Master Services Agreement

PLEASE READ THE TERMS AND CONDITIONS OF THIS MASTER SERVICES AGREEMENT CAREFULLY BEFORE USING THE SERVICES AND/OR SOFTWARE OFFERED BY AEQUITAS SOLUTIONS, INC., A DELAWARE LIMITED LIABILITY COMPANY (“AEQUITAS”).

THIS MASTER SERVICES AGREEMENT GOVERNS THE CUSTOMER’S (AS DEFINED BELOW) ACCESS TO AND USE OF AEQUITAS’ PRODUCT(S) AND SERVICES AND IS AN AGREEMENT BETWEEN CUSTOMER AND AEQUITAS.

BY ACCEPTING THIS AGREEMENT, EITHER BY: (1) EXECUTING A QUOTE THAT REFERENCES THIS AGREEMENT; (2) BY EXECUTING A COPY OF THIS AGREEMENT DIRECTLY; OR (3) ACCESSING THE AEQUITAS PRODUCT(S), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY RELATED QUOTE(S). IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. THE TERM “CUSTOMER,” AS DEFINED BELOW, WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS OF THIS MASTER SERVICES AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE AEQUITAS PRODUCT(S).

1. DEFINITIONS

“Agreement” means this Master Services Agreement and all referenced exhibits.

“Customer” means the educational service agency, school, school district or other entity obtaining access to the Aequitas Products or Services.

“Customer Data” means any data, including digital files and unstructured content objects, entered or submitted by Customer by means of the Aequitas Product(s).

“Cloud Services” means the hosting of the Aequitas Product(s) on a server farm that is comprised of application, data and remote access servers used to store and run the Aequitas Product(s), as further detailed in Exhibit C (Cloud Services Policy).

“Documentation” means all electronic or printed User materials, made available to Customer by Aequitas with respect to Aequitas’ Product(s) or Services.

“Intellectual Property Rights” means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, know-how, other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

“Licensed Site(s)” means a unique School to whom Aequitas Product(s) shall be provided under the Quote and terms of this agreement.

“Parties” means Aequitas Solutions, Inc. and the Customer of Aequitas’ Product(s).

“Product(s)” means all software provided by Aequitas pursuant to an executed Quote form and to this Agreement, now or in the future.

“Professional Services” means the services which may be further discussed and described through a Statement of Work or Quote, pursuant to Exhibit B (Professional Services Policy) of this Agreement.

“SaaS” means the acronym for the phrase “software as a service”.

“Services” means any combination of the following: a) Support Services, b) Subscription and/or c) Professional Services.

“Subscription” Access provided to Aequitas Products and all related Documentation provided to Customer pursuant to Quote and the terms of this Agreement, now or in the future.

“Support Services” is defined in Exhibit A (Support Policy).

“State Reporting Module (or SRM)” means Aequitas Product(s) that may be available to Customer to assist Customer in meeting specific state reporting requirements.

“Statement of Work” or “SOW” means any Professional Services project made between the Parties which references and incorporates the terms of this Agreement, and sets out the details of a particular project, including, without limitation, any applicable (i) methodologies; (ii) project responsibilities; or (iii) estimated or actual pricing.

“Quote” means Aequitas standard quote form that (i) specifies the Product(s) and Services provided to Customer; (ii) references this Agreement; and (iii) is signed or incorporated to a signed agreement by authorized representatives of both Parties and deemed incorporated into the Agreement.

“Term” means the duration of the Agreement as described in section 11.1.

“User(s)” means individuals authorized by the Customer who access and utilize Aequitas Product(s).

2. AEQUITAS PRODUCT ACCESS

2.1 Product Access. Subject to this Agreement Aequitas will (a) make the Product(s) available to Customer via Aequitas’ Cloud Services for the contracted number of Users; (b) provide applicable Support Services to Customer and Users, as described in Exhibit A (Support Policy); (c) use commercially reasonable efforts to make the Products available, except for: (i) planned downtime (of which Aequitas will give advance electronic notice), and (ii) any force majeure event as described in Section 14.2.2 (Force Majeure), internet service provider failure or delay, Third Party Software, or denial of service attack.

2.2 Restrictions on Product Access. Customer will access and use Aequitas’ Product(s) only for the business purposes of Customer. Any use of the Product(s) beyond this purpose is prohibited.

2.2.1 Aequitas’ Product(s) may not be accessed or used by or sub-licensed to any Aequitas competitor, except with Aequitas’ prior written consent in each instance.

2.2.2 Customer will ensure its Users will not, and itself will not (a) sell, resell, distribute, lease, license, sublicense, frame, mirror or copy the Aequitas Product(s) or otherwise provide access to the Aequitas Product(s) to any third party not expressly authorized by Aequitas; (b) write or develop any derivative works based upon the Aequitas Product(s) or Documentation; (c) interfere with or disrupt the integrity or performance of the Aequitas Product(s) or third party data contained therein; (d) attempt to gain unauthorized access to the Aequitas Product(s)or its related systems or networks; or (e) remove any proprietary notices or labels from the Aequitas Product(s) or Documentation. Any attempted sublicense, assignment, or transfer of any rights, duties or obligations by Customer in violation of this Agreement will be void.

2.2.3 Customer shall prevent unauthorized access to, or use of, Aequitas’ Product(s), and notify Aequitas promptly of any such unauthorized access or use. Customer will not transfer, assign, provide or otherwise make Aequitas’ Product(s) or Services available to any other party without the prior written consent of Aequitas. Customer will keep confidential and not disclose to any third parties, and will ensure that all authorized users keep confidential and do not disclose to any third parties, any User IDs, account numbers, passwords or other similar information for the Aequitas Product(s).

3. PROPRIETARY RIGHTS

3.1 Intellectual Property Rights. Aequitas alone owns all rights, titles and interests, including all related Intellectual Property Rights, in and to the Aequitas Product(s) and Services. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Aequitas’ Product(s) and Services, or the Intellectual Property Rights owned by Aequitas. All Intellectual Property Rights shall remain the property of Aequitas.

3.2 Trademarks. The Aequitas name, the logo, product names associated with Aequitas’ Product(s) and any other marks, logos, designs, sound, trade dress, etc. are trademarks of Aequitas, and no right or license is granted by this Agreement to their use.

3.3 Customer Feedback. Aequitas shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Aequitas’ Product(s) any suggestions, enhancement requests, recommendations or other feedback provided by Customer, its employees, contractors and agents relating to the operation or functionality of the Aequitas’ Product(s) (collectively, “Feedback”). Aequitas shall have no obligation to incorporate Feedback into the Aequitas’ Product(s). Customer shall have no obligation to provide Feedback.

3.4 Ownership of Customer Data. Customer shall own all right, title and interest in and to the Customer Data.

4. CUSTOMER DATA

4.1 Responsibility for Content of Customer Data. Customer will have sole and exclusive responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer will not send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that is harmful to children, violates third party privacy or Intellectual Property Rights, includes malicious code, or that will interfere with the integrity the Aequitas’ Product(s).

4.2 License to Customer Data. Customer grants to Aequitas a royalty-free, non-transferable, non-exclusive license for the term of this Agreement to use Customer Data to the extent necessary to deliver and perform the Aequitas’ Product(s). Notwithstanding anything to the contrary, Aequitas shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Aequitas’ Product(s) and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Aequitas will be free (during and after the term hereof) to (i) analyze and use such information and data to improve and enhance the Aequitas’ Product(s) and for other development, diagnostic and corrective purposes in connection with the Aequitas’ Product(s) (examples of such uses include optimizing resources and support, research and development, verification of security and data integrity, internal demand planning, industry developments and anonymous benchmarking with other customers), and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

4.3 Public Record Act. Notwithstanding anything herein to the contrary in section 3.3, Aequitas acknowledges that, to the extent Customer is subject to public record acts or freedom of information acts, Aequitas will work with Customer to provide appropriate information in response to such requests.

4.4 Customer Data Security and Privacy. Aequitas will abide by its policy, as set forth in Exhibit D (Data Privacy Policy) with respect to the security and privacy of its Customer’s data.

5. CONFIDENTIALITY.

5.1 Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Customer’s Confidential Information includes Customer Data; Aequitas’ Confidential Information includes the Product(s) and information regarding features, functionality and performance of the Product(s); and Confidential Information of each party includes the terms and conditions of this Agreement and all Quotes (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

5.2 Obligation to Protect Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) and shall: (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliate’s, legal counsel’s or accountant’s compliance with this Section 5.

5.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

5. SUPPORT AND OTHER SERVICES. Aequitas will provide the Support Services set forth in Exhibit A (Support Policy) and Professional Services mutually agreed upon via a Quote or Statement of Work pursuant to Exhibit B (Professional Services Policy).
6. FEES AND TAXES.

6.1 Payment of Invoices and Taxes. Customer agrees to pay Aequitas, in accordance with Aequitas’ invoice terms, the fees charged for Aequitas’ Product(s) and related Services, along with any other charges made in accordance with this Agreement, and all applicable sales, use or other taxes or duties with respect to the Product(s) (except for taxes on Aequitas’ net income). Any invoice disputes must be initiated by Customer in good faith and in writing by the due date of the applicable invoice, after which time the invoice shall be deemed to be accepted by Customer. All undisputed amounts charged on such invoice will continue to be due and payable. Aequitas and Customer agree to use reasonable efforts to address and attempt to resolve any invoice dispute within thirty (30) days after Aequitas’ receipt of Customer’s notice to Aequitas regarding such dispute. Customer will pay a monthly charge of 1.5% (18% annually) on all amounts not paid when due, or, if a lower maximum rate is established by law, then such lower maximum rate.

6.2 Price Increases. Aequitas’ Product fees are subject to an annual price uplift at start date of each annual period. Each annual subscription period’s fees will be invoiced at the current rates.

6.3 Enrollment Based Pricing. Aequitas’ per User Product pricing is based on the number of students enrolled at the Licensed Sites in the current annual term of the subscription. If, during the then-current annual subscription term, Customer accesses Aequitas’ Product(s) with more than the number of Users authorized in the Quote, Aequitas may submit an amended invoice for the amount of such excess usage. Any such increase in will be maintained through the end of the then-current annual term. Such additional fees will be computed by multiplying the then-current Product subscription fees by Customer’s additional student enrollment.

6.4 Annual Enrollment Review. Customer’s student enrollment shall be reviewed by Aequitas within 60 days of the start of each and new annual subscription period and the annual fees for that period shall be calculated by multiplying the then-current Product subscription fees by Customer’s student enrollment count.

6.5 Licensed Site Based Pricing. Aequitas’ per school Product pricing is based on the Customer’s number of Licensed Sites. Customer usage of the Product(s) will be limited to Licensed Sites, additional Licensed Sites may be added through an addendum Quote, add-on pricing shall be based on then-current Product subscription fees times the number of additional Licensed Sites.

7. THIRD PARTY SOFTWARE LICENSE TERMS. If applicable, Customer may require use of certain third-party software in connection with the Product(s). Any third party software is licensed directly to the Customer pursuant to separate license terms between Customer and the third-party supplier and all support, warranties, and services related to such third party software are provided by the supplier of the third-party software under such third party’s terms and conditions and Customer acknowledges that Aequitas will have no responsibility for the implementation or operation of such third party software.
8. SOFTWARE COMPATIBILITY. Aequitas Product compatibility may be limited to certain operating systems, hardware, browsers. Aequitas will make written software compatibility requirements available to Customer at Customer’s request.
9. WARRANTY AND DISCLAIMER.

9.1 Product Warranty. Aequitas warrants that the Product(s) will conform in all material respects to the Documentation. As Customer’s sole remedy for any breach of this warranty, if Customer brings to Aequitas’ notice any incidence of non-conformance, Aequitas will use reasonable efforts to correct the error.

9.2 State Reporting Module (SRM). Customer acknowledges that Aequitas’ State Reporting Module (SRM) is intended to assist Customer in complying with state regulatory requirements; however, Aequitas does not warrant or guarantee that SRM conforms to, or that use of the SRM will ensure Licensee’s compliance with, all state or provincial regulatory requirements that may apply or that the SRM will be maintained to conform to such requirements now or in the future.

9.3. Disclaimer. EXCEPT FOR THE WARRANTIES PROVIDED IN THIS SECTION 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT(S) AND THE SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” AND AEQUITAS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY AND CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THE USE OF REASONABLE SKILL AND CARE, OR ANY WARRANTY OF SATISFACTORY QUALITY, ACCURACY, FREEDOM FROM ERROR OR THAT THE PRODUCT(S) OR THE SERVICES WILL MEET ALL OF THE CUSTOMER’S REQUIREMENTS. AEQUITAS MAKES NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR RELATED SERVICES PROVIDED IN CONNECTION WITH THE PRODUCT(S). AEQUITAS’ LIMITED WARRANTIES DO NOT APPLY TO ANY SOFTWARE WHICH HAS BEEN MODIFIED OR ALTERED IN ANY MANNER BY ANYONE OTHER THAN AEQUITAS OR ITS AUTHORIZED AGENT. SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN OR ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS, GUARANTEES OR CONDITIONS ARE LIMITED IN DURATION TO THE WARRANTY PERIOD TO THE EXTENT LEGALLY PERMISSIBLE. The parties agree that it is Customer’s responsibility to determine if the Product(s) is suitable for Customer’s requirements.

10. LIMITATION OF LIABILITY. AEQUITAS WILL NOT BE LIABLE FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; OR LOST PROFITS, LOST FUNDING, LOST SAVINGS, OR LOST OR DAMAGED DATA; OR FOR CLAIMS OF A THIRD PARTY; ARISING OUT OF THIS AGREEMENT, OR PRODUCTS, SERVICES OR SUPPORT PROVIDED HEREIN, OR THE USE OR INABILITY TO USE ANY OF THE FOREGOING, IN EACH CASE, EVEN IF AEQUITAS IS ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. AEQUITAS’ ENTIRE LIABILITY UNDER THIS AGREEMENT OR IN ANY WAY RELATED TO THE PRODUCT(S) OR SERVICES WILL BE LIMITED TO DIRECT DAMAGES IN A MAXIMUM AGGREGATE AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO AEQUITAS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. AEQUITAS WILL ALSO NOT BE RESPONSIBLE FOR ANY FAILURE TO PERFORM DUE TO ANY EVENTS BEYOND AEQUITAS’S CONTROL (INCLUDING FAILURES OF THE INTERNET).
11. INDEMNIFICATION

11.1 Indemnification by Aequitas. Aequitas herby agrees to defend, indemnify, and hold harmless the Customer from and against any and all costs, expenses and damages arising out of or relating to any claim by a third party alleging that the Product(s) infringes any Intellectual Property Rights in the United States or Canada, provided that Aequitas will have received from Customer (i) prompt written notice of such claim; (ii) the exclusive right to control and direct the investigation, defense and settlement of such claim; and (iii) all reasonable necessary cooperation of Customer. If following notice of such a claim, Aequitas cannot settle it on reasonable terms, Aequitas may terminate this Agreement with the sole obligation to refund to Customer any prepaid fees for any future period during which Customer will not be entitled to access the Product(s). The foregoing obligation of Aequitas does not apply to the extent the claim arises from (i) modifications to the Aequitas’ Product by anyone other than Aequitas or (ii) any unauthorized use, access or distribution of the Aequitas Product. THE FOREGOING STATES AEQUITAS’ 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 OF ANY THIRD PARTY.

11.2 Indemnification by Customer. To the extent permitted under applicable law, Customer agrees to indemnify and hold Aequitas harmless against and from all costs (including reasonable legal fees), expenses and damages made by any third party against Aequitas arising from of: (a) Customer’s breach of the access and use restrictions set forth in Section 2; (b) Aequitas hosting Customer Data; or (c) unauthorized changes to, or use of the Product(s) by, Customer.

12. TERM AND TERMINATION

12.1 Term. This Agreement commences on the date Customer first executes it and/or Aequitas Quote form and continues until the term of all Product(s) or Services provided under any applicable Quote have expired (Quote End Date) or been terminated.

12.2 Suspension. Aequitas will have the right to suspend delivery of its Product and Services offered under this Agreement in the event that Customer is notified that it is in breach of any of its obligations under this Agreement and fails to cure the breach within fifteen (15) days of the notice.

12.3 Termination for Breach. Either party will have the right to terminate this Agreement in whole or in part upon thirty (30) days written notice to the other party, in the event the other party materially breaches this Agreement and fails to correct such breach within such thirty (30) day period.

12.4 Termination for Non-appropriation. If the Customer is a governmental entity that is bound to budget appropriation limitations that prevent it from committing to the payment of funds beyond its fiscal year, and if funds are not allocated for the Aequitas Product(s) and Services of any succeeding fiscal year during which the Quote may continue, then Customer may terminate without liability for any termination charges, fees, or penalties at the end of its last fiscal period for which funds were appropriated. Customer will give Aequitas written notice that funds have not been appropriated (a) immediately after Customer receives notice of such non- appropriation; and (b) at least thirty (30) days prior to the effective date of such termination.

12.5 Effects of Termination. In the event of any termination of all or any portion of this Agreement, Customer will not be relieved of any obligation to pay any sums of money that have accrued prior to the date of termination. In addition, the provisions of Sections 3 (Proprietary Rights), 5 (Confidentiality), 6 (Fees and Taxes), 10 (Limitation of Liability), 11 (Indemnification), 12.5 (Effects of Termination), 12.6 (Liquidated Damages), 12.7 (Data Portability and Deletion) and 13 (General) will survive termination of this Agreement.

12.6 Liquidated Damages. In the event that Customer enters into a multi-year Quote with Aequitas and Customer terminates the contract or any portion thereof, Customer agrees to pay Aequitas the remaining sum due to Aequitas through the stated term in the applicable Quote as liquidated damages. These liquidated damages are due and payable in a lump sum on the date of termination of the Agreement. Customer acknowledges that the actual damages likely to result from a breach of the multi-year Quote term by Customer are difficult to ascertain and that the foregoing liquidated damages are intended to represent estimated actual damages and are not intended as a penalty. This clause will not apply in the event Customer terminates this Agreement as (a) a result of Aequitas’ breach in accordance with Subsection 12.3 hereof, or (b) as a result of other termination by the customer in accordance with section 12.4 hereof.

12.7. Data Portability and Deletion. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of this Agreement, Aequitas will make the Customer Data available to Customer for export or download. After such thirty (30) day period, Customer acknowledges that Aequitas will have no obligation to maintain or provide Customer Data.

13. GENERAL

13.1 Governing Law. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA. THE VENUE FOR ANY LEGAL ACTION, LITIGATION, SPECIAL PROCEEDING OR OTHER PROCEEDING BETWEEN THE PARTIES THAT MAY BE BROUGHT, OR ARISE OUT OF, IN CONNECTION WITH, OR BY REASON OF THIS AGREEMENT SHALL BE IN THE STATE OF CALIFORNIA. EACH PARTY HEREBY CONSENTS TO THE JURISDICTION OF SUCH COURTS.  The parties exclude the operation of the United Nations Convention on Contracts for the International Sale of Goods.

13.2 Dispute Resolution. Upon any dispute, controversy or claim between the parties, each of the parties will designate a representative from senior management to attempt to resolve such dispute. The designated representatives will negotiate in good faith in an effort to resolve the dispute over a period of thirty (30) days. If the dispute is not resolved in this 30 day period, the parties will submit the dispute to binding arbitration in accordance with Commercial Arbitration Rules of the American Arbitration Association (the “Rules”), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. All arbitration proceedings shall be held in Sacramento, California and the arbitrator, who shall be experienced in technology transactions, shall be appointed in accordance with the Rules. Notwithstanding, each party shall be entitled to seek injunctive relief.

13.3 Amendment. This Agreement may only be amended or modified by a writing specifically referencing the particular Section(s) of this Agreement to be modified and signed by authorized representatives of the Parties.

13.4 Force Majeure. Aequitas will not be deemed in default of this Agreement for delays or failure in performance resulting from acts beyond its reasonable control, including but not limited to, default by subcontractors or suppliers, failure of Customer to provide promptly to Aequitas accurate information and materials, as applicable, acts of God or of a public enemy, acts of terrorism, United States or foreign governmental acts in either a sovereign or contractual capacity, labor, fire, power outages, road icing or inclement conditions, flood, epidemic, restrictions, strikes, and/or freight embargoes.

13.5 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, that provision must be severed or reformed to be enforceable, and the remaining provisions hereof and thereof will remain in full force. No delay or omission by Aequitas in the exercise or enforcement of any of its powers or rights hereunder will constitute a waiver of such power or right.

13.6 Notices. All notices under this Agreement must be in writing return receipt requested, with a copy by email. In the case of notices to Aequitas, such notices must be sent to:

AEQUITAS SOLUTIONS, INC., Attn: Controller, 7365 Carnelian St, Rancho Cucamonga, CA 91730

In the case of notices to Customer, such notices will be sent to Aequitas’ address of record for Customer. Customer shall ensure its address of record with Aequitas is at all times current and Aequitas shall not be responsible for any non-delivery or retuned notice due to a wrong or outdated address Either party may change its notice address by notifying the other in like manner.

13.7 Assignment. Neither party may assign this Agreement or any interest herein, without the prior written consent of the other; provided, however, that Aequitas may assign its rights and obligations under this Agreement without the consent of the Customer in the event Aequitas hereafter effects a corporate reorganization, consolidates with, or merges into, any person or transfers all or substantially all of its properties or assets to any entity. This Agreement will inure to the benefit of and be binding upon the Parties, their respective successors, executors, administrators, heirs and permitted assignees.

13.8 Entire Agreement. This Agreement and/or exhibits referenced herein, and any addendums and amendments, constitute the complete and entire agreement between the Parties with respect to its subject matter, and supersedes all prior discussions, understandings, arrangements, proposals and negotiations with respect to same. By mutual agreement of the Parties, this Agreement is effective upon execution of a Quote and supersedes all prior Agreements entered into by the Parties, the Parties’ agents, and/or the Parties’ previous affiliates. This Agreement may not be modified or amended without the written agreement of both Parties that specifies the particular Section(s) being modified. The order of precedence is the executed Quote, then this Agreement.