These Terms of Service (the “Agreement”, as modified from time to time in accordance with the provisions of this Agreement”) is by and between Solve Data Inc., (“Solve”) and the customer listed on the applicable Order or SoW (“Customer”). This Agreement includes Attachment A, as well as the AUP, Privacy Policy, and any current or future Order or SoW (all as defined below in Article 1), and all such documents are incorporated by this reference. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service or (b) execution of an Order or SoW, referencing this Agreement.

Solve provides a data infrastructure and messaging platform. Solve also provides professional services related to implementation, installation, and customization of the Service. The parties have agreed that Solve will provide the Service to Customer, as well as such professional services as the parties may agree, now and pursuant to future statements of work. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.

1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.‍

1.1. “AUP” means Solve’s acceptable use policy available at www.solve.io/legal/acceptable-use-policy

1.2. “Customer’s Clients” means any of Customer’s clients or customers or other third parties Customer gives access to the Service, including without limitation such companies’ agents and employees.

1.3. “Customer Communications” means any messages sent through the Service, including emails, SMS and MMS messages, communications on websites and transactions, and other similar forms of communication.

1.4. “Customer Content” means trademarks, trade names, service marks, slogans, logos and other source identifiers, and marketing and promotional materials. This includes any content provided or transmitted by the Customer or its Users to the Services for the purposes of advertising, promoting, and selling products and services.

1.5. “Customer Data” means all information processed or stored through the Service by Customer or on Customer’s behalf. Customer Data does not include payment records, credit cards or other information Customer uses to pay Solve, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.

1.6. “Documentation” means such technical and operations documentation as Solve may make available.

1.7. “Excluded Data” means means (i) government-issued identification numbers (including, without limitation, social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers), (ii) financial account numbers (including, without limitation, full credit or debit card numbers or financial account information), personally identifiable financial information, (iii) card holder data under the Payment Card Industry Data Security Standard, (iv) any protected health information, (v) data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”) or (vi) Sensitive Personal Data. 

1.8. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects, as well as the following statutes and regulations: Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”), Health Insurance Portability and Accountability Act, General Data Protection Regulation.

1.9. “Order” means an order for access to the Service, executed by each party. All Orders will be deemed to incorporate, and will be governed by this Agreement.

1.10. “Privacy/Security Law” means privacy and security laws governing Solve’s handling of Customer Data (if any). For the avoidance of doubt, Privacy/Security Laws do not include laws applicable to Customer or its data to the extent not described in the preceding sentence.

1.11. “Professional Services” means Solve services, other than software, including onboarding services, support services and other services as set forth in an SoW.

1.12. “SaaS” means such elements of the Service as Solve hosts on its infrastructure and is accessed remotely, via the cloud.

1.13. “Services” means Solve’s cloud based services and Professional Services, including support and other products, services, applications, tools and other resources made generally available and subscribed to by Customer in an Order.

1.14. “SoW” means a statement of work for Professional Services, executed by each party.

1.15. “Term” is defined in Section 14.1 below.

1.16. “User” means any company or individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation contractors and their employees and agents.

2. SAAS & USE OF THE SERVICE IN GENERAL.

2.1. Use of the Service. During the Term, Customer may access and use the Service pursuant to the terms of any outstanding Order.

2.2. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Service.

2.3. Service Revisions. Solve may revise the features and functions of the Service at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Order.

2.4. Customer’s Clients. Subject to the provisions below of this Section 2.4, Customer may authorize Customer’s Clients to access and use the Service in such numbers and according to such restrictions specified in the applicable Order, solely for the following purposes: accessing Customer reports, updating audiences, and running analytics processes. Customer shall provide complete name and contact information for each proposed Customer’s Client upon or before providing such access, and update such information as soon as it becomes aware of a change. Customer shall make no representations or warranties regarding the Service or any other matter, to Customer’s Clients or Users or any other third party, from or on behalf of Solve, and Customer shall not create or purport to create any obligations or liabilities for Solve. Customer will be liable to Solve for Customer’s Clients’ acts and omissions related to the Service (without limiting any liability of such Customer’s Clients to Solve). Solve will have no obligation to provide support or other services, SLA remedies, or other remedies to Customer’s Clients.

3. SOLVE TOOLS.

3.1. Although not required, Customer may install a Solve software agent on Customer’s servers to support the collection, and reporting to the Service, of events and metrics (“Solve Agent”). Customer may also access the Solve API, as well as certain client libraries developed and made available by Solve from time to time that wrap the API (“Solve Libraries”) to support access and use of the Service. Both the Solve Agent and the Solve Libraries (collectively, the “Solve Tools”) are made available under the terms of the open source license agreement(s) referenced in the applicable help, notices, about or source files.

3.2. If Customer elects to use the Solve Agent or a Solve Library, Customer acknowledges and agrees that: (a) such Solve Tool is only made available to support access and use of the Service; (b) Solve has no liability with respect to any other use of such Solve Tool; and (c) Customer is responsible for complying with the applicable license(s) for such Solve Tool. To the extent any such applicable license requires that Solve provide Customer the right to use any open source software in a Solve Tool that is inconsistent with rights granted in this Agreement, then the rights in the applicable open source license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software.

4. PROFESSIONAL SERVICES.

4.1. Provision of Professional Services. Solve shall provide the Professional Services, and Customer shall provide any assistance and cooperation necessary or convenient to facilitate the Professional Services, or called for in an SoW.

5. NON-SOLVE SERVICES AND MATERIAL.

5.1. The Service supports integrations and other connections to certain Non-Solve Services. If a User chooses to use a Non-Solve Service with the Service, in doing so, Customer hereby grants to Solve permission to interoperate with the Non-Solve Service. Customer’s acquisition and use of Non-Solve Services is governed solely by the terms of the relationship between Customer and the provider of the Non-Solve Services.

5.2. Although Customer may be able to connect to or otherwise access Non-Solve Services or other Non-Solve Material through the Service, Customer acknowledges and agrees that: (a) Solve does not control and is not responsible for any Non-Solve Material; (b) Solve has no liability with respect to any use of Non-Solve Material; and (c) Customer is responsible for complying with Solve’s Acceptable Use Policy and any licenses and other terms applicable to the Non-Solve Material. Any changes to Non-Solve Material, including their availability or unavailability, during the Term does not affect Customer’s obligations under this Agreement.

6. FEES & REIMBURSEMENT.

6.1. Types of Fees. Customer shall: (a) pay Solve the fee set forth in each Order (the “Subscription Fee”) for each Term, as well as such fees as are set forth in each SoW (“Professional Service Fees”); and (b) reimburse such expenses as Solve reasonably incurs in provision of Professional Services. Amounts listed in SoW’s are estimates of Professional Services fees and will not be binding, except to the extent that the SoW specifically provides to the contrary.

6.2. Invoices, No Refunds. Solve’s invoices are due within 30 days of issuance. For late payment, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law. Solve will not be required to refund Subscription Fees or Professional Service Fees under any circumstances.

6.3. Taxes. Amounts due under this Agreement are payable to Solve without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Solve may require that Customer submit applicable Sales Taxes to Solve. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Solve a valid tax exemption certificate within 30 days of the Effective Date. Solve’s failure to include any applicable tax in an invoice will not waive or dismiss the parties’ rights or obligations pursuant to this Section 6.3. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Solve the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 6.3 does not govern taxes based on Solve’s net income.

7. CUSTOMER DATA.

7.1. Use of Customer Data. Except as otherwise stated in this Agreement, Solve’s use of Customer Data shall be limited to the purpose of providing the Service to the Customer. Subject to the confidentiality obligations contained in Section 10, Customer agrees Solve may additionally use Customer Data: (a) to maintain, evaluate, develop and improve its products and services; and (b) in aggregate form only, not attributable to Customer, for research and marketing purposes.

7.2. Security, Data Protection. Solve shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data appropriate to the nature of such Customer Data. To the extent that Solve processes any Customer Personal Data (as defined in Solve’s data processing addendum) contained in Customer Data, on Customer’s behalf, in the provision of the Service, the terms of Solve’s data processing addendum shall apply and the parties agree to comply with such terms.

7.3. Privacy Policy. Customer acknowledges Solve’s privacy policy at www.solve.io/legal/privacy-policy, and Customer recognizes and agrees that nothing in this Agreement restricts Solve’s right to alter such privacy policy.

7.4. De-Identified Data. Notwithstanding the provisions above of this Article 7, Solve may use, reproduce, sell, publicize, or otherwise exploit De-Identified Data (as defined below) in any way, in its sole discretion, including without limitation aggregated with data from other customers. (“De-Identified Data” refers to Customer Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, a Customer’s Client, or Customer.)

7.5. Erasure. Solve may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting Solve’s other rights or remedies. Upon expiration or termination of this Agreement, Solve shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Solve may retain copies of Customer Data in regular backups or as required by Laws, which will remain subject to the security standards in Section 7.2 (Security, Data Protection). 

7.6. Required Disclosure. Notwithstanding the provisions above of this Article 7, Solve may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Solve shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

7.7. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Customer assumes such risks. Solve offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

7.8. Data Accuracy. Solve shall have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Customer Data and any other data uploaded by Users or Customer’s Clients.

7.9. Excluded Data. Customer warrants that (a) it has not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to Solve or its computers or other media and, (b) to the best of its knowledge, Customer Data does not and will not include Excluded Data. Customer shall inform Solve of any Excluded Data within Customer Data promptly after discovery (without limiting Solve’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; (ii) Solve has no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (iii) Solve’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. Solve is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data.

7.10. To the extent Solve processes any Personal Data on Customer’s behalf, the terms of the Solve Data Processing Addendum (linked here) shall apply and the parties agree to comply with such terms.”  

8. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

8.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service; (b) provide Service passwords or other log-in information to any third party, except as specifically authorized by Solve; (c) share non-public Service features or content with any third party; (d) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; or (e) engage in web scraping or data scraping on or related to the Service, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. If it suspects any breach of the requirements of this Section 8.1, including without limitation by Users, Solve may suspend or terminate Customer’s access to the Service without advanced notice, in addition to such other remedies as Solve may have. Neither this Agreement nor the AUP requires that Solve take any action against Customer or any User or other third party for violating the AUP, this Section 8.1, or this Agreement, but Solve is free to take any such action it sees fit.

8.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer shall notify Solve immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop said breach.

8.3. Compliance with Laws. In its use of the Service, Customer shall comply with all applicable laws and regulations, including but not limited to Privacy/Security Laws and those related to Customer Communications and Customer Marketing Content. This includes without limitation: (a) laws and regulations governing online promotions, offers, gift cards, coupons, gift certificates, data privacy and protection, intellectual property, electronic marketing messages, and SMS/MMS text messages; and (b) laws and regulations that apply to commerce in every jurisdiction where marketing communications are sent. The Customer acknowledges that Solve does not control or monitor Customer Communications and does not guarantee their accuracy, integrity, security, or quality, and is not responsible for obtaining any necessary consents or permissions from recipients of such communications. The Customer must provide reasonable proof of compliance upon request. Solve is not obligated to provide Services if it reasonably believes that the Customer has not complied with these requirements.

8.4. Users; Service Access. Customer is responsible and liable for: (a) Customer’s Clients’ and other Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Service through Customer’s account, whether authorized or unauthorized.

8.5. Service Updates. Customer shall allow for upgrades and updates as described in Attachment A in order to optimize performance of the Service. 

9. IP & FEEDBACK.

9.1. IP Rights in the Service. Solve retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the Service. This Agreement does not grant Customer any intellectual property license or rights in or to the Service or any of its components, except to the limited extent such rights are necessary for Customer’s use of the Service as specifically authorized by this Agreement. Customer recognizes that the Service and its components are protected by copyright and other laws.

9.2. Feedback. Customer grants Solve a perpetual license to Feedback. Notwithstanding any contrary provision of Article 10 below (Confidential Information), Feedback will not constitute Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Solve’s products or services.)

10. CONFIDENTIAL INFORMATION.

10.1. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving 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. Customer’s Confidential Information includes Customer Data. Confidential Information does not include: (a) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the Receiving Party; (b) information that was rightfully in the Receiving Party’s possession without restriction prior to disclosure; (c) information that was rightfully disclosed to the Receiving Party by a third party without restriction; (d) information that was independently developed by the Receiving Party or its Representatives who did not have access to and without use of or reference to the Disclosing Party’s Confidential Information; (e) aggregate, anonymized data regarding Customer’s use of and the performance of the Services (“Aggregate Data”), provided that Solve may not disclose Aggregate Data in a manner that identifies Customer.

10.2. Nondisclosure. Except as permitted under this Agreement, during the term of this Agreement, neither party may disclose the other party’s Confidential Information to any third party without the other party’s written permission. The Receiving Party shall use the same degree of care that it uses to protect its own Confidential Information, but not less than reasonable care.  The Receiving Party may disclose Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify Disclosing Party of such requirement to disclose and (b) cooperate with Disclosing Party (at Disclosing Party’s expense) in protecting against or minimizing any such disclosure or obtaining a protective order. Either party may disclose Confidential Information to its Representatives that need access to the Confidential Information for purposes consistent with this Agreement and that have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those in this Agreement. 

10.3. Termination & Return. Each party’s obligations under this Article 10 will continue for 5 years after the termination of this Agreement; provided that such obligations related to Confidential Information constituting Disclosing Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law.

10.4. Injunction. Receiving Party agrees that breach of this Article 10 would cause Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

11. WARRANTY DISCLAIMER. CUSTOMER ACCEPTS THE SERVICE “AS IS” AND AS AVAILABLE. SOLVE PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) SOLVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) SOLVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. 

12. INDEMNIFICATION.

12.1 From Solve. Solve shall defend and indemnify Customer and Customer’s Associates (as defined below in Section 12.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Service. Solve’s obligations set forth in this Section 12.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) revisions to Service components made without Solve’s written consent; (c) Customer’s failure to incorporate updates or upgrades that would have avoided the alleged infringement, provided Solve offered such updates or upgrades without charges not otherwise required pursuant to this Agreement; (e) any Deliverable, if the SoW or a disclosure provided at or before delivery states that such Deliverable incorporates third party software or other assets; or (f) use of the Service in combination with hardware or software not provided by Solve. In the event of an Indemnified Claim, Solve may in its sole discretion, either (i) secure for Customer the right to continue using the Service; (ii) replace or modify the Service to make it noninfringing; or (iii) terminate this Agreement and refund to Customer the Fees paid by Customer for the Service that were prepaid but not used by Customer.

12.2. From Customer. Customer shall indemnify and defend Solve and Solve’s Associates (as defined below in Section 12.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims by other Users or by Customer's employees; (b) claims related to unauthorized disclosure or exposure of personal data or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Customer’s account, including without limitation by Customer Data; (d) claims that use of the Service through Customer’s account, including by other Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; and (e) infringement claims arising out of or related to the conditions listed in Subsections 12.1(a) through 12.1(f) above. Indemnified Claims pursuant to the preceding sentence also include (f) claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Indemnified Claims listed above in this Section 12.2 include, without limitation, claims arising out of or related to Solve’s negligence, but they exclude any claim that would constitute an Indemnified Claims pursuant to Section 12.1 above.

12.3. Litigation & Additional Terms.

(a) Associates. As used in this Article 12, a party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.

(b) Indemnity Obligations. The obligations of the indemnifying party (“Indemnitor”) pursuant to Section 12.1 or 12.2 above include, without limitation: (i) settlement at Indemnitor’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and ii) reimbursement of reasonable attorneys’ fees incurred by the other party to this Agreement (“Indemnified Party”) before Indemnitor’s assumption of the defense (but not attorneys’ fees incurred thereafter).

(c) Litigation and Additional Procedures. Indemnified Party shall provide prompt notice of any Indemnified Claim and reasonably cooperate with Indemnitor’s defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided: (i) if Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this Article 12 until Indemnitor assumes the defense; and (ii) Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or an Indemnified Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. Indemnitor’s obligations in Section 12.1 or 12.2 above will be excused if either of the following materially prejudices the defense: (A) Indemnified Party’s failure to provide prompt notice of the Indemnified Claim; or (B) Indemnified Party’s or an Indemnified Associate’s failure reasonably to cooperate in the defense.

13. LIMITATION OF LIABILITY.

13.1. Dollar Cap. SOLVE’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID PURSUANT TO THE APPLICABLE ORDER OR SOW DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

13.2. Excluded Damages. IN NO EVENT WILL SOLVE BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

13.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 13 APPLY TO THE BENEFIT OF SOLVE’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SOLVE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that Solve has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 13 and in Section 12 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 13, Solve’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Solve’s liability limits and other rights set forth in Article 13.1 apply likewise to Solve’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

14. TERM & TERMINATION.

14.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for 12 months. Thereafter, the Term will renew for successive 12 month periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.

14.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting Solve’s other rights and remedies, Solve may suspend or terminate a User’s access to the Service at any time, without advanced notice, if Solve reasonably concludes such User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects Solve to potential liability.

14.3. Effects of Termination. Upon termination of this Agreement, Customer shall have no further access to the Service and must delete any and all copies of the Documentation in its possession or control, any Solve passwords or access codes and other Solve Confidential Information in its possession. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 9 (IP & Feedback), 10 (Confidential Information), 11 (Warranty Disclaimer), 12 (Indemnification), and 13 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

15. MISCELLANEOUS.

15.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

15.2. Notices. Solve may send notices pursuant to this Agreement to Customer’s email address provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to legal@solvedata.io, and such notices will be deemed received 72 hours after they are sent. In addition, Customer is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact Compliance Manager, 601 W 26th St, 3rd Floor, STE 357, DPT#5024, New York, NY 10001-1101, USA; and (b) Solve will terminate the accounts of subscribers who are repeat copyright infringers.

15.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

15.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Solve’s express written consent. Except to the extent forbidden in this Section 15.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

15.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

15.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

15.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of New York, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York County, New York. This Section 15.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

15.8. Conflicts. In the event of any conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) any SoW, with more recent Statements of Work taking precedence over later ones; and (3) any Solve policy posted online, including without limitation the AUP or Privacy Policy. No SoW or other attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.

15.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

15.10. Technology Export. Customer shall not: (a) permit any third party to access or use the Service in violation of any U.S. law or regulation; or (b) export any software provided by Solve or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Service in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

15.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

15.12. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

15.13. Modifications to the Agreement. From time to time, Solve may modify this Agreement. Unless otherwise specified by Solve, changes become effective for Customer upon renewal of the then-current Subscription Term (specified in the Order) or entry into a new Order after the updated version of this Agreement goes into effect. Solve will use reasonable efforts to notify Customer of the changes. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order, and in any event continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. Notwithstanding the foregoing provisions of this Section 15.13, Solve may revise the Privacy Policy and AUP at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 15.13.

‍

ATTACHMENT A

UPGRADES AND MAINTENANCE

‍Managed Upgrades

• Solve will make updates and upgrades available to Customer when they become commercially available.
• During regular scheduled updates, upgrades and maintenance (“Scheduled Maintenance”), Solve will use its reasonable best efforts to avoid any impact on the Service, including loss of data, or service availability. Customer authorizes Solve to perform Scheduled Maintenance during the maintenance window between the hours of 00:00 Mon UTC and 10:00 Mon UTC.
• In the event that Solve must perform a critical bug fix, security or other emergency fix, Solve may apply such changes outside of the Scheduled Maintenance period. Solve will issue communications to the Technical Contact as far in advance as possible when this is the case.
• In the event that Solve requires Customer to make suitable adjustments to their software or systems, the Customer agrees to perform requested actions within 30 days. This includes but is not limited to, incompatible changes to APIs or data structures.

Technical Contact

• Customer will provide Solve with a technical contact, email address and phone number for any communications about the Service of a technical nature, including availability issues and upgrade notifications.

These Terms of Service (the “Agreement”, as modified from time to time in accordance with the provisions of this Agreement”) is by and between Solve Data Inc., (“Solve”) and the customer listed on the applicable Order or SoW (“Customer”). This Agreement includes Attachment A, as well as the AUP, Privacy Policy, and any current or future Order or SoW (all as defined below in Article 1), and all such documents are incorporated by this reference. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to the Service or (b) execution of an Order or SoW, referencing this Agreement.

Solve provides a data infrastructure and messaging platform. Solve also provides professional services related to implementation, installation, and customization of the Service. The parties have agreed that Solve will provide the Service to Customer, as well as such professional services as the parties may agree, now and pursuant to future statements of work. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.

1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.‍

1.1. “AUP” means Solve’s acceptable use policy available at www.solve.io/legal/acceptable-use-policy

1.2. “Customer’s Clients” means any of Customer’s clients or customers or other third parties Customer gives access to the Service, including without limitation such companies’ agents and employees.

1.3. “Customer Communications” means any messages sent through the Service, including emails, SMS and MMS messages, communications on websites and transactions, and other similar forms of communication.

1.4. “Customer Content” means trademarks, trade names, service marks, slogans, logos and other source identifiers, and marketing and promotional materials. This includes any content provided or transmitted by the Customer or its Users to the Services for the purposes of advertising, promoting, and selling products and services.

1.5. “Customer Data” means all information processed or stored through the Service by Customer or on Customer’s behalf. Customer Data does not include payment records, credit cards or other information Customer uses to pay Solve, or other information and records related to Customer’s account, including without limitation identifying information related to Customer staff involved in payment or other management of such account.

1.6. “Documentation” means such technical and operations documentation as Solve may make available.

1.7. “Excluded Data” means means (i) government-issued identification numbers (including, without limitation, social security numbers, passport numbers, military numbers, voter numbers, driver’s license numbers, taxpayer numbers), (ii) financial account numbers (including, without limitation, full credit or debit card numbers or financial account information), personally identifiable financial information, (iii) card holder data under the Payment Card Industry Data Security Standard, (iv) any protected health information, (v) data on any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”) or (vi) Sensitive Personal Data. 

1.8. “Excluded Data Laws” means any law or regulation governing Excluded Data, including without limitation any law or regulation protecting privacy or security rights of Excluded Data subjects, as well as the following statutes and regulations: Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”), Health Insurance Portability and Accountability Act, General Data Protection Regulation.

1.9. “Order” means an order for access to the Service, executed by each party. All Orders will be deemed to incorporate, and will be governed by this Agreement.

1.10. “Privacy/Security Law” means privacy and security laws governing Solve’s handling of Customer Data (if any). For the avoidance of doubt, Privacy/Security Laws do not include laws applicable to Customer or its data to the extent not described in the preceding sentence.

1.11. “Professional Services” means Solve services, other than software, including onboarding services, support services and other services as set forth in an SoW.

1.12. “SaaS” means such elements of the Service as Solve hosts on its infrastructure and is accessed remotely, via the cloud.

1.13. “Services” means Solve’s cloud based services and Professional Services, including support and other products, services, applications, tools and other resources made generally available and subscribed to by Customer in an Order.

1.14. “SoW” means a statement of work for Professional Services, executed by each party.

1.15. “Term” is defined in Section 14.1 below.

1.16. “User” means any company or individual who uses the Service on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation contractors and their employees and agents.

2. SAAS & USE OF THE SERVICE IN GENERAL.

2.1. Use of the Service. During the Term, Customer may access and use the Service pursuant to the terms of any outstanding Order.

2.2. Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Service.

2.3. Service Revisions. Solve may revise the features and functions of the Service at any time, provided no such revision materially reduces features or functionality provided pursuant to an outstanding Order.

2.4. Customer’s Clients. Subject to the provisions below of this Section 2.4, Customer may authorize Customer’s Clients to access and use the Service in such numbers and according to such restrictions specified in the applicable Order, solely for the following purposes: accessing Customer reports, updating audiences, and running analytics processes. Customer shall provide complete name and contact information for each proposed Customer’s Client upon or before providing such access, and update such information as soon as it becomes aware of a change. Customer shall make no representations or warranties regarding the Service or any other matter, to Customer’s Clients or Users or any other third party, from or on behalf of Solve, and Customer shall not create or purport to create any obligations or liabilities for Solve. Customer will be liable to Solve for Customer’s Clients’ acts and omissions related to the Service (without limiting any liability of such Customer’s Clients to Solve). Solve will have no obligation to provide support or other services, SLA remedies, or other remedies to Customer’s Clients.

3. SOLVE TOOLS.

3.1. Although not required, Customer may install a Solve software agent on Customer’s servers to support the collection, and reporting to the Service, of events and metrics (“Solve Agent”). Customer may also access the Solve API, as well as certain client libraries developed and made available by Solve from time to time that wrap the API (“Solve Libraries”) to support access and use of the Service. Both the Solve Agent and the Solve Libraries (collectively, the “Solve Tools”) are made available under the terms of the open source license agreement(s) referenced in the applicable help, notices, about or source files.

3.2. If Customer elects to use the Solve Agent or a Solve Library, Customer acknowledges and agrees that: (a) such Solve Tool is only made available to support access and use of the Service; (b) Solve has no liability with respect to any other use of such Solve Tool; and (c) Customer is responsible for complying with the applicable license(s) for such Solve Tool. To the extent any such applicable license requires that Solve provide Customer the right to use any open source software in a Solve Tool that is inconsistent with rights granted in this Agreement, then the rights in the applicable open source license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such open source software.

4. PROFESSIONAL SERVICES.

4.1. Provision of Professional Services. Solve shall provide the Professional Services, and Customer shall provide any assistance and cooperation necessary or convenient to facilitate the Professional Services, or called for in an SoW.

5. NON-SOLVE SERVICES AND MATERIAL.

5.1. The Service supports integrations and other connections to certain Non-Solve Services. If a User chooses to use a Non-Solve Service with the Service, in doing so, Customer hereby grants to Solve permission to interoperate with the Non-Solve Service. Customer’s acquisition and use of Non-Solve Services is governed solely by the terms of the relationship between Customer and the provider of the Non-Solve Services.

5.2. Although Customer may be able to connect to or otherwise access Non-Solve Services or other Non-Solve Material through the Service, Customer acknowledges and agrees that: (a) Solve does not control and is not responsible for any Non-Solve Material; (b) Solve has no liability with respect to any use of Non-Solve Material; and (c) Customer is responsible for complying with Solve’s Acceptable Use Policy and any licenses and other terms applicable to the Non-Solve Material. Any changes to Non-Solve Material, including their availability or unavailability, during the Term does not affect Customer’s obligations under this Agreement.

6. FEES & REIMBURSEMENT.

6.1. Types of Fees. Customer shall: (a) pay Solve the fee set forth in each Order (the “Subscription Fee”) for each Term, as well as such fees as are set forth in each SoW (“Professional Service Fees”); and (b) reimburse such expenses as Solve reasonably incurs in provision of Professional Services. Amounts listed in SoW’s are estimates of Professional Services fees and will not be binding, except to the extent that the SoW specifically provides to the contrary.

6.2. Invoices, No Refunds. Solve’s invoices are due within 30 days of issuance. For late payment, Customer shall pay interest charges from the time the payment was due at the rate that is the lower of 1.5% per month or the highest rate permissible under applicable law. Solve will not be required to refund Subscription Fees or Professional Service Fees under any circumstances.

6.3. Taxes. Amounts due under this Agreement are payable to Solve without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax, whether or not withheld at the source (collectively, “Sales Tax”). Except as forbidden by applicable law, Solve may require that Customer submit applicable Sales Taxes to Solve. However, the preceding sentence does not apply to the extent that Customer is tax exempt, provided it gives Solve a valid tax exemption certificate within 30 days of the Effective Date. Solve’s failure to include any applicable tax in an invoice will not waive or dismiss the parties’ rights or obligations pursuant to this Section 6.3. If applicable law requires withholding or deduction of Sales Taxes or any other tax or duty, Customer shall separately pay Solve the withheld or deducted amount, over and above fees due. For the avoidance of doubt, this Section 6.3 does not govern taxes based on Solve’s net income.

7. CUSTOMER DATA.

7.1. Use of Customer Data. Except as otherwise stated in this Agreement, Solve’s use of Customer Data shall be limited to the purpose of providing the Service to the Customer. Subject to the confidentiality obligations contained in Section 10, Customer agrees Solve may additionally use Customer Data: (a) to maintain, evaluate, develop and improve its products and services; and (b) in aggregate form only, not attributable to Customer, for research and marketing purposes.

7.2. Security, Data Protection. Solve shall maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data appropriate to the nature of such Customer Data. To the extent that Solve processes any Customer Personal Data (as defined in Solve’s data processing addendum) contained in Customer Data, on Customer’s behalf, in the provision of the Service, the terms of Solve’s data processing addendum shall apply and the parties agree to comply with such terms.

7.3. Privacy Policy. Customer acknowledges Solve’s privacy policy at www.solve.io/legal/privacy-policy, and Customer recognizes and agrees that nothing in this Agreement restricts Solve’s right to alter such privacy policy.

7.4. De-Identified Data. Notwithstanding the provisions above of this Article 7, Solve may use, reproduce, sell, publicize, or otherwise exploit De-Identified Data (as defined below) in any way, in its sole discretion, including without limitation aggregated with data from other customers. (“De-Identified Data” refers to Customer Data with the following removed: information that identifies or could reasonably be used to identify an individual person, a household, a Customer’s Client, or Customer.)

7.5. Erasure. Solve may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more, without limiting Solve’s other rights or remedies. Upon expiration or termination of this Agreement, Solve shall delete all Customer Data within sixty (60) days after receipt of Customer’s written request. Notwithstanding the foregoing, Customer understands that Solve may retain copies of Customer Data in regular backups or as required by Laws, which will remain subject to the security standards in Section 7.2 (Security, Data Protection). 

7.6. Required Disclosure. Notwithstanding the provisions above of this Article 7, Solve may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Solve shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.

7.7. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Service, Customer assumes such risks. Solve offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.

7.8. Data Accuracy. Solve shall have no responsibility or liability for the accuracy of data uploaded to the Service by Customer, including without limitation Customer Data and any other data uploaded by Users or Customer’s Clients.

7.9. Excluded Data. Customer warrants that (a) it has not and will not transmit Excluded Data (as defined below), or permit transmission of Excluded Data, to Solve or its computers or other media and, (b) to the best of its knowledge, Customer Data does not and will not include Excluded Data. Customer shall inform Solve of any Excluded Data within Customer Data promptly after discovery (without limiting Solve’s rights or remedies). Customer recognizes and agrees that: (i) the provisions of this Agreement related to Customer Data do not apply to Excluded Data; (ii) Solve has no liability for any failure to provide protections in the Excluded Data Laws (as defined below) or otherwise to protect Excluded Data; and (iii) Solve’s systems are not intended for management or protection of Excluded Data and may not provide adequate or legally required security for Excluded Data. Solve is not responsible or liable for any data exposure or disclosure or related loss to the extent that it involves Excluded Data.

7.10. To the extent Solve processes any Personal Data on Customer’s behalf, the terms of the Solve Data Processing Addendum (linked here) shall apply and the parties agree to comply with such terms.”  

8. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.

8.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the Service for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Service; (b) provide Service passwords or other log-in information to any third party, except as specifically authorized by Solve; (c) share non-public Service features or content with any third party; (d) access the Service in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Service, or to copy any ideas, features, functions or graphics of the Service; or (e) engage in web scraping or data scraping on or related to the Service, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. If it suspects any breach of the requirements of this Section 8.1, including without limitation by Users, Solve may suspend or terminate Customer’s access to the Service without advanced notice, in addition to such other remedies as Solve may have. Neither this Agreement nor the AUP requires that Solve take any action against Customer or any User or other third party for violating the AUP, this Section 8.1, or this Agreement, but Solve is free to take any such action it sees fit.

8.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Service, including without limitation by protecting its passwords and other log-in information. Customer shall notify Solve immediately of any known or suspected unauthorized use of the Service or breach of its security and shall use best efforts to stop said breach.

8.3. Compliance with Laws. In its use of the Service, Customer shall comply with all applicable laws and regulations, including but not limited to Privacy/Security Laws and those related to Customer Communications and Customer Marketing Content. This includes without limitation: (a) laws and regulations governing online promotions, offers, gift cards, coupons, gift certificates, data privacy and protection, intellectual property, electronic marketing messages, and SMS/MMS text messages; and (b) laws and regulations that apply to commerce in every jurisdiction where marketing communications are sent. The Customer acknowledges that Solve does not control or monitor Customer Communications and does not guarantee their accuracy, integrity, security, or quality, and is not responsible for obtaining any necessary consents or permissions from recipients of such communications. The Customer must provide reasonable proof of compliance upon request. Solve is not obligated to provide Services if it reasonably believes that the Customer has not complied with these requirements.

8.4. Users; Service Access. Customer is responsible and liable for: (a) Customer’s Clients’ and other Users’ use of the Service, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Service through Customer’s account, whether authorized or unauthorized.

8.5. Service Updates. Customer shall allow for upgrades and updates as described in Attachment A in order to optimize performance of the Service. 

9. IP & FEEDBACK.

9.1. IP Rights in the Service. Solve retains all right, title, and interest in and to the Service, including without limitation all software used to provide the Service and all graphics, user interfaces, logos, and trademarks reproduced through the Service. This Agreement does not grant Customer any intellectual property license or rights in or to the Service or any of its components, except to the limited extent such rights are necessary for Customer’s use of the Service as specifically authorized by this Agreement. Customer recognizes that the Service and its components are protected by copyright and other laws.

9.2. Feedback. Customer grants Solve a perpetual license to Feedback. Notwithstanding any contrary provision of Article 10 below (Confidential Information), Feedback will not constitute Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Solve’s products or services.)

10. CONFIDENTIAL INFORMATION.

10.1. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving 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. Customer’s Confidential Information includes Customer Data. Confidential Information does not include: (a) information that was in the public domain at the time of its disclosure, or which becomes public domain property through no fault of the Receiving Party; (b) information that was rightfully in the Receiving Party’s possession without restriction prior to disclosure; (c) information that was rightfully disclosed to the Receiving Party by a third party without restriction; (d) information that was independently developed by the Receiving Party or its Representatives who did not have access to and without use of or reference to the Disclosing Party’s Confidential Information; (e) aggregate, anonymized data regarding Customer’s use of and the performance of the Services (“Aggregate Data”), provided that Solve may not disclose Aggregate Data in a manner that identifies Customer.

10.2. Nondisclosure. Except as permitted under this Agreement, during the term of this Agreement, neither party may disclose the other party’s Confidential Information to any third party without the other party’s written permission. The Receiving Party shall use the same degree of care that it uses to protect its own Confidential Information, but not less than reasonable care.  The Receiving Party may disclose Confidential Information as necessary pursuant to any court order or any legal, regulatory, law enforcement or similar requirement or investigation; provided, prior to any such disclosure, the Receiving Party shall use reasonable efforts to (a) promptly notify Disclosing Party of such requirement to disclose and (b) cooperate with Disclosing Party (at Disclosing Party’s expense) in protecting against or minimizing any such disclosure or obtaining a protective order. Either party may disclose Confidential Information to its Representatives that need access to the Confidential Information for purposes consistent with this Agreement and that have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those in this Agreement. 

10.3. Termination & Return. Each party’s obligations under this Article 10 will continue for 5 years after the termination of this Agreement; provided that such obligations related to Confidential Information constituting Disclosing Party’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law.

10.4. Injunction. Receiving Party agrees that breach of this Article 10 would cause Disclosing Party irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Disclosing Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

11. WARRANTY DISCLAIMER. CUSTOMER ACCEPTS THE SERVICE “AS IS” AND AS AVAILABLE. SOLVE PROVIDES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) SOLVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (b) SOLVE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. 

12. INDEMNIFICATION.

12.1 From Solve. Solve shall defend and indemnify Customer and Customer’s Associates (as defined below in Section 12.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Service. Solve’s obligations set forth in this Section 12.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) revisions to Service components made without Solve’s written consent; (c) Customer’s failure to incorporate updates or upgrades that would have avoided the alleged infringement, provided Solve offered such updates or upgrades without charges not otherwise required pursuant to this Agreement; (e) any Deliverable, if the SoW or a disclosure provided at or before delivery states that such Deliverable incorporates third party software or other assets; or (f) use of the Service in combination with hardware or software not provided by Solve. In the event of an Indemnified Claim, Solve may in its sole discretion, either (i) secure for Customer the right to continue using the Service; (ii) replace or modify the Service to make it noninfringing; or (iii) terminate this Agreement and refund to Customer the Fees paid by Customer for the Service that were prepaid but not used by Customer.

12.2. From Customer. Customer shall indemnify and defend Solve and Solve’s Associates (as defined below in Section 12.3) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Service, including without limitation: (a) claims by other Users or by Customer's employees; (b) claims related to unauthorized disclosure or exposure of personal data or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Service through Customer’s account, including without limitation by Customer Data; (d) claims that use of the Service through Customer’s account, including by other Users, harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising; and (e) infringement claims arising out of or related to the conditions listed in Subsections 12.1(a) through 12.1(f) above. Indemnified Claims pursuant to the preceding sentence also include (f) claims related to the injury to or death of any individual, or any loss of or damage to real or tangible personal property, caused by the act or omission of Customer or of any of its agents, subcontractors, or employees. Indemnified Claims listed above in this Section 12.2 include, without limitation, claims arising out of or related to Solve’s negligence, but they exclude any claim that would constitute an Indemnified Claims pursuant to Section 12.1 above.

12.3. Litigation & Additional Terms.

(a) Associates. As used in this Article 12, a party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.

(b) Indemnity Obligations. The obligations of the indemnifying party (“Indemnitor”) pursuant to Section 12.1 or 12.2 above include, without limitation: (i) settlement at Indemnitor’s expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and ii) reimbursement of reasonable attorneys’ fees incurred by the other party to this Agreement (“Indemnified Party”) before Indemnitor’s assumption of the defense (but not attorneys’ fees incurred thereafter).

(c) Litigation and Additional Procedures. Indemnified Party shall provide prompt notice of any Indemnified Claim and reasonably cooperate with Indemnitor’s defense. Indemnitor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided: (i) if Indemnitor fails to assume the defense on time to avoid prejudicing the defense, Indemnified Party may defend the Indemnified Claim, without loss of rights pursuant to this Article 12 until Indemnitor assumes the defense; and (ii) Indemnified Party will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or an Indemnified Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. Indemnitor’s obligations in Section 12.1 or 12.2 above will be excused if either of the following materially prejudices the defense: (A) Indemnified Party’s failure to provide prompt notice of the Indemnified Claim; or (B) Indemnified Party’s or an Indemnified Associate’s failure reasonably to cooperate in the defense.

13. LIMITATION OF LIABILITY.

13.1. Dollar Cap. SOLVE’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT PAID PURSUANT TO THE APPLICABLE ORDER OR SOW DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.

13.2. Excluded Damages. IN NO EVENT WILL SOLVE BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.

13.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 13 APPLY TO THE BENEFIT OF SOLVE’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF SOLVE IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Customer acknowledges and agrees that Solve has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Article 13 and in Section 12 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Article 13, Solve’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Solve’s liability limits and other rights set forth in Article 13.1 apply likewise to Solve’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

14. TERM & TERMINATION.

14.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date and continue for the period set forth in the Order or, if none, for 12 months. Thereafter, the Term will renew for successive 12 month periods, unless either party refuses such renewal by written notice 30 or more days before the renewal date.

14.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure. Without limiting Solve’s other rights and remedies, Solve may suspend or terminate a User’s access to the Service at any time, without advanced notice, if Solve reasonably concludes such User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects Solve to potential liability.

14.3. Effects of Termination. Upon termination of this Agreement, Customer shall have no further access to the Service and must delete any and all copies of the Documentation in its possession or control, any Solve passwords or access codes and other Solve Confidential Information in its possession. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 9 (IP & Feedback), 10 (Confidential Information), 11 (Warranty Disclaimer), 12 (Indemnification), and 13 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

15. MISCELLANEOUS.

15.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.

15.2. Notices. Solve may send notices pursuant to this Agreement to Customer’s email address provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to legal@solvedata.io, and such notices will be deemed received 72 hours after they are sent. In addition, Customer is on notice and agrees that: (a) for claims of copyright infringement, the complaining party may contact Compliance Manager, 601 W 26th St, 3rd Floor, STE 357, DPT#5024, New York, NY 10001-1101, USA; and (b) Solve will terminate the accounts of subscribers who are repeat copyright infringers.

15.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.

15.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Solve’s express written consent. Except to the extent forbidden in this Section 15.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

15.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

15.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

15.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of New York, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of New York County, New York. This Section 15.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

15.8. Conflicts. In the event of any conflict among the attachments to this Agreement and this main body, the following order of precedence will govern, with lower numbers governing over higher ones: (1) this main body of this Agreement; (2) any SoW, with more recent Statements of Work taking precedence over later ones; and (3) any Solve policy posted online, including without limitation the AUP or Privacy Policy. No SoW or other attachment incorporated into this Agreement after execution of this main body will be construed to amend this main body or any earlier attachment unless it specifically states its intent to do so and cites the section or sections amended.

15.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.

15.10. Technology Export. Customer shall not: (a) permit any third party to access or use the Service in violation of any U.S. law or regulation; or (b) export any software provided by Solve or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Service in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).

15.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.

15.12. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.

15.13. Modifications to the Agreement. From time to time, Solve may modify this Agreement. Unless otherwise specified by Solve, changes become effective for Customer upon renewal of the then-current Subscription Term (specified in the Order) or entry into a new Order after the updated version of this Agreement goes into effect. Solve will use reasonable efforts to notify Customer of the changes. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing a Subscription Term or entering into a new Order, and in any event continued use of any Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version. Notwithstanding the foregoing provisions of this Section 15.13, Solve may revise the Privacy Policy and AUP at any time by posting a new version of either at the Website, and such new version will become effective on the date it is posted; provided if such amendment materially reduces Customer’s rights or protections, notice and consent will be subject to the requirements above in this Section 15.13.

‍

ATTACHMENT A

UPGRADES AND MAINTENANCE

‍Managed Upgrades

• Solve will make updates and upgrades available to Customer when they become commercially available.
• During regular scheduled updates, upgrades and maintenance (“Scheduled Maintenance”), Solve will use its reasonable best efforts to avoid any impact on the Service, including loss of data, or service availability. Customer authorizes Solve to perform Scheduled Maintenance during the maintenance window between the hours of 00:00 Mon UTC and 10:00 Mon UTC.
• In the event that Solve must perform a critical bug fix, security or other emergency fix, Solve may apply such changes outside of the Scheduled Maintenance period. Solve will issue communications to the Technical Contact as far in advance as possible when this is the case.
• In the event that Solve requires Customer to make suitable adjustments to their software or systems, the Customer agrees to perform requested actions within 30 days. This includes but is not limited to, incompatible changes to APIs or data structures.

Technical Contact

• Customer will provide Solve with a technical contact, email address and phone number for any communications about the Service of a technical nature, including availability issues and upgrade notifications.