Terms and Conditions

RECITALS

WHEREAS, Customer desires to obtain access to the Services with respect to certain of its marketing technology needs; and Company wishes to provide the Services to Customer, each on the terms and conditions set forth in this Agreement. This Agreement may change at any time by the sole discretion of Company without notice.

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

SERVICES

Purpose. This Agreement sets forth the terms and conditions under which Company agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a “Platform”) to Authorized Users, as further set forth on each order form (“Order Form”) and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and each Platform, as further set forth on each statement of services (“Statement of Work”) issued hereunder (Order Forms and Statements of Professional Services are sometimes referred to jointly as a “Statement of Services”).

The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Company shall use commercially reasonable efforts to provide Customer and Authorized Users access to the Platform. Subject to the terms and conditions of this Agreement, during the Term, Company hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non- transferable, non-refundable, worldwide license to access and use each Platform, solely for internal business purposes as set forth herein.

Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, subscription term and other applicable terms and conditions.

Professional Services. The Agreement does not include professional services beyond changes to the Platform that are performed set forth at 1.5.

Changes to Platform. Company may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Company’s products or services to its customers, (b) the competitive strength of, or market for, Company’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.

PLATFORM ACCESS AND AUTHORIZED USER

Administrative Users. During the configuration and set-up process for each Platform, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.

Authorized Users. Customer may allow such number of Customer’s employees, independent contractors, and Customer’s customers as is indicated on an Order Form to use the applicable Platform on behalf of Customer as “Customer Users.” Additionally, if applicable to a Platform, Customer may allow such number of designees (“Vendor Users” and together with Customer Users, “Authorized Users”) and, subject to Company’s then-current Vendor Terms of Use, of its vendors (“Vendors”) as is indicated on an Order Form, and their personnel, to access each Platform in connection with such Vendor’s activity with Customer through such Platform. Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable Platform.

Authorized User Conditions to Use. As a condition to access and use of a Platform, (i) each Authorized User shall agree to abide by the terms of Company’s end-user terms of use which it may adopt from time to time, (ii) Customer Users shall agree to abide by the terms of this Agreement, or a subset hereof, and (iii) Vendor Users shall agree to abide by the terms of the then-current Company Vendor Terms of Service applicable to such Platform, and, in each case, Customer shall ensure such compliance. Customer shall immediately notify Company of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User.

Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Company account, passwords (including but not limited to administrative and user passwords) and files. Company is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.

ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES

Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Company, and Customer will comply with Section 4 with respect thereto.

Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, each Platform, Software, and the Services in full compliance with this Agreement, Company’s end-user terms of use and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to a Platform provided by Company, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. Company may suspend Customer’s account and access to each Platform and performance of the Services at any time and without notice if Company believes that Customer is in violation of this Agreement. Although Company has no obligation to monitor Customer’s use of a Platform, Company may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.

Cooperation. Customer shall provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing Company with such access to Customer’s premises and its information technology infrastructure as is necessary for Company to perform the Services in accordance with this Agreement.

Training and Education. Customer shall use commercially reasonable efforts to cause Customer Users to be, at all times, educated and trained in the proper use and operation each Platform such Customer Users utilize, and to ensure that each Platform is used in accordance with applicable manuals, instructions, specifications and documentation provided by Company from time to time.

Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.

Restrictions on Export. Customer may not remove or export from the United States or allow the export or re- export of the Software or anything related to a Platform, Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.

DFARS. Software, each Platform and the Services and any documentation provided by Company are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the Software or documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.

Customer Support

Company is dedicated to providing exceptional customer support to ensure that our clients get the most out of our services. Our support structure is designed to assist you with any inquiries or issues you might encounter, ensuring that your experience with our platform is smooth and productive.

1. Support Channels:
- Support Ticket System: Our primary method of support is through our support ticket system, which is structured to handle a wide range of inquiries efficiently. This system allows us to track and manage support requests effectively, ensuring that every issue is addressed promptly.
- Email Support: For issues that cannot be resolved through our ticket system, customers can reach us via email at [support email address]. This channel is especially useful for matters that require detailed explanations or attachments.
- Chat Support: As necessary, we offer support through chat, providing real-time assistance for urgent or immediate concerns.
2. Scope of Support:
- While it is the customer's responsibility to configure and set up their account, we strive to offer as much assistance as possible. Our support team is here to guide you through understanding our platform's features and functionalities, aiding in the initial setup process to ensure you achieve the desired results.
- Our support encompasses guidance on using our platform effectively, troubleshooting issues, and clarifying any queries related to our services.
3. Response Times:
- We are committed to responding to all inquiries as swiftly as possible. While response times may vary based on the complexity of the issue and the current volume of support requests, we aim to acknowledge receipt of support tickets and emails within regular business hours (9:00 AM EST and 5:00PM EST).
4. Support Availability:
- Our customer support is available during [specify business hours and time zone]. Please note that response times may be longer during weekends and public holidays.
5. Customer Success:
- Our goal is not just to resolve technical issues but also to ensure that you are achieving success with our services. We welcome feedback and suggestions on how we can enhance your experience and better meet your needs.

We encourage our customers to utilize these support channels for any assistance required. Our team is dedicated to providing you with the necessary support to ensure your satisfaction and success with our services.

CONFIDENTIALITY

Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Company includes non-public information regarding features, functionality and performance of each Platform and Software. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for Customer (“Customer Data”), but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are Company’s Confidential Information.

Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.

Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.

Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.

PROPRIETARY RIGHTS

Ownership. Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, including any and all databases and data therein provided by Company with the software as a service (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all of its right, title and interest in such Services IP to Company.

Customer Data and Vendor Information License. Customer hereby grants to Company a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and the Services, both during and after the Term, and (ii) Vendor Information for any lawful purpose. “Vendor Information” means any Vendor list or Vendor contact information that is provided to Company by Customer or uploaded to any Platform by or on behalf of Customer. For the avoidance of doubt, Company may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, de- identified, or otherwise rendered not reasonably associated or linked to Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Company. It is Customer’s sole responsibility to back-up Customer Data during the Term, and Customer acknowledges that it will not have access to Customer Data through Company or any Platform following the expiration or termination of this Agreement.

No Other Rights. No rights or licenses are granted except as expressly set forth herein.

FEES & PAYMENT

Fees. Customer will pay Company the then-applicable fees described in an Order Form or Statement of Work, as applicable, in accordance with the terms set forth therein (“Fees”), including, for the avoidance of doubt, any fees incurred through Customer’s use of a Platform exceeding a services capacity parameter specified on an Order Form.

Renewal Fees. Upon the commencement of each Renewal Term, (i) Customer shall be liable to Company for payment of a Renewal Fee. Customer hereby consents to Company charging any such Renewal Fee to the credit card, or other payment method, associated with Customer’s account without need to provide any further notice or receive any further consent. Each “Renewal Fee” shall equal the Service Fee or Renewal Fee, as applicable, due to Company during previous term as may be increased in Company’s sole discretion by a percentage up to the Fee Increase Percentage specified on the applicable Order Form; provided, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Service Fee shall be prorated to one (1) year. Notwithstanding the foregoing, if Customer is not liable to Company for a Service Fee under an Order Form, no Renewal Fees shall be charged to Customer with respect to such Order Form.

No Refunds or Exchanges. Customer acknowledges and agrees that capital audience services are non-refundable.

Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse Company for reasonable out-of-pocket expenses incurred by Company in connection with performing the Professional Services.

Payment. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, Company may suspend Services in the event of payment delinquency.

Payment Disputes. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department or the applicable Account Manager.

Taxes. Customer shall pay, and shall be labile for, all taxes relating to Company’s provision of the Services hereunder. Company shall pay, and shall be liable for, taxes based on its net income or capital.

No Deductions or Setoffs. All amounts payable to Company hereunder shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.

Subpoena Expenses. If Company has to provide information in response to a subpoena related to Customer’s account, then Company may charge Customer for Company’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.

TERM AND TERMINATION

Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of each Statement of Services shall begin on the applicable “Services Effective Date” and continue for the “Service Term,” in each case as specified in such Statement of Services. Each Order Form shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least sixty (60) days, but not less than thirty (30) days, prior to the expiration of the then current term.

Termination. Company may terminate this Agreement upon written notice to Customer if no Statement of Services is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party. Notwithstanding the foregoing, if Customer is a state agency or a political subdivision of a state, or a federal agency or a political subdivision of the federal government, Customer may terminate this Agreement at any time (i) for convenience upon ninety (90) days’ written notice to Company, or (ii) if adequate funds to pay Company all fees owed hereunder are not appropriated to such Customer during the Term, unless otherwise authorized by law; provided, it is expressly agreed that Customer shall not activate this non-appropriation provision for its convenience, substation for another procurement system or solution, or to circumvent the requirements of this Agreement in any way.

Effect of Termination. Upon termination of the Agreement, each outstanding Statement of Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and Company shall immediately cease providing the Professional Services. If (i) Company terminates this Agreement pursuant to the second sentence of Section 7.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.

Survival. Sections [3.1, 4–6, 7.1, 7.3, and 9–17] shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.

Refund and Cancellation Policy

Company operates with a strict no-refund policy. Our commitment is to provide the highest quality service to all our customers, and the following terms outline our Refund and Cancellation Policy:

1. No Refunds: Once a service is purchased or a subscription term has commenced, we do not offer refunds or credits for any partial subscription periods or unused services. We encourage our customers to review their needs carefully before purchasing or renewing a subscription.

2. Billing Management: Customers have the ability to manage and oversee their own billing directly within our platform. This includes the capability to review upcoming charges and make necessary adjustments to subscription plans.

3. Cancellation Policy:
- Customers may cancel their subscription at any time through their account settings on the platform.
- Upon cancellation, the subscription will remain active, and services will be available until the end of the current billing cycle. No further charges will be incurred after the cancellation.
- Please note that cancellation does not trigger a refund for the current or any previous billing cycles. Services will continue to be provided until the end of the paid term.

4. Notification of Charges: We ensure to notify customers of upcoming charges in a timely manner, providing an opportunity to review and manage subscriptions accordingly.

5. Changes in Services or Fees: We reserve the right to modify our services and pricing. Any changes in subscription fees will be communicated to our customers in advance.

We advise our customers to understand these terms fully. By subscribing to our services, customers agree to this Refund and Cancellation Policy. If you have any questions or require clarification regarding this policy, please contact our customer support team.

Contact Information
For any assistance, queries, or support related to billing, services, technical issues, or general inquiries, our customers are encouraged to utilize our support ticket system. This system is designed to provide an organized and efficient method of communication, ensuring that all customer interactions are meticulously tracked and addressed without omission.

Support Ticket System: Customers should use our support ticket system for all support-related inquiries, including but not limited to billing issues, service-related questions, assistance requests, bug reports, or any other reasons for contact. This system helps us maintain a clear record and timely response to all customer communications.

Email Support: In the event a customer is unable to access their account or the support ticket system, we are available via email at [email protected]. This email should be used exclusively for issues related to account access or if the support ticket system is inaccessible.

Legal Notices: All legal correspondence, including notices, summons, or other legal documents, should be directed to the following address:

Attn: Legal
Capital Audience
9169 W State St #701
Garden City, IDAHO, 83714
United States

Please note that this address is solely for legal communications and will not address support or general queries.

Corporate and Sales Inquiries: For corporate relations, sales inquiries, or business-related communication, please reach out to [email protected]. Our team will be pleased to assist with any information or queries regarding our corporate operations and sales opportunities.

Accessibility and Non-Discrimination

Company is committed to ensuring digital accessibility for people with disabilities. We are continually improving the user experience for everyone and applying the relevant accessibility standards to guarantee we provide equal access to all users.

1. Accessibility: Our goal is to make our platform as accessible as possible. To achieve this, we aim to design and develop our services following the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA, which outlines ways to make web content more accessible to people with disabilities. We regularly audit our services and make necessary adjustments to facilitate ease of use for all.
2. Assistance and Feedback: If you experience any difficulty in accessing any part of this website or our services, please feel free to email us at [[email protected]]. We welcome your feedback and will consider it as we evaluate ways to accommodate all of our customers and our overall accessibility policies. Additionally, while we do not control such vendors, we strongly encourage vendors of third-party digital content to provide content that is accessible and user-friendly.
3. Non-Discrimination: We are committed to providing a friendly, safe, and welcoming environment for all, regardless of gender, sexual orientation, disability, ethnicity, race, age, religion, or nationality. We respect and value diverse life experiences and heritages and ensure that all voices are valued and heard.
4. Continuous Improvement: We view accessibility as an ongoing effort and are continuously working to increase the accessibility and usability of our website and services.
5. Legal Compliance: In addition to our commitment to accessibility, we are committed to abiding by all applicable laws and regulations regarding non-discrimination and making accommodations for individuals with disabilities.

We are dedicated to making our services accessible and usable for all customers, and we welcome your questions or comments about this policy and our efforts to make our services more accessible to everyone."

WARRANTY AND DISCLAIMER

Warranties. Company represents and warrants that it will perform the Professional Services in a professional and workmanlike manner. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by a Platform and the Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and each Platform and the Services does not and shall not violate any Customer’s privacy policy, terms- of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (iii) no Customer Data will include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act.

Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, Company DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES Company MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, Company MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN Company AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND Company DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

INDEMNITY

Indemnification by Company. Company will defend Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any Platform or Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, a Platform is held by a court of competent jurisdiction to be or is believed by Company to be infringing, Company may, at its option and expense (a) replace or modify such Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using such Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Platform. This Section states Customer’s sole and exclusive remedies for claims of infringement.

LIMITATION OF LIABILITY

IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Compliance with Laws
Company is fully committed to conducting its business in compliance with all applicable laws, rules, and regulations of the jurisdictions in which it operates. This commitment extends to every aspect of our business operations, including but not limited to:

1. Adherence to Legal Standard: We ensure that our services, practices, and procedures strictly adhere to the legal and regulatory requirements of the State of Idaho, as well as federal laws and any other applicable local laws.
2. Industry-Specific Regulations: Understanding the specific legal requirements of the industries we serve, we are committed to aligning our services with industry-specific regulations and standards. This includes respecting intellectual property rights, consumer protection laws, data protection and privacy laws, and any other sector-specific legal obligations.
3. Data Protection and Privacy: We place utmost importance on the privacy and security of our users' data. Our practices are designed to be compliant with relevant data protection laws such as the General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and other applicable data protection regulations.
4. Updates and Amendments: We continuously monitor changes in the legal landscape and will amend our policies, practices, and services as necessary to remain in compliance with evolving laws and regulations.
5. User Responsibility: While we strive to ensure full legal compliance, users of our platform are also responsible for ensuring that their use of our services is in compliance with all applicable laws and regulations. This includes adherence to export control laws, anti-bribery and corruption laws, and any other legal requirements relevant to their usage of our services.
6. Reporting and Transparency: We are committed to maintaining a high level of transparency in our operations and will provide necessary reporting and disclosures as required by law.

By using our services, users agree to comply with all applicable laws and regulations and to use our services only for lawful purposes. Any violation of applicable laws or regulations through the use of our services will be the sole responsibility of the user.

This section does not encompass all legal obligations and requirements applicable to the company or the users of our services. Users are encouraged to seek independent legal advice to ensure compliance with all applicable laws.

GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement is governed in all respects by the laws of the State of Idaho, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Boise, Idaho by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.

SECURITY

Company may, from time to time, host and/or maintain a Platform using a third party technology service provider and Customer acknowledges that Company cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.

PUBLICITY

Customer agrees that Company may identify Customer as a customer and use Customer’s logo and trademark in Company’s promotional materials. Customer may request that Company stop doing so by submitting an email to Company at any time. Customer acknowledges that it may take Company up to 30 days to process such request. Notwithstanding anything herein to the contrary, Customer acknowledges that Company may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.

NOTICES

All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form.

All notices, consents and other communications between the parties under a Statement of Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.

FORCE MAJEURE

Company is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.

ASSIGNMENT

Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Company may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement.

GENERAL PROVISIONS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with Statement of Services entered into hereunder and all exhibits, annexes and addenda hereto and thereto 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. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Statement of Services, such Statement of Services shall prevail unless otherwise expressly indicated in this Agreement or such Statement of Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.