authorized Users.  Client also agrees that it will not reverse engineer or disassemble or make or cause to be made derivative works of any kind from the 2River Intellectual Property and Confidential Information.  In addition, Client shall not use the Confidential Information or the 2River Intellectual Property for the purpose of establishing a separate claim against 2River that is unrelated to any breach of the terms and conditions of this Agreement.
7.3. Trademarks.  
(a) Client hereby grants to 2River a royalty-free, worldwide, non-exclusive and revocable license, during the Term, to use the Client name and trademarks, service marks, or logos as designated by Client (collectively, “Client Marks”) for: (i) creation of the Private Label Service, if any, subject to review and approval as set forth in this Agreement; and (ii) 2River’s marketing and promotional purposes in connection with promoting the Services.  All rights in the Client Marks not expressly granted herein are reserved to Client.
(b) 2RIVER and all other names, logos, and icons identifying 2River’s products and services are proprietary marks of 2River and/or its licensors.  All names, logos and icons identifying Client and its products and services are proprietary marks of Client and/or its licensors.  Except as set forth herein, any use of a Party’s marks by the other Party shall inure to the benefit of the Party that owns the marks and/or its licensors and any use of such marks without prior written consent is strictly prohibited.  No reference may be made to 2River in any prospectus, proxy statement, offering memorandum, or similar document without 2River’s prior written consent.
7.4. Third Party Hardware and Software.  Any third party hardware or software shall be provided pursuant to the terms and conditions of the third party provider, supplier, or licensor.  Client is solely responsible for obtaining any licenses to third party software.
8. CONFIDENTIALITY & PERSONAL INFORMATION.
8.1. Agreement Confidential.  The Parties agree that the specific terms of this Agreement, including any exhibits or schedules, are and shall be the Confidential Information of both Parties.  Neither Party may disclose this Agreement, its terms, or any exhibit or schedule to any third party or person, except as may reasonably be required to enforce the terms of this Agreement, and/or to its attorneys, accountants, shareholders, directors, parent organizations, tax authorities, or as otherwise required by law, subject in all cases to any permitted third party or person being under the same obligation to keep the information confidential as called for in this Agreement.
8.2. Confidentiality and Non-Disclosure.  Each Party agrees to preserve the confidentiality of all Confidential Information of the other Party that is obtained in performance or connection with this Agreement, and shall not, without the prior written consent of the other Party, disclose or make available to any person, or use for its own benefit or that of another person or entity other than as contemplated by this Agreement, any Confidential Information of the other Party, subject in all cases to any permitted third party or person being under the same obligations to keep the information confidential as called for in this Agreement.  Each Party shall exercise the same level of care it would exercise to safeguard its own Confidential Information concerning Confidential Information received from the other, provided that such efforts shall at least be in accordance with generally recognized industry standards.  These restrictions do not apply to Confidential Information which the Receiving Party (i) is required by law or regulation to disclose, but only to the extent and for the purposes of such law or regulation; (ii) discloses in response to a valid order of a court or other governmental body, but only to the extent of and for the purposes of such order, and only if the Receiving Party first notifies the Disclosing Party of the order and permits the Disclosing Party to seek an appropriate protective order or move to quash or limit such order; or (iii) discloses with written permission of the Disclosing Party, in compliance with any terms or conditions set by the Disclosing Party regarding such disclosure.
8.3. Information Security.  2River acknowledges that the Client Content provided hereunder or stored in connection with this Agreement may include personally identifiable information of individuals (“Personal Information”).  Notwithstanding anything to the contrary herein, 2River specifically covenants and agrees:
(a) Except as necessary to provide the 2River Solution and the related Services as set forth herein, 2River will not access, use, disclose or make available or allow others to access, use, disclose or make available Personal Information for any purpose, subject in all cases to any permitted third party being under the same obligations not to access, use, disclose or make available the Personal Information.  2River agrees to destroy, in any form or format, all copies of any Personal Information in its possession upon Client’s request.
(b) Except as necessary to provide the 2River Solution and the related Services as set forth herein, 2River will not, directly or indirectly, disclose Personal Information or Client Content to anyone, including without limitation subcontractors, agents, outsourcers and auditors, without express written permission from Client, subject in all cases to any permitted third party being under the same obligation not to disclose to anyone any Personal Information or Client Content.  Moreover, 2River will not, directly or indirectly, disclose Personal Information or Client Content to law enforcement or government bodies unless and to the extent required by law enforcement or government bodies or as otherwise to the extent expressly required by applicable law or regulations or legal process, but in such event 2River shall notify Client in writing promptly upon receipt of notice of such requirement, so that Client may determine whether to take appropriate action to protect the Personal Information or Client Content.  To the extent 2River discloses or makes Personal Information or Client Content available to any subcontractors or other third party, 2River shall require pursuant to a written agreement signed by the third party that the third party complies with the terms and conditions of this Agreement as if they were 2River.
(c) 2River will employ commercially reasonable security measures in providing the 2River Solution and as required by applicable law.  Nevertheless, Client acknowledges and agrees that 2River makes no representation or warranty that its security measures will be completely effective and 2River shall have no liability for the breach of its security measures, for any viruses or other harmful programming or codes, or for the integrity of the 2River Solution, unless caused by the gross negligence or willful misconduct of 2River.
(d) 2River hereby acknowledges and agrees that its handling, storage, and disposal of Personal Information shall comply with all applicable federal and state laws and regulations relating to privacy and protection of Personal Information.
(e) In accordance with this Agreement, 2River is only responsible for any unauthorized access to Personal Information and Client Content under the control of, or in the possession of, 2River or 2River’s employees, agents or subcontractors.
9. REPRESENTATIONS, WARRANTIES AND DISCLAIMER.
9.1. Client Representations.  Client represents to 2River that (i) Client has the full authority and right to enter into this Agreement, provide any Client Content, and to grant any sublicenses to Authorized Users; (ii) the undersigned representative of Client is authorized to execute or agree to this Agreement on behalf of Client; (iii) Client has all rights necessary to provide and grant to 2River that right to use the Client Content; and (iv) Client will not introduce any viruses, Trojan horses, worms, time bombs, cancelbots, back doors, trap doors, timers, clocks, counters, or other computer programming defects or other limiting designs, instructions, routines, or other harmful or other disruptive components (“Malware”) into the 2River Solution.
9.2. 2River Representations and Warranties.  2River represents and warrants to Client that: (i) 2River has the right and authority to enter into and perform its obligations under this Agreement; (ii) this Agreement has been duly executed and delivered by 2River and constitutes the legal, valid and binding obligation of 2River, enforceable in accordance with its terms; (iii) the execution, delivery and performance of this Agreement does not and will not conflict with, any contract to which 2River is bound; (iv) 2River owns, will own or otherwise has sufficient rights and interests in or to the 2River Solution necessary to enter into this Agreement and to grant the rights described in this Agreement; (v) 2River will not introduce any Malware into the 2River Solution; and (vi) in its provision of the 2River Solution and the Services hereunder, it will not violate any applicable laws, rules or regulations.
9.3. Warranty Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, CLIENT AND 2RIVER DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  MOREOVER, THE 2RIVER SOLUTION IS PROVIDED AS-IS AND AS AVAILABLE, AND THAT SUCH 2RIVER SOLUTION MAY INCLUDE PUBLICLY AVAILABLE OR THIRD PARTY-SOURCED INFORMATION WHICH MAY BE INACCURATE OR INCOMPLETE.  2RIVER MAKES NO WARRANTY WHATSEVER WITH RESPECT TO ANY THIRD PARTY SOFTWARE.
10. INDEMNIFICATION. 
10.1. Indemnification Obligations.  Each Party shall indemnify, hold harmless, and defend the other Party, its affiliates and their respective directors, officers, members, managers, employees, agents and representatives (collectively, the “Indemnified Parties”), from and against any and all actions, disputes, proceedings, claims, damages, expenses, liabilities, losses and costs, including reasonable fees of attorneys and other professionals, (collectively, “Losses”) arising out of or relating to third party claims resulting from (i) any breach of this Agreement by the indemnifying Party or (ii) any claim against a Party for personal injury or tangible property damage directly attributable to the willful misconduct or gross negligence of the other Party arising out the performance under this Agreement.
10.2. General Indemnification Procedure Terms.  With respect to each Party’s respective indemnification obligations, each Party will defend at its expense any action brought against the other Party and will pay any costs, fees and damages finally awarded against such Party in such action or to be paid in settlement of such claim; provided that, either Party shall not be required to pay or agree to any settlement which it has not approved.  As a condition to receiving any such indemnification, each Party shall promptly notify the other Party in writing of such applicable claim.
11. LIMITATION OF LIABILITY AND DAMAGES.
11.1. Limitation of Liability.  EXCEPT FOR THE SPECIFIED INDEMNIFICATION OBLIGATIONS HEREIN OR FOR A VIOLATION OF THE CONFIDENTIALITY OBLIGATIONS HEREIN OR EITHER PARTY’S PROPRIETARY RIGHTS, IN NO EVENT SHALL THE PARTIES BE LIABLE TO EACH OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, WHETHER IN AN ACTION BASED UPON CONTRACT, TORT OR OTHERWISE.  NO THIRD PARTY SHALL BE ENTITLED TO ANY CLAIM OR REMEDY UNDER THIS AGREEMENT.
11.2. Maximum Liability.  CLIENT SHALL NOT BE RESPONSIBLE FOR ANY FAILURE BY CLIENT TO FULFILL OR PERFORM A CLIENT RESPONSIBILITY HEREIN OR HEREUNDER.  CLIENT’S SOLE REMEDY FOR 2RIVER’S LIABILITY REGARDING THE PERFORMANCE OF SERVICES, IF ANY, PROVIDED UNDER THIS AGREEMENT SHALL BE LIMITED TO THE RE-PERFORMANCE OF ANY DEFECTIVE SERVICE PROVIDED BY 2RIVER, OR IF RE-PERFORMANCE IS NOT AVAILABLE OR PRACTICAL, THEN A PRO RATA REFUND OF THE FEES PAID TO 2RIVER THAT ARE ALLOCABLE TO DEFECTIVE SERVICE.  MOREOVER, EXCEPT FOR A PARTY’S LIABILITY HEREUNDER ARISING OUT OF (i) SUCH PARTY’S INDEMNIFICATION OBLIGATONS HEREIN TO THE OTHER PARTY, (ii) SUCH PARTY’S VIOLATION OF THE PROPRIETARY RIGHTS OF THE OTHER PARTY, (iii) SUCH PARTY’S GROSS NEGLIGENCE, FRAUD OR WILFULL MISCONDUCT ARISING FROM PERFORMANCE UNDER THIS AGREEMENT, AND/OR (iv) SUCH PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL THE LIABILITY OF SUCH PARTY EXCEED THE FEES PAID BY CLIENT UNDER THIS AGREEMENT DURING THE PRIOR TWELVE (12) MONTHS, REGARDLESS OF THE FORM OF THE ACTION.
11.3. Bargained-For Limitation.  THE PARTIES AGREE THAT THE LIMITATIONS IN THIS SECTION ARE A BARGAINED-FOR EXCHANGE AND A MATERIAL CONDITION AND PREMISE OF THIS AGREEMENT.
12. TERM AND TERMINATION.
12.1. Term.  Unless terminated earlier as provided for herein, the term of this Agreement (“Term”) shall be effective the earlier of Client (or its representative) (1) clicking a box indicating acceptance (online), (2) executing a Statement of Work that references this agreement, or (3) using Services (defined below) under a Trial Period (defined below) (“Effective Date”) and be in effect for twelve (12) months or the defined period of time set forth in SOW, whichever occurs earlier.  Following this initial period, this Agreement will automatically renew for successive twelve (12) month periods, unless (i) terminated earlier by either Party as provided for herein, (ii) Client provides to 2River written notice of its intent not to renew at least sixty (60) days prior to the expiration of the then-current twelve (12) month period or (iii) 2River provides to Client written notice of its intent not to renew at least one hundred eighty (180) days prior to the expiration of the then-current twelve (12) month or initial period.
12.2. Termination.  This Agreement may be terminated by written notice from one Party to the other Party in the following circumstances:
(a) Breach.  Either Party may terminate if the other Party materially breaches any of its representations or warranties or fails to observe or perform, or breaches, any material term or condition of this Agreement (including failure to pay any fees required by this Agreement or unauthorized use of the 2River Solution) and does not cure such breach or failure within thirty (30) days after receipt of written demand, or does not, in the case of breach by 2River, cure such breach or failure within fifteen (15) days after receipt of written demand.
(b) Bankruptcy/Insolvency.  If permitted by law, either Party may terminate by providing written notice to that effect if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against such other Party and is not dismissed within forty-five (45) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party.
(c) Convenience.  Commencing on the one (1) year anniversary of the Effective Date, and continuing for the duration of the Term, Client may terminate this Agreement at any time effective upon thirty (30) days’ notice.
12.3. Duties upon Termination.  Upon termination or expiration of this Agreement for any reason (i) all rights and licenses granted hereunder shall immediately terminate and Client shall immediately cease all use of 2River Intellectual Property, including, without limitation, the 2River Solution, (ii) at the request of the Disclosing Party, the Receiving Party will immediately return (or destroy and not retain in compliance with best industry practices for the destruction or erasure of such information) the Confidential Information of such other Party in its possession, custody, or control, (iii) Client shall immediately return to 2River all 2River materials in its possession, custody, or control in whichever form held (including all copies or embodiments thereof), (iv) 2River shall immediately return to Client all Client Content in its and its contractors and suppliers possession, custody, or control in whichever form held (including all copies or embodiments thereof), and (v) each Party shall provide to the other, as soon as possible, an affidavit executed by an officer certifying that it has complied with all of its termination duties under this Agreement.  Notwithstanding the foregoing, Client shall remain obligated to pay to 2River any fees or charges that were due prior to termination or expiration.  Termination or expiration of this Agreement shall not restrict either Party from pursuing other remedies available to it, including, without limitation, injunctive relief.  The Parties recognize and agree that the definitions and their respective obligations under Sections 1, 6, 7 (in accordance with its terms), 8.1 – 8.2, 9, 10 (for a period of two (2) years after termination or expiration), 11, 12.3, and 13.2 – 13.15 of this Agreement survive the cancellation, termination, or expiration of this Agreement.
12.4. Transition Rights.  Upon expiration or termination (other than for breach) of this Agreement, 2River shall, at Client’s written request, continue to provide all services (including access and use of the 2River Solution and related services) to Client and its Authorized Users for a transition period of up to one hundred eighty (180) days after such expiration or termination at the rates and charges, and pursuant to each Party’s compliance with the other terms and conditions, set forth in this Agreement as of the date of expiration or termination.  During the transition period, a successor vendor may be retained by Client to provide services to Client.  During Client’s migration to a successor vendor following the expiration or termination (other than for breach) of this Agreement, 2River shall reasonably cooperate with Client and the successor vendor in the development and execution of a plan for the orderly and efficient transition to the successor vendor.  To the extent any transition related services are performed for Client or with a successor vendor, Client agrees to pay 2River for such services at 2River’s standard hourly rates.  Moreover, Client agrees that 2River shall not be obligated, nor shall Client be permitted, to disclose any Confidential Information of 2River to any successor vendor.  This Section does not apply to any Trial Period offered.
13. GENERAL.
13.1. Insurance.  2River shall maintain at its own expense during the Term, insurance policies as follows: (i) worker’s compensation insurance, as required by law, meeting statutory requirements; (ii) general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) in the aggregate; and (iii) errors and omissions insurance in an amount not less than one million dollars ($1,000,000) per claim and one million dollars ($1,000,000) in the aggregate.  2River shall provide Client with certificates of insurance evidencing such coverage upon request.  All insurance required shall be with companies duly maintaining during the policy term a “financial strength rating” of at least an A-, VII or better as determined by AM Best.
13.2. Use of Client’s Name.  Client agrees that 2River may use Client’s name to disclose that it is a client or user of 2River’s products and services in 2River’s advertising, promotion, and similar public disclosures with respect to the Services or the 2River Solution; provided, however, that such advertising, promotion, or similar public disclosures shall not indicate that Client in any way endorses 2River’s products or services, without the prior written permission of Client.  Except for the foregoing, neither Party shall issue any press release or other public statement regarding the subject matter hereof or otherwise use the other Party’s names, trademarks, service marks, logos, or trade dress unless the other Party has previously approved it.  Notwithstanding the foregoing, either Party may make such disclosure as may be required by applicable law.
13.3. Assignment.  Client may not assign or otherwise transfer this Agreement or the licenses granted hereunder or delegate any of its duties hereunder, in whole or in part, to any other party or person without obtaining the prior written consent of 2River and any attempt to so assign or transfer without first obtaining such consent shall be void, of no effect, and a material breach of this Agreement.
13.4. Non-solicitation.  During the Term of this Agreement and the six (6) month period thereafter, neither Party will hire or retain as an employee, consultant, independent contractor, or in any other capacity any employee or former employee (within six (6) months of the termination of such person’s employment) of the other Party, without the other Party’s prior written consent.
13.5. Force Majeure/Interruption.  Neither Party shall be liable for delays or any failure to perform under this Agreement due to causes beyond its reasonable control.  Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe; governmental legislation, acts, orders, or regulation; strikes or labor difficulties, acts of God; or acts of war or terrorism, in each case to the extent not occasioned by the fault or negligence of the delayed party.  Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed Party.  However, the delayed Party shall use commercially reasonable efforts to minimize the delays caused by any such event.  In addition, the delayed Party must notify the other Party promptly upon the occurrence of any such event, or performance by the delayed Party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance.
13.6. No Third Party Beneficiaries.  This Agreement is not intended to confer any benefit on any person or entity not a Party hereto; provided the foregoing shall not be construed as restricting any Authorized User designated by Client from accessing and using the 2River Solution subject to the terms and conditions hereof.
13.7. Section Headings.  The titles and headings of the sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended to explain, modify, or interpret the provisions of this Agreement.
13.8. Relationship.  The relationship between the Parties to this Agreement is and shall be that of independent contractors and licensor/licensee only and nothing in this Agreement shall be construed or used to create or imply any relationship of partners, joint venturers, or employer and employee between the Parties.
13.9. Waiver, Amendment or Modification.  No failure or delay by either Party in exercising any right, power or remedy with respect to any of the provisions of this Agreement shall operate as a waiver thereof.  The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless in writing and signed by the Party against whom enforcement of such waiver, amendment or modification is sought.  The terms of this Agreement may not be amended or changed by the terms of any purchase order, acknowledgment, invoice or similar document even though a Party may have signed or accepted such document.  This Agreement may only be modified pursuant to the written agreement of both Parties.
13.10. Severability.  In the event any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void or unenforceable, the Parties agree that unless it materially affects the entire intent and purpose of the Agreement, the invalidity, voidness, or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.
13.11. Notices.  Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered by hand, mailed postage prepaid by certified or registered mail, return receipt requested, or transmitted by facsimile, with receipt confirmed, effective upon receipt.  Notices to each Party shall be sent to the address first set forth above for each Party, or to such other address as such Party may designate by written notice to the other Party.
13.12. Governing Law. This Agreement shall be governed by the laws of the District of Columbia without regard to conflicts of laws provisions thereof and each Party submits to the jurisdiction and venue of any District of Columbia or Federal court generally serving the District of Columbia area with respect to the subject matter of this Agreement.
13.13. Dispute Resolution. Any claim arising out of or relating to performance under this Agreement that cannot be resolved by the Parties pursuant to informal mediation (lasting no more than thirty (30) days) between them, shall be settled by final and binding arbitration before a single arbitrator and pursuant to the American Arbitration Association’s Commercial Arbitration Rules and Procedures, as amended by the terms of this Agreement.  The arbitrator selected shall have experience with and knowledge of the subject matter of the claim and dispute.  The arbitration shall take place in a mutually agreed upon location and conducted in strict confidence.  Each Party shall bear its own costs and expenses and an equal share of the arbitrator’s and administrative fees of arbitration, and the arbitration and all related proceedings and discovery will take place pursuant to a protective order entered by the arbitrator that adequately protects the confidential nature of the Parties’ proprietary and confidential information.  The arbitrator shall apply the substantive law of the District of Columbia (exclusive of its choice of law principles), or if applicable, U.S. federal law (including federal arbitration law).  The arbitrator’s decision shall follow the plain meaning of the relevant documents and shall be final and binding.  The award may be confirmed and enforced in any court of competent jurisdiction.  The arbitrator’s power to award damages shall be limited by the terms of this Agreement, and no arbitration award may provide a remedy beyond those permitted under this Agreement.  Any award providing a remedy not permitted under this Agreement will not be valid and shall be vacated.  No claim may be brought as a class action, combined or consolidated with any other proceedings, nor may any proceeding be pursued in a representative capacity or on behalf of a class.  Neither Party may act as a class representative or participate as a member of a class of claimants with respect to any claim.  Notwithstanding the foregoing, 2River may, without waiving any remedy under this Agreement, seek interim or provisional or other legal, injunctive, or equitable relief from any court of competent jurisdiction to enforce the payment obligations due and owing by Client pursuant to this Agreement or to protect or enforce 2River’s Confidential Information and 2River Intellectual Property, regardless of the mediation and arbitration requirements.
13.14. Counterparts.  This Agreement may be executed in counterparts (including facsimile counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same agreement.
13.15. Entire Agreement.  This Agreement, which includes any schedules or exhibits attached hereto, represents the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous statements, representations or agreements, whether oral or written, with respect to the subject matter of this Agreement.
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