Terms of Service

a.) “Additional Services” means the additional services purchased by Customer as set forth in the Order Form.

b.) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; (ii) for whom access to the Services has been purchased hereunder; (iii) who are using the Services solely for Customer’s benefit; and (iv) are not competitors of Supplier.

c.) “Customer Data” means, other than Supplier Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.

d.) “Deidentified” with regard to data or information, means data or information that neither identifies nor provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, account numbers, other identification numbers, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual.

e.) “Documentation” means Supplier’s documentation for the Services located at https://fexa.io/documentation-support/.

f.) “Order Form” means a Supplier order document executed by both Parties.

g.) “SaaS Offering” means the software-as-a-service offerings purchased by Customer as set forth in the Order Form.

h.) “Services” means the SaaS Offerings and Additional Services.

i.) “Subscription Term” means, for each SaaS Offering, the subscription term as described in Section 11(a).

j.) “Supplier Data” means data or information created, collected, or compiled by or on behalf of Supplier including and any information, data, or other content derived from Supplier’s monitoring of Customer’s access to or use of the Services as well as Deidentified Customer Data, but does not include Customer Data that is not Deidentified.

k.) “Supplier IP” means the intellectual property rights associated with or embodied in the Supplier Materials and any and all other intellectual property provided to Customer or any Authorized User in connection with the foregoing.

l.) “Supplier Materials” means the Services, Documentation, and Supplier’s 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, or reports, that are provided or used by Supplier in connection with the Services or otherwise comprise or relate to the Services or Supplier’s systems. For the avoidance of doubt, Supplier Materials includes Supplier Data, but does not include Customer Data.

a.) Provision of Access. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Supplier will provide Customer with access to the SaaS Offerings during the applicable Subscription Term, solely for use by Authorized Users in accordance with the Documentation and these terms and conditions. Documentation may only be used by Authorized Users, during the applicable Subscription Term, and for Customer’s internal business purposes in connection with its use of the Services. Supplier may update the Supplier Materials from time to time. The terms “Services,” “Supplier Materials,” and “Documentation” shall include all updates provided by Supplier.

b.) Additional Services. Supplier shall provide any Additional Services purchased by Customer as set forth in the Order Form.

c.) Use Restrictions. Customer shall not access or use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, and shall not permit any other person to, directly or indirectly: (i) copy, modify, or create derivative works of the Supplier Materials, in whole or in part; (ii) decrypt, circumvent, bypass, breach, or disable any security or other technological features or measures of the Supplier Materials; (iii) access or attempt to access or use the Services for purposes of competitive analysis of the Supplier Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Supplier’s detriment or commercial disadvantage; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Supplier Materials to a third party including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service (other than an Authorized User as expressly permitted by this Agreement); (v) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Supplier Materials, in whole or in part; (vi) remove any proprietary notices from the Supplier Materials; (vii) perform any security or penetration testing of the Supplier Materials; (viii) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, trojan horse, or other malicious code; (ix) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Supplier Materials or Supplier’s provision of services to any third party; or (x) use the Supplier Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. However, where Customer has other rights under statute that make any portion of the foregoing contractual prohibition void, Customer agrees to provide Supplier with reasonably detailed information regarding any intended disassembly or de-compilation.  Customer may not access the Services if Customer is or become a direct competitor of Supplier. The access rights provided under this Agreement are granted to the Customer only, and shall not extend to any subsidiary, parent company, or other affiliate of Customer unless otherwise set forth in the Order Form.  Authorized Users may not share passwords or other login credentials and are responsible for maintaining the confidentiality and security of their login credentials.

d.) Reservation of Rights. Supplier reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Supplier IP. If Customer provides any suggestions, ideas, enhancement requests, feedback (including identifying potential errors and improvements), recommendations or other information relating to the Services to Supplier (collectively “Feedback”), then Supplier may use the Feedback without payment or restriction.

e.) Suspension. Notwithstanding anything to the contrary in this Agreement, Supplier may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Supplier reasonably determines that (A) there is a threat or attack on any of the Supplier Materials; (B) Customer’s or any Authorized User’s use of the Supplier IP disrupts or poses a security risk to the Supplier Materials or to any other customer or vendor of Supplier; (C) Customer, or any Authorized User, is using the Supplier Materials for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Supplier’s provision of the Services to Customer or any Authorized User is prohibited by applicable law or (F) Customer is using the Services in violation of the restrictions in this Agreement; (ii) any vendor of Supplier has suspended or terminated Supplier’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(b)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Supplier shall use commercially reasonable efforts to: (1) provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension; and (2) resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Supplier will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

f.) Fexa API Access and Customer Vendors. Fexa offers vendors of its customers the ability to purchase API access to the Fexa platform (the “Fexa API”). The Fexa API enables authorized customer vendors (“Customer Vendors”) the ability to programmatically perform many of the functions Customer Vendors are permitted to perform via the user interface of Customer’s instance of the Fexa platform. Permissions granted to vendors are used to control and restrict access to the same data regardless of whether the vendors are accessing the data via the user interface or the Fexa API. Customer hereby authorizes Supplier to enable access to Customer’s instance of the Fexa platform via the Fexa API for any company listed as a vendor on Customer’s instance of the Fexa platform at the time access by Fexa is granted (each a “Customer Vendor”). Customer must provide written notice to Fexa if Customer wishes to remove access to any Customer Vendor. Customer should be aware that Customer Vendors that submit check in and check out times through the API are able to avoid certain protections such as a geolocation checks in the Fexa mobile application and the protections in the Fexa integrated voice response system. Fexa can prevent Customer Vendors from submitting check in and check out times through the API if requested in writing by Customer. Additionally, Customer hereby authorizes Fexa to contact Customer Vendors regarding current and future Fexa offerings.

Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Supplier, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer shall ensure that Authorized Users comply with the terms and conditions contained in this Agreement. Customer shall: (a) set up, maintain, and operate in good repair all Customer systems on or through which the Services are accessed or used; and (b) provide all data, information, cooperation, and assistance as Supplier may reasonably request, including access to Customer systems, to enable Supplier to exercise its rights and perform its obligations under and in connection with this Agreement.  Supplier 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.

Subject to the terms and conditions of this Agreement, Supplier shall use commercially reasonable efforts to ensure that the Services are Available 99.5% of the time measured on a monthly basis. “Available” means that the Services are accessible, but excludes scheduled downtime, Customer’s or third-party systems or infrastructure, force majeure events described in Section 12(c), or failures arising from Supplier’s provider of hosting services.

a.) Fees. Customer shall pay Supplier the fees (“Fees”) as set forth in the Order Form. All payments hereunder shall be made in US dollars. The number of locations, users, work orders or other license metric (“Units”) set forth in the Order Form number represents the minimum Units for the Term (the “Minimum Units”) subject to increase as set forth in the Order Form. Regardless of changes in the per-Unit Fees, increased usage (usage of more Units) will result in increased Fees as set forth in the Order Form.

b.) Late Payment. If Customer fails to make any payment when due, without limiting Supplier’s other rights and remedies: (i) Supplier may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Supplier for all costs incurred by Supplier in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty days or more, Supplier may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

c.) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. 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 Supplier’s income.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that either (i) is marked, designated, or otherwise identified as “confidential” or (ii) a reasonable person would know was confidential or proprietary based upon markings, the nature of the information, or the manner of disclosure (collectively, “Confidential Information”). Without limiting the foregoing, Supplier’s “Confidential Information” shall include all features and functionality of the Services or Supplier Materials and the results of any benchmark or other tests of the Supplier Materials. Confidential Information does not include information that, at the time of disclosure is: (a) publicly available; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

a.) Supplier IP; Deidentified Data. Customer acknowledges that, as between Customer and Supplier, Supplier owns all right, title, and interest, including all intellectual property rights, in and to the Supplier IP. Notwithstanding anything to the contrary in this Agreement, Supplier may collect, compile, and create Supplier Data including Supplier Data created with Deidentified Customer Data. As between Supplier and Customer, all right, title, and interest in Supplier Data, and all intellectual property rights therein, belong to and are retained solely by Supplier. To the extent Customer has any intellectual property rights in or to the Supplier Data, Customer hereby grants to Supplier a non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers), assignable, worldwide, royalty-free and fully paid license to reproduce, distribute, modify, and otherwise use and display the Supplier Data for any and all purposes. Customer agrees that Supplier may (i) make Deidentified Customer Data available to third parties in compliance with applicable law, and (ii) use Deidentified Customer Data for any and all purposes to the extent and in the manner permitted under applicable law. For the avoidance of doubt, Customer Data that is not Deidentified will not be disclosed to third parties, other than to Supplier’s subcontractors who need the Customer Data for performance of the Services, without Customer’s written consent.

b.) Customer Data. Supplier acknowledges that, as between Supplier and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Supplier a non-exclusive, term-limited, sublicensable (through multiple tiers), worldwide, royalty-free and fully paid license to reproduce, distribute, and otherwise use and display the Customer Data to provide the Services to Customer and improve Supplier’s offerings and create Deidentified Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that: (i) Customer owns or otherwise has the right to grant the license set forth in this section for the Customer Data, (ii) the Customer Data, and provision of Customer Data to Supplier under this Agreement, does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity, and (iii) Customer shall use the Services in compliance with applicable laws.

c.) Loss of Data. In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Supplier Materials, Supplier will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from Supplier’s then most current backup of such Customer Data. Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

a.) Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the legal power to enter into this Agreement; (ii) the signatory hereto has the authority to bind the applicable organization; and (iii) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting the rights of creditors generally and the availability of equitable remedies.

b.) Services Warranty. Supplier represents and warrants that the Services will contain the functionality described in the Documentation in all material respects and that all Services will be performed in a professional and workmanlike manner. The foregoing warranty shall not include any non-conformances caused non-compliance with Supplier instructions or any breach of this Agreement. CUSTOMER’S EXCLUSIVE REMEDY, AND SUPPLIER’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS SECTION 8 OR THE FAILURE OR UNAVAILABILITY OF THE SERVICES, IS LIMITED TO, AT SUPPLIER’S OPTION, THE REPAIR OF ANY MATERIAL, REPRODUCIBLE IMPAIRMENT TO THE FEATURES AND FUNCTIONALITY IN THE SERVICES (OR DEFECTIVE PORTION OF THE SERVICES), REPERFORMANCE OF THE SERVICES, OR REFUNDING ANY FEES PAID TO SUPPLIER FOR THE DEFICIENT SERVICES FOR THE REMAINDER OF THE THEN-CURRENT CONTRACT YEAR, IN WHICH CASE, CUSTOMER SHALL IMMEDIATELY RETURN AND CEASE USE OF THE SERVICES.

c.) DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SUPPLIER MATERIALS ARE PROVIDED “AS IS” AND SUPPLIER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SUPPLIER MATERIALS, WHETHER EXPRESS, IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SUPPLIER DOES NOT WARRANT (I) THAT THE SUPPLIER MATERIALS OR THE SERVICES WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING OR USING THE SUPPLIER MATERIALS, OR (III) THAT THE SUPPLIER MATERIALS WILL MEET CUSTOMER’S OR ANY OTHER PARTY’S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SUPPLIER MATERIALS, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY SUPPLIER.

a.) Supplier Indemnification.

i.) Provided that Customer complies with the procedures set forth in Section 9(c) and subject to the exclusions below, Supplier will, at Supplier’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Customer or Customer’s officers, directors, employees, agents and affiliates (collectively, “Customer Parties”) alleging that the Services, as provided by Supplier, infringes any copyright, trademark, trade secret or patent protectable under U.S. law that is issued as of the date of this Agreement. In addition, Supplier will pay any judgment awarded against Customer or any settlement amount agreed to by Supplier for the indemnified claim. THIS INDEMNITY IS THE CUSTOMER’S EXCLUSIVE REMEDY AND SUPPLIER’S SOLE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

ii.) Supplier will have no obligation under Section 9(a) with respect to any claim of infringement arising out of or based upon: (i) Customer Data; (ii) use of the Services in any manner other than as expressly authorized and contemplated in this Agreement and the Supplier Documentation; (iii) the combination of the Services with any other software, hardware, material, or processes; or (iv) Customer otherwise causing the Services to become infringing (collectively, the “Indemnity Exclusions”).

iii.) If Supplier reasonably believes that a claim of infringement relating to the Services may arise, Supplier may, without limiting Supplier’s indemnity obligations hereunder, procure the right for Customer to continue to use the Services or modify the Services in a functionally equivalent manner so as to avoid such claim of infringement. If the foregoing options are not available on commercially reasonable terms and conditions, Supplier may immediately terminate the Agreement and refund to Customer a prorated amount of prepaid fees for access to the Services actually paid by Customer for the remainder of the then-current term.

b.) Customer Indemnification. Provided that Supplier complies with the procedures set forth in Section 9(c), Customer will, at Customer’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Supplier or Supplier’s officers, directors, employees, agents, and affiliates (collectively, “Supplier Parties”) and arising out of or related to Customer Data, the Indemnity Exclusions, or any Customer breaches of Section 2. In addition, Customer will pay any judgment awarded against Supplier or any settlement amount agreed to by Customer for the indemnified claim.

c.) Procedures. If one Party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other Party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will promptly give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure.  The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim.  The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense.  The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim.  The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim.  The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.

a.) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SUPPLIER PARTIES EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.; (II) IN NO EVENT SHALL ANY SUPPLIER PARTY BE LIABLE TO ANY CUSTOMER PARTY (DEFINED BELOW) OR THIRD PARTY FOR, AND CUSTOMER AND EACH CUSTOMER PARTY HEREBY WAIVES ANY CLAIM AGAINST ANY SUPPLIER PARTY FOR, ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE AND WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

b.) THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (A) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT; (B) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (C) REGARDLESS OF WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (D) REGARDLESS OF IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE CLAIM.

c.) THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF SUPPLIER’S BARGAIN HEREUNDER, AND CUSTOMER ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in this Section may be held unenforceable as applied to Customer. In such cases, Supplier’s liability shall be limited to the greatest extent permitted under applicable law.

a.) Term. The term of this Agreement (the “Term”) begins on the Effective Date and will continue until the Order Form expires unless earlier terminated pursuant to this Agreement’s express provisions.

b.) Termination. In addition to any other express termination right set forth in this Agreement:

i.) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice specifying the breach in reasonable detail; and

ii.) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

c.) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Supplier Materials and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Supplier Materials in Customer’s control. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Customer may request a return of Customer Data in Supplier’s possession up to thirty days after the expiration or termination of the applicable Subscription Term.

d.) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(c), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

a.) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, 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, and representations and warranties, both written and oral, with respect to such subject matter.

b.) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

c.) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, cyber attacks, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

d.) 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. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) 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, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

e.) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will 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 shall negotiate in good faith to modify this Agreement so as to affect their original intent 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.

f.) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF THE STATE OF DELAWARE 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 DELAWARE. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSES GRANTED HEREUNDER WILL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF DELAWARE IN EACH CASE LOCATED IN KENT COUNTY, DELAWARE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED.

g.) Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, Supplier may assign this Agreement, without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Supplier’s assets.  Any attempt by a Party to affect an assignment in breach of this Section shall be void.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns.

h.) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.

i.) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

j.) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Sections 2(a) or 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

k.) 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.) “Additional Services” means the additional services purchased by Customer as outlined in the Order Form.

b.) “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; (ii) for whom access to the Services has been purchased hereunder; (iii) who are using the Services solely for Customer’s benefit; and (iv) are not competitors of Supplier.

c.) “Customer Data” means, other than Supplier Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.

d.) “Deidentified” with regard to data or information, means data or information that neither identifies nor provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, account numbers, other identification numbers, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual.

e.) “Documentation” means Supplier’s documentation for the Services located at https://fexa.io/documentation-support/.

f.) “Order Form” means a Supplier order document executed by both Parties.

g.) “SaaS Offering” means the software-as-a-service offerings purchased by Customer as set forth in the Order Form.

h.) “Services” means the SaaS Offerings and Additional Services.

i.) “Subscription Term” means, for each SaaS Offering, the subscription term as described in Section 11(a).

j.) “Supplier Data” means data or information created, collected, or compiled by or on behalf of Supplier including and any information, data, or other content derived from Supplier’s monitoring of Customer’s access to or use of the Services as well as Deidentified Customer Data, but does not include Customer Data that is not Deidentified.

k.) “Supplier IP” means the intellectual property rights associated with or embodied in the Supplier Materials and any and all other intellectual property provided to Customer or any Authorized User in connection with the foregoing.

l.) “Supplier Materials” means the Services, Documentation, and Supplier’s 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, or reports, that are provided or used by Supplier in connection with the Services or otherwise comprise or relate to the Services or Supplier’s systems. For the avoidance of doubt, Supplier Materials includes Supplier Data, but does not include Customer Data.

a.) Provision of Access. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement, Supplier will provide Customer with access to the SaaS Offerings during the applicable Subscription Term, solely for use by Authorized Users in accordance with the Documentation and these terms and conditions. Documentation may only be used by Authorized Users, during the applicable Subscription Term, and for Customer’s internal business purposes in connection with its use of the Services. Supplier may update the Supplier Materials from time to time. The terms “Services,” “Supplier Materials,” and “Documentation” shall include all updates provided by Supplier.

b.) Additional Services. Supplier shall provide any Additional Services purchased by Customer as set forth in the Order Form.

c.) Use Restrictions. Customer shall not access or use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not, and shall not permit any other person to, directly or indirectly: (i) copy, modify, or create derivative works of the Supplier Materials, in whole or in part; (ii) decrypt, circumvent, bypass, breach, or disable any security or other technological features or measures of the Supplier Materials; (iii) access or attempt to access or use the Services for purposes of competitive analysis of the Supplier Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Supplier’s detriment or commercial disadvantage; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Supplier Materials to a third party including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service (other than an Authorized User as expressly permitted by this Agreement); (v) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Supplier Materials, in whole or in part; (vi) remove any proprietary notices from the Supplier Materials; (vii) perform any security or penetration testing of the Supplier Materials; (viii) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, trojan horse, or other malicious code; (ix) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Supplier Materials or Supplier’s provision of services to any third party; or (x) use the Supplier Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. However, where Customer has other rights under statute that make any portion of the foregoing contractual prohibition void, Customer agrees to provide Supplier with reasonably detailed information regarding any intended disassembly or de-compilation.  Customer may not access the Services if Customer is or become a direct competitor of Supplier. The access rights provided under this Agreement are granted to the Customer only, and shall not extend to any subsidiary, parent company, or other affiliate of Customer unless otherwise set forth in the Order Form.  Authorized Users may not share passwords or other login credentials and are responsible for maintaining the confidentiality and security of their login credentials.

d.) Reservation of Rights. Supplier reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Supplier IP. If Customer provides any suggestions, ideas, enhancement requests, feedback (including identifying potential errors and improvements), recommendations or other information relating to the Services to Supplier (collectively “Feedback”), then Supplier may use the Feedback without payment or restriction.

e.) Suspension. Notwithstanding anything to the contrary in this Agreement, Supplier may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Supplier reasonably determines that (A) there is a threat or attack on any of the Supplier Materials; (B) Customer’s or any Authorized User’s use of the Supplier IP disrupts or poses a security risk to the Supplier Materials or to any other customer or vendor of Supplier; (C) Customer, or any Authorized User, is using the Supplier Materials for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Supplier’s provision of the Services to Customer or any Authorized User is prohibited by applicable law or (F) Customer is using the Services in violation of the restrictions in this Agreement; (ii) any vendor of Supplier has suspended or terminated Supplier’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(b)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Supplier shall use commercially reasonable efforts to: (1) provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension; and (2) resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Supplier will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.

f.) Fexa API Access and Customer Vendors. Fexa offers vendors of its customers the ability to purchase API access to the Fexa platform (the “Fexa API”). The Fexa API enables authorized customer vendors (“Customer Vendors”) the ability to programmatically perform many of the functions Customer Vendors are permitted to perform via the user interface of Customer’s instance of the Fexa platform. Permissions granted to vendors are used to control and restrict access to the same data regardless of whether the vendors are accessing the data via the user interface or the Fexa API. Customer hereby authorizes Supplier to enable access to Customer’s instance of the Fexa platform via the Fexa API for any company listed as a vendor on Customer’s instance of the Fexa platform at the time access by Fexa is granted (each a “Customer Vendor”). Customer must provide written notice to Fexa if Customer wishes to remove access to any Customer Vendor. Customer should be aware that Customer Vendors that submit check in and check out times through the API are able to avoid certain protections such as a geolocation checks in the Fexa mobile application and the protections in the Fexa integrated voice response system. Fexa can prevent Customer Vendors from submitting check in and check out times through the API if requested in writing by Customer. Additionally, Customer hereby authorizes Fexa to contact Customer Vendors regarding current and future Fexa offerings.

Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Supplier, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Customer shall ensure that Authorized Users comply with the terms and conditions contained in this Agreement. Customer shall: (a) set up, maintain, and operate in good repair all Customer systems on or through which the Services are accessed or used; and (b) provide all data, information, cooperation, and assistance as Supplier may reasonably request, including access to Customer systems, to enable Supplier to exercise its rights and perform its obligations under and in connection with this Agreement.  Supplier 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.

Subject to the terms and conditions of this Agreement, Supplier shall use commercially reasonable efforts to ensure that the Services are Available 99.5% of the time measured on a monthly basis. “Available” means that the Services are accessible, but excludes scheduled downtime, Customer’s or third-party systems or infrastructure, force majeure events described in Section 12(c), or failures arising from Supplier’s provider of hosting services.

a.) Fees. Customer shall pay Supplier the fees (“Fees”) as set forth in the Order Form. All payments hereunder shall be made in US dollars. The number of locations, users, work orders or other license metric (“Units”) set forth in the Order Form number represents the minimum Units for the Term (the “Minimum Units”) subject to increase as set forth in the Order Form. Regardless of changes in the per-Unit Fees, increased usage (usage of more Units) will result in increased Fees as outlined in the Order Form.

b.) Late Payment. If Customer fails to make any payment when due, without limiting Supplier’s other rights and remedies: (i) Supplier may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Supplier for all costs incurred by Supplier in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty days or more, Supplier may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

c.) Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. 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 Supplier’s income.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that either (i) is marked, designated, or otherwise identified as “confidential” or (ii) a reasonable person would know was confidential or proprietary based upon markings, the nature of the information, or the manner of disclosure (collectively, “Confidential Information”). Without limiting the foregoing, Supplier’s “Confidential Information” shall include all features and functionality of the Services or Supplier Materials and the results of any benchmark or other tests of the Supplier Materials. Confidential Information does not include information that, at the time of disclosure is: (a) publicly available; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

a.) Supplier IP; Deidentified Data. Customer acknowledges that, as between Customer and Supplier, Supplier owns all right, title, and interest, including all intellectual property rights, in and to the Supplier IP. Notwithstanding anything to the contrary in this Agreement, Supplier may collect, compile, and create Supplier Data including Supplier Data created with Deidentified Customer Data. As between Supplier and Customer, all right, title, and interest in Supplier Data, and all intellectual property rights therein, belong to and are retained solely by Supplier. To the extent Customer has any intellectual property rights in or to the Supplier Data, Customer hereby grants to Supplier a non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers), assignable, worldwide, royalty-free and fully paid license to reproduce, distribute, modify, and otherwise use and display the Supplier Data for any and all purposes. Customer agrees that Supplier may (i) make Deidentified Customer Data available to third parties in compliance with applicable law, and (ii) use Deidentified Customer Data for any and all purposes to the extent and in the manner permitted under applicable law. For the avoidance of doubt, Customer Data that is not Deidentified will not be disclosed to third parties, other than to Supplier’s subcontractors who need the Customer Data for performance of the Services, without Customer’s written consent.

b.) Customer Data. Supplier acknowledges that, as between Supplier and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Supplier a non-exclusive, term-limited, sublicensable (through multiple tiers), worldwide, royalty-free and fully paid license to reproduce, distribute, and otherwise use and display the Customer Data to provide the Services to Customer and improve Supplier’s offerings and create Deidentified Customer Data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that: (i) Customer owns or otherwise has the right to grant the license set forth in this section for the Customer Data, (ii) the Customer Data, and provision of Customer Data to Supplier under this Agreement, does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity, and (iii) Customer shall use the Services in compliance with applicable laws.

c.) Loss of Data. In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Supplier Materials, Supplier will, as its sole obligation and liability and as Customer’s sole remedy, use commercially reasonable efforts to restore the Customer Data from Supplier’s then most current backup of such Customer Data. Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.

a.) Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the legal power to enter into this Agreement; (ii) the signatory hereto has the authority to bind the applicable organization; and (iii) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting the rights of creditors generally and the availability of equitable remedies.

b.) Services Warranty. Supplier represents and warrants that the Services will contain the functionality described in the Documentation in all material respects and that all Services will be performed in a professional and workmanlike manner. The foregoing warranty shall not include any non-conformances caused non-compliance with Supplier instructions or any breach of this Agreement. CUSTOMER’S EXCLUSIVE REMEDY, AND SUPPLIER’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS SECTION 8 OR THE FAILURE OR UNAVAILABILITY OF THE SERVICES, IS LIMITED TO, AT SUPPLIER’S OPTION, THE REPAIR OF ANY MATERIAL, REPRODUCIBLE IMPAIRMENT TO THE FEATURES AND FUNCTIONALITY IN THE SERVICES (OR DEFECTIVE PORTION OF THE SERVICES), REPERFORMANCE OF THE SERVICES, OR REFUNDING ANY FEES PAID TO SUPPLIER FOR THE DEFICIENT SERVICES FOR THE REMAINDER OF THE THEN-CURRENT CONTRACT YEAR, IN WHICH CASE, CUSTOMER SHALL IMMEDIATELY RETURN AND CEASE USE OF THE SERVICES.

c.) DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SUPPLIER MATERIALS ARE PROVIDED “AS IS” AND SUPPLIER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SUPPLIER MATERIALS, WHETHER EXPRESS, IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SUPPLIER DOES NOT WARRANT (I) THAT THE SUPPLIER MATERIALS OR THE SERVICES WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY RECEIVING OR USING THE SUPPLIER MATERIALS, OR (III) THAT THE SUPPLIER MATERIALS WILL MEET CUSTOMER’S OR ANY OTHER PARTY’S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SUPPLIER MATERIALS, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY SUPPLIER.

a.) Supplier Indemnification.

i.) Provided that Customer complies with the procedures set forth in Section 9(c) and subject to the exclusions below, Supplier will, at Supplier’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Customer or Customer’s officers, directors, employees, agents and affiliates (collectively, “Customer Parties”) alleging that the Services, as provided by Supplier, infringes any copyright, trademark, trade secret or patent protectable under U.S. law that is issued as of the date of this Agreement. In addition, Supplier will pay any judgment awarded against Customer or any settlement amount agreed to by Supplier for the indemnified claim. THIS INDEMNITY IS THE CUSTOMER’S EXCLUSIVE REMEDY AND SUPPLIER’S SOLE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

ii.) Supplier will have no obligation under Section 9(a) with respect to any claim of infringement arising out of or based upon: (i) Customer Data; (ii) use of the Services in any manner other than as expressly authorized and contemplated in this Agreement and the Supplier Documentation; (iii) the combination of the Services with any other software, hardware, material, or processes; or (iv) Customer otherwise causing the Services to become infringing (collectively, the “Indemnity Exclusions”).

iii.) If Supplier reasonably believes that a claim of infringement relating to the Services may arise, Supplier may, without limiting Supplier’s indemnity obligations hereunder, procure the right for Customer to continue to use the Services or modify the Services in a functionally equivalent manner so as to avoid such claim of infringement. If the foregoing options are not available on commercially reasonable terms and conditions, Supplier may immediately terminate the Agreement and refund to Customer a prorated amount of prepaid fees for access to the Services actually paid by Customer for the remainder of the then-current term.

b.) Customer Indemnification. Provided that Supplier complies with the procedures set forth in Section 9(c), Customer will, at Customer’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Supplier or Supplier’s officers, directors, employees, agents, and affiliates (collectively, “Supplier Parties”) and arising out of or related to Customer Data, the Indemnity Exclusions, or any Customer breaches of Section 2. In addition, Customer will pay any judgment awarded against Supplier or any settlement amount agreed to by Customer for the indemnified claim.

c.) Procedures. If one Party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other Party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will promptly give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure.  The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim.  The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense.  The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim.  The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim.  The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.

a.) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SUPPLIER PARTIES EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.; (II) IN NO EVENT SHALL ANY SUPPLIER PARTY BE LIABLE TO ANY CUSTOMER PARTY (DEFINED BELOW) OR THIRD PARTY FOR, AND CUSTOMER AND EACH CUSTOMER PARTY HEREBY WAIVES ANY CLAIM AGAINST ANY SUPPLIER PARTY FOR, ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE AND WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

b.) THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (A) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT; (B) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (C) REGARDLESS OF WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (D) REGARDLESS OF IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE CLAIM.

c.) THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF SUPPLIER’S BARGAIN HEREUNDER, AND CUSTOMER ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in this Section may be held unenforceable as applied to Customer. In such cases, Supplier’s liability shall be limited to the greatest extent permitted under applicable law.

a.) Term. The term of this Agreement (the “Term”) begins on the Effective Date and will continue until the Order Form expires unless earlier terminated pursuant to this Agreement’s express provisions.

b.) Termination. In addition to any other express termination right set forth in this Agreement:

i.) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice specifying the breach in reasonable detail; and

ii.) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

c.) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Supplier Materials and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Supplier Materials in Customer’s control. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Customer may request a return of Customer Data in Supplier’s possession up to thirty days after the expiration or termination of the applicable Subscription Term.

d.) Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(c), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

a.) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, 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, and representations and warranties, both written and oral, with respect to such subject matter.

b.) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

c.) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, cyber attacks, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

d.) 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. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) 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, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

e.) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will 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 shall negotiate in good faith to modify this Agreement so as to affect their original intent 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.

f.) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF THE STATE OF DELAWARE 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 DELAWARE. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSES GRANTED HEREUNDER WILL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF DELAWARE IN EACH CASE LOCATED IN KENT COUNTY, DELAWARE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED.

g.) Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, Supplier may assign this Agreement, without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Supplier’s assets.  Any attempt by a Party to affect an assignment in breach of this Section shall be void.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns.

h.) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.

i.) US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

j.) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Sections 2(a) or 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

k.) 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) “Additional Services” means the additional services purchased by Customer as set forth in an Order Form.

(b) “Authorized User” means Vendor’s employees and agents (i) who are authorized by Vendor to access and use the Supplier API under the rights granted to Vendor pursuant to this Agreement; (ii) for whom access to the Supplier API has been purchased hereunder; (iii) who are using the Supplier API solely for Customer’s benefit; and (iv) are not competitors of Supplier.

(c) “Customer” means a direct customer of Supplier that has authorized Vendor’s access to such customer’s instance of the SaaS Offering via the Supplier API.

(d) “Customer Data” means, other than Supplier Data or Vendor Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any of Customer’s authorized users through the Services.

(e) “Deidentified” with regard to data or information, means data or information that neither identifies nor provides a reasonable basis to identify a company or an individual, where, without limitation, the following identifiers have been removed: company names and the names of individuals, addresses, account numbers, other identification numbers, phone numbers, e-mail address(es) and any other information which could reasonably be anticipated to identify, when taken in the aggregate, a specific company, organization or individual.

(f) “Documentation” means Supplier’s documentation for the Supplier API provided to Vendor in connection with this Agreement..

(g) “Order Form” means a Supplier order document executed by both Parties.

(h) “Sandbox SaaS Offering” means an instance of the SaaS Offering that is configured like, but is separate from, Customer’s actual live production instance of the SaaS Offering.

(i) “SaaS Offering” means the software-as-a-service offerings purchased by Customer as set forth in each related order form.

(j) “Services” means the SaaS Offerings and Additional Services.

(k) “Supplier Data” means data or information created, collected, or compiled by or on behalf of Supplier including and any information, data, or other content derived from Supplier’s monitoring of (i) Customer’s access to or use of the Services and (ii) Vendor’s access to the SaaS Offering via the Supplier API as well as Deidentified Customer Data and Deidentified Vendor Data, but does not include Customer Data or Vendor Data that is not Deidentified.

(l) “Supplier IP” means the intellectual property rights associated with or embodied in the Supplier Materials and any and all other intellectual property provided to Vendor or any Authorized User in connection with the foregoing.

(m) “Supplier Materials” means the Supplier API, the Services, the Sandbox SaaS Offering, Documentation, and Supplier’s software and 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 related Supplier IP and any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Supplier in connection with the Supplier API, the Services, the Sandbox SaaS Offering or otherwise comprise or relate to the Supplier API, the Services or Supplier’s systems. For the avoidance of doubt, Supplier Materials include Supplier Data, but does not include Customer Data or Vendor Data.

(n) “Term” mean has the meaning given to that term “in Section 10(a).

(o) “Vendor Data” means, other than Supplier Data or Customer Data, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Vendor or an Authorized User through the Supplier API.

(a) Provision of Access. Subject to and conditioned on Vendor’s compliance with these Terms and Conditions, Supplier will enable Vendor to access the SaaS Offering via the Supplier API during the Term, solely for use by Authorized Users in connection with Customer’s internal business purposes, in accordance with the Documentation and these Terms and Conditions. The Supplier API enables Vendor the ability to programmatically perform many of the functions Vendor is permitted to perform via the user interface of Customer’s instance of the SaaS Offering. The Documentation may only be used by Authorized Users in connection with Vendor’s and the Authorized User’s use of the Supplier API during the Term.  Supplier may update the Supplier Materials from time to time. The terms “Supplier API,” “Supplier Materials,” and “Documentation” shall include all updates provided by Supplier.

(b) Access to the Sandbox SaaS Offering. Subject to and conditioned on Vendor’s compliance with these Terms and Conditions, Supplier will provide Vendor with access to the Sandbox SaaS Offering during the period set forth in the applicable Order Form. Vendor shall only use the Sandbox SaaS Offering to test the connection created through the Supplier API.

(c) Use Restrictions. Vendor shall not access or use the Supplier API or the Sandbox SaaS Offering for any purposes beyond the scope of the access granted in this Agreement. Vendor shall not, and shall not permit any other person to, directly or indirectly: (i) copy, modify, or create derivative works of the Supplier Materials, in whole or in part; (ii) decrypt, circumvent, bypass, breach, or disable any security or other technological features or measures of the Supplier Materials; (iii) access or attempt to access or use the Supplier API or the Sandbox SaaS Offering for purposes of competitive analysis of the Supplier Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Supplier’s detriment or commercial disadvantage; (iv) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Supplier Materials to a third party including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service (other than an Authorized User as expressly permitted by this Agreement); (v) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Supplier Materials, in whole or in part; (vi) remove any proprietary notices from the Supplier Materials; (vii) perform any security or penetration testing of the Supplier Materials; (viii) input, upload, transmit, or otherwise provide to or through the Supplier API, any information or materials that are unlawful or injurious, or contain, transmit, or activate any virus, trojan horse, or other malicious code; (ix) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Supplier Materials or Supplier’s provision of Supplier API to any third party; (x) use the Supplier Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, or (xii) attempt to gain unauthorized access to any Supplier Materials. However, where Vendor has other rights under statute that make any portion of the foregoing contractual prohibition void, Vendor agrees to provide Supplier with reasonably detailed information regarding any intended disassembly or de-compilation. Vendor may not access the Supplier API or the Sandbox SaaS Offering if Vendor is or become a direct competitor of Supplier. The access rights provided under this Agreement are granted to the Vendor only, and shall not extend to any subsidiary, parent company, or other affiliate of Vendor unless otherwise set forth in the applicable Order Form. Authorized Users may not share passwords or other login credentials and are responsible for maintaining the confidentiality and security of their login credentials.

(d) Reservation of Rights. Supplier reserves all rights not expressly granted to Vendor in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Vendor or any third party any intellectual property rights or other right, title, or interest in or to the Supplier IP. If Vendor provides any suggestions, ideas, enhancement requests, feedback (including identifying potential errors and improvements), recommendations or other information relating to the Supplier Materials to Supplier (collectively “Feedback”), then Supplier may use the Feedback without payment or restriction.

(e) Suspension. Notwithstanding anything to the contrary in this Agreement, Supplier may temporarily suspend Vendor’s and any Authorized User’s access to any portion or all of the Supplier API or Sandbox SaaS Offering if: (i) Supplier reasonably determines that (A) there is a threat or attack on Supplier or any of the Supplier Materials; (B) Vendor’s or any Authorized User’s use of the Supplier IP disrupts or poses a security risk to Supplier or the Supplier Materials or to any other customer or vendor of Supplier; (C) Vendor, or any Authorized User, is using any Supplier Materials for fraudulent or illegal activities; (D) subject to applicable law, Vendor has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Supplier’s provision of the Supplier API or Sandbox SaaS Offering to Vendor or any Authorized User is prohibited by applicable law or (F) Vendor is using the Supplier API or Sandbox SaaS Offering in violation of the terms of this Agreement; (ii) any vendor of Supplier has suspended or terminated Supplier’s access to or use of any third-party services or products required to enable Vendor to access the Supplier API or Sandbox SaaS Offering; or (iii) in accordance with Section 4(b)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Supplier shall use commercially reasonable efforts to: (1) provide written notice of any Service Suspension to Vendor and to provide updates regarding resumption of access to the Supplier API or Sandbox SaaS Offering following any Service Suspension; and (2) resume providing access to the Supplier API or Sandbox SaaS Offering as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Supplier will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Vendor or any Authorized User may incur as a result of a Service Suspension.

Vendor is responsible and liable for all uses of the Supplier API, the Sandbox SaaS Offering and Documentation resulting from access provided by Supplier, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Vendor shall ensure that Authorized Users comply with these Terms and Conditions. Vendor shall: (a) set up, maintain, and operate in good repair all Vendor systems on or through which the Supplier API or the Sandbox SaaS Offering are accessed or used; and (b) provide all data, information, cooperation, and assistance as Supplier may reasonably request, including access to Vendor systems, to enable Supplier to exercise its rights and perform its obligations under and in connection with this Agreement. Supplier is not responsible or liable for any delay or failure of performance caused in whole or in part by Vendor’s delay in performing, or failure to perform, any of its obligations under this Agreement.

(a) Fees. Vendor shall pay Supplier the fees (“Fees”) as set forth in each Order Form. All payments hereunder shall be made in US dollars.

(b) Late Payment If Vendor fails to make any payment when due, without limiting Supplier’s other rights and remedies, then: (i) Supplier may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Vendor shall reimburse Supplier for all costs incurred by Supplier in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty days or more, Supplier may suspend Vendor’s and its Authorized Users’ access to any portion or all of the Supplier API and the Sandbox SaaS Offering until such amounts are paid in full.

(c) Taxes. All Fees and other amounts payable by Vendor under this Agreement are exclusive of taxes and similar assessments. Vendor 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 Vendor hereunder, other than any taxes imposed on Supplier’s income.

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that either (i) is marked, designated, or otherwise identified as “confidential” or (ii) a reasonable person would know was confidential or proprietary based upon markings, the nature of the information, or the manner of disclosure (collectively, “Confidential Information”). Without limiting the foregoing, Supplier’s “Confidential Information” shall include (a) any Supplier Data and (b) all features and functionality of any of the Supplier Materials and the results of any benchmark or other tests related to the Supplier Materials. Confidential Information does not include information that, at the time of disclosure is: (a) publicly available; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are subject to terms of confidentiality at least as restrictive as set forth in this Section 5. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(a) Ownership. Vendor acknowledges that, as between Vendor and Supplier, Supplier owns all right, title, and interest, in and to Supplier Materials.

(b) Supplier Data. Notwithstanding anything to the contrary in this Agreement, Supplier may collect, compile, and create Supplier Data including Supplier Data created with Deidentified Vendor Data. As between Supplier and Vendor, all right, title, and interest in Supplier Data, and all intellectual property rights therein, belong to and are retained solely by Supplier. To the extent Vendor has any intellectual property rights in or to the Supplier Data, Vendor hereby grants to Supplier a non-exclusive, irrevocable, perpetual, sublicensable (through multiple tiers), assignable, worldwide, royalty-free and fully paid license to reproduce, distribute, modify, and otherwise use and display the Supplier Data for any and all purposes. Vendor agrees that Supplier may (i) make Deidentified Vendor Data available to third parties in compliance with applicable law, and (ii) use Deidentified Vendor Data for any and all purposes to the extent and in the manner permitted under applicable law. For the avoidance of doubt, Vendor Data that is not Deidentified will not be disclosed to third parties, other than to Supplier’s subcontractors who need the Vendor Data in connection with the Supplier API or the Sandbox SaaS Offering, without Vendor’s written consent.

(c) Vendor Data. Supplier acknowledges that, as between Supplier and Vendor, Vendor owns all right, title, and interest, including all intellectual property rights, in and to the Vendor Data. Vendor hereby grants to Supplier a non-exclusive, term-limited, sublicensable (through multiple tiers), worldwide, royalty-free and fully paid license (i) to reproduce, distribute, and otherwise use and display the Vendor Data in connection with the Supplier API or the SaaS Offering, (b) to improve Supplier’s offerings and (iii) to create Deidentified Vendor Data. Vendor shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Vendor Data. Vendor represents and warrants that: (i) Vendor owns or otherwise has the right to grant the license set forth in this section for the Vendor Data, (ii) the Vendor Data, and provision of Vendor Data to Supplier under this Agreement, does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person or entity, and (iii) Vendor shall use the Supplier API and the Sandbox SaaS Offering in compliance with applicable laws.

(d) Loss of Vendor Data. In the event of any loss, destruction, damage, or corruption of Vendor Data caused by the Supplier Materials, Supplier will, as its sole obligation and liability and as Vendor’s sole remedy, use commercially reasonable efforts to restore the Vendor Data from Supplier’s then most current backup of such Vendor Data. Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Vendor Data caused by any third party.

(e) Customer Data. Vendor acknowledges and agrees that any Customer Data provided to Vendor is Confidential Information and may only be used for purposes of using the Supplier API for the benefit of Customer.

(a) Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the legal power to enter into this Agreement; (ii) the signatory hereto has the authority to bind the applicable organization; and (iii) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting the rights of creditors generally and the availability of equitable remedies.

(b) Supplier API Warranty. Supplier represents and warrants that the Supplier API will contain the functionality described in the Documentation in all material respects and that all Supplier API will be performed in a professional and workmanlike manner. The foregoing warranty shall not include any non-conformances caused by non-compliance with Supplier instructions or any breach of this Agreement. VENDOR’S EXCLUSIVE REMEDY, AND SUPPLIER’S ENTIRE LIABILITY, FOR ANY BREACH OF THIS SECTION 7 OR THE FAILURE OR UNAVAILABILITY OF THE SUPPLIER API, IS LIMITED TO, AT SUPPLIER’S OPTION, THE REPAIR OF ANY MATERIAL, REPRODUCIBLE IMPAIRMENT TO THE FEATURES AND FUNCTIONALITY IN THE SUPPLIER API (OR DEFECTIVE PORTION OF THE SUPPLIER API), OR REFUNDING ANY FEES PAID TO SUPPLIER FOR THE DEFICIENT SUPPLIER API FOR THE REMAINDER OF THE THEN-CURRENT CONTRACT YEAR, IN WHICH CASE, VENDOR SHALL CEASE USE OF THE SUPPLIER API.

(c) DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SUPPLIER MATERIALS ARE PROVIDED “AS IS” AND SUPPLIER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SUPPLIER MATERIALS, WHETHER EXPRESS, IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SUPPLIER DOES NOT WARRANT (I) THAT THE SUPPLIER MATERIALS WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS VENDOR MAY OBTAIN BY RECEIVING OR USING THE SUPPLIER MATERIALS, OR (III) THAT THE SUPPLIER MATERIALS WILL MEET VENDOR’S OR ANY OTHER PARTY’S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE SUPPLIER MATERIALS, NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY SUPPLIER.

(a) Supplier Indemnification.

(i)Provided that Vendor complies with the procedures set forth in Section 8(c) and subject to the exclusions below, Supplier will, at Supplier’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Vendor or Vendor’s officers, directors, employees, agents and affiliates (collectively, “Vendor Parties”) alleging that the Supplier API, as provided by Supplier, infringes any copyright, trademark, trade secret or patent protectable under U.S. law that is issued as of the date of this Agreement. In addition, Supplier will pay any judgment awarded against Vendor or any settlement amount agreed to by Supplier for the indemnified claim. THIS INDEMNITY IS THE VENDOR’S EXCLUSIVE REMEDY AND SUPPLIER’S SOLE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.

(ii)Supplier will have no obligation under Section 8(a) with respect to any claim of infringement arising out of or based upon: (i) Vendor Data; (ii) use of the Supplier API in any manner other than as expressly authorized and contemplated in this Agreement and the Supplier Documentation; (iii) the combination of the Supplier API with any other software, hardware, material, or processes; or (iv) Vendor otherwise causing the Supplier API to become infringing (collectively, the “Indemnity Exclusions”).

(iii) If a claim of infringement arises relating to the Supplier API or the Sandbox SaaS Offering or Supplier reasonably believes that a claim of infringement relating to the Supplier API or the Sandbox SaaS Offering may arise, Supplier may, without limiting Supplier’s indemnity obligations hereunder, procure the right for Vendor to continue to use the Supplier API or the Sandbox SaaS Offering or modify the Supplier API or the Sandbox SaaS Offering in a functionally equivalent manner so as to avoid such claim of infringement. If the foregoing options are not available on commercially reasonable terms and conditions in Supplier’s discretion, Supplier may immediately terminate the Agreement and refund to Vendor a prorated amount of prepaid fees for access to the Supplier API and the Sandbox SaaS Offering actually paid by Vendor for the remainder of the then-current term.

(b) Vendor Indemnification. Provided that Supplier complies with the procedures set forth in Section 8(c), Vendor will, at Vendor’s expense, defend and/or settle any claim, suit or proceeding brought by a third party against Supplier or Supplier’s officers, directors, employees, agents, and affiliates (collectively, “Supplier Parties”) and arising out of or related to Vendor Data, the Indemnity Exclusions, or any breach by Vendor of Section 2. In addition, Vendor will pay any judgment awarded against Supplier or any settlement amount agreed to by Vendor for the indemnified claim.

(c) Procedures. If one Party (the “Indemnitee”) receives any notice of a claim or other allegation with respect to which the other Party (the “Indemnitor”) has an obligation of indemnity hereunder, then the Indemnitee will promptly give the Indemnitor written notice of such claim or allegation setting forth in reasonable detail the facts and circumstances surrounding the claim. The Indemnitee will not make any payment or incur any costs or expenses with respect to such claim, except as requested by the Indemnitor or as necessary to comply with this procedure. The Indemnitee will not make any admission of liability or take any other action that limits the ability of the Indemnitor to defend the claim.  The Indemnitor shall immediately assume the full control of the defense or settlement of such claim or allegation, including the selection and employment of counsel, and shall pay all authorized costs and expenses of such defense. The Indemnitee will fully cooperate, at the expense of the Indemnitor, in the defense or settlement of the claim. The Indemnitee shall have the right, at its own expense, to employ separate counsel and participate in the defense or settlement of the claim.  The Indemnitor shall have no liability for costs or expenses incurred by the Indemnitee, except to the extent authorized by the Indemnitor or pursuant to this procedure.

(a) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE SUPPLIER PARTIES EXCEED THE AMOUNTS ACTUALLY PAID BY VENDOR FOR ACCESS TO THE API UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY; (II) IN NO EVENT SHALL ANY SUPPLIER PARTY BE LIABLE TO ANY VENDOR PARTY OR THIRD PARTY FOR, AND VENDOR AND EACH VENDOR PARTY HEREBY WAIVES ANY CLAIM AGAINST ANY SUPPLIER PARTY FOR, ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE AND WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

(b) THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (A) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT; (B) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (C) REGARDLESS OF WHETHER SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (D) REGARDLESS OF IF THE REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTANCE OF MORE THAN ONE CLAIM.

(c) THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL PARTS OF THE BASIS OF SUPPLIER’S BARGAIN HEREUNDER, AND VENDOR ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in this Section may be held unenforceable as applied to Vendor. In such cases, Supplier’s liability shall be limited to the greatest extent permitted under applicable law.

(a) Term. The term of this Agreement (the “Term”) begins on the Effective Date and will continue until terminated pursuant to this Agreement’s express provisions. The term of each Supplier API subscription and Sandbox SaaS Offering subscription (collectively, the “Subscription Terms”) will be as set forth in the applicable Order Form.

(b) Termination. In addition to any other express termination right set forth in this Agreement:

(i) this Agreement shall automatically terminate if Customer removes Vendor’s access to the Supplier API;

(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if all Order Forms and related Subscription Terms have expired or otherwise terminated;

(iii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty days after the non-breaching Party provides the breaching Party with written notice specifying the breach in reasonable detail; and

(iv) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Vendor shall immediately discontinue use of the Supplier Materials and, without limiting Vendor’s obligations under Section 5, Vendor shall delete, destroy, or return all copies of the Supplier Materials in Vendor’s control. No expiration or termination will affect Vendor’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Vendor to any refund. Vendor may request a return of Vendor Data in Supplier’s possession up to thirty days after the expiration or termination of the applicable API Term.

(d) Survival. This Section 10(d) and Sections 1, 4, 5, 6, 7(c), 8, 9, 10(c), and 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, 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, and representations and warranties, both written and oral, with respect to such subject matter.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth in the applicable Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, cyber attacks, electrical power or Internet interruptions, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) 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. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) 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, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will 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 shall negotiate in good faith to modify this Agreement so as to affect their original intent 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.

(f) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT IS GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF THE STATE OF DELAWARE 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 DELAWARE. ANY LEGAL SUIT, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSES GRANTED HEREUNDER WILL BE INSTITUTED EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF DELAWARE IN EACH CASE LOCATED IN KENT COUNTY, DELAWARE, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS IN ANY SUCH SUIT, ACTION, OR PROCEEDING. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY DISCLAIMED.

(g) Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, Supplier may assign this Agreement, without the consent of Vendor, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Supplier’s assets.  Any attempt by a Party to affect an assignment in breach of this Section shall be void.  Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties, their respective successors, and permitted assigns.

(h) Export Regulation. Vendor shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Supplier API or any Vendor Data outside the US.

(i) US Government Rights. Each of the Documentation and the software components that constitute the Supplier API is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Vendor is an agency of the US Government or any contractor therefor, Vendor only receives those rights with respect to the Supplier API and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

(j) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or 6 Reference source not found. or, in the case of Vendor, Sections 2(a), 2(b) or 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

(k) 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.

© 2025 Zamo Technologies LLC dba Fexa

(a) Vendor shall be solely responsible for (i) providing, updating and maintaining the Vendor Profile Information and (ii) the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Vendor Profile Information. Vendor can update the Vendor Profile Information at any time through the Vendor profile.

(b) Any transactions between Vendor and an Operator is solely between Vendor and such Operator, including any purchase of any Services, and Fexa shall have no liability or responsibility for the performance of, or payment for, Services or any other claims that may arise between Vendor and Operator.

(c) Vendor acknowledges and agrees that Fexa may, now or in the future, share performance data in connection with Vendor or the Services (e.g., reviews, ratings, etc.).

(d) If an Operator provides any of its data or other information to Vendor for use in connection with the Services, Vendor and such Operator shall be solely responsible for any disclosure, modification or deletion of such data resulting from such access and for the resolution of any disputes in connection therewith or any liability related to any of the foregoing.

Vendor expressly agrees and understands that Fexa: (a) does not control or review for accuracy or errors any information exchanged by Vendor and Operators, including any information in connection with a transaction, or contained in any transaction documents, between them, the quality, completeness, safety, legality or availability of Vendor or its Services, the terms and conditions on which such Services are offered, purchased or delivered or the truth or accuracy of any Vendor Content or any other content; (b) is not a party to or, third party beneficiary or a guarantor of, any agreement between Vendor and any Operator or other third party, including with respect to any Services thereunder; and (c) makes no representations or warranties of any type, expressed or implied, including from a course of dealing or usage of trade, with respect to the quality of any of Vendor’s Services or any third-party site, person or business to which the Services may be linked. Vendor expressly releases Fexa of any liability related to an Operator’s or other third party’s decision to decline or discontinue conducting any transactions with Vendor.

Vendor is not currently obligated to pay any fees to access and use FexaLink or the FexaLink Content. Fexa reserves the right to begin charging fees (as amended, the “Fees”) at any time by providing at least thirty (30) days’ prior written notice to Vendor. If Vendor wishes to continue to access and use FexaLink, then Vendor shall pay the Fees as directed by Fexa.

The Fexa name, these Terms, Fexa’s trademarks, Fexa’s logo, and all related names, logos, product and service names, designs, and slogans are trademarks of Fexa or its affiliates or licensors. Vendor must not use such marks without the prior written consent of Fexa. All other names, logos, product and service names, designs, and slogans on  FexaLink  are the trademarks of their respective owners.

(a) Term. These Terms shall become effective when accepted by Vendor and these Terms and the Right to Access and Use shall continue until terminated in accordance with these Terms

(b) Termination. Vendor agrees that Fexa, in its sole discretion, for any or no reason, and without penalty, may terminate these Terms and Vendor’s Right to Access and Use. Vendor agrees that any termination of these Terms and Vendor’s Right to Access and Use, may be effected without prior notice, and Vendor agrees that Fexa will not be liable to Vendor or any third party for any such termination. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that Fexa may have at law or in equity.

(c) Effects of Termination. Upon the termination of these Terms and the Right to Access and Use, Vendor shall immediately discontinue use of  FexaLink and the Fexa Content and Vendor shall delete, destroy, or return all copies of the Fexa Content in Vendor’s control.

(d) Survival. Section 3 (Fexa Disclaimers), Section 4 (Fees), Section 5 (Ownership), Section 6 (Trademarks), Section 7(c) (Effects of Termination), Section 8(b) (Warranty Disclaimers), Section 9 (Indemnification), Section 10 (Limitations of Liability), Section 11 (Miscellaneous) and this Section 7(d) (Survival) shall survive the termination of these Terms for any reason. The termination of these Terms shall not effect any rights, remedies or liabilities that accrued prior to the effective date of termination.

(a) Mutual Representations and Warranties. Each party represents and warrants that: (i) it has the legal power to enter into these Terms; (ii) it has the authority to bind the applicable organization; and (iii) when executed and delivered, these Terms will constitute the legal, valid, and binding obligation of such party, enforceable in accordance with its terms, subject to bankruptcy, insolvency, moratorium, reorganization, or similar laws affecting the rights of creditors generally and the availability of equitable remedies.

(b) WARRANTY DISCLAIMERS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FEXALINK AND THE FEXALINK CONTENT ARE PROVIDED “AS IS” AND FEXA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO FEXALINK AND THE FEXALINK CONTENT, WHETHER EXPRESS, IMPLIED, ARISING BY LAW, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, FEXA DOES NOT WARRANT (I) THAT FEXALINK OR THE FEXALINK CONTENT WILL BE FREE FROM ANY INTERRUPTIONS, DELAYS, INACCURACIES, SERVER DOWN-TIME, ERRORS, OR OMISSIONS, (II) THE PERFORMANCE OR RESULTS VENDOR MAY OBTAIN BY USING FEXALINK OR THE FEXALINK CONTENT, OR (III) THAT FEXALINK WILL MEET VENDOR’S OR ANY OTHER PARTY’S REQUIREMENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF FEXALINK OR THE FEXALINK CONTENT, NOT CONTAINED UNDER THESE TERMS SHALL BE DEEMED TO BE A WARRANTY, CONDITION, REPRESENTATION, OR GUARANTY BY FEXA.

Vendor shall indemnify, defend and hold harmless Fexa and its directors, officers and employees from and against any and all claims, actions, liabilities, losses, expenses, damages and costs, including, but not limited to, reasonable attorneys’ fees, brought by or resulting from claims by third parties (each, a “Claim”) that are based on or arising out of any (a) actual or alleged negligence or willful misconduct of, or breach of these Terms by, Vendor or any of its employees, representatives or Authorized Users, (b) actual or alleged violation of any applicable law by Vendor or any of its employees, representatives or Authorized Users, (c) actual or alleged use of FexaLink or the Fexa Content in violation of these Terms and (d) any claim brought by an Operator related to, or in connection with, the Services provided by Vendor, except to extent than any such Claim arises from Fexa’s gross negligence or willful misconduct.

(a) TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY UNDER THESE TERMS OR ELSEWHERE: (I) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FEXA OR FEXA’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND AFFILIATES (COLLECTIVELY, “FEXA PARTIES”) EXCEED THE GREATER OF $50 AND THE AMOUNTS ACTUALLY PAID BY VENDOR UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY; (II) IN NO EVENT SHALL ANY FEXA PARTY BE LIABLE TO VENDOR OR VENDOR’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND AFFILIATES (COLLECTIVELY, “VENDOR PARTIES”) OR ANY THIRD PARTY FOR, AND VENDOR AND EACH VENDOR PARTY HEREBY WAIVE ANY CLAIM AGAINST ANY FEXA PARTY FOR, ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, LOSS OF DATA, OR LOST PROFITS DAMAGES OF ANY KIND (INCLUDING ANY LOST REVENUE, PROFITS, SAVINGS, BUSINESS OPPORTUNITIES, USE, OR GOODWILL) HOWEVER ARISING, REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE AND WHETHER FEXA HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

(b) THE LIMITATIONS OF LIABILITY ABOVE SHALL APPLY: (I) TO ALL CLAIMS IN THE AGGREGATE ARISING UNDER OR RELATING TO THESE TERMS OR THE SUBJECT MATTER OF THESE TERMS; (II) REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UNDER WHICH THE CLAIM ARISES, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, STRICT LIABILITY, OR OTHERWISE; (III) REGARDLESS OF WHETHER FEXA HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; AND (IV) REGARDLESS OF WHETHER THE REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY IS AN AGGREGATE LIMIT AND WILL NOT BE INCREASED BY THE EXISTANCE OF MORE THAN ONE CLAIM.

(c) THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED UNDER THESE TERMS ARE FUNDAMENTAL PARTS OF THE BASIS OF FEXA’S BARGAIN HEREUNDER, AND VENDOR ACKNOWLEDGES THAT SUCH PROVISIONS REPRESENT A REASONABLE ALLOCATION OF RISK. Since some states do not allow certain limitations or exclusions of warranties or liability, some or all of the limitations and exclusions set forth in this Section may be held unenforceable as applied to Vendor. In such cases, Fexa’s liability shall be limited to the greatest extent permitted under applicable law.

(a) Entire Agreement. These Terms and the Privacy Policy, together with any other documents incorporated herein by reference and all related Exhibits, constitute the sole and entire agreement of the parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties as follows (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section):

If to Fexa:
Zamo Technologies, LLC, d/b/a Fexa
111 Town Square Pl Ste 1238 PMB 56716,
Jersey City, NJ, 07310-1755 US
Att: LEGAL NOTICE

If to Vendor:
To the address provided by Administrator during registration.