Terms and Conditions of Service

Note: Effective as of September 6, 2022, these Terms and Conditions of Service (these “Terms and Conditions”) incorporate the Terms and Conditions of Service previously available at https://www.northspyre.com/termsandconditions1.0320 and https://www.northspyre.com/termsandconditions21.04.16.

These Terms and Conditions set out the terms and conditions that govern the access and use of the Services (as defined below) available from Northspyre Inc. (“Provider”) by a user of the Services (the “Customer”). These Terms and Conditions further incorporate the terms and conditions of any applicable Software-as-a-Service Agreement and related exhibits (collectively, the “SaaS Agreement”) entered into by and between Provider and Customer. By indicating acceptance of the SaaS Agreement, or by otherwise accessing or using the Services, Customer acknowledges that it is entering into a legally binding agreement with Provider subject to these Terms and Conditions.

REIMBURSABLES AND FEES ASSOCIATED WITH MODIFICATION OF THESE TERMS AND CONDITIONS

For Customer’s whose annual Fees payable under this Agreement are greater than $100,000, Provider, in its sole discretion, may modify these Terms and Conditions subject to a written request for such modification from Customer. If the Legal Fees (as defined below) exceed $2,500, Customer will be invoiced for the total amount of the Legal Fees. 

For Customer’s whose annual Fees payable under this Agreement are less than $100,000, Provider, in its sole discretion, may modify these Terms and Conditions subject to a written request for such modification from Customer. Customer will be invoiced for (i) a service fee of $1,500 and (ii) the total amount of the Legal Fees (as defined below). 

The “Legal Fees” as mentioned in this section include the total amount invoiced to Provider from Provider’s legal counsel in connection with the modification of these Terms and Conditions at their regular hourly rates. 

1. DEFINITIONS

“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.

“Agreement” means the SaaS Agreement (including any exhibits attached thereto), these Terms and Conditions, and any other policies that Provider from time to time may implement or require acceptance of as a condition for accessing the Services.

“Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications.

“Authorized Users” means Customer’s employees, consultants, contractors, subcontractors, vendors, and agents who access and use the Services on behalf of Customer, at the request of Customer, or for the benefit of Customer.

“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.

“Customer Systems” means the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

“Documentation” means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by the Agreement.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

“Provider Materials” means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.

“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.

“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.

“Representatives” means, with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.

“Resultant Data” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to Customer Data.

“Services” means the Provider’s software-as-a-service offerings described in the SaaS Agreement and attached exhibits executed by and between Provider and Customer.

“Specifications” means the specifications for the Services set forth in any applicable SaaS Agreement entered into by and between Provider and Customer.

2. SAAS SERVICES AND SUPPORT

2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the Agreement, Provider hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12.6) right to access and use the Services during the Term, solely for use by Customer.

2.2 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.6) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.

2.3 Service and System Control. Except as otherwise expressly provided in the Agreement, as between the parties:

(a) Provider has sole control over the operation and provision of the Provider Materials; and

(b) Customer has sole control over the operation of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use.

2.4 Changes. Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to comply with applicable Law, or to maintain or enhance the quality or delivery of Provider’s services to its customers.

2.5 Suspension or Termination of Services. Provider may suspend, terminate, or otherwise deny Customer’s or any Authorized User’s access to or use of all or any part of the Services or Provider Materials, without incurring any resulting obligation or liability, arising from: (a) a judicial or other governmental order, subpoena, or law enforcement request that expressly or by reasonable implication identifies Customer or an Authorized User; or (b) Provider’s reasonable belief, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any term of the Agreement or otherwise accessed or used the Services in an unauthorized manner; or (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities. This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under the Agreement. 

3. CUSTOMER RESTRICTIONS AND RESPONSIBILITIES

3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by the Agreement. Without limiting the generality of the foregoing, Customer shall not, except as the Agreement expressly permits: (a) copy, modify, or create derivative works or improvements of the Services or Provider Materials; (b) lease, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any source code of the Services or Provider Materials; (d) bypass or breach any security mechanism used by the Services or Provider Materials; (e) input, transmit, or otherwise provide to or through the Services or Provider Systems any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (f) destroy, disrupt, disable, impair, or interfere with the Services, Provider Systems, or Provider’s provision of services to any third party in any manner; (g) remove, alter, or obscure any warranties, disclaimers, or intellectual property or proprietary rights notices, including but not limited to trademark, copyright, and patent notices, from any Services or Provider Materials, including any copy thereof; (h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right of any third party or that violates any applicable Law; or (i) access or use the Services or Provider Materials for competitive analysis of the Services or Provider Materials, the development or provision of a competing software service or product, or any other purpose to the Provider’s detriment or commercial disadvantage.

3.2 Customer Systems and Cooperation. Customer shall be responsible for: (a) the installation, security, and operation of all Customer Systems on or through which the Services are accessed or used; and (b) cooperating, as Provider may reasonably request, to enable Provider to exercise its rights and perform its obligations under and in connection with the Agreement.

3.3 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; and (c) all access to and use of the Services and Provider Materials directly or indirectly by Customer or any Authorized User or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Customer shall employ commercially reasonable safeguards necessary to protect against any unauthorized access to or use of the Services and Customer Data through Customer Systems.

3.4 Customer Control of Its Business. Customer acknowledges and agrees that the Services provided by Provider are not substitutes for Customer’s own independent business judgment. Customer shall be solely responsible for any decisions made in the course of its business, including without limitation any real estate transaction, and whether or not in reliance upon its use of the Services.

3.5 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement (each, a “Customer Failure”).

3.6 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable lawful measures to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.

3.7 Exportation and Re-exportation. Customer shall not remove or export from the United States or allow the export or re-export of the Services or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Pursuant to Federal Acquisition Regulation (“FAR”) section 2.101, the Services and Documentation are “commercial items.” Further, pursuant to Defense Federal Acquisition Regulation (“DFAR”) section 252.227-7014(a)(1) and (5), the Services and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively. Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of the Agreement and will be prohibited except to the extent expressly permitted by the terms of the Agreement.

4. SERVICE LEVEL AND CREDITS

4.1 Service Levels. Subject to the Agreement, Provider will use commercially reasonable efforts to make the Services Available at least 99.9% of the time as measured over the course of each calendar month during the Term, excluding United States federal holidays (each such calendar month, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below in this Section 4.1 (the “Availability Requirement”). For purposes of calculating the Availability Requirement, the following exceptions to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User that does not strictly comply with the Agreement and the Specifications; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) failure, interruption, outage, or other problem with any software, hardware, system, network or other matter beyond Provider’s control; (e) scheduled downtime for routine maintenance of the Services, provided Provider gives Customer written notice at least twenty-four (24) hours prior to such scheduled downtime; or (f) maintenance of the Services requested by Customer (each of (a)-(f) an “Exception”).

4.2 Service Level Failures and Remedies. In the event of a material failure of the Services to meet the Availability Requirement (a “Service Level Failure”), Provider shall issue a credit to Customer in the amount of 5% of the Fees due for the Service Period in which the Service Level Failure occurred (each a “Service Credit”), subject to the following limitations: (a) Provider has no obligation to issue any Service Credit unless Customer reports the Service Level Failure to Provider immediately on becoming aware of it and requests such Service Credit in writing within twenty-four (24) hours of the Service Level Failure; (b) in no event will a Service Credit for any Service Period exceed 25% percent of the total Fees that would be due for that Service Period if no Service Level Failure had occurred; and (c) in no event will Provider issue Customer more than one Service Credit per twenty-four (24) period. This Section 4.2 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.

4.3 Service Support. Provider will provide technical support services to Customer via telephone and email on weekdays during the hours of 7:00am am through 11:00pm Eastern time, with the exclusion of U.S. federal holidays (“Support Hours”). Customer may initiate a helpdesk ticket during Support Hours by emailing <concierge@northspyre.com>. Provider will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.

5. FEES AND PAYMENT.

5.1 Fees. Customer shall pay Provider the fees set forth in the applicable SaaS Agreement exhibit (“Fees”) in accordance with the terms therein.

5.2 Taxes. All Fees and other amounts payable by Customer are exclusive of taxes and similar assessments, other than any taxes imposed on Provider’s income.

5.3 Payment Method. Customer shall pay all Fees on or prior to the due date set forth in the applicable SaaS Agreement exhibit. All payments of Fees are due on annual basis and Customer shall make all payments hereunder in US dollars by ACH to Provider unless otherwise set forth in the applicable SaaS Agreement Exhibit. Customer shall make payments to the address or account specified on Provider’s invoice or in the applicable SaaS Agreement exhibit or such other address or account as Provider may specify in writing from time to time.

5.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available, (a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; and (b) Provider may suspend performance of the Services until all past due amounts, and interest thereon, have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

5.5 No Deductions or Setoffs. All amounts payable to Provider shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than Service Credits issued pursuant to Section 4 or any deduction or withholding of tax as may be required by applicable Law).

5.6 Fee Increases. Provider may increase Fees for any Renewal Term, by providing written notice to Customer at least sixty (60) calendar days prior to the commencement of such Renewal Term, and the applicable SaaS Agreement exhibit will be deemed amended accordingly.

6. CONFIDENTIALITY

6.1 Confidential Information. Provider or Customer may disclose or make available Confidential Information to the other party (the “Disclosing Party” and the “Receiving Party,” respectively). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that is marked confidential or proprietary, or that a reasonable person would deem confidential or proprietary, including without limitation information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, except that Confidential Information shall not include information that the Receiving Party can demonstrate in writing or other documentary record: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available; (b) was or becomes generally known by the public other than by the Receiving Party’s noncompliance herewith; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information. Without limiting the foregoing, all Provider Materials and the financial terms of the Agreement are the Confidential Information of Provider.

6.2 Protection of Confidential Information. The Receiving Party shall not disclose or permit access to Confidential Information other than to its Representatives who (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations hereunder; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations hereunder; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6. The Receiving Party shall safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure. The Receiving Party shall ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 6.

6.3 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to making the compelled disclosure, notify the Disclosing Party in writing of such requirement; and (b) provide reasonable assistance, at the Disclosing Party’s expense, to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If after providing the notice and assistance required under this Section 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

7. INTELLECTUAL PROPERTY RIGHTS

7.1 Provider Materials. Except as expressly set forth herein, nothing in the Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in the Provider Materials. All right, title, and interest in and to the Provider Materials are and will remain with the Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

7.2 Customer Data. As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Provider to enforce the Agreement and exercise Provider’s and the Provider Personnel’s rights and perform Provider’s and the Provider Personnel’s obligations hereunder. Customer hereby irrevocably grants Provider the right to collect and analyze data and other information relating to the provision, use, and performance of the Provider Materials (including, without limitation, information concerning Customer Data and data derived therefrom). Provider shall have the right (during and after the Term hereof) to (i) use such information and data to improve and enhance the Provider Materials and for other development, diagnostic, and corrective purposes in connection with the Provider Materials, and (ii) disclose such data and other information solely in aggregate or other de-identified form in connection with its business. Provider shall use and maintain the Customer Data in compliance with its Privacy Policy set forth at https://www.northspyre.com/privacypolicy, as such may be amended from time to time.

8. TERM AND TERMINATION

8.1 Term. Unless otherwise indicated on the applicable SaaS Agreement Exhibit, the Agreement commences as of the Effective Date of the SaaS Agreement entered into by Provider and Customer and, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue in effect for a period of one (1) year from such date (the “Initial Term”).

8.2 Renewal Term. Following the Initial Term and each subsequent term, the Agreement will automatically renew for an additional term of one (1) year (each a “Renewal Term”, and the Initial Term and all Renewal Terms, collectively, the “Term”), unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term, or otherwise terminated as expressly provided herein.

8.3 Termination. In addition to any other express termination right set forth elsewhere in the Agreement: (a) Provider may terminate the Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due under any SaaS Agreement; (b) either party may terminate the Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured more than thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and (c) either party may terminate the Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.4 Effect of Termination or Expiration. Upon expiration or termination for any reason, (a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (b) Customer shall immediately cease all use of any Services or Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information; (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all systems Customer directly or indirectly controls; and (iii) certify to Provider in a signed written instrument that it has complied with the requirements of this Section 8.4(b); (c) Provider may disable all Customer and Authorized User access to the Provider Material; (d) Provider shall make Customer Data available to Customer for electronic retrieval for a period of sixty (60) days from the date of expiration or termination, provided that Customer has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination; and (e) all Fees that would have become payable had the Terms and Conditions remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Provider’s invoice therefor.

8.5 Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 3.1, Section 6, Section 8.4, this Section 8.5, Section 9.4, Section 10, Section 11, and Section 12.

9. REPRESENTATIONS AND WARRANTIES

9.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement; (c) the execution of the SaaS Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and (d) when executed and delivered by both parties, the Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

9.2 Additional Provider Representations, Warranties, and Covenants. Provider represents and warrants to Customer that Provider will perform the Services using personnel of required qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

9.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received and Processed by Provider hereunder, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, any privacy, or any other rights of any third party or violate any applicable Law.

9.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND SECTION 10.2, ALL SERVICES, PROVIDER MATERIALS, AND RESULTANT DATA ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, INCLUDING BUT NOT LIMITED TO RESULTANT DATA, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE IN ANY WAY. THE SERVICES DO NOT REPLACE THE NEED FOR CUSTOMER TO MAINTAIN REGULAR DATA BACKUPS OR REDUNDANT DATA ARCHIVES FOR ITS CUSTOMER DATA. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.

10. INDEMNIFICATION

10.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, and employees (each, a “Customer Indemnitee”) from and against any and all Losses incurred by Customer resulting from any Action by a third party (other than an Affiliate of Customer Indemnitee) that Customer’s use of the Services in accordance with this Agreement infringes or misappropriates such third party’s United States Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (a) Customer Data; (b) Customer’s modification of the Provider Materials not made by or at the direction of Provider; (c) Customer’s use of the Services in a manner not authorized by Provider or in breach of the terms of this Agreement; (d) any combination or use of the Services with any other party’s (including Customer Indemnitee’s) equipment, products, or systems, to the extent that such Action is based on such combination or use; (e) Customer Indemnitee’s continued use of the allegedly infringing technology after being notified of the infringement claim; or (f) failure to timely implement or utilize any modifications or upgrades to the Services or their manner of use made available to Customer or otherwise instructed by Provider.

10.2 Provider Indemnification Procedure. Each Customer Indemnitee shall promptly notify Provider in writing of any Action for which such Customer Indemnitee believes it is entitled to be indemnified pursuant to this Section 10.1. Provider shall assume control of the defense and shall employ counsel of its own choosing. The Customer Indemnitee may participate in and observe the proceedings at its own cost and expense with its own counsel. With respect to an Action, if Provider determines in its own discretion that the Action is meritorious, Provider may at its discretion (i) modify or replace the Services to provide substantially similar services in a non-infringing or otherwise non-violating manner, (ii) obtain a license for Customer’s ongoing use of the Services, or (iii) remove the affected portion of the Services and refund Customer a pro rata amount of the unused fees paid by Customer corresponding to the affected portion. This Section 10.2 constitutes Customer Indemnitee’s sole and exclusive remedies, and Provider’s entire liability, with respect to infringement of third party Intellectual Property Rights.

10.3 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Affiliates and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from, or are alleged to arise out of or result from: (a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with the Agreement; (b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; or (c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under the Agreement.

10.4 Customer Indemnification Procedure. Each Provider Indemnitee shall notify Customer in writing of any Action for which such Provider Indemnitee believes it is entitled to be indemnified pursuant to Section 10.3. The Provider Indemnitee shall cooperate with Customer at Customer’s sole cost and expense. Customer shall promptly assume control of the defense and shall employ counsel reasonably acceptable to Provider Indemnitee to handle and defend the same, at Customer’s sole cost and expense. The Provider Indemnitee may participate in and observe the proceedings at its own cost and expense with its own counsel. Customer shall not settle any Action on any terms or in any manner that adversely affects the rights of any Provider Indemnitee without said Provider Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If Customer fails or refuses to assume control of the defense of such Action, the Provider Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Customer, in each case in such manner and on such terms as the Provider Indemnitee may deem appropriate. The Provider Indemnitee’s failure to perform any obligations under this Section 10.4 will not relieve Customer of its obligations under this Section 10, except to the extent that Customer can demonstrate that it has been materially prejudiced as a result of such failure.

11. LIMITATIONS OF LIABILITY

11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PROVIDER OR ANY OF ITS EMPLOYEES, OFFICERS, AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) INACCURACY IN THE SERVICES OR CUSTOMER RELIANCE THEREON; (b) ANY MATTER PERTAINING TO OR RESULTING FROM CUSTOMER’S BUSINESS JUDGMENT, INCLUDING JUDGMENTS MADE IN RELIANCE ON SERVICES; (c) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (d) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (e) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (f) COST OF REPLACEMENT GOODS OR SERVICES; (g) LOSS OF GOODWILL OR REPUTATION; (h) FOR ANY MATTER BEYOND PROVIDER’S REASONABLE CONTROL; OR (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF PROVIDER AND ITS OF ITS EMPLOYEES, OFFICERS, AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE FEES PAID BY CUSTOMER TO PROVIDER FOR THE SERVICES UNDER THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, IN EACH CASE, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

12. MISCELLANEOUS

12.1 Further Assurances. On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the Agreement.

12.2 Use of Customer Name. Customer authorizes Provider to use Customer’s name, logo and/or trademark in connection with Provider marketing materials (including but not limited to sales presentations, internet websites, and any other materials evidencing the fact that Customer uses the Services of Provider). Such marketing materials may be developed, disseminated, and used without Customer input or review.

12.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

12.4 Notices. Any notice, request, consent, claim, demand, waiver, or other communications under the Agreement have legal effect only if in writing and addressed to Provider at the following address (or to such other address that Provider may designate from time to time in accordance with this Section 12.4):

Email: customer-success@northspyre.com

Notices sent to Provider in accordance with this Section 12.4 will be deemed effectively given when sent by email with confirmation of transmission, if sent during the Provider’s normal business hours, and on the next business day, if sent after the Provider’s normal business hours. Notices to Customer may be sent to any address or other contact point (including email) that Customer may provide to Provider. Notices sent to Customer will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the seventh day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

12.5 Entire Agreement. The Agreement entered into by and between Provider and Customer, constitutes the sole and entire agreement of the parties with respect to the Services and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms and Conditions, the following order of precedence governs: (a) first, any exhibit to the SaaS Agreement; (b) second, the SaaS Agreement; and (c) third, these Terms and Conditions.

12.6 Assignment. Customer shall not assign or otherwise transfer or delegate any of its rights, obligations, or performance under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under the Agreement. Any purported assignment, delegation, or transfer in violation of this Section 12.6 is void. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

12.7 No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.

12.8 Waiver. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

12.9 Waiver of Trial by Jury. EACH PARTY HEREBY WAVIES ANY RIGHT TO TRIAL BY JURY FOR ANY DISPUTE ARISING FROM THIS AGREEMENT, AND THE PARTIES HEREBY AGREE THAT ALL FACTUAL FINDINGS SHALL BE MADE BY THE COURT BEFORE WHOM THE DISPUTE APPEARS.

12.10 Amendment and Modification. The Terms and Conditions in effect at the time that Customer and Provider enter into an agreement shall be the Terms and Conditions for the Agreement, except as the Agreement may be modified pursuant to this Section. These Terms and Conditions may be modified by Provider at any time in its sole discretion, and such modifications shall become effective with respect to Customer for any Renewal Term that begins on or after the date that the modifications are published on this webpage. In the event of modification, Provider will provide a “Last Updated” date for these Terms and Conditions, which shall be the date that the modifications were published on the webpage. Customer’s entry into a Renewal Term shall constitute acceptance of these Terms and Conditions, as they may have been amended and set forth on this webpage, for the Renewal Term being entered and for subsequent Renewal Terms. If Customer does not wish the modified terms to apply in the Renewal Term, Customer must terminate the Agreement at the expiration of the then-current term. These Terms and Conditions may also be modified by an instrument in writing signed by both Provider and Customer. Any purported amendment or modification in violation of this Section 12.9 is void.

12.11 Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

12.12 Governing Law; Submission to Jurisdiction. The Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. All actions concerning this agreement may be brought in the state or federal courts located in Atlanta, Georgia or Wilmington, Delaware.

12.13 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under the Agreement would cause Provider irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Provider will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security or to prove actual damages. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

12.14 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to the Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

Last Updated: March 25, 2024.