SOFTWARE LICENSE AND SERVICES AGREEMENT
This Software License and Services Agreement (“Agreement”) applies to your purchase of, access to, and use of the Services (as defined below) offered by Activys LLC (“COMPANY”), and you as the Software user (“CLIENT”). For purposes of this Agreement, each of COMPANY and CLIENT shall be referred to individually as a “Party” and collectively “the Parties.” 

WHEREAS, COMPANY has developed, owns, maintains, and operates a proprietary software program to assist with the execution and distribution of peer-to-peer text message communications (the “Software” and “Services” as further defined below); 

WHEREAS, CLIENT is a nonprofit or political organization, or an agency representing political and nonprofit clients, that would like to utilize the Software to send text messages to particularized datasets of designated recipients;

WHEREAS, COMPANY, through a services agreement with a third-party agency, has access to proprietary datasets of potential contributor and donor data available to CLIENT through use of the Services and Software; 

WHEREAS, CLIENT desires to enter into this Agreement with COMPANY to access and utilize the Software, and COMPANY desires to enter into this Agreement to permit CLIENT to access and utilize the Software in exchange for the consideration described, all upon the terms and conditions set forth below;.

WHEREAS, CLIENT recognizes and agrees that creating an account and signing up to utilize the Services offered by COMPANY represents CLIENT’s express written attestation that CLIENT has reviewed these governing terms, consents to be bound by all such terms, and that the individual creating the account on behalf of CLIENT has the authority to bind CLIENT to the terms contained herein; 

NOW THEREFORE, the Parties agree as follows:

1. Definitions. Capitalized terms will have the meaning set forth below unless defined elsewhere in the Agreement.

1.1 “CLIENT,” where capitalized, means the nonprofit organization, political organization, or the agency rendering services to particular nonprofit or political organizations. To the extent this Agreement contains certain terms that are specific to agencies utilizing the Service on behalf such agency’s clients, where not capitalized, such terms are expressly noted in this Agreement. Otherwise, the use of “CLIENT” throughout this Agreement shall uniformly encompass all nonprofit organizations, political organizations, and agencies that utilize the Service and Software offered by COMPANY. 

1.2 “Confidential Information” means the Phone List, Recipient Data, Response Data, any and all individual data and unique datasets, lists and the information contained therein, contributor information, all survey results, organization plans or operations, website user information, financial data, technical data, software, source code, COMPANY routines, software designs, user-interface conventions, interfaces to third party products, user-interface design patterns, other development and design tools, methodologies, methods, ideas, concepts, know-how, techniques, generic documents, templates, and/or any other proprietary information in whatever form maintained, any of which has been identified as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure or the information disclosed, ought to be treated as proprietary and confidential by the Receiving Party.

1.3 “Data Provider” means one or more third-party company(ies) from which data is available for CLIENT’s use through use of the Services and Software.

1.4 “Phone List” means the list of phone numbers comprising the intended recipients of text messages (SMS or MMS).

1.5 “Recipient Data” means, collectively, any and all data about intended recipients of text messages, including but not limited to their phone number, name, mailing address, and any other previously obtained data about an intended recipient. 

1.6 “Response” means any communications received from a text recipient in response to a text message deployed as contemplated by this Agreement, including any opt-out requests.

1.7 “Responsive Data” means any and all data received following a text communication. Such responsive data may include, but is not limited to, any replies received in response to a text message sent to the recipient, to the extent such information is available through the Software dashboard, click-rate open data, statistical summaries of any actions taken by text message recipients, personal information provided by a text message recipient, contribution data, etc. Where such responsive data reflects an opt-out request to no longer receive communication via text message, such information shall be promptly communicated to the CLIENT, and Agency’s client.

1.8 “Service” means the utilization of COMPANY Software to define desired data parameters, receive counts of available data, upload content and disclaimers, forward such content and disclaimers and desired amounts of available data to third party vendors, all of which CLIENT is being granted access to under this Agreement, in order to send text messages within the United States.

1.9 “Software” means the licensed COMPANY Software, including the source and object code versions of such software, in whatever form or media, together with all upgrades and documentation thereto. 

1.10 “Third Party Dissemination Company” means the third-party company that manually disseminates content via peer-to-peer text messaging utilizing datasets curated according to CLIENT’s specifications.

2. Provision of the Service and License Grant

2.1 Software and Service. Subject to the terms of this Agreement, COMPANY grants to CLIENT a limited, non-exclusive, non-transferable license to access and use the Software and the Service during the Term and within the scope of this Agreement.

3. Use of Service

3.1 Service Process. Text message campaigns will be processed and implemented through the Software and Service. Only CLIENT-approved text message copy may be deployed through the Service. CLIENT recognizes and agrees the Service may include use of third-party service providers, such as data providers and service providers who manually disseminate the desired text messages, and specifically consents to the use of such third-party providers. 

3.2 Software and Service Functionality. Through the Software and Service, CLIENT will be able to access proprietary datasets available through Data Provider and disseminate targeted text message content to datasets either specifically curated for CLIENT’s use utilizing Data Provider’s proprietary datasets or to datasets provided to COMPANY by CLIENT for use as contemplated by this Agreement. The Service and Software will enable CLIENT to send text message copy via SMS or MMS text from a toll-free and/or long-code phone number leased, owned, or provided by CLIENT via the COMPANY software. CLIENT may, in CLIENT’s discretion, elect to complete the 10-DLC registration process and, in such instance, COMPANY can assist CLIENT in completing such process.
If using proprietary datasets available through Data Provider, CLIENT will define specific data parameters and the Service will curate a dataset based on CLIENT’s specifications from Data Provider’s proprietary data files. Once CLIENT-created content is uploaded, both the content and the curated dataset will be transmitted to third-party providers for peer-to-peer dissemination. CLIENT recognizes and agrees that while COMPANY reserves the right to approve or reject content uploaded by CLIENT prior to dissemination, COMPANY is under no obligation to do so, and CLIENT remains solely responsible for all content disseminated through the Service as described in this Agreement. After transmission, CLIENT will be able to view the results of the dissemination through a dashboard available through online access to the Software. CLIENT recognizes and agrees that neither COMPANY nor Data Provider guarantees any curated dataset will achieve or exceed CLIENT’s particular goals or metrics, including any fundraising goals.  
For COMPANY’s agency clients, each agency will have designated, separated dashboards for each of agency’s own clients that utilize the Service. Such separation will prevent the co-mingling of content and data, and will allow agency to track results on a client-by-client basis. While each agency client will have a single parent account associated with the agency, each individual logging into the agency parent account is required to have individual login credentials. The sharing of account credentials amongst agency-staff members is specifically prohibited.

4. Use Restrictions. CLIENT shall not, except as expressly permitted in this Agreement: 
Modify, copy or create derivative works based on the Software; 
Disassemble, reverse engineer, or decompile or otherwise attempt to extract or derive any aspect or component of the Software; 
Access the Software in order to:
build a competitive product or service; 
build a product or service using similar ideas, features, functions or graphics of the Software; or 
copy any ideas, features, functions or graphics of the Software, except as may exist in data exports or reports provided by the Software for CLIENT’s use. 
Send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs via the Software; 
Interfere with or disrupt the integrity or performance of the Software or the data contained therein or otherwise damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Software; 
Attempt to gain unauthorized access to the Software or its related systems or networks; 
Attempt to gain unauthorized access to the databases owned by Data Provider;
Use or access the Software in a manner to avoid incurring fees; 
Input, upload, transmit or otherwise provide to or through the Software, any information, data or materials that are unlawful or injurious, or that contain, transmit or activate any harmful code; or 
Access or use the Software in violation of applicable laws.

5. Fees & Payment

5.1 Fees. CLIENT shall pay the amounts described in Exhibit A (“Fees”) in order to utilize the Service. CLIENT shall pre-pay Fees as credits against which dissemination costs are applied, and CLIENT agrees to refresh the credit balance as necessary to continue utilizing the Services. CLIENT recognizes and agrees COMPANY is permitted, in COMPANY’s discretion, to set a minimum credit purchase standard, but credits shall not expire. The send cost rate may increase at any time upon fourteen (14) days advance written notice of such change to CLIENT.
For those CLIENTS that are agencies, credits can be purchased on a client-specific basis and client-specific sends shall be attributed against the credits applicable to that agency-client.

5.2 Taxes. The Fees do not include any local, state, or federal taxes, as applicable (“Taxes”). CLIENT is responsible for paying all Taxes, excluding taxes based on COMPANY’s income from this Agreement. If COMPANY has the legal obligation to pay directly or to collect Taxes for which CLIENT is responsible under this section, the appropriate amount shall be invoiced to and paid by CLIENT unless CLIENT provides COMPANY with a valid tax exemption certificate authorized by the appropriate taxing authority. If any such tax exemption or certificate is at any time determined to be inapplicable or invalid, CLIENT shall pay or reimburse COMPANY for any underpaid amounts as well as any related fines, penalties and interest.

6. Proprietary Rights
COMPANY Proprietary Rights; Feedback
Software and Service. As between the Parties, COMPANY retains and is the sole and exclusive owner of the Software and the Service, including all technology, software, graphical user interfaces, workflows, processes, algorithms, know-how and other trade secrets, methodologies, tools, techniques, designs, inventions, works of authorship, trademarks and other branding elements, documentation and information therein, and all intellectual property rights in and to any of the foregoing. COMPANY retains the sole and absolute right to make all decisions regarding the Software and the Service, including the right to modify (or have modified) the Software or the Service. COMPANY reserves all rights not expressly granted herein.
Data. The terms of data ownership shall be as follows depending on the CLIENT entity type:
Political or Nonprofit Client. CLIENT recognizes and agrees that CLIENT shall not obtain any data or ownership interests in or to the proprietary data of Data Provider, Phone List, or Recipient Data offered by Data Provider through use of the Service or Software unless and to the extent a unique individual contained within a utilized dataset contributes to or otherwise engages with CLIENT by independently and affirmatively opting in to CLIENT’s communications or otherwise providing Responsive Data to CLIENT, including but not limited to completing a survey. In such an instance, consistent with the service agreement between COMPANY and Data Provider, both Data Provider and CLIENT shall be joint and several owners over such individual contributor information and any Responsive Data with all customary rights and obligations related thereto.
Agency Client. Where CLIENT is an agency rendering services to political and nonprofit organizations and utilizing the Service and Software on behalf of such clients, this AGREEMENT provides no independent data ownership rights over any proprietary data of COMPANY or Data Provider, Phone List, Recipient Data, or Responsive Data utilized or received through agency’s use of the Services and Software on agency’s clients’ behalf, unless and to the extent any agreement between agency and agency’s client specifies otherwise. Data ownership rights conveyed to agency’s clients shall be as specified in 6.1(b)i. of this Agreement.
Feedback. CLIENT acknowledges that any modification to the Software or the Services that arises in response to any suggestions for customizations, corrections, changes, additions or modifications to the Software and the Service, and any other feedback provided by CLIENT regarding the Service (collectively, “Feedback”) remain the exclusive property of COMPANY, and CLIENT hereby disclaims any claim to any such rights, and to the extent they exist, assigns all rights in and to any modification resulting from Feedback to COMPANY and agrees to take such actions and to execute such documents as reasonably requested by COMPANY to effectuate COMPANY‘s sole ownership of the Feedback.

6.2 CLIENT Proprietary Rights
Data. CLIENT, or agency’s client(s), as applicable, retains and shall be the sole and exclusive owner of all CLIENT-provided Phone List and Recipient Data. Notwithstanding the foregoing, CLIENT recognizes and agrees that COMPANY is authorized to retain a list of opt-out data received through CLIENT’s use of the Services solely for future suppression of such opted-out phone numbers.
Content. CLIENT shall be and remain the sole and exclusive owner of all content disseminated pursuant to this Agreement, and COMPANY’s use of such content shall be limited to those uses required to perform the contracted and authorized Services.

7. Confidentiality. In performance of the Services contemplated by this Agreement, one party (“Providing Party”) may provide the other Party (“Receiving Party”) Confidential Information related to the Providing Party and its operations, goals, and objectives. All Confidential Information exchanged between the Parties pursuant to this Agreement shall be and remain confidential, and shall not be distributed, disclosed, or disseminated in any way, shape, or form by the Receiving Party to anyone except its own employees and subcontractors who have a reasonable need to know such Confidential Information as part of their jobs and who have been advised of the confidential nature of such information. All such individuals, whether employees or subcontractors, shall be subject to terms of confidentiality that are at least as restrictive as those contained herein.
Confidential Information shall not be used by the Receiving Party for its own purpose, except for the purposes of exercising its rights or fulfilling its obligations under this Agreement. The restriction on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or regulatory requirement, provided that the Receiving Party shall first notify the Disclosing Party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order. Upon request of the Disclosing Party, copies and embodiments of the Disclosing Party’s Confidential Information shall be promptly returned to the Disclosing Party by the Receiving Party, unless such copies are required to support existing customers under the terms of this Agreement. Upon termination of this Agreement, for any reason, each Party shall promptly return to the other Party all Confidential Information provided under this Agreement, including all copies thereof. Notwithstanding the foregoing, each Party may retain opt-out data received in accordance with normal opt-out procedures and applicable law.

8. Representations, Warranties, Disclaimers

8.1 General Representation and Warranties. Each Party hereby represents and warrants:
Corporate Power. It is duly organized and validly existing under the laws of the state of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof.
Due Authorization. It is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder.
Binding Agreement. This Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms. The execution, delivery and performance of this Agreement by each Party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate and law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
Compliance with Laws. Each Party will, to the best of its knowledge, comply with all applicable laws, statutes, and regulations, including, without limitation, those relating to privacy, confidentiality, and data protection, applicable to the performance of this Agreement. 

To the extent an agency is utilizing the Service and Software on behalf of its various clients, such agency shall ensure all reasonable measures are implemented to abide by any applicable firewall policy as articulated in applicable Federal Election Commission Regulations, including but not limited to 11 C.F.R. §109.21(h). To the extent an agency requires separate accounts to ensure a firewall is properly maintained and executed, COMPANY shall work with agency to ensure proper separation.
Telecom Terms. COMPANY and CLIENT shall cooperate to make reasonable efforts to ensure that CLIENT’s use of the Service and Software shall comply with all laws, rules, regulations, and interpretations promulgated by any government authority or agency that are applicable to use of the Software or Service, the messages or content posted or sent through the Service, or the transactions contemplated by this Agreement. Notwithstanding the foregoing, CLIENT recognizes and agrees that engaging in any text message communication program contains inherent risk, and COMPANY is not guaranteeing use of the Software will conform with CLIENT’s legal obligations or warranting that the Software will legally satisfy CLIENT’s intended use of the Software. CLIENT SHALL BE SOLELY RESPONSIBLE FOR DETERMINING CLIENT’S LEGAL AND COMPLIANCE OBLIGATIONS RELATED TO DISSEMINATING TEXT MESSAGES UTILIZING THE SOFTWARE, AND CLIENT SHALL BE SOLELY RESPONSIBLE FOR ANY AND ALL RISKS RELATED THERETO. CLIENT IS THEREFORE ADVISED TO SEEK GUIDANCE FROM COMPENTENT LEGAL COUNSEL BEFORE ENGAGING IN ANY TEXT COMMUNICATION CAMPAIGNS.
Content Restrictions. As between COMPANY and CLIENT, and because CLIENT has sole authority and control over the content of messages, CLIENT is solely responsible for compliance with all laws, rules, and regulations relating to the content of messages sent through the Service. CLIENT further recognizes and agrees that use of the Service and Software is strictly limited to nonprofit, political, and issue-advocacy/persuasion content communications. CLIENT recognizes and agrees CLIENT is strictly prohibited from engaging in any communications that could be interpreted as marketing in nature, such as offering a product or good (book, t-shirt, hat, etc.)  in exchange for a contribution. Any violation of this term may be considered a material breach of this Agreement and result in immediate termination in accordance with Section 11.

Examples of those content responsibilities for which CLIENT is solely responsible include, but are not limited to, compliance with:
Disclaimer requirements, including proper wording and placement;
Copyright and trademark laws, ensuring proper licensing for use of any included images, graphics, video content, music, marks, logos, or any other materials or items subject to copyright or trademark law; 
Applicable state and/or federal laws related to the use of AI in content generation and/or use, generally; and
Prohibition on use of explicit or harmful content in any message disseminated through use of the Service.

While COMPANY reserves the right to review content prior to dissemination by CLIENT and may, in COMPANY’s sole discretion, refuse to transmit certain content for dissemination, CLIENT recognizes and agrees COMPANY is not assuming any liability for CLIENT-prepared content. All content, and associated legal risks and compliance obligations, are the sole responsibility of CLIENT. 

Data Restrictions. 
Data Ownership. To the extent CLIENT uploads a dataset into the Software for use in furtherance of the Service, CLIENT affirms that CLIENT shall only upload those datasets into the Software where CLIENT is the legal owner of such dataset or where CLIENT has the express written permission of the dataset owner or authorized agent to use the dataset as contemplated by this Agreement.
Opt-out File.  CLIENT is responsible for providing COMPANY with any opt-out texting data previously received or developed by CLIENT, and on an ongoing basis in a timely manner prior to each deployment. Other than an opt-out file specifically uploaded into the Software for telephone number suppression purposes, CLIENT is strictly prohibited from uploading into the Software any datasets that contain telephone numbers that have previously opted out of text communications from CLIENT. The provided opt-out file shall be then be transmitted to the Third-Party Dissemination Provider for implementation and to be scrubbed against the Phone List to ensure messages cannot are notbe deployed to such opted-out cell phone numbers during the texting campaign. After any dissemination of the texting campaign, the Third-Party Dissemination Provider shall provide a list of any opt-outs received in response to the text campaign, available through the Software to CLIENT and COMPANY for honoring such opt-outs. Should CLIENT fail or refuse to provide an initial opt-out file prior to commencement of services, or fail to provide subsequent updates in advance of any dissemination, CLIENT recognizes and agrees that COMPANY reserves the right to immediately terminate CLIENT’s use of the Service and Software. CLIENT bears all risk of texting any opted out telephone numbers and shall indemnify COMPANY as provided in this Agreement should COMPANY receive a complaint or demand letter related to an opt-out claim where CLIENT failed or refused to provide COMPANY with a complete opt-out file, updated on an ongoing basis. Under no circumstances shall COMPANY have any liability of any kind related to an opt-out claim where CLIENT refuses to provide an opt-out file or regular updates. Notwithstanding CLIENT’s refusal to provide an opt-out file, COMPANY shall nonetheless provide CLIENT with an opt-out file on an ongoing, timely basis. 

8.2 Limited Warranties.
Warranty of Functionality. COMPANY warrants the Software and the Service as provided by COMPANY and as used in compliance with all COMPANY requirements and technical specifications will achieve in all material respects the functionality described herein.
No Virus Warranty. COMPANY warrants that COMPANY uses commercially reasonable efforts to prevent the introduction into the Software of viruses, Trojan horses, worms, spyware, or other such malicious code (“Malicious Code”). CLIENT similarly warrants that CLIENT uses commercially reasonable efforts to safeguard CLIENT data from Malicious Code and shall not, under any circumstances, upload into the Service or Software any dataset that contains Malicious Code, or upon reasonable investigation and review, is suspected or could have been discovered to contain Malicious Code. 
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS-IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT WARRANT THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS OR SATISFY ANY APPLICABLE LEGAL REQUIREMENTS, OR THAT THE SERVICE WILL BE SECURE, ERROR-FREE OR OPERATE WITHOUT INTERRUPTION. CLIENT UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT IS A FUNDAMENTAL PART OF THIS AGREEMENT AND THAT COMPANY WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMER.

9. Indemnification.

9.1 COMPANY Indemnity. COMPANY shall defend or settle, at COMPANY’s option and expense, any claim, suit, or proceeding brought by an unaffiliated third party against CLIENT solely to the extent such claim alleges that the operation of the Software or performance of the Service in accordance with this Agreement infringes such third party’s patent rights or misappropriates such third party’s trade secrets  (a “Claim”). In such an instance, and solely in such an instance, shall COMPANY indemnify CLIENT and hold CLIENT harmless from and against all settlement amounts or damages (including reasonable attorneys’ fees) arising out of such Claim. Otherwise, COMPANY shall have no obligation to indemnify CLIENT from any other claims arising from (a) CLIENT’s use of the Service, including any allegations CLIENT’s use of the Service or Software violates any state or federal law governing text messaging communications, or any allegations such use is in violation of this Agreement or applicable law, (b) use of the Service after COMPANY notifies CLIENT to discontinue use because of an infringement claim, (c) modifications to the Service not made by COMPANY, (d) use of the Service in combination with any software, application or service not made or provided by COMPANY, or (e) any claim for which COMPANY is indemnified by CLIENT.

9.2 Alternatives. In the event the use of the Service in accordance with this Agreement is held to, or COMPANY believes is likely to be held to, infringe or misappropriate third-party rights, COMPANY shall have the right at its sole option and expense to (i) modify the Service so that it is non-infringing, while retaining substantially equivalent features and functionality as set forth in this Agreement; (ii) obtain for CLIENT the right to continue using the Service under commercially reasonable terms; or (iii) if (i) and (ii) are not reasonably practicable as determined by COMPANY, terminate this Agreement as to the infringing components of the Service or in its entirety.

9.3 CLIENT Indemnity. In addition to terms of indemnity provided elsewhere in this Agreement, including Section 8.1(g)ii, CLIENT shall indemnify, defend, and hold harmless COMPANY, and Data Provider engaged by COMPANY, inclusive of COMPANY’s and Data Provider’s respective officers, directors, employees, representatives and agents,  from and against any and all claims, demands, liabilities, losses, costs, expenses, including reasonable attorneys’ fees, damages, allegations, suits, actions, civil or criminal investigations by a federal or state agency, or other proceedings brought against COMPANY or Data Provider arising from or related to CLIENT’s use of the Service in an unauthorized manner or a manner not contemplated by this Agreement.  Such unauthorized manners shall include, but are not limited to, any claim or allegation that any content created or produced by CLIENT for use in furtherance of this Agreement or any data uploaded into the Software infringes or violates in any manner any intellectual property rights of any third party or contains material or information that violates any law or regulation or any other rights of any third party, or any allegations of violations of applicable state or federal law related to the failure to honor any opt-out responses.

9.4 Indemnification Procedures and Survival. In the event of a potential indemnity obligation under this Section, the party with knowledge of such event shall: (i) promptly notify the other party in writing of such claim; (ii) allow the indemnifying party to have control of its defense and settlement, except that the indemnified party shall be involved in the defense and settlement to the extent the indemnified party’s interests are implicated by the claim; and (iii) upon request of the indemnifying party, cooperate in all reasonable respects, at the indemnifying party’s cost and expense, with the indemnifying party in the investigation, trial, and defense of such claim and any appeal arising therefrom. The indemnification obligations contained in this Section shall survive termination of this Agreement.

10. Limitation of Liability. EXCEPT FOR THOSE INDEMNITY OBLIGATIONS SPECIFIED ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST DATA, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, RESULTING FROM THIS AGREEMENT OR THE PERFORMANCE OR USE OF THE SERVICE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY SHALL HAVE ANY LIABILITY ARISING FROM OR RELATED TO ANY THIRD-PARTY HARDWARE, SOFTWARE, INFORMATION OR MATERIALS SELECTED OR SUPPLIED BY THE OTHER PARTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ANY SUCH DAMAGES PAYABLE BY EITHER PARTY TO THE OTHER HEREUNDER EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF FEES PAID TO COMPANY FOR THE SERVICE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY UNDER THIS AGREEMENT. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS FOR THE AGREEMENT BETWEEN THE PARTIES AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

11. Term & Termination.

11.1 Term of Agreement. This Agreement shall commence on the Effective Date and will remain in force through December 31, 2025 (“Initial Term”). After the conclusion of the Initial Term, the Agreement will auto-renew for six (6) month intervals (the “Renewal Term”). Notwithstanding the foregoing, either Party is permitted to terminate this Agreement as specified in this Section 11.

11.2 Termination. COMPANY may terminate this Agreement immediately without cause at any time, in its discretion. CLIENT may terminate this Agreement without cause upon thirty (30) days advance written notice. CLIENT may terminate this Agreement for cause upon five (5) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period.

11.3 Consequences of Termination.
Upon any termination or expiration of this Agreement for any reason whatsoever, the licenses granted herein shall terminate and CLIENT shall immediately cease to use the Service, and each party shall, within thirty (30) days after termination or expiration of this Agreement, return to the other party, or destroy, the other party’s Confidential Information and any copy thereof. The termination of this Agreement or any license shall not limit either party from pursuing any other remedies available to it, including injunctive relief, nor shall such termination relieve CLIENT’s obligation to pay all Fees due and payable. To the extent CLIENT has pre-paid credits that remain unused at the time of termination, CLIENT shall receive a refund of such amounts.
Upon expiration or termination of this Agreement, COMPANY shall delete all copies of any CLIENT-provided datasets in its systems or otherwise in its possession or under its control. In accordance with this Agreement, the Parties agree each Party is permitted to retain a copy of the opt-out file developed during performance of this Agreement, and COMPANY recognizes and agrees such opt-out file shall only be used for global opt-out suppression purposes. All other uses of such opt-out data are strictly prohibited.
All Statements of Work, if applicable, and services in effect at the time of any termination of this Agreement shall terminate simultaneously with the Agreement.

12. General Provisions

12.1 Publicity. Neither Party shall use the other Party’s name or refer to the other Party directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement or its subject matter, without written consent from the other Party for each such use or release. Notwithstanding the foregoing, COMPANY may use CLIENT’s name in experience citations and marketing materials.
12.2 Relationship of the Parties. Each Party is an independent contractor under this Agreement and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, employment or similar relationship between the Parties. Except as expressly provided herein, nothing in this Agreement shall confer upon any person or entity other than the parties any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

12.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given: (a) immediately upon sending by email with delivery receipt requested; or (b) the second business day after sending by reputable overnight carrier.

12.4 Waiver. Failure or neglect by either Party to enforce at any time any of the provisions of this Agreement shall not be construed nor shall be deemed to be a waiver of such Party’s rights under this Agreement nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action.

12.5 Severability. In the event that any clause, sub-clause or other provision contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such clause, sub-clause or other provision shall to that extent be severed from the remaining clauses and provisions, or the remaining part of the clause in question, which shall continue to be valid and enforceable to the fullest extent permitted by law.

12.6 Assignment. CLIENT may not assign or transfer this Agreement or any rights or obligations arising under this Agreement to anyone, without the prior written consent of COMPANY, and any assignment without such consent shall be void and invalid. COMPANY may assign this Agreement upon thirty (30) days advance written notice to CLIENT. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

12.7 Governing Law. The rights and obligations of the Parties under this Agreement shall be governed in all respects by the laws, without regard to its conflict of law principles.

12.8 Force Majeure. Except for payment obligations, neither Party shall be liable to the other for any delay or failure to perform the Service or its obligations in this Agreement due to causes beyond its reasonable control.

12.9 Counterparts; Headings; Construction. This Agreement may be executed in counterparts, including electronic execution, each of which shall be deemed an original, but all of which taken together shall constitute one single document between the Parties. Counterparts may be exchanged by facsimile, or attached as a pdf, jpeg, or similar file type to an email. Headings in this Agreement are for convenience only and shall not be used in interpreting this Agreement or any provision of it. The Parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of this Agreement.

12.10 Entire Agreement. This Agreement includes all exhibits attached hereto and the Statements of Work, if any. This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. In the event of any conflict between the provisions in the main body of this Agreement and any exhibit hereto, the terms of the Agreement shall prevail to the extent of such conflict.

13. Acknowledgement
BY SIGING UP AND UTILIZING THE SERVICE OR OTHER SERVICES PROVIDED BY COMPANY, CLIENT ACKNOWLEDGES THAT CLIENT HAS READ THESE TERMS OF SERVICE AND AGREES TO BE BOUND BY THESE TERMS.
IN WITNESS WHEREOF, the Parties’ authorized signatories have duly executed this Software License and Services Agreement as of the Effective Date: