ANONYBIT TERMS OF SERVICE

Anonybit, Inc. (“Company”) provides a proprietary decentralized biometrics authentication and storage software and services (the “Services”, as further defined below).

These Terms of Service (the “Terms”), together with the Order Form (as defined below) govern your access and use of the Services (as defined below).

“You,” “Your” or “Customer” means the entity which has entered into the Order Form and which is granted access and use of the Services.

Each applicable Order Form specifies the Services You are subscribing to and the applicable fees for the Services. The Order Form, together with these Terms (collectively, the “Agreement”) constitute the complete agreement between Company and customer (each a “Party” and collectively, the “Parties”) and supersede any prior discussions or representations regarding Your order or use of the Services. Any additional terms and/or conditions which You add or incorporate into any purchase orders, statements of work, order forms, or any other document are excluded and shall be null and void.

BY EXECUTING OR CONFIRMING AN ORDER FORM TO WHICH THESE TERMS HAVE BEEN INCORPORATED, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THE AGREEMENT AND AGREE TO BE BOUND BY IT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THE AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU HEREBY CONFIRM THAT YOU ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERMS “YOU” AND “YOUR” AND “CUSTOMER” WILL REFER TO SUCH ENTITY.

1. Definitions. As used in this Agreement, the following terms shall be defined as follows:

• “Affiliate” means any natural person or entity that directly or indirectly, controls or is controlled by or is under common control with a Party.
• “APIs” mean the application programming interfaces that enable the integration of the Authentication Solution with Customer’s systems.
• “Applicable Law” means any constitution, law, statute, treaty, rule, regulation, directive, ordinance, order, code, interpretation, judgment, decree, injunction, permit, license, authorization, requirement or decision of or agreement with or by any legislative, judicial, administrative, or other governmental authority.
• “Authentication Solution” means Company’s biometric authentication solution, which may include liveness detection, biometric matching, decentralized biometric storage and/or integration into orchestration applications.
• “Authorized Contractors” means contractors of Customer (i) who are acting on Customer’s behalf in the internal operation of Customer’s business, (ii) who are subject to confidentiality agreements with Customer at least as protective of Company’s Confidential Information as this Agreement, (iii) who are bound by the terms and conditions of this Agreement, and (iv) for whose acts, omissions and compliance with all applicable terms and conditions of this Agreement Customer is responsible and jointly and severally liable with such contractors.
• “Authorized Users” mean Customer’s employees or Authorized Contractors.
• “Biometric Data” means biometric data, identifiers, and information, as defined under Applicable Law, including technical or algorithmically-generated data regarding a natural person’s physical, physiological, or behavioral characteristics that allow a natural person’s identification, including hand or face geometry, retinal or iris scans, fingerprints, voiceprints, or other biometric identifiers or biometric information about a natural person.
• “Customer Data” means any confidential information and Personal Data provided by Customer or any Authorized User to Company or which may be generated or Processed in connection with Customer and any Authorized User’s use of the Services.
• “Data Processing Addendum” means Company’s data processing addendum as set forth at https://anonybit.io/data-processing-agreement.
• “Digital Assets Vault” means Company’s decentralized storage product which utilizes Company’s Authentication Solution.
• “Documentation” means the standard written and published materials regarding operation of the Software, as may be updated from time-to-time.
• “Effective Date” means the effective date set forth in the applicable Order Form.
• “End Users” mean Customer’s customers or clients who use Customer’s products and services that utilize or are integrated with Company’s Services.
• “Feedback” means any suggestion, enhancement, request, recommendation, correction, or other feedback provided by Customer or its Authorized Users relating to the use of the Services.
• “Intellectual Property Rights” means any patent, patent applications, trade secret, trademark, copyright, industrial design, or any other intellectual property right registered or unregistered in any country throughout the world, and all related goodwill.
• “Order Form” means the order form entered into between Company and Customer into which these Terms are incorporated as an attachment or through a link.
• “Personal Data” has the meaning set forth in the Data Processing Addendum.
• “Professional Services” means the implementation, training, and consulting services, as may be performed by Company pursuant to an applicable Order Form or a statement of work.
• “SDK” means Company’s software development kit.
• “Services” means, as applicable the Professional Services or Subscription Services.
• “Software” means the Company software products, in object code form only, offered by Company as a software as a service on a subscription basis.
• “Subscription Services” means the products and services offered by Company, including the Digital Assets Vault, the Authentication Solution, subscribed to by Customer in accordance with the Order Form and accessed and used through the Software, SDK, and APIs.
• “Term” means the period identified in any Order Form for which Company has committed to provide, and Customer has committed to pay for, the Services.
• “Third-Party Services” mean products or services that are provided by a party other than Company which are integrated into or are provided as part of the Subscription Services.
• “Third-Party Terms” mean the terms and agreement, including service level agreements, provided by Third-Party Services providers.

The words “including” or “includes” shall not be limiting and shall be deemed to state “without limitation”.  Conjugates of defined terms shall have the meanings assigned to the defined terms. Any capitalized terms used herein but not otherwise defined shall have the meanings provided under Applicable Law.

2. Subscription to Services.

• Customer shall have the option to purchase a subscription to access and use Company’s Services under this Agreement by entering into one or more Order Forms with Company (the “Subscription”). Under the Subscription, in consideration of the payment of all applicable Fees, and subject to the terms, conditions, and limitations of the Agreement and Customer’s compliance with the Agreement, Company hereby grants Customer, during the Term, a non-exclusive, non-transferable, non-sublicensable, revocable, non-assignable (except as otherwise provided in this Agreement’s assignment clause) limited right for Customer to (a) access and use the Subscription Services; (b) use the API, SDK, and Software to enable and facilitate the use of the Services and to enable any permitted integration and interoperability between the Services and Customer’s systems; and (c) use the Documentation solely in connection with the use of the Services.
• If selected in an applicable Order Form, the Subscription shall include the following:
  • Company’s Authentication Solution, consisting of the following: (i) a liveness detection tool; (ii) decentralized storage; (iii) decentralized matching; and (iv) orchestration responses provided through an API).
  • Digital Assets Vault, consisting of the following: (i) decentralized data storage facility and (ii) Company’s Authentication Solution.
• Customer acknowledges and agrees that the Subscription may include Third-Party Services. Customer agrees that its use of Third-Party Services, and Company’s liability with respect to Third-Party Services, are each subject to the Third-Party Terms of the Third-Party Services. Customer acknowledges that Company may be required to accept the Third-Party Terms directly with the provider of the Third-Party Services prior to using the Services. To the extent Company accepts any such Third-Party Terms as part of setting up any such services; Customer authorizes Company to act as Customer’s limited agent for this purpose, and further agrees that Company is in no event a party to any such Third-Party Terms.

3. Evaluation Service. Company may grant Customer access to the certain Services on a trial basis (the “Evaluation Service”). Customer may only use the Evaluation Service for Customer’s internal evaluation purposes for a period of thirty (30) days, unless otherwise stated in an Order Form (the “Evaluation Period”). Notwithstanding any other provision of this Agreement, Customer understands and acknowledges that Company is providing Customer with access to the Evaluation Service (i) on an “AS IS” basis; (ii) with no maintenance or support; and (iii) on a quitclaim basis, with no indemnification obligation by, or liability of, Company. Company disclaims all warranties and makes no representations in connection with Customer’s access and use of the Evaluation Service. Company may restrict and limit Customer’s access to the Evaluation Service and may block some features that may be provided as part of the Services. At the end of the Evaluation Period, Customer’s access to the Evaluation Service will be terminated unless: (i) Customer’s Order Form included an auto-renewal clause which converts Customer’s Evaluation Service to a full Subscription, in accordance with Section 2; or (ii) Customer executes a new Order Form.

4. Professional Services. Company may provide Customer Professional Services pursuant to a mutually agreed upon statement of work or as part of an Order Form. The Professional Services provided by Company do not constitute work-made-for-hire. Company shall retain all Intellectual Property Rights in and to the work product created by Company in the course of providing Professional Services to Customer.

5. Additional Purchases. If Customer elects to purchase additional Services, Professional Services, or any other products or services as may be agreed upon from time to time by the Parties, the Parties will execute an additional Order Form or amend the existing Order Form.

6. Customer Feedback. Customer hereby grants to Company an irrevocable, non-exclusive, perpetual, royalty-free, transferrable license, with right to sublicense, to use and incorporate into its products and services any Feedback and to disclose, reproduce, distribute, and otherwise exploit the Feedback without attribution to Customer. Feedback, even if designated as confidential, shall not create any confidentiality obligation hereunder.

7. Scope of Rights; Restrictions on Use.

• Scope. This Agreement confers no title or ownership and is not a sale of any rights in the Services or any of Company’s Software, SDK, or APIs. All rights not expressly granted to Customer are reserved solely to Company and/or its licensors. Nothing herein shall be construed as granting Customer, by implication, estoppel or otherwise, a license relating to the Services other than as expressly stated in this Agreement.
• Restrictions. Customer may only use the Services within Customer’s organization and for internal purposes or as an integrated part of Customer’s products offered to its End Users, to the extent permitted in an applicable Order Form, and only Authorized Users and End Users may be granted access to the Services. Customer shall not (i) reverse engineer, disassemble, decompile or attempt to derive the architecture or design, or any source code contained in the Software, SDK, or APIs, (ii) modify the Services, (iii) otherwise translate or use the Services except as specifically allowed by this Agreement, or allow any person or entity (whether with or without consideration) the right to do any of the foregoing; (iv) sublicense, transfer and/or assign (except as otherwise expressly provided herein) the Services to any third party, whether with or without consideration; (v) render any services to third parties using the Services, except as otherwise permitted in an applicable Order Form with respect to End Users; (vi) remove or in any manner alter any product identification, proprietary, trademark, copyright or other notices contained in the Services; (vii) allow any third parties to use the Services (except as otherwise expressly provided herein); (viii) use the Services in any manner to create a product or service competitive with the Services or Software; or (ix) interfere with, burden or disrupt the Services’ functionality. Customer may not make any copies of the Software or Services or any portions thereof.
• CUSTOMER MAY NOT USE THE SERVICES FOR, OR IN CONJUNCTION WITH, ANY ACTIVITY THAT CONSTITUTES, OR ENCOURAGES CONDUCT THAT WOULD CONSTITUTE, A CRIMINAL OFFENSE, GIVE RISE TO CIVIL LIABILITY OR OTHERWISE VIOLATE ANY APPLICABLE LAW IN THE JURISDICTIONS WHERE CUSTOMER ENGAGES IN ACTIVITY OR BUSINESS. COMPANY MAY EMPLOY TECHNOLOGICAL MEASURES TO DETECT AND PREVENT FRAUDULENT OR ABUSIVE USE OF THE SERVICES. COMPANY MAY TERMINATE THE AGREEMENT WITHOUT PRIOR NOTICE AND AT ITS SOLE DISCRETION, IF COMPANY DEEMS CUSTOMER’S USE OF THE SERVICES TO BE ILLEGAL, FRAUDULENT OR ABUSIVE.
• Affiliates. Subject to prior written approval by Company in each instance, the rights granted to Customer hereunder may be exercised by approved Customer Affiliates, provided that Customer shall remain responsible at all times for such Affiliates’ compliance with all applicable terms and conditions of this Agreement and shall be jointly and severally liable for any breach of this Agreement by such Affiliate.

8. Proprietary Rights and Confidentiality.

• Services, Professional Services, and Derivative Works. Company (or its licensors, as applicable) will retain all title to and ownership of the Services, Professional Services, and all related concepts, technical know-how, and all modifications, customizations, revisions, bug fixes, enhancements, improvements and derivative works, but excluding any Customer Data provided by Customer (collectively, the “Derivative Works”) thereof developed by Company or anyone else, including Customer, including all Intellectual Property Rights and, except for the expressed limited license granted hereunder, Customer shall have no rights in or claims with respect thereto. Customer shall retain all Intellectual Property Rights in its Customer Data. To the extent it shall be determined that Customer has any right in connection with the Services, Professional Services, or Derivative Works other than the limited specific license hereunder, Customer hereby irrevocably: (i) assigns to Company any right, title and interest, whether now existing or later arising, and all Intellectual Property Rights that Customer may have in or to the Services, Professional Services, Derivative Works, and/or related Intellectual Property Rights; and (ii) agrees to take any lawful action that Company reasonably requests to vest or protect Company’s right, title and interest therein.

• Confidential Information.
  • General. Each Party agrees that all inventions, know-how, engineering, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Notwithstanding the foregoing marking requirements, the Services, training materials, technical information and other code or data of any type provided by Company, the pricing offered by Company to Customer, and this Agreement’s terms and conditions are Company Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.
  • Exclusions. The Receiving Party’s nondisclosure obligation will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees or contractors of the Receiving Party who had no access to such information.
  • Use and Disclosure Restrictions. Neither Party will use the other Party’s Confidential Information except as necessary for the performance of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and contractors that need to know such Confidential Information for the purpose of performing this Agreement, provided that each such employee and contractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of all such Confidential Information in its possession or control, but, in no event, less than the efforts that such Party ordinarily uses with respect to its own proprietary information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing Confidential Information of the other Party: (i) pursuant to the order or requirement of a court, administrative agency or tribunal or other governmental body, provided that the Party required to make such a disclosure gives reasonable written notice to the other Party to contest such order or requirement, unless it is not legally prevented to provide such notice to the other Party; and (ii) on a confidential basis to its legal or financial advisors. In addition, each Party may disclose the terms and conditions of this Agreement as required under applicable securities laws, but such Party will use all reasonable efforts to obtain confidential treatment to the maximum extent possible for the terms and conditions of this Agreement.

• Customer Data. Customer hereby grants Company a non-exclusive license to perform operations (or sets of operations, including to collect, generate, use, store, transmit, analyze, record, adapt, combine, organize, delete, display and otherwise process (“Process“) in connection with the Services and in reports generated for Customer all Customer Data during the Term for the limited purposes of performing Company’s obligations under this Agreement and providing the Services to Customer. Prior to providing any Customer Data to Company, Customer shall, at its own expense, obtain all licenses, consents or other permissions from appropriate third parties as may be necessary for Customer’s use of the relevant Customer Data as necessary to enable Customer to grant the rights granted by this Section 8.3. The Parties acknowledge and agree that Company will not provide any Biometric Data to Customer. Customer shall post, record and maintain verifiable End-User consents to, and comply with the Biometric Data collection notice substantially in the form attached hereto as Attachment B or a mutually-agreed replacement thereto (the “Biometric Notice“), and shall ensure that such Biometric Notice complies with all Applicable Law. Customer shall (i) implement policies and procedures to comply with the Biometric Notice and Applicable Law and (ii) during the Term and thereafter provide to Company copies of all End-User consents upon request. To the extent permitted by Applicable Law, Company may aggregate or otherwise de-identify Customer Data provided through the Services (“De-Identified Data”), and may use the De-Identified Data for Company’s business purposes, including enhancements to the Software and Services, to market and sell the Software and Services, and to analyze, improve, support and operate the Software and Services, provided that Company shall not identify Customer or any Customer Data as part of the De-Identified Data. Each Party shall adhere to the Data Processing Addendum.

9. Fees and Payments.

• Fees. By entering into this Agreement, Customer hereby agrees to pay the fees specified in the Order Form (the “Fees”) in accordance with the payment terms set forth herein. Company will invoice Customer upon execution of this Agreement unless otherwise provided in an applicable Order Form.
• Taxes. All Fees due and other charges stated herein are exclusive of and do not include any sales, use, value-added, or other taxes, charges and/or duties, which shall be Customer’s responsibility. Taxes based on Company’s net income or gross receipts shall be Company’s responsibility.
• Payment Terms. Unless otherwise specified in an Order Form, all invoices shall be due and payable within thirty (30) days of the invoice date. Payments received by Company under this Agreement after their due date will incur late charges at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by Applicable Law, whichever is lower, and such amounts will be billed to Customer by Company. Company shall have the right to recover expenses, including reasonable attorneys’ fees, in any action to collect Fees due under this Agreement.

10. Limited Warranty, Limitation of Liability and Indemnification.

• Limited Warranty. Company warrants to Customer during the Term that (i) Company (or its licensors) has all the necessary rights thereto to grant Customer the Subscription to the Services as contemplated hereunder and (ii) the Services shall materially conform to the applicable Documentation during the Term.
• Limitations on Limited Warranty. THE FOREGOING LIMITED WARRANTY SHALL NOT APPLY TO THE EXTENT THE BREACH OF WARRANTY ARISES FROM: (I) USE OF THE SERVICES OTHER THAN AS SPECIFIED IN THE APPLICABLE DOCUMENTATION; (II) ANY ALTERATIONS, MODIFICATIONS OR ADAPTATIONS OF THE SERVICES PERFORMED BY ANYONE OTHER THAN COMPANY OR UPON COMPANY’S WRITTEN AUTHORIZATION; OR (III) ANY UNAUTHORIZED COMBINATION OR INTERFACING OF THE SERVICES WITH OTHER HARDWARE OR SOFTWARE. Customer’s sole and exclusive remedy for breach of the warranties set forth in Section 10.1 shall be that Company, at Company’s sole discretion, will either: (i) repair, replace or provide a reasonable workaround for the defective and/or non-conforming portion of the Services within thirty (30) days after receiving written notice of the breach of the warranty that describes in detail the specific nature of the defect and/or non-conformity: or (ii) refund all amounts paid by Customer for such Services (after deducting amounts paid for actual use of the Services by Customer). To claim the benefit of this warranty, Customer must give Company written notice of any breach of the warranty (as aforesaid) within thirty (30) days of the occurrence of the alleged breach.
• Professional Services Warranty. All employees of Company performing Professional Services hereunder will have reasonable skill and training to perform Company’s obligations in a good and workmanlike manner consistent with professional standards in Company’s industry. Customer’s sole and exclusive remedy for any breach of the foregoing Professional Services warranty shall be, at Company’s option, re-performance of the non-conforming Professional Services one time, or a refund of all prepaid Fees paid by Customer for the applicable non-conforming Professional Services. Company’s warranty obligations under this Section 10.3 are conditioned upon Customer providing Company with a detailed written notice of any claimed breach of the warranty within thirty (30) days of occurrence of the alleged breach.
• Customer Representations and Warranties. Customer represents and warrants that its, and its Authorized Users’ and End Users’, use of the Services, and access to and collection, use, relocation, storage, disclosure, transfer, and disposition of Customer Data shall comply with all Applicable Laws, including all privacy, data protection and biometric data laws.
• Mutual Representations and Warranties. Each Party represents and warrants to the other that: (i) it is duly organized, validly existing and in good standing under the applicable laws of the state of its incorporation or formation; and (ii) it has the right and full power and authority to enter into this Agreement.
• Disclaimer. EXCEPT AS OTHERWISE EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, PROFESSIONAL SERVICES, AND ANY OTHER COMPANY PRODUCTS OR SERVICES PROVIDED BY COMPANY ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND COMPANY, ITS AFFILIATES, AND ITS LICENSORS AND SUPPLIERS DISCLAIM ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND/OR DATA ACCURACY. COMPANY DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED BY COMPANY WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
• Limitation of Liability. IN NO EVENT SHALL COMPANY OR ITS AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, AND REGARDLESS OF WHETHER COMPANY OR ITS AFFILIATES WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL COMPANY AND ITS AFFILIATES’ AGGREGATE AND CUMULATIVE LIABILITY UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES, INCLUDING FOR ANY AND ALL LOSSES OR INJURIES ARISING OUT OF ANYTHING TO BE DONE OR FURNISHED UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY, AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO A CLAIM.

COMPANY SHALL HAVE NO LIABILITY FOR THE CUSTOMER DATA INPUT, OUTPUT, ACCURACY, AND SUITABILITY, WHICH SHALL BE DEEMED UNDER CUSTOMER OR CUSTOMER’S CUSTOMERS’ EXCLUSIVE CONTROL.

• Indemnification by Company. Company agrees to defend, at its expense, Customer and its directors, officers and employees (collectively, the “Customer Indemnified Party”) from and against any third-party claims alleging that the Customer Indemnified Party’s use of the Services in strict accordance with this Agreement infringes and/or misappropriates any (i) issued U.S. patent; (ii) registered U.S. trademark; (iii) registered U.S. copyrights; or (iv) trade secrets. In connection with the foregoing defense, Company shall indemnify the Customer Indemnified Party against all damages finally awarded against Customer in a final judgment or settlement of any of the foregoing claims that are specifically attributable to such suit or action. The Customer Indemnified Party shall give Company prompt written notice of any such third party claim; provided however, that the Customer Indemnified Party’s failure to do so shall not reduce or diminish Company’s obligations hereunder except to the extent Company has been adversely affected or prejudiced by such failure. Company shall have no obligation under this Section 10.8 as to any claim, unless Company will have sole control of its defense or settlement of any third party claim hereunder, provided however, that Company shall not, without the Customer Indemnified Party’s prior written consent, settle any claim in a manner that admits liability on the part of the Customer Indemnified Party. The Customer Indemnified Party shall reasonably cooperate with Company in the defense as Company may reasonably request (it being understood that nothing herein shall preclude the Customer Indemnified Party from consulting with its own counsel at its own expense). If Customer is, or Company believes it may become, prohibited from continued use of the Services by reason of an actual or anticipated claim of infringement involving the Company’s Software, Company shall, at its option and expense, (i) obtain for Customer the right to continue using the Software, (ii) replace or modify the Software so that it is no longer subject to such claim, but performs the same functions in an equivalent manner, and (iii) if neither of the foregoing options are commercially practicable, terminate this Agreement and/or the Order Form and refund to Customer a prorated portion of any pre-paid Fees paid by Customer as of the date of termination for the Services subject to the claim, in which case Customer will cease use of the Services and return or provide to Company all materials related to the Services subject to such claim. The indemnification set forth in this Section 10.8 does not apply to the extent of Customer’s negligence, abuse or misapplication of the Services; use of the Services other than as specified in the applicable Documentation; any alterations, modifications or adaptations of the Services performed by anyone other than Company; any unauthorized combination or interfacing of the Services with other hardware or software; or other causes beyond the reasonable control of Company.

THIS SECTION 10.8 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR INFRINGEMENT OR CLAIMS ALLEGING INFRINGEMENT.

• Indemnification by Customer. Customer shall indemnify, defend and hold harmless Company, and its directors, officers, employees, independent contractors, and/or Affiliates (the “Company Indemnified Party”) from and against any and all costs, liabilities, losses and expenses, including reasonable attorneys’ fees resulting from or arising out of any claim, suit, action, arbitration or proceeding brought by a third party against a Company Indemnified Party relating to: (a) a breach or alleged breach by Customer of any of its representations, warranties, covenants or obligations hereunder; (b) infringement or misappropriation, or allegation of the foregoing, of any Intellectual Property Rights by Customer; (c) any negligence or willful misconduct of Customer or its representatives; (d) any claim or allegation related to Customer’s performance under this Agreement; (e) Customer’s use of or access to the Services, except to the extent of Company’s breach of its obligations under this Agreement; (f) an allegation that Customer failed to obtain all necessary consents or rights to Process, and for Company or the applicable third parties to Process, the Customer Data as provided in this Agreement; (g) an allegation that Customer failed to retain or protect Customer Data which was under Customer’s or Customer’s contractors’ control; (h) an allegation that Customer failed to address an individual’s rights with respect to Customer Data; (iv) any dispute between Customer and any customer of Customer.
• Indemnification Procedures. The Party seeking indemnity (“Indemnified Party”) shall notify the other Party (“Indemnifying Party”) promptly in writing of any claim for indemnification hereunder. At Indemnifying Party’s cost and expense, Indemnifying Party shall promptly take control of the defense of such claim, and shall defend such claim, including the control of the defense and all related settlement negotiations; provided that Indemnified Party shall be fully released in connection with any final settlement and shall be entitled to approve the final settlement. Indemnified Party shall provide Indemnifying Party with reasonably requested assistance, information and authority to perform the above. If Indemnifying Party does not assume control of the defense of the claim for which indemnity is being sought, Indemnified Party may defend such claim in such manner, as it deems appropriate at the cost and expense of Indemnifying Party.

11. Term and Termination.

• Agreement Term. The term of this Agreement shall begin on the Effective Date and continue until terminated as provided in this Section 11.
• Term. Each Order Form will terminate at the end of the Term identified therein, unless earlier terminated as provided in this Section 11. The Term shall be automatically renewed for additional periods of the same duration as the initial Term, unless either party provides a notice of non-renewal at least forty-five (45) days prior to the end of the then-current term. For any renewal Term, Company reserves the right to increase the Fees for Services.
• Termination for Cause. Either Party may terminate this Agreement if the other Party materially breaches or otherwise fails to comply with any provision of this Agreement and such breach or failure is not cured within thirty (30) days after written notice of such breach or failure or immediately if such breach or failure is not capable of being cured.
• Effect of Termination. If an Order Form is still in effect at the time of expiration of this Agreement, then the terms and conditions contained in this Agreement and the relevant Order Form (including all subscriptions and licenses granted by Company thereunder) shall continue to govern the outstanding Order Form until the end of the Term for that Order Form. However, if the Agreement is terminated prior to its natural expiration, then all outstanding Order Forms (and all subscriptions and licenses granted by Company thereunder) shall immediately terminate as of the Agreement termination date, unless otherwise agreed by the Parties in writing. Customer shall immediately return to Company any materials provided to Customer as part of the Services in Customer’s possession. Within thirty (30) days following the termination of this Agreement for any reason, each Party shall return or destroy, as requested by the other Party in writing, any Confidential Information of the other Party; provided, however, that each Party may retain copies of such Confidential Information for legal and compliance purpose. Each Party agrees to certify, in writing, to the other compliance with the foregoing undertakings upon a Party’s request. Termination shall be without prejudice to the rights and remedies of either Party that may have accrued prior to such termination. For the avoidance of doubt, Customer shall not be entitled to a refund of any prepaid Fees upon termination or expiration of this Agreement, and termination or expiration of this Agreement does not release Customer from its obligations to pay Company all Fees that have accrued under this Agreement prior to its termination.
• Survival. Any provision of this Agreement that expressly, by implication or necessity, contemplates performance or observance subsequent to the termination or expiration of this Agreement will survive termination or expiration of the Agreement and will continue in full force and effect, including any outstanding payment obligations.

12. Force Majeure. Except for the obligation to pay monies due and owing, neither Party shall be liable to the other Party for any delay or failure in the performance of its obligations under this Agreement or the addendums while in effect or otherwise if such delay or failure arises from any cause or causes beyond the control of such Party including labor shortages or disputes, strikes, other labor or industrial disturbances, delays in transportation, acts of God, floods, lightning, fire, epidemics, pandemics, or public health emergencies, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, acts of civil or military authorities, sabotage, explosives, riots, insurrections, embargoes, blockades, actions, restrictions, regulations or orders of any government, agency or subdivision thereof, or failure of suppliers.

13. Miscellaneous.

• This Agreement and any claim, cause of action or dispute arising out of, or related thereto, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of law principles, which would result in the application of the laws of a jurisdiction other than the State of New York. Any dispute, claim or controversy arising out of, connected with, or relating to this Agreement, the Services, or any use related thereto, will be submitted to the sole and exclusive jurisdiction of the competent court located in New York County, State of New York. THE PARTIES HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY AND CONSENT TO A BENCH TRIAL WITH THE APPROPRIATE JUDGE ACTING AS THE FINDER OF FACT. THE PARTIES HEREBY ACKNOWLEDGE, AGREE AND COVENANT THAT ANY DISPUTE SHALL ONLY BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND NOT IN CLASS, COLLECTIVE, CONSOLIDATED OR REPRESENTATIVE PROCEEDINGS.
• Subject to the confidentiality obligations under this Agreement and upon notification to Customer, Company may, at its own cost and expense, make reference to this Agreement (including mentioning or implying the name of Customer or any of its Affiliates) and display the Customer’s logos and trademarks in Company’s website and promotional or advertising literature, without the consent of Customer. Except as expressly provided herein, Company shall not obtain any rights with respect to the Customer’s logos and/or trademarks.
• Neither Party may assign this Agreement, in whole or in part without the express written consent of the other Party, with the exception of an assignment carried out by Company as part of a merger, restructuring, or reorganization, or as a sale or transfer of all or substantially all of Company’s assets or equity. Any assignment in violation of the foregoing shall be null and void. This Agreement inures to the benefit of, and is binding upon, the Parties and their respective heirs, legal representatives, permitted successors and permitted assigns.
• Except as otherwise expressly provided in this Agreement, all notices or demands required or permitted pursuant to this Agreement shall be in writing, and shall be sent (i) by courier or in person with signed receipt, (ii) by nationally recognized overnight delivery service, prepaid, with signature required, or (iii) by email with receipt confirmation, and in each case shall be sent to the other Party at the address set forth in an applicable Order Form or to such other addresses as either Party may designate from time to time by notice to the other Party in accordance with this Section 13.4.
• Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right or prevent a subsequent exercise of the same or any other right under this Agreement.
• If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, then it is the intent of the Parties that such court apply a rule of reasonableness and modify the provision in question so it will remain in effect to the greatest extent permitted by law. In the event a court finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
• No modification, amendment, addition to or waiver of any rights, obligations, or defaults shall be effective unless in writing and signed by both Parties hereto.
• This Agreement is the complete and exclusive agreement between the Parties hereto in connection with the subject matter hereof and supersedes any other proposal, representation, or other communication by or on behalf of either Party. No provision of any purchase order or any other form employed by either Party will supersede, contradict, vary or modify the terms and conditions of this Agreement, and any such document issued by a Party hereto relating to this Agreement will be for administrative purposes only and have no legal effect. In the event of possible conflict or inconsistency between documents, the conflict or inconsistency shall be resolved by giving precedence in the following order (in each case, as may be amended): (1) the Data Processing Addendum; (2) these Terms; and (3) the terms of any Order Form into which these Terms are incorporated.
• The Parties acknowledge that money damages may not be an adequate remedy in the event of actual or threatened breach of the obligations and/or undertakings hereunder. Therefore, in addition to any other remedies available hereunder, by law or otherwise, either Party will be entitled to seek and obtain injunctive relief and/or any other appropriate decree of specific performance or any other appropriate equitable relief.
• The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby. Neither Party will have the power to bind the other or incur obligations on the other’s behalf without the other Party’s prior written consent.
• This Agreement, any related Order Form, or any amendments thereto, may be executed by acceptance online or in one or more counterparts each of which will be deemed an original, but all of which together will constitute one and the same instrument. The Parties may transmit their signatures via facsimile, scanned PDF, e-signature, or other electronic means with the same effect as if the Parties had provided each other with original signatures.