Master Platform Services Agreement

THIS MASTER PLATFORM SERVICES AGREEMENT (the “Agreement”) is entered into as of your purchase agreement signature date (the “Effective Date”), between Fuse Autotech, Inc. a Delaware corporation (“Provider”), with its principal place of business at 1010 Dale St, N. Saint Paul MN 55117, and the dealership aka (“Client”).

BACKGROUND

Provider has developed a single end-to-end management platform for use in the auto-retailing industry platform consisting of proprietary systems, methods and software (collectively, the “Provider Platform”) that Provider has made available via the Internet on a software-as-a-service basis (the “Platform Services”). The Provider Platform includes updates, bug fixes, error corrections or other minor enhancements, modifications and improvements to the specific Platform Services subscribed for by Client, along with related Documentation, made available to Client by Provider. Client desires to subscribe for one or more Platform Services as noted on a Services Order and, as and when desired, Professional Services as noted on a Services Order, each as specified from time to time and in accordance with the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other valuable consideration, the parties agree as follows:

AGREEMENT

1. DEFINITIONS.

“Client Data” means the information provided by Client that is used with the Platform Services, including but not limited to (i) Personal Data and (ii) access information relating to the Client’s software and/or systems (including without limitation login information, usernames and passwords).
“Documentation” means any proprietary Provider-developed documentation that is generally made available by Provider to subscribing users for use with the Platform Services and Provider Platform (whether such documentation is made available online, in printed form or otherwise), as amended or updated by Provider from time to time in its discretion.
“Intellectual Property Rights” shall mean all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
“Personal Data” means any non-public information (a) which alone or in combination with other information can be used to identify a living natural person, or (b) that identifies, relates to describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or a group of individuals who cohabitate with one another at the same residential address.
“Professional Services” means such services as set forth in Schedule 1 hereto as may be mutually agreed to and amended by the parties from time to time.
“Platform Services” has the meaning set forth in the “Background”.
“Services Order” means a written order placed by Client with Provider under which Client subscribes for the Platform Services, Support Services, and Professional Services as set forth in such order, and which order shall specify the applicable term, subscription fees, and other additional matters applicable to such order as then mutually agreed between Client and Provider. The initial Services Order is attached as Schedule 1 to this Agreement.
“Support Services” means the support and maintenance services described on Exhibit A to this Agreement to be provided by Provider with respect to the Platform Services.
“Users” means employees of Client who are authorized to use the Provider Platform and the Platform Services and who have been supplied user identifications and passwords by Client pursuant to Section 2.1 below.

2. ACCESS TO PLATFORM SERVICES.

Access and Use. Subject to the terms and conditions of this Agreement, Provider grants to Client during the Term, a limited, non-exclusive, non-transferable right and license, without the right to sublicense, for its Users to access and use the Platform Services via the Provider Platform for Client’s internal business purposes and not for the benefit of any other person or entity.
Use Restrictions. Client shall not, directly or indirectly, and Client shall not permit any User or third party to, (a) copy the Provider Platform, the Platform Services, or the Documentation, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any the Provider Platform, the Platform Services, or the Documentation; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Provider Platform, the Platform Services, or the Documentation to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt the Provider Platform, the Platform Services, or the Documentation, or otherwise attempt to derive or gain access to the source code of the Provider Platform, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Provider Platform, the Platform Services, or the Documentation; (f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Provider Platform, the Platform Services, or the Documentation; (g) use the Provider Platform, the Platform Services, or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; (h) use the Provider Platform, the Platform Services, or the Documentation for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Provider’s detriment or commercial disadvantage; or (i) use (i) the Provider Platform, the Platform Services, or the Documentation other than for Client’s internal business purposes or in any manner or for any purpose or application not expressly permitted by this Agreement or (ii) any Open Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open Source License.

3. SECURITY MATTERS.

No Circumvention of Security. Client is responsible for any and all access and use of the Platform Services or Provider Platform of Client’s Users or that otherwise occurs under Client’s account. Neither Client nor any User may circumvent or otherwise interfere with any user authentication or security of the Platform Services or Provider Platform. Client will promptly and without undue delay notify Provider of any breach, or attempted breach, of security of the Platform Services or Provider Platform that becomes known to Client.
Provider Security Measures. Provider will maintain commercially reasonable administrative and technical security measures intended to protect against unauthorized access to, disclosure or use of any Personal Data stored by Provider on the Platform Services in connection with Client or its Users’ use of the Platform Services or Provider Platform.
CLIENT OBLIGATIONS FOR HARDWARE AND SOFTWARE. Client is responsible for (i) obtaining, deploying and maintaining the Client’s computer hardware, software, modems, routers and other communications equipment and systems necessary for Client and its Users to access and use the Platform Services and Provider Platform via the Internet; (ii) contracting with an Internet service provider or other service providers to access and use the Platform Services and Provider Platform via the Internet; and (iii) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in this Agreement or Services Order, Provider shall not be responsible for supplying any hardware, software, or other equipment to Client under this Agreement.

4. SUPPORT SERVICES.

Performance. Subject to the terms and conditions of this Agreement, Provider will provide the Support Services for the Platform Services during the Term in accordance with the terms of a relevant Services Order. Enhancements to the Provider Platform made generally available at no cost to all subscribing customers for Platform Services during the Term will be made available to Client at no additional charge. However, the availability of some new enhancements (those that are not made generally available to all Provider subscribing customers at no charge) to the Provider Platform may require the payment of additional fees, and Provider will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. If an enhancement is an optional enhancement that Provider charges for, Client may choose whether or not to accept such enhancement. If the enhancement is a required enhancement that Provider charges for, then Client may assess such enhancement and the related charge for it and if Client elects not to accept such enhancement Client may, within 30 days of being notified of such enhancement, provide written notice to Provider to terminate this Agreement. Provider will use reasonable efforts to provide reasonable advance notice of the availability of optional and required enhancements that are subject to any charges. This Agreement will apply to, and the Provider Platform includes, any enhancements, updates, upgrades and new modules or offerings subsequently provided by Provider to Client hereunder.
Designated Provider Account Executive. Provider shall designate one of its employees (the “Designated Account Executive”) who will serve as Provider’s principal contact to address Client support matters, including any problems or issues with the Platform Services and Provider Platform on behalf of Client and its Users.
Designated Client Employee. Following the Effective Date, Client shall designate one of its employees (the “Designated Employee”) who will serve as Client’s principal contact for Provider’s support team and will be responsible for reporting problems or issues with the Platform Services and Provider Platform on behalf of Client and its Users.

6. FEES AND PAYMENT.

Subscription Fees. Client shall pay to Provider the subscription fees and charges (the “Subscription Fees”) for the Platform Services during the Term in accordance with the terms of any relevant Services Orders for the amounts set forth therein and in the manner provided for therein. Client shall pay the Subscription Fees to Provider for the Platform Services for Services Order No. 1 as set forth on Schedule 1.
Other Fees. Client shall pay to Provider the fees and charges, if any, set forth in an applicable Services Order, together with any reasonable out-of-pocket expenses that may be incurred by Provider or its personnel in connection with the Support Services or Professional Services, including any travel and living expenses.
Manner of Payment; Late Payments. Client shall pay Provider, for amounts due under this Agreement (including any and any Service Orders and Statements of Work) within thirty (30) days of the date of invoice. In the event that an invoice remains unpaid within 30 days of the invoice date, such unpaid amount shall accrue interest at the rate of 1.5% per month until such outstanding amount is paid in full (“Late Payment Interest”). The imposition of the Late Payment Interest shall be in addition to any other rights and remedies of Provider under this Agreement. If Client’s account is past due for thirty (30) days or more, then Provider reserves the right, without further notice, to discontinue access to the Provider Platform and the Platform Services and to suspend the performance of any outstanding Professional Services and Support Services until all past due invoices are paid in full. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction.
Related Taxes. Client shall pay all applicable sales, use and value-added taxes (except for taxes imposed on Provider’s net income) with respect to this Agreement or furnish Provider with evidence acceptable to the applicable taxing authority to sustain an exemption from such taxes. Client shall pay all applicable sales, use and value-added taxes (except for taxes imposed on Provider’s net income) with respect to this Agreement or furnish Provider with evidence acceptable to the taxing authority to sustain an exemption therefrom. All payments under this Agreement shall be made free and clear of (and without deduction for or grossed up for, as applicable) any withholding or other taxes levied by any country or jurisdiction on payments to be made pursuant to this Agreement that applicable law requires Client to withhold.

7. REPRESENTATIONS AND WARRANTIES.

Provider Warranty.
1. Platform Services Warranty. Provider represents, warrants, and covenants to Client that during the Term Provider will perform the Platform Services, Support Services, and Professional Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
2. Exclusions. The warranty in this Section 7.1 does not cover defects or non-conformities arising from (i) misuse of the Platform Services, the Provider Platform, or the Documentation, (ii) any modifications to the Platform Services made by any person or entity other than Provider that is not previously approved by Provider, (iii) any use of the Platform Services, Provider Platform, or the Documentation by Client or its Users beyond the scope of the express rights licenses granted in this Agreement, (iv) any use of the Platform Services or the Provider Platform in combination with other software, hardware or data not specified by Provider or otherwise necessary to utilize the Platform Services or the Provider Platform as intended, or (v) Provider’s compliance with Client’s request for changes to the Platform Services or with Client’s designs, specifications, or instructions.
3. Client Warranties. Client represents and warrants that Client has the right, including in respect of all relevant data privacy and other laws, to give Provider access to the Client Data and Personal Data, including without limitation, for use in connection with the Platform Services, Provider Platform, Professional Services, and Support Services.
4. Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 7 AND IN ANY SERVICES ORDER ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7 OR ANY SERVICES ORDER, THE PLATFORM SERVICES, PROVIDER PLATFORM, SUPPORT SERVICES, PROFESSIONAL SERVICES, AND THE DOCUMENTATION ARE PROVIDED ON AN AS-IS BASIS AND CLIENT’S USE OF THE PROVIDER PLATFORM, PLATFORM SERVICES, SUPPORT SERVICES, PROFESSIONAL SERVICES, AND THE DOCUMENTATION IS OTHERWISE AT ITS OWN RISK. PROVIDER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

NO AGENT OF EITHER PARTY IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SUCH PARTY SET FORTH HEREIN. PROVIDER DOES NOT WARRANT THAT THE PLATFORM SERVICES OR PROVIDER PLATFORM IS OR WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACKNOWLEDGES AND AGREES THAT THE PLATFORM SERVICES AND PROVIDER PLATFORM (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS OR “BUGS” AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, CLIENT MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE PROVIDER PLATFORM OR PLATFORM SERVICES. ACCORDINGLY, CLIENT SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE IT TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.

8. INDEMNIFICATION.

Provider Indemnity.

1. Indemnity. Provider shall, subject to the terms and conditions set forth in this Agreement, indemnify, hold harmless, and defend Client, its successors and assigns (and its and their officers, directors, employees, contractors, customers, and agents) from and against any and all third party claims, losses, liabilities, damages, settlements, expenses and costs(including, without limitation, attorneys’ fees and court costs) awarded to a third party by a court of competent jurisdiction or in a settlement approved by Provider which arise out of or relate to any and all third party claims or threats thereof against Client (a “Provider Indemnity Claim”) alleging (i) that Client’s use of the Provider Platform, Platform Services, or the Documentation in accordance with the terms of this Agreement infringes any United States copyright or United States patent, or (ii) any breach or alleged breach by Provider of any of its covenants, representations or warranties set forth in this Agreement. Provider’s obligations under this Section are conditioned upon (X) Provider being promptly notified in writing of such Provider Indemnity Claim, provided, however, that the failure to give such notice shall not relieve Provider of its obligations hereunder except to the extent that Provider was actually and materially prejudiced by such failure, (Y) Provider having the exclusive right to control the defense and/or settlement of the Provider Indemnity Claim, and (Z) Client providing reasonable assistance (at Provider’s request and expense) in the defense of the Provider Indemnity Claim. In no event shall Client settle any Provider Indemnity Claim without Provider’s prior written approval, which approval shall not be unreasonably withheld or delayed. Client may, at its own expense, engage separate counsel to advise Client regarding a Claim and to participate in the defense of the Provider Indemnity Claim, subject to Provider’s right to control the defense and settlement.
2. Mitigation. In the event of any such Provider Indemnity Claim or threat thereof, Provider, at its sole option and expense, may (i) procure for Client the right to continue to use the allegedly infringing Platform Services or Provider Platform, or (ii) replace or modify the Platform Services or Provider Platform, as applicable, with functionally equivalent software and/or Services. If neither subpart (i) nor (ii) of this paragraph is commercially reasonable or practical in the reasonable opinion of Provider, Provider may terminate this Agreement with respect to the allegedly infringing Platform Services or Provider Platform, and the license thereto granted hereunder, upon fifteen (15) days’ written notice to Client. In the event of such termination, Provider shall refund to Client any portion of Subscription Fees paid to Provider by Client for use of the allegedly infringing Platform Services or Provider Platform following the date of such termination.
3. Exclusions. Notwithstanding anything to the contrary in this Agreement, Provider shall have no obligations to Client pursuant to this Section 8.1 with respect to any infringement or alleged infringement resulting or arising from (1) any modifications to the Platform Services, Provider Platform, or Documentation made by any person or entity other than Provider that is not previously approved by Provider, (2) any use of the Provider Platform, Platform Services, or Documentation by Client or its Users beyond the scope of the express rights and licenses granted in this Agreement, (3) any use of the Platform Services, Provider Platform, or Documentation in combination with other service, software, hardware or data, or (4) Provider’s compliance with Client’s request for changes to the Platform Services, Provider Platform, Support Services, Professional Services, or Documentation or with Client’s designs, specifications or instructions.
Client Indemnity. Client shall indemnify, hold harmless, and defend, Provider and its licensors, successors and assigns (and its and their officers, directors, employees, contractors, customers, and agents) from and against any and all third party claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) awarded to a third party by a court of competent jurisdiction or in a settlement approved by Client which arise out of or relate to any and all third party claims or threats thereof against Provider (a “Client Indemnity Claim”) alleging (i) that the Client Data infringes any United States copyright or United States patent; or (ii) any breach or alleged breach by Client of any of its covenants, representations or warranties set forth in this Agreement. Client’s obligations under this Section are conditioned upon (X) Client being promptly notified in writing of such Client Indemnity Claim; provided, however, that the failure to give such notice shall not relieve Client of its obligations hereunder except to the extent that Client was actually and materially prejudiced by such failure, (Y) Client having the exclusive right to control the defense and/or settlement of the Client Indemnity Claim, and (Z) Provider providing reasonable assistance (at Client’s request and expense) in the defense of the Client Indemnity Claim. In no event shall Provider settle any Client Indemnity Claim without Client’s prior written approval, not to be unreasonably withheld or delayed. Client may not settle any claim for which indemnification is sought under this Section without the prior written approval of Provider, which approval shall not be unreasonably withheld or delayed.

9. CONFIDENTIALITY.

Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt, a reasonable person would treat as confidential and proprietary information, such “Confidential Information” includes, but is not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (iii) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (iv) the terms of this Agreement and any Services Order. Confidential Information of Provider shall include the Provider Platform and the Platform Services. Confidential Information of Client shall include the Client Data and Personal Data of Users. Confidential Information also includes all summaries and abstracts of Confidential Information.
Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter for a period of one-year, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it, unless such Confidential Information constitutes a trade secret, in which case, the Receiving Party shall keep such Confidential Information in confidence and trust until it is no longer a trade secret under relevant law. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the terms of this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, affiliates and agents who need access to such Confidential Information in order to carry into effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
Exceptions to Confidential Information. The definition of “Confidential Information” shall exclude, and the obligations set forth in Section 9.3 shall not apply to, information which: (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (i) assert the confidential nature of the Confidential Information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

10. DATA.

1. Client Data. Client shall be solely responsible for the accuracy, quality, legality, reliability, and appropriateness of, and the parties’ respective rights to, use all Client Data under this Agreement. In particular, Client has control over whether any Personal Data is collected and processed by the Platform Services and/or Provider Platform. Client represents and warrants that (i) it will provide all required notice(s) to and obtain all required consent(s) from each User regarding the Client’s collection, disclosure, analysis and use of Client Data, including any Personal Data, and (ii) that the collection, disclosure, analysis and use of Client Data, as contemplated under Section 11.3(a) of this Agreement, complies with all applicable laws, rules and regulations.
2. Usage Data. Notwithstanding anything else in the Agreement or otherwise, Provider may monitor Client’s and Users’ use of the Platform Services and Provider Platform and use data and information related to Client Data and Client’s and Users’ use of the Platform Services in an aggregate and/or de-identified manner, including to compile statistical and performance information related to the provision and operation of the Provider Platform and Platform Services. Client agrees that Provider may use such information to the extent allowed by applicable law or regulation and/or for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify (or cannot reasonably be associated with) Client or its Confidential Information. Provider retains all Intellectual Property Rights in such aggregated and de-identified data and information.

11. PROPRIETARY RIGHTS.

1. Ownership. Client acknowledges that the Provider Platform, the Platform Services, and Documentation, and all Intellectual Property Rights therein, are the sole and exclusive property of Provider and its licensors. Provider acknowledges that the Client Data and Personal Data of Users, and all Intellectual Property Rights therein, are the sole and exclusive property of Client and its licensors (or individual Users, as applicable). Each party retains all other rights not expressly granted in this Agreement.
2. Provider Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Provider, whether solely or jointly, including without limitation, in connection with Provider’s performance of the Platform Services, Support Services, or the Professional Services hereunder (collectively, “Provider Developments”), including all Intellectual Property Rights therein, shall be the sole and exclusive property of Provider.
3. License to Client Data. Client grants to Provider a royalty-free, nonexclusive, limited right and license to access and use the Client Data (a) during the Term, to provide the Platform Services and to analyze and improve Provider and the Platform Services; and (b) at any time, to compile and use data, statistics, measurements, or other metrics derived from Client Data (including in combination with the aggregate or de-identified customer data of other Provider customers) obtained during the Term, in each case solely in aggregate or de-identified form, for Provider’s own purposes. Aggregate or de-identified data means data that does not identify (or cannot reasonably be associated with) Client, any User or any individual natural person. The right in clause (b) of this Section 11.3 shall be irrevocable and perpetual.
4. Disclosure and Handling of Client Data. Provider shall not disclose Client Data or Personal Data of Users to third parties, except: (i) as necessary to provide the Platform Services to Client and Users; (ii) to Provider’s service providers who are not permitted to use such data except on behalf of Provider in connection with the Platform Services provided to Client; (iii) as required by law or to comply with legal process; (iv) to troubleshoot problems with the Platform Services as used by Client; (v) to any successor in interest, including as part of a merger, acquisition or transfer of assets, or as part of a bankruptcy proceeding; or (vi) in aggregate or de-identified form (and in a manner that cannot reasonably be associated with Client or any User).
5. Limited Feedback License. Client hereby grants to Provider, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under in and to any and all suggestions, comments and other forms of feedback (collectively, “Feedback”) provided by or on behalf of Client to Provider regarding the Platform Services and Provider Platform, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Platform Services and Provider Platform or any other products or services. Any such Feedback is provided “as is” without warranty of any kind and shall not include any Confidential Information of Client.

12. LIMITATION OF LIABILITY.

1. No Consequential Damages. EXCEPT FOR (I) THE INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY INDEMNITY CLAIMS FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT UNDER EITHER SECTION 9.1 OR 9.2, (II) DAMAGES ARISING FROM A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (III) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, NETHER PARTY OR ITS LICENSORS SHALL BE LIABLE TO THE OTHER HEREUNDER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF A PARTY OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE PROVIDER PLATFORM, PLATFORM SERVICES, PROFESSIONAL SERVICES, OR SUPPORT SERVICES OR RESULTS THEREOF. PROVIDER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
2. Limits on Liability. EXCEPT FOR (I) THE INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY INDEMNITY CLAIMS FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT UNDER EITHER SECTION 8.1 OR 8.2, (II) DAMAGES ARISING FROM A PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR (III) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY OR ITS LICENSORS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE SUM OF THE AMOUNTS HAVING THEN ACTUALLY BEEN PAID OR PAYABLE BY CLIENT TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.

13. TERM AND TERMINATION.

1. Term. The term of this Agreement (the “Term”) shall begin on the Effective Date and shall continue on a month to month basis from the Effective Date, unless earlier terminated in accordance with this Agreement. This Agreement shall automatically renew unless either Party provides the other Party with written notice of non-renewal thirty (30) days prior to the end of the then current Term (for removal of doubt, any notice of termination received prior to the end of any given month shall not take effect until the end of the immediately following month). Notwithstanding anything to the contrary herein, the Term shall be extended to the expiration or earlier termination of any outstanding Services Order that remain in effect.
2. Termination for Cause. Either party may terminate this Agreement (and all Service Orders then in effect) upon written notice to the other party in the event the other party either (a) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of written notice from the non-breaching party or such other period as the parties may agree upon in writing, or (b) becomes insolvent or bankrupt or admits its inability to pay its debts as they come due, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business, and or becomes subject to a bankruptcy or insolvency proceeding such proceeding (provided that if such proceeding is an involuntary one it shall only be a basis for termination if such proceeding has not been dismissed or stayed with 60 days of commencement thereof) (any of the conditions in this clause (b) that gives rise to a termination for cause is referred to as an “Insolvency Condition”).
3. Effects of Termination. Upon expiration or termination of this Agreement, (i) Client’s use of and access to the Platform Services and Provider Platform, and the obligation of Provider for the performance of all Support Services and Professional Services, shall cease; (ii) all Service Orders shall terminate; and (iii) all fees and other amounts owed under this Agreement through the date of termination shall be immediately due and payable by Client, including without limitation, as to Subscription Fees and any other fees payable under any outstanding Services Order through the date of termination on a pro-rata basis of the fees incurred for any partially completed Services Order Term or partially completed Professional Services. In addition, within thirty (30) days of the date of termination each Receiving Party shall (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing. Following such 30-day period, Provider shall have no obligation to maintain or provide any Client Data and may thereafter unless legally prohibited, delete all Client Data in its systems or otherwise in its possession or under its control.
4. Survival. This Section and Sections 1 (Definitions), 2.2 (Use Restrictions), 6 (Fees and Payments), 7 (Representations and Warranties), 8 (Indemnification), 9 (Confidentiality), 10 (Data), 11 (Proprietary Rights), 12 (Limitation of Liability), 13.3 (Effects of Termination), and 14 (Miscellaneous) shall survive any termination or expiration of this Agreement.

14. MISCELLANEOUS.

1. Notices. Whenever, under the terms of or in connection with this Agreement, any notice, consent, approval, authorization or other information is proper or required to be given by either party, such notice, consent, approval, authorization or other information shall be in writing and shall be given or made by reputable overnight courier with documentation of receipt to the intended recipient thereof or by registered or certified mail, return receipt requested, and with all postage prepaid, to the address set forth in the preamble of this Agreement, or to such other address for either party as may be supplied by notice given in accordance herewith.
2. Amendment; Waiver. This Agreement may only be amended or supplemented by a writing that is signed by duly authorized representatives of both parties. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
3. Severability. If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve, as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
4. Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Delaware as applied to agreements entered into and to be performed in such state without giving effect to conflicts of laws rules or principles. For any disputes arising out of this Agreement, the parties consent to the exclusive jurisdiction and venue in the state and federal courts located in the State of Delaware.
5. Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); any public health emergency, epidemic or pandemic; or any other event beyond the reasonable control of the party whose performance is to be excused. In the event that Provider is prevented by a force majeure condition from performing its obligations hereunder for a period of at least thirty (30) consecutive days, the Client may terminate this Agreement upon written notice and thereafter Client shall have no further obligation for any payments under this Agreement for use of the Platform Services or Provider Platform other than amounts owing through the date of termination (including any then past due payments).
6. Assignment. Neither party may assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without the other party’s prior written consent; provided that either party may assign this Agreement to a successor in interest of all or substantially all of its business or assets in connection with an acquisition, sale or transfer of all or substantially all of the assigning party’s assets, stock or business by sale, merger, consolidation or similar transaction.
7. Relationship of the Parties. Provider is an independent contractor to Client. There is no relationship of agency, partnership, joint venture, employment or franchise between the parties as a result of this Agreement. Neither party has the authority to bind the other or to incur any obligation on its behalf.
8. Counterparts; Electronic Signatures. This Agreement may be executed in two counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto shall be bound until both parties have duly executed a counterpart of this Agreement. Signatures may be made and exchanged by electronic or digital means.
9. Entire Agreement. This Agreement, including all Services Orders. Exhibits, and Schedules to this Agreement, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral, concerning such subject matter.