TERMS OF SERVICE

These Service Terms and Conditions (“Terms”) govern You the user’s (“You” or “User”) access and use of the application, website, content and services (collectively, the “Services”) provided by Transfix, Inc. (“Transfix”, “We”, “Us”, or “Our”). In using the Services, You agree to be bound by the Terms as set forth below. If You do not accept these Terms You may not access or use the Services. Transfix and You may also be referred to individually as a “Party” or together as the “Parties.”

You acknowledge and agree that Your use of Services, including but not limited through the website and mobile application (each an “Application”), to obtain or provide transportation services of commodities does not establish Transfix as a provider of such transportation services. Transfix is acting as a non-asset, logistic broker in arranging for transportation services of commodities, and is not and shall not be considered a transportation carrier as defined by the Federal Motor Carrier Safety Administration.

1. THE SERVICES

   In order to access the Services either through the website or mobile Application, you need to register for an account. Transfix provides shippers who are registered through the website access to a marketplace of carriers. Through the website and mobile Application, a shipper can track their shipments from pick-up to drop off and retrieve reporting and analytics to more efficiently move freight. Carriers through the website or mobile Application can view available shipments, receive upfront rate details and book shipments.

2. LICENSE TO USE THE SERVICES

   License. Subject to these Terms, Transfix grants You a limited, non-exclusive, non-sub-licensable, revocable, non-transferable license to access and use the Services through the Applications solely for internal uses as it relates to Your company’s shipping operations. Transfix reserves all rights not expressly granted in these Terms.

   License Restrictions. You shall not, and shall not permit any third party, to: (i) use or access the Service except as expressly permitted in these Terms; (ii) remove any copyright, trademark or other proprietary notices from any portion of the Services; (iii) decompile, disassemble, or reverse engineer the Services (unless this restriction is not permitted under applicable law); (iii) modify or create any derivative work of any part of the Services; (iv) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Services; or (v) attempt to gain unauthorized access to or impair any aspect of the Services, including the Applications and any related systems.

   Third Party Content. You agree that Transfix is not responsible or liable for, nor does Transfix endorse or guarantee the accuracy, integrity or quality of, any third-party websites or content which may become available or You may access in the course of using the Services. This includes any reliance upon or offense taken or caused by content, advertising, products or services accessed. You alone are responsible for the content of Your postings and any consequences of such postings.

   Ownership. Transfix shall retain all right, title and interest in and to the Services, including but not limited to the Applications, and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto, and all intellectual property rights therein. Nothing in these Terms confers upon You any right of ownership or interest in the Services, including but not limited to the Applications, or any intellectual -property rights therein.

3. YOUR CONTENT

   In these Terms “Content” means any information, data, text, messages or other material You display, submit or transmit through an Application or the Services. With respect to Your Content, You grant Transfix a non-limited, worldwide, non-exclusive, royalty-free and irrevocable license to use, reproduce, electronically distribute, publish, transmit, display, store, archive, and to modify and aggregate (in anonymized form) such Content.

   In addition, drivers will be asked to provide status updates as to the shipment and allow location data to be tracked from their mobile device when using the Services. This data can be collected through text messaging, the use of the mobile application or Our third party location service. For more information please refer to our Location Services Terms.

   You agree any Content You provide is Your own and does not infringe on any third party’s rights. Transfix reserves the right to remove any of Your Content from the Services at any time, and for any reason, without notice. You agree not to post or submit any Content that is obscene, illegal, defamatory, threatening, infringing of intellectual property rights, invasive of privacy or injurious in any way to Transfix, other users, or other third parties.

   Collection and use of Your personal information, including location data from your mobile device, in connection with the Services is described in the Transfix Privacy Policy.

4. COMMUNICATIONS

   By Your use the Services, You agree to receive communications from Transfix or one of our service providers, such as phone calls, emails, text messages and push notifications, which may be generated by an automatic telephone dialing system. These communications include, but are not limited to, informational messages regarding the Services, permissions requests, updates to and additional features to the Services or Application and promotional messages.

   You understand that Your consent to receive these communications is not a condition of purchasing any property, goods or services. You may opt-out of text message communications at any time by replying STOP. You will receive a final opt-out confirmation text. Message and Data Rates Apply. You may unsubscribe or opt out to email communications by clicking the opt out feature in the email itself and following the prompted instructions.

5. DISCLAIMER

   THE SERVICES ARE PROVIDED ON AN “AS IS” AND “ON AVAILABLE BASIS”. TRANSFIX MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER ACCOMPANYING MATERIAL NOT PROVIDED HEREUNDER. TRANSFIX SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.

6. LIMITATION OF LIABILITY

   IN NO EVENT WILL TRANSFIX, NOR ITS OFFICERS, DIRECTORS AND EMPLOYEES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO OR IN CONNECTION WITH THE USE OF THE SERVICES, REGARDLESS OF WHETHER TRANSFIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE. SOME JURISDICTIONS RESTRICT OR PROHIBIT THE LIMITATION OF LIABILITY AND SO THIS PROVISION MAY NOT APPLY TO YOU.

7. INDEMNIFICATION

   You shall indemnify, defend and hold Transfix, its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liability, costs (including without limitation reasonable attorney’s fees) and expenses arising out of or in connection with (i) Your use of the Services or any accompanying material, including but not limited to any actions or omission taken by You in reliance on any information contained in the Services or any third party content accessed through the Services, (ii) any claims, suits or actions by a third related to or arising out of Your use of the Services; or (iii) Your violation or breach of these Terms.

8. GOVERNING LAW

   These Terms shall be governed by and interpreted in accordance with the laws of the State of New York without giving effect to its conflicts of law rules. Each of the Parties to these Terms consents to the exclusive jurisdiction and venue of the state and federal courts located in New York.

9. MODIFICATIONS TO SERVICES

   Transfix reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Transfix shall not be liable to You or any third party for any modification, suspension or discontinuance of the Services.

10. AMENDMENTS TO TERMS

    Transfix reserves the right, at any time, to modify, amend or update these Terms without notice. Your continued use and access to the Services after such amendment confirms Your consent to be bound by the Terms, as amended.

11. MISCELLANEOUS

    These Terms, including any legal notices and disclaimers contained on the Applications, constitute the entire agreement between You and Transfix with respect to Your use and access to the Services. You may not assign these Terms without the prior written approval of Transfix. Transfix may assign these Terms, without notice or consent required. These Terms do not create or imply any partnership, agency, joint venture or formal business entity of any kind. Failure by Transfix to enforce a right or provision in these Terms does not constitute a waiver of such right or remedy. If any provision of these Terms is held invalid or unenforceable, such term shall be replaced or stricken, and the remaining provisions of these Terms will remain in full force and effect.

Text Messaging

These Terms and Conditions (“Terms”) govern the text messaging program (the “Program”) provided by Transfix, Inc. (“Transfix”, “We”, “Us”, or “Our”) to send You alerts and messages (a) to search and book loads through Our platform and (b) regarding our other offerings, promotions, programs and services. By opting in to the Program, You expressly consent to receive SMS, MMS, RCS, or other texts or native mobile messages (either marketing or non-marketing) (collectively, “text messages”) through the Program sent via automatic telephone dialing systems from Transfix to the mobile telephone number you provide or use to opt-in. You accept and agree to be bound by these terms, the Website and our Privacy Policy, as well as any other applicable terms and agreements related to your use of Transfix services.

You understand that your consent to receive text messages is not a condition of purchasing any property, goods or services. You may opt-out of these communications at any time by replying STOP. You will receive a final opt-out confirmation text. Message and Data Rates Apply.

1. Program Information

   Transfix and its service providers may use an automatic telephone dialing system to send You text messages. These Program text messages are to provide you information and alerts regarding (a) available loads to book through the Transfix website or mobile application; and (b) other offerings, promotions, programs and services We may offer from time to time.

   The number of text messages you receive will vary based on Your response to the Our text messages. The number of text messages vary based on (a) how many loads are available for booking that week and which loads Transfix feels You would be interested in and (b) the number of other offerings, promotions, programs and services that We may offer from time to time.

   Transfix reserves the right to suspend, modify or terminate your receipt of text messages and participation in the Program.

2. How Do You Opt In?

   To opt into the Program and receive messages and alerts on your phone You can sign up online by providing Your mobile telephone number and consenting to Your participation in the Program. When you sign up online You will receive a confirmation text from Transfix confirming your consent to participate in the Program. Your return text to Transfix acts as Your consent to participate in the Program under these Terms.

3. How Do You Opt Out?

   To stop receiving text messages, text the word “STOP” to the number You are receiving text messages from. You will then receive a confirmation text of Your opt-out of the Program. If You wish to reenter the Program and receive alerts and text message notifications You must text START to the number 347-644-2858 to re-activate your enrollment in the Program and allow Transfix to send You text messages to Your mobile telephone.

4. Messaging Rates and Carriers

   You represent that You are the account holder for the mobile telephone number that You provide to Transfix and consent to participation in the Program. You must notify Transfix immediately if You change Your mobile telephone number by emailing Transfix at operations@transfix.io.

   Message and data rates may apply to each text message sent or received in connection with the Program. Look to Your telephone service rate plan provided by your mobile telephone carrier, for further details on pricing. Text messages may be subject to roaming charges. Transfix does not charge a separate fee for Program text messages.

   The following mobile telephone carriers are currently supported by the Program: This list is subject to change.

5. How to Contact Customer Service

   To request more information about the Program, text HELP to the number from which the text messages are being received, You may also contact Transfix by emailing the following email address operations@transfix.io with “Text Messaging Program-Help” in the subject line or calling 929-293-0380.

6. Notices and Legal Disclaimers

   You agree that Transfix may communicate with You regarding these Terms and the Program via e-mail, mail, telephone call or text message (as provided by You) or through Our website (transfix.io). Transfix will issue any notices to You via email, mail, telephone or Our website, and You agree that all such notices shall have legal effect.

   You agree to indemnify, defend and hold Transfix harmless against any and all claims, expenses and damage related to or caused in whole or in part by Your failure to notify Transfix if You change Your number, or provide consent for a mobile telephone number that is not Yours.

   THE PROGRAM IS PROVIDED ON AN “AS IS” AND “ON AVAILABLE BASIS”. TRANSFIX MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROGRAM, OR ANY OTHER ACCOMPANYING MATERIAL NOT PROVIDED HEREUNDER.

   WE ARE NOT RESPONSIBLE FOR CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OR OMISSIONS OF OTHERS, NETWORK OUTAGES OR ACTS OF GOD. WE DO NOT PROMISE ERROR-FREE SERVICE.

   Transfix and its respective officers, directors and employees are not responsible and shall not be liable for any loss, damages or injuries of any kind resulting, directly or indirectly, from the Program or any text message sent by Transfix or its service providers, or from any technical failures or delays of any kind.

   We are not responsible and will not be liable for any incidental, special or consequential damages (such as lost profits or lost business opportunities), punitive damages or attorney’s fees arising from or related to these Terms or the Program. Some states do not permit the limitation or exclusion of remedies and so the immediately preceding sentence may not apply to You.

   These Terms represent the entire agreement of the parties with respect to its subject matter.

7. Applicable Law

   Except as otherwise provided herein, your use of text message services under these Terms is governed by the laws of the State of York, without regard to its choice of law principles.

Location Service Terms

These Location Services Terms and Conditions (“Location Service Terms”) govern the location services (the “Location Services”) provided by Transfix, Inc. and our third party service providers (collectively, “Transfix”, “We”, “Us”, or “Our”) and are subject to Our General Service Terms and Conditions (including without limitation choice of law and jurisdiction provisions). The Location Services are intended to be utilized by the drivers assigned by the contracted carrier to move a shipment, and must be agreed to and accepted by both the driver and the contracted carrier (the driver and carrier will be referred to collectively as “You” or “Your”). The Location Services allow Transfix and its customers to track the location of shipments arranged through the Transfix Services (as defined in the General Service Terms and Conditions).

The Location Services are provided either (a) through the Transfix mobile application (“Application”) by enabling the Location Services feature in the Application on Your mobile device or (b) by Your opting-in to the Location Services through a text message sent to Your mobile device permitting the tracking of Your location using Your mobile device and Our third party service providers. Any use of the Application is subject to the General Service Terms and Conditions.

NOTE: YOU SHOULD NOT OPERATE OR COMMUNICATE USING YOUR MOBILE DEVICE OR MOBILE APPLICATION WHILE YOU ARE DRIVING OR OPERATING YOUR VEHICLE. THE LOCATION SERVICES ARE PERMITTED FOR USE ONLY BY LICENSED COMMERCIAL DRIVERS OVER THE AGE OF EIGHTEEN.

If You are an AT&T Wireless Customer, the following pertains to your use of the Location Services.

You authorize your Wireless carrier to disclose Your device location information with Us and other companies with whom We work in order to provide the Location Services. Your device location will be used to offer load tracking and ETA information to the product shipper, broker and/or carrier for the duration of the load shipment. Your consent will be valid for the duration of the shipment or until you revoke it. You may revoke Your consent by texting “STOP” to 84787, by calling 1-646-844-2200, or by contacting your wireless carrier. Your device location information is Customer Proprietary Network Information (CPNI), which is information about Your telecommunications service. It is Your right and your carrier’s duty to protect Your CPNI. Your decision will not affect Your current wireless service. However, if We are unable to use Your CPNI for this purpose, this may impact Transfix’s ability to offer the Location Services, including load tracking and ETA information.

1. Location Services Information

   When You use the Location Services, We request Your permission to continuously track and obtain Your geographical location based on the geographical location of Your mobile phone. This tracking is done by obtaining Your approximate latitude and longitude coordinates from Your wireless service provider at various points during the shipment (“Location Data”). We use such Location Data to track shipments, provide shipment updates to Our customers and further perform the Services as set out in the General Service Terms and Conditions.

   When You are booked for the delivery of a shipment by a carrier using Our Services, Your dispatcher or owner/operator agrees to use of these Location Services for tracking of that shipment. It is the responsibility of Your dispatcher or owner/operator to alert You as to the requirements for Your opting-in to the Location Services on Your mobile device. It is Your choice not to provide Your opt-in or consent.

2. How Do You Opt In?

   You can opt into the Location Services in one of two ways:

   If You download the Transfix mobile application You will be prompted to provide consent and enable Location Services in order for Transfix to track the location of Your mobile device. This tracking remains on until You opt-out as noted below; or

   You can consent to Location Services through Our third-party service provider via a text message sent to Your mobile phone. If You consent through this method, when You are booked on a shipment You will receive the following text message (“Opt-in Message”) requesting Your consent to be located for that shipment:“To opt-in for Phone Location Sharing reply YES. Reply HELP for help. Reply STOP to cancel. Msg&Data Rates may apply. 3msg/mo. Terms: goo.gl/WLASvT”If You reply YES to this message, Your mobile phone will be tracked for the duration of the shipment.

3. How Do You Opt Out?

   To stop Location Services through the Transfix mobile application You can turn off the Location Services feature on Your mobile device or uninstall the mobile application. The Location Services will remain on until You turn them off.

   If You consent to Location Services by responding Yes to the Opt-in Message, We will track Your geographical location for a limited time starting when provide Your consent until confirmation that the shipment has been delivered. You will not be located after the completion of the shipment unless You are booked on another shipment through the Services and provide Your consent to be located at such time.

   You can also opt-out at any time by texting the word “STOP” to 84787 or calling 646-844-2200.

   Please note that disabling location access or refusing the Location Services will limit Your or other user’s (including Your carrier) use of the Services or prevent Transfix’s ability to perform the Services.

4. Data Security

   Your privacy is important to Us. We take appropriate measures to protect Your privacy, including using only secure HTTPS communication with SSL Encryption to obtain Your Location Data. All Location Data is securely stored using technology and security features that are designed to safeguard the privacy of Your location information, including: (1) maintaining and protecting the security of computer storage and network equipment; (2) security procedures that require user names and passwords to access sensitive data; (3) applying encryption or other appropriate security controls to protect location information when stored or transmitted by Us; and (4) limiting access to location information to only those with jobs requiring such access. However, We cannot guarantee that any particular wireless transmission or computer system is 100% safe from outside attacks.

5. Sharing And Storing Your Location

   When the Location Services are activated for Your mobile phone, Your current location will be used by Transfix to track shipments, provide Our customers tracking updates with the city/state or zip code location of the shipment, for any claims and billing inquires and other purposes described in these Location Service Terms. Your Location Data will be stored for forty-five (45) days after completion of the shipment. If there is a claim or a dispute over billing during said 45-day period, We will retain and use Your Location Data to aid in resolving these issues. After the final resolution of such matter, Your exact latitude and longitude Location Data will be deleted from the system, unless We are required to retain such Location Data by law or court or administrative order. Notwithstanding the foregoing, We may retain Location Data for an indefinite period in an aggregated and/or in anonymized form and in accordance with Our Privacy Policy.

   We will use Your Location Data to determine the ETA and status of the shipment being transported throughout the shipment’s delivery term. We will provide the general location information (city/ state or zip code) of the shipment to the customer of Our services that arranged that shipment. Your Location Data may also be used to help resolve claims or disputes about the shipment as described in the paragraph above. Your Location Data will not be shared with any other parties or used for any other purpose than as specified in these Location Service Terms or as further specified the Privacy Policy, except to (a) third party service providers that We retain to assist in providing the Location Services or the Services; (b) where required by law or court or administrative order or in response to legal process (such as a subpoena) and (c) to enforce these Location Service Terms. We may also disclose or use Location Data in an aggregated and/or anonymized form for research, product development and marketing purposes.

6. Messaging Rates And Carriers

   You represent that You are the account holder for the mobile device that You consent to participate in the Location Services and that You have the legal capacity to provide such consent and agree to these Location Service Terms.

   Message and data rates may apply to Your use of the Location Services and to each text message sent or received in connection with the Location Services. Look to Your telephone service rate plan provided by Your mobile telephone carrier, for further details on pricing. Text messages and data may be subject to roaming charges. Transfix does not charge a separate fee for messaging or data associated with the Location Services.

7. How to Contact Customer Service

   To request more information about the Location Services, text HELP to 84787. You may also contact Transfix by emailing the following email address operations@transfix.io with “Location Services-Help” in the subject line or calling 646-844-2200.

   Important Message about Your Cellular Provider (AT&T, Sprint, T-Mobile, Verizon Wireless and others).

   This Location Services are not provided Your cellular provider (“Cellular Provider”). If You use the Transfix mobile application, it may require Your Cellular Provider to disclose Your customer information, including Mobile Phone Location Information, to Transfix and its third party service providers. By providing Your consent, You authorize Your Cellular Provider to disclose Your information to such third parties to enable this application. Check the Transfix application’s General Service Terms and Conditions and policies available at www.transfix.io for more information about how the application will collect, access, use or disclose Your information. If You are not comfortable with the application’s policies, don\t use the Transfix application. You acknowledge and agree that (1) Your relationship with the Transfix is separate from Your relationship with Your Cellular Provider; (2) Your Cellular Provider is not responsible for the Transfix application; and (3) You will hold harmless Your Cellular Provider and its subsidiaries, affiliates, officers, employees, agents, successors and assigns from any judgments, claims, actions, losses, liabilities or expenses arising from or attributable to the Transfix application or the acts or omissions of Transfix or its third party service providers.

8. Notices and Legal Disclaimers

   You agree that Transfix may communicate with You regarding these Location Service Terms and the Location Services via e-mail, mail, telephone call or text message (as provided by You) or through Our website (transfix.io). Transfix will issue any notices to You via email, mail, telephone or Our website, and You agree that all such notices shall have legal effect.

   You agree to indemnify, defend and hold Transfix harmless against any and all claims, expenses and damage related to or caused in whole or in part by Your use of the Location Services, including without limitation, any bodily injuries, property damage or death resulting from Your driving of a vehicle or making of a shipment while using Location Services, except to the extent caused by Transfix’s gross negligence or intentional misconduct.

   LOCATION SERVICES ARE PROVIDED ON AN “AS IS” AND “ON AVAILABLE BASIS”. TRANSFIX MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO SUCH SERVICES, OR ANY OTHER ACCOMPANYING MATERIAL. AND DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

   WE ARE NOT RESPONSIBLE FOR CIRCUMSTANCES BEYOND OUR CONTROL, INCLUDING, WITHOUT LIMITATION, ACTS OR OMISSIONS OF OTHERS, NETWORK OUTAGES OR ACTS OF GOD. WE DO NOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE.

   Except in cases of Transfix’s gross negligence or intentional misconduct, Transfix and its respective officers, directors and employees are not responsible and shall not be liable for any loss, damages or injuries of any kind resulting, directly or indirectly, from the Location Services or any text message sent by Transfix or its service providers, or from any technical failures or delays of any kind, including without limitation, any bodily injury, property damage or death resulting from Your driving of a vehicle or making of a shipment while using Location Services.

   We are not responsible and will not be liable for any incidental, special or consequential damages (such as lost profits or lost business opportunities), punitive damages or attorney’s fees arising from or related to these Location Service Terms or the Location Services. Some states do not permit the limitation or exclusion of remedies and so the immediately preceding sentence may not apply to You.

   These Location Service Terms represent the entire agreement of the parties with respect to the Location Services, provided any use of the Transfix mobile application will be subject to the General Service Terms and Conditions.

9. Applicable Law

   Except as otherwise provided herein, Your use of the Location Services under these Location Service Terms is governed by the laws of the State of York, without regard to its choice of law principles.

Transfix TMS

1. LICENSED PRODUCT

   Throughout the Term, as defined in the order (the “Order”), Transfix, Inc. (the “Vendor”) shall, in accordance with all Terms and Conditions as set forth herein and the Order, provide to Customer TMS by Transfix Platform (the “Licensed Products”), as defined in the Order.

2. LICENSE GRANT

   A) Upon execution of the Order, subject to the Terms and Conditions and of the Order, Vendor grants, Customer a limited, non-exclusive, revocable license to use the Licensed Products. Customer shall be defined the party and its subsidiaries and affiliates that directly or indirectly (i) own or control, (ii) are owned by or controlled by or (iii) are under common ownership or control utilizing the Vendor’s products.

   B) Customer shall use the Licensed Products solely for the purposes set forth in the Order and shall not (i) modify, translate, copy or create derivative works based on the Licensed Products, or any element of thereof, (ii) create Internet “links” to or from the Licensed Products, or “frame” or “mirror” any content forming a part of thereof, other than on Customer’s own intranets, (iii) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code,
   non-public APIs or underlying ideas or algorithms of the Licensed Products in whole or in part, except as and only to the extent this restriction is prohibited by law, (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or
   otherwise commercially exploit or make the Licensed Products available to any third party, Users as contemplated by the Order, without the prior written consent of Vendor, (v) use the Licensed Products to send or store material containing software
   viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs, (vi) interfere with or disrupt the integrity or performance of the Platform or the data contained therein or block or disrupt any use or enjoyment of the
   Licensed Products by any third party, (vii) attempt to gain unauthorized access to the Licensed Products or its related systems or networks or (viii) remove or obscure any copyright, trademark or other proprietary notices, legends or labels contained in the
   Licensed Products.

3. OWNERSHIP

   Customer acknowledges and agrees that Vendor shall at all times own the right to the Licensed Products and all other intellectual property rights set forth herein, and in no event does Vendor grant any other right expressed or implied.

4. MUTUAL NONDISCLOSURE

   A) Pursuant to these Terms and Conditions and the Order, each party may, from time to time, furnish the other party with certain Confidential Information. Confidential Information means any information or data of a confidential or proprietary nature to a party, that is not generally known to the public, whether in tangible or intangible form, whenever and however disclosed. The parties agree to hold each other’s Confidential Information in strict trust and confidence and not to disclose or otherwise disseminate such information to any nonparty person or entity, except the parties’ respective employees, agents, representatives, advisors, and counsel who are on a “need to know” basis and who agree to be bound by the obligations of confidentiality set forth herein (“Representatives”). Each party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its Representatives in violation of these Terms and Conditions and shall be liable for any such violation on the part of its Representatives. Each party shall retain ownership of any and all Confidential Information it discloses to the other party. The disclosure of discloser’s Confidential Information does not grant to the recipient any license or rights to any trade secrets or under any patents or copyrights, except as expressly provided by the licenses granted in these Terms and Conditions.

   B) The obligations of recipient with respect to any particular portion of Confidential Information shall terminate or shall not attach, as the case may be, when such information:
         I) was in the public domain at the time of Discloser’s communication thereof to recipient;
         II) entered the public domain through no fault of recipient subsequent to the time of discloser’s communication
   thereof to recipient;
       III) was in Recipient’s possession free of any obligation of confidence at the time of discloser’s communication
   thereof to recipient;
       IV) was independently developed by recipient as demonstrated by written records; or,
        V) is required to be disclosed by court or government order and discloser has been given notice of such order.

5. WARRANTIES

   Each party warrants that (i) it possesses all rights and interests necessary to enter into these Terms and Conditions and Order; and (ii) it shall perform all obligations under these Terms and Conditions and Order, in material compliance with all applicable federal, state, and local laws, rules and regulations (collectively “Laws”). In addition, Vendor extends the following warranties: WARRANTY EXCLUSIONS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITOINS AND ORDER, NEITHER PARTY MAKES, AND EACH EXPRESSLY DISCLAIMS, ANY WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

6. EXCLUSIVE REMEDIES AND LIMITATION OF LIABILITY

   For any breach of warranties contained in Section 3 of this Article, Customer’s exclusive remedy and Vendor’s entire liability shall be as follows:

   A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY LEGAL THEORY, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. FURTHER, EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS IN A GIVEN CALENDAR YEAR SHALL IN ANY CIRCUMSTANCES BE SUBJECT AND LIMITED TO AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER WITHIN THE SAME CALENDAR YEAR THE CLAIM AROSE. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS, GROSS NEGLIGENCE, VIOLATION OF LAW, WILLFUL MISCONDUCT, OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, DAMAGES FOR BODILY INJURY (INCLUDING DEATH), FRAUD, AND DAMAGE TO REAL PROPERTY AND TANGIBLE PERSONAL PROPERTY OR WITH RESPECT TO A BREACH OF THESE TERMS AND CONDITIONS.

   B) Except for actions for non-payment or breach of Vendor’s intellectual property rights, no action (regardless of form) arising out of these Terms and Conditions and Order, may be commenced by either party more than two (2) years after the cause of action reasonably should have been known to the aggrieved party and upon the expiration of such timeframe, any such claim and all respective rights related to the claim lapse.

   C) In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached the Terms and Conditions and Order, for any failure or delay in fulfilling or performing any term of the Terms and Conditions and Order, when and to the extent such failure or delay is caused by any circumstances (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date Effective Date, as defined in the Order, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition, any complete or partial government shutdown, any national or regional shortage of adequate power, telecommunications or transportation, or interruption of service, in each case, beyond such party’s reasonable control.

7. INDEMNITY

   Customer, its affiliates, and their respective officers, directors, employees, and agents agrees to defend, indemnify, and hold harmless, at its own expense, Vendor and its shareholders, officers, directors, employees, agents, and representatives (the “Indemnified Parties”) from and against any and all, claims by any third party for injury to person, including death, or damage to property arising out of or resulting from (i) the negligence or willful misconduct of Customer or (ii) any violation of laws by Customer, except to the extent such claim arises out of or relates to any negligent or willful act or omission or violation of law by Vendor.

8. PAYMENT

   A) RATES AND CHARGES: Vendor shall charge Customer the fees set forth in the Order for the Licensed Products. Customer shall make payment to Vendor, with no right to setoff, within thirty (30) days of receipt of invoice. Vendor reserves the right to modify its fees with respect to the Licensed Product and to introduce new fees to become effective upon the renewal of a term of the Order by providing Customer written notice at least forty-five (45) days prior to the end of the then current Service Term and Customer may accept such charges or terminate the Order. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

   B) TAXES: Vendor is not liable for any taxes, other than taxes of Vendor’s net income. All taxes relating to the Order shall be invoiced by Vendor to Customer and will be subject to the payment terms in Section 5(a).  In the event Client represents that it is not liable for taxes, and such taxes are assessed, Client shall be liable for payment of the tax and any interest and penalties on such unpaid amounts.

9. TERMINATION

   If either party materially breaches these Terms and Conditions and Order, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within thirty (30) days of the notice, the other party may terminate the Order. If such default is incapable of cure, the other party may terminate the Order immediately upon written notice of its desire to terminate. Vendor may terminate the Order without cause at any time, by providing Client with thirty (30) days prior written notice. Confidentiality obligations shall survive termination of the Order.

10. WAIVER

    The waiver of one breach hereunder shall not constitute the waiver of any other or subsequent breach. No amendments, modifications or supplements to these Terms and Conditions and Order shall be binding unless in writing and signed by the parties.

11. NOTICES

    All notices shall be in writing and shall be sufficiently given if: (i) delivered by nationally recognized overnight courier with a signed receipt; or (ii) sent by registered or certified mail, postage prepaid, return receipt requested, to the respective addresses of the parties noted herein or such other address as shall be furnished from time to time in writing by either party pursuant to this provision. To expedite order processing, Client agrees that Vendor may treat documents e-mailed by Client to Vendor as original documents. However, either party may require the other to exchange original signed documents.

12. GOVERNING LAW

    The parties agree that these Terms and Conditions and Order shall be for all purposes be governed and construed solely under the laws of the State of New York regardless of its conflict of law statutes.,. The parties agree to the sole venue and jurisdiction of the State and Federal Courts, as applicable, found in New York County, New York, USA (Manhattan) and submit thereto, and waive all objections and defenses thereto, including that of inconvenient forum. No action arising out of these Terms and Conditions and Order, regardless of form, may be brought more than one (1) year after the claiming party knew or should have known of the cause of action. The parties agree to waive their rights to a trial by jury to the fullest extent allowed under applicable law.

13. ASSIGNMENT

    Customer may not assign, delegate, pledge, or otherwise transfer its rights or obligations under these Terms and Conditions or the Order, Vendor’s Confidential Information, to any third party, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation without the consent of Vendor, such consent shall not be unreasonably withheld, conditioned or delayed.

14. PUBLICITY RIGHTS

    Customer may not identify Vendor as a customer or client, or reference Vendor’s trade name, trademark, trade dress, service mark or any intellectual property in any press release, advertising or promotional materials in any media whatsoever, or represent that any product or service has been endorsed or approved by the other party, without Vendor’s prior written consent.

15. INSURANCE

    During the Term of the Order, Customer agrees to maintain in effect the following minimum levels of insurance coverage:

    A) Commercial General liability insurance in the amount of one million dollars ($1,000,000) per occurrence for bodily injury, including death, and property damage and including contractual liability, products, completed operations, and independent contractor coverage.

    B) Network/Cyber Risk Liability insurance with limits of not less than $2,000,000 per occurrence and in the aggregate. Coverage shall apply to third party claims to protect Vendor, theft of Vendor’s property to include data, media of any type, lost or corrupted data and shall apply to both online and offline applications.

    C) All insurance required to be procured and maintained by Client shall be written by an admitted insurance company (or companies) licensed to write insurance in the jurisdiction(s) where Vendor’s operations are located and conducted of good financial standing and shall be primary and non-contributory to any insurance held by Vendor.  Client shall assure that Vendor is named by endorsement as an additional insured to the extent of its interests in these Terms and Conditions and Order.  Client shall have sole responsibility for the payment of all premiums and deductibles on all insurance it holds.