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Master Service Agreement

This Master Service Agreement (the Agreement”) is a contract between you, your affiliates, subsidiaries, parent companies, and/or assignees (hereinafter referred to as the “Customer”, “you”, “yours”) and Truv Inc. (“Truv”) governing your Truv subscription and the use of the Truv products and Services (as defined below). If you are an individual you shall be a resident of the United States of America and be at least 21 years old. If you are acting on behalf of an entity you represent that you have the authority to bind such entity into this Agreement. In the event you are representing an entity, the terms “Customer”, “you”, “yours” shall refer to such entity, its affiliates, subsidiaries, parent companies, and/or assignees. You and Truv may be referred to independently as a “Party”, and jointly as the “Parties”.

Additionally, you agree and acknowledge that by signing and accepting an order form or purchase order to get a subscription and/or permission or access to use Truv’s services and products, or by downloading, installing, selecting “accept” or otherwise accessing or using the Services (as defined below), you agree that you have read, understood, and accepted the terms and conditions described in this Agreement and you agree to be bound by the Agreement and all terms, policies and guidelines incorporated in the Agreement by reference, including but not limiting to Truv’s Privacy Policy which can be found at https://truv.com/privacy/ (or such other URL that Truv may provide from time to time), as well as the applicable terms and conditions as published and updated from time to time in Truv’s website at https://truv.com.

Truv may amend this Agreement and any of the policies mentioned herein from time to time. Any revised version will be effective at the time it is posted in Truv’s website, unless otherwise notified. If our changes reduce your rights or increase your responsibilities, Truv will post a notice on Truv’s website, hence, you accept and acknowledge that it is your responsibility to monitor any updates Truv may effect to its website. If you accepted this Agreement prior to Truv posting notice of such changes, you will have at least 30 days’ advance notice to review the applicable changes and in the event of your continued use after a period of 30 days’ from the notice date, your use shall be considered as an acceptance of any applicable new terms.

1.  DEFINITIONS

1.1  “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2  “Applicable Law” means all international, country, federal, state, provincial, and local laws, rules, regulations, binding regulatory guidance, directives, and governmental requirements applicable to a party’s performance under this Agreement. Applicable Law includes, but is not limited to the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and any regulations or rules promulgated thereunder, as amended from time to time.

1.3  “Confidential Information” means all information disclosed by a party to this Agreement to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, but not limited to, business, technical or financial information relating to the disclosing party’s business. Confidential Information includes, but is not limited to, Truv’s non-public information regarding features, functionality and performance of the Services, and personally identifiable information as defined by Applicable Law (“Personally Identifiable Information” or “PII”) about End Users, as well as Customer Materials. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

1.4  “Customer” means the customer named accepting this Agreement as per described herein together with its Affiliates (for so long as they remain Affiliates) which have signed Order Forms.

1.5  “Client” means an entity engaged in a business requiring verification of an End User’s employment, income, and/or other information that has entered into an agreement with Customer that (i) is in effect during the Term and (ii) permits Customer to use such Client applicant data in accordance with this Agreement and any applicable Order Form. Customer is responsible for its Client’s compliance with all of the terms and conditions of this Agreement and that any such use of the Services is for the sole benefit of Customer. Customer remains solely responsible for its relationships with its Clients and for any related billing matters, technical support, or disputes.

1.6  “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Services including, without limitation, any information or data relating to End Users that Truv receives in the course of providing the Services.

1.7  “Disclosing Party” means the party disclosing Confidential Information to the other party to this Agreement.

1.8  “Documentation” means the documentation, usage guides and policies, as update from time to time made available by Truv to customer of the Services.

1.9  “End User” means a natural person that is the subject of an employment or income verification.

1.10  “Fees” means the fees described in the applicable Order Form(s) (including any Verifications in excess of the Included Verifications.

1.11  “Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and Truv or any of their Affiliates, including any addenda or supplements thereto. By entering into an Order Form hereunder, an Affiliates agrees to be bound by the terms of this Agreement as if it were an original party hereto.

1.12  “Receiving Party” means the party receiving Confidential Information from the other party to this Agreement.

1.13  “Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, and made available by Truv, as described in this Agreement, Documentation, and in any applicable Order Form. Services shall include any professional services included Order Form or statement of work subject to the terms and conditions of this Agreement.

1.14  “Third-Party Services” means certain features and functionalities within the Services may rely on content or information procured from, or may allow Customer to interface or interact with, access and/or use, compatible third-party services, products, technology and content.

1.15  “Verification” means use of the Service to check an End-User’s employment, income, and/or other information from such End User’s employer’s payroll system, as specified in the applicable Order Form.

2.  SERVICES

2.1  Provision of Services. Truv operates and provides access to the Services to its customers for the purpose of Verification. Subject to the terms of this Agreement and the applicable Order Form(s), Truv will (a) make the Services available to Customer pursuant to this Agreement, the applicable Order Forms, and the applicable Documentation, (b) provide applicable standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Truv shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Truv’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Truv employees), Internet service provider failure or delay, Third-Party Services, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Truv’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement and the applicable Order Form.

2.2  Protection of Customer Materials. Truv will maintain appropriate administrative, physical and technical safeguards for the protection of the security, confidentiality and integrity of Customer Materials within Truv’s possession or control, as described in Documentation. Upon request by Customer made within 90 days after the effective date of termination or expiration of this Agreement, Truv will make Customer Materials available to Customer for export or download as provided in the Documentation. After such 90-day period, Truv will have no obligation to maintain or provide any Customer Materials, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Materials in its systems or otherwise in its possession or control, unless legally prohibited.

2.3  Third-Party Services. Certain features and functionalities within the Services may rely on Third-Party Services through the Services. Truv does not provide any aspect of the Third-Party Services and does not warrant or support Third-Party Services, or any compatibility issues, errors, inaccuracies or bugs in the Services or Third-Party Services caused in whole or in part by the Third-Party Services, whether or not they are designated by Truv as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Truv is not responsible for any disclosure, modification or deletion of Customer Materials resulting from access by such Third-Party Services or its providers.

2.4  Support. Truv will provide applicable standard support for the Services to Customer at no additional charge, and/or upgraded support if purchased on an applicable Order Form. In no event will Truv be required to provide technical support directly to any End User or the End Users’ employer unless deemed necessary to resolve an issue after other support methods have been exhausted.

3.  RESTRICTIONS AND RESPONSIBILITIES

3.1  Usage Restrictions. Customer will not, and will not permit Clients, or any third party to: (a) make the Services available to, or use any Services for the benefit of, anyone other than Customer or Clients, unless expressly stated otherwise in an Order Form; (b) sell, resell (except to Clients), license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau, time sharing, or outsourcing offering; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Services to store or transmit malicious software code, e.g., code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs or Trojan horses (collectively “Viruses”); (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (f) attempt to gain unauthorized access to the Services or its related systems or networks; (g) permit direct or indirect access to or use of the Services in a way that circumvents a contractual usage limit, or use the Services to access or use any of Truv intellectual property except as permitted under this Agreement or an Order Form, copy the Services or any part, feature, function or user interface thereof, (h) frame or mirror any part of the Services; (j) access the Services in order to build a competitive product or service or to benchmark with a non-Truv product or service; or (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services, or any part thereof (to the extent such restriction is permitted by law). Although Truv has no obligation to monitor Customer’s use of the Services, Truv may do so and may prohibit any use of the Services it believes may be in violation of the foregoing. Customer shall be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords), and for all uses of Customer account. Customer will promptly notify Truv if Customer knows or reasonably suspects that any username and/or password has been compromised.

3.2  Customer Responsibilities. Customer will (a) be responsible for its users’ compliance with this Agreement and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Material, the means by which Customer acquired Customer Material, Customer’s use of Customer Material with the Services, and the interoperation of any Third-Party Services with which Customer uses Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Truv promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement, Order Forms and Applicable Laws and government regulations, (e) will be responsible to always identify its users before having access to the End User’s data, and certify that such data is used only for the permissible purpose, and (f) comply with terms of service of any Third-Party with which Customer uses Services. Any use of the Services in breach of the foregoing by Customer or Users that in Truv’s judgment threatens the security, integrity or availability of Truv’s services, may result in Truv’s immediate suspension of the Services, however Truv will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension

3.3  Compliance with Truv’s Privacy Policy. Customer will ensure that End Users are presented with and required to acknowledge Truv’s privacy policy located at https://www.truv.com/privacy prior to initiating any Verification through the Services.

3.4  Customer Protection of Personal Data. Personal Data the Truv collects for Customer’s Clients will not be: (a) used by Customer or Client(s) other than as necessary for Verification purposes, or (b) sold, assigned, transferred, or otherwise provided to third parties (other than Client) by Customer or Client(s). Customer will remain fully liable for any unauthorized disclosure of PII to third parties other than Client (except to the extent caused by Truv). Customer and Client will implement and monitor procedures to comply with Applicable Laws and implement procedures concerning the safeguarding and disposal of PII. Customer and Client will maintain safeguards and take all necessary technical, physical and organizational precautions to ensure that PII is protected from unauthorized access, alteration, destruction, disclosure, erasure, manipulation, and destruction by third parties while PII is in the possession or under the control of Customer and ensure that PII is not processed in other ways contradictory to privacy and/or data protection Applicable Laws. Upon written request, Customer will provide Truv with all information that Truv reasonably requests regarding the processing of PII, including, but not limited to, where and how PII is stored, who has access PII and for what purpose, and what security measures are taken to ensure that PII is protected from unauthorized access, alteration, disclosure, erasure, manipulation, and destruction while in the possession or under the control of Customer. Customer will maintain sufficient procedures to detect and respond to security breaches involving PII and will immediately inform Truv when Customer suspects or learns of any other security breach involving Personally Identifiable Information and take corrective action. Customer will provide Truv with such information regarding the PII security breach as Truv reasonably requests.

4.  CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1  Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information, but in no event less than reasonable standard of care, to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) except as otherwise authorized by the Disclosing Party in advance, in writing, limit access to Confidential Information of the Disclosing Party to its employees and contractors who need access to such information solely for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing substantially similar protections for the Confidential Information as required herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than to its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for the legal counsel’s or accountant’s compliance with this Agreement. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Truv services. Truv reserves the right to use Customer’s name and logo (i) in connection with the hosting, operation and maintenance of the Services, (ii) as a reference for marketing or promotional purposes on Truv’s website, and (iii) in other communications with existing or potential Truv customers, subject to any written trademark policies Customer may provide Truv in writing, upon reasonable notice.

4.2  Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided it gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

4.3  Truv Proprietary Rights. Truv shall own and retain all right, title and interest in and to the Services, all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s suggestions or other feedback, and all intellectual property rights related to any of the foregoing.

4.4  Customer Proprietary Rights. Customer owns all right, title and interest in and to the Customer Materials. Notwithstanding anything to the contrary, Truv shall have the right to collect and analyze data and other information relating to the Services and related systems and technologies (including, without limitation, information concerning Customer Materials and data derived therefrom), and Truv will be free (during and after this Agreement) to (i) use such information and data to improve and enhance the Services, and for other development, diagnostic and corrective purposes in connection with the Services and other Truv offerings and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

5.  PAYMENT OF FEES

5.1  Fees. Customer will pay all Fees specified in the Order Form via ACH. Except as otherwise specified herein or in an Order Form, (a) fees are based on the Services provided, (b) payment obligations are non-cancelable and Fees paid are non-refundable, and (c) Truv’s measurement of Customer’s use of the Services is final.

5.2  Invoicing. Truv shall invoice Customer fees for the Services as set forth in the applicable Order Form. Customer will be required to provide Truv (or its payment processor) with information regarding automated clearing house (ACH). Customer represents and warrants that such information is true and that it is authorized to use the payment instrument. Customer will promptly update its account information with any changes that may occur. Invoiced amounts are due Net 15 from the date of email delivery to the AP contact designated above. Customer shall be responsible for all taxes associated with Services other than taxes based on Truv’s net income.

5.3  Past Due Fees. Unpaid Fees are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower.

5.4  Service Suspension. If any Fee due to Truv is fifteen (15) calendar days or more overdue, Truv may, without limiting its other rights and remedies, may upon five (5) days’ notice suspend Services until such amounts are paid in full.

5.5  Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Truv regarding future functionality or features.

6.  TERM AND TERMINATION

6.1  Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. The term of each subscription shall be as specified in the applicable Order Form. Subject to earlier termination as provided below, the term of each subscription will automatically renew for additional periods equal to the expiring subscription term or one-year (whichever is shorter), unless either party provides the other with written notice (email acceptable) of non-renewal at least thirty (30) days prior to the end of the then-current subscription term.

6.2  Termination of Agreement. In addition to any other remedies it may have, either party may also terminate this Agreement (i) upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement, with an opportunity to cure during such period, (ii) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (iii) upon the other party’s making an assignment for the benefit of creditors, or (iv) upon the other party’s dissolution or ceasing to do business. The provisions of Sections 3-5, 6.3, and 8-10 shall survive any termination or expiration of this Agreement.

6.3  Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination of Agreement” section above, Truv will refund Customer any prepaid Services fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Truv in accordance with the “Termination of Agreement” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to Truv for the period prior to the effective date of termination.

7.  WARRANTY AND DISCLAIMER

7.1  Mutual Warranties. Customer and Truv each warrant that: (a) it is, and at all times during the Term shall remain, a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (b) the execution and delivery of this Agreement has been duly authorized by all necessary corporate action; and (c) this Agreement is, and shall remain, a valid and binding obligation of such party, enforceable pursuant to its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors.

7.2  Compliance with Applicable Laws. Each Party represents and warrants to the other Party that it will comply with all Applicable Laws in connection with exercising its rights or performing its obligations under this Agreement. Each Party acknowledges and agrees that, in connection with the use of the Services, End User Data will be transmitted or made available in a mechanical manner, and that the Parties will not alter the substance of the End User Data. Each Party will be acting only as a service provider and/or a conduit, and not as a consumer-reporting agency, in connection with the End User Data processed and transmitted under this Agreement. Truv is providing the End User Data only as requested by the End Users and as requested and authorized by the owner of such information. Each Party acknowledges that neither Party is a reseller of data but simply provides the service of transferring data as requested and authorized by the owner thereof from one party to the party directed and authorized to receive the data by the owner thereof. In the event either Party acts as a “consumer reporting agency” under the Fair Credit Reporting Act (“FCRA”), Customer acknowledges and agrees to always obtain the prior consent of the End Users to enable Truv to utilize the End User’s information for the purposes of the FCRA. Moreover, the Parties will discuss in good faith any additional requirements imposed by Applicable Law and if the Parties are unable to agree on whether or how to comply with Applicable Law, either Party may immediately terminate this Agreement upon notice to the other Party.

7.3  Truv Warranties. Truv warrants that during an applicable subscription term (a) the Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Materials, (b) it will perform the any professional services sold on an applicable Order Form in a professional and workmanlike manner utilizing personnel with suitable experience and skills to perform the Services, (c) the Services will operate in material conformity with the applicable Documentation, and (d) it will not materially decrease the overall security and functionality of the Services during a subscription term. Provided that Customer promptly notifies Truv in a detailed writing of any breach of the above warranties during the Term, Truv shall provide bug fixes or workarounds intended to correct errors in the Services, and if such errors are not corrected, Customer’s sole and exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections above.

7.4  Warrant Disclaimer. EXCEPT FOR THE WARRANTIES EXPLICITLY SET FORTH IN SECTION 7, TRUV HEREBY DISCLAIMS ALL WARRANTIES RELATING TO THE SUBJECT MATTER HEREOF, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. TRUV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED THEREFROM.

8.  LIMITATION OF LIABILITY

EXCEPT FOR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, CUSTOMER’S INDEMNIFICATION OBLIGATIONS, OR CUSTOMER’S BREACHES OF SECTIONS, 3, 4, 9.2 OR ITS PRESENTATIONS OR WARRANTIES PROVIDED HEREIN, NEITHER PARTY (NOR ANY OF ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES) SHALL BE LIABLE FOR (A) ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING OUT OF THIS AGREEMENT OR ANY DELAY OR INABILITY TO USE THE SERVICES OR (B) ANY OTHER DAMAGES IN EXCESS OF THE AGGREGATE FEES PAID TO CITADEL HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM FIRST AROSE, IN EACH CASE WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.

9.  INDEMNIFICATION

9.1  Indemnification by Truv. Truv will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Truv in writing of, a Claim Against Customer, provided Customer (a) promptly gives Truv written notice of the Claim Against Customer, (b) gives Truv sole control of the defense and settlement of the Claim Against Customer (except that Truv may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Truv all reasonable assistance, at Truv’s expense. If Truv receives information about an infringement or misappropriation claim related to a Service, Truv may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Truv’s warranties under “Truv Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Truv, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (4) a Claim against Customer arises from Third-Party Services or Customer’s breach of this Agreement or applicable Order Forms.

9.2  Indemnification by Customer. Customer will defend Truv and its Affiliates against any claim, demand, suit or proceeding made or brought against Truv by a third party alleging (a) that any Customer Materials or Customer’s use of Customer Materials with the Services, (b) Third-Party Services provided by Customer, or (c) the combination of a Third-Party Service provided by Customer or Clients and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s and Clients’ use of the Services in an unlawful manner or in violation of the Agreement or Order Form (each a “Claim Against Truv”), and will indemnify Truv from any damages, attorney fees and costs finally awarded against Truv as a result of, or for any amounts paid by Truv under a settlement approved by Customer in writing of, a Claim Against Truv, provided Truv (a) promptly gives Customer written notice of the Claim Against Truv, (b) gives Customer sole control of the defense and settlement of the Claim Against Truv (except that Customer may not settle any Claim Against Truv unless it unconditionally releases Truv of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Truv arises from Truv’s breach of this Agreement or applicable Order Forms.

9.3  Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

10.  MISCELLANEOUS

10.1  Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Customer will not represent itself as a partner or joint venturer of Truv.

10.2  Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement. No provision of this Agreement shall in any way inure to the benefit of any third person (including the Clients) so as to constitute any such person a third party beneficiary of this Agreement or any one or more of the terms hereof or otherwise give rise to any cause of action in any person not a party hereto.

10.3  Force Majeure. Except for Customer’s payment obligations, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited, an act of God, act of government, epidemics or pandemics (including any laws, orders, rules, regulations of any governing body concerning public health, quarantines, shelter in place orders, etc.) flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving a party’s employees), internet hosting, telecommunication, or other third-party service provider failure or delay, or denial of service attack.

10.4  Export Regulation. Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Services or Software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.

10.5  Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

10.5  Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, either party may assign this Agreement including the Order Form without the other party’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any assignment in violation of this section shall be null and void.

10.7  Notices. Any notices in connection with this Agreement will be in writing and sent to the address specified on the most recent Order Form or such other address as may be properly specified by written notice hereunder, and will be effective upon (a) personal delivery, (b) upon receipt after being sent by commercial overnight courier service or by registered U.S. mail both with proof of delivery, (c) the second business day after sending by confirmed email to Truv at legal@truv.com.

10.8  Case Study. Truv may publish a case study of the Customer’s use of the Services on Truv’s websites and social media. Truv agrees that any information used for the case study will be anonymous, aggregated or de-identified prior to its publication so that this information does not allow the identification of End-User(s). Truv shall be solely responsible for the production and distribution costs of any case study.

10.9  Waiver and Severability. Except as expressly provided herein, the failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

10.10  Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of the State of Florida, without regard to its conflicts of laws rules. Each party irrevocably consents to the exclusive jurisdiction of the state and federal courts located in Miami-Dade County, Florida for any dispute relating to this Agreement, and irrevocably and unconditionally waives any right to a trial by jury in respect of any action arising out of or relating to this Agreement or the transactions contemplated hereby.