Product Service Terms

Last Updated: June 11, 2024

These SERVICE TERMS (“Agreement”) are between Mogli Technologies, LLC a Delaware Limited Liability Company (“Company”) and the party signing an SOF (as defined below) that references this Agreement (the “Client”) to establish the terms pursuant to which Client will purchase, and Company will provide, access to Company’s proprietary solution that allows Client to message and communicate with their stakeholders through channels such as text messaging, WhatsApp, voice, and others. This Agreement is effective as of the date Client signs the initial SOF (the “Effective Date”). THE SERVICES AND CLIENT’S ACCESS TO AND USE OF THE PLATFORM (EACH, AS DEFINED BELOW) ARE EXPRESSLY CONDITIONED ON CLIENT’S ACCEPTANCE OF THIS AGREEMENT, AND CLIENT MAY ONLY ACCESS AND USE THE PLATFORM, AND COMPANY WILL ONLY PROVIDE THE SERVICES, UPON THE TERMS AND CONDITIONS HEREIN. ANY INDIVIDUAL SIGNING AN SOF AND AGREEING TO BE BOUND BY THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL HAS THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, IF THE PARTIES HAVE OTHERWISE AGREED TO A SEPARATE WRITTEN AGREEMENT SIGNED BY AUTHORIZED REPRESENTATIVES OF EACH PARTY GOVERNING THE SERVICES AND CLIENT’S ACCESS TO AND USE OF THE PLATFORM (THE “SERVICES AGREEMENT”), SUCH SERVICES AGREEMENT APPLIES AND THIS AGREEMENT WILL BE OF NO FORCE OR EFFECT.

The Parties agree as follows:

1. DEFINITIONS

1.1 "Client Data” means the content, data, and information input into the Platform by or on behalf of Client or transmitted via the Messaging Services. Client Data includes Messaging Data but does not include Usage Data or Aggregated Data.
1.2 “Content” means content, data, and information that is owned by Company or any of its licensors that is provided or made available by Company through use of the Platform or as part of or in connection with Company’s provision of Services. Content does not include Client Data.
1.3 "Messaging Data” means any messages, communications, information, data, text, sound, sender, recipient or similar information, transmitted via the Messaging Services.
1.4 “Messaging Services” means the messaging service made available through the Platform, whereby Company will send Messaging Data on behalf of Client to Client’s selected messaging recipients via phone, short messaging services, mobile app, or similar tools through the Services.
1.5 "Platform” means Company’s proprietary platform and downloadable applications available on the third party application stores that are utilized by Company to provide the Software to Client under this Agreement. The Platform does not include Client’s connectivity equipment, internet and network connections, hardware, software and other equipment as may be necessary for Client and its Users to connect to and obtain access to the Platform or to utilize the Services.
1.6 “Professional Services” means those consulting, implementation, configuration, customization, analysis, training, professional and other services and assistance to be provided by Company or its subcontractors to Client as described in any applicable SOW; provided, however, Professional Services does not include those services that fall within the description of “Support Services.”
1.7 “Services” means collectively, Professional Services, access to the Platform, Support Services, and the other services made available on, by, or through the Platform by Company under this Agreement, including, but not limited to, the Messaging Services.
1.8 “Software” means the software as a service application identified in an associated SOF and made available through remote access by Company to Client and Users as part of the Platform, including any modified, updated, or enhanced versions that may become part of the Software.
1.9 “SOF” means Company’s software order form signed by both parties that references this Agreement. Each SOF is incorporated by reference into this Agreement.
1.10 “SOW” means the general engagement plan for any Professional Services to be performed by Company under this Agreement, executed pursuant to and made a part of this Agreement from time to time. Each SOW is incorporated by reference into this Agreement.
1.11 “Support Services” means Company’s standard chat and email technical support services.
1.12 “Usage Data” means any content, data, or information that is collected or produced by the Platform in connection with use of the Services that does not identify Client or its Users, and may include, but is not limited to, usage patterns, traffic logs, and user conduct associated with the Platform.
1.13 “Users” means Client’s employees, independent contractors, and other individuals who are authorized by Client to use the Services on behalf of Client.

2. ACCESS TO THE PLATFORM; TRIAL PERIODS

2.1 Subject to the terms and conditions of this Agreement, including Client’s payment of all applicable fees, Company grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license, during the term of this Agreement, to access and use the Platform for its lawful business purpose in accordance with the terms and conditions of this Agreement and subject to any usage limitations set forth in the applicable SOF (the “Usage Limitations”). If a SOF indicates that Client has the right to use the Platform on a trial basis, and notwithstanding the foregoing and subject to the terms of this Agreement, Client may access and use the Platform on a trial basis and free of charge for the period set forth in the applicable SOF (“Trial Period”). Client’s right to access and use of the Platform will automatically terminate following such Trial Period, unless Client has paid in full all applicable fees in accordance with this Agreement. Client will be liable for the acts and omissions of all Users. Client shall not, and shall not permit any User to, use the Platform except as expressly permitted under this Agreement. Client is responsible for Users’ compliance with this Agreement.
2.2 If Client is accessing and using the Platform during a Trial Period, this Section 2.2 will apply and take precedence over any inconsistent or conflicting terms with respect to the Trial Period. The Trial Period will be free of charge. CLIENT’S USE OF THE PLATFORM DURING THE TRIAL PERIOD IS ENTIRELY AT CLIENT’S OWN RISK. COMPANY IS NOT OBLIGATED TO CORRECT ANY BUGS, DEFECTS, OR ERRORS IN THE PLATFORM DURING THE TRIAL PERIOD OR SUPPORT OR MAINTAIN THE PLATFORM DURING THE TRIAL PERIOD. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT COMPANY WILL HAVE NO SUPPORT OBLIGATIONS, INDEMNIFICATION OR DEFENSE OBLIGATIONS, OR LIABILITY OF ANY TYPE WITH RESPECT TO THE TRIAL PERIOD, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE IN NO EVENT WILL COMPANY’S LIABILITY WITH RESPECT TO THE TRIAL PERIOD EXCEED $100. EXCEPT AS ALTERED IN THIS SECTION 2.2, ALL OTHER TERMS OF THIS AGREEMENT APPLY AND GOVERN CLIENT’S USE OF THE PLATFORM DURING THE TRIAL PERIOD. COMPANY MAY DISCONTINUE OR SUSPEND CLIENT’S USE OF THE PLATFORM DURING THE TRIAL PERIOD AT ANY TIME IN COMPANY’S SOLE DISCRETION.
2.3 In order to access and use certain Services, Guests must agree to Mogli’s Standard End User Terms of Service for those Services and acknowledge its Privacy Policy applicable to those Services, each of which may be updated by Mogli from time to time. Customer acknowledges that if any Guest does not accept such End User Terms of Service and acknowledge such Privacy Policy, then that Guest will not be able to use those Services. “Guests” means third party individuals that are not Customer’s Users but that engage with Customer and its Users via certain Services, including, but not limited to, individuals that schedule meetings with Customer and Users using Mogli’s Scheduler Service.

3. PLATFORM AVAILABILITY; THIRD PARTY INTEGRATIONS

3.1 Client acknowledges that access to and use of the Platform is dependent on the availability and proper functioning of third party service providers and that Company has no control over such third party service providers. Company disclaims any and all responsibility and liability to Client for Client’s or any of its Users’ inability to access or use the Platform, or degradation of the performance of the Platform, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to third party owned or controlled technology.
3.2 Some features and functionality provided by the Platform are dependent on third-party services and may be subject to additional terms and conditions which Client and its Users must agree to in order to access and use those features and functionality. Company makes no representation or warranty and shall have no liability or obligation whatsoever in relation to the use of, or inability to use, any such third-party features or functionality, or any contract entered into by Client or any of its Users, with any such third party. Any use by Client or its Users of any third-party services, and any exchange of data between Client and its Users and any third-party service is solely between Client and its Users and the applicable third-party service provider. Client acknowledges and agrees that the Platform could lose features or functionalities if Client or its Users no longer has access to those third-party services. Company does not guarantee any feature or function of the Platform will be available at any given time, and Company reserves the right to modify the features or functionality provided by the Platform at any time.

4. PROPRIETARY RIGHTS

4.1 As between the parties, Client owns all right, title, and interest in Client Data, including all intellectual property rights therein.

4.2 Client hereby grants to Company and its authorized representatives and contractors, during the term of this Agreement, a limited, non-exclusive, non-transferable (except as permitted by Section 17.5) license to use the Client Data solely for the limited purpose of performing the Services for Client and fulfilling its other obligations and exercising its rights under this Agreement.

4.3 All proprietary technology utilized by Company to perform its obligations under this Agreement, and all intellectual property rights in and to the foregoing, as between the parties, are the exclusive property of Company. Company or its third party licensors retain ownership of all right, title, and interest to all copyrights, patents, trademarks, trade secrets, and other intellectual property rights in and to the Content and the Platform, including without limitation the Software, documentation, customizations, and enhancements, and all processes, know-how, and the like utilized by or created by Company in performing under this Agreement. Any rights not expressly granted to Client hereunder are reserved by Company.

4.4 Notwithstanding anything in this Agreement to the contrary, Company may analyze Client Data to create a de-identified and aggregated data set that does not identify Client, its Users, or Messaging Services recipients (collectively, “Aggregated Data”). Company may use Aggregated Data for lawful business purposes, including, but not limited to, to improve, market, and provide the Services.

4.5 Company retains ownership of all right, title, and interest in and to the Usage Data. Company may use Usage Data in connection with its performance of its obligations in this Agreement and for any other lawful business purpose, including, but not limited to, benchmarking, data analysis, and to improve Company’s services, systems, and algorithms.

5. RESTRICTIONS; RESPONSIBILITIES; OTHER SERVICES

5.1 CLIENT SHALL NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER ANY OF CLIENT’S RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. Client shall not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Platform by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any seat or use restrictions or gain unauthorized access to the Platform or Company’s computer systems or networks related to the Platform; (d) modify or create derivative works based on the Platform; (e) copy or distribute the Platform; (f) allow use of the Platform by anyone other than User(s) authorized and paid for by Client; (g) transmit through the Platform unlawful, fraudulent, infringing, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; (h) exceed the Usage Limitations; (i) engage in spamming or other unsolicited advertising, marketing or other activities using the Platform; or (j) otherwise use the Platform other than as permitted in Section 2. Client acknowledges that Company may utilize technological license control features that can limit Client access to or use of Platform to ensure Client compliance with this Agreement.

5.2 Client shall comply with, and shall ensure that its Users comply with, the Company’s Acceptable Use Policy located at https://mogli.co/aup (the “AUP”), which Company may update from time to time. The AUP is hereby incorporated into this Agreement.

5.3 Company will provide the Professional Services described in the SOF or SOW in consideration for the associated fees described in the SOW in accordance with the terms and conditions in Appendix A.

5.4 Notwithstanding anything to the contrary in this Agreement, Client shall not, and shall ensure that its Users do not, upload to the Platform or otherwise submit or make accessible to Company any financial account or government issued identifiers (e.g., social security numbers, credit card information, or bank information), protected health information, or other types of sensitive data that is subject to specific or elevated data protection requirements (other than Personal Data (as defined below)) (collectively, “Prohibited Data”). Notwithstanding anything to the contrary in this Agreement, Client acknowledges that: (a) the Platform is not intended for the management or protection of Prohibited Data and may not provide adequate or legally required security for Prohibited Data; and (b) Company will have no liability for any failure to provide protections set forth in any laws, rules, regulations, or standards applicable to such Prohibited Data or to otherwise protect the Prohibited Data. If Client or any users upload any Prohibited Data to the Platform in violation of this Section 5.4, Company may, without limiting any of its other rights and remedies, delete such Prohibited Data.
5.5 Client acknowledges that Company is not responsible for, and is under no obligation to review or pre-screen any, Client Data. Without limiting the foregoing, Company may reject, remove, or delete Client Data in Company’s possession and control that it, in its sole discretion, deems abusive, defamatory, obscene, in violation of the law or otherwise unacceptable (see Forbidden Content list at: https://www.10dlc.org/en/shaft). Client hereby irrevocably consents to such monitoring and review. Client shall not distribute any Client Data via the Platform or the Messaging Service that: (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit, or otherwise harms or can reasonably be expected to harm any person or entity; (c) is illegal or encourages or advocates illegal activity or the discussion of illegal activities with the intent to commit them; (d) infringes or violates any right of a third party including any copyright, patent, trademark, trade secret or other proprietary or contractual rights, right of privacy or publicity, or any confidentiality obligation; or (e) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the Platform or any connected network, or otherwise interferes with any use of the Platform.

6. CONFIDENTIALITY

6.1 "Confidential Information" means all non-public, proprietary, business, technical, legal, or financial information disclosed or learned in connection with this Agreement that the Disclosing Party has identified as confidential at the time of disclosure or that, based on the nature of the information or circumstances surrounding its disclosure, the Receiving Party would clearly understand it as confidential. Company’s Confidential Information includes Platform, Software, and pricing information. "Disclosing Party" means the party disclosing or making available Confidential Information to the Receiving Party. "Receiving Party" means the party receiving or accessing Confidential Information of the Disclosing Party. Notwithstanding the foregoing definition, Confidential Information does not include: (a) information that was generally known to the public at the time disclosed to the Receiving Party; (b) information that becomes generally known to the public (other than through a breach of Section 6 (Confidentiality) by the Receiving Party) after disclosure to the Receiving Party; (c) information that was in the Receiving Party's possession free of any obligation of confidentiality prior to disclosure by the Disclosing Party; (d) information that is rightfully received by the Receiving Party from a third party without any restriction on disclosure; or (e) information that was independently developed by the Receiving Party without reference to or use of Disclosing Party's Confidential Information. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS IS." EXCEPT FOR THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESSED OR IMPLIED, CONCERNING THE ACCURACY OR COMPLETENESS OF ITS CONFIDENTIAL INFORMATION.

6.2 The Receiving Party: (a) will not use the Disclosing Party's Confidential Information for any purpose except to perform its obligations or exercise its rights under this Agreement; (b) will not disclose, give access to, or distribute any of the Disclosing Party's Confidential Information to any third party, except to the extent expressly authorized in this Agreement or a separate written agreement signed by the Disclosing Party; and (c) will take reasonable security precautions (which will be at least as protective as the precautions it takes to preserve its own Confidential Information of a similar nature) to safeguard the Disclosing Party's Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to those of its employees, directors, affiliates, advisors, agents, contractors, and other representatives ("Representatives") who need to know such information in order to exercise their respective rights and obligations hereunder, provided that each such Representative is bound to protect the Confidential Information by confidentiality obligations substantially as protective as those set forth in this Agreement. The Receiving Party will be responsible for its Representatives' disclosure or use of the Disclosing Party's Confidential Information in violation of Section 6 (Confidentiality). The Receiving Party will promptly notify the Disclosing Party in writing upon discovery of any unauthorized disclosure or use of the Disclosing Party's Confidential Information, or any other breach of Section 6, by it or its Representatives. The Receiving Party's obligations set forth in Section 6 will remain in effect during the Term and for three years after termination of this Agreement. The disclosure of Confidential Information to the Receiving Party does not grant or convey any right of ownership of such Confidential Information.

6.3 The Receiving Party may disclose Confidential Information to the extent required by law or legal process, provided, however, the Receiving Party will (unless prohibited by law or legal process): (a) give the Disclosing Party prior written notice of such disclosure to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure; (b) use diligent efforts to limit disclosure to that which is legally required; and (c) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in its efforts to obtain a protective order or other legally available means of protection.

6.4 Upon written request by the Disclosing Party, the Receiving Party will, without undue delay: (a) either return or destroy all tangible documents and media in its possession or control that contain the Disclosing Party’s Confidential Information; (b) delete electronically stored Confidential Information of the Disclosing Party in its possession or control; and (c) certify its compliance with this Section 6.4 in writing. Notwithstanding the foregoing, the Receiving Party will not be obligated to render unrecoverable Confidential Information of the Disclosing Party that is contained in an archived computer system backup made in accordance with the Receiving Party’s legal and financial compliance obligations or security and disaster recovery procedure. Any such retained Confidential Information will remain subject to Section 6 (Confidentiality).

6.5 The Receiving Party acknowledges that any actual or threatened breach of Section 6 (Confidentiality) may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief to prevent or mitigate any breaches of Section 6 with respect to the Disclosing Party’s Confidential Information or any damages that may otherwise result from those breaches.

7. MARKETING

7.1 With prior written approval by Client, Company may create a general contract announcement press release indicating that the parties have entered into this Agreement, (a) use Client’s business name and logo in written materials identifying Company’s Clients and in other appropriate promotional materials; (b) identify Client in applicable case studies; and (c) identify Client as a reference for prospective Clients and the media (Client shall not be obligated to comment in any way).

8. FEES AND PAYMENT

8.1 Client shall pay to Company the fees identified in the applicable SOF and SOW (the “Fees”) in accordance with the terms of this Agreement. In order to access and use the Platform, Client must pay the applicable Fees for access to the Platform in advance in accordance with this Agreement. Fees for renewal terms of SOFs shall be at Company’s then-current list price, unless a different renewal price is otherwise noted in the SOF.

8.2 If Client is paying via invoice, Client will pay to Company the Fees in accordance with the terms of the applicable SOF and SOW, provided that if the SOF or SOW or both do not address when Client must pay the Fees, Client shall pay Company the Fees within thirty days of Client’s receipt of the applicable invoice for the Fees. By prepaying for any Fees, Client hereby authorizes Company to deduct such Fees owed from Client’s prepaid balance to cover the Fees owed. If Client is paying via credit card, Company will bill Client’s credit card for all Fees. Client shall provide Company with accurate and complete billing information. Client’s agreement with its credit card or other payment provider governs Client’s use of the designated credit card and payment provider account, and Client must refer to that agreement and not this Agreement to determine Client’s rights and liabilities. By providing Company with Client’s credit card number or payment provider account and associated payment information, Client hereby authorizes Company to charge Client’s credit card or account for all Fees and charges due and payable to Company under this Agreement. Company will bill such charges in advance, in accordance with any Company’s standard billing practices. Company is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, etc.) resulting from charges billed by Company. Except as otherwise expressly provided in this Agreement, all Fees are non-refundable.
8.3 Client may purchase additional phone numbers or messages at any time, including on a pro-rata basis so that all SOFs will have the same expiration date. Client is not eligible for a refund or reduction in Fees for unused messages. All amounts are quoted in and must be paid in US dollars. If Client does not make any payments when due, Client shall: (a) pay Company interest on such unpaid amounts at a rate equal to: 2% per month or the maximum rate permitted by applicable law (whichever is less), from the due date until paid; and (b) reimburse Company for reasonable costs Company incurs (including legal fees) in collecting any late payments. In addition to any other rights granted to Company herein, Company reserves the right to suspend the Services if Client fails to pay any undisputed amount owed when due.

9. TAXES

9.1 The Fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement, and Client shall be solely responsible for all such taxes other than taxes based solely on Company’s income.

10. TERM; TERMINATION

10.1 This Agreement shall be effective on the Effective Date and shall continue until terminated as allowed herein. Each SOF and SOW shall become effective when duly signed by each of the parties and shall continue in effect through the term stated in the applicable SOF and SOW, unless terminated earlier by either party in accordance with this Agreement.

10.2 Either party may terminate this Agreement if there is no SOF or SOW in force or effect by delivering at least thirty days’ prior written notice of termination to the other party. Either party shall have the right to terminate any one or more of the following: this Agreement, the applicable SOF, and the applicable SOW in the event of a breach by the other party, which breach has not been cured within thirty days of the breaching party’s receipt of written notice (email or physical letter) thereof, except in the case of Client’s failure to pay any Fees when due hereunder, which must be cured within five days after receipt of written notice from Company. Either party may terminate this Agreement if the other party becomes the subject of an involuntary petition in bankruptcy or other proceeding relating to insolvency, receivership, or liquidation, if such petition is not dismissed within sixty days of filing. Upon termination of this Agreement for any reason, the rights granted to Client hereunder will immediately terminate, all SOFs and SOWs shall immediately terminate, Client shall immediately discontinue any use of the Platform, and all amounts owed to Company under this Agreement before such termination will be due and payable in accordance with Section 8. Termination shall not relieve Client of the obligation to pay any Fees accrued or payable to Company prior to the effective date of termination.

11. SUPPORT AND UPDATES

11.1 During the Term, Company will provide Support Services during Company’s normal business hours, which are M-F, excluding US Federal Public Holidays, during the hours of 9am-5pm Mountain Time, USA (“Business Hours”). Support Services includes questions and usage of Platform, and evaluation of bugs for prioritization in upcoming updates. Company will investigate all of Client’s questions and problems promptly. Client agrees to provide adequate information to Company to assist in the investigation and to confirm that any problems have been resolved. Company targets a support case reply time of twenty-four hours or less during Business Hours. Optional flexible support hours for Platform customizations, customized training, and support outside of normal business hours may be purchased separately.
11.2 Company may, in its sole discretion, from time to time provide updates to the Platform and may include such updates, free of charge. Timing and procedures for any updates will be coordinated with Client via email and/or telephone to minimize downtime.

12. CLIENT WARRANTIES

12.1 Client shall be solely responsible for all activities in connection with the Platform that occur under Client’s username(s) or by Users. Without limiting the generality of the foregoing, Client shall: (i) comply with all applicable laws and regulations in connection with its use of the Platform; and (ii) be solely responsible for the accuracy, reliability, legality, and quality of any information or data submitted by Client to Company or processed using the Platform, including, but not limited to, the Client Data. Client warrants that (a) any data, content, or materials used, stored or created by Client using the Platform, including without limitation Client Data in any third party service that integrates or interoperates with the Platform, will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party; (b) Client has the right to use all such data, content, and materials as contemplated herein; and (c) Client has obtained all permissions, consents, releases, or other rights necessary to collect, use, process, transfer, or share all such data, content, or materials as contemplated herein, including without limitation all consents required under the AUP.

13. BREACH OF CLIENT WARRANTIES

13.1 In the event of any breach, or reasonably anticipated breach, of any of Client’s warranties or obligations, or if Client infringes or misappropriates Company's intellectual property rights, in addition to any other remedies available at law or in equity, Company will have the right to immediately, in Company's sole discretion, suspend Client’s or any of its Users’ access to or use of the Platform and/or terminate this Agreement, if deemed reasonably necessary by Company to prevent any harm to Company or its business.

14. INDEMNITY

14.1 CLIENT INDEMNITY. Client shall defend, indemnify and hold Company and its subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorneys’ fees and costs), arising out of or related to any one or more of the following: (a) Client’s use of the Platform in violation of applicable law, rule or regulations, (b) Client’s breach of the AUP, and (c) Company’s use of any Client Data in accordance with this Agreement or Client’s use of any Client Data.

14.2 THIRD PARTY INFRINGEMENT. If any action is instituted by a third party against Client based upon a claim that the Software, infringes a United States patent, copyright or trademark, then Company will defend such action at its own expense on behalf of Client and will pay all damages attributable to such claim which are finally awarded against Client or paid in settlement of such claim. Company may, at its option and expense, and as Client’s exclusive remedy hereunder: (a) procure for Client the right to continue using the Platform; (b) replace or modify the Software so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Client’s access to the Platform and refund any amounts previously paid for access to the Platform attributable to the remainder of the then-current term of this Agreement. Company will have no liability to Client for any infringement action that arises out of a breach of the terms and conditions of this Agreement by Client or of the use of the Platform (i) after it has been modified by Client or a third party without Company's prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Company where the combination is the basis for the infringing activity. This paragraph sets forth the entire obligation of Company and Client exclusive remedy against Company or any of its suppliers for any infringement claim.

15. WARRANTY DISCLAIMER

15.1 THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS. CLIENT ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE PLATFORM TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM USE OF THE PLATFORM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM WILL MEET CLIENT’S REQUIREMENTS, BE UNINTERRUPTED, OR ERROR-FREE. COMPANY DOES NOT WARRANT THAT THE PLATFORM WOULD NOT BE FOUND TO CONSTITUTE AN “AUTOMATIC TELEPHONE DIALING SYSTEM” OR SIMILAR IF CHALLENGED UNDER THE TELEPHONE CONSUMER PROTECTION ACT OR SIMILAR STATE LAW.

16. LIMITATION OF LIABILITY

16.1 EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTIONS 14.1 (CLIENT INDEMNITY) OR 14.2 (THIRD-PARTY INFRINGEMENT), UNDER NO CIRCUMSTANCES WILL EITHER PARTY, ITS LICENSORS, OR PARTNERS BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA (EVEN IF THE SAME WERE JUDGED BY A COURT TO BE DIRECT LOSSES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE PLATFORM, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTIONS 14.1 (CLIENT INDEMNITY) OR 14.2 (THIRD-PARTY INFRINGEMENT), IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS’ AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE LICENSE FEES PAID BY CLIENT FOR THE SERVICES FOR THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE. THE ABOVE WARRANTY DISCLAIMER AND LIMITATIONS OF LIABILITY AND DAMAGES INURE TO THE BENEFIT OF COMPANY’S LICENSORS. CLIENT ACKNOWLEDGES AND AGREES THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CLIENT AND COMPANY.

17. MISCELLANEOUS

17.1 SURVIVAL. The following provisions will survive any expiration or termination of this Agreement: Sections: 4 (Proprietary Rights), 5 (Restrictions; Responsibilities; Other Services), 6 (Confidentiality), 8 (Fees and Payment), 10 (Term; Termination), 12 (Client Warranties), 14 (Indemnity), 15 (Warranty Disclaimer), 16 (Limitation of Liability), and 17 (Miscellaneous).
17.2 FORCE MAJEURE. Except for payment obligations, no party will be liable for any failure or delay in performance of any of its obligations hereunder if such delay is due to a force majeure event, including acts of God, fires, flood, storm, explosions, earthquakes, general Internet outages, acts of war or terrorism, riots, insurrection or intervention of any government or authority; provided, however, that any such delay or failure will be remedied by such party as soon as reasonably possible. Upon the occurrence of a force majeure event, the party unable to perform will, if and as soon as possible, provide written notice to the other parties indicating that a force majeure event occurred and detailing how such force majeure event impacts the performance of its obligations.

17.3 GOVERNING LAW and VENUE. All disputes arising in connection with this Agreement, if not amicably settled between the parties within thirty days of written notice of such dispute given by one party to the other, shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one arbitrator appointed in accordance with the Rules. The arbitration proceedings shall take place in Boulder, Colorado. This Agreement and all SOWs and SOFs will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

17.4 REMEDIES. Except as otherwise expressly provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. If any legal action is brought by a party to enforce this Agreement, the prevailing party is entitled to recover from the non-prevailing party all reasonable attorneys’ fees, court costs, other collection expenses, all travel and lodging costs related to attending depositions and court proceedings in addition to any other relief it may receive.

17.5 ASSIGNMENT. Neither party shall assign or transfer (including by sale, merger operation of law, or otherwise) this Agreement or any of the rights hereunder without the prior written consent of the other party, and any attempted or purported transfer of this Agreement or any rights hereunder is void and without effect; however, Company may assign this Agreement or any SOW or SOF to an affiliate or a successor of Company’s interests or business. This Agreement is binding upon and inures to the benefit of the parties, and to their permitted successors and assigns.

17.6 RELATIONSHIP. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and, except as expressly set forth in this Agreement, neither party has the right or authority to assume or create any obligation on behalf of the other party.

17.7 NOTICE. Each party providing a notice required to be given or delivered under this Agreement shall provide such notice in writing and deliver such notice using one of the following methods: (a) personal delivery, (b) registered or certified mail, in each case, return receipt requested and postage prepaid, (c) nationally recognized overnight courier specifying next day delivery and notification of receipt. Operational approvals and consents required under this Agreement may be delivered by e-mail. The parties agree that a notice meeting all requirements of this Section is effectively received: (i) upon personal delivery to the party to be notified, (ii) three business days after having been sent by registered or certified mail, or (iii) one day after deposit with a nationally recognized overnight courier, or (iv) on the date on which such notice is delivered by e-mail transmission. A party shall deliver notices to the address and electronic mail address set forth in the SOF or to such other address, or electronic mail address as a party may designate by ten days’ advance written notice to the other parties.

17.8 COMPLETE AGREEMENT. This Agreement, together with any SOWs and SOFs, contain the final, complete and exclusive statement of the agreement between the Parties with respect to the transactions contemplated herein and all prior or contemporaneous written or oral agreements with respect to the subject matter hereof are merged herein.

17.9 ENFORCEMENT. Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver will be effective only if in writing and signed by the parties hereto. The waiver of any breach of any provision will not constitute a waiver of any subsequent breach of the same other provisions hereof.

17.10 SEVERABILITY. If any provision is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

17.11 EXPORT CONTROLS. The parties agree to comply fully with all Applicable Laws of the United States, or of any foreign government to or from where a party is shipping, to in connection with the import, export or re-export, directly or indirectly, of Services in connection with this Agreement.

17.12 NO AGENCY. Nothing contained herein shall be construed as creating any agency, partnership or other form of joint enterprise between the Parties.
17.13. MODIFICATION. Company may modify this Agreement at any time, upon written notice to Client. Any such modification will become effective with respect to the applicable SOF upon the commencement of the renewal term for such SOF following the date of such notice. If Client does not agree to the modified Agreement, Client may choose to not renew such SOF. Except as otherwise set forth in this Section, this Agreement may not otherwise be modified except by a written amendment signed by an authorized representative of each party.

APPENDIX A

Professional Services Terms

Capitalized terms set forth in this Appendix but not defined in the Appendix have the meaning given elsewhere in the Agreement.

Statements of Work. All services to be performed under an SOF shall be described in either an SOF or a separate written, mutually agreed to, SOW signed by authorized representatives of both parties, each of which is expressly made subject to the terms and conditions of this Agreement. Client agrees to retain Company to perform the consulting services described in each SOW (the "Services"), and Company agrees to perform the Services on the terms and subject to the conditions and assumptions set forth in this Agreement. Statements of Work should contain descriptions of the Services and a description of any deliverables to be provided by Company, Company’s compensation, and any additional terms and conditions the parties deem appropriate. Client and Company expressly acknowledge and agree that any schedules or timelines shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised during the term of any engagement. Company agrees to use diligent efforts to meet schedules. Client acknowledges that Company limits the amount of time Company's personnel spend on out of town travel, and such limits may impact the weekly schedules of a particular engagement. All Services and Deliverables are accepted upon delivery.
Changes. Each party may request changes that affect the scope or duration of the Services relating to any SOW. Neither party shall be bound by any change requested by the other party, until such change has been memorialized in writing and signed (or otherwise agreed to in writing, including e-mail) by authorized representatives of each party (“Change Order”). Each Change Order will be subject to the terms and conditions of this Agreement.
Location and Access. Company may perform the Services at Client’s premises, Company’s premises or such other premises that Client and Company may deem appropriate. The SOW may describe the location where Company will perform Services. Client will permit Company to have reasonable access to Client’s premises, personnel and computer equipment for the purposes of performing the Services at Client’s premises.
Client Assistance. Client shall provide Company with such resources, information, cooperation, and assistance as Company may reasonably request in connection with the performance of the Services. Without limiting the generality of the foregoing, in the event the Services are provided on Client’s premises, Client shall provide safe and adequate space, power, network connections, and other resources as reasonably requested by Company, whether requested during regular business hours or otherwise. Client acknowledges and agrees that Company’s ability to successfully perform the Services in a timely manner is contingent upon its receipt from Client of the information, resources and assistance requested. Company shall have no liability for deficiencies in the Services or Deliverables, or failure to meet any Schedule, resulting from the acts or omissions of Client, its agents or employees or performance of the Services in accordance with Client’s instructions.
Client Information. Client acknowledges and agrees that Company may, in performing its obligations pursuant to this Agreement, be dependent upon or use data, material, and other information furnished by Client without any independent investigation or verification thereof, and that Company shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Company, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Client and Company shall be entitled to rely on all such decisions of Client.
Ownership. “Company Reserved Technology” means any ideas, concepts, know-how, knowledge, techniques, tools, approaches, methodologies, templates, operating instructions, standardized features, other technology, or any intellectual property rights created, developed, owned or licensed by Company (i) prior to the Effective Date of this Agreement or (ii) during the term of this Agreement but outside the scope of this Agreement and any SOW or (iii) during the term of this Agreement that are generally applicable and not Client-specific. Other than Company Reserved Technology, all work product that Company creates specifically for Client under any SOW (the “Deliverables”), all patents, copyrights, trade secrets or other proprietary rights in or to the Deliverables are and will be the sole and exclusive property of Client, and Company hereby assigns ownership of Deliverables to Client. Notwithstanding the foregoing, Company shall own all worldwide right, title and interest in and to the intellectual property rights embodied in the Company Reserved Technology, whether or not such Company Reserved Technology is incorporated into any Client Deliverables. Nothing in this Agreement shall prevent Company from creating derivative works based on the Company Reserved Technology, developing, modifying, using, marketing, distributing or otherwise commercially exploiting the Company Reserved Technology in any manner. Company reserves all rights not expressly granted to Client under this Agreement. Nothing contained herein shall be construed as limiting Company’s rights to commercially use or market in the conduct of Company’s business general ideas, concepts, know-how, knowledge, market analysis, frameworks, techniques, tools, approaches, and methodologies or other residual values possessed or known to Company or learned or developed during the course of providing the Services, without obligation of any kind to Client.
Limited Warranty. Company represents and warrants that Company will perform the Services in a good and workmanlike manner. As Company’s sole obligation and Client’s sole and exclusive remedy for breach of this warranty, Company will re-perform any defective services at no additional cost to Client.
Termination. At any time, either party may terminate one or more particular SOW for any reason, or for no reason, by providing thirty days’ written notice to the other party.
Out-of-Pocket Expenses. Client will reimburse Company for all reasonable out-of-pocket expenses (including travel and accommodation expenses) incurred by Company in providing the Services and pre-approved by Client in writing