Terms of Service

Please read these Terms of Service carefully (“Terms” or “Terms of Service”) as these Terms constitute a binding agreement between Satoshi Energy Corporation (“Company,” “we,” “our,” and “us”) and you (“Client,” “you,” and “your”). These Terms govern and apply to your access and use of Company’s website, available at https://satoshienergy.com/  (the “Website”), its client portal (the “Portal”), its platform technologies, including related software, systems, and infrastructure (the “Platform Services”), and various implementation, consulting, and other professional services related to the Platform Services (the “Associated Services”) available through the Website or the Portal (collectively, the “Offering”), except as otherwise provided herein. References in these Terms to “you” or “your” refer to both you and any person or entity on whose behalf you act, if any. By accessing or using our Offering, by executing or accepting a Module Agreement or Statement of Work (as both are defined below), or by clicking “I agree” or the like during the client onboarding process, you agree to be bound to all of the terms and conditions described in these Terms. If you do not agree to all of these terms and conditions, you may not access or use any portion of the Offering in any manner, for any purpose. Use of the Offering is not authorized in any jurisdiction that does not give effect to all provisions of these Terms.

OUR RIGHT TO CHANGE AND UPDATE THESE TERMS OF SERVICE: Company reserves the right at any time to change, add, or delete portions of these Terms of Service. Company will post changes to these Terms of Service, if any, to the Portal and Company Website by replacing these Terms of Service with updated Terms of Service that include a new effective date set forth above. It is your responsibility to check the Portal and/or Company Website periodically for changes. Your continued use of the Portal and/or Company Website following any update to the Terms of Service, will constitute your acceptance of the new Terms of Service. The Client, together with company, constitute the “Parties” and each, a “Party”.

Now therefore, for and in consideration of the premises and the mutual covenants contained herein, the Parties agree as follows:

1. Definitions.

1. “Background Intellectual Property” means proprietary information, methodologies, document templates, project tools, trade secrets, technologies, or works which are conceived, created, or acquired by a Party or its affiliate (i) before the Effective Date of this Agreement, or (ii) independently and outside the scope of this Agreement.

2. “Client Data” has the meaning ascribed to it in Section 3(c), and includes Client Confidential & Proprietary Information but excludes Derivative Data.

3. “Client Documentation” means all specifications, design documents, flow charts, software programs (including developed applications), training files, written instruction manuals, documentation, including customer documentation, reports and other similar work product or other deliverable, regardless of the medium in which such documentation is presented, that Client (including its affiliates and subcontractors) provides to Company in relation to this Agreement.

4. “Company Property” means the Website, the Portal, Platform Services, all Derivative Data, and all materials or technology provided by Company hereunder and not specifically granted to Client, but, even if integrated with the Platform Services or any Derivative Data, Company Property excludes Client’s Background Intellectual Property and Client’s Confidential & Proprietary Information.

5. “Derivative Data” means all modifications, compilations, derivative works and results from processing (including analyses, reports, recommendations and visual representations) created or developed from Client Data by Company or through the use of the Platform Service(s)), so long as in no event shall Derivative Data be deemed or permitted to include distinctly identifiable segments or portions of Client Data (or any part thereof),whether individually parsed or in the aggregate, or elements specifically or separately identifiable as Client Data. 

6. “Local Software” means any software provided by Company to Client for installation and use on Client’s systems in connection with Client’s receipt of the Offering.

7. “Module Agreement” means an agreement between Company and Client for the provision of Services that incorporates these Terms by reference.

8. “Offering” means, collectively, the Website, Portal, Platform Services, Associated Services and the Services, each as applicable. 

9. “Personally Identifiable Information” or “PII” means any information that is linked or reasonably linkable to an identified or identifiable individual, excluding “de-identified data” or “publicly available information” as those terms are identified in applicable privacy and information security laws, that could identify an individual either directly or indirectly, including the credit card numbers, social security number, driver’s license number, state or federal government issued ID, biometric data (including fingerprints, voiceprints, retina or iris images),  bank or debit account numbers, passport numbers, security or computer passwords or health, personal financial or employment information.

10. “Services” means the services described in the “Service Description” section in the respective statement(s) of work (each, a “Statement of Work” or “SOW”) or Module Agreement. 

11. “Term” means the duration of this Agreement.

2. Scope. The Parties may negotiate, and both execute terms particular to the Parties and the Offering (the “Negotiated Agreement”). Subject to the terms and conditions described herein and, if applicable, any Negotiated Agreement, the Parties may enter into Module Agreements and Statements of Work, under which Company will perform the Offering. Any Module Agreements, Statements of Work, and Negotiated Agreements, together with these Terms of Service shall constitute the entire “Agreement”.  If a term in the Negotiated Agreement contradicts a term in the Terms of Service, the term in the Negotiated Agreement shall prevail over the contradictory term in the Terms of Service. These Terms of Service shall prevail over any contradictory term in a Module Agreement or Statement of Work. 

3. Privacy. Company’s current Privacy Policy may be found at https://satoshienergy.com/privacy and is hereby expressly incorporated into these Terms by reference. The Privacy Policy discloses Company’s practices regarding the collection, use, and disclosure of your personal information. By agreeing to these Terms, you are also agreeing to the terms of Company’s Privacy Policy and consenting to the use and disclosure of information you provide to Company as set forth therein.

4. Third-Party Sites and Materials.

   1. The Website may display, use, include or make available content, data, information, applications or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites (“Third-Party Websites”). When you access any Third-Party Websites, you do so at your own risk, and you understand and agree that you are solely responsible for reading and understanding any terms of use or privacy policies that apply to such Third-Party Materials or Third-Party Websites. These Third-Party Materials and Third-Party Websites are not under Company’s control, and Company is not responsible or liable for the availability, reliability, content, functions, accuracy, legality, appropriateness, services, materials or any other aspect of such Third-Party Materials or found through the use of any Third-Party Websites that link to or from the Website or are otherwise referenced in the Offering. Company is providing these Third-Party Materials and links to Third-Party Websites for your convenience. The inclusion of any such Third-Party Materials or links in the Offering does not imply endorsement by Company or any association with the Third-Party Website’s operators. 

   2. The providers of Third-Party Materials and Third-Party Websites (each, a “Third-Party Service Provider”) may collect and use certain information about you, as specified in their privacy policies and terms of use. Prior to using or providing any information to any Third-Party Service Provider, you should review their privacy policy and terms of use. If you do not understand or do not agree to the terms of a Third-Party Service Provider’s privacy policy or terms of use, you should not use the related third-party services.

   3. COMPANY HEREBY DISCLAIMS ALL RESPONSIBILITY AND LIABILITY FOR ANY OF YOUR INFORMATION COLLECTED OR USED BY ANY THIRD-PARTY SERVICE PROVIDER. IN ADDITION, YOU AGREE THAT COMPANY WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INFORMATION, SOFTWARE, MATERIALS OR SERVICES PROVIDED BY ANY THIRD PARTIES, INCLUDING ANY THIRD-PARTY SERVICE PROVIDERS LINKED THROUGH THE OFFERING, AND YOU AGREE TO ASSUME ALL RESPONSIBILITY AND LIABILITY FOR ANY DAMAGES, LOSS, OR OTHER HARM, WHETHER TO YOU OR TO THIRD PARTIES, RESULTING FROM OR ALLEGED TO HAVE RESULTED FROM YOUR USE OF THIRD-PARTY MATERIALS AND THIRD-PARTY WEBSITES.

5. Ownership; Reservation of Rights.
   
   
   

   1. Background Intellectual Property. Each Party shall retain its title and ownership and all rights to its Background Intellectual Property.  Neither Party receives any rights to any Background Intellectual Property of the other Party.

2. Rights Reserved by Company.  Company expressly reserves all rights in the Company Property. All right, title and interest in the Company Property, as well as any update, modification, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Company (or Company’s third party suppliers, as applicable). The Company Property is licensed per these Terms of Service, unless otherwise set forth in the applicable Module Agreement, Statement of Work, or Negotiated Agreement.

3. Rights Reserved by Client.  Client expressly reserves all rights in any data, information, records and files that Client (or any Authorized User) loads, transmits to or enters into the Platform Services, including data that the Platform Services is configured to obtain from Client’s servers, but excluding any Derivative Data (the “Client Data”), and (ii) Client Documentation, subject to any license that Client expressly grants Company in as set forth in the provisions of this Agreement and any Module Agreement or Statement of Work.  

4. Derivative Data. Notwithstanding anything to the contrary contained in Section 3(b), (i) Client shall retain exclusive ownership of all Client Data and Client Documentation, irrespective of whether it has been integrated with Derivative Data, and (ii) all property or ownership rights of Company to Derivative Data shall in each case exist separate and apart from any and all Client Data and Client Documentation.

5. Jointly Developed Intellectual Property. The Parties do not intend to engage in any joint development of new intellectual property under this Agreement. To the extent that the Parties do jointly-develop new intellectual property in connection with this Agreement, Company shall own all title and ownership and all rights to such intellectual property.

6. License.  

   1. Company hereby grants Client and any of its Authorized Users a revocable, non-exclusive, non-transferable, and non-sublicensable license to access and use the Offering during the Term for purposes of receiving its rights and performing its obligations under this Agreement.

   2. Client hereby grants Company a non-exclusive, non-transferable license to access and use the Client Documentation and Client Data during the Term solely for the purposes of performing its obligations under this Agreement.

   3. Company may, if it determines that it needs an additional license to access and use data that is controlled by Client’s electricity provider, request that Client secure from such electricity provider a non-exclusive, non-transferable license for Company, to access and use such data during the Term for purposes of performing Company’s obligations under this Agreement. Client shall, promptly following Company’s request, make diligent efforts to secure such license.

6. Internet Security Disclaimer; Limitation, Suspension or Termination of Access.

   1. Internet Security Disclaimer. As between Company and Client, Client is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data. Client understands that the technical processing and transmission of Client Data is fundamentally necessary to the use of the Offering. Therefore, Client acknowledges and agrees that Company may store Client Data, which will involve transmission over the Internet, and over various networks, which may not be owned and/or operated by Company. Company will endeavor to provide industry-standard secure data transmission channels for use by Client to upload, enter or transmit Client Data to the Offering, for example through the use of the HTTPS protocol. However, despite such efforts, Client acknowledges and understands that Client Data may be accessed by unauthorized persons when communicated across the Internet, network communications facilities, telephone or other electronic means. Company is not responsible for any Client Data which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by Company, including, the Internet and Client’s local network. Client agrees that Company is not in any way responsible for any interference with Client’s use of or access to the Offering or security breaches arising from or attributable to the Internet, excluding networks owned or operated by Company, and Client waives any and all claims against Company in connection therewith to the extent that Company uses the same standard of care to protect the Offering and data connected therewith or transmitted therefrom as Company uses to protect its own data and technology, but in any event not less than a reasonable standard of care.

2. Limitation, Suspension or Termination of Access. In addition to any other suspension or termination rights of Company pursuant to this Agreement, certain extraordinary circumstances may require Company to suspend, terminate or limit (as appropriate and as determined in Company’s sole discretion) Client’s access to or use of the Offering, or any component thereof, without notice in order to: (i) prevent any misuse or abuse of the Platform Services or other Company Property; (ii) prevent any damage to, or degradation of the integrity of Company’s systems or Company Property; (iii) comply with any law, regulation, court order, or other governmental request or order; or (iv) otherwise protect Company from potential legal liability or harm to its reputation or business.  Company will use commercially reasonable efforts to notify Client of the reasons for such limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Company will promptly restore Client’s access to the Offering as soon as the event giving rise to the limitation or suspension has been resolved, acting reasonably and consistent with standard commercial operations and applicable industry standards. Nothing contained in this Agreement will be construed so as to limit Company’s ability to take action or invoke remedies, or act as a waiver of Company’s rights in any way with respect to any of the foregoing activities. Company will not be responsible for any loss or damages incurred by Client as a result of any limitation, termination or suspension of access to or use of the Offering under this Section to the extent such action was necessary for the reason(s) stated in the third sentence of this paragraph.

7. Client Responsibilities and Restrictions. 

   1. Client ID.  Upon Client’s request, but subject to any limitations associated with Client’s enterprise subscription account, Company will issue user identification and password (“User ID”) to Client for each of its employees, consultants, contractors, or agents  Client wishes to have access to and use of the Offering (each, including individuals and Client’s partners, affiliates, and contractors, an “Authorized User”). Client may only identify its partners, affiliates, shareholders, employees and contractors who, in each case, are bound by confidentiality restrictions at least as restrictive as this Agreement as Authorized Users.  To the extent Company identifies to Client in writing partners or affiliates of Client that Company considers to be currently engaging in business activities that are in direct competition with Company’s business, such persons will not be identified as Authorized Users.  Authorized Users may only access and use Platform Services through a User ID issued to Client.  Client will not allow Authorized Users to share their User ID with any other person. Client is responsible for any and all activity occurring under the User IDs associated with Authorized Users.  Client is responsible for all use of the Offering by Users and for maintaining the confidentiality of their User ID and will promptly notify Company of any actual or suspected unauthorized use of the Offering.  Company reserves the right to replace any User ID if it determines it may have been used for an unauthorized purpose.

2. Client Responsibilities and Restrictions. Client agrees that Client is responsible for the compliance by the Authorized Users with this Agreement and for the Authorized Users’ use of the Offering, as well as for ensuring that the Authorized Users maintain the confidentiality of their User IDs. Client agrees that Client is responsible for all charges incurred by the Authorized Users in connection with access to or use of the Platform Services. Client shall abide by all applicable laws with respect to your use of the Offering. Company reserves the right to remove any content from the Offering at any time, for any reason (including upon receipt of claims or allegations from third parties or authorities relating to such content). Without limiting the generality of any of the foregoing, Client agrees that Client will not, and will not permit any person to:

1. use the Offering other than as permitted by this Agreement, a Module Agreement, or a Statement of Work;

2. use the Offering to send, store, publish, post, upload or otherwise transmit any Client Data in violation of any warranty, representation or obligation of Client under this Agreement;

3. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering available to any third party;

4. use the Offering to upload, collect, transmit, store, use or process, or ask Company to obtain from third parties any Client Data: (A) that Client does not have the lawful right to copy, transmit, distribute, and display (including any Client Data that would violate any confidentiality or fiduciary obligations that Client might have with respect to the Client Data); (B) for which Client does not have appropriate authority, consent or permission under applicable privacy laws; (C) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including, without limitation, any copyright, trademark, patent, trade secret, or other intellectual property right, moral right or right of privacy or publicity); D) that is tortious, defamatory, obscene, or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation (including applicable privacy laws) or would give rise to civil or criminal liability.

5. use the Offering to intentionally send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another;

6. continue to use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering following written notice from Company of such use;

7. attempt to gain unauthorized access to the Offering or its related systems or networks;

8. use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Offering;

9. use any data mining, robots or similar data gathering or extraction methods (including electronic address harvesting) not covered in the associated Module Agreements or Statements of Work;

10. take any action that imposes or may impose (as determined by Company in its sole discretion) an unreasonable or disproportionately large load on Company’s (or its Third Party Service Providers) infrastructure; 

11. interfere or attempt to interfere with the proper working of the Offering or any activities conducted on the Offering; 

12. run mail list, listserv, any form of auto-responder, or “spam” on the Offering; 

13. use manual or automated software, devices, or other processes to “crawl” or “spider” any page or part of the Offering; 

14. access the Offering for the purpose of building a similar or competitive product; 

15. copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Offering, or any part thereof or otherwise attempt to discover any source code, or underlying ideas or algorithms of any part of the Offering; or 

16. modify the Offering.

3. Client Responsibility for Client Data. Client has sole responsibility for providing all notices, making all disclosures and obtaining all necessary consents and authority required by and in accordance with applicable laws regarding Client Data. Company will use the Client Data it is provided by Client in performing the Offering “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of Client Data. 

4. Removal of Client Data on Request by Client. Client controls the Client Data stored by the Offering, including by deleting or requiring Company to delete all or part of the Client Data (including PII and Sensitive Information) at any time in a manner that ensures that this information cannot be accessed or read.

8. Term. Company may terminate your access to the Website or the Portal, at any time with or without notice. The term of any Module Agreement, Statement of Work, or Negotiated Agreement shall begin on the effective date of any such agreement. Unless otherwise provided in a Module Agreement, Statement of Work, or Negotiated Agreement, the following termination provisions apply: 

   1. Either Party may terminate any Module Agreement, Statement of Work, or Negotiated Agreement by giving thirty (30) calendar days’ advance written notice to the other Party without payment of any termination fees, charges or penalties in connection therewith, except for any fees, charges and other amounts that have become due and payable under any Module Agreement or Statement of Work, prior to the effective date of termination.

2. Either Party may, in addition to other relief, terminate any Module Agreement, Statement of Work, or Negotiated Agreement for cause if (i) the other Party breaches any material provision hereof, and fails within ten (10) calendar days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion, in each case unless the material breach is incapable of being cured, or (ii) the other Party becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the Party and is not dismissed within thirty (30) calendar days. Within ten (10) business days of a termination for cause, Company will send Client a final invoice for any Fees still due to Company, and Client shall pay the invoice in accordance with this Agreement.

9. Client Support. Subject to the terms and conditions described herein, the Company will provide Client with support, only as set forth in applicable Module Agreements, Statements of Work, and Service Level Agreements. 
    

10. Fees and Payment.
    
    
    

    1. Fees. Client will pay the Company fees for the Offering as set forth in a Module Agreement or Statement of Work (the “Fees”), which shall constitute the full and complete payment for all Services, Platform Services and Associated Services (the Offering) stated per each respective Module Agreement or Statement of Work.  Company may request that certain additional expenses incurred in performance of the Offering be reimbursed, but such additional expenses shall only be reimbursed if approved in writing by Client in advance of being incurred. 

2. Invoices. From time to time, Company may prepare and send to Client, at the then-current contact information on file with Company, invoices for any Fees and other amounts authorized in writing by Client that have become due and payable under this Agreement. The invoices will be prepared and accepted pursuant to the Module Agreement or Statement of Work. Unless otherwise expressly stipulated (pursuant to Client’s prior written consent) in an invoice, Client agrees to pay all undisputed invoiced amounts within thirty (30) calendar days of receipt of the invoice, which the first such invoice shall not be issued prior to the initial date of acceptance under the applicable Module Agreement or Statement of Work; provided, however, that, to the extent Company has commercially reasonably performed the applicable Offering under the relevant invoice in accordance with the standard of professional skill, care, diligence and expertise customarily applied by qualified and experienced professionals performing similar services, such disputed invoiced amounts will not exceed 50% of the total Fees set forth in the invoice in dispute.   

3. No Set-Off and Late Payment Charge.  Excluding disputed amounts, Client may not withhold or “set-off” any amounts due under this Agreement. Company reserves the right to suspend Client’s access to the Offering until all due and undisputed amounts are paid in full. Any undisputed portion of the invoice amount not paid within thirty (30) calendar days of receipt of the invoice will be increased by the costs of collection (including reasonable legal fees), and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (12.68% annually), or the maximum legal rate (if less) per month or fraction thereof until fully paid. Client may, in good faith, dispute the correctness of any invoice rendered under this Agreement. In the event that an invoice or portion thereof is disputed, payment of the undisputed portion of the invoice shall be made within the terms set forth in Section 10(b), with notice of the dispute given to Company in writing and stating the amount and basis for the dispute. Payment of any disputed amount shall not be required (and no late payment interest shall be incurred) until the dispute is resolved. Client and Company shall take all reasonable steps to resolve informally all such disputed invoices, including telephone and/or face-to-face conversations between decision-makers and exchange of information supportive of that Party’s position. Upon resolution of the dispute, any required payment shall be made within fifteen (15) calendar days of such resolution.

4. Certain Taxes.  Fees and charges quoted in this Agreement do not include, and Client will pay, indemnify and hold Company harmless, from all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Company.

5. Change Orders. Any and all changes, updates, additions, customization services, and/or deletions to the Offering, and/or changes in cost will be provided to Client and documented and agreed to in writing by the Parties and set forth in a change order or revised Module Agreement or Statement of Work, that specifies the requisite details of the change and the related change in Fees (if applicable), including the time periods that such changes, updates, additions, and/or deletions will be implemented by Company (“Change Order”). Notwithstanding anything in this Agreement to the contrary, if Company performs additional work or makes any such changes, updates, additions, customizations and/or deletions without a mutually signed Change Order, such work will be provided at no additional cost to Client.
   
   
   

11. Confidential & Proprietary Information.

    1. Definitions.  For purposes of this section, a Party receiving Confidential & Proprietary Information will be the “Recipient” and the Party disclosing such information will be the “Discloser”, and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of this Agreement and either (i) marked as “confidential” or “proprietary”, (ii) being that which a reasonable person would understand to be confidential or proprietary (whether or not so marked), or (iii) being that which (A) is generally unavailable to the public, (B) has been created, discovered, developed or otherwise become known to Discloser or in which property rights have been assigned or otherwise conveyed to Discloser, and (C) has material economic value or potential material economic value to Discloser’s present or future business; provided that: (a) the terms and conditions of this Agreement and all parts of the Offering  (including any Local Software), whether marked as “confidential” or “proprietary” or not, will be considered to be Company Confidential & Proprietary Information, and (b) all Client Data (including PII and Sensitive Information) and Client Documentation, whether marked as “confidential” or “proprietary” or not, will be considered Client’s Confidential & Proprietary Information, and (c) Discloser’s Confidential & Proprietary Information (other than PII and Sensitive Information) does not include: (i) information already lawfully known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information, (ii) information that is publicly available through no wrongful act of Recipient, or (iii) information lawfully received by Recipient from a third party who was free to disclose it without confidentiality obligations.

2. Covenant.  Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know,” or to its attorneys, in each case who have agreed to protect from unauthorized disclosure all such Confidential & Proprietary Information as to which they have access, and to such other recipients as the Discloser may approve in writing, or (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement. Recipient will use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. Upon the termination or expiration of this Agreement, upon written request by Discloser, Recipient will return or destroy all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof; provided that Recipient is permitted to retain the Confidential & Proprietary Information if required to do so for good corporate governance, legal, credit or audit purposes, and each Party may retain electronic copies of Confidential & Proprietary Information that have been created pursuant to routine electronic archiving and back-up procedures until such copies have been deleted in the ordinary course, and in each such case, each Party and its representatives will maintain the confidentiality of all Confidential & Proprietary Information until such Confidential & Proprietary Information is deleted. In the event applicable law does not permit Company to comply with the return or destruction of the Client Data, Company shall ensure the confidentiality of such information and shall not use it for any other purpose.  Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that, to the extent permissible under applicable law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order or limit the scope of the requested disclosure. To the extent practicable, Recipient will otherwise continue to treat the requested information as Confidential & Proprietary Information. 

12. Warranty; Disclaimer; Indemnity.

    1. Company Warranty. Company represents and warrants that:

       1. it is a business entity duly organized, validly existing, and in good standing in the jurisdiction in which it is formed, and that it has the full power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement; 

       2. it has no outstanding agreement that is in conflict with any of the provisions of this Agreement or that would preclude it from complying with the provisions hereof; and 

       3. it will comply with all applicable laws, including applicable privacy laws, as such laws concern this Agreement or the subject matter thereof; and 

       4. its performance of the Offering will not infringe upon or violate any trademarks, patents, copyrights, trade secrets or other third party property rights.

    2. Client Warranty.  Client represents and warrants to, and covenants with Company that: 

       1. it is a business entity duly organized, validly existing, and in good standing in the jurisdiction in which it is formed, and that it has the full power and authority to execute and deliver this Agreement and to carry out the transactions contemplated by this Agreement;

       2. it has no outstanding agreement that is in conflict with any of the provisions of this Agreement or that would preclude it from complying with the provisions hereof;

       3. if Client has included Sensitive Information or PII in Client data Provided to Company, Client has, with respect to such data, (A) provided all notices and disclosures and obtained all necessary consents and authority in accordance with applicable laws, and complied with Client’s representations, warranties and obligations set out in this Agreement;

       4. it will comply, and cause its Authorized Users to comply, with all applicable laws, including applicable privacy laws, as such laws concern this Agreement or the subject matter thereof; and

       5. Client will agree to and at all times comply with (and will cause each Authorized User to agree to and at all times comply with) all third-party terms and conditions applicable in respect of the Offering.

3. Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, THE OFFERING, AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY COMPANY TO CLIENT ARE PROVIDED “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, COLLATERAL OR STATUTORY, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT (EXCEPT AS EXPRESSLY SET OUT HEREIN), SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING AND / OR USAGE OF TRADE.  SUBJECT TO THE SERVICE LEVEL REQUIREMENTS EXPRESSLY SET FORTH IN THE RELEVANT MODULE AGREEMENT OR STATEMENT OF WORK, COMPANY DOES NOT WARRANT THAT THE OFFERING WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.  WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CLIENT IN CONNECTION WITH CLIENT’S USE OF THE OFFERING (INCLUDING REPORTS, ANALYSES AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CLIENT FOR ANY PURPOSE WHATSOEVER.
   
   
   

4. Indemnity.

   1. Client shall indemnify, defend, and hold harmless Company, its affiliates and its and their respective employees, contractors, directors, suppliers, partners, and representatives from and against any and all liabilities, claims, or expenses, including reasonable attorneys’ fees, arising out of or relating to any: (a) use or misuse of, or access to, the Offering; (b) your participation in any activities suggested by our Offering, including any actions that you take (or refrain from taking), in connection with such suggested activities; (c) breach of these Terms; (d) actual or alleged negligence, willful misconduct, or violation of any applicable law in connection with the Offering; or (e) infringement, violation, or misappropriation of any intellectual property or other right of any person or entity; in each case (a)–(e) whether by you or any third party accessing the Offering on your behalf. Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with Company in asserting any available defenses.

   2. If the performance of the Offering is held in any action to constitute infringement, or the use of the Offering is enjoined, Company, at its expense, shall procure for Client the right to either (a) continue use of the Offering, (b) replace the Offering with non-infringing materials or methods, provided that the functionality, quality and performance of the Offering does not materially change, or (c) modify the Offering so that the  Offering becomes non-infringing. Company agrees to indemnify and hold harmless Client from and against any liability or damages, including reasonable attorneys’ fees, arising out of any alleged infringement or violation.

13. Limitation of Liability. The Parties acknowledge that the following provisions reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

1. Amount.  EXCEPT AS MAY BE OTHERWISE SET FORTH IN A MODULE AGREEMENT OR STATEMENT OF WORK WITH RESPECT TO A SPECIFIC SERVICE THAT EXPRESSLY OVERRIDES THIS LIMITATION, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF COMPANY IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY COMPANY UNDER THIS AGREEMENT DURING THE PRECEDING 4 MONTHS. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. 

2. Company and Client Liability.  IN NO EVENT WILL A PARTY, ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE EMPLOYEES, OFFICERS, OR DIRECTORS BE LIABLE TO THE OTHER PARTY FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, SPECULATIVE, REMOTE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, BUSINESS, BUSINESS OPPORTUNITY OR GOODWILL, OR (III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF FORM OR CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN, OR ARISING OUT OF OR AS A RESULT OF BREACH OF, CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM), STRICT LIABILITY OR OTHERWISE.  UNLESS PROVIDED OTHERWISE IN A MODULE AGREEMENT OR STATEMENT OF WORK, IN NO EVENT WILL COMPANY BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.

14. Notices. Notices sent to either Party will be effective when delivered in person or by email, one business day after being sent by overnight courier, or two business days after being sent by first class mail postage prepaid to the official contact designated below the signature block hereof and immediately after being received on a business day by the other Party’s server, provided that if the email or electronically transmitted request or notice is received after 3:00 p.m. (in recipient’s time zone) it shall be effective on the next business day.  Notices must be in writing and sent to the respective email or postal address set out below the signature block of this Agreement.  Either Party may change its contact information by giving notice of such change to the other Party.

15. Survival.   The following Sections will survive expiration or termination of this Agreement for any reason:  Section 5 (Reservation of Rights), Section 7 (Client Responsibilities and Restrictions), Section 11 (Confidential & Proprietary Information), Section 12 (Warranty; Disclaimer; Indemnity), Section 13 (Limitation of Liabilities), Section 14 (Notices), Section 15 (Survival), and Section 16 (General Provisions).

16. General Provisions. 

    1. Assignment.  Client may not assign this Agreement to any third party without Company’s prior written consent.  Company may assign this Agreement or any rights hereunder to any third party without Client’s consent; provided that Company shall provide no less than thirty (30) calendar days’ prior written notice to Client of any such assignment.  Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon and inure to the benefit of the Parties’ successors and permitted assignees.

2. Choice of Law.  This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the State of Texas and the federal laws of the United States applicable therein, without regard to conflicts of law principles.  The Parties irrevocably attorn to the exclusive personal jurisdiction and venue of the U.S. District Court for the Southern District of Texas, Houston Division, except if no basis for federal jurisdiction exists, then the Supreme Court of the State of Texas, Harris County. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. 

3. Right to List as a Client.  Client agrees that Company may utilize Client’s name and logo in listings of current clients, which authorization shall continue unless revoked by Client upon written notice to Company.  Notwithstanding the foregoing, in any and all other circumstances, Company shall not utilize (i) Client’s name, company logo(s), trademarks, service marks, designs, photographs or art (including any contraction, abbreviation or simulation of any of the foregoing, collectively, “Marks”) in any written advertising, promotional, or marketing materials or on its website without, in each case, subject to a case-by-case review of any such use, Client’s express prior written consent, which consent shall be at Client’s sole discretion or (ii) any Marks of any of Client’s affiliates, unless such affiliate together with Client expressly grants such prior consent in writing.
   
   
   

4. Construction.  Except as otherwise provided herein, the Parties’ rights and remedies under this Agreement are cumulative.  The term “including” means “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.  The terms “consent” or “discretion”, when used in respect of a Party herein mean the right of a Party to withhold such consent or exercise such discretion (as applicable) arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
   
   
   

5. Force Majeure.  Neither Party will be liable for delays caused by events beyond its reasonable control, except (subject to Section 9) for non-payment of amounts already due hereunder, if the delayed or defaulting Party immediately notifies the other Party of the force majeure event, provides an estimate of the duration of the force majeure event, and discloses the delaying or defaulting Party’s plan to mitigate the effects of the delay or default. 

6. Severable.  Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable will be automatically conformed to the minimum requirements of law and all other provisions will remain in full force and effect.
   
   
   

7. Waiver.  Waiver of any provision hereof in one instance will not preclude enforcement thereof on future occasions.

8. Independent Contractors.  Client’s relationship to Company is that of an independent contractor, and neither Party is an agent or partner of the other.  Client will not have, and will not represent to any third party that it has, any authority to act on behalf of Company and vice versa.

9. Entire Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral.  Any representation, warranty, promise or condition not included in this Agreement will not be binding on either Party. 
   
   
   

10. Amendments. No amendment, supplement, modification, waiver or termination of this Agreement and, unless otherwise specified, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party. For all purposes of any written consent, approval, amendment, waiver or other similar authorization of Client as described in this Agreement (each, a “Client Consent”), such Client Consent must be obtained (and shall only be valid hereunder if obtained) from a director or higher ranking officer of Client. 

11. English Language. It is the express wish of the parties that this Agreement and all related documents be drawn up in English.