MASTER SOLUTION AND SERVICES AGREEMENT

This Master Solution and Services Agreement (the “Agreement”) is entered into between iTradeNetwork, Inc., a Delaware corporation with an address at 4160 Dublin Blvd., Suite 300, Dublin, CA 94568 (“iTradeNetwork”), and the customer identified on the Order Form (“Customer”) (each a “Party and collectively the “Parties”).

Order Form(s) become binding on the Parties and subject to this Agreement upon execution of an Order Form effective as of the last date of signature of the Order Form (the “Effective Date”). 

Agreement Version: July 14, 2020

Each Party agrees that the following terms and conditions govern each Order Form and/or SOW that references this Agreement:

1.        Definitions. 

Affiliates” shall mean any entity that controls or is controlled by such party, or is under common control with such party. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least fifty-one percent (51%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation).   

Authorized Link” means one or more hyperlinks from a Customer site(s), or an extranet established by the Parties, to the Site in order to provide Authorized Users access to a Solution.

Authorized User” means an individual(s) authorized by Customer and designated to iTradeNetwork to receive access to a Solution who have received a User ID, password and security authentication measure to access and use a Solution.  The number of Authorized Users shall be designated in the applicable Order Form.

Customer Data” means any and all information, data and/or software provided, input or uploaded to the Solution by an Authorized User.

Enhanced Data” means the raw data received by iTradeNetwork that has been processed through and enhanced by an iTradeNetwork Business Intelligence Solution. Enhanced Data may also include additional applicable information from iTradeNetwork’s database.

Intellectual Property Rights” means patents, copyrights, trademarks, service marks, trade names, design rights, and applications or registrations with respect to any of the foregoing, and other similar protected rights in any country throughout the world.

iTradeNetwork Support” means general support for Subscription Services provided by iTradeNetwork’s support team, exclusive of Project Maintenance.

Network Architecture” means any hardware configurations and architecture, and related software, provided by iTradeNetwork for the Solution.

Order Form” means an attachment to this Agreement or a standalone order, including without limitation one that describes a Solution or a SOW that describes Professional Services to be provided, pursuant to the terms and conditions of this Agreement and incorporated herein.

Professional Services” means implementation, integration, education, value acceleration, consulting or other special services that iTradeNetwork provides as described in any SOW or Order Form.

Project Maintenance” means the support of Subscription Services for additional agreed to software functionality to a Solution provided by iTradeNetwork to Customer under an Order Form or SOW solely for Customer’s internal business operations.  

Related Materials” means all manuals, instructions, documents, files, and tangible and intangible items that are provided to Customer by iTradeNetwork for use in connection with a Solution.

Site” means the http numerical address through which Authorized Users may access the Solution.

Solution” means the iTradeNetwork software module(s) as specified in the applicable Order Form or SOW, including without limitation the collective bundling of the Authorized Links, the Site, any and all third party material and Network Architecture, that describes a Solution and the service terms related to that Solution.

SOW” means statement of work for Professional Services.

Subscription Services” means the access to Solution as a hosted service by iTradeNetwork or its third party provider, as the case may be, including any associated downloadable components to the extent applicable.

Technology” means all technology, including but not limited to, all ideas, concepts, inventions and software, developed by iTradeNetwork and all related Intellectual Property Rights.

Trading Partner” means third parties with which Customer transacts business. 

User ID” means a multi-character alpha, numeric or alphanumeric set of characters required by an Authorized User to access and use the iTradeNetwork Solution.

2.          Solution(s).

                  2.1             Solution(s).  iTradeNetwork agrees to provide Customer access to Subscription Services for each Solution as set forth and for the purposes described in the applicable Order Form or SOW referencing this Agreement. Subject to the terms and conditions of this Agreement and applicable Order Forms(s), iTradeNetwork grants Customer a nonexclusive, nontransferable, limited right to access and use the Solution(s), Related Materials and any Customer-specific Enhanced Data (if applicable) during the term as specified in the applicable Order Form solely for its internal business operations. iTradeNetwork’s obligation to provide access to a Solution is expressly subject to: (1) Customer and Trading Partners providing iTradeNetwork with all necessary data, order guides, purchase orders, account, product and transaction details and other information reasonably required and requested by iTradeNetwork to provide each Solution hereunder (“Customer Information”) in the manner and formats reasonably required and requested by iTradeNetwork, and (2) the possession and/or installation by Customer and Trading Partners of the technology required for iTradeNetwork to provide the Solution and that meets the minimum system requirements specified in the applicable Order Form. Customer represents that it has all necessary rights to the Customer Information provided to iTradeNetwork hereunder. 

                  2.2             Proprietary Rights.  Ownership of and all right, title and interest to each Solution, Technology and Related Materials (including but not limited to, originals, translations, compilations and partial copies, if any), and any enhancements or derivative works thereof and all related Intellectual Property Rights, shall remain solely in iTradeNetwork and its licensors.  Except as specifically authorized in writing by iTradeNetwork, Customer may not, nor allow others to, copy or otherwise reproduce any Solution, Technology, or Related Materials in whole or in part or attempt to unlock, download, reverse assemble, reverse compile, run third-party software applications other than approved integrated applications or browsers upon, or disrupt operation of any Solution or Technology.  Customer will not, and will ensure that any agent of Customer does not, delete or in any manner alter the copyright, trademark, and any other proprietary rights notices of iTradeNetwork, if any, appearing on a Solution, Technology, or Related Materials as delivered to Customer.  Customer will reproduce such notices on all authorized copies it makes of any Related Materials.  Customer’s use of any Solution, Technology, or Related Materials will be limited to the use described in the applicable Order Form and only in connection with and only so long as, Customer is entitled to use a Solution in accordance with this Agreement. Customer agrees not to: (1) provide access to any Site or Solution to any third party or person who is not an Authorized User of such Site or Solution and Customer shall ensure that the Authorized Links shall only be used by Customer and its Authorized Users solely for the purposes of and in accordance with the terms of this Agreement; (2) directly, or through any third party, sell, license, barter, trade, transfer,  or otherwise make or allow access to a Solution to any third party without iTradeNetwork’s prior written consent; (3) allow any further processing or analysis of Enhanced Data (other than mere reformatting for presentation purposes) or Confidential Information through any outsourced service or application competitive with iTradeNetwork and not approved by iTradeNetwork; or (4) attempt to derive any of iTradeNetwork’s product naming conventions or methods for deriving any iTradeNetwork product codes or iTradeNetwork product names. 

                  2.3             Access and Use.  To the extent that any access is granted hereunder, any such access shall be non-exclusive, non-transferable, limited access to utilize the Solution or Site solely for the purposes of and in accordance with the terms and conditions of this Agreement. For the avoidance of any uncertainty, upon the termination of this Agreement the right of access and use of any Solution, and to the extent applicable any related access grants, shall end. Authorized User seats cannot be shared by more than one (1) individual but may be assigned to new users who are replacing Authorized Users. The number of Authorized Users shall be defined in an Order Form.

                  2.4             iTradeNetwork Support.  iTradeNetwork will provide its standard support to Customer and Customer’s Authorized Users of the iTradeNetwork Subscription Services subscribed by Customer under this Agreement. Such standard support terms and conditions may be found at the following location: https://www.itradenetwork.com/itradenetwork-support-and-service-levels/ which may be updated from time to time.  SOW Maintenance (if applicable) is excluded from iTradeNetwork Support and if provided, will require a SOW.

3.          Professional Services.

                  3.1             Subscription Services Implementation.  iTradeNetwork will implement Subscription Services in accordance with the terms set forth in the applicable Order Form or SOW.

                  3.2             Additional Professional Services.  From time to time Customer may request from iTradeNetwork additional Professional Services by providing iTradeNetwork with a reasonably detailed written scope of work. Customer has no obligation to request, and iTradeNetwork has no obligation to perform Professional Services. An iTradeNetwork project manager will schedule a time to discuss Customer’s request, and to begin assessing and scoping the Project with Customer. Following the initial meeting(s), iTradeNetwork will assess and scope the proposed engagement (each a “Project”), and then prepare a SOW that specifies, among other things: (1) scope (i.e., “what is being provided”), (2) contact information, (3) logistics, (4) work estimate, including milestones/deliverables, expected resource requirements and estimated time, (5) Customer resources and responsibilities, (6) deliverable schedule, and (7) fees. A separate SOW will be required for each Project. Neither Party is obligated to enter into nor sign a SOW. Each SOW will become part of this Agreement when signed by both Parties. Either Party may request to terminate a SOW upon thirty (30) days prior written notice.  Any such termination shall be subject to a Change Request (“CR”) specifying the termination date and executed by the Parties.  Notwithstanding anything herein to the contrary, in the event Customer terminates a SOW, Customer shall be obligated to pay in full without deduction or offset all unbilled or unpaid fees incurred by iTradeNetwork for the Professional Services provided up to the date of termination plus any non-cancellable commitments that have been incurred by iTradeNetwork.  On the termination date, iTradeNetwork will immediately cease performing the Professional Services. Any unbilled or unpaid fees set forth in an SOW shall be non-refundable and non-cancelable.

4.          Fees and Payment Terms.

                  4.1             Fees. Customer shall pay iTradeNetwork the fees in US dollars in the amounts and on the terms set forth in the applicable Order Form and for each Project in the amounts and on the terms set forth in the applicable SOW.

                  4.2             Payment Terms. Fees shall be due and payable net thirty (30) days from invoice date without deduction or offset. Except as otherwise specified in an Order Form or SOW, iTradeNetwork invoices are paid on an annual basis in advance. If a credit card, debit card, or any other purchasing/charge card is used as a method of payment, a convenience fee of 3.2% of the total invoice fee will be applied to the invoice. All invoices and payments are non-refundable and non-cancellable.  For avoidance of doubt, if Customer account is active with iTradeNetwork any day during the service period being billed, Customer will be charged for services for the entire period.  Fees do not include taxes (if any), or out-of-pocket costs incurred by iTradeNetwork for materials, or travel and living expenses, content, or other materials or charges from third parties on behalf of Customer. Customer will pay and bear the liability for any taxes associated with Subscription Services and/or Professional Services, including sales, use, excise and VAT, but excluding taxes on iTradeNetwork’s income, capital or gross receipts. Customer agrees to reimburse iTradeNetwork for any travel or living expenses incurred by iTradeNetwork within thirty (30) days from invoice date in accordance with the terms stated in applicable Order Form or SOW.  At Customer’s request, iTradeNetwork will provide original receipts and documentation supporting such costs. Payments made after their due date will incur a daily simple interest from the original invoice due date at a rate equal to 1.5% per month or the maximum rate permitted by applicable law, whichever is lower.  Customer shall pay all such interest and reasonable costs of collection, including but not limited to, reasonable attorneys’ fees and court costs.  If Customer does not pay iTradeNetwork within fifteen (15) days after the due date of any invoice, iTradeNetwork may, with prior written notice at its sole discretion, in addition to pursuing any of its other remedies, either suspend Subscription Services and/or performance of the applicable Professional Services until all outstanding payments are made, or terminate the applicable Order Form or SOW, and/or this Agreement. No such suspension shall affect iTradeNetwork’s rights or Customer’s accrued obligations hereunder. iTradeNetwork may adjust its fees as a result of any changes to the parameters noted in the applicable Order Form (e.g. trading volume and/or Authorized Users).

5.          Term and Termination.

                  5.1             Term.  The term and termination of each Solution is set forth in the applicable Order Form.  This Agreement shall continue in full force and effect until all Order Forms and SOWs subject to this Agreement have expired or been terminated, or until both Parties agree in writing to terminate this Agreement and all Order Forms and SOWs in effect at that time. Termination of one Order Form or SOW shall not affect any other Order Form or SOW.

                  5.2             Termination for Breach.  After complying with Section 12.5, either Party may terminate this Agreement and all Order Forms and SOWs in effect at the time effective thirty (30) days after written notice to the other Party describing in reasonable detail the other Party’s material breach of this Agreement and demanding a cure, but only if such breach is not cured within such thirty (30) day period. This right to cure does not apply to payment obligations for which such cure period shall be fifteen (15) days. 

                  5.3             Termination in the Event of Bankruptcy or Insolvency.  Either Party may terminate this Agreement and all Order Forms and SOWs in effect at the time, in the event the other Party has entered into a bankruptcy proceeding for sixty (60) days without dismissal.

                  5.4             Effect.  Upon termination or expiration of this Agreement and all Order Forms Customer shall cease all access, license rights and use of the iTradeNetwork Solution(s), provided for hereunder, and without further notice or demand by iTradeNetwork, Customer shall take reasonable steps to destroy all iTradeNetwork Confidential Information and such other iTradeNetwork property or certify that it shall not use the same except for archival reasons, legal or other similar recordkeeping reasons. In such event Customer acknowledges and agrees that it shall continue to be bound by its confidentiality obligations hereunder so long as Customer retains possession of iTradeNetwork’s Confidential Information or other iTradeNetwork property.  

                  5.5             Survival.  Accrued payment obligations and the rights and obligations of the Parties under Sections 2.2, and 4 through 11 shall survive termination of this Agreement.

6.          Warranties and Remedies.

                  6.1             Compliance with Laws.  Each Party represents and warrants that it shall perform its obligations in a manner that complies with applicable laws, rules, regulations, ordinances and codes in the applicable jurisdiction where business is being conducted. For the avoidance of any uncertainty, Customer will be responsible for the identification and interpretation of any applicable laws, regulations, and statutes that affect Customer’s application systems, programs, or data to which iTradeNetwork will have access to during the provision of any Professional Services.  It is Customer’s responsibility to ensure the systems, programs, and data meet the requirements of those laws, regulations and statutes. 

                  6.2             Limited Warranties. iTradeNetwork hereby warrants that, during the term of this Agreement, it will provide each Solution in material conformance with the requirements set forth in the applicable Order Form, and the Professional Services in a professional manner in accordance with generally accepted industry standards.  Upon breach of this warranty, iTradeNetwork, at its sole expense, will use commercially reasonable efforts to correct any material non-conformance within sixty (60) days after iTradeNetwork receives written notice from Customer that includes information sufficient to permit iTradeNetwork to recreate the non-conformance. If iTradeNetwork is unable to correct such non-conformance after using commercially reasonable efforts, iTradeNetwork’s sole liability, and Customer’s sole remedy, is to terminate the relevant SOW and obtain a refund of the amount only that Customer paid to iTradeNetwork for the services iTradeNetwork is unable to correct.  Customer acknowledges that the Subscription Services are complex with a variety of dependencies, and as such, iTradeNetwork cannot guarantee that any Subscription Services will be provided without error or interruption or accepted by any third party.

                                      6.2.1             Disclaimer. EXCEPT AS PROVIDED IN SECTION 6.1 AND 6.2, ITRADENETWORK AND EACH OF ITS LICENSORS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY SOLUTION, THE PERFORMANCE OF THE PROFESSIONAL SERVICES, OR ANY OTHER SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS OR SUFFICIENCY FOR CUSTOMER’S PARTICULAR PURPOSE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE.  ITRADENETWORK DOES NOT WARRANT THAT THE SOLUTION, SERVICES OR ANY OF THE DELIVERABLES WILL BE PROVIDED WITHOUT DEFECT OR ERROR. 

                                      6.2.2             Limitations and Exceptions.  iTradeNetwork’s warranty obligations are expressly subject to: (a) the Solution being used in accordance with this Agreement and the applicable Order Form; and (b) Customer providing written notice to iTradeNetwork of any alleged breach of such warranty promptly after Customer becomes aware of such breach.  Notwithstanding anything else in this Agreement, iTradeNetwork shall have no liability under this Agreement or any applicable Order Form, pursuant to the warranty in this Section 6 or otherwise, arising out of or relating to: (1) any use, re-transmission or reliance on inaccurate or incomplete Customer Information or other information from Customer or an Trading Partner, vendor, agent or other third-party; (2) the failure of Customer, a Trading Partner, vendor or agent to provide the necessary information to iTradeNetwork in a timely manner and specified delivery method and formats according to the established schedule; or (3) non-iTradeNetwork errors, modifications or omissions in use of, or input of any information or data in connection with, a Solution.

                  6.3             Customer Warranties.  Customer on behalf of itself and each Authorized User, represents and warrants to iTradeNetwork that any and all Customer Data required for any Solution will not materially: (i) violate any applicable law, rule, regulation, code or ordinance; (ii) infringe the Intellectual Property Rights of any third party; (iii) in any way violate or infringe upon any third party’s privacy right, right of publicity or any other right of any person or entity; (iv) be false, inaccurate, obscene or misleading; (v) contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) contain any material which is unlawful, hateful, obscene, libelous, threatening or defamatory.  Customer acknowledges that iTradeNetwork has no obligation to monitor the Customer Data, but, in the event that iTradeNetwork becomes aware that any item of Customer Data does or may violate the warranty and representation set forth in this Agreement, Customer agrees that iTradeNetwork shall have the right to remove, and either return to Customer (if permitted to do so) or store at Customer expense and exercise reasonable commercial efforts to safeguard such item pending resolution, and the Parties agree to work together promptly and in good faith to remedy any such Customer Data issues. 

7.          Indemnification. 

                  7.1             By iTradeNetwork. iTradeNetwork at its own expense, shall defend Customer and its officers, directors, employees and contractors against any third-party action to the extent it is based upon a claim that use of a Solution in accordance with this Agreement infringes a valid United States trade secret, copyright, or patent issued as of the date of this Agreement, and shall pay all settlements entered into and damages awarded against Customer.  As a condition to such indemnification, Customer shall: (a) provide iTradeNetwork with prompt written notice of any claim; (b) permit iTradeNetwork to assume and control the defense of any action; (c) not enter into any settlement or compromise of any claim without iTradeNetwork’s prior written consent; and (d) provide iTradeNetwork with reasonable assistance in its defense and settlement. The foregoing states the sole and exclusive indemnification liability of iTradeNetwork under this Agreement.

                  7.2             By Customer. Customer at its own expense, shall defend iTradeNetwork and its officers, directors, employees and contractors against any action based upon (a) any use of a Solution other than as permitted in this Agreement or Customer, Customer Personnel’s or an Authorized User’s misuse of the Site, (including without limitation the negligence of any Authorized User which causes a third party to obtain unauthorized access to a User ID, password and/or security authentication measure, (b) iTradeNetwork’s use of Customer Information as permitted in this Agreement, (c) breach of section 2.2 or (d) any dispute or legal proceeding between Customer and a Trading Partner or other third party, and Customer shall pay all settlements entered into and damages awarded against iTradeNetwork (including reasonable attorneys’ fees) to the extent based on such action, and all costs of iTradeNetwork associated with complying with any court order, discovery, or Customer request concerning any legal proceedings under (c) above.  As a condition to such indemnification, iTradeNetwork shall: (i) provide Customer with prompt written notice of any claim; (ii) permit Customer to assume and control the defense of any action; (iii) not enter into any settlement or compromise of any claim without Customer’s prior written consent; and (iv) provide Customer with reasonable assistance in its defense and settlement. The foregoing states the sole and exclusive indemnification liability of Customer under this Agreement.

8.          Limitation of Liability.

                  NEITHER PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL BE LIABLE TO THE OTHER PARTY, ANY TRADING PARTNER, OR TO ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN ANY WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. ITRADENETWORK’S TOTAL LIABILITY UNDER THIS AGREEMENT OR BREACH HEREOF SHALL BE LIMITED TO THE MONTHLY FEES ACTUALLY RECEIVED BY ITRADENETWORK FROM CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING ANY CLAIM.  THE LIMITATION IN THIS SECTION 8 SHALL NOT APPLY TO LIABILITIES TO THIRD PARTIES FOR INDEMNIFICATION CLAIMS UNDER SECTION 7 OF THIS AGREEMENT OR BREACH OF SECTION 2.2.

9.          Confidentiality.

                9.1             Confidential Information. Pursuant to this Agreement and the provision of a Solution, the Parties may disclose to each other confidential and proprietary information, including, but not limited to: (a) Customer Information of a confidential nature, (b) confidential and proprietary aspects of a Solution and the Related Materials, and (c) any information or analyses performed or transmitted by iTradeNetwork in connection with its provision of a Solution (collectively, “Confidential Information”). The existence of this Agreement shall not be considered Confidential Information.  The terms of this Agreement shall be treated as Confidential Information.  Neither Party may disclose Confidential Information to any third party, except as may be required: (1) to implement, perform and enforce the terms of this Agreement; (2) by law; or (3) under appropriate nondisclosure terms to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction.  Notwithstanding the foregoing, any information or data submitted by Customer on the Site solely for the purposes of utilizing the Solution, including transactions entered into via the iTradeNetwork Solution (collectively “Data”) shall be Customer’s confidential information. iTradeNetwork shall have the right to disclose or publish without Customer’s consent any Data collected and/or generated from the Site if such Data is disclosed or published in aggregated form, not directly attributable to Customer. Additionally, Customer agrees that iTradeNetwork may use and incorporate into its products and services any feedback or suggestions for enhancement that Customer or its Authorized User provides to iTradeNetwork (“Feedback”), without any obligation of compensation.

                9.2             Use. Except as otherwise expressly provided in this Section, neither Party receiving Confidential Information of the other may disclose it to any third party without the prior written consent of the original disclosing Party, except to the receiving Party’s own employees, consultants or agents to whom disclosure is necessary to fulfill the purposes set forth in this Agreement and who are advised about, and agree to be bound by, this confidentiality provision and the confidential nature of the information. Nothing in this Agreement shall be construed as a representation that the receiving Party will not develop or acquire information that is the same as or similar to the other Party’s Confidential Information, provided that the receiving Party does not do so in breach of this Agreement.  The Parties acknowledge that they may have in development similar solutions and that nothing in this Agreement is intended to prevent either Party from independently developing, offering, supporting and providing similar solutions, provided it is done without use of or reference to the other Party’s Confidential Information.

                9.3             Exceptions. This Agreement imposes no obligation on the receiving Party with respect to information that the receiving Party can establish: (a) was in the possession of or was known by the receiving Party prior to its receipt from the disclosing Party without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the receiving Party from a third party without an obligation to keep such information confidential; or (d) is independently developed or created by the receiving Party. If the receiving Party is compelled pursuant to a legal proceeding or otherwise required by law to disclose the other Party’s Confidential Information, then before any such disclosure the receiving Party will promptly notify the disclosing Party so the disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with this Agreement and the receiving Party shall use its best efforts to obtain confidential treatment for such Confidential Information. In any such legally compelled disclosure, only that portion of the disclosing Party’s Confidential Information that is legally required to be disclosed may be disclosed.

10.        Agreements Between Customer and Trading Partners.

                  Nothing in this Agreement shall affect any existing service levels or agreements or their terms between Customer and any Trading Partner. iTradeNetwork accepts no responsibility for maintaining or enforcing any such service levels, agreements or terms between Customer and any Trading Partner. Furthermore, nothing in this Agreement shall affect the determination of whether, or when, a binding agreement has been reached between Customer and any Trading Partner, and such determination shall be made in accordance with the terms of, and circumstances surrounding, such agreements.  iTradeNetwork assumes no responsibility for any agreement occurring, or failing to occur, between Customer and any Trading Partners, and iTradeNetwork shall have no liability for any breach of any such agreement.

11.        Security

                  11.1             iTradeNetwork shall provide all reasonable physical, anti-virus and password related security for the Site, the iTradeNetwork Solution and/or iTradeNetwork Professional Services.

                  11.2             As part of iTradeNetwork’s security measures, iTradeNetwork will assign or allow Customer to assign, one or more User IDs, passwords (limited to one unique login ID and password per Authorized User) and/or security authentication measures which will enable Customer and Authorized Users to access and use the Site and/or the Solution.  Customer shall accept responsibility for the use of all Customer User IDs, passwords and/or security authentication measures by Authorized Users and shall restrict the disclosure and disbursement of such Customer User IDs, passwords and/or security authentication measures to Customer personnel on a need-to-know/have basis.  Customer shall take all reasonable precautions to protect against the theft, loss or fraudulent use of such Customer User IDs, passwords and/or security authentication measures.  Customer shall immediately notify iTradeNetwork of any suspected theft, loss or fraudulent use of such Customer User IDs, passwords and/or security authentication measures.  Customer agrees to comply with the reasonable procedures specified by iTradeNetwork from time to time regarding obtaining and updating Customer User IDs, passwords and security authentication measures to the Site, iTradeNetwork Solution and/or iTradeNetwork Services. Customer User IDs, passwords and/or security authentication measures are subject to cancellation or suspension by iTradeNetwork upon any misuse by Customer or any Authorized User, and the reissuance or reactivation of Customer User IDs, passwords and/or security authentication measures so cancelled shall be subject to iTradeNetwork’s standard fees therefore.

                  11.3             Customer agrees that neither it nor Customer personnel will attempt to gain or allow access to any data, files or programs of iTradeNetwork to which they are not entitled under this Agreement, and that if such access is obtained, Customer will immediately return such materials to iTradeNetwork and will safeguard the same as iTradeNetwork’s Confidential Information.

                  11.4             Customer agrees, and will ensure that its Authorized Users comply with and adhere to all technical specifications, security procedures, rules of operation, terms and conditions of use and other procedures and protocols established by iTradeNetwork related to the provision of the goods and services hereunder and through the Site or the iTradeNetwork Solutions.

                  11.5             In respect of its use of any iTradeNetwork Solution where access is provided to the iTradeNetwork Site, Customer shall be solely responsible for maintaining adequate controls over its processing and data transmissions; for monitoring the input and output of such processing and transmissions; and for notifying iTradeNetwork of any non-conforming processing and/or transmissions.  Customer acknowledges and agrees that iTradeNetwork is not responsible for checking, verifying or editing message content or completeness or for detecting errors or anomalies, or for recreating or re-transmitting data beyond iTradeNetwork’s obligations as set forth herein.

                  11.6             Security Assessment Attestation.  Upon the request of Customer of at least ten (10) business days written notice and no more than once per year, iTradeNetwork agrees that it will provide to Customer a copy of the ‘Enterprise Security Assessment Attestation’ covering production, test and disaster recovery environments for iTradeNetwork’s data center locations.

                  11.7             SSAE 18 Compliance.  iTradeNetwork agrees that during the term of this Agreement that it will be SSAE 18 compliant.  For the purposes of this Agreement, SSAE 18 compliance shall mean iTradeNetwork will obtain an attestation via an SSAE 18 Soc 1 Type 2 Report reporting on the design of controls and their operating effectiveness related to the iTradeNetwork on-demand collaborative workflow software for the retail and foodservice industries.   Upon the request of Customer and at least ten (10) business days’ written notice, but not more than once per year, iTradeNetwork will provide to Customer a copy of its most recent SSAE18 Report.

12.        General Provisions.

                  12.1             Assignment. This Agreement shall inure to the benefit of and be binding on the Parties and their respective successors and assigns, but may not be assigned by either Party without the prior written consent of the other, except that each Party may assign its rights and obligations without prior written consent in connection with any acquisition that results in a change of control of the majority of shares of the Party. 

                  12.2             Independent Parties. Each Party is independent of the other, and nothing contained herein shall be deemed or construed to create any partnership, joint venture, agency, fiduciary or other similar relationship.

                  12.3             Entire Agreement; Amendment and Waiver; Conflicts. This Agreement and each Order Form and SOW contain the complete understanding between the Parties regarding its subject matter, superseding and merging all prior or contemporaneous oral or written inducements, course of dealing, communications, conditions, representations, warranties or agreements relating thereto, and the Agreement and its provisions may not be accepted, modified or waived by the Parties except in a writing in any form permitted for notice executed by an authorized officer of each Party.  No terms, provisions or conditions of any purchase order, invoice or other business form or written authorization used by either Party will have any effect on the rights, duties or obligations of the Parties under, or otherwise modify this Agreement, an Order Form, or a SOW regardless of any failure of either Party to object to such terms, provisions or conditions. No waiver by either Party of any breach by the other shall be deemed a waiver of any preceding or subsequent breach.  The terms and conditions of this Agreement, each Order Form and each SOW shall be construed as much as possible in a manner that is consistent with one another and to enforce the Parties’ intent; provided, the terms and conditions of an Order Form shall control and/or supersede any conflicting or inconsistent terms and conditions of this Agreement, and the terms and conditions of an Order Form shall control and/or supersede any conflicting or inconsistent terms and conditions of a SOW.

                  12.4             Notices. All legal notices, requests, consents and other communications which are required or permitted hereunder shall be in writing, and shall be delivered personally or by courier (effective upon receipt), by registered or certified/return receipt U.S. mail, postage prepaid (effective three (3) business days after mailing), or sent by facsimile or electronic mail (effective upon receipt, as evidenced by acknowledgement or confirmation of receipt), to the addresses set forth on the Order Form.  Notice of change of address shall be given in the same manner as other communications.

                  12.5             Dispute Resolution

                                        12.5.1             Executive Meetings.  If a dispute arises out of or relates to this Agreement, an Order Form, or an SOW, or the interpretation, breach or enforcement thereof, the Parties agree to use their good faith best efforts to resolve the dispute as quickly as possible through negotiation, including if necessary, meetings between the executives of each Party. 

                                        12.5.2             Venue/Governing Law.  If the Parties cannot resolve the dispute through executive negotiation after sixty (60) days, each Party consents to litigation and trial without a jury in the United States District Court for the Northern District of California and/or the appropriate California state court in Alameda County. Notwithstanding, either Party may, without waving any remedy under this Agreement, seek temporary or permanent injunctive relief from any court of competent jurisdiction to protect its Confidential Information, non-solicitation rights, License Rights and Intellectual Property Rights.  Each Party acknowledges that this provision constitutes a material inducement upon which the other Party has relied in entering into this Agreement. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflicts of laws principles.  

                  12.6             Audit. iTradeNetwork may audit your use of the Solution(s).  Any such audit shall not unreasonably interfere with Customer’s normal business operations.  Customer agrees to pay within thirty (30) days of written notification any fees applicable to the use of the Solution in excess of any rights granted.  iTradeNetwork reserves the right to suspend the provision of a Solution or terminate the Agreement in the event that all fees are not paid.

                  12.7             Force Majeure. Neither Party shall be liable for failure to perform or delay in performing any obligation under this Agreement (except any payment obligations) if such failure or delay is due to acts of God, natural disaster, fire, flood, strike, war (declared or undeclared), terrorism, embargo, blockade, legal prohibition, governmental action, riot, insurrection, or non-iTradeNetwork-specific network or telecommunications failure or congestion that affects a Solution, or any other cause beyond the reasonable control of such Party. 

                  12.8             Severability. If any provision(s) or portion(s) of this Agreement is determined to be invalid or unenforceable, the other provisions will remain in full force and effect and the Parties agree to promptly substitute, for the invalid or unenforceable provision(s), new provision(s) which are enforceable and which most closely approximate the intent and economic effect of the invalid provision(s). 

                  12.9             No Third Party Beneficiaries. This Agreement is made solely and specifically between and for the benefit of iTradeNetwork and Customer, and no other person or entity shall have any rights, interests or claims hereunder or be entitled to any benefits under or on account of this Agreement as a third party beneficiary or otherwise.

                  12.10             Export Control.  Customer agrees to comply with all applicable export and re-export control laws and regulations, including trade and economic sanctions regulations maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”) and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Customer will be responsible for obtaining any license required under Export Administration Regulations (“EAR”), OFAC regulations, or ITAR. Customer agrees to indemnify iTradeNetwork for any fines, penalties, claims, losses, damages, costs (including legal costs), expenses and liabilities that may arise as a result of Customer’s breach of this Section.

                  12.11             Equal Employment Opportunity Compliance.  Customer shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

                  12.12             Press Release and Acknowledgement by Customer as Customer of iTradeNetwork.  iTradeNetwork may issue a new Customer press release on or after the Effective Date of this Agreement, describing the relationship and Customer’s use of the Solution.  Customer may, if desired, approve the press release prior to any dissemination by iTradeNetwork, such approval not to be unreasonably withheld and provided in a timely manner.  Alternatively, Customer and iTradeNetwork may choose to do a joint press release.  During the term of this Agreement, iTradeNetwork may include Customer’s name and logo in general marketing materials and on iTradeNetwork’s website to identify Customer as an iTradeNetwork customer.