Terms and Conditions

1.1 Provision of Services.

During the Term, Provider shall provide the Services to Customer as provided in this Agreement.

1.2 Access and Use.

Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, nontransferable (except in compliance with Section 13.8) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's use. To the extent applicable, Provider shall provide Customer access to Provider’s contracted systems and services as of the Effective Date. Customer shall not exceed the agreed upon service utilization thresholds, including but not limited to, bandwidth, segments, users, or devices, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.8) license to use the Documentation during the Term solely for Customer's business purposes in connection with its use of the Services. Provider represents, warrants, and covenants to Customer that Provider will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

1.3 Service and System Control.

Except as otherwise expressly provided in this Agreement, as between the parties:

1.4 Reservation of Rights.

Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Provider Platform, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider Platform, and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.

1.5 Service Management.

Each party shall, throughout the Term, maintain within its organization a billing manager to serve as such party's primary point of contact for day-to-day communications, consultation, and decision-making regarding administrative, Fee, legal, and business aspects of this Agreement. Each billing manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party's primary point of contact for technical and logistical support, implementation, software and hardware problem solving, and other issues related to the functionality of the Provider Platform and the Customer Systems. Each party shall ensure its service manager and billing manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties' initial service managers and billing managers are identified in the Order. If either party's service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.

1.6 Suspension or Termination of Services.

Provider may, directly or indirectly, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or Provider Platform, without incurring any resulting obligation or liability, if: (a) Provider receives a government order, subpoena requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services in a material manner beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section 1.6 does not limit any of Provider's other rights or remedies, whether at law, in equity, or under this Agreement.

1.7 Trial Services.

If Customer is using a free trial, proof of concept version of the Services, a beta version of the Services, or using the Services on any other free-of-charge basis as specified in an Order including any related support services (collectively, “Trial Services”), Provider makes such Trial Services available to Customer until the earlier of (i) the end of the free trial or proof of concept period or beta testing period as communicated by Provider, (ii) the start date of any purchased version of such Services, or (iii) termination of Services by Provider with or without notice from Provider. Customer is authorized to use Trial Services only for evaluation and not for any business or productive purposes. Any data Customer enters into the Trial Services and any configurations made to the Trial Services by or for Customer during the term of such Trial Services will be permanently lost. The rights, representations, and warranties described in Section 4 shall have no effect on, or otherwise apply to, any Trial Services.

2.1 Use Restrictions.

Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Platform except as expressly permitted by this Agreement and, in the case of ThirdParty Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

3.1 Customer Systems and Cooperation.

Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with industry standards the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer's premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).

3.2 Corrective Action and Notice.

If Customer becomes aware of any actual or threatened activity prohibited by Section 2.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Platform and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider in writing of any such actual or threatened activity.

3.3 Non-Solicitation.

During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Provider or any Subcontractor. In the event of a violation of this Section 3.3 Provider will be entitled to liquidated damages equal to the compensation paid by Provider to the applicable employee or contractor during the prior twelve (12) months.

4.1 Service Levels.

Subject to the terms and conditions of this Agreement, Provider will use commercially reasonable efforts to make the Services Available at least ninety-nine and nine-tenths percent (99.9%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 4.1 (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement (a) act or omission by Customer or any Authorized User; (b) access to or use of the Services by Customer or any Authorized User, or using Customer's or an Authorized User's Access Credentials, that does not strictly comply with this Agreement and the Specifications; (c) Customer Failure; (d) Customer's or its Authorized User's Internet connectivity; (e) Force Majeure Event; (f) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to this Agreement; (g) Scheduled Downtime; or (h) disabling, suspension, or termination of the Services pursuant to 1.6.

4.2 Service Level Failures and Remedies.

In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of (i) twenty-five percent (25%) of the Fees attributable to the relevant Service Period for Service Level Failure lasting for under one (1) hour; (ii) fifty percent (50%) of the Fees attributable to the relevant Service Period for Service Level Failure lasting for between one to two (1-2) hours; (iii) and one hundred percent (100%) of the Fees attributable to the relevant Service Period for Service Level Failure lasting for over two (2) hours for the Services due for the Service Period the Service Level Failure occurred (each a “Service Credit”), subject to the following:

Any Service Credit payable to Customer under this Agreement will be issued to Customer as a credit against the next payment of Fees, or if no further Fees are payable, as a refund payable within thirty (30) days. This Section 4.2 sets forth Provider's sole obligation and liability and Customer's sole remedy for any Service Level Failure. If the Fees are payable for a period of time including more than one (1) Service Period, the Fees attributable to a Service Period shall equal the total Fees for the period of time that includes the relevant Service Period divided by the number of Service Periods in such period of time.

4.3 Scheduled Downtime.

Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of eight p.m. (20:00) and six a.m. (06:00) of the Provider service delivery location’s local time zone; and (b) give Customer at least twenty-four (24) hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”). From time-to-time circumstances may arise requiring immediate maintenance from Provider (“Emergency Maintenance”). Such Emergency Maintenance shall relieve Provider of the notice requirement set forth in Section 0 and require no notice.

4.4

Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Platform that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Provider's services to its customers; (b) the Services' cost efficiency or performance; or (c) to comply with applicable Law. Provider may from time to time in its discretion engage third parties to perform Services (each, a “Subcontractor”).

5.1 Customer Control and Responsibility.

Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of thirdparty services (“Customer Systems”); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Platform directly or indirectly by or through the Customer Systems or its or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

6.1 Fees.

Customer shall pay Provider the fees set forth in Exhibit A (“Fees”) in accordance with thisSection 6.

6.2 Taxes.

All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider's income.

6.3 Payment.

Customer shall pay all Fees and Reimbursable Expenses within 30 (thirty) days after the date of the invoice therefor. Customer shall make all payments hereunder in United States dollars. Customer shall make payments to the address or account specified in Exhibit A or such other address or account as Provider may specify in writing from time to time.

6.4 Late Payment.

If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

6.5 No Deductions or Setoffs.

All amounts payable to Provider under this Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits issued pursuant to 4.2).

6.6 Fee Increases.

Provider may increase Fees for any Renewal Term by providing written notice to Customer at least thirty (30) calendar days prior to the commencement of such Renewal Term, and Exhibit A will be deemed amended accordingly.

6.7 Reimbursable Expenses.

Customer shall reimburse Provider for out-of-pocket expenses directly attributable to the delivery of Services to Customer incurred by Provider in connection with performing the Services (“Reimbursable Expenses”). Any Reimbursable Expenses in excess of five percent (5%) of the Fees attributable to the calendar year in which such expenses are incurred must be approved by Customer.

7.1 Confidential Information.

In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Provider Platform are the Confidential Information of Provider and the financial terms and existence of this Agreement are the Confidential Information of Provider.

7.2 Exclusions.

Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

7.3 Protection of Confidential Information.

As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the duration of the Term of this Agreement and for two (2) years following the termination or expiration of this Agreement:

7.4 Compelled Disclosures.

If the Receiving Party or any of its Representatives is compelled by applicable Law, to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 7.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party's request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

8.1 Provider Platform.

All right, title, and interest in and to the Provider Platform, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Platform except as expressly set forth in Section 1 or the applicable third-party license, in each case subject to Section 2.1. All other rights in and to the Provider Platform are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

8.2 Customer Data.

All right, title, and interest in and to the Customer Data, including all Intellectual Property Rights therein, are and will remain with Customer. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto.

8.3 Data Backup

The Services do not include, nor does the Service replace, the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

8.4 Service Suggestions.

To the extent that Customer provides Provider with ideas or suggestions for improvements or changes to the Service which constitute Intellectual Property Rights under applicable law (“Suggestions”), Customer hereby assigns to Provider ownership of such Suggestions and Provider will have sole discretion as to whether and how to implement such Suggestions into the Service

“Access Credentials”

means login credentials Customer and Authorized Users shall use to access and use the Service.

“Affiliate”

means any entity directly or indirectly controlling, controlled by, or under common control with Licensee where “control” means ownership of at least 50% of the equity or beneficial interests of such entity.

“Agreement”

has the meaning set forth in the preamble.

“Authorized Users”

means Customer's employees, consultants, contractors, and agents described in an Order (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder

“Authorized Assets”

means Customer’s devices, networks, data centers, websites, or other technologies for which the Services are provided.

“Availability Requirement”

has the meaning set forth in Section 4.1.

“Available”

has the meaning set forth in Section 4.1.

“Confidential Information”

has the meaning set forth in Section 7.1

“Customer”

has the meaning set forth in the Sectrify Security Services Order between Customer and Provider.

“Customer Data”

means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

“Customer Failure”

has the meaning set forth in Section 3.1.

“Customer Indemnitee”

has the meaning set forth in Section 10.1.

“Customer Systems”

means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

“Disclosing Party”

has the meaning set forth in Section 7.1.

“Documentation”

means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Platform, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof whether embedded in the Service or obtained electronically from Provider.

“Effective Date”

has the meaning set forth in the Sectrify Security Services Order between Customer and Provider.

“Exceptions”

has the meaning set forth in Section 4.1.

“Fees”

has the meaning set forth in Section 6.1.

“Force Majeure Event”

has the meaning set forth in Section 13.9.

“Harmful Code”

means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement.

“Indemnitee”

has the meaning set forth in Section 10.3.

“Indemnitor”

has the meaning set forth in Section 10.3

“Initial Term”

has the meaning set forth in Section 12.1.

“Intellectual Property Rights”

means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law”

means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Losses”

means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Order”

has the meaning set forth in the Sectrify Security Services Order between Customer and Provider.

“Person”

means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Personal Information”

means information that Customer provides or for which Customer provides access to Provider, or information which Provider creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers), in case of both subclauses (i) and (ii). Customer's business contact information is not by itself Personal Information.

“Proceeding”

means any action, appeal, audit, charge, claim, complaint, demand, hearing, investigation, litigation, proceeding or suit before any arbitrator, governmental authority or mediator, including bankruptcy and insolvency proceedings.

“Process”

means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content. “Processing” and “Processed” have correlative meanings.

“Provider”

has the meaning set forth in the Sectrify Security Services Order between Customer and Provider.

“Provider Disabling Device”

means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.

“Provider Indemnitee”

has the meaning set forth in Section 10.2.

“Provider Platform”

means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, patented technologies and methodologies or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Platform include Resultant Data and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.

“Provider Personnel”

means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.

“Provider Systems”

means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.

“Receiving Party”

has the meaning set forth in Section 7.1.

“Reimbursable Expenses”

has the meaning set forth in Section 6.7.

“Renewal Term”

has the meaning set forth in Section 12.2.

“Representatives”

means, with respect to a party, that party's and its Affiliates' employees, officers, directors, consultants, agents, and legal advisors.

“Resultant Data”

means data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

“Scheduled Downtime”

has the meaning set forth in Section 4.3.

“Service Credit”

has the meaning set forth in Section 4.2.

“Service Level Failure”

has the meaning set forth in Section 4.1.

“Service Period”

has the meaning set forth in Section 4.1.

“Services”

means the use of the security-as-a-service platform designated on the Order.

“Specifications”

means the specifications for the Services set forth in the Order.

“Subcontractor”

has the meaning set forth in Section 4.4.

“Term”

has the meaning set forth in Section 12.2.

“Third-Party Materials”

means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.

10.1 Provider Indemnification.

Provider shall indemnify, defend, and hold harmless Customer and its Affiliates and each of its and their respective officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer resulting from any Proceeding by a third party (other than an Affiliate of a Customer Indemnitee) that Customer's or an Authorized User's use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party's United States Intellectual Property Rights/United States patents, copyrights, or trade secrets.

10.2 Customer Indemnification.

Customer shall indemnify, defend, and hold harmless Provider and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Proceeding by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:

10.3 Indemnification Procedure.

Each party shall promptly notify the other party in writing of any Proceeding for which such party believes it is entitled to be indemnified pursuant to Section 10.1 or Section 10.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Proceeding without the Indemnitee's prior written consent , which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Proceeding, the Indemnitee shall have the right, but no obligation, to defend against such Proceeding, including settling such Proceeding after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 10.3 will not relieve the Indemnitor of its obligations under this Section 10, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

11.1 DISCLAIMER OF WARRANTIES.

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS IS” AND PROVIDER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING AND EXCEPT AS SET FORTH IN THIS AGREEMENT, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER.

11.2 NO CONSEQUENTIAL OR INDIRECT DAMAGES.

IN NO EVENT SHALL PROVIDER OR ANY OF ITS REPRESENTATIVES OR AFFILIATES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

11.3 EXCLUSION OF DAMAGES.

IN NO EVENT WILL PROVIDER OR ANY OF ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION 4.2; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.4 CAP ON MONETARY LIABILITY.

IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE AND ONE-THIRD (1¹⁄₃) TIMES THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11.5 Sole Remedy.

SECTION 4.2, SECTION 10, AND THIS SECTION 11 SET FORTH CUSTOMER'S SOLE REMEDIES AND PROVIDER'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS UNDER OR RELATED TO THIS AGREEMENT. THE TERMS AND CONDITIONS OF THIS SECTION 11 ARE AN INTEGRAL PART OF THE CONSIDERATION FOR THIS AGREEMENT AND FORM A MATERIAL BASIS FOR THE AMOUNT OF THE FEES CHARGED FOR THE SERVICES. THE PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT, AND WOULD NOT CONSIDER THE FEES AS ACCEPTABLE COMPENSATION FOR THE SERVICES, ABSENT THE TERMS AND CONDITIONS OF THIS SECTION 11. THIS AGREEMENT IS NOT INTENDED TO CONSITUTE, AND DOES NOT CONSTITUTE, ANY FORM OF INSURANCE AGAINST DAMAGE RESULTING FROM HARMFUL CODE, BREACH OF OR DAMAGE TO CUSTOMER DATA OR CUSTOMER SYSTEMS, OR OTHER LOSS. CUSTOMER IS STRONGLY ENCOURAGED TO OBTAIN INSURANCE AGAINST THE RISK AND LOSSES ADDRESSED IN THIS SECTION 11, IF APPLICABLE, AND TO SELF-INSURE TO THE EXTENT NECESSARY.

12.1 Initial Term.

The initial term of this Agreement shall commence upon the Effective Date and continue as set forth on Exhibit A (the “Initial Term”).

12.2 Renewal Term.

Upon expiration of the Initial Term , Customer’s right to Use the Provider Platform shall automatically renew for two single one (1) year terms (each a “Renewal Term” and with the Initial Term, (the “Term”), unless either party notifies the other of its intent to cancel at least thirty (30) days prior to the end of the Initial Term or a Renewal Term.

12.3 Termination.

In addition to any other express termination right set forth elsewhere in this Agreement:

12.4 Effect of Termination or Expiration.

Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement including Section 12.5:

12.5 Surviving Terms.

The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 2.1, 6, 7, 9, 11, 12.4, this 12.5, and 13.

13.1 Further Assurances.

On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

13.2 Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

13.3 Public Announcements.

Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer's consent, include Customer's name and other indicia in its lists of Provider's current or former customers of Provider in promotional and marketing materials. Notwithstanding the foregoing, Provider may use Customer’s name and use of Services for marketing purposes, provided that Provider obtains written consent from Customer regarding the scope of such publication.

13.4 Notices.

Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party at the address specified on Exhibit A (or to such other address or such other person that such party may designate from time to time in accordance with this Section 13.4).

Notices sent in accordance with this Section 13.4 will be deemed effectively given: (a) when received, if delivered by hand; (b) when received, if sent by a nationally recognized overnight courier; (c) on the fifth (5th) day after the date mailed by certified or registered mail, return receipt requested, postage prepaid and (d) by email when, and only if, the receiving party sends a non-automated response email.

13.5 Interpretation.

For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

13.6 Headings.

The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

13.7 Entire Agreement.

This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter of this agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

13.8 Assignment.

Neither party shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, except as explicitly permitted in this Agreement. A party may assign this Agreement in connection with the sale of, or transfer of, substantially all of its assets, provided that such party shall remain liable and responsible for all obligations under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

13.9 Force Majeure.

In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a “Force Majeure Event”) due to (i) acts of God; (ii) flood, fire, or earthquake; (iii) war, invasion, terrorist acts, orriot; (iv) government order, law, or actions; (v) embargoes or blockades; and (vi) shortage of adequate power or transportation facilities. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of sixty (60) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

13.10 No Third-Party Beneficiaries.

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

13.11 Amendment and Modification; Waiver.

No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party; provided, however, that Provider may amend these Terms and Conditions on a prospective basis effective (i) following the end of the then current Term, or (ii) thirty (30) days following notice (which may be delivered via messaging in Provider’s online portal for Customer) to Customer of the amended Terms and Conditions in which case Customer may terminate this Agreement by providing written notice to Provider prior to the end of such thirty (30) day period. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.12 Severability.

If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

13.13 Governing Law; Submission to Jurisdiction.

This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Florida in each case having jurisdiction over the city of Jacksonville, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth on Exhibit A shall be effective service of process for any suit, action, or other proceeding brought in any such court.

13.14 Waiver of Jury Trial.

Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

13.15 Attorneys' Fees.

In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.

13.16 Counterparts.

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A copy of this Agreement executed and delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.