Master Services & License Agreement

MASTER SERVICES & LICENSE AGREEMENT

This MASTER SERVICES & LICENSE AGREEMENT (this “Agreement”), dated as the Effective Date above, is entered into by and between FMT Travel Inc. (dba. MissionHires - the “Company”) and accepting these terms via the Company’s website. Company and Client are collectively referred to as the “Parties” and individually as a “Party.” The Agreement will be effective as of the date the Client accepts these terms. This Agreement is supplemental to the Terms of Service and Privacy Policy maintained on the Company’s website, each of which shall also apply to Client’s use of the Company’s website.

NOW, THEREFORE, in consideration of the mutual undertakings herein, the Parties agree as follows:

1. DEFINITIONS. Defined terms used in this Agreement have the meanings set forth below or as otherwise provided in this Agreement.

1.1. “Affiliate” of a Party means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with that Party.

1.2. “Applicable Law” means all Laws of any governmental authority in any country or jurisdiction applicable to the rendering of the Services hereunder, as may be amended or otherwise revised from time to time.

1.3. “Candidate” means a person who is a candidate for employment or placement in a job or role with Client or a Customer.

1.4. “Control” means the power to direct or cause the direction of the affairs, policies or management of a person, whether through the ownership of voting securities, by contract, or otherwise. With respect to Client only, direct or indirect ownership of at least 20% of voting securities, equity interest or the equivalent shall also constitute Control. “Controlled” and “Controlling” shall have equivalent meanings.

1.5. “Customer” means any third party who retains or receives services from Client within the ordinary course of Client’s business.

1.6. “Data Privacy Laws” means all Laws regarding the collection, storage, transfer, and processing of Personal Data.

1.7. “Intellectual Property Rights” means any and all interest under Applicable Law in (a) trademarks, service marks, trade names, trade dress and Internet domain names, together with all goodwill and common law rights associated therewith; (b) patents; (c) copyrights; (d) registrations and applications for registration of any of the foregoing in (a)-(c); (e) rights in trade secrets; and (f) rights of privacy and/or publicity; with all tangible and intangible embodiments thereof to the extent governed by (a)-(f) collectively being “Intellectual Property.”

1.8. “Laws” means laws, rules, regulations, rulings, judgments, declarations, decrees, directives, statutes, or other enactments, orders, mandates or resolutions.

1.9. “Company Data” means all data, including Personal Data owned or licensed by the Company, in any form, that is owned or licensed by the Company or that is stored, transmitted, accessed, received, collected, generated or otherwise processed by or on behalf of, or made available to, Company in the course of providing Services under this Agreement, and all data regarding Client’s use of the Services.

1.10. “Client Data” means data or information in any form, that is, owned, stored, transmitted, accessed, received, collected, generated, or otherwise belonging to Client, but excluding Company Data. Client Data shall also include Candidate Data licensed to the Client or in which the Client otherwise has some right or interest.

1.11. “Candidate Data” means data or information, in any form, related to a Candidate, including but not limited to Personal Data related to such Candidate.

1.12. “Client IP” means all Intellectual Property created or owned by Client, excluding any Company IP licensed pursuant to this Agreement.

1.13. “Company IP” means all Intellectual Property created, owned, or licensed by Company, other than Client IP licensed pursuant to this Agreement.

1.14. “Client Systems” means Systems owned or controlled by Client, its Affiliates or its or their Personnel.

1.15. “Company Systems” means Systems owned or controlled by Company, its Affiliates or its or their.

1.16. “Personal Data” means any information that relates to an individual person and that, alone or in combination with other data, can be used to identify, contact, or precisely locate an individual person, or other information that constitutes “personal data” or “personal information” under Applicable Laws.

1.17. “Personnel” means, with respect to a Party, that Party’s employees, subcontractors, vendors, agents, officers, directors and other personnel.

1.18. “Platform” means the artificial intelligence interviewing and candidate evaluation platform provided by the Company as may be updated or modified from time to time.

1.19. “Platform Services” means Company’s offering of the Platform to Client, as set forth more fully in this Agreement or the applicable Purchase Orders.

1.20. “Services” means the services provided by Company to Client under this Agreement and any applicable Purchase Orders, including the provision of the Platform, Platform Services, Software, and Software Services.

1.21. “Software” means all computer programs, applications, scripts, services, processes, and all object code and source code forming the basis thereof, provided by the Company under this Agreement, as may be updated or modified from time to time.

1.22. “Software Services” means the provision of Software assets or tools by the Company to Client.

1.23. “Systems” means websites, mobile or tablet sites, applications and other digital properties, services, platforms, software, servers, computers, hardware, firmware, middleware, networks, systems, workstations, data communications lines, routers, hubs, switches, magnetic, optical or electrical data storage devices, and all other information technology equipment.

1.24. “Virus” means any virus, worm, “back door,” “Trojan Horse,” drop dead device, time bomb, spyware, adware or other malicious, harmful, destructive or disruptive code, component or device, including any code, component or device that may cause a Security Incident or damages to Systems, or is capable of facilitating any of the foregoing.

2. SERVICES.

2.1. Services

(a) Purchase Orders. Company shall provide the Services as may be set forth in executed written purchase orders, which will be incorporated in and made a part of this Agreement (each, a “Purchase Order” or “PO”), and in accordance with this Agreement. The Client’s enrollment in one or more Services offerings via Company’s website shall constitute a PO and the terms set out on the Company’s website or related materials concerning the nature of Services and cost, payment, and similar terms shall be considered terms of a PO for purposes of this Agreement. (b) License. Company grants Client a revocable, non-exclusive, non-transferrable license to use the Services, Software, and Platform during the term of the applicable PO. Client may not sub-license this license or any other license granted under this Agreement or any PO, other than to its employees for their access to the Services, Software, or Platform, which shall be conditioned on such employees’ acceptance of Company’s terms of use, end user license agreement, or similar documents as may be amended from time to time, and subject to any terms set forth in a PO regarding the number of employee users or other conditions. Client and its Personnel shall not (i) reverse-engineer, disassemble, decompile, or otherwise modify or alter the Services, Software, or Platform, in whole or in part, or attempt to derive the source code of the Services, Software, or Platform; (ii) license, sell, resell, transfer, or assign the Services, Software, or Platform; (iii) use the Services, Software, or Platform to violate any Applicable Laws (including but not limited to Data Privacy Laws or laws prohibiting discrimination). For clarity, the use of the Platform or any Company Software by Candidates at the direction of Client shall not be considered a sub-license of Client’s rights under this Agreement, and the relationship between Company and Candidates shall be governed solely by Company’s terms of use, end user license agreement, privacy policy, or similar documents as may be amended from time to time. The Company may condition a Candidate’s use of the Platform or Software on the Candidates acceptance of such terms or documents. Client hereby waives any claim of exclusivity with respect to any Candidates it directs to the Company or the Services, including any and all claims of exclusive rights to such Candidate’s Candidate Data or a purported exclusive right to place such Candidate into a role. (c) Service Levels. Company shall provide the Services at levels set forth in the relevant PO, if any. If no such levels are specified, Company shall use commercially reasonable efforts to maintain the Service as active with at least 95% uptime (excluding scheduled or planned maintenance) and shall use commercially reasonable efforts to restore the functionality of the Services in the event of any downtime. Company does not warrant that the Services will be available or functional at all times or without downtime, and Company further reserves the right to conduct maintenance or updates at any time regardless of whether such activity results in downtime or inability to access the Services.

2.2. Compliance with Laws. Company shall (a) comply with all Applicable Laws in performing the Services and its other obligations under this Agreement; (b) ensure that the Services as provided to Client comply with all Applicable Laws (provided that Client shall be liable for any use of the Services in violation of applicable law as provided elsewhere in this Agreement); and (c) obtain all licenses and consents, and pay all fees, required by Applicable Law for Company’s performance and Client’s receipt of the Services, Company’s delivery of the Services, and Client’s use of and other exercise of rights with respect to the Services.

3. PAYMENT.

3.1. Payment Terms. Client shall pay Company the License Fee with respect to the issued licenses no later than the first day of the period for which such fee is assessed (for clarity, payment on the first of the month for services to be rendered in the upcoming month). Company may provide support services at the rate(s) set forth on the Company’s website or as otherwise agreed in writing between the parties. Client agrees that Company may increase the Monthly License Fee and Support Fees by up to 5% per year. If Client fails to timely pay any amounts when due, Company may (i) apply a late payment fee of 5% to all unpaid amounts per month until paid, or (ii) terminate the provision of Services (which shall not relieve Client of any payment obligations). Upon demand, Client will reimburse Company for reasonable and actual (meaning without mark-up or administrative fee of any type whatsoever), out-of-pocket expenses incurred by Company in connection with its performance of Services. All requested reimbursements will be properly documented by Company through customary receipts or other appropriate documentation.

3.2. Method of Payment: Client will provide and maintain up to date a credit card on file with Company for payment of all amounts due to Company. Client authorizes Company to bill all charges related to the Services to the card including to automatically bill for all recurring charges without further consent or action by Client. Client agrees to pay all such charges according to the card holder agreement. Client hereby irrevocably authorizes and instructs its card issuer to deny any chargeback requests relating to this charge authorization at anytime and for any reason.

3.3. Taxes. Each Party shall be responsible for any taxes imposed on it as a result of producing, rendering, receiving, or engaging with the Services.

4. CONFIDENTIAL INFORMATION.

4.1. Confidentiality. Each Party shall maintain in confidence any and all information and materials disclosed or made available by or on behalf of the other Party (“Discloser”) or that the receiving Party (“Recipient”) obtains in connection with this Agreement that is designated or that is reasonably expected to be confidential or proprietary under the circumstances (including the Parties’ trade secrets, business, technical and financial information not generally known to the public, such as business plans, strategies, Personal Data, practices, products and personnel) (“Confidential Information”). Confidential Information does not include information that (a) the Recipient rightfully possessed without a duty of confidentiality before obtaining it from the Discloser; (b) is or becomes generally available to and known by the public through no fault of the Recipient; (c) Recipient received on an unrestricted basis from a source unrelated to either Party and not under a duty of confidentiality with respect to the information; or (d) Recipient developed independently.

4.2. Obligations. Recipient shall maintain in confidence Discloser’s Confidential Information and protect that Confidential Information from any unauthorized disclosure, access, use, destruction, alteration or loss, exercising at least the same degree of care as Recipient exercises for its own confidential and proprietary information, but not less than a reasonable degree of care. Subject to Section 4.3, Recipient shall not, nor permit or assist any person to, (a) use or copy Discloser’s Confidential Information, except as permitted in this Agreement or as otherwise necessary to perform or receive the Services or to otherwise perform Recipient’s obligations under this Agreement; or (b) disclose Discloser’s Confidential Information to any person other than disclosures to Recipients’ then-current Affiliates and its and their authorized Personnel, legal counsel, accountants, banks and other financing sources and advisors as strictly necessary for such parties to advise or perform on behalf of Recipient or its applicable Affiliates (such persons, “Authorized Persons”). Recipient shall ensure that its Authorized Persons with access to Discloser’s Confidential Information (A) comply with this Article 4 as if they were parties to this Agreement in place of Recipient; and (B) are bound by written confidentiality obligations, or are otherwise under a duty of confidentiality, sufficient to protect Discloser’s Confidential Information in a manner that is consistent with this Article 4.

4.3. Required Disclosure. Recipient shall, to the extent not prohibited by Applicable Law, (a) notify Discloser within three (3) business days if any Applicable Law requires, or a governmental authority of competent jurisdiction requires or requests, that Recipient disclose Discloser’s Confidential Information; and (b) use reasonable efforts to allow Discloser an opportunity to seek injunctive relief from, or a protective order with respect to, the contemplated disclosure. If notification to Discloser is prohibited by Applicable Law, or if it is not prohibited and that relief from disclosure is not obtained, Recipient (i) may disclose only that portion of Discloser’s Confidential Information that Company’s counsel advises is not subject to privilege and must be disclosed; and (ii) shall, at Discloser’s expense, cooperate with Discloser’s efforts to the extent not prohibited by Applicable Law to ensure the disclosed Confidential Information is treated in a confidential manner after disclosure.

4.4. Destruction/Return of Information. At Discloser’s request, or following any termination of this Agreement or a PO (except as otherwise provided in this Agreement), Recipient shall stop using Discloser’s Confidential Information including Personal Data, and, except as necessary to comply with Applicable Law, return to Discloser or destroy, at Discloser’s option, all of Discloser’s Confidential Information in Recipient’s or its Authorized Persons’ possession or control. Notwithstanding the foregoing, Recipient is not required to return or destroy Discloser’s Confidential Information backed up from a computer system in the ordinary course of Recipient’s business, but that Confidential Information remains subject to all applicable obligations under this Agreement. For clarity, rights and licenses granted by or on behalf of Client or its Personnel hereunder shall not be limited by this Article 4.

4.5. Confidentiality Term. Recipient’s obligations under this Article regarding Discloser’s Confidential Information terminate five years after the end of the Term, except that Recipient’s obligations survive (a) for backed up Confidential Information, through the destruction of such backup media; (b) for Personal Data, in perpetuity; and (c) for Confidential Information that is a trade secret, for as long as such Confidential Information is a trade secret under Applicable Law.

4.6. Injunctive Relief. The parties acknowledge and agree that no adequate remedy exists at law for an actual or threatened breach of this Section and that, in the event of an actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section.

4.7. Defend Trade Secrets Act. Notwithstanding anything to the contrary, as specified in 18 U.S.C. Section 1833(b), Company shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (1) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, and solely for the purpose of reporting or investigating a suspected violation of law; or (2) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

5. DATA AND SECURITY.

5.1. Data Processing. Client acknowledges that Company, in providing the Services, will process Client Data and Candidate Data and that such processing may involve the use of machine-learning or artificial intelligence programs. Client consents to such processing and shall cause any of its Personnel, Candidates, and Customers to execute such documents as necessary to permit Client to grant on their behalf all consents and licenses with respect to such Personnel’s, Candidate’s, or Customer’s Personal Data to be given under this Agreement. Client shall cause any Personal Data constituting “personally identifiable information,” “protected health information,” or other sensitive data categories (collectively, “Sensitive Information”) under Applicable Law to be encrypted or otherwise not accessible to Company, and shall inform Company if any Client Data to be collected by or transmitted to Company contains any such Sensitive Information. Client represents and warrants that it has not and shall not at any time provide to Company or allow Company to receive or process any Personal Data belonging to any individual who is a citizen of the European Union. The Agreement and Company’s privacy policy, terms of use, and end user license agreement shall apply to the collection, storage, and processing of Candidate data and personal information and with respect to the Platform, notwithstanding any conflicts of such terms with those of Client.

5.2. Security. To protect Personal Data, Candidate Data, and Client Data, Company shall (a) implement and maintain administrative, technical, physical, and organizational safeguards regarding security, continuation, backup, and disaster-recovery that are consistent with then-current industry standards and practices and comply with Applicable Law; and (b) only access and use Client Systems to the extent necessary to perform the Services.

5.3. Security Incident. Company will notify its main Client contact without undue delay upon becoming aware of any unauthorized access to Company Systems or loss of Personal Data which has a reasonable likelihood of causing harm to Client or its Personnel, Candidates, or any other person (a “Security Incident”). Company will (a) immediately investigate and take all reasonable steps to mitigate any potential damages and remediate the cause of the Security Incident; (b) provide Client with full details of the cause and impact of any Security Incident and provide updates on any material developments or findings; (c) take all reasonable actions to prevent any similar reoccurrence; (d) cooperate with Client in its efforts to investigate, remediate and mitigate the effects of the Security Incident and fulfill its notification obligations; and (e) cooperate with Client with respect to any litigation or investigation by or against third parties in connection with the Security Incident.

5.4. Communications. Client reserves the right to manage all communications concerning Client’s involvement in any Security Incident with the affected individuals, governmental entities, the public, or third parties. Company shall not issue, publish or make available to any third party any statement, press release or any other communication that mentions Client and concerns the Security Incident without Client’s prior written approval. For clarity, the foregoing does not restrict Company’s ability to communicate with its other customers or make legally required communications or notifications.

5.5. Personnel. Company shall take reasonable precautions with respect to the employment of and access given to its Personnel, including providing appropriate security training.

6. INTELLECTUAL PROPERTY.

6.1. Client Intellectual Property. Client is and will be the exclusive owner of all Client Data and Client IP and all rights therein and thereto. Subject to the terms of this Agreement, Client hereby grants to Company during the Term, a limited, revocable, non-exclusive, royalty-free, license to collect, use, store, share and process Client Data strictly as necessary to provide the Services or otherwise instructed or permitted in writing by Client, and to copy, reproduce, display, or otherwise utilize the Client IP in connection with the provision of the Platform, Software, and Services. Client grants Company, as a separate and additional license, a perpetual, paid-up, worldwide, royalty-free license to use any Client Data obtained by Company for the purposes of developing and improving Company software and services (including the training of machine-learning or artificial intelligence software programs) and anonymized benchmarking or reporting purposes, provided that Company shall not incorporate specific Client Data (not including anonymized aggregated data or any machine learning model trained in part on Client Data, and specifically excluding any Candidate Data which may also constitute Client Data) into any product or service sold to any other party. Except for these licenses, nothing in this Agreement grants Company any rights in or to any Client Data or Client IP, all of which rights Client hereby reserves.

6.2. Company Intellectual Property. Company is and will be the exclusive owner of all Company IP, including the Platform and Software, and all rights therein and thereto. The parties acknowledge that the Platform and Software created by the Company and all output therefrom is not a “work made for hire,” and nothing in this Agreement shall transfer any right, title, or interest in the Company IP or the Platform or Software to Client. The incorporation of Client Data or Client IP into any Company IP or the Platform or Software shall not convey any right, title, or interest in such Company IP to Client. Following termination of this Agreement and all POs, Client shall have no further right to use the Services, Software, or Platform in any capacity. Unless explicitly agreed in writing, any output of the Services or other work product generated by the Company in connection with the Services shall not be a “work made for hire” and shall remain the sole and exclusive property of Company (and shall be considered for all purposes Company IP), subject to any licenses thereto granted to Client under this Agreement.

7. REPRESENTATIONS AND WARRANTIES.

7.1. Company. Company hereby disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement, and fitness for a particular purpose, as well as warranties related to third-party equipment, material, services, or software. Except as described in this Agreement, the Platform, Software, and Services are provided “as is,” to the fullest extent permitted by law. Company does not warrant that the Platform, Software, or Services will meet Client’s business requirements, or that the operation of the Platform, Software, or Services will be uninterrupted or error-free, or that defects in the Platform, Software, or Services will be corrected. Company similarly does not warrant or make any representations regarding the use or the results of the use of the Platform, Software, or Services in terms of their correctness, accuracy, reliability, or otherwise. Client further acknowledges that the prediction accuracy of models, algorithms, or other components of any AI-based or machine learning technology can never be guaranteed. Use or reliance upon the outcomes or calculations provided by the Platform, Software, or Services is strictly at Client’s own risk. In no event shall Company or its licensors, suppliers or agents have any liability whatsoever, whether express, implied or statutory, arising from Client’s use or reliance on any outcomes presented or otherwise calculated by the Platform or Services and the prediction accuracy of any models, algorithms, models, or other offerings in the Platform, Software, or Services. Furthermore, the Company specifically disclaims any liability or responsibility related to any legal requirements to periodically test or assess the Platform, Software, or Services for any impact on whether the Platform, Software, or Services contributes to unjustified or discriminatory differential treatment or disfavors people based on their actual or perceived race, color, ethnicity, sex, religion, age, national origin, language ability, disability, veteran status, genetic information, reproductive health, or any other classification protected under federal or state law. To the extent such disclaimer conflicts with applicable law, the scope and duration of any applicable warranty will be the minimum permitted under such law.

7.2. Client. Client represents and warrants to Company as follows: Client (a) is duly organized and in good standing under the laws of the jurisdiction of its organization; and (b) has all requisite power and authority (corporate or otherwise) to execute, deliver and perform its obligations under this Agreement. Client’s execution, delivery and performance of this Agreement (i) have been duly authorized by all necessary action on its part; and (ii) does not and will not: (A) violate, conflict with or result in the breach of any provision of its charter or by-laws (or similar organizational documents); or (B) conflict with, result in any breach of, constitute a default (or event which, with the giving of notice and/or lapse of time, would become a default) or require any consent under, or give any other entity any right to terminate, amend, accelerate, suspend, revoke or cancel, any other agreement to which it is a party or by which it is bound; (c) Client is the owner or valid licensee of all Client Data, or otherwise has all rights necessary to grant the rights, consents, and licenses granted under this Agreement without violating any third-party’s rights; (d) none of the use of Client Systems or Client Data will (i) require the licensing, disclosure or distribution to any other person of any software or Intellectual Property owned by Company; or (ii) otherwise impose any limitation, restriction or condition on the right or ability of Company, to license, disclose, distribute, reproduce or otherwise use any Company IP or Company Data; (e) the Client Systems and Company’s access thereto or collection of Client Data will not include any Virus or introduce any Virus into Company Systems.

8. INDEMNIFICATION.

8.1. Indemnification by Company. Company shall indemnify, defend and hold harmless Client, its Affiliates, and its and their respective officers, directors, shareholders, employees, agents, partners, licensees, successors and assigns (collectively, the “Client Indemnified Parties”) from and against any and all actions, suits, investigations, proceedings, liabilities, losses, claims, damages, obligations, demands, costs and expenses (including attorneys’ fees) (collectively, “Losses”), as incurred, arising out of or related to any third-party claim made at any time from the Effective Date of this Agreement, (a) that Company’s performance of the Services, Company’s delivery of the Platform, Software, or Services or other exercise of rights with respect thereto infringe, misappropriate or otherwise violate or conflict with Applicable Law (other than a claim for violation of any Data Privacy Law or law prohibiting discrimination) or any third party’s Intellectual Property Rights; or (b) to the extent arising from or relating to (i) any willful misconduct or intentional breach of this Agreement by Company or its Personnel; or (ii) any Security Incident. Without limiting any rights or remedies available to Client, Company shall indemnify, defend and hold harmless the Client Indemnified Parties from and against any and all Losses, and reimburse for any associated damages and costs, as incurred and whether or not based on a third-party claim, arising out of or related to a Security Incident or Company’s or its Personnel’s performance, non-performance, act, omission, default or negligence with respect to Company’s data protection and security related obligations under this Agreement (including any fines or penalties imposed by courts or regulators against Client or its Affiliates, costs related to notifying affected parties, attorneys’ fees and costs of litigation).

8.2. Indemnification by Client. Client shall indemnify, defend and hold harmless Company, its Affiliates, and its and their respective officers, directors, shareholders, employees, agents, partners, licensees, successors and assigns (the “Company Indemnified Parties”) from and against any and all Losses to the extent arising from or in connection with (i) a third-party claim that any Client Data or Client IP, as provided or made available or accessible by Client to Company for inclusion in the Platform, Software, or Services infringes, misappropriates or otherwise violates any third-party Intellectual Property Rights, where such claim would not have arisen but for such Client materials; (ii) any claim that Company’s receipt, possession, processing, or use of Client Data (including Personal Data) violates any Data Privacy Law; (iii) any claims, damages, charges of discrimination, demands, losses, liabilities, and causes of action, of any type, that any current, former, or prospective employee, consultant, or contractor, any Candidate, or any governmental agency, may raise or allege against Client, any Customer, or the Company that use of the Platform, Software, or Services (including any claim that a decision, act, or omission by Client or a Customer, or their respective Affiliates or Personnel was based in whole or in part on use of the Platform, Software, or Services) violates any federal, state, or local statutes, ordinances, or common laws, including without limitation any such law prohibiting discrimination on any basis whatsoever; or (iv) any breach by Client of any provision of this Agreement.

8.3. Limitation. Company shall not be required to indemnify Client from or against and Losses resulting from a claim by a Customer or Candidate against Client, unless such claim arises from the affirmative misconduct, malfeasance, or gross negligence of Company, or arises out of a Security Incident.

8.4. Procedure. The Party seeking indemnification under this Article (the “Indemnified Party”) shall give the other Party (the “Indemnitor”) prompt written notice of any Losses for which it seeks indemnification, but the Indemnified Party’s failure to provide timely notice will not relieve the Indemnitor of its indemnification obligations hereunder unless and only to the extent that such Indemnitor can demonstrate actual prejudice as a result of such failure. The Indemnitor shall, at its own expense, defend the Indemnified Party (including any of its other indemnitees under this Article) against all Losses, and the Indemnified Party, at its option and expense, may participate in such defense with its own legal counsel. If the Indemnitor fails to assume the defense of or otherwise diligently defend such Indemnified Parties against any such Losses, then the Indemnified Party may defend itself at the Indemnitor’s expense, and the Indemnitor shall assist in such defense at its own expense. The Indemnitor shall not settle, compromise or discharge, or admit any liability with respect to, any claim without the Indemnified Party’s prior written consent, unless such settlement, compromise or discharge (a) consists solely of monetary damages for which the Indemnitor is responsible hereunder; (b) contains a provision whereby the plaintiff or claimant waives and releases all claims and liabilities against the Indemnified Party (and any of its other indemnitees under this Article); and (c) does not otherwise admit liability of any nature on the part of an Indemnified Party or any of its other indemnitees under this Article.

8.5. Infringing Materials. If the Platform, Software, or Services, or any part thereof, are, or in Company’s reasonable opinion are, likely to be held by a court of competent jurisdiction to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or in the defense or settlement of any claim for which Company is obligated to indemnify any Client Indemnified Party, Company may, in its sole discretion, (a) replace any allegedly infringing or misappropriating Platform, Software, or Services or elements thereof with functionally equivalent, non-infringing, and non-misappropriating elements; (b) modify any allegedly infringing or misappropriating Platform, Software, or Services or elements thereof to render them functionally equivalent, non-infringing and non-misappropriating; (c) obtain a license to continue using, receiving and otherwise exercising rights in and to any allegedly infringing or misappropriating Platform, Software, or Services or elements thereof; or (d) cease offering the infringing Platform, Software, or Services or elements thereof without further liability to Client.

9. LIMITATIONS ON LIABILITY AND EXCEPTIONS.

9.1. Limitations on Liability. NEITHER PARTY NOR ITS AFFILIATES, NOR ITS OR THEIR PERSONNEL, PARTNERS, SHAREHOLDERS, SUCCESSORS OR ASSIGNS WILL HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE. COMPANY’S AGGREGATE LIABILITY TO CLIENT SHALL NOT EXCEED THE AMOUNTS, IF ANY, PAID TO COMPANY BY CLIENT IN THE PRECEDING 6 MONTHS.

9.2. Exceptions. SECTION 9.1 SHALL NOT APPLY WITH RESPECT TO INSTANCES OF WILLFUL MISCONDUCT OR INTENTIONAL BREACH OF THIS AGREEMENT OR CLIENT’S INDEMNIFICATION OBLIGATIONS. NOTHING IN THIS ARTICLE SHALL LIMIT OR EXCLUDE LIABILITY TO THE EXTENT SUCH LIABILITY CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.

10. TERM; TERMINATION.

10.1. Term. This Agreement is effective as of (unless otherwise set forth in the preamble of this Agreement) the Effective Date until terminated in accordance with this Agreement (the “Term”). Notwithstanding the foregoing, this Agreement will automatically terminate after the passage of 3 months during which Company is and has not provided Services and there are no active POs. Either party may terminate this Agreement for any reason with 30 days prior written notice to the other.

10.2. Termination for Breach. Either Party may terminate this Agreement, in whole or in part (including any affected PO(s)), immediately upon written notice to the other Party if such other Party breaches its obligations under this Agreement and (a) does not cure such breach within ten business days (excluding breaches for failure to pay) after receiving written notice from the non-breaching Party specifying the breach or (b) such breach is non-curable. Breaches for failure to pay must be cured within 7 days after receiving written notice of non-payment from the non-breaching Party specifying the undisputed amount owed.

10.3. Termination for Bankruptcy. Either Party may terminate this Agreement or any PO at any time by providing notice of termination to the other Party if that other Party (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. It is expressly acknowledged that a change of control of either Party shall not give rise to a right to terminate under this Section.

10.4. Effect of Termination.

(a) If a Party terminates a PO, it may simultaneously terminate any other PO the Parties previously identified in writing as being dependent on the terminated PO. (b) In the event of any termination of this Agreement or any PO, unless otherwise instructed by Client, Company shall cease all Services and provide to Client a final reconciliation for the applicable Services rendered through the date of termination (or any continued wind-down or similar period requested by Client). Upon termination of this Agreement or any PO, all licenses granted to Client shall immediately terminate and Client shall immediately cease use of the Platform, Software, and Services. The termination of this Agreement or any PO shall not relieve Client of any obligation to pay for Services rendered or used prior to the termination. (c) Any POs in effect as of the termination of this Agreement will continue in effect, and the terms of this Agreement will survive, without limitation, with respect to such PO, until the end of the term of such PO, unless earlier terminated.

10.5. Survival. Sections 10.5 (Survival) and Articles 3 (Payment), 4 (Confidential Information), 5 (Data Protection and Security), 6 (Intellectual Property), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitations on Liability and Exceptions), and 11 (General Provisions) survive any termination of this Agreement.

11. GENERAL PROVISIONS.

11.1. Notices. All notices described in or otherwise regarding this Agreement must be in writing and will be deemed to have been sufficiently given (a) upon receipt if delivered in person; (b) upon delivery if by an internationally-recognized mail service (e.g., FedEx), overnight courier, or certified or registered mail, postage pre-paid, return receipt requested; or (c) the date transmitted if by email (provided that notice via email will not be deemed effective if the sender receives a “failure to deliver” or similar notification from any mail delivery system or subsystem). All notices must be sent to the applicable Party at the addresses set forth on the first page of this Agreement.

11.2. Subcontractors. Company may retain one or more subcontractors and delegate to such subcontractors all or part of the obligations of Company under this Agreement or any PO, provided that Company shall at all times remain fully responsible for rendering Services to Client as required by this Agreement and any PO(s).

11.3. No Third-Party Beneficiaries. Except as stated otherwise in this Agreement, there are no third-party beneficiaries, actual or intended, under this Agreement. Without limiting the generality of the foregoing, the Parties expressly agree that no Candidate is intended to or shall be treated as a third party beneficiary of this Agreement.

11.4. Governing Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of Florida, without regard to its principles of conflicts of law. Any dispute arising out of this Agreement shall be resolved according to the procedures set forth in this Section, which shall constitute the sole dispute resolution mechanisms hereunder. The Parties agree to meet in person and/or telephonically to try in good faith to negotiate a resolution of any dispute. If the parties are unable to resolve any dispute(s) through such negotiation within 14 days, either party may commence litigation or arbitration. The parties agree that any dispute may be properly brought in the state or federal courts located in Miami-Dade County, Florida, and each party irrevocably waives any objection to the jurisdiction of such courts and agrees not to make any argument that a suit brough in such courts is brough in an improper or inconvenient venue.

11.5. Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the Parties.

11.6. Entire Agreement; Conflict; Amendment. This Agreement (including all Purchase Orders and attachments and all schedules and exhibits to this Agreement) constitutes the entire agreement, and supersedes any prior or contemporaneous agreements, statements, or shrink-wrap, click-wrap, browse-wrap or similar agreements, between the Parties with respect to its subject matter. Except as otherwise explicitly set forth in this Agreement, if a provision in a schedule or PO conflicts with any other provision in this Agreement, this Agreement governs to the extent of the conflict. Only those provisions of this Agreement that allow for modification by a schedule or PO may be modified by a schedule or PO. This Agreement may be amended or modified only by a written agreement duly signed by both Parties. Any purported amendment in contravention of this Section is void. Notwithstanding the foregoing, updates by Company to any policy, EULA, or similar document referenced herein or in any PO shall not be considered a modification of this Agreement or any PO and shall be binding on Client and its Personnel as applicable.

11.7. Construction. This Agreement shall be interpreted as if the Parties jointly prepared it. The descriptive headings in this Agreement are used solely for convenience and are not intended to affect its meaning or interpretation. The words “including,” “include,” and “includes” are not limiting and are to be read as if they were followed by the phrase “without limitation.” The term “person” means any natural individual or entity.

11.8. Independent Contractors. The Parties acknowledge that (a) Company is performing the Services as an independent contractor; (b) neither Company nor any of its Personnel is an agent, employee, affiliate, joint venturer or partner of Client or its Affiliates; (c) Company is responsible for any and all disputes involving its Personnel; and (d) Client is responsible for any and all disputes involving its Personnel. Except to the extent stated otherwise in this Agreement, neither Party may, has the power to, or may represent that it can, assume or create any obligation or liability on the other Party’s behalf.

11.9. Severability. If any provision of this Agreement is determined to be unenforceable by a governmental authority of competent jurisdiction, then that provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by Applicable Law) or disregarding it (if not). All other provisions of this Agreement are to remain in effect as written.

11.10. No Waiver. A Party’s failure to enforce any provisions of or rights deriving from this Agreement does not waive those provisions or rights, or that Party’s right to enforce those provisions or rights. Except to the extent stated otherwise in this Agreement, each Party’s rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity.