DELUXE ONE SOFTWARE AS A SERVICE AGREEMENT

The terms of this Software as a Service Agreement (“Agreement”) govern your use of the products, features, services, technologies, and software associated with the Deluxe One SaaS Platform offered by Deluxe Media Inc., located at 2130 N. Hollywood Way, Burbank, CA 91505 (“Deluxe”).  By using the Deluxe One SaaS Platform or the SaaS Services, you (“You” or “Customer”) agree to enter into a legally binding contract with Deluxe and to be bound by the terms of this Agreement.

1.        Definitions.

1.1      “Applicable Laws” means all applicable laws, regulations, rules, industry standards, ordinances, orders, and directions, including without limitation all privacy and data protection laws.

1.2      “Content” means any and all video files containing motion pictures, films, television shows, and other audio, visual, or audiovisual materials, including, without limitation, excerpts, clips, trailers, promotional and supplemental materials, music, artwork, stills, photographs, metadata and any other digital media, materials, data and information.

1.3      “Content Provider” means owners, licensors and rights holders of the Content, including but not limited to motion picture studios, television networks, cable networks, and music labels.

1.4      “Customer Content” means all Content(a) submitted by or on behalf of Customer to Deluxe or (b) created, transmitted, or displayed by or on behalf of Customer while accessing or using the SaaS Services.

1.5      “Deliverables” means the final deliverable(s) provided by Deluxe to Customer created in the performance of any of the Services.

1.6      “Deluxe One”, “One Software” or “Deluxe One SaaS Platform” means Deluxe’s proprietary software, storage and technology solutions that enable Customer and others to create, manage and distribute content, currently branded “Deluxe One” and any and all future advancements, enhancements and other modifications of the One Software (if any), used by Deluxe to provide the SaaS Services under this Agreement, which includes, without limitation, any associated APIs and any Services specified in a Statement of Work. 

1.7       “Force Majeure Event” shall mean any circumstance or event outside of Deluxe’s or any of its contractor’s reasonable control, including without limitation acts of God, earthquake, labor disputes, actions of governmental entities, riots, war, terrorism, fire, flood, storm or other adverse weather conditions (including solar flares or sun outages with respect to satellite transmission interference), quarantine restrictions, epidemics, pandemics or disease outbreaks, internet outages, communications line failures, power failures or delays of common carriers.

1.8       “SaaS Users” means Customer’s employees, partners, consultants, customers, contractors and/or agents who are authorized to use the SaaS Services and have been supplied user identifications and passwords by Customer and/or by Deluxe at Customer’s request.

1.9      “Services” means any and all content processing services provided by Deluxe to Company pursuant to the terms of this Agreement and any applicable Statement of Work..

1.10    “Statement of Work” or “SOW” means a purchase order, statement of work or other document executed by Deluxe and Customer attached hereto or otherwise referencing this Agreement.

1.11    “Third-Party Royalties” means any and all amounts paid or payable to (i) Content Providers, and (ii) other third parties relating to content format, content protection, or the playback of Content.

2.          Services. 

2.1    SaaS Services.  With regard to the operation of the Deluxe One SaaS Platform, Deluxe will grant Customer access to the Deluxe One SaaS Platform, via web browser, One APIs, or otherwise, and Deluxe will operate the Deluxe One SaaS Platform on behalf of Customer (collectively, the “SaaS Services”).     

2.1.1     Grant of Rights.  Starting on the Effective Date, Deluxe hereby grants Customer and the SaaS Users a limited, worldwide, non-exclusive, revocable right to access and use the applicable SaaS Services during the Term in accordance with this Agreement for the sole purpose of storing, archiving, creating, managing and distributing the Customer Content.

2.1.2     SaaS Users.  Deluxe will provide Customer with initial usernames, passwords, or other access methods (collectively, “Login Information”) for SaaS Users to access and use the SaaS Services.  Customer will safeguard the Login Information at all times.  Customer will not disclose any Login Information to any person other than the SaaS Users.  The Login Information may not be used by any person other than SaaS Users without the prior written consent of Deluxe and each set of unique Login Information may only be assigned to, and used by, one individual SaaS User at all times.  Upon written request from Customer, Deluxe may provide Customer with Login Information for an administrative account.  Customer acknowledges that Deluxe may, from time to time (in its sole discretion), monitor the logon times and usage by each SaaS User account for the purpose of verifying that Customer and the SaaS Users are the sole holders and users of the Login Information and are in compliance with this Agreement.

2.1.3     Customer Responsibilities for SaaS Services. Customer is solely responsible and liable for (a) all activities and usage of the SaaS Services via the Login Information assigned to Customer and (b) the accuracy, quality, integrity, legality, reliability, appropriateness, and security of all Customer Content.  Deluxe’s obligations under this Agreement with respect to the SaaS Services and Services are subject to the Customer Content being in commercially acceptable condition for Deluxe to perform the SaaS Services hereunder.  Deluxe will not be responsible for any damages, loss or delays caused by any failure of Customer to deliver such Customer Content to Deluxe on a timely basis or in acceptable quality.  Customer will prevent unauthorized access to, or use of, the SaaS Services, and immediately notify Deluxe of any such unauthorized access or use.

2.1.4         Restrictions. Customer will, and will cause SaaS Users to access and use the SaaS Services only for the purposes set forth in this Agreement and, unless expressly contemplated in this Agreement, will not (a) access or use the Deluxe One SaaS Platform other than through the SaaS Services; (b) disassemble, decompile, reverse engineer, recreate or otherwise attempt to derive or discover the source code of the SaaS Services or the Deluxe One SaaS Platform; (c) adapt, copy, modify, enhance or create derivative works of the SaaS Services or the Deluxe One SaaS Platform; (d) license, lease, sublease, sublicense, sell, distribute, transfer possession, rent, or grant other rights in the SaaS Services or Deluxe One SaaS Platform, or engage in service bureau work, time-sharing arrangements with respect to or access to the SaaS Services, or otherwise make the SaaS Services available to any third party; (e) send spam or otherwise duplicative or unsolicited messages and/or content or data in violation of applicable laws to or through the SaaS Services; (f) send or store infringing, threatening, libelous, or otherwise unlawful or tortious content or data and/or other materials to or through the SaaS Services; (g) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs to or through the SaaS Services; (h) interfere with or disrupt the integrity or performance of the SaaS Services or any other user’s access or use of Deluxe’s services and products; (i) attempt to gain unauthorized access to the SaaS Services, its related systems or networks, or data or information stored on the SaaS Services; or (j) delete, alter, cover, or distort any patent, copyright, trademark, or other proprietary rights notice placed by, on or in the SaaS Services or Deluxe One SaaS Platform.

2.1.5         Right to Refuse Performance.  Without placing any obligation on Deluxe to monitor the following, Deluxe may, without liability, refuse or cease to perform the SaaS Services if Deluxe, in its sole discretion: (a) deems any Customer Content to be unlawful or inappropriate; (b) believes such SaaS Services may subject Deluxe to criminal or civil proceedings or to liability of any kind; (c) finds that Customer Content is not of the necessary technical standard to enable Deluxe to perform the applicable SaaS Services; (d) deems that Customer is in material breach of this Agreement; or (e) deems that Customer is unable to pay its debts, in each case following reasonable prior notice to Customer.

2.1.6         Change to SaaS Services. Deluxe may change or discontinue any part of the SaaS Services or change or remove features or functionality of the SaaS Services from time to time.  Deluxe will notify Customer of any material change to or discontinuation of any part of SaaS Services.

2.2      API Usage.  If Customer accesses any Deluxe One SaaS Platform application programming interfaces (“One APIs”) to interact with the Deluxe One SaaS Platform, Customer shall not: (A) access the One APIs or documentation in violation of any law or regulation; (B) access the One APIs in any manner that (i) compromises, disrupts, interferes with, breaks or circumvents any of Deluxe’s technical processes or security measures associated with the SaaS Services, (ii) poses a security vulnerability to customers or users of the SaaS Services, or (iii) tests the vulnerability of Deluxe’s systems or networks; (C) access any One APIs or documentation in order to replicate or compete with the SaaS Services; (D) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of the One APIs or SaaS Services; (E) attempt to use the One APIs in a manner that exceeds rate limits, or constitutes excessive or abusive usage; (F) use the One APIs, or any data obtained using the One APIs, to conduct performance testing of a Deluxe offering unless expressly permitted by Deluxe; or (G) redistribute or resell, or sublicense access to, the One APIs or any part thereof, any data obtained using the One APIs, or any other Deluxe offering accessed through the One APIs without Deluxe’s express written permission.  Deluxe reserves the right to change or discontinue the availability of some or all of the One APIs at any time for any reason with or without notice. 

2.3      Open Source Software.  Some of the software required by or included in the Deluxe One SaaS Platform and the One APIs may be offered under open source licenses. Open source software licenses constitute separate written agreements. To the limited extent the open source software licenses expressly supersede the terms of this Agreement, the open source licenses instead set forth your agreement with Deluxe for the applicable open source software

2.4      Service Level Agreement. The Service Level Agreement set forth in the attached Appendix A shall apply to the SaaS Services provided under this Agreement. 

2.5      Statements of Work.  Deluxe and Customer will enter into one or more Statements of Work for the SaaS Services and other Services to be provided by Deluxe.  Each Statement of Work will be governed by this Agreement, provided that any conflict or inconsistency between the terms of this Agreement and a Statement of Work will be resolved in favor of this Agreement.

3.        Prices and Payment

3.1      Prices.  The prices for the SaaS Services and any Services shall be set forth in the applicable SOW. 

3.2      Billing; Payment Terms.  Invoices shall be payable within thirty (30) days of Customer’s receipt of Deluxe’s valid invoice.  Customer may not deduct from any payment due to Deluxe in respect of any set-off or counterclaim. If a payment of any Fees is not made when due, a service charge of one and half percent (1.5%) per month (or the maximum permitted by law, if less) will be charged on all outstanding balances.  Billing disputes will be submitted in writing to Deluxe within thirty (30) days of the Customer’s receipt of the applicable invoice to Deluxe Media Inc., Attn: Finance Department, 2130 N. Hollywood Way, Burbank, CA 91505 (not to the payment remittance address specified in the invoice).  If any amount owing by Customer under this Agreement is thirty (30) or more days overdue and such amount is not subject to a good faith dispute, Deluxe may, at its sole discretion, upon written five (5) business days written notice to Customer, suspend Deluxe’s provision of SaaS Services and Services to Customer until such amounts are paid in full.

3.3      Taxes and Duties.  All sums referred to in this Agreement (including any exhibits or schedules hereto) do not include, any sales, use, value added, manufacturing, processing, VAT, GST, PST, gross receipts, or other pass-through tax of a similar nature which may be imposed by any governmental authority upon Deluxe relating to the sales, rental or use of any property or for the performance of any of the SaaS Services (collectively, “Taxes”) or other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges (“Duties”).  Customer agrees to pay, upon invoicing or upon audit  or other demand for payment by any government authority, or, if applicable, to reimburse, indemnify and hold Deluxe harmless from any and all Taxes and Duties, any related interest, deposits or penalties with respect to Deluxe’s sale, rental or use of property or for the performance of  SaaS Services or Services pursuant to this Agreement that Deluxe is, or may become, obligated to pay pursuant to any present or future law or regulation (other than Taxes imposed on the income or profits of Deluxe). This Section will survive the expiration or termination of this Agreement.

4.        Parties’ Responsibilities.

4.1      Access to the SaaS Services.  The Deluxe One SaaS Platform will be accessible via a web browser and access to the internet or One APIs. Some functions require the installation of third-party software (e.g. Aspera connect, Java, etc.).  Customer is solely responsible for providing SaaS Users with customer service in connection with the SaaS Services.  Customer is responsible for all acts and omissions of any and all of the SaaS Users as well as Customer’s employees, agents, consultants, subcontractors, and representatives (collectively, the SaaS Users and all of the foregoing persons are referred to as the “Customer Representatives”) and will ensure that the Customer Representatives comply with Customer’s obligations under this Agreement and Customer shall be liable for any breach of this Agreement by any Customer Representative(s).

4.2      Liability for Customer Content.  Customer is fully liable for the Customer Content stored on or made available through the Deluxe One SaaS Platform, including, but not limited to, the time and date on and the format in which the Customer Content is made available for authorized users through the Deluxe One SaaS Platform. Customer shall maintain its own back up copy of all Customer Content stored on or made available through the Deluxe One SaaS Platform, and Deluxe shall have no liability for any loss thereof. Customer acknowledges and agrees that Deluxe does not test any documents or files uploaded to the Deluxe One platform by Customer for any virus, worm, “back door,” “Trojan Horse,” or similar harmful, destructive or disruptive code or device, nor does Deluxe assume any liability for such documents or files uploaded by Customer.  Customer agrees that it shall not send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents or programs to or through the Deluxe One application. 

4.3      Privacy and Data Protection. The Parties shall comply with their respective obligations under the Data Processing Provisions, located at https://www.bydeluxe.com/deluxe-one-data-provisions, which shall be incorporated in and form part of this Agreement.

4.4      Exclusive Use.  Customer shall not, without the prior written consent of Deluxe (which may be withheld in its sole discretion), (i) use the SaaS Services in whole or in part, other than as expressly authorized by this Agreement, or (ii) resell, provide, or allow use or access to any portion of the SaaS Services to or by any third party not intended to use or access the Deluxe One  SaaS Platform.

4.5      Proprietary Rights.

4.5.1     Customer Content.  As between the Parties, all Customer Content is owned exclusively by Customer.  Customer hereby grants to Deluxe a worldwide, royalty-free, non-exclusive right and license, during the Term, to access, reproduce, distribute, transmit, perform (publicly, digitally, or otherwise), display (publicly or otherwise), archive, store, process, modify, make derivative works of and otherwise use Customer Content in connection with providing the SaaS Services and Services to Customer and for security, quality control, technical support and troubleshooting, and similar purposes.  The foregoing right and license may be exercised by third parties on behalf of Deluxe.

4.5.2     Rights to Deliverables.

(a)      For good and valuable consideration (receipt of which is hereby acknowledged), and subject to Section 4.5.3, Deluxe hereby agrees and acknowledges that the results and proceeds of any Services under an SOW will be deemed works made for hire specially ordered and commissioned by Customer for use as a part of a motion picture or audiovisual work within the meaning of the Copyright Act of 1976.  All services rendered and material created by Deluxe in connection with the Services, in accordance with the scope of rights ordered in the applicable SOW, shall be individually and collectively referred to herein as the “Work”.  Customer will be deemed the author of the Work and each element thereof, and will own all rights title and interest of every kind and nature in and to the Work, and each element thereof in perpetuity and throughout the universe, for the maximum period allowed by law, in all media now known or hereafter devised in all languages in all versions (including without limitation digitized versions). For the avoidance of doubt, this Section 4.5.2(a) is subject to and limited by Section 4.5.3 below. 

(b)      This Section 4.5.2(b) shall apply only in the event the Services under any SOW include localization services.  Deluxe utilizes a distributed workforce comprised of a worldwide network of third party studios, voice performers, directors, engineers, translators, writers, subtitlers, and other individuals that perform localization services (the “Contributors”), in the languages as may be requested by Customer from time to time.  All right title and interest (including copyright) of every kind that Deluxe acquired, or acquires hereafter by way of transfer or assignment from Contributors, in and to the Work shall be solely owned in perpetuity by the Customer (subject to any limits prescribed by law). Deluxe as beneficial owner hereby assigns to Customer all right, title and interest (including copyright) that Deluxe has acquired or acquires hereafter by way of transfer or assignment from Contributors in and to the Work.

4.5.3     Deluxe Property.  Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that any and all:  (a) software (including, without limitation, the Deluxe One SaaS Platform and any One APIs), hardware, application programming interfaces, proprietary tools, know-how, techniques, technologies, expertise, methodologies, equipment, work flows, or processes used by Deluxe to provide the SaaS Services to Customer; (b) any and all enhancements, improvements, customizations and other modifications to any item(s) referenced in the foregoing clause (a); and (c) all copyrights, trademarks, patents, trade secrets, and any other intellectual property or proprietary rights inherent in and/or appurtenant to any item(s) referenced in the foregoing clause(s) (a) and/or (b) (collectively, all of the items in clauses (a), (b) and (c) are referred to as the “Deluxe Property”) will remain the sole and exclusive property of Deluxe.  All rights not otherwise granted herein are reserved by Deluxe.

4.5.4     Feedback.  As used herein, “Feedback” means any and all suggestions, proposals, ideas, contributions, or other information provided, whether oral or written, to Deluxe by Customer and/or its affiliates, including via any of its or their employees, agents, consultants, and subcontractors, regarding the Deluxe One SaaS Platform and/or any products and/or services of Deluxe and/or any of its affiliates.  The Feedback shall be the sole and exclusive property of Deluxe and Deluxe shall own all right, title and interest therein.  Customer hereby irrevocably assigns and agrees to assign to Deluxe all right, title and interest worldwide in and to the Feedback (whether currently existing or conceived, created or otherwise developed later), including, without limitation, all copyrights, trademarks, trade secrets, patents and all other intellectual property and proprietary rights related thereto, effective immediately upon the inception, conception, creation or development thereof.  To the extent, if any, that any Feedback is not assignable or that Customer retains any right, title or interest therein, Customer (a) unconditionally and irrevocably waives the enforcement of such rights, and all claims and causes of action of any kind against Deluxe with respect to such rights; (b) agrees, at Deluxe’s request and expense, to consent to and join in any action to enforce such rights; and (c) hereby grants to Deluxe a perpetual, irrevocable, fully paid-up, royalty-free, transferable, sublicensable (through multiple levels of sublicensees), exclusive, worldwide right and license to use, reproduce, distribute, display and perform (whether publicly or otherwise), prepare derivative works of and otherwise modify, make, sell, offer to sell, import and otherwise use and exploit (and have others exercise such rights on behalf of Deluxe) all or any portion of such Feedback, in any form or media (now known or later developed).  Customer further irrevocably waives any “moral rights” or other rights with respect to attribution of authorship or integrity of such Feedback (or any portion thereof) that Customer may have under any applicable law under any legal theory.  Customer hereby waives and quitclaims to Deluxe any and all claims, of any nature whatsoever, which Customer now or may hereafter have for infringement of any Feedback (or any portion thereof) assigned and/or licensed hereunder to Deluxe.  Customer agrees to cooperate with Deluxe or its designee(s), both during and after the Term, in applying for, obtaining, perfecting, evidencing, sustaining and enforcing Deluxe’s right, title and interest in the Feedback, including, without limitation, executing such written instruments as may be prepared by Deluxe and doing such other acts as may be necessary in the reasonable opinion of Deluxe.  Customer hereby irrevocably appoints Deluxe and any of its officers and agents as its attorney in fact to act for and on Customer’s behalf and instead of Customer, with the same legal force and effect as if executed by Customer, pursuant to the terms under this Section 4.5.4.

4.5.5     Reservation of Rights.  Except as otherwise expressly provided herein, nothing in this Agreement will be deemed to grant, directly or by implication, estoppel or otherwise, any right or license with respect to any technology or other intellectual property rights, and each Party retains all right, title and interest in and to their respective technologies and other intellectual property rights.

4.6        Third Party Payments.  Customer shall be responsible for all reporting, accounting and payments in connection with all Third-Party Royalties, and shall pay in an accurate and timely manner, and hold Deluxe forever free and harmless from and against, all Third-Party Royalties incurred in Deluxe’s performance of its obligations in accordance with the terms of this Agreement and any SOW. 

4.7        Security.  Deluxe will implement commercially reasonable security measures to meet industry best practices, including those set by the Motion Picture Association of America and Trusted Partner Network.   

5.        Term and Termination of this Agreement.

5.1      Initial Term.  Unless otherwise specified in a Statement of Work, the initial term of this Agreement for the recurring SaaS Services shall run for a period of thirty-six (36) months unless a different period is set forth in the SOW (the “Initial Term”), unless earlier terminated in accordance with the terms and conditions contained herein. The Initial Term commences on Customer’s date of first access of the SaaS Services or the effective date noted in the SOW.

5.2      Renewal Term.  Following the expiration of the Initial Term, this Agreement shall automatically renew for additional one year terms, unless either Party provides written notice of its intent not to renew at least forty five (45) days prior to the expiration of the then-current term.

5.3      Termination.

5.3.1  Either Party may terminate this Agreement (a) upon at least thirty (30) days prior written notice by the terminating Party specifying that the other Party has breached any of its material obligations or any representation or warranty applicable to this Agreement, if such breach is not addressed within thirty (30) days after delivery of such notice, or (b) immediately upon prior written notice by the terminating Party if (i) the other Party files a petition in bankruptcy or if such a petition is filed against such Party and such petition is not dismissed within sixty (60) days, (ii) the other Party takes advantage of any insolvency law, (iii) the other Party admits in writing that it is unable to pay its debts as such debts become due, (iv) the other Party makes an assignment for the benefit of creditors, or (v) a receiver, liquidator or trustee is appointed in respect of all or a substantial portion of the other Party’s property or affairs.

5.3.2 Upon the expiration or earlier termination of this Agreement: (a) Deluxe may immediately cease providing the SaaS Services and Services; and (b) Customer shall immediately pay to Deluxe (without limitation to any other amounts due or payable to Deluxe under this Agreement, at law or in equity) all amounts owing to Deluxe but unpaid. 

5.3.3 Customer will remove from the Deluxe One SaaS Platform all Customer Content within thirty (30) days of the effective date of the expiration or earlier termination of this Agreement, or within a mutually agreed upon time.  Any data transfer fees or charges associated with the removal of Customer Content shall be paid by Customer.  Deluxe may charge Customer a storage/retention fee at Deluxe’s then-standard rate for any Customer Content that remains after the effective date of the expiration or earlier termination of this Agreement.  Additionally, if Customer fails to remove such Customer Content before the expiration of the foregoing thirty (30) day removal period, Deluxe may at any time, without further notice or liability to Customer or any other person, destroy and/or erase such Customer Content at Customer’s sole cost and expense.  Customer agrees to indemnify, hold harmless and defend Deluxe harmless from all liability arising out of or connected with Deluxe’s destruction and/or erasing of such Customer Content as provided herein.  In connection with the foregoing, Deluxe will have the right to retain separate counsel at Customer’s expense

6. Representations and Warranties; Disclaimers.

6.1    Mutual Representations and Warranties.  Each of Customer and Deluxe represents and warrants to the other that:  (a) it has the right, power and authority to enter into and to fully perform its obligations set forth in this Agreement; (b) when executed and delivered, this Agreement will constitute a valid and binding obligation of such Party; (c) it is, and during the Term, will remain, in material compliance with all applicable laws, including, without limitation, employment laws, rules, regulations, ordinances, orders and treaties relating to the performance of this Agreement; and (d) no approvals, consents, authorizations, permissions, licenses, certificates or permits of any third party are needed for the performance of its obligations hereunder that have not been obtained and do not remain in full force and effect as of the execution hereof and throughout the Term.

6.2    Customer Representations and Warranties.  Customer represents and warrants that (a) it is the sole owner of Customer Content or has all the necessary rights and licenses to Customer Content to grant Deluxe the rights and licenses granted to Deluxe under this Agreement for the purposes set forth therein, (b) it has made a security (or second) copy of the Customer Content, (c) the Customer Content will be suitable for use by the usual methods employed by Deluxe in its operations, and (d) the Customer Content, including, without limitation, the publication, performance, display, reproduction, processing, modification, creation of derivative works, distribution, exhibition and other use thereof, do not and will not violate or infringe any law, civil right, property right, right of privacy, right of publicity, copyright, patent, service mark or trademark right, or other intellectual property or proprietary right arising under the laws of the United States, any state thereof, or any foreign country or province, or other right of any person, firm or corporation, or constitute defamation, obscenity or indecency.

6.3    Deluxe Representation and Warranty.  Deluxe represents and warrants to Customer that the SaaS Services and any Services rendered by Deluxe shall be performed in a professional manner consistent with the level of skill exercised by other professionals in performing services of a similar nature under similar circumstances.  No representation, warranty, covenant or indemnity is being made by Deluxe with respect to (a) the Customer Content or the exploitation of any resulting deliverables, (b) claims resulting from Deluxe’s compliance with the direction or artistic and/or technical specifications of Customer, or (c) any third party’s intellectual property rights relating to content format, content protection, or the playback of content, including, but not limited to, anything required or described in standards or format guidelines for disc or content formats with which any deliverables are intended to be used. 

6.4    Disclaimers.  EXCEPT AS SET FORTH IN THE SERVICE LEVEL AGREEMENT, CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE SAAS SERVICES, INCLUDING THE DELUXE ONE SAAS PLATFORM, IS AT CUSTOMER’S SOLE RISK AND THAT THE SAAS SERVICES, INCLUDING THE DELUXE ONE SAAS PLATFORM, ARE PROVIDED ON AN “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS. DELUXE EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY ARISING FROM THE UNAUTHORIZED ACCESS TO OR ALTERATION OR TRANSMISSIONS OF CUSTOMER CONTENT VIA THE SAAS SERVICES.  CUSTOMER HAS KNOWLEDGE THAT DELUXE DOES NOT MAKE ANY WARRANTY THAT THE SAAS SERVICES AND DELUXE ONE SAAS PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT.  TO THE FULLEST EXTENT PERMITTED BY LAW, DELUXE DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SAAS SERVICES OR DELUXE PROPERTY.

7.          Indemnification.

7.1        Mutual Indemnification.  Each of Deluxe and Customer agrees and covenants to defend, indemnify and hold harmless the other Party and its affiliates, and its and their directors, officers, managers, members, employees, agents, and customers (collectively, “Covered Entities”) from and against any and all costs, expenses, damages, losses and/or liabilities (including reasonable attorney fees) (collectively, “Costs”) arising from or related to any claims, actions, proceedings, or demands (collectively, “Claims”) made by any third party against any of the other Party’s Covered Entities arising from any breach of any representation or warranty made by such first Party under this Agreement.

7.2        Indemnification by Customer.  Customer agrees and covenants to defend, indemnify and hold harmless Deluxe and its Covered Entities from and against any and all Costs arising from or related to Claims made by or against any of the Deluxe’s Covered Entities alleging: (a) any damage or destruction to the Deluxe One  SaaS Platform, or to another Deluxe customer which damage is caused by or results from acts or omissions by Customer or any Customer Representative in breach of this agreement; or (b) that any Customer Content made available on the Deluxe One  SaaS Platform or otherwise provided to Deluxe hereunder, or that the use or format of any of the foregoing, (i) infringes or misappropriates any third party right, or (ii) violates any Applicable Law.

7.3        Indemnification Procedures. The Party seeking indemnification hereunder will promptly notify the indemnifying Party in writing of any Claim to which such indemnification applies.  The indemnifying Party will have the right to conduct the defense of any such Claim and make any settlement or compromise as long as such settlement or compromise will not include a financial obligation or admission or any liability or wrongdoing on behalf of the indemnified Party, its parent and/or any affiliated entities, and the officers, directors, employees and agents of each of the foregoing.  The indemnified Party will cooperate fully in the defense of such action, at the indemnifying Party’s expense, and may, at its own expense, participate therein to protect its interest with the indemnifying Party’s reasonable cooperation.

8.          Limitation of Liability.

8.1    Limitations of Responsibilities of Deluxe.  Customer acknowledges and agrees that Deluxe is not an insurer and that payments made for SaaS Services and any Services provided by Deluxe are based solely on the value of such SaaS Services and Services.  The Customer Content are received, processed and stored solely at the risk of the Customer.  Deluxe may hold Customer Content at any place(s) that Deluxe deems appropriate, there being no promise or representation, expressed or implied, that the Customer Content will be retained or stored at any particular location.

8.2    Liability.  EXCEPT WITH RESPECT TO CUSTOMER’S INDEMNIFICATION OBLIGATION UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR ANY CUSTOMER REPRESENTATIVE, ANY THIRD PARTY OR OTHERWISE, FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUE, LOST PROFITS, DAMAGE TO CUSTOMER EQUIPMENT OR CUSTOMER CONTENT OR PROPERTY, LOSS OF TECHNOLOGY, LOSS OF DATA, NON-DELIVERIES, OR IN ANY WAY RELATED TO THE SAAS SERVICES OR ANY ASPECT OF CUSTOMER’S BUSINESS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.  IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT UNDER ANY THEORY OF LIABILITY EXCEED THE AMOUNT INVOICED AND, IN DELUXE’S CASE, PAID BY CUSTOMER FOR THE SAAS SERVICES WHICH IS THE SUBJECT OF THE DISPUTE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE SUBJECT CLAIM AROSE.  THESE LIMITATIONS WILL APPLY DESPITE THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.  THE PROVISIONS OF THIS SECTION WILL NOT APPLY TO OR BE INTERPRETED TO REDUCE COMPENSATION WHICH IS OTHERWISE DUE TO DELUXE.

8.3    Force Majeure.  Except for the payment of money, neither Party will be liable for any failure or delay in its performance under this Agreement due to a Force Majeure Event.

8.4    Acknowledgment.  Customer acknowledges that the limitations of liability contained in this Section 8 are a fundamental part of the basis of Deluxe’s bargain hereunder, and Deluxe would not enter into this Agreement absent such limitations.

9.        Confidentiality.

9.1      Generally.  Each Party will treat as confidential the other Party’s Confidential Information.  Each Party will maintain the Confidential Information of the other Party with the same degree of confidentiality as it maintains for its own information of like kind and character (but in no event less than a reasonable degree of confidentiality) and not use such information other than in connection with the SaaS Services and any Services performed hereunder.  All Confidential Information will remain the property of the Party furnishing same and will be returned or destroyed immediately upon termination or expiration of this Agreement. As used herein, “Confidential Information” means any non-public information or data, oral or written, treated by a Party as confidential that relates to such Party’s (or, if either Party is bound by to protect the confidentiality of any third party’s information, to that third party’s) past, present, or future, business activities, products and services, plans, financial information, customer and supplier lists, forecasts, projections, or such other information that is conspicuously identified as being confidential or proprietary or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential.  Notwithstanding any other provision set forth in this Agreement, Deluxe will have the right to include the SaaS Services Usage Information (as hereinafter defined) as part of its Aggregated SaaS Services Usage Information (as hereinafter defined) and to disseminate such Aggregated SaaS Services Usage Information (or subsets thereof) to third parties to the extent that the SaaS Services Usage Information included therein is combined with other information in a manner that prevents its identification as SaaS Services Usage Information.  “Aggregated SaaS Services Usage Information” means any and all information and/or data relating to the use of the SaaS Services collected by Deluxe from its customers that use the SaaS Services.  “SaaS Services Usage Information” means any and all information and/or data collected by Deluxe relating to Customer’s use of the SaaS Services.

9.2    Disclosure to Governmental Entity.  Notwithstanding the foregoing, nothing contained herein will be construed as restricting, or creating liability for the disclosure of Confidential Information to a governmental or judicial entity, pursuant to governmental or judicial requirement, so long as the Party required to disclose Confidential Information notifies the other Party as promptly as practicable in order to permit the other Party to (a) seek an appropriate protective order or other remedy, (b) consult with the Party required to disclose with respect to taking steps to resist or narrow the scope of such required disclosure, or (c) waive compliance with this sentence.  Confidential Information will not include information that (i) is or becomes available or enters the public domain through no wrongful act of the receiving Party; (ii) is rightfully received from a third party without restriction and without breach of this Agreement; (iii) is independently developed by the receiving Party without the breach of any confidentiality obligations; or (iv) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure.

9.3    Restrictions.  Unless authorized by the other Party in writing, neither Party hereto will disclose to any third party (other than its respective employees, in their capacity as such, and even then, only on a “need to know basis” to those who have agreed be bound by these confidentiality obligations) any information with respect to the financial provisions of this Agreement except (a) to the extent necessary to comply with applicable laws, in which case the Party making such disclosure will, to the extent permitted by law, promptly notify the other and will seek confidential treatment of such information, including, for example, making such disclosure under seal or pursuant to a protective order; (b) as part of its normal reporting or review procedure to its parent companies, auditors or attorneys, provided, however, that such parent companies, auditors or attorneys agree to be bound by the provisions of this Section; or (c) in order to enforce its rights pursuant to this Agreement.

9.4      Use of Customer’s Name.  Customer agrees that Deluxe may include Customer’s name in a representative customer list provided that Customer is listed in the same typeface and font size as other customers and Deluxe does not state that Customer recommends or endorses Deluxe or the SaaS Services.  Further, Customer hereby agrees that Deluxe may use Customer’s corporate name and logo in Deluxe’s marketing materials, including identification on Deluxe’s website and, subject to Customer’s review and prior written approval, issue a press release indicating that Customer is a customer of Deluxe.

10.      Miscellaneous.

10.1    Assignment.  Customer may not assign this Agreement without the prior written consent of Deluxe.  Any attempted assignment in violation of this Section will be null and void.  Deluxe may satisfy any obligation under this Agreement by causing one or more of its affiliates to perform such obligation; provided that in such event Deluxe will remain primarily responsible and liable for the performance of such obligations.  This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.  Successors and assigns will assume the assignor’s obligations hereunder in a writing satisfactory to the non-assigning Party.

10.2    Notices.  Except as may be otherwise provided herein, all notices, requests, waivers and other communications made pursuant to this Agreement shall be in writing to the address for each Party as set forth in the SOW or to the address Customer provides via the Deluxe One SaaS Platform and shall be conclusively deemed to have been duly given:  (a) when hand delivered to the other Party; or (b) the next business day after deposit with a national overnight delivery service, postage prepaid, addressed to the other Party with next business day delivery guaranteed, provided that the sending Party receives a confirmation of delivery from the delivery service provider.  A copy of any notice to Deluxe shall also be sent to Deluxe Media Inc., 2130 N. Hollywood Way, Burbank, CA 91505, Attention:  General Counsel. Either Party may change its address for notice purposes by notifying the other Party in accordance with this Section.

10.3     No Waiver.  No term or provision of this Agreement will be deemed waived and no breach or default will be deemed excused unless such waiver or consent is in writing and signed by the Parties.  A consent to waiver of or excuse for a breach or default by either Party, whether express or implied, will not constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.

10.4    Relationship of Parties.  Deluxe and Customer are independent contractors and this Agreement does not establish any relationship of partnership, joint venture, employment, franchise or agency between Deluxe and Customer.  Neither Deluxe nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

10.5    Choice of Law.  This Agreement will be construed in accordance with and all disputes hereunder will be governed by the laws of the State of California, excluding its conflict of law rules and the Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in and for the County of Los Angeles, California.

10.6    Changes to Terms.  This Agreement, together with the exhibits attached hereto, and hereby incorporated herein by this reference, constitute the complete understanding and agreement between of the Parties with respect to the subject matter herein, and supersede any other agreement or understanding, written or oral.  Deluxe, however, may modify these terms or any additional terms that apply to the Deluxe One Saas Platform by updating this Agreement on Deluxe’s website.  Customer’s continued use of the Deluxe One SaaS Platform and any SaaS Services following the release of any updates will be deeded to be an acceptance of the updated terms. There are no third party beneficiaries to this Agreement.

10.7    Remedies Cumulative.  All remedies, rights, undertakings, obligations and agreements contained in this Agreement will be in addition to any other remedy, right, undertaking or agreement, except as herein otherwise provided.

10.8    Severability.  In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be reformed and enforced to the maximum extent permissible under applicable law, and the other provisions of this Agreement will remain in full force and effect.

10.9      Anti-Bribery.  Each party understands that the other party is subject to applicable anti-corruption laws, which include the U.S. Foreign Corrupt Practices Act of 1977 (15 U.S.C. § 78dd-1 et seq.) (“FCPA”), the UK Bribery Act 2010, and other applicable anti-corruption laws. Accordingly, neither party nor any of its respective owners, officers, directors, employees, affiliates, agents or representatives are permitted to offer, pay, promise, authorize, or give anything of value to any Government Official (defined below) for purposes of obtaining or retaining business or gaining any improper advantage in connection with this Agreement.  Each party represents and warrants that neither it nor any of its affiliates nor, to its knowledge, any owner, director, officer, employee, agent or representative, has taken or will take any action, directly or indirectly, that would result in a violation by such persons of the FCPA, the UK Bribery Act 2010, or other applicable anti-corruption laws in connection with their business dealings as contemplated under this Agreement. This includes directly or indirectly accepting or making any offer, payment, promise to pay, or authorization of the payment of anything of value (including money, property, gifts and entertainment) to any (i) government official, (ii) political party or official thereof, (iii) candidate for political office or (iv) officer or employee of a public international organization (collectively and hereinafter, “Government Official”), or to or from any private person or commercial entity or representative thereof, in contravention of the FCPA, the UK Bribery Act 2010,  or other applicable anti-corruption laws.  Each party further represents and warrants that (a) it and its affiliates have conducted their business in compliance with the FCPA, the UK Bribery Act 2010, and other applicable anti-corruption laws, and have instituted and maintained policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance with such laws, and (b) the books and records of such party and its subsidiaries are complete, accurate and in compliance with the applicable laws of each jurisdiction to which such party and its affiliates are subject and to the applicable generally accepted accounting principles in such jurisdictions.

10.10   Agreement in English.  Both parties acknowledge and agree that this Agreement is executed in English only, and both fully understand and agree to all terms and conditions herein.

10.11      Headings/Interpretation. Headings in this Agreement are for reference purposes only and in no way define, limit, or describe the scope or extent of a Section or in any way affect this Agreement.  The word “including” will be read as “including without limitation.”  No provision of this Agreement will be construed against or interpreted to the disadvantage of any Party by any court or other authority by reason of such Party having or being deemed to have drafted such provision.

Appendix A

Service Level Agreement

Deluxe guarantees the Deluxe One SaaS Platform will be available at least ninety-nine-point-five percent (99.5%) of the time during any two consecutive calendar months, with the exception of the Exempted Occurrences (as that term is defined below) (collectively, the “Availability Commitment”).

“Exempted Occurrence” means any occurrence which adversely impacts a service that is caused by: (a) any suspension of the Service pursuant to the Agreement; (b) scheduled or emergency maintenance, alteration or implementation; (c) Force Majeure Events; (d) the unavailability of necessary Customer Representatives, including as a result of failure to provide Deluxe with accurate, current contact information; (e) the acts or omissions of Customer or any Customer Representative, including, without limitation, Customer’s misuse or use of the Service that is outside the scope of this Agreement; or (f) failure or malfunction of equipment, applications or systems not owned or controlled by Deluxe. 

Customer acknowledges that (i) Deluxe neither owns nor directly controls any part of the base infrastructure to operate the Deluxe One SaaS Platform, (ii) other components and networks (e.g. the Internet) are outside the control of Deluxe or its partners, and (iii) Deluxe is not responsible for performance (or non-performance) of such networks and components. Customer further acknowledges that Deluxe exercises no control over, and has no responsibility for, any Customer Content transmitted or maintained using the SaaS Services or any information or material accessible via, or actions taken on, the Internet. 

In the event of any failure by Deluxe to meet the Availability Commitment in any two consecutive calendar months, Customer’s sole and exclusive remedy, and the entire liability of Deluxe, shall be a credit toward future monthly fees not to exceed five percent (5%) of the fees paid during the affected months.