These Terms of Use (the “Terms”) govern your access to and use of Company services offered on our website or web application, as well as any other websites and applications directly owned by the Company where this Privacy Policy is linked (collectively, our “Platform”).  The Platform is published, owned, and operated by the Company. These Terms apply to every type of user of the Platform, such as a Worker, an employee or contractor of an Employer, Agent, Other Employer Partner, or other registered user of the Platform which are defined as:

• A “Worker” is an individual that will be working for an Employer, whether as a United States citizen or as an H-2A Worker.
• An “H-2A Worker” is an individual specified on a H-2A visa application that will be working for, or is seeking to work for, an Employer.
• “Employer” includes farm labor contractors, growers and associations, and other employers of Workers.
• “Agents” may include, but are not limited to, H-2A processing agents and law firms of an Employer.  
• “Other Employer Partners” may include, but are not limited to, recruiters, transportation partners, food service providers, healthcare service providers, applicable government agencies, and other third-party vendors or authorized third party resellers.
  

The use of the Platform and any user information associated with the Platform may also be subject to the terms of separate written agreements (the “Employer Agreements”) between Company and Employers or Other Employer Partners. When applicable, these Terms may be superseded by specific terms in the Employer Agreements. If you use or submit any materials on the Platform as an employee or contractor of an Employer, or as an Agent or Other Employer Partner, you agree to: (1) be bound by any applicable Employer Agreements, as well as any posted Employer guidelines and policies related to the materials you wish to use or submit, as applicable; and (2) use and process personal information of any individuals via the Platform on a confidential basis, solely for the benefit of the applicable Employer, and in compliance with all applicable data protection laws.  When applicable, if you do not agree to the terms of the Employer Agreements, you will not be able to use the Platform.

By accessing, browsing, submitting information to and/or using the Platform, you agree and acknowledge on your own behalf that you have read, understand and agree to be bound by these Terms and to comply with all applicable laws including, without limitation, all federal, state and local tax and tariff laws, regulations, and/or directives.  If you do not agree to these Terms, please do not use the Platform. Further, any information you provide or that is collected by the Company through the Platform shall be handled in accordance with the Platform’s Privacy Policy, which is attached hereto as Attachment 1 and is hereby incorporated by reference.

Company grants you a non-exclusive right to access and use the Platform and the data, material, content or information herein (collectively, the “Content”) solely for your personal use. You agree to use the Platform only for lawful purposes, comply with all rules governing any transactions on and through the Platform and comply with applicable laws.

If you are given, or if you create, an account (including any password) to access the Platform, you are responsible for maintaining the confidentiality and security of your account. When creating an account, you agree to provide us with accurate and complete information and detail, as required, and to keep it up to date. You are responsible for all activities that occur under your account and you agree to notify the Company immediately of any unauthorized use of your account. The Company is not responsible for any loss that you may incur as a result of any unauthorized person using your account or your password.

You agree that you will not:

• Use the Platform in any manner that could damage, disable, overburden, or impair the Platform or interfere with any other party’s use and enjoyment of them;
• Attempt to gain unauthorized access to any Platform account, computer systems or networks associated with the Company or the Platform;
• Obtain or attempt to obtain any materials or information through the Platform by any means not intentionally made available or provided by the Company;
• Use any robot, spider, or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
• Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
• Attack the Platform via a denial-of-service attack or a distributed denial-of-service attack; or
• Impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).

You may have the opportunity to receive SMS or “text” messages, pre-recorded voice messages or auto-dialed phone calls from the Company, its affiliates and related entities as well as third parties.  Such messaging may be used to authenticate your identity or mobile device, as well as provide you informational updates about services or products you may have requested.  In providing your mobile device number or cell phone number to the Company, you knowingly consent to such communications from or on behalf of the Company or for the Company to use your cell phone number or mobile device number. In providing your number and accepting these Terms, you represent that you have the authority to agree to receive text messages at the telephone number that you provide to the Company, or from which you sent the text message request to us. You further acknowledge that no purchase is required to opt into this service, and you may opt out at any time by following instructions provided in our communications to you. Not all mobile devices or handsets may be supported by this service. The Company and any mobile carriers are not liable for delayed or undelivered messages. Message and data rates may apply to any text messages. Message frequency depends on the nature of your request. You hereby agree to be responsible for all costs, charges and fees you incur from your service or device provider as a result of choosing to receive such messages from the Company.

The Platform may contain links to websites and platforms controlled or operated by persons and companies other than the Company (“Linked Sites”). Linked Sites are not under the control of the Company, and the Company is not responsible for the contents of any Linked Site. The Company is not responsible if the Linked Site is not working correctly or for any viruses, malware, or other harms resulting from your use of a Linked Site. The Company is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by the Company of the site or any association with its operators. You are responsible for viewing and abiding by the privacy policies and terms of use posted on the Linked Sites. You are solely responsible for any dealings with third parties who support the Company or are identified in the Platform.

You acknowledge that the Platform interacts with third-party applications or software on the Platform and Content (the “Third-party Applications”) and your access and use of any Third-party Applications is at your discretion and risk, and the Company has no liability to you arising from your use of the Third-party Applications. The Company hereby disclaims any representation, warranty, or guaranty regarding the Third-party Applications, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Third-party Applications, and you agree to indemnify and hold the Company harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with your use or performance of the Third-party Applications.

The Platform and Content are protected by copyrights, trademarks, or are subject to other proprietary rights.  Accordingly, you are not permitted to use the Platform or Content in any manner, except as expressly permitted by the Company in these Terms. The Platform and Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives without the express written consent of the Company or applicable owner.

Copyright. You should assume that everything you see or read on the Platform is copyrighted unless otherwise noted and may not be used without the written permission of the Company. The Company neither warrants nor represents that your use of materials displayed on the Platform will not infringe the rights of third parties. Content, images, photographs, or illustrations displayed on the Platform is either property of, or used with permission by, the Company. The use of these materials by you, or anyone else authorized by you, is prohibited unless specifically permitted by these Terms or specific permission provided elsewhere on the Platform. Any unauthorized use of any content, images, photographs, data, or illustrations may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.

Trademark. Nothing contained on the Platform should be construed as granting or conveying, by implication, or otherwise, any license or right to use any trademark displayed on the Platform without the written permission of the Company or such third party that may own a trademark displayed on the Platform. Your misuse of the Company’s trademark(s) displayed on the Platform, or any other Content on the Platform, except as provided herein, is strictly prohibited.

Your Content.  Any Content you create on, or submit, or have submitted to, the Platform is “Your Content.” In sharing Your Content on the Platform, you warrant and represent you have the legal right to use Your Content and grant the Company an irrevocable, royalty-free, fully paid up, worldwide, non-exclusive license to use Your Content in providing any Platform Services as described in these Terms and in any posted policies on the Platform. The Platform Services may also provide you with features like photo thumbnails, previews, easy sorting, editing, sharing, creating templates, and searching. These and other features may require our Company systems to access, store, and scan Your Content. You may also be able to share Your Content with others, so please think carefully about what you share.

You acknowledge and agree that you are solely responsible for complying with the applicable restrictions on use of all Content, copyrighted materials and trademarks that you see, hear, and use on the Platform. You understand that any unauthorized use of such intellectual property would result in irreparable injury for which money damages would be inadequate. You further acknowledge that, in the event of any such unauthorized use, the Company or the applicable intellectual property owner will have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use. Questions regarding the use of any intellectual property provided on the Platform should be directed to info@withcroft.com.

The Company is based in the United States. The Company makes no claims that the Platform or any of its contents are accessible or appropriate in every jurisdiction. Access to the Platform may not be legal by certain persons or in certain countries.

EXCEPT AS MAY OTHERWISE BE EXPRESSLY PROVIDED IN THESE TERMS, ALL INFORMATION, CONTENT, OR SERVICES PROVIDED BY THE COMPANY TO YOU VIA THE PLATFORM, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. THE COMPANY AND ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, THE COMPANY AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE PLATFORM OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE PLATFORM. YOU SPECIFICALLY ACKNOWLEDGE THAT THE COMPANY AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE PLATFORM AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER THE COMPANY NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE PLATFORM WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. THE COMPANY FURTHER MAKES NO WARRANTY THAT THE PLATFORM WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT THE COMPANY, ITS AFFILIATES AND THEIR THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE PLATFORM OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST THE COMPANY FOR DISSATISFACTION WITH THE PLATFORM OR THE CONTENT IS TO CEASE YOUR USE OF THE PLATFORM AND/OR THE CONTENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.

UNDER NO CIRCUMSTANCES SHALL THE COMPANY OR ANY OF ITS THIRD-PARTY LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF INFORMATION OR PROGRAMS ON YOUR DATA HANDLING SYSTEM, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THE PLATFORM, OR THE DATA, CONTENT OR INFORMATION ACCESSED VIA THE PLATFORM OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE PLATFORM, REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN OR FORESEEABLE, EVEN IF THE COMPANY OR ITS THIRD-PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY ACCESSING THE PLATFORM SUBJECT TO THESE TERMS OF USE, YOU UNDERSTAND THAT YOU ARE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST MATERIALLY AFFECT HIS OR HER SETTLEMENT WITH THE DEBTOR.”  SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.  WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, THEY WILL BE LIMITED TO THE SHORTEST DURATION PERMITTED BY LAW. YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.  IN ANY CASE, COMPANY’S AND ITS LICENSORS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THESE TERMS WILL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO COMPANY FOR THE PLATFORM IN THE SIX (6) MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, OR TEN DOLLARS ($10.00), WHICHEVER IS GREATER.

You agree to defend, indemnify and hold harmless the Company and its affiliates, directors, officers, employees, and/or agents (collectively, “Company Indemnitees”) from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) that may be incurred by any of the Company Indemnitees arising out of or relating to Your Content, your violation of these Terms, your violation of any applicable laws, rules or regulations in connection with the Platform, or from any other misuse of the Platform.  You agree that in the event any claim, allegation, suit or similar proceeding is commenced by a third party against any of the Company Indemnitees, that you will pay for the defense thereof, including reasonable attorneys’ fees and costs. Notwithstanding any of the foregoing, Company reserves the right to assume the exclusive defense and control of any proceeding that relates to the Company, the Platform, or any aspects thereof, whether or not subject to indemnification hereunder, and in such case you will cooperate fully with Company in our defense thereof.

In its sole discretion, the Company may terminate or suspend your access to the Platform for breach of these Terms, with or without notice. The Company shall not be liable for any losses or damages arising from any such termination of service.

This Platform Services Agreement (“PSA”) governs the provision of Platform Services (as defined below) by us to our Direct Customers and Reseller Customers (referred to together, where appropriate and applicable, as a “Customer”), which are defined as:

• A “Direct Customer” is a customer that has contracted directly with Croft Technology, Inc. for Platform Services pursuant to a Croft Order Form (as defined below) between you and Croft Technology, Inc.
• A “Reseller Customer” is a customer that has contracted with an authorized, unrelated third-party (a “Reseller”) for Platform Services (such agreement, a “Reseller Agreement”) that may sell the Platform Services pursuant a separate agreement with Croft Technology, Inc.
  

For the avoidance of doubt, the terms of this PSA do not apply to users that are not also Direct Customers or Reseller Customers.

Provided that Direct Customer pays all the required fees under this Agreement, or Reseller Customer pays all required fees under the Reseller Agreement, and complies with all other terms of this Agreement, we hereby grant Customer a limited, non-exclusive, terminable, non-transferable right to access and use the Platform Services pursuant to this Agreement, solely for the duration of the applicable Order Form, and subject to Company’s intellectual property rights in the Services. Customer shall not use or otherwise access the Platform Services in a manner that exceeds Customer’s authorized use as set forth in this Agreement and the applicable Order Form(s).

Customer is responsible for providing access to the Platform Services to its employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Platform Services under the rights granted to Customer pursuant to this Agreement and (b) for whom access to the Platform Services has been purchased hereunder (“Authorized Users”). Authorized Users shall also include, without limitation, any agents providing services on your behalf, including any law firms, attorneys, recruiters, food service vendors, government agencies, other service providers, and their employees. Customer will provide reasonable cooperation with us to enable us to provide Customer the Platform Services. We shall authorize access to and assign unique passwords and user names to Customer’s Authorized Users (“Authorized Accounts”). CUSTOMER SHALL BE RESPONSIBLE FOR ANY ACTIVITY OCCURRING THROUGH THE AUTHORIZED ACCOUNTS, INCLUDING UNAUTHORIZED ACTIVITY AND AUTHORIZED USERS’ USE AND PROCESSING OF ANY PERSONAL INFORMATION, AND CUSTOMER SHALL BE RESPONSIBLE FOR ANY BREACH OF THIS AGREEMENT BY ANY AUTHORIZED USERS. Customer shall use reasonable efforts to prevent unauthorized access to or use of the Platform Services, including any personal information, and shall promptly notify us in the event of any unauthorized access or use. Customer shall comply, and shall ensure that Customer’s Authorized Users comply, with all applicable local, state, federal, and foreign laws, treaties, and regulations applicable to Customer’s use of the Platform Services, including without limitation those related to export control, privacy, electronic communications, and anti-spam legislation.

Customer shall not use the Platform Services beyond the scope of the rights granted in this Agreement. Customer shall be liable for its Authorized Users’ access to the Platform Services and any misuse of the Platform Services by such Authorized Users. Customer shall not (a) directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Platform Services, (b) rent, lease, lend, sell, license, sublicense, publish, adapt, or otherwise make available the Platform Services, (c) remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Platform Services, (d) use the Platform Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, or (e) access the Platform Services in order to build (or permit any third party to build) a similar service or competitive product or service. Customer shall be responsible for obtaining and purchasing all equipment, Internet access services, modifying its network, and doing all other things necessary in order to access and use the Platform Services.

Customer shall pay the fees as set forth on the Order Form in order to obtain access to the Platform Services (the “Fee(s)”).

A. Reseller Customer.

All Fees owed by the Reseller Customer are subject to the Order Form(s) and/or Reseller Agreement between Reseller Customer and Reseller and all such Fees shall be invoiced by the Reseller in accordance therewith.

B. Direct Customer.

Unless otherwise specified in the applicable Order Form, Company will submit invoices to the Direct Customer for the Fees of the Platform Services on an annual basis and payment is due upon receipt. If Direct Customer disputes any invoiced amounts in good faith, Direct Customer shall notify Company in writing of such disputed amount by no later than the due date for the applicable invoice, in sufficient detail to permit Company to investigate the dispute, otherwise such invoice will be deemed accepted. All amounts payable for Platform Services pursuant to an Order Form are non-cancelable and non-refundable. Direct Customer agrees to pay invoiced Fees in U.S. dollars. If applicable, Direct Customer shall reimburse Company for all reasonable travel and out-of-pocket expenses incurred by Company in connection with the performance of the Platform Services. Except for invoiced payments that the Direct Customer has successfully disputed, all late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Direct Customer shall also reimburse Company for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

Customer shall be responsible for all taxes, including, without limitation, sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by you hereunder; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or regarding, Company’s net income.

In addition to all other remedies available under this Agreement or at law, we shall be entitled to suspend the provision of any Platform Services if Customer fails to pay any undisputed Fees when due hereunder and such failure continues for ten (10) days following notice thereof. Notwithstanding the foregoing, we may, at our sole discretion, temporarily suspend Customer and any Authorized User’s access to any portion or all of the Platform Services if: (a) Company reasonably determine that there is a threat or attack on any of Company’s intellectual property; (b) our provision of the Platform Services to Customer or any Authorized User is prohibited by applicable law; or (c) we concludes that Customer’s use of the Platform Services is causing immediate, material, and ongoing harm to Company or any other individual or entity.

Customer acknowledges and agrees that Company retains sole and exclusive ownership of all right, title, and interest in and to the Platform Services, including any modification, improvement, enhancement, or configuration made to the Platform Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration. Additionally, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Platform Services are either owned or licensed by us.

Customer acknowledges that its use of the Platform Services may require the processing and transmission of documents, content, data and/or other materials created by Customer, or submitted by or on behalf of Customer and Authorized Users (collectively, “Customer  Content”) to us. As between Customer and Company, Customer shall own all Intellectual Property Rights in and to the Customer Content. Notwithstanding the foregoing, when Customer or its Authorized Users upload, submit, or store Customer Content through the Platform Services, Customer grants us a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Customer Content to provide, support, and improve the Platform Services. We are not responsible for any electronic communications and/or Customer Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under the Agreement on our behalf). Without limiting Customer’s rights and remedies under the Agreement, Customer acknowledges that Customer Content and information regarding its accounts will be processed by us and stored and processed using online hosting services selected by us. Customer represents and warrants that it has all necessary rights in, and obtained all necessary consents to, the Customer Content to grant us the rights granted hereunder. Customer Content will be collected, processed, and disclosed as provided in the Privacy Policy (as attached hereto as Attachment 1).

From time to time during the Term, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information (whether written, oral, or electronic) of Disclosing Party that, may or may not be labeled as “confidential,” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession on a non-confidential basis prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to Receiving Party’s personnel or agents who need to know the Confidential Information to assist Receiving Party in performing its obligations under this Agreement, and whom are bound by confidentiality obligations consistent with this Section as to such Confidential Information. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements reasonably in advance of any such compelled disclosure, so as to afford Disclosing Party the opportunity to seek, at its sole cost and expense, a protective order or other remedy.

This Agreement shall commence as of the Effective Date and shall continue for as long as any applicable Order Forms are in effect (the “Term”), unless sooner terminated pursuant to this Agreement. The term of each Order Form will be stated in the applicable Order Form.

Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which, if involuntary, is not dismissed or vacated within forty five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has 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. Notwithstanding anything to the contrary in this section, we may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount when due hereunder and such failure continues for ten (10) days after our notice to you of nonpayment. The parties acknowledge that in the event of a termination for any reason: the rights granted by Company to you will cease immediately and, upon the request of either party, the other party shall delete, destroy, or return all Confidential Information. Rights related to termination by Reseller Customer may also be subject to an applicable Reseller Order Form or Reseller Agreement.

We warrant that the Platform Services will comply with the documentation for the Platform Services as published by us. AS CUSTOMER’S EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY UNDER THE FOREGOING WARRANTY IN THIS SECTION, WE WILL RE-PERFORM ANY NON-CONFORMING PORTION OF THE PLATFORM SERVICES WITHIN A COMMERCIALLY REASONABLE PERIOD OF TIME, OR IF WE CANNOT REMEDY THE BREACH, THEN WE MAY TERMINATE THE AFFECTED SERVICES AND, FOR DIRECT CUSTOMERS, REFUND A PORTION OF THE FEES ATTRIBUTABLE TO THE PERIOD AFTER SUCH TERMINATION. WE (a) MAKE NO WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (B) DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS SPECIFICALLY SET FORTH IN THE AGREEMENT, WE MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET ALL OF CUSTOMER’S OR ANY OTHER PERSON’S PURPOSES OR NEEDS, 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.

Customer will defend, indemnify, and hold harmless Company and its directors, officers, employees, and agents, from and against any and all claims, losses, damages, and expenses (including attorney costs and litigation fees) arising out of or relating to (a) Customer or its Authorized Users’ use of the Platform Services; (b) Customer Content; (c) Customer’s breach of this Agreement or breach of this Agreement by Customer’s Authorized Users, employees or agents; (d) Customer’s actions, errors, omissions, negligence, willful misconduct, violations of law, or fraud or by Customer’s employees or agents; or (e) any dispute or other proceeding (including, without limitation, response to any third-party subpoena, but excluding any dispute between Customer and Company) in which we become involved (even if only as a non-party or third-party participant) as a result of Customer’s use of the Platform Services, including reimbursement of our time and expense (including reasonable external and internal legal costs) incurred to respond to any request or participate in any proceedings.  In (e) above, Customer agrees to pay us the hourly rates of our professionals for time spent preparing for and participating in responding to and participating in subpoenas, depositions, other discovery, litigation, hearings and dispute resolution proceedings in whatever form they may take.

We will defend and indemnify Customer at our expense, against any claim or suit brought by a third party against Customer based on an allegation that your authorized use of the Platform Services infringes or violates any third party’s Intellectual Property Right. The foregoing obligations are conditioned on the following: (a) Customer must give us prompt written notice of any claim, (b) we shall have the right to control the defense and settlement of the claim, and (c) Customer shall reasonably cooperate with us in connection with the defense of the claim, at our request and expense. If we believe that there is a likelihood of a successful claim of infringement, we may, at our sole option and expense, modify or substitute the affected Platform Services, obtain the right to continued use for a reasonable period of time as we shall determine, or terminate the license to the affected Platform Services (or portion thereof), and refund to Customer (or Reseller, in the case of Reseller Customer) a portion of the fees attributable to the period after such termination. We will have no obligation under this section to the extent any claim or liability is based upon: (i) modifications to the Platform Service not made by us; (ii) products and services not supplied by us (iii) work performed to Customer’s specifications; or (iv) Customer’s failure to use an updated version of the Platform Services provided or offered by us. This section sets forth our sole liability and Customer’s exclusive remedy for indemnification and infringement.

IN NO EVENT SHALL WE BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO US BY CUSTOMER IN THE SIX (6) MONTH PERIOD PRECEDING THE LAST EVENT GIVING RISE TO THE CLAIM.

No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this PSA, for any failure or delay in fulfilling or performing any term of this PSA (except for any obligations of Customer to make payments to Company under the PSA), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): weather and other Acts of God, government restrictions or orders, pandemics or epidemics, acts of terrorism, widespread Internet outage(s), wars, insurrections and/or any other cause beyond the control of the Impacted Party.  The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section, either party may thereafter terminate this PSA.

This Service Level Policy (“SLA”) is incorporated into the PSA. We shall use reasonable efforts to make the Platform Services available 24 x 7, excluding service interruptions for scheduled maintenance, or a general internet outage.

Service Interruption Management. We are responsible for managing service interruptions that are within our control. Customer will notify us of a service interruption. We will use commercially reasonable efforts to resolve the service interruption within the target turnaround time indicated for its priority level and to provide reasonable periodic status reports regarding service interruption resolution.  

We will use the following priority categories to provide a consistent classification of service interruptions: