THIS MASTER SERVICES AGREEMENT (“Agreement”) becomes effective on the Effective Date of the first Statement of Work (“SOW”) that expressly incorporates it by reference, and shall govern all SOWs that reference it. This Agreement is entered into by and between the entity identified as “Client” in the applicable SOW (“Client”) and 360Factor Consulting, LLC (“Vendor”), each a “party” and together the “parties.”
Version: January 1, 2026
WHEREAS
Client desires to obtain access to a hosted learning management system and related services; and
WHEREAS, Vendor provides a cloud-based software-as-a-service learning management system and related professional and support services; and
WHEREAS, Client desires Vendor to provide, and Vendor desires to provide to Client, the Software and Services on the terms and conditions set forth in this Agreement and the applicable Statement of Work.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein, the parties agree as follows:
1.1. “Documentation” means any user manuals, technical manuals, training manuals, specifications or other explanatory or descriptive materials of any type, whether in paper or electronic form, provided or published by Vendor with respect to the Software.
1.2. “Personal Information” means any personally identifiable information or data concerning or relating to Client’s employees, agents, members, or customers that may be used to uniquely identify or contact such persons and like information as such terms are defined under any applicable privacy law of the United States or any other country if applicable, and state privacy laws, if applicable (collectively, “Privacy Laws”).
1.3. “Services” means the hosting, operation, access to, support, maintenance, implementation services, professional services (if any), and other services expressly described in an applicable Statement of Work. The Services include the provision of access to and use of the Software on a hosted, cloud-based software-as-a-service basis, together with all Updates, Upgrades, Releases, and related support and maintenance, as applicable. Services do not include the delivery of the Software source code or object code, except as expressly stated in an applicable SOW.
1.4. “Software” means the proprietary learning management system platform and related software applications made available by Vendor to Client solely through the Services, whether owned by Vendor or licensed from third parties, and including all authorized Updates, Upgrades, Releases, and associated Documentation. The Software is not sold or delivered to Client, and Client’s rights in the Software are limited to access and use of the Software through the Services during the Term in accordance with this Agreement and the applicable SOW.
1.5. “Effective Date” means the date on which the applicable Statement of Work is executed by Client, as specified in such Statement of Work.
1.6. “Vendor Personnel” shall mean the employees, subcontractors and independent contractors of Vendor, as well as the employees and independent contractors of Vendor's subcontractors.
1.7. “Updates” shall mean all revisions, updates, Upgrades, modifications, corrections, releases (including all point, minor and major new releases), versions, fixes, program temporary fixes, replacement products, revised Documentation and enhancements to the Software.
1.8. “Upgrades” shall mean a new version of the Software that includes enhancements and new functionality, and is designated by a change in the digit to the left of the decimal point (i.e., a change from version x.x to y.x) and any Upgrades to the associated Documentation.
1.9. “Release” means a version of the Software made available by Vendor that contains maintenance improvements, security patches, or incremental feature enhancements.
1.10. “Support” means the maintenance and support services described in Section 7.2.
2.1. Statements of Work. Vendor shall provide Client with the Services as described from time to time in a Statement of Work (each, an “SOW”) executed by the parties and incorporated into this Agreement by reference. Any reference to “Agreement” shall include the applicable SOW. In the event of any conflict between the terms of this Master Services Agreement and the terms contained in any SOW, exhibit or attachment to this Master Services Agreement, the terms of the SOW, exhibit or attachment shall prevail. All agreements must be documented in writing.
2.2. Application of Updates and Releases. Vendor continuously improves and updates the Software and may deploy Updates, patches, fixes, enhancements, or new Releases at any time and without prior notice. Vendor will use commercially reasonable efforts to minimize disruption to the Services and will provide Release notes or documentation when material changes are made that affect Client’s use of the Software. Vendor may schedule periodic maintenance windows and, when practicable, will notify Client in advance.
2.3. SaaS Delivery Model. Vendor provides the Software solely as a hosted, cloud-based Software-as-a-Service (“SaaS”) offering. Client acknowledges and agrees that (a) no software is delivered or installed on Client premises, except for optional mobile applications; (b) Vendor hosts and operates the Software in Vendor’s or its subprocessors’ secure data centers; (c) Client receives access to the Software via internet connection; and (d) Vendor retains responsibility for hosting, infrastructure, platform security, and application availability as set forth in this Agreement.
3.1. License Grant. Vendor hereby grants Client a non-exclusive, non-transferable (except as expressly permitted herein), revocable upon termination or expiration of this Agreement to access and use the Services during the Term, including any Software, for the duration of this Agreement (“License”). Client may: (i) use the Services and Software in Client’s business and to allow end users to access and use the Services and Software; (ii) permit use of the Services and Software by one or more third parties, including, without limitation, to perform information processing, Disaster Recovery, Disaster Recovery testing or other services for Client, provided such third parties agree to keep Vendor’s Confidential Information confidential; and (iii) permit use of the Services and Software by persons with authorized access to Client’s computer system, including, but not limited to, agents, auditors, temporary personnel, contracted personnel, clients, consultants and suppliers.
3.2. Ownership. Vendor owns and retains all right, title, and interest in and to the Software, Services, Documentation, and all related hardware tools, ideas, concepts, methodologies, processes, inventions, utilities, configurations, templates, workflows, system logic, and underlying technology developed by or on behalf of Vendor, together with all intellectual property rights therein (collectively, “Vendor Property”). No ownership rights in Vendor Property are transferred to Client under this Agreement.
For purposes of this Agreement, “Deliverables” means only those discrete, tangible work products, if any, expressly identified as “Deliverables” in an applicable SOW and provided to Client outside the standard SaaS functionality of the Services.
For clarity, Deliverables do not include access to the Software or Services, service levels, support, Documentation, configurations, workflows, reports, analytics, dashboards, data exports, system-generated outputs, or any other materials generated through Client’s use of the Services.
Excluding any Vendor Property, and subject to Client’s full payment of all applicable Fees, Client shall own any Deliverables expressly identified in an applicable SOW. No Deliverables shall be deemed provided under this Agreement unless expressly identified as such in an applicable SOW.
Client retains all right, title, and interest in and to Client Data. Client Data included in system-generated outputs remains Client Data, and Vendor retains all rights in the formatting, structure, templates, workflows, and system logic used to generate such outputs.
3.3. Copies and Documentation. Client may utilize the Software, at no additional charge, to the extent reasonably required for training and testing purposes and make such copies of the Documentation as is reasonably necessary to facilitate Client’s permitted uses of the Software. Additionally, the Documentation must explain the use of all functionalities of the Software being delivered, and must be sufficient to enable Client to test fully and use the Software.
4.1. Fees. In exchange for Vendor’s provision of the Services, Client shall pay the fees set forth in the relevant SOW (“Fees”). Unless otherwise stated in the applicable SOW, Fees may not be increased during the term of any SOW. If a SOW provides for an initial and renewal terms, Vendor may increase Fees prior to any renewal term, but only with no fewer than sixty (60) days’ prior written notice.
4.2. Payment/Invoice. Payment terms shall be governed exclusively by the applicable SOW. Vendor shall use commercially reasonable efforts to ensure the accuracy of invoices. Client will provide written notification of any disputed amount. The parties agree to use commercially reasonable efforts to resolve the disputed items.
4.3. Expenses. If a SOW specifies that Client is to pay Vendor's expenses for travel, meals and lodging, Client shall reimburse Vendor for actual, necessary and reasonable expenses for: (a) travel by non-local Vendor personnel to a site specified by Client; and (b) meals and lodging for such non-local personnel while performing such Services. Such expenses shall not under any circumstances include airfare other than coach. Lodging shall not include charges for long distance phone calls billed to the room or other incidental charges. Client will not be billed for travel time. Vendor shall submit reimbursement requests to Client monthly as part of Vendor's regular invoice for Services; provided, however, Vendor must also submit the original receipt for each expense for which Vendor seeks reimbursement. The original receipt shall be the establishment receipt or other itemized receipt rather than a credit card receipt. Client shall have no obligation to reimburse Vendor expenses not documented with a proper receipt.
5.1. Term. This Agreement shall commence on the Effective Date stated in the first SOW that incorporates it by reference and shall continue in full force and effect until the expiration or termination of all SOWs governed by it. The term, renewal period, and expiration of each SOW shall be as stated in the applicable SOW.
5.2. Termination for Cause. Either party may terminate this Agreement and any SOW for a material breach by the other party which is not cured within the shorter of thirty (30) days after the receipt by the breaching party of written notice and reasonable description of the breach or when it becomes evident that cure within such thirty (30) day period is impossible. In the event of such termination by Client, Vendor shall provide a pro-rated refund of amounts paid by Client but not yet incurred.
5.3. Survival. The following provisions shall survive expiration or termination of this Agreement: confidentiality obligations; intellectual property ownership and license provisions; data ownership, use, and protection provisions; payment obligations accrued prior to termination; indemnification obligations; limitation of liability and disclaimer provisions; and governing law and venue provisions.
5.4. Transition Assistance. Upon expiration or termination, Vendor will provide commercially reasonable assistance to support the orderly transition of Services to Client or a successor provider. Such assistance will consist solely of (a) providing Client Data export in a commonly used machine-readable format, and (b) answering reasonable questions about the operation of the Services. Any additional transition services, including but not limited to data transformation, reformatting, or custom extraction, shall require a separate SOW at Vendor’s then-current rates. Vendor will delete Client Data in accordance with the data deletion timelines set forth in Exhibit B, unless otherwise required by applicable law.
6.1. Disaster Recovery. Vendor maintains a Disaster Recovery and business continuity plan designed to restore the Services following an interruption. Vendor will use commercially reasonable efforts to restore the Services within twenty-four (24) hours after an interruption caused by events within Vendor’s control. If Vendor fails to restore Services within this time and such failure materially impacts Client’s ability to use the Services, Client may pursue its contractual remedies under Section 5 (Term and Termination). This section does not create an automatic termination right.
6.2. Backup and Protection of Data and Materials. Unless otherwise specified in a SOW, Vendor will maintain commercially reasonable data backup procedures consistent with industry-standard SaaS practices. Backups may include a combination of full and incremental backups stored in geographically separate cloud regions. Vendor will periodically test its backup and restoration processes as part of its standard disaster-recovery procedures. Vendor’s security and backup obligations will at all times be subject to commercially reasonable efforts. Vendor is not required to implement any Client-requested security measures unless mutually agreed in writing and, if applicable, subject to additional fees. Additionally, Vendor employees, agents and/or subcontractors will not attempt to access, or allow access to, any Client Data or Personal Information which they are not permitted to access under this Agreement. If such access is attained, Vendor will immediately notify Client of such non-permitted access. Notwithstanding the foregoing, Vendor may use Client employee contact information as reasonably necessary to provide the Services, including for account administration, support communications, security notices, system updates, product announcements, scheduled maintenance notifications, and other operational or transactional communications related to the Services. Vendor will not use Client Personal Information for general marketing unrelated to the Services or share such information with third parties for independent marketing purposes. Vendor will not disclose Personal Information to third parties except (a) to subprocessors engaged in accordance with this Agreement, (b) as necessary to provide the Services, or (c) as required by law. Vendor’s backup and recovery obligations are further described in Exhibit A, which is incorporated herein by reference.
6.3. Reconstruction of Data. If any Client Data stored within the Services is lost or corrupted as a direct result of Vendor’s failure to comply with its backup obligations under this Agreement, Vendor shall, at its expense, use commercially reasonable efforts to restore such data from the most recent backup maintained by Vendor. Vendor’s obligations under this Section do not extend to (a) data that was not properly submitted to the Services; (b) data loss resulting from systems, equipment, or actions outside Vendor’s control; or (c) data that cannot be restored because it was not present in the most recent backup.
6.4. Ownership and Treatment of Client Data. Client Data will be and remain, as between the Parties, the property of Client. Vendor will not possess or assert any lien or other right against or to Client Data. No Client Data, or any part thereof, will be commercially exploited by or on behalf of Vendor. Client shall own and retain all right, title and interest, including all intellectual property rights, in and to all Client Data and any information submitted to the applications by its users that is not otherwise Vendor’s Confidential Information. Vendor acknowledges and agrees that notwithstanding any reformatting, modification, reorganization or adaptation of the Client Data (in whole or in part) during its incorporation, storage or processing, or the creation of derivative works from the Client Data, the Client Data will remain as such and will be subject to the terms and conditions of this Agreement. Client grants Vendor a limited, non-exclusive, non-transferable license to process, store, transmit, and maintain Client Data solely as necessary to provide the Services and perform Vendor’s obligations under this Agreement. Vendor may also use Client Data to generate anonymized and aggregated data for analytics, benchmarking, service optimization, and improvement of the Services, provided such data does not identify Client or any individual.
6.5. Security of Data. Vendor will store primary Client Data within Vendor’s designated U.S.-based cloud hosting regions. Vendor may use globally distributed content delivery networks and ancillary cloud services for routing, caching, or performance optimization, provided such services do not result in persistent storage of Client Data outside the United States.
Vendor shall at all times handle, collect, process, maintain, and safeguard all Personal Information and Client Data in accordance with: (a) Vendor’s internal data protection and privacy policies and procedures, as maintained by Vendor from time to time, and made available to Client upon reasonable request, (b) this Agreement, and (c) all applicable Privacy Laws. Vendor will implement and maintain administrative, technical, and physical safeguards appropriate to the nature of the Client Data and Personal Information processed. Vendor is solely responsible for understanding and complying with all Privacy Laws applicable to its provision of the Services.
6.6. Security Incidents. Vendor will notify Client without unreasonable delay, and in any event within seventy-two (72) hours, after confirming a Security Incident involving Client Data. “Security Incident” does not include unsuccessful attempts or other non-material events that do not compromise the security of Client Data. Vendor will provide reasonable cooperation, at Vendor’s expense to the extent the Security Incident was caused by Vendor’s failure to comply with this Agreement, in Client’s investigation and remediation efforts. Vendor’s obligations under this Section reflect a reasonable standard of care consistent with SaaS industry practices.
6.7. Acceptable Use. Client shall use the Services and Software only for lawful purposes and in accordance with this Agreement. Client shall not, and shall not permit any authorized user or third party to: (a) upload, transmit, or store any content that is unlawful, infringing, defamatory, obscene, or otherwise violates applicable law or third-party rights; (b) use the Services to store or process data in violation of applicable privacy, data protection, or industry-specific laws; (c) interfere with, disrupt, or degrade the integrity or performance of the Services, including through excessive usage, automated scraping, or circumvention of usage limits; (d) attempt to gain unauthorized access to the Services or related systems; or (e) use the Services in a manner that materially exceeds normal or reasonable usage patterns.
Vendor may suspend or restrict access to the Services, in whole or in part, upon reasonable notice to Client (or immediately where necessary to protect the Services, Vendor, or other customers), if Vendor reasonably determines that Client’s use violates this Section. Such suspension shall not constitute a breach of this Agreement.
6.8. Use of Artificial Intelligence and Security Tools. Vendor may provide optional artificial intelligence (“AI”), machine learning, or automated features as part of the Services. Such features may generate responses, summaries, recommendations, or other outputs based on Client Data.
Vendor will use Client Data only to provide the AI features to Client and its authorized users during the Term, and will not use Client Data to train, improve, or otherwise contribute to any generalized or public AI models.
Vendor may use Client Data to enable, operate, optimize, or configure the AI features for Client’s use, but all AI systems, tools, algorithms, prompts, configurations, processing methods, and underlying technologies used by Vendor remain Vendor’s exclusive property, excluding Client Data itself.
Client is responsible for reviewing any AI-generated output before using or relying on it, and Vendor does not guarantee the accuracy or completeness of AI-generated output.
Upon termination, Vendor will delete Client Data from AI processing workflows in accordance with the data deletion timelines set forth in Exhibit B, unless otherwise required by law.
7.1. Service Availability. Vendor will use commercially reasonable efforts to make the Services available 99.5% of the time each calendar month, excluding:
(a) planned maintenance with at least 48 hours’ notice;
(b) emergency maintenance; and
(c) events outside Vendor’s reasonable control.
If Vendor fails to meet this availability target in a given month, Client shall be eligible to receive service credits equal to 5% of the monthly Fee for each one (1) percent of availability below the target, not to exceed 20% of the monthly Fee.
Service credits are Client’s sole and exclusive remedy for failures to meet the availability commitment under this Section 7.1, except for failures arising from a Disaster Recovery event subject to Section 6.1, or where otherwise expressly permitted under this Agreement, and shall not constitute a material breach of this Agreement
7.2. Maintenance and Support.
Vendor shall provide to Client the maintenance and support services described herein with respect to the Services, including, but not limited to, any and all Updates, Upgrades, new Releases, patches, fixes and modifications to the Software and Services. Maintenance shall be performed in a timely and professional manner by qualified maintenance technicians familiar with the Services and its operation. Vendor shall provide, upon Client’s request, periodic reports on the status of maintenance issues requested by Client. Vendor shall provide to Client Support consisting of, without limitation, a toll-free number for answers to Client’s questions concerning use of the Services, assistance in solving problems encountered in Client’s use of the Services and for the reporting and correction of suspected problems (“Support”). Support will be provided twenty-four (24) hours a day, seven (7) days per week.
Vendor shall maintain $1,000,000 umbrella insurance for the specific Services being performed. During the term of this Agreement, Vendor shall not permit such insurance coverage to be reduced below such commercially reasonable amounts, expire, or be canceled without reasonable prior written notice to Client. Upon request, Vendor shall provide a Certificate of Insurance to Client.
Vendor may use third-party hosting providers, infrastructure services, monitoring systems, email delivery services, and similar technical subprocessors without Client’s prior consent, provided such subprocessors are bound by confidentiality and data protection obligations no less protective than those in this Agreement. Vendor will provide Client with notice before engaging any new subprocessor that will have access to Client Data. Client may object to such subprocessor on reasonable security grounds, and the parties will work together in good faith to resolve the objection. Vendor remains responsible for the acts and omissions of all subcontractors.
Client may from time to time hire outsourcers, subcontractors, consultants, or other third parties (“Client Third-Party Contractors”) to perform services or provide products or deliverables, or perform administrative, maintenance and other business and operational functions relating to Client’s businesses. Moreover, the Services provided by Vendor hereunder may be integrated with projects, services, implementations or other deployments for which Client and/or Client Third Party Contractors are providing Services (an “Integrated Project”) and Vendor acknowledges and agrees that cooperation among all such vendors is of utmost importance for the success of the Integrated Project and the avoidance of disruption to Client’s business and operations. Vendor shall cooperate with and work in good faith with any Client Third-Party Contractor(s) as requested by Client. Such cooperation may include knowledge sharing of standards, policies, quality assurance and testing processes, as applicable, to ensure smooth deployment of Integrated Projects and/or the smooth and efficient transition of any Services (or component of Services) to, from, or among Client, Vendor and any Client Third Party Contractor. Moreover, nothing in the Agreement shall restrict access by such persons to the Services and/or Deliverables, as applicable, as reasonably required for such Client Third Party Contractors to perform functions for and on behalf of Client; and provided that such Client Third Party Contractors shall use or access the Software and/or Services for Client’s benefit.
11.1. Confidential Information. The term “Confidential Information” means all information provided by one party (the “Disclosing Party”) to the other (the “Receiving Party”) which is marked confidential or which by its nature would be reasonably understood to be confidential except (i) information which the Receiving Party has confirmed is publicly known, so long as it is not publicly known through the acts or omissions of the Receiving Party; or (ii) information that was or becomes available to the Receiving Party on a non-confidential basis from another source provided that such source is not known to be prohibited from transmitting the information by a contractual, legal or fiduciary obligation; or (iii) is independently derived by the Receiving Party without the aid, application, or use of the Confidential Information; or (iv) information that is approved for release by written authorization of the Disclosing Party.
11.2. Disclosure Restrictions. The Receiving Party shall hold the Confidential Information in strict confidence, use or disclose the Confidential Information only as is required in its performance under this Agreement, and disclose the Confidential Information to only those of its employees, agents, or subcontractors who require such disclosure in order to perform hereunder. The Receiving Party shall protect the Confidential Information that is in its possession or control using at least the same means it uses to protect its own Confidential Information, but in any event, not less than reasonable means. The Receiving Party shall take all appropriate action, whether by instruction, agreement, or otherwise, to ensure the protection, confidentiality, and security of the Confidential Information, including any copies thereof, and to satisfy its obligations under this Agreement.
11.3. Compulsory Disclosure. If the Receiving Party receives a request to disclose all or any part of the Confidential Information under the terms of a subpoena or other order issued by a court of competent jurisdiction or by a government agency, the Receiving Party shall to the extent legally permissible: (i) promptly notify and consult with the Disclosing Party; (ii) if disclosure of that Confidential Information is required, furnish only such portion of the Confidential Information as the Receiving Party is advised by its counsel is legally required to be disclosed; and (iii) cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to that portion of the Confidential Information that is required to be disclosed. A disclosure pursuant to law or government authority order that meets the requirements of this Section will be an authorized disclosure.
11.4. Violation. The Receiving Party shall, within five (5) business days of becoming aware of a use or disclosure of Confidential Information in violation of this Agreement by Receiving Party or by a third party to which Receiving Party disclosed Confidential Information pursuant to this Agreement, report any such disclosure to Disclosing Party. Receiving Party will take steps to mitigate the harmful effect of the non-permitted use or disclosure and include in its report a description of such steps.
11.5. No License. Except as is specifically stated in this Agreement, or as may be reasonably assumed based upon Client’s need to enjoy the benefits of the Services including, without limitation, any information, reports, and work product created by Vendor as part of the Services, no license or right is granted under this Agreement to the Receiving Party to any Confidential Information.
11.6. Return of Confidential Information. At the request of the Disclosing Party, and except for such copies as the Receiving Party is required to retain pursuant to applicable law or regulation or internal record retention policy, the Receiving Party and its Representatives shall:
11.6.1. Return to the Disclosing Party any and all of the Disclosing Party’s Confidential Information and any tangible materials relating thereto, and all tangible copies of such information or materials; and
11.6.2. Provide to the Disclosing Party a signed written statement that all such Confidential Information and other information, copies and materials pertaining thereto have been returned to the Disclosing Party or destroyed in accordance with the terms of this provision.
The obligations of this Subsection to return Confidential Information and copies thereof shall not apply to any electronic copies stored for backup or archiving purposes that are not readily accessible by the Receiving Party or its Representatives, provided that, the Receiving Party shall not restore any such backup or archived copies for the purpose of accessing the Confidential Information.
11.7. Equitable Relief. The Receiving Party acknowledges that any disclosure of Confidential Information in violation of this Agreement would be detrimental to the Disclosing Party’s business and that the Disclosing Party shall be entitled, without waiving any other rights or remedies, to seek equitable relief, including injunctions, without posting bond.
12.1. Software Warranties. Vendor represents and warrants that:
12.1.1. the Software will operate in all material respects as specified in the Documentation, SOW, and this Agreement with respect to all material operational and functional capabilities and features (“Warranty”). If Client notifies Vendor of any failure of the Software to conform to the Warranty, Vendor shall promptly, at its sole option and at no expense to Client, repair such nonconformity;
12.1.2. if the SOW or Documentation states that the Software will be compatible with specified items, Vendor warrants that the Software will operate properly when used with those items, provided that any applicable instructions or restrictions stated in the Documentation or SOW are complied with.
12.2. Service Warranties. Vendor represents and warrants that:
12.2.1. It will perform all Services in a professional and workmanlike manner, using qualified Vendor Personnel, and in accordance with the terms of this Agreement, the applicable SOW, all applicable laws, and generally accepted industry standards;
12.2.2. to the extent any Deliverables are expressly identified in an applicable SOW, such Deliverables will be provided in accordance with the requirements set forth in that SOW;
12.2.3. the Services, when used as permitted under this Agreement, will not infringe any U.S. intellectual property rights of a third party. This warranty does not apply to (a) Client Data, (b) Client-provided materials, (c) modifications not made by Vendor, or (d) use of the Services in combination with items not provided by Vendor; and
12.2.4. Vendor will use commercially reasonable efforts to ensure that the Software and Services do not contain computer viruses or other harmful code introduced by Vendor.
If these warranties are breached, Vendor shall promptly re-perform the applicable Services or, if applicable, re-provide any Deliverables expressly identified in the applicable SOW. If Vendor fails to do so within fourteen (14) days after Client’s written notice, Vendor shall refund the fees paid for the affected Services or Deliverables.
THE REMEDIES SET FORTH IN THIS SECTION 12.2 ARE CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF THE WARRANTIES SET FORTH IN THIS SECTION 12, EXCEPT TO THE EXTENT SUCH BREACH CONSTITUTES A MATERIAL BREACH EXPRESSLY PERMITTING TERMINATION UNDER SECTION 5.
13.1. General Indemnification. Each Party (the “Indemnifying Party”) will indemnify, defend, and hold harmless the other Party (the “Indemnified Party”) from any third-party claim to the extent arising from the Indemnifying Party’s gross negligence or willful misconduct in connection with its obligations under this Agreement.
The Indemnified Party will provide prompt written notice of any such claim; however, any delay in giving notice will relieve the Indemnifying Party of its obligations only to the extent it is materially prejudiced by the delay. The Indemnifying Party may not settle any claim requiring the Indemnified Party to admit liability or pay any amount without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld.
13.2. Infringement Indemnity. Vendor will indemnify, defend, and hold harmless Client against any third-party claim alleging that the Services, when used in accordance with this Agreement, infringe or misappropriate a U.S. patent, copyright, trademark, or trade secret.
Vendor’s obligations under this Section do not apply to any claim arising from:
(a) Client Data or Client-provided materials;
(b) modifications to the Services not made by Vendor;
(c) use of the Services in combination with products, software, data, or processes not provided by Vendor, if the alleged infringement would not have occurred but for such combination; or
(d) use of the Services in a manner not permitted by this Agreement or not contemplated by the Documentation.
If a claim covered by this Section results in an injunction or determination that prevents Client from using the Services as contemplated hereunder, Vendor will, at its sole expense and in its discretion: (i) procure the right for Client to continue using the affected Services; (ii) modify the Services so they are non-infringing without materially reducing functionality; or (iii) replace the affected portion of the Services with substantially equivalent non-infringing functionality. If none of the foregoing options are commercially reasonable, Client may terminate the affected Services, and Vendor will provide a pro-rated refund of any prepaid, unused Fees.
14.1. Limitation of Liability. Except as set forth in Section 14.2, each Party’s total aggregate liability arising out of or relating to this Agreement shall not exceed the total Fees paid by Client to Vendor in the twelve (12) months immediately preceding the event giving rise to the claim.
14.2. Exceptions to Liability Cap. The following claims are not subject to the liability cap in Section 14.1: (a) each Party’s indemnification obligations under Sections 13.1 (General Indemnity) and 13.2 (Intellectual Property Indemnity); (b) damages arising from Vendor’s data breach, leak, or unauthorized disclosure of Client Data caused by Vendor’s failure to comply with this Agreement — such damages shall be capped at two (2) times the Fees paid by Client in the twelve (12) months preceding the event; (c) damages arising from a Party’s gross negligence or willful misconduct.
14.3 Exclusion of Consequential Damages.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.4 Warranty Disclaimer.EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT OR ANY APPLICABLE SOW, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND VENDOR DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
15.1. This Agreement, any Statement of Work, Exhibits and any mutually-executed amendments or attachments thereto shall constitute the entire agreement between the parties regarding the subject matter hereof and any prior understanding or representation of any kind regarding the subject matter hereof preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated into this Agreement. Any amendments to this Agreement must be in writing and mutually agreed to by the parties. No delay or omission by either party in exercising any right or remedy hereunder available to that party shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a bar to, or waiver of, any right or remedy on any future occasion. If any provisions of this Agreement shall be for any reason held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, but this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. The parties acknowledge and agree that they have mutually negotiated the terms and conditions of this Agreement and that any provision contained herein with respect to which an issue of interpretation or construction arises shall not be construed to the detriment of the drafter on the basis that such party or its professional advisor was the drafter, but shall be construed according to the intent of the parties as evidenced by the entire Agreement.
15.2. Absent Client’s advance written consent, Vendor may not use or refer to Client or its trademarks, in any public statement, advertisement or promotion of Vendor, its products or business.
15.3. Vendor will use commercially reasonable efforts to perform the Services in accordance with any timelines set forth in the applicable SOW. The parties agree that timelines are important but not strict obligations unless expressly stated as such in an SOW. Each party will be excused from the performance of its obligations under this Agreement for any period to the extent that it is prevented from performing, in whole or in part, as a result of delays caused by the other party or any act of God, natural disaster, war, civil disturbance, utilities, or other infrastructure providers, or widespread technology outages, court order or other events beyond the reasonable control of a party, except where such delay was caused by the act or omission of the non-performing party. In the event that a party’s performance is delayed or prevented for a period of ten (10) days or more, the non-affected party may terminate this Agreement upon written notice to the affected party.
15.4. Before initiating any legal action against the other relating to a dispute herein, the parties agree to work in good faith to resolve disputes and claims arising out of this Agreement. If the dispute is not resolved within thirty (30) days of the commencement of informal efforts under this paragraph, either party may pursue legal action. This paragraph will not apply if: (i) expiration of the applicable time for bringing an action is imminent; or (ii) injunctive or other equitable relief is necessary to protect a party’s proprietary rights. This Agreement and all rights and duties hereunder, including but not limited to all matters of construction, validity and performance, shall be governed by the law of Illinois, excluding its choice of law provisions. Venue for any judicial proceeding shall be in the state of Illinois, and any objections or defenses based on lack of personal jurisdiction or venue are hereby expressly waived. Unless this Agreement expressly states that a remedy is exclusive, no remedy made available under this Agreement is intended to be exclusive.
15.5. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. If there is a change in ownership resulting in a change in control for Vendor or its division that provides the Services, Vendor must notify Client no later than 10 business days after the change occurs; in such event, Client may, at its discretion, terminate the Agreement without liability and Vendor shall provide a pro-rated refund of amounts paid by Client but not yet incurred.
15.6. The parties intend that an independent contractor relationship be created by this Agreement. The conduct and control of the work will lie solely with Vendor. Vendor is not to be considered an agent or employee of Client for any purpose nor is it entitled to any of the benefits Client provides for its employees.
15.7. Facsimile or electronic transmission of this signed, original Agreement and retransmission of any signed facsimile or electronic transmission thereof shall be the same as delivery of an original.
15.8. All notices and other communications under this Agreement shall be in writing and sent by hand-delivery, reputable commercial courier (e.g., Federal Express, UPS or DHL), or electronic mail (with a confirmation copy sent by commercial carrier or certified U.S. mail) addressed as set forth below to the parties hereto, or to such other address as a party may request in writing:
Notices to Client:
Notices to Client will be addressed as specified in the applicable SOW.
Notices to Vendor:
Attn: Thomas Wong
360Factor Consulting, LLC
205 W Randolph, Suite 1220
Chicago, IL 60606
Email: thomas.wong@360factor.com
15.9. This Agreement governs all Statements of Work executed on or after January 1, 2026, unless replaced by a subsequent version.
15.10. Compliance with Laws.Vendor will comply with laws generally applicable to SaaS providers in the performance of the Services. Client is responsible for its own compliance with laws applicable to its business operations, industry requirements, and use of the Services. Vendor is not responsible for ensuring Client’s compliance with any industry-specific or content-specific regulations unless expressly stated in an applicable SOW.
16.1. Annual User Counts. If an SOW specifies a limit on Annual Users, that limit applies to the total number of unique individuals who access the Software during each contract year, as defined in the SOW. “Annual User” shall mean any unique individual who logs into the Software at least once during the applicable contract year, regardless of subsequent activity.
16.2. Overage Billing.If Client exceeds the contracted Annual User quantity, Vendor may invoice Client for additional users at Vendor’s then-current rate. Vendor is not required to enforce technical limits or restrict Client access if the number of Annual Users exceeds the contracted quantity.
BACKUP AND RECOVERY PLAN
Vendor will maintain backup and recovery procedures consistent with industry-standard SaaS practices. The following baseline controls apply unless otherwise stated in an SOW:
No Offsite Physical Media.Vendor does not use physical media, tape storage, or on-premises backup systems for SaaS data.
Transition Assistance
Upon termination or expiration of the Agreement, Vendor will provide the transition assistance described in Section 5.4 of the Agreement, consisting of:
Any additional transition assistance requested by Client — including but not limited to:
shall be provided only under a separate, mutually executed SOW and at Vendor’s then-current rates.
Vendor will maintain confidentiality and security of Client Data during the transition period. Vendor will delete all Client Data 60 days after the completion of transition assistance or earlier at Client’s written request, except as otherwise required by law.
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