1.      Scope of Services. 

a.      Services and Deliverables.  Vendor shall provide the services (“Services”) described in Statement(s) of Work (“SOW”) and produce the deliverables, if any (“Deliverables”) in accordance with the requirements of this Agreement and the SOW.  Vendor and Customer may agree in writing from time to time on SOWs.  Each SOW shall set forth, as applicable, the project scope, the term of the SOW, schedule, project activities and tasks, Deliverables and milestones, specifications, compensation and payment terms, reimbursable expenses and roles and responsibilities of the Parties.  Upon mutual agreement in writing of a SOW, the terms and conditions of this Agreement will apply to each SOW.

b.      Hierarchy of Terms.  In the event that there are any conflicts between the terms of this Agreement and the terms of any SOW, the terms of the SOW shall control.  The terms of this Agreement and the SOW shall be controlling over any terms of any purchase order, sales acknowledgement, invoice, or other such documents issued by either Party.  Any amendment of this Agreement shall be effective for all subsequently executed SOWs.

c.       Change Orders.   Either Party may propose a written change order (“Change Order”) change to add to, reduce or change the Services in a SOW.  Each change order will specify the change(s) to the Services or Deliverables, and the effect, if any, on the schedule and on Vendor’s compensation due to the change.  Vendor will not implement a change order unless it is executed by authorized representatives of each Party.

2.      Payment of Fees. 

a.      Customer agrees to pay Vendor for the Services at the rates set forth in the applicable SOW within 30 days of the invoice date.  Customer shall be responsible for applicable state and local sales taxes and all shipping charges unless otherwise specified.  Undisputed amounts that are not paid by the due date will be assessed an additional finance charge of 1.5% interest per month (18% per annum).  If Customer should dispute the nature or basis of any charges contained in any invoice submitted by Vendor hereunder, Customer shall provide written notice to Vendor within ten days of receipt of invoice setting forth the reason for the dispute.  If Customer does not timely send such notice, the Customer will be deemed to have accepted the invoice.  The Parties shall make good faith efforts to first resolve internally any dispute by negotiation and, if necessary, escalating it to higher levels of management.  If the Parties are unable to resolve the dispute, the matter shall be resolved in accordance with the provisions of Section 10.9.

3.      Confidential Information.

a.      General.  As used in this Agreement, “Confidential Information” means all information, in any form, furnished or made available directly or indirectly by one Party (“Disclosing Party”) or its affiliates to the other Party (“Receiving Party”), whether or not designated “Confidential Information,” including but not limited to (a) the specifications, designs, documents, correspondence, software, documentation, data and other materials produced by either Party in the course of the performance under this Agreement; (b) all information concerning the operations, affairs and businesses of a Party or its affiliates; (c) other information or data of the Disclosing Party otherwise communicated to Receiving Party in writing or orally, or learned by Receiving Party as a result of this Agreement and obtained, received, transmitted, processed, stored, archived or maintained by the Receiving Party and (d) all Intellectual Property Rights (defined below) of each Party.

b.      Obligations of Parties.  The Receiving Party agrees to hold Confidential Information of the Disclosing Party in trust and confidence for the Disclosing Party and not to use or disclose such Confidential Information to any person, firm or enterprise (directly or indirectly) except to employees, agents, or contractors on a “need to know” basis for the sole purpose of performing the obligations of Receiving Party under this Agreement.

c.       Exclusions.  Information shall not be considered “Confidential Information” to the extent that such information: (a) was already known to the Receiving Party free of any restriction at the time it was obtained from the Disclosing Party; (b) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement or any agreement with such third party; (c) is or becomes publicly available through no fault of the Receiving Party; or (d) is independently developed by the Receiving Party without reference to any Confidential Information.

d.      Permitted Disclosures.  If any Confidential Information is subject to disclosure pursuant to an order, decree, subpoena or other validly issued judicial or administrative process requiring the Receiving Party or its subcontractors, agents, or representatives to disclose any Confidential Information of the Disclosing Party, the Receiving Party will promptly notify the Disclosing Party of such request or requirement so that the Disclosing Party may seek to avoid or minimize the required disclosure and/or to obtain an appropriate protective order or other appropriate relief to ensure that any Confidential Information so disclosed is maintained in confidence to the maximum extent possible by the agency or other person receiving the disclosure. 

e.      Remedies.  Each Party acknowledges and agrees that, in the event of a breach or threatened breach of any of the foregoing provisions of Section 3 by the other Party, the Receiving Party or the Disclosing Party, as the case may be, may have no adequate remedy in damages and, accordingly, each Party shall be entitled to seek injunctive relief against such breach or threatened breach by the other Party.

4.      Intellectual Property.

a.      Definitions. 

                                                     i.      “Intellectual Property Rights” means all rights in any copyrights, trade secrets, patents, patentable inventions, patent applications, trademarks, service marks, concepts, ideas, methodologies, procedures, processes, know-how, techniques, or other intellectual property rights.

                                                   ii.      “Pre-Existing Materials” means any Intellectual Property Rights that a Party developed, acquired, or otherwise has rights in or to, either outside the scope of and independent from a SOW, or if related to the scope of a SOW was developed or acquired by a Party prior to entering into the SOW.

b.      Ownership.  Each Party will retain its rights in its own Pre-Existing Materials and in any third-party materials that may be used in connection with Services.  No rights in such Pre-Existing Materials and third-party materials are granted to another Party except as expressly provided in this Agreement.  Vendor owns all right, title, and interest in and to its Intellectual Property Rights, including but not limited to Vendor’s Pre-Existing Materials and any Deliverables (including any copyrights therein) except any third-party materials specifically identified in the SOW. 

c.       Right to Use.  Subject to the payment by Customer of all applicable fees, Vendor hereby grants to Customer a royalty-free, worldwide, non-exclusive, perpetual, irrevocable, transferable and sublicensable right to use and exploit the Deliverables and any third party materials provided by Vendor that are incorporated or included in a Deliverable to the extent necessary to allow Customer the right to fully enjoy and exploit the Deliverables in a manner consistent with their intended use under the applicable SOW.

5.      Representations and Warranties.  Vendor represents and warrants as follows:

a.      Performance.  During the one-year period commencing on the date that Customer accepts any particular Services or Deliverables, such Services and Deliverables shall substantially conform to, and substantially perform in accordance with, any applicable in the SOW.

b.      Services.  Vendor shall provide Services in a good and workmanlike manner and substantially in accordance with industry standards.

c.       Disclaimer.  OTHER THAN THE FOREGOING, VENDOR DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND COMPLIANCE WITH LAW.  Vendor does not warrant the services performed by third party contractors nor does Vendor make any representations or warranties whatsoever with regard to third party software or hardware.  However, to the extent permitted by Vendor’s third party contractors, Vendor agrees to pass through or assign to Customer any third-party warranty in receives with respect to such software or hardware.

6.      Indemnification.  Each Party (“Indemnifying Party”) shall indemnify and hold harmless the other Party and its affiliates, officers, directors, employees, and agents (collectively “Indemnified Party”) from and against any and all third party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with the Indemnifying Party’s gross negligence or intentional misconduct in the performance of its obligations under this Agreement (subject to the provisions of Sections 5.3 and 7); provided in any such case, that Indemnified Party (a) promptly gives written notice of the claim to Indemnifying Party; (b) gives Indemnifying Party sole control of the defense and settlement of the claim (except Indemnifying Party may not settle any claim, without Indemnified Party’s consent, which shall not be unreasonably withheld or delayed; provided that Indemnifying Party may settle a claim without Indemnified Party’s consent if Indemnified Party is unconditionally released of all liability); (c) provides to Indemnifying Party all available information and assistance; and (d) has not compromised or settled such claim.

7.      Limitation of Liability; Claims Limitation Period.  IN NO EVENT SHALL EITHER PARTY’S OR ANY THIRD PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, A SOW OR ANY OTHER AGREEMENT BETWEEN THE PARTIES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 6 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. IN NO EVENT WILL EITHER PARTY OR A THIRD PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST REVENUES, PROFITS, GOODWILL, AND/OR DAMAGE TO OR LOSS OF ANY ELECTRONIC FILES, RECORDS, OR DATA. FOR ANY MATTER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE INITIATED NOT LATER THAN THREE YEARS AFTER THE CLAIM AROSE. 

8.      Denial and Suspension of Service.  In addition to the termination rights set forth in Section 9, and without limiting any other right or remedy of Vendor, Customer understands and agrees that Vendor may suspend Services to Customer without Vendor liability: (a) on five (5) business days advance written notice if payment for any Services is overdue and is not cured within such five (5) day period, (b) on ten (10)  days advance written notice to Customer in the event of any other breach of this Agreement by Customer that is not cured within the notice period, and (c) immediately on notice to Customer if there is a denial of service attack on Customer’s servers or other event for which Vendor believes that the suspension of Services is necessary to protect Vendor or Vendor’s other customers (collectively, “Denial and Suspension”).   If Vendor suspends Services to Customer, such suspension shall be limited to the extent that Vendor deems necessary to prevent continuation of the event causing such suspension. Customer agrees to pay Vendor’s then current reinstatement fee following a suspension of Service, except to the extent any suspension of service is caused by events that are not within Customer’s control.

9.      Term; Termination. 

a.      Term. This Agreement will become effective upon the date of this Agreement and will continue in force until terminated as provided herein.

b.      Termination. 

                                                     i.     In addition to any rights of Denial and Suspension under Section 8, Vendor may terminate this Agreement and/or any SOW upon 10 days written notice to Customer if Customer fails to make any payment required by this Agreement by the due date of such payment.

                                                   ii.     In addition to any rights of Denial and Suspension under Section 8, in the event of any material breach of this Agreement or a SOW (other than nonpayment), the non-breaching Party shall give the breaching Party written notice describing such breach.  If the breaching Party fails to cure such breach within 90 days after the sending of such notice, the non-breaching Party may immediately terminate this Agreement and/or any SOW.

                                                  iii.     Either Party may terminate this Agreement and/or any SOW effective immediately upon written notice to the other Party if any one of the following events occurs:  (1) the other Party files a voluntary petition in bankruptcy or an involuntary petition is filed against it and such involuntary petition is not dismissed within 30 days after the filing thereof, (2) a trustee or receiver is appointed by the court for all or a substantial portion of the assets of the other Party, or (3) the other Party makes an assignment of its assets for the benefit of its creditors.

                                                  iv.     If Vendor is unable to provide services set forth in a SOW because of economic hardship, such as reduced profitability from increasing healthcare, labor or other costs, then Vendor may elect to terminate the SOW upon 30 days’ notice to Customer with an explanation of such economic hardship.  Both Parties may negotiate in good faith to remedy such hardship in order to prevent termination.

c.       Consequences of Expiration and/or Termination; Survival of Agreement. Unless any pending SOWs are also expressly terminated as permitted by this Agreement and/or the relevant SOW, upon expiration or termination of this Agreement for any reason, all SOWs then in effect will continue in accordance with their terms, in which case this Agreement will continue in effect with respect to such pending SOWs until the completion of such SOWs.

                                                     i.     Upon expiration or termination of this Agreement, (a) Vendor and Customer shall cooperate to ensure an efficient and timely transfer of responsibilities; (b) Vendor and Customer shall thereafter be automatically relieved and released from all further liability and obligations hereunder, except such provisions which may be reasonably interpreted as surviving termination or expiration of this Agreement; and (c) Customer shall pay to Vendor all amounts earned by Vendor through the date of termination.

10.   Miscellaneous.

a.      Vendor Observed Holidays.  Vendor Holidays are as follows:  New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving, and Christmas Day.

b.      Third-Party Goods and Services.  Although Vendor may assist in procuring, installing, servicing, returning, and/or exchanging of goods and/or services manufactured and/or delivered by third parties, Vendor only acts as a reseller of these goods and/or services. Vendor is neither an agent, nor representative, nor warranty service center for any Products. Customer acknowledges and understands that Vendor neither designs, nor publishes, nor manufactures any such Products, and therefore disclaims any and all warranties without limitation, and Customer waives such claims against Vendor. Customer acknowledges that its sole warranty related to any Products are limited to any warranty that may be given to Customer by the manufacturer or publisher of the Products. Vendor cannot be held responsible for any errors, defects, malfunctions, or other problems resulting from incorrect specifications having been submitted to Vendor, Customer having approved incorrect specifications, improper use of products, and any modification having been made to said products by anyone other than Vendor. Customer acknowledges that some goods and services cannot be returned or cancelled once ordered and agrees that Vendor is under no obligation to take back or cancel any such goods or services, once ordered by Customer. For third-party goods ordered from Vendor, risk of loss or damage shall pass to Customer at the time such goods are tendered to a common carrier for shipment to Customer, unless Customer purchases shipping insurance. Vendor reserves the right to engage sub-contractors to perform under the terms of this Agreement or any SOW.

c.       Customer Data. Unless specifically contracted for services in an approved SOW, Customer understands that although Vendor will exercise commercially reasonable efforts in safeguarding Customer’s data and may perform backups of Customer’s data as an initial part of any Services rendered, Customer is solely responsible for maintaining current backups of all data before any Services are performed.

d.      Network Abuse.   Customer expressly grants Vendor permission to remove or restrict access to obscene, indecent, or offensive content made available by a network user or over the Internet and shall not hold Vendor liable for any action taken to restrict access to material made available in violation of any law, regulation, or rights of a third party, including, but not limited to, rights under copyright law and prohibitions on libel, slander, and invasion of privacy.

e.      Software License.   Services provided by Vendor may require software provided by Vendor and/or third parties. All such software is licensed to Customer subject to the terms and conditions of one (1) or more end-user license agreements (collectively, “EULA”) which is typically provided as either a document accompanying such software or electronically during initial use of such software. Customer represents to Vendor that it will abide by the terms and conditions of the EULA associated with any such software.

f.       Pricing.   Vendor may quote professional services with scope and pricing defined in the corresponding SOW.  Vendor may also quote labor as a fixed rate under a SOW. In the event that the scope of the project change, a Change Order, approved by Customer and Vendor, will be required.  When a fixed rate is not quoted, Vendor will exercise commercially reasonable efforts to provide Customer with estimated charges. Customer understands, however, that the hours or dollar amounts quoted are only an estimate and Customer will be billed for actual hours spent in delivering the services described in the Project SOW. Vendor will also exercise commercially reasonable0 efforts in notifying Customer if service hours are excessively exceeding the original estimate.  Customer understands that Vendor bases its prices on pre-paid labor and timely payments by Customer. Labor that is not pre-paid or payments that are not delivered to Vendor in a timely manner could result in the removal of discounts or other considerations, which could result in higher billing.

g.      Shipping.  All orders are FOB Shipping Point and Customer is responsible for all associated shipping and handling charges.

h.      Returns.   All returns must have a Return Merchandise Authorization (RMA) number. RMA numbers can be obtained by contacting Vendor’s Purchasing Department. Vendor reserves the right to assess a restocking charge on non-defective returns. All returns must be in “like new” condition, in the original packaging, including all manuals, etc. Vendor reserves the right to refuse a return which is not in this condition. Vendor reserves the right to refuse Products for return. Certain items such as software, special orders, client-specified items, and discontinued products are sold “AS IS” and cannot be returned.

i.        Non-solicitation.  Both Parties agree that during the term of this Agreement and for a period of 180 days thereafter, they will not, without the prior written consent of the other Party, solicit, hire, contract with, or engage the services of any employee of the other Party with whom they have worked directly in conjunction with performance of the services under this Agreement. In the event this clause is breached, the Party causing the breach shall pay the other Party an amount equal to two times such employee’s annual salary, including benefits.  The Parties agree that damages for such breach would be difficult or impossible to ascertain and the amount set forth is agreed upon liquidated damages and is not intended as a penalty.

j.        Marketing, Advertising and Press Release.  Vendor may use the name or any trademarks, trade names and service marks of Customer or its affiliates, for any purpose, including without limitation advertising and marketing.

k.      Relationships.  Vendor is engaged by Customer only for the purpose and to the extent set forth in this Agreement.  Vendor is an independent contractor to Customer.  Customer and Vendor are not, and shall not be deemed to be, partners or joint ventures.  Vendor’s employees are not, and shall not be deemed, employees of Customer.  Vendor, and not Customer, is solely responsible for the compensation of its personnel, employees, agents and subcontractors assigned to perform services hereunder, and payment of worker’s compensation, disability and other income and other similar benefits, unemployment and other similar insurance and for withholding income, other taxes and social security. 

l.        Assignment.  Neither Party may assign this Agreement or any SOW and/or any rights and/or obligations hereunder without the written consent of the other Party and any such attempted assignment shall be void.  Notwithstanding the foregoing, Vendor may assign this Agreement without consent of the Customer to any affiliated company or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Vendor’s assets.  Subject to the foregoing provisions, all rights and obligations of the Parties hereunder shall be binding upon and inure to the benefit of successors and permitted assignees.

m.    Notices.  All notices shall be made in writing and addressed and sent to the receiving Party’s address specified on the first page to this Agreement.  Notices are effective upon receipt.  Notices must be transmitted by registered or certified mail, overnight courier, or electronic transmission in .pdf format or similar format.

n.      Interpretation.  If any provision of this Agreement is invalid or unenforceable under any statute or rule of law, the provision is to that extent deemed omitted, and the remaining provisions shall not be affected in any way.

o.      Governing Law; Jurisdiction.  The validity, interpretation and performance of this Agreement shall be governed by and construed in accordance with the laws of the State of Washington without regard to the principles of conflicts of law.  All actions and proceedings under this Agreement shall be brought exclusively in the state of Washington.  Parties agree and consent to both jurisdiction and venue in the state of Washington and county of Spokane.  The Parties waive any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other Party.

p.      Modification; Entire Agreement.  This Agreement shall not be modified except in writing and signed by authorized representatives of both Parties.  This Agreement and the SOWs contain the entire understanding of the Parties with respect to their subject matter and expressly supersede all prior agreements, whether oral or written, relating thereto.

q.      Dispute Resolution. Except as set forth in Section 3 of this Agreement, in the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach thereof (collectively “Dispute”), the Parties shall use their best efforts to settle the Dispute, including the following:

                                                     i.     The Parties agree to consult, meet in person or by video conference, and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both Parties.

                                                   ii.     If the Parties do not resolve the Dispute pursuant to the foregoing paragraph within a period of 30 days, then, upon notice by either Party to the other, the Parties agree to mediate the Dispute in good faith according to the Washington Arbitration & Mediation Service Medication Rules. The Parties shall work in good faith with the mediator to attempt to complete the mediation within 60 days of such notice. 

                                                  iii.     If the Parties do not resolve the Dispute through mediation, then, upon notice by either Party to the other, the Dispute shall be finally settled by arbitration administered by the Washington Arbitration & Mediation Service in accordance with the provisions of its Arbitration Rules and the statutes of the state of Washington pertaining to binding arbitration (if any). The arbitration shall be conducted on a confidential basis. The arbitration shall be conducted before a single arbitrator mutually agreed to by the Parties. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any arbitration shall be conducted by an arbitrator experienced in contract and technology law, shall include a written record of the arbitration hearing, and shall be conducted in Spokane, Washington. An award of arbitration may be confirmed in a court of competent jurisdiction. The arbitrator may award to one or both Parties as prevailing Party, if any, as determined by the arbitrator, some or all of its costs and fees in their sole discretion. “Costs and fees” mean all reasonable pre-award expenses of the arbitration, including the arbitrators’ fees, administrative fees, out-of-pocket expenses such as copying and telephone, witness fees, and attorneys’ fees. Except as limited by Section 7 of this Agreement, the statutes of limitation as they exist under the laws of the state of Washington shall apply to any claim or matter arising out this Agreement.

r.       Force Majeure.  Except for Customer’s payment obligations, neither Party shall be liable to the other Party for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot, disputes with suppliers/vendors, the intervention of any governmental authority or any other cause beyond the reasonable control of the Party invoking this section (a “Force Majeure”).  In such event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure. 

s.       Rule of Construction.  The Parties have participated jointly in the negotiation and drafting of this Agreement.  In the event that an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

t.       Counterparts/Facsimile.  For the convenience of the Parties, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.  This Agreement may be executed by signatures transmitted by facsimile, electronic mail, or other electronic transmission method.

u.      Survival of Terms.   The provisions of this Agreement and each SOW which by their nature extend beyond termination will survive termination or expiration of this Agreement or the relevant SOW.