This Master Services Agreement ("Agreement") entered into on this _____ day of _________ ("Effective Date") by and between Signal Intent, Inc dba Chimney, a Delaware corporation with its principal place of business at _______________, (“Chimney” or “Company”) and [CUSTOMER NAME] with its principal place of business at [CUSTOMER ADDRESS] ("Customer"). Company and Customer shall each be referred to as a “Party” in this agreement, and together shall be referred to as “Parties.”

DEFINITIONS

1. “Affiliate” means any person or entity Controlling, Controlled by, or under common Control with that Party. 
2. “Control,” “Controlling,” or “Controlled” means when used with respect to a specified person or entity, more than 50% of the voting power of the shares (or other securities or rights) entitled to vote for the election of directors or other governing authority, as of the date of this Agreement or hereafter during the Term of this Agreement; provided that such person or entity shall be considered an Affiliate only for the time during which control exists.
3. “Consumer Information” means any non-public, personally identifiable information provided by an End User in connection with obtaining a financial product or service from Customer. 
4. “Customer Data” means the electronic data stored by or uploaded to the Software by or on behalf of Customer, Permitted Users or End Users including, without limitation, Consumer Information 
5. “End Users” means individual consumers or customers of Customer that agree to the End User Terms and access the Software.
6. “End User Terms” means the terms and conditions that govern the relationship, responsibilities, and interactions between the Customer and the End Users, including but not limited to the use of the Software.
7. “Confidential Information” means any and all confidential or proprietary information, disclosed by a Party (each a “Discloser”) to the other Party (each a “Recipient”) irrespective of form, source and method of communication, provided it is conspicuously marked to identify its confidential or proprietary nature, or is reasonably understood to be confidential given the nature or circumstances surrounding its disclosure. Confidential Information includes without limitation, non-public information relating to Discloser's product and product development strategy and activity, corporate assessments and strategic plans, customer lists, financial information (past, current, and future), accounting information, hardware, software, systems, processes, data, samples, formulae, graphs, research and development, techniques, customer requirements, price lists, market lans, marketing strategies, discoveries, regulatory affairs, employees, suppliers, unpatented inventions, ideas, methods and discoveries, trade secrets, know-how, designs, specifications, documentation, components, source code, and object code.  
8. “Intellectual Property” means all intellectual property, including, without limitation, inventions, patents, patent applications, copyrights, trademarks, trademark applications, service marks, service mark applications, trade names, domain names, trade secrets, mask works, know-how, moral rights, licenses, and tangible embodiments of the foregoing and any other intangible proprietary or property rights, registered or not, under statute and/or common law.
9. “Marketplace” means a directory, catalog, ecosystem or marketplace of applications, services or other programs that interoperate with the Services.
10. “Order Form” means the written order(s) mutually agreed upon by the Parties which identifies the Services that Company will provide to Customer.
11. “Permitted Users” means Customer’s employees, third-party consultants, or contractors authorized by Customer to use or access the Software.
12. “Professional Services” means installation, configuration, implementation, consultation, training, and other professional services provided by Company as set forth in an applicable Statement of Work or an applicable Order Form.
13. “Regulator” means a governmental authority or a non-governmental entity that is responsible for monitoring or overseeing the business practices or other activities of either of the respective Parties or any of their Affiliates, including, as applicable, Office of the Comptroller of the Currency, Consumer Financial Protection Bureau, Federal Deposit Insurance Corporation, National Credit Union Administration, or any other bodies or successors thereto that regulate banks, consumer finance companies, mortgage companies, and/or other financial services service providers.
14. “Software” means Company's proprietary software hosted by Company and provided to Customer in connection with the Services subject to and in accordance with the terms of this Agreement. “Software” includes, without limitation, any updates, improvements, modifications, derivative works, patches and upgrades to the Software that Company develops or provides to or otherwise makes available to Customer in connection with this Agreement. 
15. “Services” means (i) the services provided by Company to Customer as set forth in the applicable Order Form or SOW, and (ii) Professional Services. “Services” shall not include Third-Party Services, as defined in Section 14 of this Agreement.
16. “Statement of Work” or “SOW”, means a mutually agreed upon sub-agreement that describes the scope of Professional Services, such as implementation or consulting services, the anticipated schedule, fee structure, and deliverables.
17. SERVICES AND SUPPORT
    
    1. Services. During the Term, Company will use commercially reasonable efforts to provide the Services in accordance with and subject to the terms of any applicable Order Form, Statement of Work, and the terms of this Agreement.  
    2. Professional Services.  If requested by Customer, Company shall perform Professional Services as mutually agreed by the Parties and as set forth in an applicable Order Form or Statement of Work. All Order Forms or SOWs executed pursuant to this Agreement shall be deemed incorporated herein and be subject to the terms and conditions of this Agreement. Any change to the scope of any work, costs, terms, billing, timing, milestones, and related terms in the Order Forms or SOWs are only binding if executed by both Parties in writing.  Each Party will cooperate to perform its obligations set forth in the Order Form or SOW. Unless otherwise agreed by the Parties in writing, Company shall have no obligation to provide Professional Services beyond the scope of matters expressly described in the Order Form or SOW. Except as expressly set forth in an applicable Order Form or SOW, Company will retain all rights in and to any deliverables, work product, or other materials developed by Company in connection with the Services, including, without limitation, under any Order Form or SOW.  
18. USE OF SERVICES
    
    1. Service Access. During the Term, and subject to compliance with the terms and conditions of this Agreement, Company hereby grants to Customer a limited, non-exclusive, non-sublicensable (except as expressly permitted hereunder) right to access and use the Software and Services for Permitted Users and/or End Users only.  Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Customer’s and/or any Permitted User’s access to all or any portion of the Services upon Company’s reasonable and good faith determination that (a) Customer is in material breach of this Agreement or (b) continued access to the Services may cause Company to violate applicable law.
    2. Customer Data.  Customer grants Company (including its Affiliates) a world-wide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, and display the Customer Data solely to provide the Services. Notwithstanding anything to the contrary in this Agreement, subject to applicable laws, (a) during the Term, Company (including its Affiliates) may use Customer Data solely for internal business purposes in connection with the development, diagnostic, and corrective purposes and (b) during and following the Term, Company and its Affiliates may use Customer Data solely in a de-identified form for its business purposes. 
    3. Restrictions. Customer will not and will not knowingly permit any third party to (a) gain or attempt to gain unauthorized access to the Software, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Software; (b) interfere with or disrupt the integrity or performance of the Software; (c) transmit materials containing software viruses or other harmful or deleterious computer code, files, scripts, agents or program through the Software; (d) decompile, disassemble, reverse engineer or attempt to discover any source code or underlying ideas or algorithms of the Software (except to the extent that applicable law expressly prohibits such a reverse engineering restriction); (e) provide, lease, lend, use for timesharing or service bureau purposes, or for any purpose other than its own use for the benefit of its End Users and customers; (f) list or otherwise display or copy any code of the Software; (g) copy the Services (or component thereof), develop any improvement, modification or derivative work thereof, or include any portion thereof in any other service, equipment or item; (h) allow the transfer, transmission (including, without limitation, making available online, electronically transmitting, or otherwise communicating to the public), export, or re-export of the Services (or any portion thereof) or any technical data; (i) perform benchmark tests on the Software without the prior written consent of Company (any results of such permitted benchmark testing shall be deemed Company Confidential Information); or (j) use, evaluate or view the Services for the purpose of designing, modifying or otherwise creating any environment, program or infrastructure (or any portion thereof), which performs functions similar to the functions performed by the Services.  
    4. Intellectual Property Rights of Company. Except as expressly set forth herein, Company (and its licensors, where applicable) shall own (i) the Services and Software and all improvements, enhancements or modifications made thereto, (ii) except as expressly set forth in an applicable Order Form or SOW, any and all work product or other materials, including software, inventions or other technology developed in connection with the Professional Services; and (iii) all Intellectual Property rights related to any of the foregoing (the “Company IP”).  Customer acknowledges and agrees that any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by Customer or any third party relating to the Services and/or the Software (“Feedback”) shall be owned by Company and to the extent Customer owns any right, title, or interest in such Feedback, Customer hereby assigns and agrees to assign to Company all such right, title and interest in the Feedback.  This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, Software or any Intellectual Property rights therein or related thereto.
       
       1. 1.3 Chimney reserves the right to include the phrase “POWERED BY Chimney” (the “Chimney Logo”) and an active link to Chimney’s website on products. Customer may not modify the Chimney Logo in any way without Chimney’s prior written consent.
    5. Trial Periods and Betas: From time to time, Company may offer trial periods or beta versions of the Platform Services. Such trials or betas are provided "as-is" and may not be as reliable or available as other features of the Platform Services. Company reserves the right to terminate any trial or beta period at any time without notice.
    6. Customer Responsibilities. 
       
       1. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, long distance and local telephone services (collectively, “Equipment”).  Customer shall be responsible for  maintaining the confidentiality and security of its and its Permitted Users’ login credentials, passwords and security of any equipment that connects to the Software (including use of multi-factor authentication).  Customer will also be responsible for establishing password protection, access controls or other procedures to verify that only designated Permitted Users have access to any administrative functions of the Services and personnel termination procedures. Customer shall be liable for the acts or omissions of its Permitted Users. Customer agrees to (a) notify Company upon learning of any unauthorized use of the Services or any other breach of security relating to this Agreement or the Services and (b) promptly terminate account access for any Permitted User whose employment has been terminated. 
       2.  Customer will cooperate with Company in connection with the performance of this Agreement by making available personnel and information as may be reasonably required and taking such actions as Company may reasonably request. 

3.6 Customer Affiliates. Subject to Company’s written approval (which may be granted in Company’s sole discretion), Customer is authorized to purchase Services for the benefit of or use by its Affiliates, and Customer Affiliates are entitled to receive Services under this Agreement by executing an applicable Order Form and/or SOW. Each Affiliate, with respect to the Services set forth in the applicable Order Form or SOW, shall also be considered Customer for the purposes of any applicable Order Form or SOW, and shall be subject to all terms and conditions set forth in this Agreement. Customer shall assume all liability for all Affiliates to the same extent Customer has liability for itself under this Agreement.

4. TERM AND TERMINATION
   
   1. Term. The term of this Agreement shall begin upon the Effective Date and continue as long as an Order Form or SOW referencing or incorporated into this MSA remains valid and in effect, unless terminated in accordance with the terms of this Agreement (the “Term”). Subject to Section 4.2 (Termination), the initial term of each Order Form under this Agreement shall begin upon the Order Form Effective Date and end following the period set forth in the applicable Order Form as the “Services Term” after the “Billing Start Date” as identified on the applicable Order Form (the “Order Form Initial Term”) and thereafter, except as expressly identified in the Order Form, the Order Form shall automatically renew for successive renewal periods of one (1) year, unless either Party provides notice of non-renewal to the other Party no less than sixty (60) days prior to the end of the then-current initial term or renewal term (each an “Order Form Renewal Term”, collectively, together with the Order Form Initial Term, the “Order Form Term”). For the avoidance of doubt, each Order Form will renew on pricing terms, including any applicable pre-paid Fees, consistent with the preceding one (1) year (or portion thereof) of the expiration of the Order Form Initial Term or Order Form Renewal Term (as applicable). 

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2. Termination 

1.  Termination for Cause. In addition to any other remedies it may have, either Party may terminate this Agreement or any applicable Order Form or SOW upon thirty (30) days written notice if the other Party materially breaches any of the terms or conditions of this Agreement or applicable Order Form or SOW, and fails to cure within thirty (30) days (or ten (10) days in case of non-payment) of written notice specifying the breach. 
2.  Termination for Insolvency. Either Party may terminate this Agreement or any applicable Order Form or SOW, without any opportunity to cure by providing written notice to the other Party, in the event of (a) the institution by or against, the other Party of insolvency, receivership or bankruptcy proceedings; (b) the other Party's general assignment for the benefit of creditors; or (c) the other Party's dissolution or cessation of business operations.
3. Payment Obligation. If Customer exercises such termination rights, Customer will pay in full for the Services up to and including the last day on which the Services are provided.

3. Optional Wind-Down Period. Following notification of non-renewal or termination by either Party of an applicable Order Form or SOW pursuant to this Agreement and provided that Customer is not in material breach of the Agreement, Customer may elect to extend the applicable Order Forms or SOW’s term for an additional ninety (90) days (the “Wind-Down Period”) to facilitate the transition from the Services by providing written notice to Company at least sixty (60) days prior to the end of the Order Form or SOW Term.  During the Wind-Down Period, Customer shall be responsible for the greater of (i) all Fees incurred during the Wind-Down Period in accordance with the terms of the applicable Order Forms and/or SOWs or (ii) any minimum Fee as set forth in the applicable Order Form or SOW.
4. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, with respect to accrued rights to payment, auditing, confidentiality obligations, warranty disclaimers and limitations of liability. 

5. PAYMENT AND FEES
   
   1. Fees.  Customer will pay Company the fees for the Services as set forth in the applicable Order Form, SOW, or any applicable exhibit (the “Fees”).  All fees are non-cancelable, non-refundable.
   2. Payment.   Company will bill all Fees and any applicable taxes through an invoice. Full payment for invoices must be received by Company thirty (30) days after the mailing date of the invoice, or the Services may be suspended or terminated.  Unpaid Fees and applicable taxes are subject to a finance charge of 1.5% per month or the maximum permitted by law, whichever is lower, plus all applicable collection expenses.   
   3. Disputes. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days from the applicable invoice date in which the purported error or problem appeared for investigation, for proper adjustment or credit, as appropriate or such right to dispute the invoice shall be waived. Inquiries should be directed to Company’s invoicing department at ATTN: Chimney 700 S. Rosemary Ave., Suite 204, West Palm Beach, FL 33401 and via email Support@Chimney.io. 
   4. Company Audit Rights.   During the Term, Customer agrees to keep all usual and proper records and books of account, and all usual and proper entries relating to the use of the Services and the Fees.  With reasonable notice and no more than once (1) per calendar year, Customer will permit Company, at Company’s expense, to conduct a remote audit to examine Customer’s records during normal business hours to verify statements issued by Customer and Customer’s compliance with its obligations and pay the Fees.  Any such audit shall be conducted by an auditor or inspector selected by the Company, and such auditor or inspector shall provide a summary of its findings regarding its verification of the statements by Customer and the Customer’s compliance with its obligations and pay the Fees.  Customer shall pay Company the full amount of any underpayment revealed by the audit or inspection plus interest from the date such payments were due under the terms of this Section. Notwithstanding the foregoing, if such audit or inspection reveals an underpayment by Customer of more than five percent (5%) for the period covered by the audit or inspection report, Customer shall reimburse Company for all fees and costs associated with such audit in addition to the amount underpaid with interest—the lower of 1.5% per month or the maximum permitted by law—from the date such payment was due pursuant to this Section.
   5. Taxes.  Invoiced amounts are payable in full, without reduction for transaction taxes (e.g. sales and use taxes, value added taxes, consumption, taxes, goods and service taxes, GST,HST, excise, duties or similar taxes and withholding taxes. Customer is required to pay all such transaction taxes, either directly or by increasing payments to Company to offset taxes that Customer is required to deduct from payments, unless Customer provides Company with a valid tax exemption certificate.  Customer shall be responsible for (i) any liability or expense incurred by Company as a result of Customer’s failure or delay in paying taxes due hereunder; and (ii) any penalties associated with late or unpaid taxes.
6. DATA SECURITY

Company agrees to have implemented a comprehensive written information security program that includes administrative, technical, and physical safeguards appropriate to the size, complexity and the nature and scope of the Services provided to Customer under this Agreement.

7. PERSONNEL AND SUBCONTRACTORS
   
   1. Personnel. Company will maintain staffing levels consistent with its obligation to perform the Services. In the event Customer determines the Company Personnel performing Professional Services is unacceptable to Customer, Customer and Company shall meet, as reasonably requested by Customer, to address reported performance gaps and associated remediation, as appropriate. Company acknowledges and agrees that it shall be liable for the acts or omissions of any authorized third-party subcontractors engaged by Company to perform Services hereunder.
8. CONFIDENTIALITY
   
   1. Standard of Care. Each Party shall protect all Confidential Information of the other Party with the same degree of care as it uses to avoid unauthorized use, disclosure, publication or dissemination of its own confidential information of a similar nature, but no less than a reasonable degree of care.
   2. Restricted Disclosure. Except as otherwise permitted under this Agreement, neither Party shall disclose Confidential Information of the other Party to any third party and will disclose the other Party’s Confidential Information only to employees, authorized subcontractors and Affiliates (in Customer’s case, only to those Affiliates as contemplated in Section 3.6); provided, that each such recipient is bound by confidentiality obligations consistent with those contained in this Agreement. 
   3. Confidential Information Exclusions. The Parties agree that the foregoing shall not apply with respect to any information that the Recipient can document (a) is or becomes generally available to the public (other than as a result of a breach of this Agreement); (b) was in the Recipient’s possession or known by the Recipient prior to receipt from the Discloser; (c) was rightfully disclosed to it by a third party without any obligation of confidentiality; (d) was independently developed without use of any Confidential Information of the Discloser; or (e) is required to do so under an order from a court, administrative agency or government  body, by subpoena or by law, or by demand of auditors, examiners or Regulators (provided that, except as otherwise prohibited by applicable laws or under the terms or conditions of such order, subpoena or demand,  the Recipient provides reasonable prior written notice to the Discloser). 
   4. Safeguards. Company hereby acknowledges that Customer is subject to the privacy regulations under The Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1138), as amended from time to time (the “GLB Act”), and the regulations promulgated thereunder, pursuant to which Customer is required to ensure that Company appropriately safeguards the nonpublic personal information of Customer's consumers, customers or prospective customers, and protects such information from any unauthorized use or disclosure.  Therefore, notwithstanding anything to the contrary contained in this Agreement, Company agrees that (a) it shall not disclose or use any Consumer Information except to the extent necessary to perform and improve the Services; and (b) it shall maintain and shall use commercially reasonable efforts to require all third parties to maintain legally required information security measures to protect Consumer Information from unauthorized disclosure or use.  The obligations set forth in this Section shall survive termination of this Agreement.  
   5. Remedies. Each Party acknowledges that any breach or threatened breach of this Section 8 may cause irreparable injury to the Discloser and that, in addition to any other rights and remedies that may be available in law, in equity or otherwise, the Discloser shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving Party without the necessity of proving actual damages or posting any bond.
   6. Marketing and Reference. Customer agrees to allow Company to identify Customer as a customer, including any Customer trademark(s) in marketing materials such as websites, blogs and general marketing collateral press releases, and investor materials and SEC filings or submissions, provided that Company complies with Customer’s reasonable guidelines for trademark usage if disclosed to Company. Company acknowledges and agrees that use of Customer trademark(s) for any other use or purpose requires Customer’s prior consent. Customer agrees to act as a reference for Company upon Company’s reasonable request.   Notwithstanding the above,  Customer grants Company a non-exclusive license to use its trademarks, tradenames and/or logos, during the Term of this Agreement to provide the Services. 
   7. Existence of Agreement. Notwithstanding anything to the contrary in this Agreement, both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure of the terms and conditions is approved in writing by both Parties prior to such disclosure or is included in a filing required to be made by a party with a Regulator  (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis. 

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9. RECORD RETENTION

Company will retain any and all records, logs and procedures in accordance with commercially accepted industry practices that relate to Company or that pertain directly to the provision of Services under this Agreement, whether stored in electronic or hard copy, including with respect to Consumer Information, Customer Data, finances, facilities, security, systems and procedures (“Records”), in accordance with the longer of Company’s records retention guidelines or as required by applicable law. 

10. REPRESENTATIONS AND WARRANTIES
    
    1. Customer Warranties. As of and from the date of this Agreement and continuing all times during the existence thereof, Customer represents and warrants to Company as follows:
       
       1. This Agreement has been duly authorized, executed, and delivered by Customer and constitutes a legal and binding agreement of Customer, enforceable in accordance with its terms.
       2.  Entry into and performance under this Agreement is not now and will not be restricted by any article of incorporation, partnership agreement, article of organization, charter, bylaw, operating agreement, judgment, decree, statute, rule, regulation, contract, or agreement of any kind applicable to Customer.
       3. Customer has all necessary rights, licenses, consents or authorizations required for Company to access and use Customer Data pursuant to and in accordance with this Agreement.
       4. Customer will comply in all material respects with all laws and regulations applicable to its use of the Services. 
       5.  Customer has all the necessary licenses, approvals, notices, and consents for the features and functionalities of the Services to be used in a legally compliant manner by Permitted Users and End Users, as applicable.  
       6. Both Parties agree to comply with all applicable data protection and privacy laws. Customer is responsible for obtaining all necessary consents and for providing any required notices to its end-users regarding the collection and use of their data.
    2. Company Warranties. As of the Effective Date of this Agreement and continuing all times during the existence thereof, Company represents and warrants to Customer as follows:

1.   This Agreement has been duly authorized, executed and delivered by Company and constitutes a legal and binding agreement of Company, enforceable in accordance with its terms.
2.   Entry into and performance under this Agreement is not now and will not be restricted by any article of incorporation, partnership agreement, article of organization, charter, bylaw, operating agreement, judgment, decree, statute, rule, regulation, contract, or agreement of any kind applicable to Company.
3. Company will comply in all material respects with all laws and regulations applicable to its provision of the Services. 
4. Company will provide the Services in accordance with this Agreement in a timely and professional manner by individuals of suitable competency, training and skill, and the Services shall substantially conform in all material respects to the applicable specifications, documentation, or Order Form or SOW.
5. Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services.  Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Where possible, Company shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THE AGREEMENT) ARE MADE ON BEHALF OF THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AND SERVICE PROVIDERS.  COMPANY DOES NOT PROVIDE ANY TAX, ACCOUNTING, REGULATORY OR LEGAL ADVICE, AND NOTHING PROVIDED IN CONNECTION WITH THE COMPANY’S SERVICES CONSTITUTES SUCH ADVICE. CUSTOMER’S USE OF THE INFORMATION AND MATERIALS MADE AVAILABLE THROUGH THE SERVICES IS AT CUSTOMER’S SOLE RISK.  CUSTOMER AGREES THAT IT MUST EVALUATE—AND BEARS—ALL RISK ASSOCIATED WITH THE USE OF THE INFORMATION, INCLUDING THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY MATERIALS AVAILABLE THROUGH THE SERVICES. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  CUSTOMER AGREES THAT IT IS  SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ENSURING THAT (i) THE SERVICES ARE FIT FOR ITS INTENDED PURPOSE, (II) IT HAS INDEPENDENTLY REVIEWED THE FEATURES AND FUNCTIONALITIES OF THE SERVICES IT HAS CHOSEN TO LICENSE UNDER THIS AGREEMENT, INCLUDING ANY APPLICABLE ORDER FORM(S) OR SOW(S),  AND (III) THE USE OF THE SERVICES COMPLIES WITH ITS OWN REQUIREMENTS, LAWS AND REGULATIONS GOVERNING AND APPLICABLE TO ITS USE, INCLUDING ANY USE BY PERMITTED USERS OR END USERS, OF THE SERVICES. CUSTOMER AGREES THAT ITS PURCHASES ARE NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, OR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS MADE BY COMPANY REGARDING FUTURE FUNCTIONALITY OR FEATURES.

11. MUTUAL INDEMNIFICATION
    
    1. By Company.  Company agrees to (a) defend Customer against any demand, claim, action or suit by an unaffiliated third party (each, a “Claim”) that (i) the Software infringes any U.S. patent or U.S. copyright or misappropriates any trade secret of such third party, or (ii) any material security breach resulting in a disclosure of Customer Data or Consumer Information to an unauthorized third party, solely to the extent that such breach results from Company’s failure to adhere to any explicitly agreed upon standards; and (b) indemnify Customer for associated settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys’ fees) finally awarded to such third party by a court of competent jurisdiction or agreed to as part of a monetary settlement arising out of such Claim (collectively, “Losses”). 

Notwithstanding anything to the contrary herein, with respect to Company’s indemnification obligation pursuant to Section 11.1, Company shall have no liability or obligation to Customer (a) to any content not created by Company; or (b) for Claims based on portions or components of the Services (i) resulting in whole or in part from Customer specifications or configurations, (ii) that are modified after delivery by Company, (iii) combined with other commercially unforeseen products, processes or materials where the alleged infringement relates to such combination, (iv) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) where Customer’s use is not strictly in accordance with this Agreement or any documentation related to the Software and Services provided to Customer. 

2. By Customer. Customer agrees to (a) defend Company, its Affiliates, and each of their respective employees, directors, contractors, and licensors against any Claim arising out of or relating to (i) use of the Services by Customer or Permitted Users not in accordance with the terms of this Agreement, or in violation of applicable laws or regulations, or (ii) any third party that gains access to the Services as a result of Customer’s or Permitted User’s failure to take reasonable measures to prevent unauthorized access to the Services; and (b) indemnify Company for associated Losses.  
3. Procedure. The obligations set forth in this Section are conditioned upon the following: (a) the Party seeking indemnification ("Indemnitee") must notify the indemnifying Party ("Indemnitor") in writing, promptly after receipt of actual notice of any Claim; (b) Indemnitor shall have sole control and authority with respect to the defense, litigation, compromise or settlement of such Claim (except to the extent that any settlement involves material commitments, responsibilities, or obligations on the part of Indemnitee in which case such settlement shall require the prior written consent of Indemnitee, which consent shall not be unreasonably delayed, conditioned, or withheld); and (c) Indemnitee shall provide reasonable information, cooperation and assistance as required by Indemnitor (at Indemnitor's expense). Indemnitee reserves the right to participate at its own cost in any proceedings with counsel of its own choosing, provided, however, that Indemnitee shall at all times be subject to Indemnitor's sole control and authority with respect to defending, litigating or settling the Claim.

12. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF COMPANY (INCLUDING AFFILIATES), WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO COMPANY BY CUSTOMER FOR THE SERVICES IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. U.S. GOVERNMENT MATTERS

The Service and Software are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer will not import, export, re-export, transfer or otherwise use the Software or Service in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria); (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List; or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Software and Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause Company to violate these laws and regulations.

14. THIRD-PARTY PROVIDERS
    
    1. Third-Party Services. During the Term and in connection with the Services, Company may make available to Customer and End Users, or Customer may otherwise have access to, certain resources, materials, services, and/or products (e.g. other third party services made available through a Marketplace or similar catalog) offered by third parties (the “Third-Party Provider(s)”) or by certain Affiliates of Company, including without limitation, certain web-based, mobile, offline or other software applications that Customer may choose to enable, configure or otherwise utilize (collectively, “Third-Party Service(s)”). The Parties acknowledge and agree that Customer’s acquisition or use of Third-Party Services or engagement with or exchange of data between it and any Third-Party Service are solely between Customer and the applicable Third-Party Service, unless expressly provided otherwise in an applicable Order Form or SOW. The Parties acknowledge and agree that “Services” as used hereunder excludes the Third-Party Services.
    2. Additional Terms. Customer acknowledges and agrees that use of Third-Party Services in accordance with this Agreement may be subject to additional terms and conditions as set forth by the applicable Third-Party Service (“Third-Party Service Terms”). Customer shall comply with such Third-Party Service Terms and Customer’s use, access or other interaction with Third-Party Services, including with respect to payment, shall be solely governed by such Third-Party Service Terms. 
    3. Third-Party Provider Use of Data. Customer acknowledges that the Company does not manage or control the data or information, including Consumer Information, that Customer accesses, stores or distributes through Third-Party Services, and Company accepts no responsibility or liability for such data or information. If Customer chooses to use Third-Party Services in connection with the Services, notwithstanding anything to the contrary in this Agreement, Customer hereby grants to Company all necessary rights, permissions and authorizations to allow the Third-Party Provider of such Third-Party Service access to Customer Data solely as necessary for the interoperation of such Third-Party Services with the Services, and Customer hereby acknowledges that Company shall have no responsibility for any disclosure, modification or deletion of such Customer Data resulting from Customer’s access or use of such Third-Party Services.
    4. Interoperability with Services. The Services may contain features designed to interoperate with certain Third-Party Services, and Customer acknowledges and agrees that to use such features Customer may be required to obtain access to such Third-Party Services and may be required to grant Company access to its accounts with respect to such Third-Party Services. Customer acknowledges and agrees that the use and availability of such Service features is subject to Company’s reasonable discretion and the continued interoperability with the applicable Third-Party Services in a manner acceptable to Company, including with respect to compliance with terms and conditions governing such Third-Party Provider’s use of Company’s API or other proprietary software or services.
    5. Third-Party Services Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREUNDER, COMPANY SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF CUSTOMER’S USE OF THIRD-PARTY SERVICES AND COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO—AND EXPRESSLY DISCLAIMS—ANY AND ALL WARRANTIES OR SUPPORT OF AND FOR THE THIRD-PARTY SERVICES AND THE INFORMATION, OR OTHER MATERIAL, PRODUCTS, OR SERVICES THAT ARE CONTAINED ON OR ACCESSIBLE THROUGH SUCH THIRD-PARTY SERVICES, INCLUDING WITH RESPECT TO ANY DATA OR INFORMATION ACCESSED THROUGH SUCH THIRD-PARTY SERVICES. ACCESS AND USE OF THIRD-PARTY SERVICES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON SUCH SITES OR AVAILABLE THROUGH SUCH SITES, IS SOLELY AT CUSTOMER’S OWN RISK. CUSTOMER HEREBY (I) AGREES TO WAIVE—AND HEREBY DOES WAIVE—ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES CUSTOMER HAS OR MAY HAVE AGAINST COMPANY’S OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, AND SUCCESSORS; (II) RELEASES COMPANY FROM ANY CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR RELATED TO DISPUTES WITH THIRD-PARTY PROVIDERS, USE OF THIRD-PARTY SERVICES, OR CUSTOMER DATA THAT CUSTOMER CHOOSES TO ACCESS, STORE, OR DISTRIBUTE THROUGH THE THIRD-PARTY SERVICES; AND (III) AGREES TO INDEMNIFY AND HOLD HARMLESS COMPANY, ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, CONTRACTORS, AND LICENSORS AGAINST ANY CLAIMS ARISING OUT OF OR RELATING TO CUSTOMER’S USE, INCORPORATION, RELIANCE OR OTHER UTILIZATION OF ANY THIRD-PARTY PROVIDER. 
15. MISCELLANEOUS
    
    1. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received (a) if personally delivered; (b) when receipt is electronically confirmed, if transmitted by facsimile or e-mail; (c) the day after it is sent, if sent for next day delivery by recognized overnight delivery service; or (d) upon receipt, if sent by certified or registered mail, return receipt requested.  
    2. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.  Any action or proceeding to enforce rights under this Agreement shall be brought exclusively in the courts of New York, NY and each Party hereby consents to its exclusive jurisdiction and venue. 
    3. Status of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and no one Party is authorized to act on behalf of the other Party or bind the other Party in any respect whatsoever. Company and Customer agree they are acting as independent contractors and under no circumstances will any of the employees of one Party be deemed the employee of the other for any purpose.
    4. Entire Agreement. Both Parties agree that this Agreement—together with and exhibits, applicable Order Forms, and applicable SOWs is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. 
    5. Severability. If any provision of this Agreement shall be determined to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 
    6. Waiver; Precedence. The failure of either Party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.  It is the intention of the Parties that this Agreement be controlling over additional or different terms of any Order Form, SOW or addenda, unless such Order Form, SOW, or addenda expressly states that it overrides this Agreement with respect to such terms.   Any amendments to the Agreement shall be effective only if made in writing and mutually agreed upon by the Parties. 
    7. Headings. Section headings are for convenience and are not to be considered a substantive part of this agreement. 
    8. Dispute Resolution. The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation; and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to this Section. The Parties will mutually agree, in cooperation with JAMS, with respect to the selection of one or more mediators and the scheduling and location of the mediation proceedings; provided the Parties acknowledge and agree to share the costs of mediation equally among the Parties. Either Party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first (“Initiation Date”). Except with respect to any claim to a court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this Section or as otherwise agreed upon by the Parties, neither Party shall initiate an arbitration or litigation related to this Agreement prior to the Initiation Date. For the avoidance of doubt, the Parties acknowledge and agree that offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.
    9. Assignment. Neither Party may assign this Agreement or any of its right or obligations hereunder without the other Party’s prior written consent; provided that either Party may assign this Agreement, and its rights and obligations, without the other Party’s consent to any third party who succeeds to substantially all of its business or assets, whether by sale of assets, merger or otherwise.  Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors, and permitted assigns. 
    10. Force Majeure. Neither Party shall be liable for delays in, or failure to deliver due to acts of God, acts of the other Party, acts of civil or military authority, acts of public enemy, fires, strikes, labor disputes, flood, epidemics, war, riots, civil disturbances, insurrections, accidents, explosions, earthquakes, the elements, or any other causes beyond their reasonable control, provided that such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans, or other means (including with respect to Company by Company meeting its obligations for performing disaster recovery services as described in this Agreement). In the event of a force majeure event, the non-performing Party will be excused from further performance or observance of the obligation(s) so affected for as long as such circumstances prevail and such Party continues to use commercially reasonable efforts to recommence performance or observance whenever and to whatever extent possible without delay.  Any Party so delayed in its performance will immediately notify the Party to whom performance is due by email (to be confirmed in writing within two (2) days of the inception of such delay) and describe at a reasonable level of detail the circumstances causing such delay.
        
    11. Product Updates. Company shall have the right to contact Customer’s employees and contractors that are using the Services to provide updates or communications regarding the Services during the Term (including, but not limited to, feature and product announcements).
        
    12. Legal Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees in accordance with applicable laws. 

Web Accessibility. If the Services involve web content and will be accessed by third parties, Company shall use commercially reasonable efforts to develop the Services in a manner consistent with appropriate web accessibility guidelines and shall have the Services tested against such standards.