Master Service
Agreement.

This Master Service Agreement (“Agreement”) is between Truv Inc., a Delaware corporation (“Truv”, “we”, “us”, and “our”), and you (“Client”, “you”, and/or “yours” add affiliate, subsidiaries, etc.); each a “Party”, jointly referred to as the “Parties”, and it governs your use of our services, products, and Software.

By signing and accepting an Order Form (as defined below) for our Products via the Truv Platform, by using our Products, Truv Platform, website, or otherwise showing acceptance to this Agreement (e.g., clicking accept, or continue buttons, etc.) you agree that you have read, understood, and accepted this Agreement and you accept to be bound by the Agreement and all terms, policies and guidelines incorporated herein by reference. If you are acting on behalf of an entity you represent and warrant that you have the legal capacity to legally bind such an entity.

Truv’s products, Software and services are offered to you conditional on your acceptance of these Terms.

SECTION 1 – PRODUCTS AND SERVICES.

1.1Products. Client is engaging Truv to collect and transmit permissioned information to be provided by Consumers who are residents in the United States of America (the “Territory”) to Client, for which Truv will provide certain Products and associated services ordered by Client under an Order Form and made commercially available by Truv, as described in this Agreement, applicable Documentation and Order Form.

1.2Order Form. If Client enters into an Order Form with Truv and the terms and conditions of the Order Form conflict with this Agreement, the Order Form will control.

1.3Support. Pursuant to the contents of this Agreement, Truv will comply with certain Service Level Commitments as indicated in Exhibit B incorporated by reference to this Agreement.

SECTION 2 – BILLING AND PAYMENT TERMS.

2.1Billing Terms. Client agrees and authorizes Truv to charge Client via Automated Clearing House (ACH) debit or credit (wire), for which Client is required to provide Truv via Stripe (a third party payment processor) (the “Payment Processor”) with information regarding ACH debit or credit authorization, and maintain a valid payment method on file with Truv which Client warrants and represents that all information relating to such payment method is true and accurate and that Client is authorized to use such payment method. In the event Client fails to maintain a valid payment method on file with Truv, Truv shall have the right to suspend Client’s access to and use of the Products until a valid payment method is provided and all Fees due have been paid. Client is bound by and agrees to the Payment Processor terms of service located at https://stripe.com/legal/payment-terms and https://stripe.com/legal/end-users ) and privacy policy (located at https://stripe.com/privacy. Truv is not responsible for the performance of the Payment Processor. Fees are exclusive of all applicable Payment Processor fees. Unless expressly indicated to the contrary, all amounts set forth in each Order are in U.S. dollars. All payment obligations are non-cancellable, and all fees paid are non-refundable and non-creditable. For the avoidance of doubt, payments via card shall include an additional 3%, and payments by check are not accepted.

2.2Past Due Fees. Unpaid Fees for more than fifteen (15) days past due are subject to a finance charge of 1.5% per month, or the maximum permitted by law, whichever is lower. Additionally, if Client’s account is fifteen (15) days or more overdue (except for charges then under reasonable and good faith dispute), Truv reserves the right to suspend Client’s access to the Products until such amounts are paid in full.

2.3Future Functionality. Client 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.

2.4Taxes. Fees are exclusive of all applicable taxes. Client is responsible for paying all taxes associated with its purchases hereunder other than taxes based on Truv’s net income. In the event Truv has the legal obligation to pay or collect taxes for which Client is responsible under this Agreement, the appropriate amount of such taxes will be invoiced to and paid by Client, unless Client provides Truv with a valid tax exemption certificate.

SECTION 3 – TERM.

3.1Term. This Agreement commences on the Effective Date and continues until all subscriptions hereunder have expired or have been terminated (the “Initial Term”). The term of each subscription shall be as specified in the applicable Order Form.

3.1Renewal. This Agreement will automatically renew for consecutive terms of 1 year (each, a “Renewal Term”) unless either Party, at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term (each, a “Term”), provides written notice to the other Party of its intention not to renew, in which case this Agreement (and the applicable Order Form(s), as the case may be) will expire at the end of the then-current Term.

3.3Termination for Cause. 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.

SECTION 4 – ACCESS AUTHORIZATIONS AND RESTRICTIONS.

4.1Access Authorizations. Subject to Client’s compliance with the terms and conditions of this Agreement, Truv hereby grants Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable authorization to:

• internally use the API and API Key provided by Truv solely as necessary to make the Client Application interoperate with the Products;
• use the Products during the Term, in accordance with the Documentation and solely for Client’s internal business purposes;
• permit Client User(s) to access and use the Products in accordance with this Agreement; and
• use the Documentation only in accordance with the Client’s authorized use of the Products.

4.2Restrictions. All rights not expressly granted herein to Client, are reserved by Truv. Client agrees that it must not, and must not permit or authorize any third party, including any authorized user under its employ, to directly or indirectly:

• use the Products in i) any manner beyond the scope of rights expressly granted in this Agreement, ii) violation of any Applicable Law, regulation or regulatory guideline;
• use the Subscription Services for a purpose other than for the Permissible Purpose;
• modify or create derivative works of the Products or Documentation, in whole or in part;
• reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Products, in whole or in part;
• frame, mirror, sell, resell, rent or lease use of the Products to any other third-party, or otherwise allow any third-party to use the Products for any purpose other than for the benefit of Client in accordance with this Agreement;
• use the Products, Documentation, or Truv Data in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third-party:
• interfere with, or disrupt the integrity or performance of, the Products, or any data or content contained therein or transmitted thereby;
• access or search the Products (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Product features provided by Truv for use expressly for such purposes;
• use the Products, Documentation or any other Truv Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services;
• grant any third party access to or permission to use the Products, API, API Key, or Documentation;
• remove any proprietary notices from the Products, API, API Key and Documentation;
• white label or resell the Products to third-parties, e.g., Client’s customers, in any of Client’s own offerings, applications, or websites, unless otherwise established in the applicable Order Form;
• use the Products to store or transmit inaccurate, infringing, libelous, Prohibited Content or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
• use the Products 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”); or
• use or enable use of the Products, API, API Keys or when applicable the Client Application that has the API integrated, for the use with any Consumer payroll or employer account outside the Territory.

4.3 Access Suspension. Truv shall have the right to suspend any part of the Products, using commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension, if Truv reasonably determines that:

• Client’s use of the Products disrupts or poses a security risk to any Truv’s Confidential Information or to any other Truv’s customers or vendors;
• Client is using the Products for fraudulent or illegal activities or in violation of this Agreement;
• subject to Applicable Law, Client has ceased to continue business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding;
• Truv’s provision of Products to Client is prohibited by Applicable Law; or
• Any use of the Products by Client or Client Users that in Truv’s judgment threatens the security, integrity or availability of Truv’s services.

SECTION 5 – THIRD PARTIES, CLIENT USERS AND CLIENT APPLICATION.

5.1Third-Party Providers. Client is responsible for complying with any applicable terms and conditions of any third-party products, services, and platforms used by Client in conjunction with the Products, which are not provided by Truv as part of the Products.

5.2Third-Party Access.

• Client may allow its Client Users to access and use the Products, Documentation, API, API key, and Consumer Data, solely on Client’s behalf and only for Client’s direct beneficial purpose under this Agreement.
• Client accepts and acknowledges to always identify Client Users before having access to the Consumer’s data, and certify that such data is used only for the Permissible Purpose. Moreover, Client shall be responsible for all actions and/or omissions by any Client User as if such action or omission were an action or omission of Client. Client shall be responsible for all activities performed on or through the Client’s account and Client Users’ accounts whether authorized or not by Client.

5.3Third-Party Data Sources. Client acknowledges that, at its instruction, Truv may obtain data from Data Sources which may contain PII. The Parties agree, that nor Truv, or Client have a contractual relationship with such Data Sources with whom the Consumers have registered accounts, therefore, Truv cannot guarantee the continued availability of the Products and may cease providing them with respect to any Consumer in the event the specific Data Source ceases to make its platform or applicable account available in a manner consistent with this Agreement.

5.4Client Application. Client shall be responsible for maintaining the Client Application and obtaining and maintaining any supporting services and/or equipment required to connect to, access, or otherwise use the Products, including but not limited to internet connection, servers, hardware, software, operating systems, web servers, etc. Truv shall not be responsible for any delay or interruption in the provision of Products caused by the failure of the Client Application or any required additional services or equipment.

SECTION 6 – INFORMATION SECURITY, DISCLOSURE, AND CONSENT.

6.1Information Security.

• Truv must maintain the confidentiality of any Confidential Information and PII as such term is defined in this Agreement, by developing, implementing and maintaining an information security program, which may include but is not limited to technical and physical safeguards to protect the information collected, accessed, stored, processed, or received by Truv for the purposes of this Agreement, to prevent unauthorized disclosure or misuse, and to anticipate any reasonably foreseeable threats to the confidentiality of the aforementioned information. Additionally, Truv’s information security program includes Truv’s obligation to maintain compliance with an annual audit for SOC 2 Type 2 report. This audit shall be conducted by an independent third-party auditor selected by Truv. The audit shall assess Truv’s controls and processes in accordance with the criteria outlined in the SOC 2 framework.
• In the event Truv discovers or becomes aware of any unauthorized access or misuse of Confidential Information or PII, or intrusion to Truv’s systems resulting on the unauthorized disclosure of Confidential Information or PII, Truv will notify Client of the corresponding security breach within the first forty-eight (48) hours from the discovery of the security breach, and cooperate with Client to protect the Confidential Information and/or PII, and to mitigate the damage or impact caused by the security breach as required by Applicable Law.

6.2Compliance with Applicable Laws. Truv’s information security program must comply with all applicable federal and state laws as well as industry best practices. Each Party must not knowingly include in the Confidential Information, PII or any other information exchanged between the Parties for the purposes of this Agreement any PII of any resident of the European Union (“EU Resident”) nor email or collect any information from any EU Resident without: (a) obtaining the prior written consent of the other Party; and (b) ensuring that Party’s compliance with the requirements of all Applicable Law, including the European Union General Data Protection Regulation (the “GDPR”). In addition, Client must not provide information to Truv from any country outside of the United States without Truv’s previous written consent and the Parties entering into Standard Contractual Clauses (or other ad hoc clauses to validate the transfer of data).

SECTION 7 – PERSONAL DATA.

7.1Personal Data.

The Parties agree and acknowledge that each Consumer owns all right, title and interest to their data and nothing in this Agreement shall be interpreted as granting Client right to the Consumer Data except for the right to use as permitted by this Agreement and to the extent of the consent granted by each Consumer.

SECTION 8 – CONFIDENTIAL INFORMATION AND PROPRIETARY RIGHTS

8.1Protection 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 Client’s name and logo (i) in connection with the hosting, operation and maintenance of the Products, (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 Client may provide Truv in writing, upon reasonable notice.

8.2Compelled 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.

8.3Internal Use of Confidential Information. Client agrees and acknowledges that Truv may use Confidential Information, for internal compliance and audit purposes to ensure performance of the Products and may share the same with third parties engaged by Truv for the specific purpose of conducting audits, accuracy reviews, or compliance reviews who are subject to obligations of confidentiality at least as restrictive as those contained in this Agreement. Truv will be responsible for any breach of the obligations of this Section 6 (Confidentiality) by any of those third parties, or their affiliates or subsidiaries, unless that third party has an agreement directly with Client with respect to the subject matter of this Agreement.

8.4Truv Proprietary Rights. Truv shall own and retain all right, title and interest in and to the Products, Truv Platform, API, API Keys and Documentation, all improvements, enhancements, derivative works or modifications thereto, (including all intellectual property and proprietary rights involved in the development of additional Products) whether or not developed based on Client’s suggestions or other feedback, and all intellectual property rights related to any of the foregoing. Truv shall have the right to collect and analyze data and other information relating to the Products and related systems and technologies, and Truv will be free (during and after this Agreement) to (i) use such information and data to improve and enhance the Products, and for other development, diagnostic and corrective purposes in connection with the Products and other Truv offerings and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

SECTION 9 – INDEMNIFICATION AND LIABILITY.

9.1Client Indemnification Obligations. Client agrees to defend, indemnify, and hold harmless Truv, its parents and affiliates, from and against all liabilities, claims, damages, and expenses (including reasonable attorney’s fees and costs) arising from or otherwise related to:

• Client’s use of the Products in a manner not authorized by this Agreement;
• any gross negligence or willful misconduct by Client in performance of this Agreement;
• Client’s breach or alleged breach of this Agreement; or
• any claim that Client’s Confidential Information, including Client’s Application if applicable, infringes the intellectual property rights of any third party.

The aforementioned indemnification responsibilities will be applicable provided Truv (i) promptly gives Client written notice of the Claim Against Truv, (ii) gives Client sole control of the defense and settlement of the Claim Against Truv (except that Client may not settle any Claim Against Truv unless it unconditionally releases Truv of all liability), and (iii) gives Client all reasonable assistance, at Client’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.

9.2Truv’s Indemnification Obligations. Truv agrees to defend, indemnify, and hold harmless Client, its parents and affiliates, from and against all liabilities, claims, damages, and expenses (including reasonable attorney’s fees and costs) arising from or otherwise related to:

• the use of the Products as authorized in this Agreement infringes the Intellectual property rights of any third party;
• any gross negligence or willful misconduct by Truv in performance of this Agreement;
• Truv’s breach of this Agreement; or
• any claim that Truv’s Confidential Information infringes the Intellectual Property rights of a third party.

The above, provided Client (i) promptly gives Truv written notice of the claim against Client, (ii) gives Truv sole control of the defense and settlement of the claim against Client (except that Truv may not settle any claim against Client unless it unconditionally releases Client of all liability), and (iii) gives Truv all reasonable assistance, at Truv’s expense.

If Truv receives information about an infringement or misappropriation claim related to the Products, Truv may in its discretion and at no cost to Client (i) modify the Products so that they are no longer claimed to infringe or misappropriate, without breaching Truv’s warranties under “Truv Warranties” below, (ii) obtain a license for Client’s continued use of that Product in accordance with this Agreement, or (iii) terminate Client’s subscriptions for that Product upon 30 days’ written notice and refund Client 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 Products are the basis of the claim against Client; (2) a claim against Client arises from the use or combination of the Products or any part thereof with software, hardware, data, or processes not provided by Truv, if the Products or use thereof would not infringe without such combination; (3) a Claim Against Client arises from Products under an Order Form for which there is no charge; (4) a Claim against Client arises from Third-Party Products or Client’s breach of this Agreement or applicable Order Forms; (5) the Products are used by Client for a purpose or in a manner for which the Products were not designed; or (6) use of any older version of Products software when use of a newer revision was made available by Truv to Client.

9.3Limitations of Liability. Neither Party will be liable to the other for consequential, incidental, indirect, punitive, or special damages (including loss of profits, data, business, or goodwill), from any cause of action of any kind, including any action sounding in contract, tort, breach of warranty, or otherwise. It is further agreed that each Party’s aggregate liability for direct damages in connection with a claim under this Agreement will not exceed the total amount paid or received by the respective Party in the 12 months preceding the date upon which that claim first accrued.

SECTION 10 – REPRESENTATIONS, AND WARRANTIES.

10.1Client Representations, and Warranties. Client represents and warrants that:

• it has full power, capacity, and authority to enter into this Agreement;
• no person’s privacy rights are being or will be infringed; and
• no Applicable Law is being violated by providing Truv with any of the information used for the Services.

Client agrees that it will comply in all material respects with Applicable Law in its use of the Services under this Agreement.

10.2Truv Representations, and Warranties. Truv represents and warrants that:

• it has full power, capacity, and authority to enter into this Agreement; and
• it will comply in all material respects with Applicable Law in performing this Agreement.

10.3Disclaimer of Warranties. Except as expressly provided in this Agreement, Truv disclaims all warranties, express and implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose. No oral or written information or advice given by Truv or its authorized representatives will create a warranty of any kind or in any way increase the scope of Truv’ obligations in this Agreement. The Products may be used to access and transfer information over the internet. Client acknowledges and agrees that Truv does not operate or control the internet and that unauthorized users may attempt to obtain access to and damage Client’s data, web sites, computers, or networks. Except with respect to breaches of this Agreement, Truv will not be responsible for those activities. Client is responsible for preserving and making adequate backups of its data. Truv makes no representations or warranties regarding any Data Source account or any Consumer Data, its accuracy, completeness, or currentness. information contained in a Consumer’s Data Source account may be different from the Consumer Data obtained through the Products due to different reporting methods, or other factors outside Truv’s control. Customer’s reliance on any Consumer Data is at its own risk. Furthermore, under no circumstance will Truv be responsible or liable for (a) the use of or access to any Data Source account using compromised, inaccurate, fake, or invalid credentials; (b) any entry or transmission to the products of any incorrect account number, routing number, monetary amount, etc.; (c) providing any payment or other remedy for payment or deposits; or (d) lost or inaccurate information or data, resulting in whole or in part from fault or other factors attributable to other parties other than Truv.

SECTION 11 – MISCELLANEOUS.

11.1Entire Agreement. This Agreement contains the entire agreement and understanding between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, representations, arrangements or understandings, whether written or oral, with respect to that subject matter.

11.2Export Regulation. Client will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Products or Software, or any Client 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.

11.3Anti-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.

11.4Assignment. 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

11.5Modifications. Client acknowledges and agrees that Truv has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Client will be notified of modifications through notifications through the Services or direct email communication from Truv. Client will be responsible for reviewing and becoming familiar with any such modifications. Certain portions of the Services may, or may in the future, have different terms and conditions posted on the Site or may require you to agree with and accept additional terms and conditions. When you use such Services and agree to the additional terms and conditions they will be incorporated into and form part of this Agreement. If there is a conflict between this Agreement and terms and conditions posted for a specific portion of the Services, the latter terms and conditions shall take precedence with respect to Client’s use of or access to that portion of the Services.

11.6Waiver. No provision of this Agreement may be waived except by a written document executed by the Party entitled to the benefits of the provision. No waiver of a provision will be deemed to be or will constitute a waiver of any other provision of this Agreement. A waiver will be effective only in the specific instance and for the purpose for which it was given and will not constitute a continuing waiver.

No delay or omission by either Party in exercising any right, power, or privilege under this Agreement will impair that right, power, or privilege, nor will any single or partial exercise of any right, power, or privilege preclude any further exercise of that right or the exercise of any other right, power, or privilege.

11.7Independent Contractor Status. Truv will act as an independent contractor of Client. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship. Truv has no authority to act as agent for, or on behalf of, Client, or to represent or bind Client in any manner. Truv will not be entitled to worker’s compensation, retirement, insurance, or other benefits afforded to employees of Client. Client agrees to pay all sales tax on Services, and Truv agrees to pay all tax associated with furnishing the Services, including taxes on income, receipts, and payroll and arising from Truv doing business in any particular jurisdiction.

11.8Interpretation. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (a) references to the plural include the singular, the singular the plural, and the part the whole; (b) the word “or” has the inclusive meaning frequently identified with the phrase “and/or”; (c) the word “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation”; and (d) any reference in this Agreement to any statute, rule, regulation, or agreement (including this Agreement), include its form after having been amended, restated, revised, modified, supplemented, reenacted, or succeeded.

11.9Notices. The Parties agree that notices under this Agreement will be effective if and only if in writing addressed to the recipient Party at its address below (or any other address it later provides in writing), via email, or via overnight courier service or postal mail requiring the recipient’s or its agent’s signature. Email notices will be deemed received upon the sender’s receipt of a delivery or read receipt, or, in the absence of a notice to the contrary, after one day. Physical mail will be deemed received at the time it is signed for at the destination. Any notices from Client to Truv must be sent to Truv at legal@truv.com.

11.10No Responsibility for Force Majeure Loss. Neither {arty 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.

11.11Choice of 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. The Parties agree to exclude the application of the UN Convention on the Sale of Goods or any other similar conventions, regulations or treaties to this Agreement and the obligations hereunder.

11.12Severability. Whenever possible, each provision of this Agreement must be interpreted in a manner that makes it effective and valid under Applicable Law. If any provision of this Agreement becomes or is declared by a court of competent jurisdiction to be illegal, unenforceable or void, this Agreement will continue in full force and effect without that provision, and this Agreement will be construed to the fullest extent possible as to give effect to the intentions of the provisions found to be unenforceable or invalid. The Parties agree that a court may reform that provision so that it is reasonable under the circumstances and that that provision, as reformed, will be enforceable, except that the material intent of the Parties in entering into this Agreement must not be defeated or rendered impossible by the removal of that provision from this Agreement.

11.13Case Study. With Client’s prior consent Truv may publish a case study of the Client’s use of the Products 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.

11.14Surviving Provisions. Any of the provisions in this Agreement which expressly or impliedly by their nature should survive this Agreement will survive.

SECTION 12 – DEFINITIONS.

12.1“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.

12.2“API” means Truv’s proprietary application programming interface.

12.3“API Key(s)” means a set of keys for the API made available by Truv to its clients. An API Key may be a production API Key or a sandbox API Key.

12.4“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.

12.5“Client Application” means a software solution developed, offered and commercialized by or on behalf of Client in which the API shall be integrated pursuant to this Agreement.

12.6“Client User” means an employee of Client that is authorized to access and use the Products or API Keys and to whom individual and non-sharable login and password credentials (“Client Credentials”) are generated to use the Products and/or API Keys on behalf of Client and not for his/her or a third party’s benefit.

12.7“Committed Spend During Term” means the minimum amount expressed in USD that Client has agreed to pay Truv for the Products per term as outlined in the applicable Order Form.

12.8“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 Products, and personally identifiable information as defined by Applicable Law (“Personally Identifiable Information” or “PII”) about End Users, as well as Client 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.

12.9“Consumer” means a natural person that is the subject of any of the Products who is the end-user of the Client Application and with whom Client has a contractual relationship.

12.10“Consumer Data” means any data, information, and materials of a Consumer provided to Truv and by a Consumer through the Products directly from or through a Data Location. Consumer Data may include, without limitation, information about the Consumer’s Data Location account (e.g., login credentials), the Consumer’s name, address, telephone number, email address, financial information , employment status or details, and service ratings.

12.11“Data Source” means a third-party service with whom a Consumer has a contractual relationship, and from whom the Consumer may retrieve or direct and authorize Truv to retrieve Consumer Data through the Truv Platform and/or API Keys. The Parties acknowledge that the Consumer, not Truv or any Truv client (including, without limitation, Reseller), has the applicable contractual relationship with Data Sources.

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

12.13“Documentation” means the documentation, usage guides and policies, as updated from time to time made available by Truv to the Client.

12.14“Fees” means the fees described in the applicable Order Form(s).

12.15“Order Form” means an ordering document or online order specifying the Products to be provided hereunder that is entered into between Client and Truv or any of their Affiliates. By signing the Order Form, Client and its Affiliates agree to be bound by the terms of this Agreement as if it were an original party hereto.

12.16“Products” means the products and associated services made commercially available by Truv, as described in this Agreement, applicable Documentation and Order Form.

12.17“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, Products, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains viruses or other destructive elements; or (viii) is otherwise objectionable to Truv in its sole, but reasonable, discretion.

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

12.19“Territory” means the United States of America and its territories.

12.20“Truv Platform” means a software as a service product developed and owned by Truv, through which Truv, on behalf of an at the Consumer’s express authorization, retrieves Consumer Data from a Data Source and Customer is enabled to receive such Consumer Data.

EXHIBIT A
ORDER FORM

Inserted by reference.

EXHIBIT B
SERVICE LEVEL AGREEMENTS

The Service Level Agreement included in this document shall only be applicable to the availability of Truv’s Services, and shall not apply to the availability of any Third-Party Services or sites that may be integrated into or accessible through the Products, or the ability of access or transmit data to or from Customer.

1.Definitions.

• “Product Availability” means the ratio of (i) hours that the Platform is available for access and use by Client (“Available”) (excluding Scheduled Maintenance and Force Majeure Events) in any calendar month period to (ii) the total number of hours in the period (excluding Scheduled Maintenance and Force Majeure Event hours) (i.e. (Hours Available minus Scheduled Maintenance hours minus Force Majeure Event hours) divided by (Total Hours in month minus Scheduled Maintenance hours minus Force Majeure Events)). Any periods of unavailability due to a Force Majeure Event (including general failures of the internet network backbone, the Client data center, or other Client facilities) shall not be included in the calculation of Services Availability.

• “Scheduled Maintenance” means periods of time during which Truv temporarily interrupts the Truv Platform or Products for upgrades, maintenance, or for any other agreed upon reason or purpose, pursuant to an established framework for scheduling and managing such outages. Notice for Schedule Maintenance may be given at any time via email. Additionally, availability status and reports can be consulted at https://status.truv.com/.

2.Availability. During the Initial Term and any Renewal Term of this Agreement, Truv agrees to use all commercially reasonable efforts to make the Truv Platform and the Products available with a Product Availability of at least 99% per each calendar month.

3.Credits.

• Credit Amount. In the event that the Product Availability in any given month falls below the level outlined in Section 2 above, then within 30 days after the end of the applicable month, Client may request the corresponding Credit which shall be applied to those Products that did not meet the Product Availability.

• Claims for Credit. Client must make claims for a Credit to Truv’s customer support department in writing (email communication is accepted). In the event a claim is received, Truv shall investigate the claim and must respond back to Client within 14 calendar days after receipt of the claim. Truv’s response must either (i) accept the validity of the claim, or (ii) dispute the claim, including supporting details and documentation. In case of a dispute, the Parties will seek to resolve it promptly in good faith.

• Use of Credits. At no moment shall credits represent or allocate any cash value. Instead, Truv will apply each Credit to one or more future invoices for the same Product. Credits cannot be applied to amounts due for other Products. Client’s sole and exclusive remedy, and Truv’s sole and exclusive liability, in the event of not meeting the Availability levels indicated in Section 2 above, will be the application of the Credits in accordance with the terms of this Service Level Agreement.

• Credit Measurement. Credits for not meeting the established Availability levels outlined in Section 2, will be calculated as a percentage of the monthly pro rata share of the Client’s Committed Spend During Term as follows:

4.Service Level Agreement Exclusions. Truv shall not be deemed to have failed to meet the Product Availability because of the Platform’s or a Product’s unavailability, suspension, or termination caused by events beyond the reasonable control of Truv. These include, but are not limited to:

• Natural disasters, acts of terrorism, riots, insurrections, epidemics, pandemics, wars, extraordinary governmental actions, ISP provider failures or delays, and any other event reasonably considered to be an event of force majeure;
• Actions or inactions of Client or any third party not controlled by Truv;
• Failures that result from Client’s equipment, software or other technology and/or third party equipment, software or other technology; or
• Arising from non-payment or late payment of an undisputed invoice, or suspension or termination of Client’s right to use the Products because of its breach of this Agreement.

A. Error Correction. Truv will respond to errors or failures of the Products (“Errors”) within the Error Response Times set forth below and resolve or correct the Errors within the Error Resolution Times set forth below. Customer, in its reasonable judgment, will determine the priority level of Errors.

*Error resolution time means the time to provide a fix or workaround.

“Maintenance Release” means a subsequent version of a Service that includes Error corrections and/or upgrades. Truv will use commercially reasonable efforts to provide Maintenance Releases not less than four times per year.