SOFTWARE-AS-A-SERVICE AGREEMENT

This Software-as-a-Service Agreement (together with the Order Form (as defined below) and any exhibits hereto or thereto, this “Agreement”) is made as of the date of subscription, by and between Intercept CX, LLC, for its product Intercept (“Intercept”, “We”) an Arizona limited liability company with a business address located at 740 S Mill Ave, Suite 210, Tempe AZ 85281, and you, as the subscriber (“Brand”, “You”). By accepting this Agreement, either by clicking a box indicating your acceptance or by executing an Order Form that references this Agreement, You agree to the terms of this Agreement.

Background

Brand desires to use Intercept to conduct research campaigns using the Intercept software, in accordance with the terms and conditions set forth below.

“Intercept” in these terms, refers to all products and services, including Intercept’s proprietary software-as-a-service research platform, the End-user response interface, reporting dashboard, “intercept” routing and End-user identification services, API endpoints, and project creation interface.

DEFINITIONS AND INTERPRETATIONS

  1. In this Agreement, capitalized terms shall, unless the context requires otherwise, have the following meanings:
  2. Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party.
  3. Agreement means this Software-as-a Service Agreement.
  4. Authorized User means the Brand’s employees and/or consumers as part of research campaigns
  5. Beta Feature means any Service feature that is expressly identified as “Beta”, “Alpha”, “Experimental” or “Pre-Release” or that is otherwise expressly identified as unsupported.
  6. Beta Test means Brand’s use of a Beta Feature for the purpose of testing the usability and functionality of that Beta Feature.
  7. Brand means the organization, corporation, or individual entering into this agreement.
  8. Brand Content means any photos, videos, logos, text, or other forms of information, identification, or authorship, that have been uploaded to the Intercept platform to customize, configure the Intercept software, or otherwise allow Intercept to deliver service to the Brand and further defined below.
  9. Brand Features means trade names, trade and service marks, logos and other distinctive brand features of the applicable party.
  10. Brand Data means data or/and content derived from the use of the Services under this Agreement including Personally Identifiable Information.
  11. Commencement means the commencement date of the Services and associated Fees.
  12. End-user means an individual responding to any question as part of a research campaign of the Brand through the mobile Intercept interface services under this Agreement whether Personnel or not.
  13. Fees means the fees for the Services specified in the Order Form.
  14. Initial Term means the term defined in the Order Form.
  15. Intercepts means a single, unique, attempt to reach a customer via email or SMS.
  16. Minimum Service Fee means the minimum Fee Intercept shall invoice to the Brand.
  17. Order Form means the order form that sets out pricing and other terms with respect to the Services.
  18. Personnel means Brand’s directors, officers, employees, agents, other staff and subcontractors (including any of Brand’s subcontractors’ directors, officers, employees, agents, staff, and contractors).
  19. Personally Identifiable Information means information that personally identifies an individual, such as name, email address or billing information, or any other information or data which can be reasonably linked to such information.
  20. Privacy Policy means the privacy policy as stated.
  21. Renewal Term means the 12-month period following the Initial Term unless where otherwise stated in the Order Form.
  22. Services mean the software-as-a-service platform with all its functionality, support or/and professional services set out in each Order Form.
  23. Services User means any Intercept user under the Agreement whether Personnel or not.

SUBSCRIPTION

Subject to the terms and conditions of this Agreement, Intercept hereby grants to** Brand**, and Brand accepts, a non-transferable, non-sublicensable, non-exclusive right to access and use the Intercept Products, in object code format only, to identify, activate and engage with consumers on behalf of Brand and/or on behalf of Brand’s customers and/or End-users. Subject to the terms and conditions of this Agreement, Intercept will provide Brand with access to the Intercept Products. Brand will ensure that each employee will only use the Intercept Products as expressly permitted by this Agreement and will be responsible and liable for any acts or omissions of each employee in violation of this Agreement as if such** employee** were the “Brand” hereunder. Brand acknowledges that its access and use of the Intercept Products will be limited to only the access available on www.intercept.cx and any other designated websites for which Intercept provides access to Brand to use the Intercept Products.

The following limitations and restrictions shall apply to the Intercept Products: 1. To use the Intercept Products, you will be asked to create an Intercept account. As part of the account creation process, you’ll be asked to provide your email address and create a password. Until you register for an Intercept account, your access to Intercept Products will be limited to what is available to the general public. When registering for an Intercept account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. 2. You may also create additional user accounts within each Intercept Brand account. These terms apply for each of these organizational user accounts 3. Brand shall not provide access to the Intercept Products to any person who is not Brand Consumer or an employee of Brand unless otherwise agreed to in writing by Intercept (“Authorized Users”). 4. Except as expressly permitted hereunder, Brand shall not, and shall not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Intercept Products; (ii) modify, translate or create derivative works based on the Intercept Products; (iii) copy (except for archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Intercept Products; (iv) use the Intercept Products for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Intercept Products or their related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (vi) remove or obscure any proprietary notices or labels of Intercept or its suppliers on any Intercept Product.

BRAND RESPONSIBILITIES

As a condition to access and use Intercept Products, Brand (and all Authorized Users) will uphold the following responsibilities:

  1. Brand will be solely responsible for managing the Brand Content (as defined below) on the Intercept Products except as such responsibility is delegated to Intercept as part of the services described in the Order Form; 2. Brand shall be solely responsible for any compensation paid to End-users in agreement for submitting content using the Intercept platform, except where agreed upon in an order form;
  2. All respondents to intercepts (End-users) are governed by a separate terms and conditions agreement and privacy policy. Brand will not take any action to modify or contradict said agreement. Any additional terms between Brand and End-user are supplemental to, and do not replace, the agreement between Intercept and End-user;
  3. Brand will use the Intercept Products only for purposes permitted by this Agreement and any applicable local, state, national or international law or regulation;
  4. Brand will not use the Intercept Products in a manner that violates any third-party agreements to which Brand is a party or that are provided to Brand by Intercept in advance;
  5. It is the sole responsibility of the Brand to ensure End-users can be contacted, in accordance with any and all applicable laws governing promotional messaging on the notification channel being used (including, but not limited to, SMS and email);
  6. Brand will not use the Intercept Products to solicit the performance of any illegal activity or other activity which infringes Intercept’s rights or the rights of others. Intercept reserves the right to remove any content that is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene, or otherwise objectionable, or that violates this Agreement or any entity’s intellectual property rights. Additionally, Intercept has the right to report any such content if required by local laws;
  7. Brand will not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Intercept Products, or in any way reproduce or circumvent the navigational structure or presentation of the Intercept Products, to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Intercept Products;
  8. Brand will not attempt to gain unauthorized access to any portion or feature of the Intercept Products, or any other systems or networks connected to the Intercept Products or to any of our servers, by hacking, password “mining” or any other means;
  9. Brand will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Intercept Products or our systems or networks, or any systems or networks connected to the Intercept Products or that are in excess of the levels allowed under specific Subscription levels;
  10. Brand will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Intercept Products or any transaction being conducted on the Intercept Products, or with any other person’s use of the Intercept Products;
  11. Brand will make no efforts to remove or change Intercept branding across all Intercept products, including any branding or badges on the End-user response interface;
  12. Only Authorized Users who have been assigned a unique login to the Intercept Products shall be entitled to access and use the Intercept Products under this Agreement. Brand shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Intercept Products and notify Intercept promptly of any such unauthorized access or use; (b) be solely responsible for the accuracy, quality, integrity and legality of the Brand Content and Brand Data (each, as defined below) and (c) use the Intercept Products only in accordance with the documentation, this Agreement and any applicable laws and regulations. Brand will be solely liable for any uses of accounts linked to Brand’s or its Authorized Users’ login credentials.

BRAND CONTENT

As used herein, “Brand Content” means any photos, videos, logos, text, or other forms of information, identification, or authorship, that have been uploaded to the Intercept platform to customize, configure the Intercept software, or otherwise allow Intercept to deliver service to the Brand including via the Intercept Products, but expressly excluding Brand Data (as defined below). Subject to the terms and conditions of this Agreement, Brand hereby grants to Intercept a nonexclusive, worldwide, royalty-free, fully paid up, non-sublicensable (except to contractors performing services on behalf of Brand or Intercept), non-transferable (except as set forth in Section 18) right and license to copy, display, modify and otherwise use the Brand Content in connection with making available the Intercept Products to Brand hereunder. As between the parties, Brand reserves any and all right, title and interest in and to the Brand Content other than the rights expressly granted to Intercept under this Agreement. Brand is responsible for maintaining copies, duplicates or back-ups of any Brand Content. Intercept may not remove any copyright or trademark notice or any other notices included in or with any Brand Content.

In the case that Intercept ceases services, a reasonable attempt will be made to allow Brand to export end user’s raw content (sans-analysis), except where non-permissible by local regulation.

DATA RIGHTS

As used herein, “Intercept Data” means any and all data or information provided or otherwise made available by Intercept to Brand under this Agreement, including, without limitation, information accessed by Brand via the Intercept Products. Subject to the terms and conditions of this Agreement, Intercept hereby grants Brand a royalty-free, nonexclusive, non-sublicensable, non-transferable (except as expressly permitted herein) license, during the term of this Agreement, to use the Intercept Data to perform research activities within the Intercept Products. Except as expressly set forth herein, Brand acquires no rights or interests in the Intercept Data under this Agreement.

As used herein, “Brand Data” means any and all data or information provided or otherwise made available by Brand to Intercept under this Agreement, including, without limitation, any End-user data or information provided by Brand via the Intercept Products. Subject to the terms and conditions of this Agreement, Brand hereby grants to Intercept a nonexclusive, royalty-free, fully paid up, nonsublicensable (except to contractors performing services on behalf of Brand or Intercept), non-transferable (except as set forth in Section 18) right and license to copy, distribute, display, modify and otherwise use the Brand Data (a) in connection with making available the Intercept Products to Brand hereunder and (b) with respect to any Brand Data that is publicly available, for the purposes of growing Intercept’s customer base, conducting marketing activities and conducting marketing and statistical analysis. For the avoidance of doubt, during the term of this Agreement and thereafter, Intercept may use any publicly available data or data that is already in Intercept’s control, regardless of whether such data is Brand Data hereunder, for any purposes permitted by applicable law; provided, that, Intercept will not use any such data in a manner that identifies Brand as a source of such data. In the case that Brand Data includes personal data subject to the European Union (EU) General Data Protection Regulation 2016/679 (GDPR), the parties will enter into a separate Data Processing Addendum in order to address the processing of personal data in accordance with the GDPR.

TRADEMARKS AND MARKETING

Brand hereby grants to Intercept a nonexclusive, worldwide, royalty-free, fully paid up, nonsublicensable (except to contractors performing services on behalf of Brand or Intercept), non-transferable (except as set forth in Section 18) right and license to copy, display and otherwise use Brand’s trademarks, service marks, trade names, image, character, logos, domain names and other distinctive brand features or other identification (“Trademarks”) in connection with its performance hereunder. Any other proposed use of the Trademarks shall be subject to Brand’s prior written approval in each instance, except that Intercept may list Brand as a client on Intercept’s website(s). Neither party will portray the other in a false, misleading, or derogatory manner. The parties further agree to prepare press releases, marketing inquiries, and case studies and all such joint marketing activities shall be mutually agreed upon prior to publication.

INTELLECTUAL PROPERTY RIGHTS

Except as expressly set forth in Section 2 above, Brand does not have, and will not acquire any right, title or interest in or to the Intercept Products, any updates, enhancements, improvements or modifications thereto, or any intellectual property rights which subsist therein (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Intercept grants no, and reserves any and all rights, other than the rights expressly granted to Brand under this Agreement.

FEEDBACK

By submitting suggestions or other feedback about Intercept Products (“Contributions”) Brand agrees that:

  1. Intercept is not under any obligation of confidentiality with respect to your Contributions;
  2. Intercept may use or disclose (or choose not to use or disclose) your Contributions for any purpose and in any way;
  3. Intercept will be free to implement, use, modify or otherwise exploit, your Contributions;
  4. Brand irrevocably, non-exclusively licenses to Intercept rights to exploit your Contributions; and
  5. Brand is not entitled to any compensation or reimbursement of any kind from Intercept under any circumstances for your Contributions.

Brand acknowledges that Intercept may modify, update or otherwise change the Intercept Products from time to time, in its sole discretion. If any such changes result in diminished functionality, Brand may terminate this Agreement without any penalty for exercising such right under the termination provisions in Section 11 of this Agreement.

FEES AND PAYMENTS

Your subscription will be due and payable by You in advance on or before the Effective Date and again on or before the completion of each subsequent period under this Agreement. If You have specified credit card, or direct withdrawal or ACH payment from a bank account, as an applicable payment mechanism under this Agreement, You grant Intercept the right to charge the credit card or debit the bank account provided to Intercept for all Fees incurred under this Agreement. Except as expressly set forth herein or agreed to in writing with Intercept, all Fees will be non-refundable once paid to Intercept, including upon any termination or suspension of this Agreement. If You are overdue on any payment of Fees and fail to pay within five business days of a written notice of overdue payment, Intercept may charge You a late fee equal to the lesser of 1½% per month or the maximum amount permitted under applicable law. If Intercept requires use of collection agencies, attorneys, or courts of law for collection on Your account, You will be responsible for those expenses.

After two months of no payment, Intercept reserves the right to terminate the agreement according to Section 11.

TAXES

The fees and all other amounts due under this Agreement are net amounts, exclusive of all taxes, duties, and assessments, including without limitation all sales, withholding, VAT, excise, ad valorem, and use taxes (collectively, the “Taxes”) and are not subject to offset or reduction because of any taxes incurred by Brand or otherwise due as a result of this Agreement. Brand shall be responsible for and shall pay directly, any and all Taxes relating to its use of the Intercept Products, except for Taxes based on Intercept’s income. Brand will indemnify, defend and hold Intercept harmless from and against any applicable Taxes arising from transactions executed on the Intercept Products, except for Taxes based on Intercept’s income.

TERM AND TERMINATION

This Agreement commences on the date of execution of the Order Form (the “Effective Date”) and shall continue in effect thereafter until the end date set forth in the Order Form, unless superseded or otherwise terminated in accordance with the Order Form and/or this Section 11.

  1. Termination for Material Breach. Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 60 days of receiving written notice of the material breach from the non-breaching party. A breach of this Agreement by your Affiliate, an Authorized User, or Permitted Third Party will be treated as a breach by you. Termination in accordance with this subsection will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 60-day cure period. If you fail to timely pay any Subscription Fees or Professional Services Fees, we may, without limitation to any of our other rights or remedies, suspend performance of the Service and/or Professional Services until we receive all amounts due, or may terminate this Agreement pursuant to this Subsection.
  2. Post-Termination Obligations.
    1. Upon any termination or expiration of the Agreement, all rights granted by Intercept hereunder and all obligations of Intercept to provide the Intercept Products shall immediately terminate and Brand shall cease use of the Intercept Products.
    2. Upon any termination or expiration of this Agreement, each party will return or destroy all copies or other embodiments of the other party’s Confidential Information
    3. Upon termination or expiration of this Agreement, Intercept shall return or make available to Brand all Brand Content and destroy copies of all such Brand Content and shall delete all such Brand Content from any computers, networks or software system under its control and shall certify to Brand its compliance with the requirements of this provision.
    4. If this Agreement is terminated by us for your uncured material breach or by you other than as a result of a material, uncured breach by us, you will pay to us the amounts due under the applicable Order Form for the remainder of the then-current term. If you terminate this Agreement for our uncured material breach, as your exclusive remedy, we will provide you a pro-rata refund of any prepaid but unused Subscription Fees for the remainder of then-current term, unless you are on a month-to-month Subscription Plan. In which case, there will be no refund of any paid fees.
  3. Bankruptcy. If either party shall be adjudicated a bankrupt, institute voluntary proceedings for Chapter 7 Bankruptcy protection, make a general assignment for the benefit of its creditors, apply for or consent to the appointment of a receiver for it or its property, or admit in writing its inability to pay its debts as they become due, the other party may terminate this Agreement upon written notice.

Any termination or expiration of this Agreement shall not relieve either party from any accrued obligations hereunder. Brand will pay in full for the use of the Intercept Products up to and including the last day on which the Intercept Products are provided to Brand hereunder.

SURVIVAL

Accrued payment obligations, this Section 12, the last sentence of Section 5** **and Sections 6, 8, 9, 10, 11, 13, 15, 16, 17 and 18 will survive any expiration or termination of this Agreement.

CONFIDENTIALITY

“Confidential Information” means any and all non-public confidential and/or proprietary information, regardless of whether it is in tangible form, disclosed by either party that the disclosing party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party; provided, however, that a disclosing party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the disclosing party even if not so marked or identified. Intercept’s Confidential Information includes, without limitation, the Intercept Products, the Intercept Data and the terms of this Agreement. Except as permitted by this Agreement, neither party will (a) make any use of the other party’s Confidential Information; (b) acquire any right in the other party’s Confidential Information; (c) disclose any of the other party’s Confidential Information to a third party; or (d) refuse to promptly return or destroy the other party’s Confidential Information upon request. Notwithstanding the foregoing, this Section will not apply to any information that the receiving party can demonstrate: (a) is or becomes a part of the public domain through no fault of its own; or (b) was in the possession of the receiving party at the time of its disclosure by the disclosing party as evidenced by files existing at the time of disclosure. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement. Further, either party may disclose the other party’s Confidential Information to the extent required by law or by order of a court or governmental agency after providing notice to the other party and providing such party with the opportunity to seek a protective order. The parties may issue mutually approved press releases announcing the consummation of this Agreement and the parties may disclose the existence of this Agreement and the parties’ relationship in their respective marketing materials, financial reports, presentations, website materials, customer lists and other media but Customer shall submit any such disclosure to Intercept for approval prior to any disclosure and in no event may either party disclose the financial or other terms of this Agreement. In the event of actual or threatened breach of the provisions of this Section 13, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

REPRESENTATIONS AND WARRANTIES

In addition to the representations and warranties contained elsewhere herein:

Intercept represents and warrants that: (a) it has the full power and authority necessary to enter into this Agreement and to perform its obligations under this Agreement; (b)  this Agreement is a valid and binding obligation; (c) it will perform its obligations under this Agreement in compliance with all applicable laws, rules and regulations; (d) its performance of its obligations under this Agreement will not violate any provision of any agreement to which it is a party or by which it is bound; (e) to Intercept’s knowledge, the Intercept Products and the use of the Intercept Products as contemplated by this Agreement do not infringe or misappropriate any intellectual property rights of any third party; and (f) it will use commercially reasonable efforts to keep the Intercept Products free from any material that allows or causes the installation, transferring or in any way facilitating the installation or transfer of any malware including, without limitation, spyware, viruses, worms, rootkits, adware, keystroke loggers, dialers, time bombs or time locks, or bot software.

Brand and its signatory represent and warrant that: (a)  it has the full power and authority necessary to enter into this Agreement and to perform its obligations under this Agreement; (b) this Agreement is a valid and binding obligation; (c)  it will perform its obligations under this Agreement in compliance with all applicable laws, rules and regulations; (d)  its performance of its obligations under this Agreement will not violate any provision of any agreement to which it is a party or by which it is bound; (e) it has all rights, licenses and permits necessary to perform its obligations under this Agreement; (f) it owns the Brand Content, or otherwise has the right to use the Brand Content in connection with the Intercept Products, and Intercept’s use of the Brand’s Content as permitted hereunder will not violate any rights of any person.

BETA SERVICES. FROM TIME TO TIME, YOU MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH INTERCEPT WHERE YOU GET TO USE ALPHA OR BETA SERVICES, PRODUCTS, FEATURES AND DOCUMENTATION (“BETA SERVICES”) OFFERED BY INTERCEPT. THESE BETA SERVICES ARE NOT GENERALLY AVAILABLE AND MAY CONTAIN BUGS, ERRORS, DEFECTS OR HARMFUL COMPONENTS. ACCORDINGLY, WE ARE PROVIDING THE BETA SERVICES TO YOU “AS IS.” WE MAKE NO WARRANTIES OF ANY KIND WITH RESPECT TO THE BETA SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NOTWITHSTANDING ANY PUBLISHED DOCUMENTATION THAT STATES OTHERWISE, INTERCEPT DOES NOT WARRANT THAT THE BETA SERVICES WILL BE ERROR-FREE OR THAT THEY WILL MEET ANY SPECIFIED SERVICE LEVEL OR WILL OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

DISCLAIMERS AND LIMITATION OF LIABILITY

In connection with Brand’s access and use of the Intercept Products, Intercept may make available to Brand certain template documents that could be useful to Brand in connection with its use of the Intercept Products, including, without limitation, template terms of use and privacy policies (the “Template Policies”). INTERCEPT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TEMPLATE POLICIES. BRAND ACKNOWLEDGES AND AGREES THAT INTERCEPT IS NOT PROVIDING ANY LEGAL OR OTHER ADVICE WITH RESPECT TO THE TEMPLATE DOCUMENTS. INTERCEPT IS NOT A LAW FIRM AND IS NOT ENGAGED IN THE PRACTICE OF LAW. THE TEMPLATE POLICIES SHOULD NOT BE USED IN LIEU OF THE ADVICE OF COMPETENT LEGAL COUNSEL. BRAND AGREES THAT BRAND, AND NOT INTERCEPT, MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH THE USE OF THE TEMPLATE POLICIES, INCLUDING ANY RELIANCE ON THE ACCURACY, LEGALITY, APPROPRIATENESS, COMPLETENESS OR USEFULNESS OF ANY SUCH TEMPLATE POLICIES. BRAND IS RESPONSIBLE FOR INFORMING ITSELF OF THE LAWS AND REGULATIONS APPLICABLE TO ITS JURISDICTION AND FOR COMPLYING WITH THEM.

EXCEPT AS OTHERWISE PROVIDED HEREIN, THE INTERCEPT PRODUCTS MADE AVAILABLE HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT. INTERCEPT DOES NOT WARRANT THAT THE INTERCEPT PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE INTERCEPT PRODUCTS WILL BE UNINTERRUPTED.

EXCEPT FOR LIABILITY ARISING FROM (A) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16, (B) BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS IN SECTION 13 OR (C) A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES, EVEN IF A PARTY HAS ADVISED THE OTHER IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND SUCH DAMAGES ARE FORESEEABLE OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE AMOUNTS RECEIVED BY INTERCEPT UNDER THIS AGREEMENT IN THE PRECEDING 12 MONTHS; PROVIDED, HOWEVER, THAT SUCH LIMITATION SHALL NOT APPLY IN THE CASE OF A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

If Intercept Products and or Services are suspended for any reason, Intercept will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Brand may incur with connection to any such suspension.

INDEMNIFICATION

Intercept shall defend Brand and the officers, members, directors, agents, and employees of Brand (“Brand Indemnified Parties”) against any third-party claim, allegation or legal action (a “Claim”) arising from an allegation that Brand’s authorized use of any Intercept Product infringes any copyright or misappropriates a trade secret of any third party. Further, Intercept shall indemnify the Brand Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Intercept’s indemnification obligation will not apply to claims to the extent arising from (a) modification of any Intercept Product by any party other than Intercept without Intercept’s express consent; (b) the combination, operation, or use of any Intercept Product with other product(s), data or services where such Intercept Product would not by itself be infringing; or (c) unauthorized or improper use of any Intercept Product. If the use of any Intercept Product by Brand has become, or in Intercept’s opinion is likely to become, the subject of any claim of infringement, Intercept may at its option and expense (i) procure for Brand the right to continue using such Intercept Product as set forth hereunder, (ii) replace or modify such Intercept Product to make it non-infringing so long as such Intercept Product has at least equivalent functionality, (iii) substitute an equivalent for such Intercept Product or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement. This Section 16 states Intercept’s entire obligation and Brand’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

Brand shall defend Intercept and the officers, members, directors, agents, and employees of Intercept (“Intercept Indemnified Parties”) against any Claims arising from (a) the gross negligence, bad faith, fraudulent acts or omissions, or intentional or willful misconduct of Brand, (b) any use or disclosure by Brand of any Intercept Product in violation of this Agreement, (c) the exercise of any rights granted to Intercept by Brand in or to the Brand Content or Brand Data in accordance with this Agreement or (d) Brand’s use of any Template Policies. Further, Brand shall indemnify the Intercept Indemnified Parties against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.

The party seeking indemnification (the “Indemnified Party”), will notify the other party (the “Indemnifying Party”) promptly in writing of any claim covered by the foregoing indemnifications. The parties agree to cooperate fully during such proceedings. The Indemnifying Party will have the right to defend any such claim with attorneys that are reasonably acceptable to the Indemnified Party, and will have control over the litigation, negotiation, and settlement of any claim. The Indemnified Party may be represented by separate counsel at its own expense. Neither party will make any settlement that materially affects the rights of the other party, nor will either party be responsible for indemnifying the other party for any settlement made without the indemnifying party's consent, which will not be unreasonably withheld or delayed.

DISPUTES

Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to Brand’s use of the Intercept Products or this Agreement (“Action”) must be filed within one year after such Action arose or be forever barred. Any Action must be resolved in accordance with one of the subsections below or as the parties otherwise agree to in writing.

The formation, construction and interpretation of this Agreement is controlled by the laws of the State of Arizona excluding any rule or principle that would refer to and apply the substantive law of any other state or jurisdiction. Except as permitted in the paragraph below, for all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Phoenix, Arizona and waives any jurisdictional, venue, or inconvenient forum objections to such courts.

For any Action (excluding Actions for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, either party to the Action may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration (and if such election is made, the Action must be arbitrated as provided herein). In the event a party elects arbitration, they shall initiate such arbitration in the State of Arizona and through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

GENERAL

This Agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous communications, representations or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. If any provision of this Agreement is found to be void, invalid or unenforceable: (a) the same will be conformed to the extent necessary to comply with applicable law or stricken if not so conformable, so as not to affect the validity of this Agreement; and (b) the remaining provisions will remain in effect. No amendment of this Agreement or any exhibit is binding unless in writing and executed by each of the parties. Any waiver or consent is valid only if in a signed writing and only in the specific instance in which it is given, and such waiver or consent is not to be construed as a waiver of any subsequent breach of any other provision or as a consent with respect to any similar instance or circumstance. This Agreement does not confer any third-party beneficiary rights and does not create a joint venture, partnership or employment relationship between the parties. Except as expressly provided herein, neither party has the right, power or authority to create any obligation or duty, express or implied, on behalf of the other. This Agreement inures to the benefit of and is binding upon the parties and their respective legal representatives, successors, and assigns. Brand may not directly or indirectly, including by assignment, operation of law or change of control, transfer or assign this Agreement without Intercept’s prior written consent. In the event a party incurs legal expenses to enforce this Agreement, the prevailing party, as determined by a court of competent jurisdiction, will be entitled to recover such legal expenses, including, without limitation, reasonable attorneys’ fees, costs, and necessary disbursements, in addition to any other relief to which such party is entitled. The Order Form may be executed in counterparts, each of which will be an original, and all of which together will be one and the same agreement. A signed copy of the Order Form delivered by facsimile, e-mail or other means of electronic transmission will have the same legal effect as delivery of an original signed copy of this Agreement. The headings of this Agreement are provided for convenience only and are not intended to affect its construction or interpretation. Any notice required or permitted under this Agreement must be in writing and sent to the address and the attention of the person set forth on the Order Form. If an act of God, government, war, terrorism, fire, flood, or other causes beyond the reasonable control of a party prevent[s] such party from performing its obligations under this Agreement, such nonperformance will be excused and will not be a breach for so long as such conditions prevail.