Terms of Service

This Terms of Service Agreement together with its Exhibits (the “Agreement”) is entered into by and between the entity set forth below (the “Provider”) and the entity or person placing an order for or accessing any Services (the “Customer”). The Agreement consists of the terms and conditions set forth below, any attachments or exhibits identified below and all Order Forms (as defined below) that reference this Agreement.

The "Effective Date" of this Agreement is the date which is the earlier of (a) Customer's initial access to any Services (as defined below) or (b) the effective date of the first Order Form referencing this Agreement.

If the Customer's company address set forth on the Order Form or otherwise provided by Customer is in the United States or Canada, the Provider is FaceUp Technology Inc. headquartered at 70 Carolina ST, Charleston, South Carolina, 29403, the United States of America. If the Customer's company address set forth on the Order Form or otherwise provided by Customer is elsewhere, the Provider is FaceUp Technology s.r.o with registered address at Jiráskova 222/18, Brno, 602 00, Czech Republic.

1. Definitions

Other than the terms defined in the body of this Agreement, these terms have the following meaning

“Affiliate” means any entity under the control of a Party where “control” means ownership of or the right to direct greater than 50% of the voting securities of such entity.

“Beta Offerings“ mean pre-release services, features, or functions identified as alpha, beta, preview, early access, or words or phrases with similar meanings.

“Code” means certain relevant source code with its derivatives, software development kits (SDKs) or other code provided by the Provider for deployment on Customer Properties.

“Contractor” means an independent contractor or consultant of the Customer who is not a competitor of the Provider.

“Customer Data” means any data of any type that is submitted to the Services by or on behalf of the Customer, including without limitation data submitted, uploaded, or imported to the Services by the Customer (including from Third-Party Platforms).

“Customer Properties” mean Customer's websites, servers, apps, or other offerings owned and operated by (or for the benefit of) Customer through which Customer uses the Services.

“Dashboard” means Provider's user interface for accessing and administering the Services that Customer may access via the web or the Apps.

“DPA” means the data processing addendum available at faceup.com/en/data-processing-addendum.

“Documentation” means the technical user documentation provided with the Services.

“Feedback” means comments, questions, suggestions, or other feedback relating to the Services, but excluding any Customer Data.

“Informer” means a person using the Services to file a report to the Customer (e.g., whistleblower).

“Initial Term” means a set term designated in an Order Form during which the Services are provided to the Customer.

“Intellectual Property Rights” include all valid patents, trademarks, copyrights, trade secrets, moral rights, feedback, and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, and all improvements to any of the foregoing, regardless of whether any of such rights arise under the laws of any state, country, or other jurisdiction.

“Laws” mean all applicable local, state, federal, and international laws, regulations, and conventions.

“Order Form” means a written or electronic form to order the Services referencing this Agreement. Upon execution by the authorized parties each Order Form will be subject to the terms and conditions of this Agreement.

“Party” means either The Provider or the Customer; the “Parties” both The Provider and the Customer.

“Permitted User” means an employee or a Contractor of the Customer or its Affiliate who is authorized to access the Services as an administrator.

“Renewal Term” means successive periods equal to Initial Term, beginning after the then-current Subscription Term.

“Sensitive Personal Information” means any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”), if applicable; or (iii) any other personal data of an EU citizen deemed to be in a “special category” (as identified in the EU General Data Protection Regulation or any successor Laws).

“Services” mean the Provider's proprietary software-as-a-service solution, including all products, services, and software provided by the Provider to the Customer.

“Subscription Term” means either the Initial Term or then-current Renewal Term.

“Support” means standard technical support and maintenance as further set forth under the Service Level Agreement attached to the Order Form (if applicable).

“Taxes” mean any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of the Provider.

“Third-Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by the Provider that are integrated with or otherwise accessible through the Services.

2. Provider Services

2.1. Provision of Services. The Services are provided on a subscription basis for a Subscription Term. The Customer will purchase, and the Provider will provide the Services identified and agreed upon in the applicable Order Form.

2.2. Access to Services. The Customer may access and use the Services solely for its own benefit and in accordance with the terms and conditions of this Agreement, the Documentation, and any scope of use restrictions designated in the applicable Order Form. Use of and access to the Services is permitted only by Permitted Users. If Customer is given API keys or passwords to access the Services on the Provider's systems, the Customer will require that all Permitted Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons, and may not be shared. If the Customer is accessing the Services using credentials provided by a third party (e.g., Google), then the Customer will comply with all applicable terms and conditions of such third-party regarding provisioning and use of such credentials. The Customer will be responsible for all actions taken using Customer's accounts and passwords. If a Permitted User who has access to a user ID is no longer an employee or Contractor of the Customer, then the Customer will promptly delete such user ID and otherwise terminate such Permitted User's access to the Services. For the avoidance of doubt, an Informer is not a Permitted User and the Customer has no obligation to remove access.

2.3. Contractors and Affiliates. The Customer may permit its Affiliates and Contractors to serve as Permitted Users, provided the Customer remains responsible for compliance by such individuals with all the terms and conditions of this Agreement, and all use of the Services by such individuals is for the sole benefit of the Customer.

2.4. General Restrictions. The Customer will not (and will not permit any third party to): (a) rent, lease, provide access to, or sublicense the Services to a third party; (b) use the Services to provide, or incorporate the Services into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Services, except to the extent expressly permitted by applicable law (and then only upon advance notice to The Provider); (d) copy or modify the Services or any Documentation, or create any derivative work from any of the foregoing; (e) remove or obscure any proprietary or other notices contained in the Services (notices on any reports or data printed from the Services); or (f) publicly disseminate information regarding the performance of the Services.

2.5. Provider APIs. If the Provider makes access to any APIs available as part of the Services, the Provider may monitor the Customer's usage of such APIs and limit the number of calls or requests Customer may make if the Provider believes that the Customer's usage is in breach of this Agreement or may negatively affect the security, operability or integrity of the Services (or otherwise impose liability on the Provider).

2.6. Apps. To the extent the Provider provides applications for use with the Services (the “Apps“), subject to all the terms and conditions of this Agreement, the Provider grants to the Customer a limited, non-transferable, non-sublicensable, non-exclusive license only during an applicable Subscription Term to use the object code form of the Apps internally, but only in connection with the Customer's use of the Services and otherwise in accordance with the Documentation and this Agreement.

2.7. Deployment of the Code. Subject to all the terms and conditions of this Agreement, the Provider grants to the Customer a limited, non-transferable, non-sublicensable, non-exclusive license only during an applicable Subscription Term to copy the Code in the form provided by the Provider on Customer Properties solely to support the Customer's use of the Services and otherwise in accordance with the Documentation and this Agreement. The Customer must implement the Code on the Customer Properties to enable features of the Services. The Customer will implement all the Code in strict accordance with the Documentation and other instructions provided by the Provider. The Customer acknowledges that any changes made to the Customer Properties after initial implementation of the Code may cause the Services to cease working or function improperly and that the Provider will have no responsibility for the impact of any such change.

2.8. Trial Subscriptions. If the Customer receives free access or a trial or evaluation subscription to the Services (a “Trial Subscription”), then the Customer may use the Services in accordance with the terms and conditions of this Agreement for a period of fourteen (14) days or such other period granted by the Provider (the “Trial Period”). Trial Subscriptions are permitted solely for the Customer's use to determine whether to purchase a paid subscription to the Services. Trial Subscriptions may not include all functionality and features accessible as part of a paid Subscription Term. If the Customer does not enter into a paid Subscription Term, this Agreement and the Customer's right to access and use the Services will terminate at the end of the Trial Period. The Provider has the right to terminate a Trial Subscription at any time for any reason. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE PROVIDER WILL HAVE NO WARRANTY, LIABILITY, INDEMNITY, SUPPORT, OR OTHER OBLIGATIONS WITH RESPECT TO TRIAL SUBSCRIPTIONS.

2.9. Beta Offering. From time to time, the Provider may make Beta Offerings available to the Customer at no charge. The Customer may elect to try such Beta Offering in its sole discretion. Beta Offerings are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Offerings are not considered “Services” under this Agreement; however, all restrictions, our ownership and the Customer obligations concerning the Services shall apply. Unless otherwise stated or communicated to the Customer, any Beta Offerings trial period will expire upon the date that a version of the Beta Offerings becomes generally available without the applicable Beta Offerings designation. The Provider may discontinue Beta Offerings at any time in its sole discretion and may never make them generally available. Beta Offerings may not be supported and may be modified at any time without notice. Beta Offerings may not be as reliable, available, or subject to the same security requirements as in the Security Policy (as defined below).

3. Customer Data

3.1. Data Processing by the Provider. All data processing activities by the Services will be governed by the DPA.

3.2. Rights in Customer Data. As between the Parties, the Customer will retain all right, title, and interest (including all Intellectual Property Rights) in and to the Customer Data as provided to the Provider. Subject to the terms of this Agreement, the Customer hereby grants to the Provider a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, and display the Customer Data solely to the extent necessary to provide the Services to the Customer.

3.3. Storage of Customer Data. The Provider does not provide an archiving service outside the scope required under applicable Laws. The Provider agrees only that it will not intentionally delete any Customer Data from the Services prior to termination of the Customer's applicable Subscription Term and expressly disclaims all other obligations with respect to storage.

3.4. Customer Obligations.

a) In General. The Customer is solely responsible for the accuracy, content, and legality of all Customer Data. The Customer represents and warrants to the Provider that the Customer has all necessary rights, consents, and permissions to collect, share, and use all Customer Data as contemplated in this Agreement (including granting the Provider the rights in Section 3.2 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing Customer's accounts with any Third-Party Platforms. The Customer further represents and warrants that all Customer Data complies with the Agreement. The Customer will be fully responsible for all Customer Data submitted to the Services by any person as if it was submitted by the Customer.

b) No Sensitive Personal Information. Except as disclosed by the Informer in their report or otherwise expressly agreed between the Parties in writing, the Customer specifically agrees not to use the Services to collect, store, process, or transmit any Sensitive Personal Information. The Customer acknowledges that the Provider is not a payment card processor and that the Services are not PCI DSS compliant. Except for the Provider's obligations as a business associate pursuant to this Agreement, the Customer shall be responsible for any Sensitive Personal Information it inadvertently submits to the Services, and the Provider will treat such submissions as Customer Data as defined in this Agreement such that the Provider is not subject to any additional obligations that apply to Sensitive Personal Information.

c) Compliance with Laws. The Customer agrees to comply with all applicable Laws in its use of the Services. Without limiting the generality of the foregoing, the Customer will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate the applicable Laws.

3.5. Indemnification by Customer. The Customer will defend the Provider from and against any claim arising from or relating to any Customer Data, Customer's use of a Third Party Platform, or Customer's use of the Services in violation of Laws and will indemnify and hold the Provider harmless from and against any damages and costs awarded against the Provider or agreed in settlement by the Customer (including reasonable attorneys' fees) resulting from such claim, provided that the Customer will have received from the Provider: (i) prompt written notice of such claim (but in any event notice in sufficient time for the Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation of the Provider (at the Customer's expense). Notwithstanding the foregoing sentence, (a) the Provider may participate in the defense of any claim by counsel of its own choosing, at its cost and expense; and (b) the Customer will not settle any claim without the Provider's prior written consent, unless the settlement fully and unconditionally releases the Provider and does not require the Provider to take any action or admit any liability.

3.6. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, the Customer agrees that the Provider may obtain and aggregate technical and other data about Customer's use of the Services that is non-personally identifiable with respect to the Customer (“Aggregated Anonymous Data”), and the Provider may use the Aggregated Anonymous Data to analyze, improve, support, and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations, or similar reports for distribution to and consumption by the Customer and other the Provider customers. For clarity, this Section 3.6 does not give the Provider the right to identify the Customer as the source of any Aggregated Anonymous Data.

4. Security

The Provider agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration, or disclosure of the Services or Customer Data, as further described in the Provider's Technical and Organizational Measures set forth as Annex C to the DPA (the “Security Policy”). However, the Provider will have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond the Provider's control.

5. Third-party Integrations

The Services may support integrations with certain Third-Party Platforms. To enable the Services to access and receive Customer's information from a Third-Party Platform, the Customer may be required to input its credentials for such Third-Party Platform. By enabling use of the Services with any Third-Party Platform, the Customer authorizes The Provider to access Customer's accounts with such Third-Party Platform for the purposes described in this Agreement. The Customer is responsible for complying with any relevant terms and conditions of the Third-Party Platform and for maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that the Provider has no responsibility or liability for any Third-Party Platform, or how a Third-Party Platform uses or processes Customer Data after such is exported to a Third-Party Platform. The Provider cannot ensure that the Services will maintain integrations with any Third-Party Platform and the Provider may disable integrations of the Services with any Third-Party Platform at any time with or without notice to the Customer. For clarity, this Agreement governs Customer's use of and access to the Services, even if accessed through an integration with a Third-Party Platform. TO THE EXTENT THE CUSTOMER USES FEATURES IN THE SERVICES THAT INTEGRATE WITH A THIRD-PARTY PLATFORM AND THE CUSTOMER REQUESTS THAT THE PROVIDER INTEGRATE WITH SUCH THIRD-PARTY PLATFORM'S BETA OR PRE-RELEASE FEATURES (the “THIRD-PARTY BETA RELEASES”), THE PROVIDER WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PROVIDER'S PARTICIPATION IN SUCH THIRD-PARTY BETA RELEASES OR CUSTOMER'S USE OF SUCH INTEGRATED FEATURES.

6. Ownership

6.1. Provider's Technology. This is a subscription agreement for access to and use of the Services. The Customer acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale”, or like terms in this Agreement, no ownership rights are being conveyed to the Customer under this Agreement. The Customer agrees that the Provider or its suppliers retain all right, title, and interest (including all Intellectual Property Rights) in and to the Services and all Documentation, Professional Services' deliverables and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing, including Feedback (collectively, the “Provider's Technology”). Except as expressly set forth in this Agreement, no rights in the Provider's Technology are granted to the Customer. Further, the Customer acknowledges that the Services are offered as an on-line, hosted solution, and that the Customer has no right to obtain a copy of any of the Services, except for the Code and the Apps in the format provided by the Provider.

6.2. Feedback. The Customer may, from time to time, submit Feedback to the Provider. The Provider may freely use or exploit Feedback in connection with the Services and may also disclose such Feedback to third party. The Provider shall not disclose the name of the Customer in any use or exploitation of the Feedback.

7. Subscription Term, Fees & Payment

7.1. Subscription Term and Renewals. The Subscription Term and Renewal Term will be as set forth in the applicable Order Form. Unless otherwise specified in an applicable Order Form, each Subscription Term will automatically renew for the Renewal Term set forth in such Order Form unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.

7.2. Fees and Payment. All fees are as set forth in the applicable Order Form and will be paid by the Customer in accordance with the payment terms set forth in the Order Form. Except as expressly set forth in Section 9 (Limited Warranty), Section 13 (Indemnification), or Section 16.7 (Modifications to this Agreement), all fees are non-refundable. The Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If the Customer is required by Law to withhold any Taxes from Customer's payment, the fees payable by the Customer will be increased as necessary so that after making any required withholdings, the Provider receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. 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.

7.3. Suspension of Service. Without limiting the Provider's termination or other rights hereunder, the Provider reserves the right to suspend Customer's access to the applicable Services (and any related Professional Services and Support) in whole or in part, without liability to the Customer: (i) if Customer's account is thirty (30) days or more overdue; (ii) for Customer's breach of Sections 2.4 (General Restrictions) or 3.4 (Customer Obligations); or (iii) to prevent harm to other customers or third parties or to preserve the security, availability or integrity of the Services. Unless this Agreement has been terminated, the Provider will restore Customer's access to the Services promptly after the Customer has resolved the issue requiring suspension.

8. Term and Termination

8.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.

8.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms) if the other party (a) fails to cure any material breach of this Agreement (including with respect to the Customer any of the events set forth in Section 7.3 (Suspension)) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors' arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).

8.3. Effect of Termination. Upon any expiration or termination of this Agreement, the Customer will immediately cease all use of and access to all Services (including all related Provider's Technology) and delete (or, at the Provider's request, return) all copies of the Documentation, all passwords or access codes and all other Provider's Confidential Information in its possession. The Customer acknowledges that thirty (30) days following termination it will have no further access to any Customer Data input into any Services, and that the Provider may delete any such data as may have been stored by the Provider at any time thereafter. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

8.4. Survival. The following Sections will survive any expiration or termination of this Agreement: 2.4 (General Restrictions), 2.8 (Trial Subscriptions), 3.3 (Storage of Customer Data), 3.5 (Indemnification by Customer), 3.6 (Aggregated Anonymous Data), 6 (Ownership), 7.2 (Fees and Payment), 8 (Term and Termination), 9.1 (Warranty Disclaimer), 12 (Limitation of Remedies and Damages), 13 (Indemnification), 14 (Confidential Information), and 16 (General Terms).

9. Limited Warranty

9.1. Limited Warranty. The Provider warrants, for Customer's benefit only, that the Services will operate in substantial conformity with the applicable Documentation and in accordance with applicable law. The Provider's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be, at no charge to the Customer, for the Provider to use commercially reasonable efforts to correct the reported non-conformity, or if the Provider determines such remedy to be impracticable, either Party may terminate the applicable Subscription Term and the Customer will receive as its sole remedy a refund of any fees the Customer has pre-paid for use of such Services for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless the Customer makes a claim within thirty (30) days of the date on which the Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications, or third-party hardware, software, or services, or (iii) to use provided on a no-charge, trial, or evaluation basis.

9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, ALL SERVICES, SUPPORT, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” (SUBJECT TO OBLIGATIONS IN SERVICE LEVEL AGREEMENT), THE PROVIDER AND ITS AFFILIATES DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR UNDERTAKINGS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. THE PROVIDER DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT IT WILL MEET ITS NEEDS. THE PROVIDER SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICES' FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS, OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF THE PROVIDER. PARTIES ALSO EXCLUDE THE APPLICATION OF BUSINESS PRACTICES.

10. Availability, Service Levels, and Support

The Services will be available, and the Provider will provide Support, subject to Service Level Agreement attached to the Order Form (if applicable).

11. Professional Services

The Provider will provide professional consulting services (the “Professional Services”) purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (an “SOW”). Unless the Professional Services are provided on a fixed-fee basis, the Customer will pay the Provider at the per-hour rates set forth in the Order Form (or, if not specified, at the Provider's then-standard rates) for any excess services. The Customer will reimburse the Provider for reasonable travel and lodging expenses as incurred. The Customer may use anything delivered as part of the Professional Services in support of authorized use of the Services and subject to the terms regarding Customer's rights to use the Services set forth in Section 2 (Provider Services) and the applicable SOW, but the Provider will retain all right, title, and interest in and to any such work product, code, or deliverables and any derivative, enhancement, or modification thereof created by the Provider. For any Professional Services provided to the Customer at no charge, the Customer further acknowledges and agrees that the Provider will not warrant the performance of such Professional Services.

12. Limitation of Remedies and Damages 

12.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY (NOR ITS AFFILIATES) SHALL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

IF THE CUSTOMER IS IN THE EUROPEAN ECONOMIC AREA, REFERENCES TO “INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES” SHALL ALSO MEAN ANY LOSSES OR DAMAGES WHICH: (A) WERE NOT REASONABLY FORESEEABLE BY BOTH PARTIES; (B) WERE KNOWN TO THE CUSTOMER BUT NOT TO THE PROVIDER; OR (C) WERE REASONABLY FORESEEABLE BY BOTH PARTIES BUT COULD HAVE BEEN PREVENTED BY THE CUSTOMER SUCH AS, FOR EXAMPLE, LOSSES CAUSED BY VIRUSES, MALWARE, OR OTHER MALICIOUS PROGRAMS, OR LOSS OF OR DAMAGE TO CUSTOMER DATA.

12.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), EACH PARTY'S ENTIRE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY THE CUSTOMER TO THE PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO ACT THAT GAVE RISE TO LIABILITY.

12.3. Limitations to Exclusions. NOTHING IN THIS SECTION SHOULD BE CONSTRUED AS LIMITING A PARTY'S LIABILITY FOR DEATH OR BODILY HARM, WILFUL MISCONDUCT, OR GROSS NEGLIGENCE. ADDITIONALLY, SOME JURISDICTIONS DO NOT ALLOW OTHER EXCLUSIONS OR LIMITATIONS OF LIABILITY SPECIFIED IN THIS SECTION 12. IN SUCH CASE THESE EXCLUSIONS AND LIMITATIONS WILL BE ENFORCED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

12.4. Excluded Claims. “Excluded Claims” means any claim arising (a) under Section 2.4 (General Restrictions); (b) 3.4 (Customer Obligations), 3.5 (Indemnification by Customer); or (c) from a party's breach of its obligations in Section 14 (Confidential Information) (but excluding claims relating to Customer Data).

12.5. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

13. Indemnification

The Provider will defend the Customer from and against any claim by a third party alleging that the Services infringes any Intellectual Property Right and will indemnify and hold the Customer harmless from and against any damages and costs finally awarded against the Customer or agreed in settlement by the Provider (including reasonable attorneys' fees) resulting from such claim, provided that the Provider will have received from the Customer: (i) prompt written notice of such claim (but in any event notice in sufficient time for the Provider to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. Notwithstanding the foregoing sentence, (a) the Customer may participate in the defense of any claim by counsel of its own choosing, at its cost and expense and (b) the Provider will not settle any claim without Customer's prior written consent, unless the settlement fully and unconditionally releases the Provider and does not require the Customer to take any action or admit any liability. If the Customer's use of the Services is (or in the Provider's opinion is likely to be) enjoined, if required by settlement or if the Provider determines such actions are reasonably necessary to avoid material liability, the Provider may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for the Customer the right to continue using the Services; or if (a) or (b) are not commercially reasonable, (c) terminate this Agreement and refund to the Customer the fees paid by the Customer for the portion of the Subscription Term that was paid by the Customer but not rendered by the Provider. The foregoing indemnification obligation of the Provider will not apply: (1) if the Services are modified by any party other than the Provider, but solely to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with products or processes not provided by the Provider, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; (4) to any action arising as a result of Customer Data; (5) to any action arising from Customer's use of the Third-Party Platform; or (6) if the Customer settles or makes any admissions with respect to a claim without the Provider's prior written consent. THIS SECTION SETS FOR THE PROVIDER’S AND ITS AFFILIATES' SOLE LIABILITY AND THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

14. Confidential Information

Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (the “Disclosing Party”) constitute the confidential property of the Disclosing Party (the “Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Provider's Technology, performance information relating to the Services, and the terms and conditions of this Agreement will be deemed Confidential Information of The Provider without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including the Provider's Affiliates and the subcontractors referenced in Section 10 (Subcontractors)), provided that such representatives are bound to confidentiality obligations no less protective of the Disclosing Party than this Section 14 and that the Receiving Party remains responsible for compliance by any such representative with the terms of this Section 14. The Receiving Party's confidentiality obligations will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may make disclosures to the extent required by law or court order, provided the Receiving Party notifies the Disclosing Party in advance and cooperates in any effort to obtain confidential treatment. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. This confidentiality obligation applies for 3 years after the lapse of all Subscription Terms.

15. Publicity

At the request of the Provider, the Customer agrees to the issuance of a joint press release (the “Press Release”) on a mutually agreed upon date or the 90th day from the Effective Date, whichever is earlier. Each party will have the right to approve the Press Release in advance, but such approval will not be unreasonably delayed or withheld. The Customer also agrees to participate in other reasonable marketing activities that promote the benefits of the Services to other potential customers and to use of Customer's name and logo on the Provider's website and in the Provider's promotional materials. The Customer agrees that the Provider may disclose the Customer as a customer of the Provider, including on the Provider's public website. The Provider agrees that any such use shall be subject to the Provider complying with any written guidelines that the Customer may deliver to the Provider regarding the use of its name and shall not be deemed Customer's endorsement of the Services.

16. General Terms

16.1. Assignment. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party's assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 16.1 will be null and void.

16.2. Severability. If any provision of this Agreement will be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in effect.

16.3. Governing Law; Dispute Resolution.

a) Governing Law. This Agreement is construed and governed by the Laws of (i) the State of Delaware, if the Customer is incorporated in the United States or Canada as specified in the Order form; or (ii) England and Wales, if the Customer is incorporated elsewhere as specified in the Order form, and without reference to applicable jurisdiction's conflict of laws principles.

b) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, (the “Dispute”), the parties shall first use their best efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled “Initial Notice of Dispute,” specifically setting forth the precise nature of the dispute (the “Initial Notice of Dispute”). If an Initial Notice of Dispute is being sent to the Provider, it must be emailed to support@faceup.com.

Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties (“Direct Dispute Resolution”). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.

c) Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES MAY SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. The arbitration shall be conducted under the Rules of the Vienna International Arbitral Centre, by three (3) arbitrators appointed in accordance with the said Rules. The language of the proceedings shall be English. The limitation of one discovery deposition per side shall be applied by the arbitrators, unless it is determined, based on all relevant circumstances, that more depositions are warranted. The arbitrators shall consider the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests and whether all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery.

The arbitration will occur in Vienna, Austria, but the parties may choose to appear by person, by phone, by another virtual means, or through the submission of documents.

The arbitrators will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this Agreement shall be resolved by the arbitrators.

All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrators' award may be entered in any court having jurisdiction. The arbitrators shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.

d) Litigation. Any lawsuit will be filed in any courts located in (i) Wilmington, Delaware, if the Customer is incorporated in the United States or Canada; or (ii) London, England, if the Customer is incorporated elsewhere, and both Parties consent to personal jurisdiction in such courts for resolution on Disputes and agree that such venue is appropriate.

e) Jury Trial Waiver. Both Parties waive their right to a jury trial in any dispute arising from or related to this Agreement, including any amendments, interpretations, performance, breaches, or terminations thereof. This waiver applies to any legal proceeding, whether in contract, tort, or otherwise and in any forum.

f) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH THE CUSTOMER AND THE PROVIDER AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED.

g) Injunctive Relief. Notwithstanding the above provisions, the Provider may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

16.4. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail or (iv) next business day if sent by email.

16.5. Amendments; Waivers. No supplement, modification, ofr amendment of this Agreement will be binding, unless (i) modified in accordance with Section 16.7; or (ii) executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by the Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement will be for administrative purposes only and will have no legal effect.

16.6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

16.7. Modifications to this Agreement. From time to time, The Provider may modify this Agreement. Unless otherwise specified by The Provider, changes become effective for the Customer upon renewal of Customer's current Subscription Term or entry into a new Order Form. The Provider will use reasonable efforts to notify Customer of the changes through communications via Customer's account, email or other means. In any event, continued use of the Services after the updated version of this Agreement goes into effect will constitute Customer's acceptance of such updated version. If The Provider specifies that changes to the Agreement will take effect prior to Customer's next renewal or order (such as for legal compliance or product change reasons) and the Customer objects to such changes within 10 calendar days, The Provider may either (i) move the effective date of a change of the Agreement to Customer's next renewal or order; or (ii) terminate the applicable Subscription Term and give to the Customer as its sole remedy a refund of any fees the Customer has pre-paid for use of the applicable Services for the terminated portion of the Subscription Term, commencing on the date notice of termination was received or a different date the Parties agree on. The Provider may make changes to the Services, and the Provider will update the applicable Documentation accordingly. The support, security and service level availability terms described in the Service Level Agreement and in the Security Policy may be updated from time to time upon reasonable notice to the Customer to reflect process improvements or changing practices (but the modifications will not materially decrease the Provider's obligations as compared to those reflected in such terms as of the Effective Date).

16.8. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events that occur after the signing of this Agreement and that are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

16.9. Hardship. If continued performance has become excessively onerous due to an event beyond a party’s reasonable control which it could not reasonably have been expected to have taken into account (a “Hardship”), the Parties will in good faith negotiate alternative terms which reasonably allow for the consequences of such event. The Parties expressly exclude the ability of a court to adapt, amend, or terminate the Agreement in case of Hardship, and assume such risk.

16.10. Subcontractors. The Provider may use the services of subcontractors and permit them to exercise the rights granted to the Provider in order to provide the Services under this Agreement, provided that the Provider remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement, (ii) for the overall performance of the Services as required under this Agreement and (iii) compliance with the terms of the DPA.

16.11. Court Orders. Nothing in this Agreement prevents the Provider from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but the Provider will use commercially reasonable efforts to notify the Customer where permitted to do so.

16.12. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party's behalf without the other party's prior written consent.

16.13. Export Control. In its use of the Services, the Customer agrees to comply with all export and import laws and regulations of the applicable jurisdictions. Without limiting the foregoing, (i) the Customer represents and warrants that it is not listed on any US, UK, or EU government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a US, UK, or EU government embargo or that has been designated by the US, UK, or EU government as a “terrorist supporting” country, (ii) the Customer will not (and will not permit any of its users to) access or use the Services in violation of any US, UK, or EU export embargo, prohibition or restriction, and (iii) the Customer will not submit to the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

16.14. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement.