Services Agreement

Definitions

The following terms, when used in this Agreement will have the following meanings:

“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Documentation” means the printed and digital instructions, on-line help files, technical documentation and user manuals made available by OpenEnvoy for any OpenEnvoy Product.

“Non-OpenEnvoy Product” means a third party or Customer AI algorithm or model (“AI Model”), or web-based, mobile, offline or other software application that integrates with an OpenEnvoy Product. For clarity, “OpenEnvoy Products” exclude Non-OpenEnvoy Products.

“Order Form” means an order form, quote or other similar document, or any online order or services request made via Customer’s Admin Dashboard (defined below) or other dashboard that sets forth the specific OpenEnvoy Product and pricing therefor (including in relation to overages), permitted number of users and subscription term. For the avoidance of doubt, new or additional features released for OpenEnvoy Products and / or Beta Products (defined below) may not be specifically set forth in an Order Form. Notwithstanding the foregoing, Customer acknowledges and agrees that Customer’s access to or use of such OpenEnvoy Product features and / or Beta Products is subject to the terms and conditions of this Agreement.

OpenEnvoy Products

Provision of OpenEnvoy Products.

(a) Subject to the terms and conditions of this Agreement, OpenEnvoy will make OpenEnvoy Products available to Customer pursuant to this Agreement and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the OpenEnvoy Products set forth on the applicable Order Form for its internal business purposes only.

(b) OpenEnvoy may agree to provide certain implementation installation, configuration or training services to Customer related to the OpenEnvoy Products (“Implementation Services”) at a Fee stated on the applicable Order Form. Subject to Customer’s payment of the applicable Fees, OpenEnvoy shall perform such Implementation Services – which may include, for example, helping Customer input its Customer Data into an OpenEnvoy Product, configuring the learning algorithm in the applicable OpenEnvoy Product(s) to learn Customer’s risk parameters, and/or providing other similar services – in accordance with the delivery and other terms set forth in the applicable Order Form. Customer will provide all necessary assistance, including but not limited to any required integration elements such as APIs and any technical support, as reasonably required for OpenEnvoy to perform the Implementation Services. To the extent that Customer does not purchase Implementation Services, Customer acknowledges and agrees that it is solely responsible for all implementation, installation, configuration and other similar set-up and related activities at its own risk and expense, and OpenEnvoy having no liability therefor.

Data Security.

OpenEnvoy will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf of Customer to the OpenEnvoy Product (“Customer Data”); (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance of the foregoing, OpenEnvoy will maintain administrative, physical and technical safeguards designed to protect the security of Customer Data.

Customer Responsibilities.

(a) Customer acknowledges that OpenEnvoy’s provision of the OpenEnvoy Products is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner.

(b) Customer will (i) be responsible for all use of OpenEnvoy Products under its account, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the OpenEnvoy Products and notify OpenEnvoy promptly of any unauthorized access to, use or misuse of, or any other known or suspected breach of security related to, any OpenEnvoy Product and (iii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the OpenEnvoy Products, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and/or services, and OpenEnvoy will have no liability for such failure (including under any service level agreement).

(c) Customer shall be responsible for the content of all communications sent by its users via the OpenEnvoy Products. Customer agrees that it will not use any OpenEnvoy Product to communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutes or encourages conduct that could constitute a criminal offense.

Affiliates.

Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and OpenEnvoy and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

Payment; Fees

General.

Customer will pay OpenEnvoy the fees and other amounts set forth in the applicable Order Form or as otherwise communicated to Customer by OpenEnvoy (“Fees”). Except as otherwise specified herein or in any applicable Order Form, (a) Fees are quoted and payable in United States dollars and (b) payment obligations are non-cancelable and non-pro-ratable for partial months, and Fees paid are non-refundable.

ACH; Payments.

(a) General. Other than OpenEnvoy Products subject to terms applicable to Token (defined below) terms set forth below, all payments due (i) to OpenEnvoy under an Order Form and (ii) to a Customer vendor for which Customer has uploaded a purchase order to, or otherwise stored a purchase order in, any OpenEnvoy Product, will be made via Automated Clearing House (“ACH”) debit, which will be facilitated by Stripe, Inc. and/or its affiliates and subsidiaries (“Stripe”). All services provided by Stripe are subject to Stripe’s terms and conditions and policies including, as applicable, those available at https://stripe.com/legal and https://stripe.com/privacy. Customer authorizes OpenEnvoy and Stripe, as applicable, to store Customer’s designated bank account information and other related information. Customer hereby authorizes OpenEnvoy to initiate the automatic debit of all applicable Fees (including applicable charges) from Customer’s designated bank account via ACH debit as set forth herein and/or in each applicable Order Form or in Customer’s administrator dashboard (“Admin Dashboard”) within the OpenEnvoy Products. Customer agrees to follow NACHA rules applicable to ACH transactions. This authorization to initiate ACH debit transactions will remain in full force and effect for the term of this Agreement and each Order Form. Because ACH debits are electronic transactions, Customer acknowledges that funds may be withdrawn from Customer’s designated bank account immediately. Customer certifies that it owns or otherwise controls and has the right to administer Customer’s designated bank account and that Customer will not dispute directly or indirectly any scheduled transactions with such bank so long as the transactions correspond to this Agreement, the applicable Order Form and/or Customer’s settings in its Admin Dashboard.

(b) Notification. OpenEnvoy will take commercially reasonable efforts to notify you within a reasonable period of time prior to completion of any ACH draft; provided that Customer acknowledges and understands that all ACH drafts will be initiated no later than three (3) to five (5) days prior to either (i) the payment date set forth on the applicable Order Form, (ii) the applicable Customer vendor payment due date, or (iii) as otherwise required or requested by Stripe. Customer may modify certain payment rules and settings related to Customer vendor payments via Customer’s Admin Dashboard within the OpenEnvoy Products.

Tokens; Payments.

(a) General. Certain OpenEnvoy Products may be billed according to usage allotments, credits, tokens, inference units, or similar prepaid consumption units (“Tokens”). Subject to the terms and conditions of the applicable Order Form or other Documentation or materials provided by OpenEnvoy, Customer may purchase Tokens for use with such applicable OpenEnvoy Products. Tokens may be used solely to access and consume the applicable OpenEnvoy Products (including any OpenEnvoy Product features and Beta Products) during the applicable Order Form term, promotional period or other term communicated by OpenEnvoy to Customer. Unless otherwise expressly stated in the applicable Order Form, Tokens expire at the end of the applicable usage period in which they were purchased, are non-refundable, non-transferable, and may not roll over into any renewal term.

(b) Drawdown Mechanics. Tokens will be automatically deducted (“drawn down”) from Customer’s available Token balance based on Customer’s usage of the applicable OpenEnvoy Product (including any OpenEnvoy Product features and Beta Products). The applicable Token consumption Fee rates and additional usage terms will be available to Customer in the Admin Dashboard or other billing and payment dashboard made available to Customer, each as may be updated from time to time. OpenEnvoy may modify Token consumption methodologies or Fee rates applicable to new features, updated models, enhanced functionality, third-party AI services, or materially changed processing requirements upon notice to Customer. To the extent an OpenEnvoy Product incorporates third-party AI Models, Token consumption may reflect pass-through or variable usage characteristics associated with such third-party services.

(c) Measurement and Records. OpenEnvoy will maintain records of Token consumption using its standard metering and usage tracking systems. Such records will be deemed conclusive and binding absent manifest error. Customer may access usage information for the applicable OpenEnvoy Products in Customer’s Admin Dashboard or other billing and payment dashboard.

(d) Overages; Excessive Usage. If Customer exhausts its purchased Tokens before the end of the applicable usage period: (i) Customer’s access to applicable consumption-based features may be suspended until additional Tokens are purchased, or (ii) OpenEnvoy may in its sole discretion permit continued usage subject to overage charges at OpenEnvoy’s then-current rates or the overage rates set forth in the applicable Order Form. OpenEnvoy may implement reasonable technical controls, rate limits, throttling measures, or usage restrictions to protect the security, integrity, availability, or performance of the OpenEnvoy Products or underlying infrastructure, including in cases of excessive, anomalous, abusive, or non-compliant usage.

Invoices; Billing and Late Payments.

Unless otherwise set forth in Section 3.3 (Tokens; Payments) for Token-based OpenEnvoy Products or the applicable Order Form:

(a) Invoices; Billing Reconciliation and Overages. Invoices for OpenEnvoy Products, including any processing Fees accrued hereunder, will be available to view via Customer’s Admin Dashboard, and all payments due will be automatically debited in accordance with this Section 3. OpenEnvoy will use commercially reasonable efforts to email Customer a link to such invoice each pay period. If payments, Fees and/or charges for a particular pay period exceed the amount charged by OpenEnvoy for such pay period, such additional amounts will be added to the invoice for the pay period immediately following the pay period in which such additional amounts were accrued; provided, that Customer understands that true-up pay periods will not exceed thirty (30) days following the close of the prior pay period. Customer must dispute any such additional amounts prior to initiation of payment for such subsequent pay period. No refunds will be issued for amounts disputed after initiation of a payment.

(b) Late Payment; Termination; Suspension. Customer understands and acknowledges that if Customer fails to pay any amounts due by Customer, OpenEnvoy may in its sole discretion, (i) make additional attempts to initiate an ACH debit (where applicable) for the applicable payment(s), (ii) charge late and/or additional transaction fees, and/or (iii) suspend Customer’s account and access to any OpenEnvoy Product without prior notice. If non-payment persists, OpenEnvoy may at its option terminate Customer’s access to the OpenEnvoy Products. OpenEnvoy will have no liability for any damages, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur in connection with any suspension or termination pursuant to this Section.

Customer Vendor Payments.

Customer vendor purchase orders uploaded to or otherwise stored in Customer’s account will be automatically scheduled for payment and paid in accordance with this Agreement, the applicable Order Form and/or Customer’s settings within Customer’s Admin Dashboard. GL codes will be automatically assigned to each such Customer vendor payment based on the information and data available in Customer’s account.

Taxes.

All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of OpenEnvoy. Customer will not withhold any Taxes from any amounts due to OpenEnvoy. Customer name and address determine tax jurisdiction.

Proprietary Rights

Proprietary Rights.

As between the parties, OpenEnvoy exclusively owns all right, title and interest in and to the OpenEnvoy Products, System Data and OpenEnvoy’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Data, insights produced specifically for Customer via the use of the OpenEnvoy Products by Customer (which will constitute Customer Data for purposes hereof) and Customer’s Confidential Information. “System Data” means data collected by OpenEnvoy regarding the OpenEnvoy Products that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the OpenEnvoy Products.

Feedback.

Customer may from time to time provide OpenEnvoy suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the OpenEnvoy Products. OpenEnvoy will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. OpenEnvoy will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services.

Machine Learning.

Customer acknowledges that a fundamental component of the OpenEnvoy Products is the use of machine learning for the purpose of improving and providing OpenEnvoy’s products and services. Notwithstanding anything to the contrary, Customer agrees that OpenEnvoy is hereby granted the right to use anonymized Customer Data to train its algorithms internally through machine learning techniques for such purpose.

AI-Generated Output.

Customer acknowledges and agrees that the OpenEnvoy Products are supported by various AI Models and that certain information, recommendations, suggestions or other output (collectively, “Output”) generated and returned by the OpenEnvoy Products may be generated using such AI Models and other third-party AI tools. In addition to the limitations and restrictions set forth in this Agreement, Customer understands that in relying on the AI tools, there are numerous limitations that apply with respect to AI-generated Output due to the fact that it is automatically generated, including that (a) it may contain errors or misleading information, (b) AI systems are based on predefined rules and algorithms that lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content, (c) AI systems can struggle with understanding the nuances of language, including slang, idioms, and cultural references, which can result in Output that is out of context or does not make sense, (d) AI systems do not have emotions and cannot understand or convey emotions in the way humans can, which can result in Output that lacks the empathy and emotion that humans are able to convey, (e) AI systems can perpetuate biases that are present in the data used to train them, which can result in Output that is discriminatory or offensive, (f) AI systems can struggle with complex tasks that require reasoning, judgment and decision-making, (g) AI systems require large amounts of data to train and generate content, and the data used to train AI systems may be of poor quality or biased, which will negatively impact the accuracy and quality of the generated Output, and (h) AI-generated Output can lack the personal touch that comes with content created by humans, which can make it seem cold and impersonal. Customer agrees that Customer is solely responsible for evaluating, and bearing all risks associated with, the use of any content, suggestions and advice presented to Customer through the OpenEnvoy Products, including any reliance on the accuracy, completeness, or usefulness of any Output.

Confidentiality; Restrictions

Confidentiality.

Each party agrees that it will use the Confidential Information of the other party solely in accordance with the provisions of this Agreement and it will not disclose the same directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. However, either party may disclose Confidential Information (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law, in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law. Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 5, 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 will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.

Technology Restrictions.

Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying any of the OpenEnvoy Products; (b) attempt to probe, scan or test the vulnerability of any of the OpenEnvoy Products, breach the security or authentication measures of any of the OpenEnvoy Products without proper authorization or willfully render any part of any of the OpenEnvoy Products unusable; (c) use or access any of the OpenEnvoy Products to develop a product or service that is competitive with OpenEnvoy’s products or Products or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign any of the OpenEnvoy Products or otherwise offer any of the OpenEnvoy Products on a standalone basis; or (e) otherwise use any of the OpenEnvoy Products in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form or (f) upload any personal data or personally identifiable information to any of the OpenEnvoy Products.

Warranties and Disclaimers

OpenEnvoy.

OpenEnvoy warrants that the OpenEnvoy Products provided to Customer pursuant to an Order Form will perform materially as described in the Documentation during the applicable subscription term (the “Performance Warranty”). OpenEnvoy will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If OpenEnvoy fails to do so within 30 days after Customer’s warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming OpenEnvoy Product, in which case OpenEnvoy will refund to Customer any prepaid subscription Fees for the terminated portion of the applicable subscription term. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the OpenEnvoy Product. These procedures are Customer’s exclusive remedies and OpenEnvoy’s sole liability for breach of the Performance Warranty.

Customer.

Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit OpenEnvoy to use the same as contemplated hereunder.

DISCLAIMERS.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT THE OPENENVOY PRODUCTS ARE INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’S SYSTEMS AND PROCESSES. OPENENVOY DOES NOT REPRESENT OR WARRANT THAT THE OPENENVOY PRODUCTS WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT ANY OUTPUTS, DATA, INSIGHTS OR ANY OTHER INFORMATION PROVIDED BY THE OPENENVOY PRODUCTS DO NOT CONSTITUTE PROFESSIONAL ADVICE OR COUNSEL. OPENENVOY IS NOT RESPONSIBLE OR LIABLE FOR ANY NON-OPENENVOY PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANY INTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITS DISCRETION.

BETA PRODUCTS.

FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH OPENENVOY WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY OPENENVOY (INCLUDING, FOR EXAMPLE, EXTENDED THINKING AND ASK OE). THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. OPENENVOY DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR OPENENVOY MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME.

Indemnification

Indemnity by OpenEnvoy.

OpenEnvoy will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the OpenEnvoy Products as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by OpenEnvoy) in connection with any such Claim; provided that (a) Customer will promptly notify OpenEnvoy of such Claim, (b) OpenEnvoy will have the sole and exclusive authority to defend and/or settle any such Claim (provided that OpenEnvoy may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with OpenEnvoy in connection therewith. If the use of any OpenEnvoy Product by Customer has become, or in OpenEnvoy’s opinion is likely to become, the subject of any claim of infringement, OpenEnvoy may at its option and expense (i) procure for Customer the right to continue using and receiving the applicable OpenEnvoy Product as set forth hereunder; (ii) replace or modify the applicable OpenEnvoy Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of any prepaid subscription Fees corresponding to the terminated portion of the applicable subscription term. OpenEnvoy will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use of any OpenEnvoy Product by Customer not in accordance with this Agreement; (C) modification of an OpenEnvoy Product by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination, operation or use of any OpenEnvoy Product with other products or services where the OpenEnvoy Product would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states OpenEnvoy’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

Indemnification by Customer.

Customer will defend OpenEnvoy against any Claim made or brought against OpenEnvoy by a third party arising out of (a) the Excluded Claims and (b) any breach of Section 3, including without limitation any failure by Customer to timely make any payments, and Customer will indemnify OpenEnvoy for any damages, losses and liabilities incurred by OpenEnvoy in connection with any such Claim; provided that (a) OpenEnvoy will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without OpenEnvoy’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases OpenEnvoy of all liability) and (c) OpenEnvoy reasonably cooperates with Customer in connection therewith.

Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5 OR A PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

NOTWITHSTANDING THE FOREGOING, FOR THE AVOIDANCE OF DOUBT, OPENENVOY IS NOT RESPONSIBLE, AND WILL NOT BE LIABLE FOR, ANY PAYMENTS PROCESSED BY STRIPE OR FOR ANY OTHER LIABILITY OF ANY KIND RELATED TO THE INITIATION AND/OR PROCESSING OF PAYMENTS HEREUNDER IN ACCORDANCE WITH THIS AGREEMENT. TO THE EXTENT THE FOREGOING LIMITATION ON LIABILITY IS NOT PERMITTED UNDER APPLICABLE LAW, OPENENVOY’S AGGREGATE LIABILITY FOR ANY OF THE FOREGOING SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).

Termination

Term.

The term of this Agreement will commence on the Effective Date and continue until terminated as set forth herein. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

Termination.

Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

Survival.

Upon expiration or termination of this Agreement all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the Technology Restrictions and terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below. Upon expiration or termination of this Agreement, each party will return or destroy, at the other party’s option, any Confidential Information of such party in the other party’s possession or control.

General

Insurance.

During the term of this Agreement, to the extent required to provide the applicable OpenEnvoy Products to Customer under an Order Form, OpenEnvoy will maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’s Liability as required by state law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater; (b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions and Cyber Liability coverage covering the OpenEnvoy Product, with coverage limits of not less than $2,000,000 per claim or per occurrence/$2,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.

Publicity.

Customer agrees that OpenEnvoy may refer to Customer’s name and trademarks in OpenEnvoy’s marketing materials and website; however, OpenEnvoy will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

Assignment; Delegation.

Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

Amendment; Waiver.

No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

Relationship.

Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

Unenforceability.

If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

Governing Law.

This Agreement will be governed by the laws of the State of New York, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

Notices.

Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, email, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.

Entire Agreement.

This Agreement comprises the entire agreement between Customer and OpenEnvoy with respect to its subject matter, and supersedes all prior and contemporaneous agreements (including any other master services or other services agreements) between the parties, proposals, statements, sales materials or presentations and agreements (oral and written), even if such prior agreement purports to govern over subsequent click-thru or similar terms. No oral or written information or advice given by OpenEnvoy, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

Force Majeure.

Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control, including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

Government Terms.

OpenEnvoy provides the OpenEnvoy Products, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of any OpenEnvoy Products, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The OpenEnvoy Products was developed fully at private expense.

Interpretation.

For purposes hereof, “including” means “including without limitation.”