Terms of Service

Disregard the non-relevant deployment type(s) in this Section. Copyright Notice: Software, Solutions and any and all associated product(s) and material(s) as set forth in this Contract is developed and owned by Metafile (Software). Software will not mean software developed by a third party. Copyright laws, Intellectual Property Laws and International Copyright treaties protect the aforementioned. The Software is licensed not sold.

All fees are subject to annual increases not to occur more than once per year.

1.1 Installed, Software Deployment Type

Installed Software Deployment Type (Installed Software) is a Software deployment type comprised of: Software and Solution licensed by the Customer and installed at Customer’s site or hired data center.

1.1.1 License

Permitted Use and Rights Granted. The Software must be used only in the manner described in this Contract for the sole purpose of processing the work of Customer’s own internal business. Metafile hereby grants Customer a nonexclusive, non-transferable license to use the Software, provided Customer complies with the restrictions set forth herein. Metafile reserves all rights not expressly granted to Customer. The rights granted are limited to the Software and do not include any other patent or Intellectual Property Rights. Metafile retains ownership of the Software.

Restrictions on Software Rights. Customer will not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software to provide business process outsourcing services to its clients or customers; (c) use the Software in the operation of a service bureau, time-sharing or commercial hosting, subscription services or in any way derive money from the use of the Software; (d) reverse engineer, decompile or disassemble the Software; (e) install or run the Software on more computers than the number of licenses or more users than the number of users that were purchased, provided in this Contract; (f) operate the Software in a fashion that exceedsthe capacity or capabilitiesthat were purchased; (g) lease, rent, lend, or transfer the Software in any manner, including use by affiliates, subsidiaries or wholly-owned subsidiaries of the Customer, without prior written consent of Metafile. Customer will only make one (1) copy of the Software, solely for safekeeping and reinstallation purposes; not for testing or production use. Multiplexing Prohibited. Multiplexing is a manner of indirect hardware or software access that: (a) pools connections; (b)reroutes information; (c) reduces the number of users that directly access or use the Software; (d) reduces the number of users the Software directly manage. Any user accessing the Software through a multiplexed connection must be appropriately licensed with a Named-User. A commonly used method of multiplexing is authentication through Active Directory Security Groups.

1.1.2 Verifying Compliance

Metafile hasthe right to verify Customer’s use of Software through a Software Compliance Verification Audit(Audit);an Audit is an examination of Customer’s usage of Software in comparison to Software entitlement(s). Software mayphone-home pertinent Audit data. Metafile may conduct a true-up Audit of Customer’s use of the Software orMetafile may engage an independent auditor (Auditor) to conduct the Audit. Metafile or Auditor may request accessto Customer’s systems running the Software for Audit purposes. Metafile will notify Customer at least thirty (30) days in advance of its intent to conduct either, a true-up Audit or engage an Auditor to conduct the Audit. If any of the aforementioned Audit types reveals non-compliance, Customer must order sufficient Software within thirty (30) days. If non-compliant use is 10% more, Customer must reimburse Metafile for the costs Metafile incurred in conducting the Audit and acquire the necessary additional Software at 125% of the price, based on the then- current price and Customer price level. By exercising the rights and procedures described above, Metafile does not waive its rights to enforce this Contract or to protect its intellectual property by any other legal means.

1.1.3 Protection of Proprietary Rights

Customer hereby specifically recognizes that the Software is valuable, proprietary, and confidential information of Metafile. Metafile owns all title and copyrights in and to the Software, the accompanying printed materials, and any copies of the Software. Copyright laws and international treaty provisions protect the Software. Therefore, Customer must treat the Software like any other copyrighted material. Customer agrees not to provide or otherwise make available any of such confidential information in any form to any person except pursuant to this Contract. Customer will take all reasonable steps to ensure that its employees preserve and protect the proprietary rights and confidential information of Metafile. Should Customer become aware of any unauthorized use of any of the Software by a third party, Customer will immediately inform Metafile of such unauthorized use and will reasonably co-operate with Metafile in the prosecution of such lawful action as Metafile may deem fit to ensure cessation of such use.

1.1.4 Business Termination

At Metafile’s option, all of Customer’s rights under this Contract will terminate, and the Software must be returned to Metafile if the ownership of Customer changes for any of the following reasons; voluntary or involuntary bankruptcy, receivership, custodianship, assignment for the benefit of creditors, seizure of assets, liquidation, dissolution or ceasing to do business. In the event Metafile ceases to do business, the successor to Metafile’s assets will be bound by this Contract the same as Metafile, and Customer may continue to use the Software under the terms and conditions of this Contract.

1.2 Subscription at Metafile, Software Deployment Type

Subscription at Metafile Deployment Type (Hosted Software) is a Software deployment type comprised of: Software, Solution and Network/Computer Equipment including storage, hardware, servers, networking components (Infrastructure). Backup, operating system patching and updates, and system monitoring (Managed Services), are all provided to Customer for a monthly fee. Managed Services do not include: (a) custom programming services; (b) on-site support, including installation of hardware or software; (c) support of any software other than the Software; (d) training; (e) expenses for third- party products including, but not limited to, hardware and related supplies; (f) support of Customer’s computer system, software, or hardware (e.g., computer equipment, servers, etc.); or (g) third-party software or hardware,
including problems which arise therefrom. For clarity, Metafile is not responsible for errors or defects of Customer or third-party software or hardware.

Customer must use Hosted Software in the manner described in this Contract for the sole purpose of processing the work of Customer’s own internal business. Customer will not use Hosted Software to process the work of any third party, share, rent, lease or use Hosted Software to provide commercial Hosted Software, subscription services, in the operation of a service bureau or in any way derive money from the use of Hosted Software.

1.2.1 Verifying Compliance

Metafile has the right to verify Customer’s use of Software through a Software Compliance Verification Audit (Audit); an Audit is an examination of Customer’s usage of Software in comparison to Software entitlement(s). Software may phone-home pertinent Audit data. Metafile may conduct a true-up Audit of Customer’s use of the Software or Metafile may engage an independent auditor (Auditor) to conduct the Audit. Metafile or Auditor may request access to Customer’s systems running the Software for Audit purposes. Metafile will notify Customer at least thirty (30) days in advance of its intent to conduct either, a true-up Audit or engage an Auditor to conduct the Audit. If any of the aforementioned Audit types reveals non-compliance, Customer must order sufficient Software within thirty (30) days. If non-compliant use is 10% more, Customer must reimburse Metafile for the costs Metafile incurred in conducting the Audit and acquire the necessary additional Software at 125% of the price, based on the then-current price and Customer price level. By exercising the rights and procedures described above, Metafile does not waive its rights to enforce this Contract or to protect its intellectual property by any other legal means.

1.2.2 Hosted SoftwareAvailability

• Metafile guarantees that the Infrastructure will be available 99.9% of each calendar month. If Metafile fails to meet this guarantee due to Infrastructure Unavailability, Metafile will credit Customer 0% for the first sixty-(60) minutes, 10% of the monthly fee for each sixty-(60) minutes of downtime thereafter, not to exceed one month’s fee.

• Infrastructure Unavailability is defined as the number of minutes during which Customer’s system iselectronically unreachable. Infrastructure Unavailability does not include:

• Scheduled maintenance (whether by Metafile, a vendor, including telecommunications carriers, or by Customer)
• Acts or omissions by Customer or any user of Customer’s system authorized by Customer
• Device downtime as long as the service remains available, e.g., loss of a redundant component of a system
• Any force majeure events set forth in this Contract Metafile will evaluate all claim information received in writing from Customer within fifteen-(15) calendar days. Metafile will make a good faith determination of whether a credit is owed to Customer. Approved credits will appear on Customer’s next invoice.

Metafile does not and cannot control the flow of data to or from Metafile’s Infrastructure. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet. Although Metafile will use commercially reasonable effortsto take all actionsit deems appropriate to remedy and avoid such events, Metafile cannot guarantee that such events will not occur. Accordingly, Metafile disclaims all liability resulting from or relating to such events.

• Metafile reservesthe rightto plan a scheduled outage with two-(2) calendar days advanced notice. Metafile will use commercial best effortsto schedule outages at non-peak hours and limit their occurrence to strictly necessary upgrades and required maintenance. Details of all scheduled outages will be broadcasted via e- mail to Customer’s designated Solution administrator.

It is Customer’s responsibility to notify all affected persons within their organization of scheduled outages.

1.2.3 Terms and Termination

• Hosted Software subscription will remain in effect for the period and fees set forth in this Contract Initial Term unless earlier terminated as otherwise provided in this Contract. This Contract will automatically renew for additional like Renewal Term(s) unless Customer or Metafile provides written notice of termination to the other party at least thirty (30) days prior to the end of the then current term.• Metafile reserves the right, at the time of renewal, to change the applicable Hosted Software fees to the
then current Hosted Software fees.

• Either Party may terminate this Contract if the other party materially breaches any of its representations, warranties, or obligations under this Contract, and such breach is not cured within ten-(10) days of written receipt of notice specifying the breach.

• If Customer terminates this Contract prior to the end of the Initial Term or any Renewal Term, other than termination due to a Contract breach by Metafile, Customer will pay Metafile early termination fees equal to 100% of the remaining Contract value as well as any additional fees or payments of any nature owed by Customer.

• Metafile will provide Customer, in the event of termination, a copy of Customer’s data in an industry standard format, at the then current Servicesrate.

1.2.4 Administrative

Removal of Inactive User Account(s) Policy: As part of its commitment to safeguard Customer’s data/information, Metafile may remove any User Account(s) that is inactive for a period of ninety- (90) days.

1.3 Subscription at Customer, Software Deployment Type

Subscription at Customer Deployment Type (Rental Software) is a Software deployment type comprised of: Software and Solution installed at Customer’s site or hired data center, rented by Customer for a monthly fee.

• Rental Software – Must be used only in the manner described in this Contract for the sole purpose of processing the work of Customer’s own internal business. Customer will not use Rental Software to process the work of any third party.
• Rental Software – Customer will not; time-share, rent, lease or use the Rental Software to provide commercial hosting, subscription services, in the operation of a service bureau or in any way derive money from the use of the Rental Software.

1.3.1 Terms and Termination

• Rental Software subscription will remain in effect for the period and fees set forth in this Contract Initial Term unless earlier terminated as otherwise provided in this Contract. This Contract will automatically renew for additional like terms Renewal Term unless Customer or Metafile provides written notice of termination to the other party at least thirty (30) days prior to the end of the then current term.

• Metafile reserves the right, at the time of renewal, to change the applicable Subscription fees to the then current Subscription fees

• Either Party may terminate this Contract if the other party materially breaches any of its representations, warranties, or obligations under this Contract, and such breach is not cured within ten- (10) days of written receipt of notice specifying the breach.

• If Customer terminates this Contract prior to the end of the Initial Term or any Renewal Term, other than termination due to a Contract breach by Metafile, Customer will pay Metafile early termination charges equal to 100% of the remaining Contract value as well as any additional fees or payments of any nature owed by Customer.

1.4 Intelligent Recognition Services

1.4.1 Metafile will provide Customer with the intelligent recognition software as a service (“IR Service”) which is an optional service to the Software whereas certain Customer Data (defined below) will be transmitted
through an application programming interface (“API”) to a third party API for processing through a form recognizer.

1.4.2 The fee for the IR Service is determined by the Yearly Document Count payable in advance on a yearly basis for the Customer documents processed via the IR Service.

1.4.3 Within ninety (90) days following the end of each Contract year, Metafile shall perform a “true up” reconciliation of the actual number of documents processed via the Service during such contract year (“Actual Count”). Metafile reserves the right to adjust the Annual Document Service Fee and Yearly Document Count based upon the Actual Count from the previous Contract year.

1.4.4 The fees are due in advance, except as otherwise noted above, and are in addition to annual Software Maintenance fees (described below) payable under the Contract. Customer must continue to pay annual Software Maintenance fees for the Software for continued use and access to the IR Service. Pricing under the Contract may be adjusted if the IR Service will replace an existing product or service.

1.4.5 Third Party Provider(s). The IR Service is provided in connection with products or services of a third-party provider and/or third party products or services may be used in performance of the IR Service. Third party products and services may be subject to additional terms and conditions and/or end user agreements. Customer authorizes (i) third party providers to perform technical support services and (ii) consent of such third party terms and conditions, as applicable.

1.5 Information Gathering

1.5.1 Customer agrees that Metafile may gather information about Customer, Customer’s users, and/or any data relating to the use of the Software, and that Metafile may use such information so gathered anonymously, whether alone or in combination with other information for statistical or other Software improvements.

1.6 Software Maintenance

1.6.1 Software Maintenance – Solution
Scope of Service for Installed Software, Subscription at Metafile and Subscription at Customer Software deployment types.

• Software Maintenance, includes:

• Telephone and E-mail access
  − Customermay e-mail (mvrhelp@metafile.com for MetaViewer, rphelp@metafile.com for ResultsPlus) or call (USA; 800-222-4096) (International; 507-286-9232) Monday through Friday, 8 a.m. to 5 p.m. CST, exclusive of Metafile holidays. Customers may leave voice mail messages evenings, weekends, and holidays to which Metafile will respond on the next business day.
  − Problem resolution time may vary depending on the nature of the problem. Problem reports will, as an objective, be responded to within one-(1) business day.
• Corrective Service(s) for Software; diagnose and correct discovered problem(s) by user or concluded by user error reports, may include modifications and updates in order to correct or fix problems. Service(s) for problems determined to be outside that of Software usage or malfunction(s) caused by Customer administration, is not included and will be provided atthe then current rate.
• Perfective Service(s) for Software; scheduled service that includes Software only upgrade(s)/update(s) to the latest version in order to keep the Software usable over long period. May include new features to improve reliability, performance and functionality. Software may periodically phone-home for pertinent updates. Metafile may require Customers to upgrade(s)/update(s) Software for maintainability. Electronic Workflow and ERP Integration upgrade(s) /update(s) /enhancement(s), is not included and will be provided at the then current rate. Installation, implementation and configuring service(s) is not included and will be provided at the then current rate.

1.6.2 Software Maintenance – Solution Option(s)

Scope of Service for Installed Software, Subscription at Metafile and Subscription at Customer Software deployment types.

• Software Maintenance, includes:

Telephone and E-mail access

− Customer may e-mail (mvrhelp@metafile.com for MetaViewer) or call (USA; 800-222- 4096) (International; 507-286-9232) Monday through Friday, 8 a.m. to 5 p.m. CST, exclusive of Metafile holidays. Customers may leave voicemail messages evenings, weekends, and holidays to which Metafile shall respond on the next business day.

− Problem resolution time may vary depending on the nature of the problem. Problem reports will, as an objective, be responded to within one-(1) business day.

• Corrective Service(s) for Software; diagnose and correct discovered problem(s) by user or concluded by user error reports, may include modifications and updates in order to correct or fix problems. Service(s) for problems determined to be outside that of Software usage or malfunction(s) caused by Customer administration, is not included and will be provided atthe then current rate.

1.6.3 Terms and Termination for Software Maintenance – Solution and Solution Option(s), Installed Software only:

• Remain in effect for the period, twelve- (12) month minimum, and feessetforth above Initial Term unless earlier terminated as otherwise provided. Will automatically renew for additional like terms (each, a “Renewal Term”) unless Customer provides written notice of termination thirty-(30) days prior to the end of the then current term.
• Invoicing will cover each successive period. Invoicing for non-covered expenses will be upon incurring the expense. Metafile reservesthe right, at the time of renewal, to change the applicable rate to the current rate.
• Either Party may terminate if the other party materially breaches and such breach has not been cured within ten- (10) days after written notice thereof. In the event of termination for any reason, Customer will not be entitled to any refund of fees paid in respect to the unexpired period.
• In the event that Customer fails to make payment to Metafile, Metafile shall without prejudice to any other remedy, suspend and thereafter terminate.
• Software Maintenance does not cover problems arising from: hardware, non-Metafile software, power failure, operator error, networking, operating system, other environmental issues, Software installation or reinstallation, cost of construction or reconstruction of Customer data.
• Software Maintenance may be discontinued with thirty-(30) days written notice given prior to the expiration date.
• Software Maintenance will be provided to only two-(2) designated contact person(s) per organization site.

1.7 Implementation Services

1.7.1 The Services

Metafile will provide Services to Customer within the period specified in this Contract, and in accordance with the highest prevailing industry standards and practices for the performance of similar services. Metafile will designate a Project Team who will be available, as necessary, for frequent communications with Customer regarding the applicable Services.

Metafile may initiate a request to Microsoft, upon approval of Customer, on behalf of Customer, for Microsoft Professional Services. Metafile may coordinate and participate in the delivery of the Microsoft Professional Services to the Customer. Metafile will invoice Customer for Microsoft Professional Services at the then current Microsoft Professional Services hourly rate. Mutually agreed Microsoft onsite visits will include onsite visit fees and reasonable travel and living expenses.

1.7.2 Work Product and Intellectual Property

The term “Work Product” means any inventions, software, documentation, designs, specifications, processes, works of authorship, ideas or modifications and enhancements to software or documentation that are made, conceived, developed or reduced to practice, alone or jointly with others, by Metafile personnel for Customer in the course of performing Services, whether or not any such items are eligible for patent, copyright, trade secret or other legal protection, provided that Work Product will not include Metafile Intellectual Property (as defined below). Work Product excludes any Confidential Information of Customer. All Work Product, including all patent, copyright, trade secret, ideas, and other intellectual property rights related thereto, will be the sole and exclusive property of Metafile.

1.7.3 Customer’s Intellectual Property

Customer will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to Customer, including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by Metafile in the performance of Services and has been originated or developed by Customer or by third parties outside of the scope of the Services, or which has been purchased by or licensed to Customer together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, “Customer’s Intellectual Property”). Nothing contained in this Contract or otherwise will be construed to grant to Metafile any right, title, license or other interest in, to or under any of Customer’s Intellectual Property (whether by estoppel, implication or otherwise). Notwithstanding the foregoing, Customer hereby grants Metafile a limited license to use its name and logo for marketing purposes.

1.7.4 Data Privacy, Security and Control

Metafile will at all times retain all rights, ownership, and interest in any copyright, trademark, or other intellectual property proprietary to Metafile including without limitation any software, methodologies, tools, specifications, techniques, documentation or data which is utilized by Metafile in the performance of Services and has been originated or developed by Metafile or by third Parties outside of the scope of the Services, or which has been purchased by or licensed to Customer, together with any and all additions, enhancements, improvements or other modifications thereto whether or not made during the performance of the Services (collectively, “Metafile Intellectual Property”). Nothing contained in this Contract or otherwise will be construed to grant to Customer any right, title, license or other interest in, to or under any of Metafile’s Intellectual Property (whether by estoppel, implication or otherwise).

1.7.5 Metafile’s Intellectual Property

The Parties acknowledge and agree that Customer is the sole and exclusive owner of all right, title and interest in and to its vendor and transaction data and any and all information and data generated through its use of the Services (“Customer’s Data”). Metafile shall not, indirectly or directly, copy, decompile, transfer, sell, or distribute Customer’s Data. In addition to and without limiting the foregoing, Metafile represents and warrants to Customer that Customer’s Data will be handled in compliance with all applicable laws and restrictions relating to such Customer’s Data.

Metafile must: (a) use commercially reasonable efforts to ensure that Customer’s Data is kept under its effective control and is secure from theft, loss, damage and unauthorized access, use and disclosure; (b) notify Customer promptly if it becomes aware of any actual, suspected, likely or threatened theft, loss, damage or unauthorized access, use or disclosure of or to any of Customer’s Data, whether or not there is any breach of this Agreement; and (c) promptly take commercially reasonable steps that Customer may reasonably request, including providing Customer with reasonable assistance in connection with any enforcement proceedings, in relation to any actual, suspected, likely or threatened theft, damage or unauthorized access, use or disclosure of or to any of Customer’s Data that is or was in Metafile’s possession, custody or control.

1.7.6 Customer Shadowing Process

Metafile recognizes that organizations sometimes request a customer resource to shadow all readiness and deployment services performed on their infrastructure. Be aware that this requirement may cause scheduling conflicts and prolong the implementation period. While Metafile can accommodate this request, additional project management, scheduling, and solution engineering fees may apply.

1.7.7 Qualifications of Metafile’s Personnel

Metafile represents and warrantsthat Metafile has, and will engage, employees, subcontractors, and/or consultants (“Metafile Personnel”) with the proper skill, training, and experience to provide the Services. Metafile will be solely responsible for paying Metafile Personnel and providing any employee benefits that are owed. Before providing Services, all of Metafile Personnel must have agreed in writing to (a) confidentiality obligations consistent with the terms of this Contract, and (b) assign or otherwise effectively vest in Metafile any and all rights that such personnel might otherwise have in the results of their work.

1.8 Additional Terms and Conditions

1.8.1 Confidentiality

Customer will not permit use of or otherwise provide access to the Software to any person or entity, other than Customer’s employees, without Metafile’s prior written consent. Customer will not disclose to others or permit any use not expressly contemplated by this Contract of any trade secrets of Metafile, which meansthe whole or any part of proprietary information regarding design and production of Software source code or proprietary information regarding Software processes and workflows. Customer’s obligations under this Paragraph will not apply to any materials or information that were or become part of the public domain, that are previously known to Customer from a source with the legal right to disclose such information, that are independently developed by Customer, or that are apparent from the normal operation of the Software.

1.8.2 Conflicts with Rights of Third Parties

Metafile represents and warrants that, to the best of Metafile’s knowledge, the provision of Services under this Contract will not violate any patent, trade secret, or other proprietary orintellectual property right of any third party.

1.8.3 Warranties

Customer expressly acknowledges and agrees that use of the Software is at Customers sole risk and that the entire risk asto satisfactory quality, performance, accuracy and effort is with Customer. To the maximum extent permitted by applicable law, except as set forth in this Contract, the Software is provided “as is” and “as available”, with all faults and without warranty of any kind, and Metafile hereby disclaims all warranties and representations with respect to the Software, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. Metafile does not warrant against interference with Customer’s enjoyment of the Software, that the functions contained in the Software will meet Customer requirements, that the operation of the Software will be uninterrupted or error-free, or that defectsin the Software will be corrected. No oral or written information or advice given by Metafile will create a warranty. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, the above exclusion and limitations may not apply to Customer

1.8.4 Limitation of Liability

To the extent not prohibited by law, in no event will Metafile be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, but not limited to, damagesfor loss of profits, loss of data, or businessinterruption, arising out of or related to Customers use orinability to use the Software, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if Metafile has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to Customer. In no event will Metafile’s total liability to Customer for all direct damages (other than as may be required by applicable law in cases involving personal injury) exceed an amount equal to the amount Customer paid for the Software during the previous twelve (12) months prior to the event giving rise to such liability. The foregoing limitations will apply even if the above stated remedy fails of its essential purpose

1.8.5 Indemnification

Metafile will defend and indemnify Customer against any claim, action, suit, or proceeding brought by a third party (“Claim”) to the extent Customer’s use of the Software within the scope of this Contract directly infringes a United States patent or copyright issued to or held by a third party, or misappropriates a trade secret of such third party; provided, that Customer notifies Metafile promptly in writing of such Claim and provides Metafile with the sole control, authority, information and assistance necessary to defend or settle such Claim.

In the event of an infringement Claim brought by a third party, or Metafile believes that such a claim is likely, then Metafile shall, at its expense: (i) procure the right for Customer to continue using the Software; (ii) replace or modify the Software so that it becomes non-infringing, without materially decreasing the functionality of the Software; or (iii) if neither (i) or (ii) is commercially practical, then, at Metafile’s sole option, terminate this Contract and refund a portion of the Software fee paid by Customer for the period in which the Software was affected by such infringement.

Metafile will not be liable for any infringement Claim based upon any (i) modification of the Software made by anyone other than Metafile; (ii) use of the Software in combination with any software or other technology not supplied by Metafile or in which the Software was not intended to be used as specified in the documentation, to the extent such Claim would not have arisen but for such combination (regardless of whether or not Metafile has advised Customer that such use would likely result in a Claim of infringement by a third party); or (iii) use of the Software contrary to the terms of this Contract or the documentation.

THE FOREGOING STATES METAFILE’S SOLE AND EXCLUSIVE LIABILITY AND THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS OF ANY THIRD PARTY.

Customer shall defend and indemnify Metafile from and against any and all Claims, liabilities, damages, costs, and expenses, including reasonable legal fees, arising from or related to the exclusions set forth in Sections 1.1.1, 1.2, or 1.3.

1.8.6 Force Majeure

Neither party will be deemed in default or otherwise liable under this Contract due to its inability to perform its obligations, except for the obligation to pay amounts owed under this Contract, by reason of any fire, earthquake, flood, hurricane, tornado, substantial snowstorm, epidemic, accident explosions, casualty, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other or similar cause beyond that party’s reasonable control.

1.8.7 Travel and Expenses

Metafile will invoice Customer for actual expenses as incurred.

1.8.8 Invoices

All Customer invoices sent by e-mail to a designated email address.

1.8.9 Payment Terms

Payment terms provided in the above Solution Summary. Metafile’s price(s) is in U.S. dollars and requires all Customers, including Metafile Partners, in countries outside of the United States, to pay Metafile in U.S. dollars and bear the dollar exchange rate.

1.8.10 Taxes

Metafile will be solely responsible for paying all taxes on compensation received by Metafile hereunder and will not be eligible to participate in, or receive benefits under, any benefit or group plans, or programs of Customer. Metafile is responsible for providing and obtaining, at its own expense, all insurance and statutory benefits, including without limitation social security, unemployment, disability, worker’s compensation, and all training and licenses for itself and its employees. Customer will be responsible for any applicable sales, use and excise taxes, but not for any taxes based on Metafile’s property or net income, or for any employee payroll or withholding taxes.

1.8.11 Insurance

During the Term of this Contract and for a period of at least two- (2) years thereafter, Metafile will maintain the following minimum insurance coverages with financially sound and nationally reputable insurers:
• Workers Compensation (applicable statutory limits),
• Commercial General Liability, including contractual liability ($1,000,000 peroccurrence/$2,000,000 aggregate),
• Professional Liability ($2,000,000 peroccurrence),
• Umbrella liability coverage ($5,000,000 per occurrence/$5,000,000 aggregate).

1.8.12 Waiver

No waiver of any term, provision or condition of this Contract in any one or more instances will be deemed to be or construed as a further or continuing waiver of any other term, provision or condition of this Contract. An instrument in writing executed by an officer authorized to execute waivers must evidence any such waiver.

1.8.13 Severability; Reformation

Any of the provisions of this Contract which are determined to be invalid or unenforceable in any jurisdiction will be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions hereof and without affecting the validity or enforceability of any of the other terms of this Contract in such jurisdiction, or the terms of this Contract in any other jurisdiction. The parties will substitute for the invalid or unenforceable provision a valid and enforceable provision that conforms as nearly as possible to the original intent of the parties.

1.8.14 Headings

This Contract and its components contain headings only for convenience and such headings should not be used in the construction of this Contract.

1.8.15 General

A Current State Sales Tax Exempt Form is required for exempt sales.

1.8.16 Notices

Any notice, reports or communications required under this Contract or by law must be in writing and must be given by addressing the notice to the aforementioned addresses or to such other address as the recipient may specify in writing under this procedure. Notices to Metafile shall be marked “Attention: Legal”. Notices to Customer shall be to the recorded contact. A “business day” shall mean any day other than Saturday, Sunday, or a Metafile holiday.