(d) “Documentation” means any user manuals, handbooks, and guides relating to the Services, as provided by Provider to Customer, including electronically

(e) “Earned Fees” shall mean, collectively, all affiliate fees, commissions, revenue share, royalties, earnings, credits or other compensation of any kind, in each case, actually received in cash by Provider (without duplication) from sponsors, partners, brands, affiliates, providers or any other third party (collectively, the “Sponsors”) as a result of any purchase by any Registered User in the marketplace provided through or operated on the Platform or in the rewards program operated thereon, whether one-time or recurring in nature, in each case, solely during the period during which such Registered User is registered for Piñata Pro (as determined by Provider) (such period, the “Piñata Pro Registration Period”); provided, however, that the following shall be deducted from the calculation of Earned Fees, without duplication: (x) with respect to commercially reasonable amounts paid within any specified period by Provider and not attributable to individual Registered Users, prorated portions of such amounts (based on the numbers of Registered Users and the numbers of all Platform users at the end of such period) (A) for acquisitions to support product offerings in connection with the Platform, and (B) to any technology provider or technology partner in connection with support for the rewards and/or the marketplace provided through the Platform, and (y) to the extent not covered by clause (x), in the event that any given Earned Fee relates to or is generated from the sale by Provider of any goods or services for which Provider had paid or incurred an actual, bona fide cost of acquisition, the apportioned amount of such cost.

(f) “Order Form” means each Services Order Form entered into by Provider and Customer.

(g) “Platform” means the rent rewards platform provided by Provider from time to time.

(h) “Provider IP” means the Platform, the Services, the Documentation, any patent, copyright or trademark of Provider, and any and all other intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.(i) “Registered User” means an Authorized User that registers to access the Platform through or as a result of one or more means provided by Customer, as determined by Provider.

(j) “Revenue Share Amount” means, with respect to any time period, the aggregate Earned Fees for such period, multiplied by 25%.

(k) “Revenue Share Report” shall mean, with respect to any calendar quarter, a written report that sets forth all Earned Fees for such quarter, as well as a calculation of the Revenue Share Amount relating to each Earned Fee and the aggregate Revenue Share Amount for such quarter.

(l) “Third-Party Products” means any third-party products provided with or incorporated into the Services.

2. Access and Use.

(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other/the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13(g)) right to access and use the Services and the Documentation during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein; provided that the Documentation may be used only in connection with proper use of the Services). Such use, if by Customer’s employees or consultants, is limited to Customer’s internal use. The total number of Authorized Users, and the number of Units for which the Services may be used, will not exceed the number, if any, set forth on the applicable Order Form. 

(b) Reservation of Rights. Provider 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 Provider IP.

(c) Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP 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; or (E) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’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”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider 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.

(d) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

(e) Protection of Data.   Provider will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of electronic data and information submitted by or for Customer and Authorized Users to the Services or collected and processed by or for Customer using the Services, excluding Third-Party Products.  Those safeguards will include measures for preventing access, use, modification or disclosure of such data and information by Provider’s personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law or (c) as Customer expressly permits in writing.

3. Customer Responsibilities

(a) General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer or otherwise obtained by Authorized Users, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

(b) Third-Party Products. Provider may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.   Further, the Services may contain features designed to interoperate with Third-Party Products.  To use such features, Customer may be required to obtain access to Third-Party Products from their providers, and may be required to grant Provider access to Customer’s account(s) on the Third-Party Products.  If the provider of a Third Party Material ceases to make the Third-Party Product available for interoperation with the corresponding Service features on reasonable terms, Provider may cease providing those Service features without entitling Customer to any refund, credit, or other compensation.

(c) Additional Customer Responsibilities. Customer will (a) use the Services only in accordance with the Documentation and applicable laws and government regulations, (b) comply with terms of service of Third-Party Products with which Customer uses Services, (c) be responsible for the accuracy, quality and legality of Customer Data and the means by which Customer acquired Customer Data, and (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Provider promptly of any actual or suspected unauthorized access or use.

(d) Certain Usage Restrictions. Customer will not (a) make any Services available to, or use any Services for the benefit of, anyone other than Customer or to Authorized Users as set forth on an Order Form, (b) make any Services available to, or use any Service for the benefit of, any competitor of Provider, (c) sell, resell, license, sublicense, distribute, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (d) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or applicable law, (e) use a Service to store or transmit Malicious Code (as defined below), (f) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (g) attempt to gain unauthorized access to any Service  or its related systems or networks, (h) permit direct or indirect access to or use of any Service  in a way that circumvents a contractual usage limit, (i) copy a Service or any part, feature, function or user interface thereof, (j) copy any Service except as permitted herein or in an Order Form or the Documentation, (k) frame or mirror any part of any Service , other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes or as permitted in the Documentation, (l) access any Service  in order to build a competitive product or service, (m) reverse engineer any Service, (n) create any derivative work based on any Service or (o) copy any features, functions or graphics of any Service. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, without limitation, viruses, worms, time bombs and Trojan horses.

4. Service Levels; Support

Provider will use commercially reasonable efforts to make the online Services available 24 hours per day, except for: (i) planned downtime (of which Provider shall give at least 8 hours electronic notice), and (ii) any unavailability caused by circumstances beyond Provider’s reasonable control, including, without limitation, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Provider’s employees), Internet service provider failure or delay, Third-Party Products, or denial of service attack.  Provider will provide its standard support for the Services to Customer at no additional charge.

5. Fees and Payment

(a) Subscriptions Generally.  Unless otherwise provided in the applicable Order Form, (a) Services are purchased as subscriptions for up to a specified number of residential rental units (“Units”), (b) subscriptions for additional Units may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions for additional Units will terminate on the same date as the underlying subscriptions, and unless expressly agreed by Provider.  If Customer exceeds a contractual usage limit, Customer agrees to reduce Customer’s usage upon request so that it confirms to that limit, and if Customer does not abide by a contractual usage limit, then Customer will execute an Order Form for additional quantifies of the applicable Services promptly upon Provider’s request, and/or pay any invoice for excess usage in accordance with this Agreement.

(b) Fees. Customer shall pay Provider the fees (“Fees”) as set forth on an Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth on the applicable Order Form (or if no date is set forth on an Order Form, within 10 days following the date of invoice). If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider 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 Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, Provider 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 Provider’s income.

(d) Auditing Rights and Required Records. Each of Provider and Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Each of Provider and Customer may, at its own expense, on reasonable prior notice, periodically inspect and audit the other’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that either Party (the “Underpaying Party”) has underpaid the other Party with respect to any amounts due and payable during the Term, the Underpaying Party shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(b). The Underpaying Party shall pay for the costs of the audit if the audit determines that the Underpaying Party’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of one year after the termination or expiration of this Agreement.  All information of a Party obtained during any audit shall be Confidential Information of such Party.  All persons performing an audit shall seek to avoid disruption of the audited Party’s operations and shall comply with the audited Party’s confidentiality and security policies, which may include execution and delivery of confidentiality agreements.  Further, no personnel of a competitor of a Party may participate in an audit of such Party.

6. Revenue Sharing

(a) General. No later than 30 days following the last day of each calendar quarter, Provider shall provide a copy of the Revenue Share Report for such quarter and pay Customer, in the manner agreed in writing (including by email) by Provider and Customer, an amount equal to the aggregate Revenue Share Amount set forth in the Revenue Share Report.  

(b) Continuation. Following the termination of this Agreement for any reason, Customer shall be entitled to continue to receive (x) any unpaid portion of the Revenue Share Amount relating to the Earned Fees actually received by Provider through the date of termination and (y) quarterly Revenue Share Reports for so long as any Revenue Share Amount is owed to Customer.

(c) Earned Fee Adjustment.  In the event that any Sponsor disallows or disputes, or if Provider otherwise refunds, any portion (the “Disallowed Amount”) of the Earned Fee related to any Revenue Share Amount previously paid to Customer under this Section 6, Provider shall be entitled to reduce future payments to Customer by an amount calculated by multiplying the Disallowed Amount by the applicable percentage set forth in the definition of the Revenue Share Amount.

7. Confidential Information

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, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (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 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. 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.

8. Intellectual Property Ownership; Feedback

(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products, or have all rights necessary to use such Third-Party Products.

(b) Customer Data. Provider acknowledges that, as between Provider and Customer, but subject to the rights of providers of Third-Party Products and other third parties, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider (i) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data (x) as may be necessary for Provider to provide the Services to Customer, (y) for internal use by Provider for any lawful purpose and/or (z) for loan underwriting purposes and other financial reporting purposes, in each case, as requested by an Authorized User and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.  Customer acknowledges that if Provider may not lawfully provide to Customer data or other information that Provider provides to renters (such data and other information, “Excluded Data”), then notwithstanding this Section 8(b), Customer shall have no rights in such Excluded Data.

(c) Feedback. If Customer or any of its employees, contractors or agents, or any Authorized Users, sends or transmits any communications or materials to Provider by mail, email, telephone, any electronic method or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, and all Authorized Users, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

9. Provider Warranties; Disclaimer

(a) Warranties. Provider warrants that (a) Provider will provide the Services in a professional manner and in accordance with this Agreement, and (b) Provider will use commercially reasonable efforts to prevent the Services from introducing Malicious Code into Customer’s systems; provided that it is not a breach of this clause (b) if Customer or an Authorized User uploads a file containing Malicious Code into the Services and later downloads the file containing Malicious Code, or if Customer Data introduces or otherwise contains any Malicious Code.  For any breach of an above warranty, Customer’s exclusive remedies are those described in Sections 12(b)(ii), 12(b)(iii) and 12(d).

(b) Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE PLATFORM, THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM, THE PROVIDER IP OR ANY PROCEEDS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF BUGS, PROGRAM LIMITATIONS OR HARMFUL CODE, OR ERROR FREE.

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PROVIDER IP IN GENERAL IS NOT ERROR-FREE AND AGREES THAT THE EXISTENCE OF NON-MATERIAL ERRORS SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT.

NO ORAL OR WRITTEN ADVICE GIVEN BY PROVIDER, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, REPRESENTATIVES OR AGENTS OR ANY THIRD PARTIES SHALL INCREASE THE SCOPE OF THE REPRESENTATIONS, WARRANTIES OR CONDITIONS IN CONNECTION WITH THE PROVIDER IP OR ANY OTHER MATTER RELATING TO THIS AGREEMENT.  PROVIDER MAKES NO WARRANTIES REGARDING THIRD-PARTY PRODUCTS.

10. Indemnification

(a) Provider Indemnification.

1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
2. If such a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make them or it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
3. This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; (C) Customer Data; or (D) Third-Party Products. 

(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s United States intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) gross negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Services not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

(c) Sole Remedy. This Section 10 sets forth the sole remedies of the Parties for matters described in this Section 10.   

11. Limitations of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  THE IMMEDIATELY-PRECEDING SENTENCE SHALL NOT BE DEEMED TO LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5 OR PROVIDER’S PAYMENT OBLIGATIONS UNDER SECTION 6.

12. Term and Termination

(a) Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period set forth on the applicable Order Form (the “Initial Term”). This Agreement and each Order Form will automatically renew for additional successive one-year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).  Fees with respect to any Renewal Term will not be greater than 10% in excess of Fees during the immediately prior term unless Provider has given Customer written notice of a pricing increase at least 90 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.

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

1. Provider may terminate this Agreement or any Order Form, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c), 3(c), 3(d) or 7;
2. either Party may terminate this Agreement or any Order Form, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach;
3. either Party may terminate this Agreement, effective on written notice to the other Party, if there are no Order Forms then outstanding; or
4. either Party may terminate this Agreement or any Order Form, 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 or any Order Form, Customer shall immediately discontinue use of the Provider IP (or, in the case of expiration or termination of an Order Form, the Provider IP provided pursuant to such Order Form) and, without limiting Customer’s obligations under 7, Customer shall delete, destroy, or return all copies of such Provider IP and certify in writing to the Provider that such Provider IP has been deleted or destroyed. 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.

(d) Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 12(b)(ii) or 12(b)(iii), Provider will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Provider in accordance with Section 12, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms.  In no event will termination relieve Customer of Customer’s obligation to pay any fees payable to Provider for the period prior to the effective date of termination.

(e) Survival. This Section 12(e) and ‎1, ‎5, ‎6, ‎8, ‎9, ‎10, ‎11 and ‎13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

13. Miscellaneous

(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, Schedules and Order Forms, 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. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, Schedules and Order Forms, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits, Schedules and Order Forms; (ii) second, the Exhibits and Schedules, in each case, as of the Effective Date and any Order Forms; and (iii) third, any other documents expressly incorporated herein by reference.

(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 Order Form most recently entered into by the Parties (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), facsimile or email (with confirmation of transmission), 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, pandemics, explosion, war, terrorism, invasion, 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 effect 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 New York 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 New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in the Borough of Manhattan, New York City, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and 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) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 7 or, in the case of Customer, Section 2(c), 3(c) or 3(d), 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 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, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 

(j) Agreement. BY CLICKING “I ACCEPT” ON ANY ORDER FORM, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS READ, UNDERSTANDS, ACKNOWLEDGES AND AGREES TO ALL OF THE TERMS SET FORTH IN THIS AGREEMENT.