Terms and Conditions

These LETELIGENCE TERMS AND CONDITIONS (these “Terms”), govern the relationship between Leteligence, LLC, a Georgia limited liability company (“Provider”) and the customer who has purchased access to the Provider Materials, signed the applicable Subscription Agreement, and who has clicked to accept these Terms (“Customer”), and each and every one of Customer’s Authorized Users. These Terms apply as of the date upon which Customer first accepts these Terms, either by use of the Services or affirmative acceptance online.

DEFINITIONS

Access Credentials means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.

Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

Affiliate of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than twenty-five percent (25%) of the voting securities of a Person.

Authorized Users means Customer’s officers, managers, members, employees, consultants, contractors, or agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms; and (b) for whom access to the Services has been purchased hereunder.

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

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

Documentation means any manuals, instructions, or other documents or materials that the Provider provides or makes available, upon request, to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

Effective Date has the meaning given to it in the Subscription Agreement.

Harmful Code means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network, or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by these Terms. Harmful Code does not include any Provider Disabling Device.

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

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

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

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

Personal Information means information that Customer provides or for which Customer provides access to Provider, or information which Provider creates or obtains on behalf of Customer, in accordance with these Terms that: (a) directly or indirectly identifies an individual (including, without limitation, names, signatures, addresses, telephone numbers, email addresses, and other unique identifiers); or (b) can be used to authenticate an individual, in case of both subclauses (a) and (b), including Sensitive Personal Information. Customer’s business contact information is not, by itself, Personal Information.

Process means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including, without limitation, to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

Projects means those Customer projects or jobs conducted at certain site locations for which Customer intends to use the Services that will be identified by Customer to Provider by physical address and listed on a Subscription Agreement.

Provider Materials means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, source code, 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 Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

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

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

Representatives means, with respect to a party, that party’s and its Affiliates’ employees, officers, managers, members, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

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

Sensitive Personal Information means any personal data that, if disclosed, could potentially cause significant harm to an individual, including, but not limited to, an individual’s (i) government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; or (iii) biometric, genetic, or health data. For the avoidance of doubt, Sensitive Personal Information is a subset of Personal Information.

Service Manager means the Person selected by either party who serves as the primary point of contact for day-to-day communications, consultation, and decision-making regarding the Services and these Terms.

Services means the software offering known as the “Leteligence”, whether accessed online or on the app, or any derivative thereof, hosted by Provider.

Specifications means the specifications for the Services that Provider provides or makes available to Customer in any form or medium and which describes any unique offerings, features, or limitations specific to Customer.

Subscription Agreement means that certain Subscription Agreement by and between Provider and Customer which sets forth the initial parameters governing Customer’s use of the Services including the Service Term, Fees, number of Authorized Users, Service Managers, and other terms as specifically agreed upon by Customer and Provider.

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

SERVICES

Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with these Terms, Provider hereby grants Customer a revocable, non-exclusive, non-sublicensable, and non-transferable right to access and use the Services during the Term, solely for use by Customer and its Authorized Users in accordance with these Terms. Such use is limited to Customer’s internal use only. Provider shall provide to Customer the Access Credentials within a reasonable time following the Effective Date. The total number of Authorized Users and Projects will not exceed the number established on the Subscription Agreement, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. In the event that Customer wishes to add any Authorized Users after the Effective Date, Customer shall (a) inform Provider, (b) inform the prospective Authorized Users of Customers and each Authorized User’s obligations under these Terms, and (c) only provide Access Credentials to the prospective Authorized User after receipt of written approval from Provider to do so. Customer remains responsible for all actions taken by its Authorized Users regarding their access to and use of the Services.

Documentation License. Provider hereby grants to Customer a revocable, non-exclusive, non-sublicensable, and non-transferable license to use the Documentation during the Service Term solely for Customer’s internal business purposes in connection with its use of the Services.

Service and System Control. Except as otherwise expressly provided in these Terms or the Subscription Agreement, as between the parties: (a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and (b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer, including any (i) information, instructions, or materials provided by any such Person to the Services or Provider, (ii) results obtained from any use of the Services or Provider Materials, and (iii) conclusions, decisions, or actions based on such use. Notwithstanding anything to the contrary in these Terms, all Services, including all Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and on computers, systems, networks, and other infrastructure located in the United States.

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

Service Management. Customer shall, throughout the Term, maintain within its organization a Service Manager. Customer’s Service Manager shall be responsible for providing all day-to-day consents and approvals on behalf of Customer under these Terms. Customer shall ensure its Service Manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. Customer shall inform Provider of the name and title of its initial Service Manager prior to receiving Access Credentials. Customer shall use best efforts to maintain the same Service Manager in place throughout the Service Term. If Customer’s Service Manager ceases to be employed by Customer or Customer otherwise wishes to replace its Service Manager, Customer shall promptly name a new Service Manager by written notice to Provider. Provider will appoint its own Service Manager, provided that, Provider expressly reserves the right to change its Service Manager from time to time.

Changes by Provider. Provider reserves the right, in its sole discretion and from time to time, to make any changes to the Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of the Services, (ii) the competitive strength of or market for the Services, or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.

Mutual Changes. Without limiting the above provisions of this section, either party may, at any time during the Term, submit details of the requested change to the Services or Provider Materials to the other party in writing. Provider shall, within a reasonable time after such request, inform Customer of (a) the likely time required to implement the change, (b) any necessary variations to the Fees and other charges arising from the change; and (c) any other impact the change might have on the performance of these Terms. Promptly after receipt of the above information, the parties shall negotiate and agree in writing on the terms of such change as an amendment to these Terms. No requested changes under this section will be effective unless and until memorialized in a written change order signed by both parties. Provider reserves the right to charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis.

Subcontractors. Provider may from time to time, in its sole and absolute discretion, engage third parties to perform Services, including, but not limited to, Letelmetrics, LLC (each, a “Subcontractor”).

Suspension or Termination of Services. Provider may, directly or indirectly, and by use of any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee (a “Provider Disabling Device”) or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, if (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so, (b) if Customer has failed to pay the Fees as required in the PAYMENT section, or (c) Provider believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term or provision of these Terms, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms or in any manner that does not comply with any instruction or requirement of the Specifications or applicable Law; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities, whether or not related to the Services; or (iii) these Terms expire or are terminated in accordance with the SERVICE TERM AND TERMINATION section below. This provision does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under these Terms.

Services Disclaimer. The Services, Provider Materials, and outputs of the Provider Materials provided hereunder are generated for illustrative purposes only and no guarantee or warranty is made by Provider whatsoever as to the accuracy or completeness thereof. Customer expressly acknowledges and agrees that the Provider Materials and outputs thereof are not meant to nor designed to replace any engineer, architect, grading professional, or other licensed professional or expert and are only meant to serve as a tool to assist engineers, architects, grading professionals, and other licensed professionals or experts in performing their functions. Customer further acknowledges and agrees that it shall not exclusively rely on the Provider Materials, and the outputs thereof, in making design, grading, elevation, construction, or other decisions, and that Customer shall only use the Provider Materials, and the outputs thereof, to augment the work performed by engineers, architects, grading professionals, and other licensed professionals or experts.

USE RESTRICTIONS AND LIMITS

Use Restrictions. Customer and its Authorized Users shall not, and shall not permit any other Person or Affiliate to, access or use the Provider Materials except as expressly permitted by these Terms and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity, and without limiting the generality of the foregoing, Customer, its Authorized Users, and any Affiliate thereof shall not, except as these Terms expressly permit:

• copy, modify, or create derivative works or improvements of the Provider Materials or Services;
• rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Provider Materials or Services to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
• reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or other Provider Materials, in whole or in part;
• bypass or breach any security device or protection used by the Services or other Provider Materials or access or use the Services or other Provider Materials other than by an Authorized User through the use of his or her own then-valid Access Credentials;
• input, upload, transmit, or otherwise provide to or through the Services or other Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
• damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;
• remove, delete, alter, or obscure any trademarks, Specifications, Documentation, end-user license agreement (EULA), warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or other Provider Materials, including any copy thereof;
• access or use the Services or other Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including, without limitation, by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Provider customer), or that violates any applicable Law;
• upload any photographs, images, video or audio recordings, or other documents which violate any applicable Law;
• access or use the Services or other Provider Materials for purposes of competitive analysis of the Services or other Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage;
• access or use the Services or other Provider Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
• otherwise access or use the Services or other Provider Materials beyond the scope of the authorization granted under this USE RESTRICTIONS AND LIMITS section.

Data Storage. Customer acknowledges that Provider is under no obligation to store any Customer Data on its servers, or in any Provider Systems, nor make any such services available to Customer. Provider expressly disclaims any such obligation to do so, and does not waive the future effectiveness of such disclaimer should it ultimately provide such service as a courtesy to Customer at any time during the Service Term. Customer acknowledges and agrees that Customer is at all times responsible for the storage of any Customer Data uploaded in connection with the Services or used in any Provider Materials. In the event that Customer fails to properly store or backup any data used in connection with the Services, and Provider has the ability to retrieve such data, Customer may request for Provider to retrieve such data in exchange for an additional fee payable by Customer to Provider in an amount equal to an amount reasonably calculated by Provider (based on the time and complexity of operations necessary to fulfill Customer’s request) (a “Data Retrieval Fee”).

Data Backup Disclaimer. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF ANY CUSTOMER DATA OR RESULTANT DATA WHATSOEVER.

CUSTOMER OBLIGATIONS

Customer Systems and Cooperation. Customer shall at all times during the Service Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Services are accessed or used; (b) provide Provider Personnel with such access to Customer’s premises and Customer Systems as is necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; (c) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with these Terms; and (d) provide for its own data storage in accordance with these Terms.

Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under these Terms (each, a “Customer Failure”).

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

SERVICE LEVELS AND CREDITS

Service Levels. Subject to these Terms, Provider will use commercially reasonable efforts to make the Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar year during the Service Term, excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). “Service Level Failure” means a material failure of the Services to meet the Availability Requirement. “Available” means the Services are available for access and use by Customer and its Authorized Users over the internet and generally operating in material accordance with the Specifications given the circumstances.

Availability Calculations. For purposes of calculating the Availability Requirement, (a) Services will only be deemed un-Available once Customer informs Provider that the Services are un-Available, and (b) the following “Exceptions” apply to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (i) act or omission by Customer or any Authorized User; (ii) Customer Failure; (iii) Customer’s or its Authorized User’s Internet connectivity failures; (iv) emergency maintenance due to a Force Majeure Event; (v) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Provider pursuant to these Terms; (vi) Scheduled Downtime; or (vii) disabling, suspension, or termination of the Services pursuant to these Terms.

Service Level Failures and Remedies. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of five percent (5%) of the monthly Fees for the Services in the month in which the Service Level Failure occurred (each a “Service Credit”), subject to the following limitations: (a) Provider has no obligation to issue any Service Credit unless: (i) Customer reports the Service Failure to Provider immediately on becoming aware of it; and (ii) requests such Service Credit in writing within three (3) days of the Service Level Failure; and (b) in no event will a Service Credit exceed one hundred percent (100%) of the total Fees that would be payable for that month if no Service Level Failure had occurred. Any Service Credit payable to Customer under these Terms will be issued to Customer in the calendar month following the month in which the Service Level Failure occurred. This SERVICE LEVELS AND CREDITS section sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.

Scheduled Downtime. Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services outside of normal business hours and (b) give Customer at least five (5) hours prior notice of all scheduled outages of the Services (“Scheduled Downtime”).

SECURITY

Information Security. Provider will employ security measures in accordance with Provider’s data privacy and security policy, as amended from time to time, a current copy of which can be found at https://leteligence.com/privacy-policy/ (the “Privacy Policy”).

Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in the Privacy Policy and shall implement the procedures required under such data breach plan on the occurrence of a data breach.

Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services; and (c) prevent any input, upload, transmission, or other similar process to or through the Services or Provider Systems, of any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code.

FEES AND PAYMENT TERMS

Fees. Customer shall pay Provider all of the fees listed on the Subscription Agreement (“Fees”) and as set forth on Provider’s invoice (each, an “Invoice”) provided in accordance with this section and with the terms of Subscription Agreement.

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

Payments. Customer shall pay all Fees to Provider by the date each Invoice is received. Customer shall make all payments hereunder in U.S. dollars by cash, check, or wire transfer of immediately available funds. Customer shall make payments to the address or account specified on an Invoice or such other address or account as Provider may specify in writing from time to time.

Late Payments. If Customer fails to make any payment when such Fees become due and payable then, in addition to all other remedies that may be available: (a) Provider may charge interest on the past due amount at the rate of one and half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law, from the date such payment was due until the date paid; (b) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) Provider may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

No Deductions or Setoffs. All amounts payable to Provider under these Terms shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits issued pursuant to the SERVICE LEVELS AND CREDIT section or any deduction or withholding of tax as may be required by applicable Law).

Fee Increases. Provider may increase Fees from time to time throughout the Service Term.

Audit Procedure. Provider or its nominee (including its accountants and auditors) may, upon reasonable request, inspect and audit Customer’s use of the Services under these Terms at any time during the Service Term and for one (1) year following the termination or earlier expiration of these Terms. All audits will be conducted during regular business hours, and in a manner that does not unreasonably interfere with Customer’s business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may be requested by or on behalf of Provider with respect to such audit.

Cost and Results of Audit. If the audit determines that Customer’s use of the Services exceeded the usage permitted by these Terms, Customer shall pay to Provider all amounts due for such excess use of the Services, plus interest on such amounts, as calculated pursuant to this section. If the audit determines that such excess use equals or exceeds Customer’s permitted level of use, Customer shall also pay to Provider all reasonable costs incurred by Provider in conducting the audit. Customer shall make all payments required under this section within thirty (30) days of the date of written notification of the audit results.

CONFIDENTIALITY

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

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

Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall, for the Service Term and a period of two (2) years thereafter:

• not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms;
• except as may be permitted by and subject to its compliance with the Compelled Disclosures subsection, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this section;
• safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care;
• promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps and cooperate with the Disclosing Party to prevent further unauthorized use or disclosure; and
• ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this section.

Trade Secrets. Notwithstanding any other provisions of these Terms, the Receiving Party’s obligations under this section with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

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

Resultant Data Excluded. Notwithstanding the foregoing, Provider shall have no duty of confidentiality hereunder as to Resultant Data except as set forth in the Privacy Policy, the terms of which shall at all times control with regard to Resultant Data.

INTELLECTUAL PROPERTY RIGHTS

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

Customer Data. As between Customer and Provider, Customer is and will remain, subject to the subsection below, the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in the subsection below.

License to Use Customer Data. Customer hereby irrevocably grants an irrevocable, perpetual, transferable, royalty-free license, and all other such rights and permissions derived therefrom, in or relating to any Customer Data, as is necessary or useful to Provider, its Subcontractors, and the Provider Personnel to enforce these Terms and exercise Provider’s, its Subcontractors’, and the Provider Personnel’s rights and perform Provider’s, its Subcontractors’, and the Provider Personnel’s obligations hereunder. Customer expressly acknowledges and agrees that the license and other rights provided above are intended, among other purposes, to allow Provider, its Subcontractors, and the Provider Personnel to use such Customer Data to improve, modify, or alter the Services and the Provider Materials.

REPRESENTATIONS AND WARRANTIES

Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with these Terms, such Customer Data does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

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

INDEMNIFICATION

Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer) that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with these Terms (including the Specifications) infringes or misappropriates such third party’s Intellectual Property Rights in the United States. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) Third-Party Materials or Customer Data; (b) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation, unless otherwise expressly permitted by Provider in writing; (c) modification of the Provider Materials other than (i) by or on behalf of Provider, or (ii) with Provider’s written approval in accordance with Provider’s written specification; (d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or (e) any act, omission, or other matter described in the Customer Indemnification subsection, whether or not the same results in any Action against or Losses by any Provider Indemnitee.

Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) to the extent that such Losses arise out of or result from, or are alleged to arise out of or result from: (a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with these Terms; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under these Terms; or (d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with these Terms.

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

Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its sole option and sole cost and expense: (a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by these Terms; (b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under these Terms; or (c) by written notice to Customer, terminate these Terms with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof.

Sole Remedy. This section sets forth Customer’s sole remedies and Provider’s sole liability and obligation for any actual, threatened, or alleged claims that the Services and Provider Materials or any subject matter of these Terms infringes, misappropriates, or otherwise violates any Intellectual Property Rights of any third party.

LIMITATIONS OF LIABILITY

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

CAP ON MONETARY LIABILITY. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER AND ITS LICENSORS, SUBCONTRACTORS, OR AFILLIATES ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER IN ANY TWELVE (12) CALENDAR MONTHS UNDER THESE TERMS. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

Exceptions. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION DO NOT APPLY TO PROVIDER’S OBLIGATIONS UNDER THE INDEMNIFICATION SECTION OR PROVIDER’S LIABILITY FOR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

SERVICE TERM AND TERMINATION

Service Term. The term of these Terms commences as of the “Effective Date” as set forth on the Subscription Agreement and, unless terminated earlier pursuant to any of the Terms’ express provisions, will continue for the period set forth on the Subscription Agreement (the “Service Term”).

Termination. In addition to any other express termination right set forth elsewhere in these Terms:

• Provider may immediately terminate these Terms and remove Customer’s access to the Services and the Provider Materials, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder or otherwise breaches any of its obligations under these Terms;
• Provider may terminate these Terms for convenience upon thirty (30) days’ prior written notice;
• Customer may terminate these Terms for convenience by both calling Provider to inform Provider and also informing Provider in writing of its intention to terminate these Terms thirty (30) days following the date Customer informs Provider of such intention; and
• either party may terminate these Terms, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.

Method Cancellation and Termination by Customer. Customer may only cancel the Services and terminate these Terms by communicating directly with Provider’s Service Manager and requesting cancellation or termination in writing, in any event in the manner substantially similar to the method by which the Services were originally acquired from Provider.

Effect of Termination or Expiration. Upon any expiration or termination of these Terms, except as expressly otherwise provided in these Terms:

• all rights, licenses, consents, and authorizations granted by Provider to Customer hereunder will immediately terminate;
• Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information; (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed and notarized written instrument that it has complied with the requirements of this subsection;
• notwithstanding anything to the contrary in these Terms, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; (ii) Provider may retain Customer Data; (iii) Provider may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iv) all information and materials described in this subsection will remain subject to all confidentiality, security, and other applicable requirements of these Terms;
• Provider may disable all Customer and Authorized User access to the Services and/or Provider Materials; provided however, that Customer may request that Provider retrieve certain data stored in the Provider Materials in exchange for the Data Retrieval Fee;
• if Customer terminates these Terms, Customer will be relieved of any obligation to pay any unpaid Fees attributable to the period after the effective date of such termination but will forfeit any prepaid Fees and any unpaid Service Credits to which Customer would have been entitled;
• if Provider terminates these Terms as a result of Customer’s breach of these Terms, all prepaid Fees and unpaid Service Credits as of the date of termination will be forfeited by Customer; and
• if Provider terminates these Terms under any provision of this section, all Fees that would have become payable had these Terms remained in effect until expiration of the Service Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of an Invoice therefor.

MISCELLANEOUS

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

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

Survival. The provisions set forth in this subsection, and any other right or obligation of the parties in these Terms that, by its nature, should survive termination or expiration of these Terms, will survive any expiration or termination of these Terms: USE RESTRICTIONS AND LIMITS, DISCLAIMER OF WARRANTIES, INDEMNIFICATION, LIMITATION OF LIABILITY, SERVICE TERM AND TERMINATION, and MISCELLANEOUS, expressly including this subsection and the Equitable Relief subsection.

Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms or, unless expressly permitted under these Terms, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials, the use of which will not entitle Customer to any additional compensation.

Notices. Except as otherwise expressly set forth in these Terms, any notice, request, consent, claim, demand, waiver, or other communications under these Terms have legal effect only if in writing and addressed to a party at the address set forth on the Subscription Agreement (or to such other address or such other Person that such party may designate from time to time in accordance with this subsection). Notices sent in accordance with this subsection will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the third (3^rd) business day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

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

Headings. The headings in these Terms are for reference only and do not affect the interpretation of these Terms.

Entire Agreement. These Terms, together with any other documents incorporated herein by reference, constitutes 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, representations, and warranties, both written and oral, with respect to such subject matter.

Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under these Terms, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent, which may be given or withheld in Provider’s sole discretion. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under these Terms. Any purported assignment, delegation, or transfer in violation of this subsection is void. These Terms are binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any term or provision of these Terms (except for Customer’s obligations to make payments hereunder), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including, but not limited to: (a) acts of God; (b) flood, fire, earthquake, explosion, epidemic, pandemic, or outbreak; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, Law, or action, including lockdowns or lockouts; (e) national or regional emergency; (f) strikes, material shortages, labor stoppages or slowdowns, or other industrial disturbances; (g) shortage of adequate power or transportation facilities; or (h) other similar events outside the reasonable control of the parties. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event. The affected party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.

No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.

Amendment and Modification; Waiver. No amendment to or modification of these Terms 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 shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

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

Governing Law; Submission to Jurisdiction. These Terms is governed by and construed in accordance with the internal laws of the State of Georgia 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 Georgia. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Georgia in each case located in the County of Pickens, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

Equitable Relief. Customer has carefully read and considered the provisions of these Terms, including, but not limited to, the Use Restrictions subsection, the Non-Solicitation subsection, the Customer Control and Responsibility subsection, the CONFIDENTIALITY section, and the INTELLECTUAL PROPERTY RIGHTS section, and, having done so, agrees that the restrictions set forth therein are fair and reasonable and are reasonably required for the protection of the interests of Provider. Therefore, Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under the Use Restrictions subsection, the Non-Solicitation subsection, the Customer Control and Responsibility subsection, the CONFIDENTIALITY section, and the INTELLECTUAL PROPERTY RIGHTS section, would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider 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.

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

Acceptance of Terms. BY ACKNOWLEDGING, ACCEPTING, OR CHECKING THE BOX THAT SAYS “I AGREE” TO THESE TERMS, CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER HAS READ, UNDERSTOOD, AND HEREBY ACCEPTS THE TERMS AND CONDITIONS OF THESE TERMS. SIMILARLY, BY ACCESSING THE PROVIDER MATERIALS AND/OR USING THE SERVICES, WHETHER ON A WEB-BASED PLATFORM OR ON A DOWNLOADABLE APPLICATION, CUSTOMER AND EACH AUTHORIZED USER EXPRESSLY ACKNOWLEDGE THAT THEY ARE BOUND BY THESE TERMS.