Welcome to the Distinct Platform Terms & Conditions (“Agreement”) for Distinct Technologies Inc.’s (“Distinct”) proprietary software-as-a-service, the Distinct Platform.  This Agreement is between Distinct and the Customer set forth on an Order Form, and governs Customer’s access to and use of the Distinct Platform.  It becomes binding and effective on Customer upon the earlier of (i) Customer’s access to or use of the Distinct Platform, (ii) when Customer clicks “I Accept,” “Sign Up” or a similar button or check box, or (iii) when Customer enters into an Order Form.  Please read this Agreement carefully, as it includes important information about Customer’s legal rights. By accessing and/or using the Distinct Platform, Customer is agreeing to the terms of this Agreement. If Customer does not understand or agree to this Agreement, it should not use the Distinct Platform. 

1. ORDER FORMS

(A) Order Forms.  An “Order Form” is an ordering document executed by Customer and Distinct that references this Agreement and includes any relevant details referenced herein including pricing and the specific modules or functionalities of the Distinct Platform being offered.  Upon mutual execution, each Order Form will be deemed to have been incorporated by reference into this Agreement. In the event of any conflict between an Order Form and the Agreement, this Agreement shall govern, unless specifically noted in the Order Form.

2. DISTINCT PLATFORM; GRANT OF RIGHTS

(A) Distinct Platform.  The “Distinct Platform” may include without limitation certain software modules or functionalities relating to the personalization of consumer experiences.  The Distinct Platform can be accessed through a web application or other methods provided by Distinct from time to time and shall only include those modules or functionalities detailed in an Order Form.   

(B) Grant of Rights.  Subject to Customer’s payment of all Fees and full compliance with this Agreement and the applicable Order Form, Distinct hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the specific modules or functionalities of the Distinct Platform as identified in the Order Form.  Customer may only use the Distinct Platform for Customer’s internal business purposes, and not for the benefit of any third party. Customer expressly agrees that it may not make use of the Distinct Platform beyond the scope of the authorization provided in this Section.

(C) Updates.  Distinct may modify or update the Distinct Platform at any time, in its discretion including without limitation to improve functionality, performance, or security, or to comply with applicable law.  All updates provided to Distinct’s customers generally shall also be made available to Customer.  After the effective date of such update, Distinct shall bear no obligation to provide or support legacy versions of the Distinct Platform.  

(D) Documentation. Subsequent to Customer’s access to the Distinct Platform, it shall have access to the Distinct Platform’s user manuals, specifications, support materials, and related documentation, as may be updated from time to time (“Documentation”).  Documentation shall be made available via the Distinct Platform or through other methods provided by Distinct from time to time. 

3. FEES

(A) Fees. Customer shall pay Distinct the fees set forth in the Order Form (“Fees”).  All Fees shall be invoiced and due on the dates set forth on the Order Form, or if no such date is provided, within thirty (30) days after the date of any invoice for the same.  Customer shall make all payments hereunder in U.S. dollars by the payment method set forth in the Order Form or otherwise provided in writing, as may be amended by Distinct from time to time.  All Fees are non-cancellable once an Order Form is executed and non-refundable once paid and shall be paid by Customer to Distinct without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.  Late payments are subject to interest at a rate of one and one-half percent (1.5%) per month from the original due date or the maximum interest allowed by law, whichever is less. Customer will be responsible for all costs of collection that Distinct incurs (including any attorneys’ fees) in connection with Distinct’s efforts to collect any delinquent payments.  Distinct may suspend access to or use of the Distinct Platform if any Fees come past due.

(B) Taxes. Except for any taxes applicable to the gross income of Distinct, Customer is responsible for and shall pay any sales, use, excise, gross receipts, property, privilege, value-added, or other federal, state, or local taxes or tariffs (including any interest or penalties related thereto) now in force or enacted in the future which are applicable to this Agreement, the provision of Distinct Platform or Customer’s use thereof. 

4. INTELLECTUAL PROPERTY; RESTRICTIONS

(A) Ownership. Except for the limited rights set forth in Section 2(B), Customer does not acquire any rights in the Distinct Platform.  Distinct and its licensors own, and shall continue to own, all right, title and interest in and to the Distinct Platform and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (collectively, and including the Distinct Marks, “Distinct Materials”). 

(B) Feedback. Customer is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the Distinct Platform (“Feedback”).  If, notwithstanding this policy, Customer submits Feedback, Customer understands and acknowledges that such Feedback is not submitted in confidence and Distinct assumes no obligation, expressed or implied, by considering it.  All right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and exclusive property of, Distinct. 

(C) License Restrictions. Customer may not, and shall not authorize or permit any third party to: (i) use the Distinct Platform or its outputs to create any service, software, documentation or data that is competitive with, substantially similar or confusingly similar to the same; (ii) use, modify, display, perform, copy, disclose or create derivative works of the Distinct Platform; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the Distinct Platform, or use any other means to attempt to discover their source code; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the Distinct Platform to any third party; (v) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the Distinct Platform or related systems, including via robots, spiders and other electronic methods; (vi) use the Distinct Platform in violation of applicable law, rule or regulation, including without limitation laws, rules and regulations concerning privacy and data security; (vii) use the Distinct Platform in any manner that intentionally damages, disables, overburdens, or impairs any of the Distinct websites or interferes with any other party's use of the Distinct Platform, including without limitation by using or launching any automated system that sends more messages to Distinct servers in a given period of time than a human can reasonably produce in the same period; (viii) attempt to gain unauthorized access to the Distinct Platform, including without limitation by breaching, disabling, tampering with, or developing or using (or attempting to do the same) any workaround for the Distinct Platform or any security measure related thereto; (ix) set, read, write, modify or delete any cookie on a Distinct-owned or operated web domain; and/or (x) obscure, remove or alter any proprietary rights or other notices on the Distinct Platform.  If Customer becomes aware of any actual or threatened activity prohibited by this Section, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects, including, where applicable, by discontinuing and preventing any unauthorized access to the Distinct Platform and permanently erasing from their systems any data to which any of them have gained unauthorized access; and (b) notify Distinct of any such actual or threatened activity.  Notwithstanding anything to the contrary herein, Distinct may, in its sole discretion, immediately revoke the grant of rights contemplated in Section 2(B) if Customer breaches the restrictions in this Section or creates other security or legal concerns. 

(D) Technical Restrictions. Distinct reserves the right to limit the number of users, volume of data flows, amount of data storage, and other access and use, as further detailed in the Documentation or an Order Form.  Customer shall not exceed any such limitations provided by Distinct.  Distinct may monitor Customer’s use of the Distinct Platform to confirm compliance with such limitations.  If Distinct believes that Customer has attempted to exceed or circumvent these limitations, Distinct may assess additional Fees, upgrade Customer’s service tier or suspend or block Customer’s access to the Distinct Platform, in each case on written notice to Customer. 

(E) Third Party Materials. Distinct Platform may link to, make available or provide third party products, services, websites, data, software or source code, including without limitation third party websites or social media platforms, open source software and licensed data sources (collectively, “Third Party Materials”).  Distinct has no control over Third Party Materials.  Accordingly, Distinct is not responsible or liable for any Third Party Materials and makes no representation as to the accuracy, usefulness, safety, or intellectual property rights in or relating to such Third Party Materials.  While Distinct has no obligation to monitor Third Party Materials, Distinct may remove or modify such Third Party Materials in its discretion, including without limitation to comply with applicable law.  Customer agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials. 

(F) Trademarks. Distinct grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use Distinct’s names, logos, designs, and other trademarks listed in an Order Form (“Distinct Marks”) during the Term and solely for the purposes of displaying such notice as part of the Distinct Platform.  Customer recognizes the validity of the Distinct Marks and Distinct’s ownership and title thereto.  Any goodwill derived from the use of the Distinct Marks by Customer shall inure to the benefit Distinct.  Customer will not challenge the Distinct Marks, or Distinct’s ownership and title thereto, or the USPTO application or registration thereof, either during or subsequent to the term of this Agreement.  Customer shall execute such documents as may be reasonably requested by Distinct, or required by law, to establish Distinct’s sole and exclusive ownership and rights in the Distinct Marks, or to obtain registration thereof.  Customer agrees to use the Distinct Marks consistent with the highest standards of quality so as to protect and maintain the Distinct Marks and Distinct’s rights therein.  To this end, Distinct shall have the right to review and approve the manner of use of the Distinct Marks, and Customer agrees to modify use of any Distinct Marks which do not meet Distinct’s standards.  Notwithstanding the foregoing, Customer may not use any Distinct Marks in any manner implying any partnership with, sponsorship by, or endorsement by Distinct.

(G) Reservation of Rights. Except for the limited rights granted in Section 2(B), Customer does not acquire any rights in the Distinct Materials or Third Party Materials, whether expressly, by implication, estoppel, or otherwise.  All rights not expressly granted to Customer herein are reserved by Distinct and, in the case of Third Party Materials, by the applicable third party provider. 

5. CUSTOMER OBLIGATIONS; CUSTOMER MATERIALS

(A) Customer Manager. Customer shall, throughout the Term, maintain within its organization a manager to serve as Customer’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Distinct Platform and this Agreement. Customer’s manager shall be responsible for providing all day-to-day consents and approvals and Customer represents that such person has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity.

(B) Registration. As part of the registration and/or account creation process Customer will provide Distinct with certain registration information, all of which must be accurate, truthful, and updated.   Distinct reserves the right to deny creation of Customer account based on Distinct’s inability to verify the authenticity of Customer registration information. The use of Customer account by any individual under the age of eighteen (18) is strictly prohibited.

(C) Implementation and Access. Customer shall be responsible, at its sole cost, for procuring all connectivity, equipment and software needed to access the Distinct Platform.  Distinct shall provide Customer with non-transferable access credentials for the Distinct Platform, for use by Customer’s (i) employees, (ii) contractors and service providers acting on its behalf and (ii) third party partners (e.g., sponsors or official partners), provided, however, with respect to any third party partners, such third party partner shall enter into a separate partner Order Form with Distinct (collectively, “Users”).  Customer shall not (i) misrepresent or mask identities when using the Distinct Platform or seeking access credentials; (ii) select or use as a username a name that is already in use or that utilizes the rights of a person or entity other than Customer without appropriate authorization; or (iii) select or use, as Customer’s username, a name that is offensive, vulgar or obscene.  Customer shall safeguard all access credentials provided by Distinct and shall ensure the confidentiality and security thereof.  Customer shall immediately notify Distinct of any known or suspected unauthorized use(s) of Customer account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Customer login information.  Customer is responsible for all acts and omissions of its Users and all activity on its account(s), including without limitation for any third party to whom it provisions access or who is acting on its behalf.

(D) Customer Systems and Cooperation. Customer shall, on its behalf or on behalf of any Users, at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Documentation and any Order Form all information technology infrastructure, including hardware, software, networks, and systems through which the Distinct Platform is accessed or used (collectively, “Customer System”); and (b) provide Distinct personnel with access to Customer’s or its Users’ premises and Customer Systems, and all other cooperation and access, as is necessary for Distinct to provide the Distinct Platform and to exercise its rights and perform its obligations hereunder.  As between the parties, Customer owns all right, title and interest in and to any Customer Systems.  Distinct is not responsible or liable for any delay or failure of performance caused by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement ("Customer Failure").

(E) Customer Materials; Resultant Data. Customer and/or Customer’s licensors or Users own and shall retain all rights in and to all content and materials that Customer or its Users directly upload, transmit or provide in connection with the Distinct Platform, as further detailed in an Order Form (collectively, “Customer Materials”). Customer hereby grants Distinct an irrevocable, non-exclusive, worldwide, transferable, sublicensable (to Distinct’s Subcontractors), royalty-free, fully paid up right and license during the Term to (i) display, replicate, use and modify the Customer Materials to provide the Distinct Platform or related services, including integrations with third-party applications, and/or (ii) create data, connections and information derived from Customer Materials or Customer’s use of the Distinct Platform (“Resultant Data”), in each case, in accordance with Distinct’s Privacy Policy. Resultant Data may be used for any business purpose of Distinct, including without limitation improving, operating, or developing Distinct’s products and services, or for the purpose of providing certain data analytics services.  Notwithstanding anything to the contrary in the foregoing, Distinct shall own all right, title and interest in and to Resultant Data, and Customer hereby unconditionally and irrevocably assigns all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto. Except for compliance with the foregoing license terms, Distinct is not responsible or liable for any Customer Materials.  For clarity, Customer Materials shall not include any Distinct Materials or Resultant Data.

(F) Customer Materials Warranties. Customer represents and warrants that (i) it owns, or has acquired the express license and written authority to use, all of the Customer Materials as contemplated herein; (ii) the Customer Materials and the receipt, collection, use and provision thereof shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (iii) the Customer Materials were received, collected, used and provided to Distinct in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions; and (iv) it has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted terms and conditions and privacy policies and all third-party terms and conditions or privacy policies in connection with its receipt, use and/or provision of the Customer Materials hereunder. 

(G) Data Backups. The Distinct Platform does not replace the need for Customer to maintain regular data backups or redundant data archives.  Customer is solely responsible for ensuring any data retention obligations imposed by applicable law, including healthcare or financial regulations, are met through independent archival measures.  Except as set forth herein, Distinct has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Materials.

6. CONFIDENTIALITY; DATA

(A) Confidentiality; Publicity. Each party agrees that its business, technical and financial information that is designated in writing as confidential, or that should reasonably be considered confidential given the nature of the information and/or the manner or means of disclosure, shall be the confidential property of the disclosing party (“Confidential Information”).  Distinct’s Confidential Information includes the Distinct Materials and Resultant Data.  Each party shall use a reasonable degree of care to safeguard the other party’s Confidential Information in its possession or control.  Confidential Information does not include information that (i) was previously rightfully known to the receiving party without restriction on disclosure; (ii) is or becomes known to the general public, through no fault or breach on the part of the receiving party; (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; (iv) was independently developed by the receiving party; or (v) is required to be disclosed pursuant to a judicial order or third party subpoena, provided the receiving party provides written notice to the disclosing party in order for the disclosing party to seek an appropriate remedy and only discloses the minimum information required by the order or subpoena.  Neither party shall disclose the terms of this Agreement, except as required by law, or to its attorneys, professional advisors, investors and potential investors bound to obligations of confidentiality substantially similar to those contained herein.  The parties hereby agree that the disclosing party will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of the receiving party’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.  Customer agrees that Distinct may use Customer’s name, logos and trademark(s) to publicly list and promote Customer as a recipient of the Distinct Platform, via Distinct’s website, social media feeds, public announcements and other marketing materials.

(B) Distinct Data Collection; Privacy. To the extent Distinct processes Personal Information (as defined in the DPA) on behalf of Customer, the parties agree that the Distinct Data Processing Addendum (“DPA”) governs such processing. All data usage by Distinct shall be in accordance with Distinct’s Privacy Policy.   

7. WARRANTIES; LIMITATIONS

(A) Mutual Warranties. Each party represents and warrants that (i) it has the right and authority to enter into this Agreement and perform its obligations, covenants and promises hereunder and (ii) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation.

(B) Customer Warranties. In additions to its representations and warranties in Sections 4 and 5, Customer further represents and warrants that (i) it has implemented or contractually required industry-standard administrative, technical and physical safeguards designed to protect the security and integrity of, and prevent, unauthorized access to the Distinct Platform, Customer Systems, and Customer Materials; (ii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the Distinct Platform; (iii) in the event of any security breach or unauthorized access to any Distinct Platform, Customer Systems and Customer Materials, Customer will immediately investigate and remediate such breach, all at Customer’s cost; (iv) Customer,  the Customer Materials, and Customer’s use of Resultant Data will comply with all applicable laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights; (v) Customer shall include the Distinct Marks and links to Distinct’s disclosures, consents, website, terms and conditions and privacy policies in its customer user flows and emails, in the format to be agreed by the parties; and (vi) except as agreed in an Order Form, and subject to any additional agreements between the parties required by applicable law, Customer Materials shall not contain any “sensitive” Personal Information, including without limitation information of children under thirteen (13) years of age, payment or banking information, or protected health information.

(C) Distinct Product Limitations. Customer use of the Distinct Platform is at Customer’s sole risk.  The Distinct Platform is provided on an “as is” basis.  Distinct expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement and title or that the Distinct Platform will meet Customer requirements or result in any outcome, or that the operation will be uninterrupted or error-free.  Customer acknowledges that Distinct has no control over Third Party Materials.  Additionally, Distinct shall not be responsible for any delays or outages caused by any third party systems, platforms or applications, and shall not be responsible for any internet service or cloud-based data host providers.

(D) Beta Offerings. From time to time, Customer may receive access to certain Distinct Platform features on a free, fully discounted or trial basis, or as an alpha, beta or early access offering  (“Beta Offerings”). Customer’s use of any Beta Offering is completely voluntary. The Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information. Notwithstanding anything else in this Agreement, to the maximum extent permitted by law, Distinct provides no warranty or indemnity for Beta Offerings and its aggregate liability for Beta Offerings is limited to $50 U.S. Dollars. Customer agrees that once Customer uses a Beta Offering, Customer Materials may be affected such that Customer may be unable to revert back to a prior non-beta version of the same.

8. INDEMNITY; LIMITATION OF LIABILITY

(A) Customer Indemnity. Customer will defend, indemnify, and hold harmless Distinct and its subsidiaries, affiliates, and parent companies, licensors and partners, and their respective directors, officers, employees, agents, successors and assigns (collectively, “Related Parties”), from and against any losses (including outside attorneys’ fees) arising out of a third party claim related to (i) the use of any Customer Materials or any other Customer products/services as contemplated herein; (ii) Customer’s negligence or willful misconduct, breach of this Agreement (including without limitation Sections 4, 5 and 7), violation of applicable law, or any third party investigation of the acts or practices of Customer (including any costs related to compliance with a third party subpoena or other discovery request); (iii) any security breach or unauthorized access to any Distinct Platform, Customer Systems, and/or Customer Materials; and/or (iv) any allegation of intellectual property, privacy or publicity infringement or violation third-party rights arising out of Customer Materials or Customer’s use of the Distinct Platform or Resultant Data, except for such uses expressly authorized herein. 

(B) Distinct Indemnity. Distinct will defend, indemnify, and hold harmless Customer and its Related Parties from and against any losses (including outside attorneys’ fees) arising out of a third party claim that the authorized use by Customer of the Distinct Platform infringes any U.S. copyright or trade secret (“IP Claim”).  Notwithstanding the foregoing, Distinct shall have no liability or obligation hereunder with respect to any IP Claim arising directly or indirectly from (a) the use of the Distinct Platform in combination with products, services, software, data or systems not provided by Distinct; (b) any modification or unauthorized use of the Distinct Platform or any breach of this Agreement by Customer; (c) any Customer Materials; (d) instructions or directions provided by or on behalf of Customer; (e) any open source software, Third Party Materials or Beta Offerings; or (f) the failure to use corrections or updates provided by Distinct (collectively, “Infringement Exclusions”).  If the Distinct Platform become the subject of any IP Claim that does not fall within the Infringement Exclusions, Distinct may, at its option (x) obtain for Customer the right to continue using the affected component of the Distinct Platform; (y) replace or modify the affected component of the Distinct Platform; or (z) if (x) or (y) cannot be achieved through reasonable efforts, Distinct may immediately terminate this Agreement.  This Section states Distinct’s sole liability with respect to any actual or alleged infringement of intellectual property, privacy or publicity rights by the provision or use of the Distinct Platform. 

(C) Indemnification Process. The party seeking indemnification shall promptly notify the indemnifying party of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not impact the indemnifying party’s indemnification obligations, unless the indemnifying party is materially impacted thereby.  The indemnifying party shall have sole control over the defense of a claim, provided that the indemnified party may participate in the defense, at its cost. All settlements of indemnification claims require the consent of the indemnified party.

(D) Limitation of Liability. Except in the event of breach of Customer’s obligations in Sections 4, 5 and 7, in no event shall either party be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.  In no event will Distinct’s aggregate liability to Customer exceed the Fees paid by Customer to Distinct in the prior payment period. The exclusions and limitations in this Section 8(D) 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 in this Agreement fails of its essential purpose.

9. TERM; TERMINATION

(A) Term. The initial term of this Agreement shall be set forth in the Order Form (“Initial Term”), unless earlier terminated as permitted herein.  The Initial Term shall automatically renew on a year-to-year basis (“Renewal Term”) (together with the Initial Term, “Term”), unless earlier terminated as permitted herein.  If a party desires to not renew an Order Form for a Renewal Term, such party must notify the other party in writing at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term.

(B) Termination. Distinct may terminate or suspend this Agreement immediately in the event of Customer’s breach or threatened breach of Sections 4, 5, and 7 of this Agreement or in the event any Fees come past due.  Either party may terminate this agreement immediately for (i) material breach if such breach, to the extent curable, remains uncured ten (10) days after notice thereof; or (ii) if a party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or general assignment for creditors. 

(C) Obligations on Termination. Upon termination or expiration of this Agreement, Customer will immediately stop all use of the Distinct Platform and all applicable rights and access granted to Customer shall automatically terminate and Customer shall cease any further use of Distinct Platform or Confidential Information. Customer is responsible for all charges owed or accrued through the effective date of termination, and in the event of termination of the Agreement for Customer’s material breach or insolvency, any amounts due and owing for the remainder of the Term shall come due and owing. All amounts due hereunder shall be paid on the date of termination or expiration of the Agreement. Terms that by their nature should survive expiration or termination shall so survive. 

10. MISCELLANEOUS

(A) Force Majeure. Except with respect to Customer payment obligations, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, shortage of materials, failure of transportation or communications or of Distincts of goods or services, power failures, and internet or cloud hosting disturbances, Third Party Materials, pandemics, public health emergencies and the malicious acts of third parties (e.g. cyber-attacks).

(B) Export. Distinct does not represent that materials in the Distinct Platform are appropriate or available for use in any particular location. The Distinct Platform are subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List. 

(C) Independent Contractor. Each party is an independent contractor with respect to the other party hereunder.  This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the parties, or (ii) authorize any party to enter into any commitment or agreement binding on the other party.

(D) Non-Solicitation. During the Term and for one (1) year after, Customer shall not, and shall not assist any other person in, directly or indirectly, recruiting or soliciting for employment or engagement as an independent contractor any person then or within the prior twelve (12) months employed or engaged by Distinct.  Notwithstanding the foregoing, this Section shall not prohibit general solicitations not aimed at the personnel of Distinct.  In the event of a violation of this Section, in addition to any other remedies available at law or in equity, Distinct will be entitled to liquidated damages equal to the compensation paid by Distinct to the applicable employee or independent contractor during the prior twelve (12) months.  The parties agree that such liquidated damages are fair and reasonable and do not constitute a consequential or indirect harm hereunder, and that Distinct would not have agreed to this Agreement but for such liquidated damages.

(E) Subcontractors; Assignment. Distinct may engage third parties (sometimes called “subprocessors”) or affiliates to perform any of its obligations under this Agreement (collectively, “Subcontractors”). Distinct remains responsible for the performance of its Subcontractors, except with respect to Third Party Materials governed by separate license terms.  For the avoidance of doubt, Subcontractors shall not include the providers of any Third Party Materials. Except to an affiliate or in the event of a merger, acquisition or change of control, neither party may assign or otherwise transfer this Agreement, in whole or in part. 

(F) Governing Law; Jurisdiction. This Agreement shall be governed exclusively by the laws of the State of New York, irrespective of the conflict of law rules of any jurisdiction.  Any dispute arising under this Agreement shall be brought in the state and federal courts located within New York County, New York. 

(G) Notice. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Distinct, to the address listed in an Order Form, or if to Customer, to the email or physical address associated with Customer’s account.

(H) Updating These Terms. Unless otherwise indicated in an Order Form, Distinct may modify this Agreement from time to time in which case Distinct will update the “Last Revised” date at the top of this Agreement.  The updated Agreement will be effective as of the time of posting, or such later date as may be specified in the updated Agreement. Customer’s continued access to or use of the Distinct Platform after the modifications have become effective will be deemed Customer’s acceptance of the modified Agreement.

(I) Severability; Waiver. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties. Failure of either party to act in the event of a breach this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.

(J) Entire Agreement. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof.  All other terms of Customer, including without limitation the terms on Customer’s invoices, or any other click-wrap or browse wrap terms of Customer, shall be of no force and effect. There shall be no third party beneficiaries under this Agreement.

Welcome to the Distinct Platform Terms & Conditions (“Agreement”) for Distinct Technologies Inc.’s (“Distinct”) proprietary software-as-a-service, the Distinct Platform.  This Agreement is between Distinct and the Customer set forth on an Order Form, and governs Customer’s access to and use of the Distinct Platform.  It becomes binding and effective on Customer upon the earlier of (i) Customer’s access to or use of the Distinct Platform, (ii) when Customer clicks “I Accept,” “Sign Up” or a similar button or check box, or (iii) when Customer enters into an Order Form.  Please read this Agreement carefully, as it includes important information about Customer’s legal rights. By accessing and/or using the Distinct Platform, Customer is agreeing to the terms of this Agreement. If Customer does not understand or agree to this Agreement, it should not use the Distinct Platform. 

1. ORDER FORMS

(A) Order Forms.  An “Order Form” is an ordering document executed by Customer and Distinct that references this Agreement and includes any relevant details referenced herein including pricing and the specific modules or functionalities of the Distinct Platform being offered.  Upon mutual execution, each Order Form will be deemed to have been incorporated by reference into this Agreement. In the event of any conflict between an Order Form and the Agreement, this Agreement shall govern, unless specifically noted in the Order Form.

2. DISTINCT PLATFORM; GRANT OF RIGHTS

(A) Distinct Platform.  The “Distinct Platform” may include without limitation certain software modules or functionalities relating to the personalization of consumer experiences.  The Distinct Platform can be accessed through a web application or other methods provided by Distinct from time to time and shall only include those modules or functionalities detailed in an Order Form.   

(B) Grant of Rights.  Subject to Customer’s payment of all Fees and full compliance with this Agreement and the applicable Order Form, Distinct hereby grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right during the Term to access and use the specific modules or functionalities of the Distinct Platform as identified in the Order Form.  Customer may only use the Distinct Platform for Customer’s internal business purposes, and not for the benefit of any third party. Customer expressly agrees that it may not make use of the Distinct Platform beyond the scope of the authorization provided in this Section.

(C) Updates.  Distinct may modify or update the Distinct Platform at any time, in its discretion including without limitation to improve functionality, performance, or security, or to comply with applicable law.  All updates provided to Distinct’s customers generally shall also be made available to Customer.  After the effective date of such update, Distinct shall bear no obligation to provide or support legacy versions of the Distinct Platform.  

(D) Documentation. Subsequent to Customer’s access to the Distinct Platform, it shall have access to the Distinct Platform’s user manuals, specifications, support materials, and related documentation, as may be updated from time to time (“Documentation”).  Documentation shall be made available via the Distinct Platform or through other methods provided by Distinct from time to time. 

3. FEES

(A) Fees. Customer shall pay Distinct the fees set forth in the Order Form (“Fees”).  All Fees shall be invoiced and due on the dates set forth on the Order Form, or if no such date is provided, within thirty (30) days after the date of any invoice for the same.  Customer shall make all payments hereunder in U.S. dollars by the payment method set forth in the Order Form or otherwise provided in writing, as may be amended by Distinct from time to time.  All Fees are non-cancellable once an Order Form is executed and non-refundable once paid and shall be paid by Customer to Distinct without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.  Late payments are subject to interest at a rate of one and one-half percent (1.5%) per month from the original due date or the maximum interest allowed by law, whichever is less. Customer will be responsible for all costs of collection that Distinct incurs (including any attorneys’ fees) in connection with Distinct’s efforts to collect any delinquent payments.  Distinct may suspend access to or use of the Distinct Platform if any Fees come past due.

(B) Taxes. Except for any taxes applicable to the gross income of Distinct, Customer is responsible for and shall pay any sales, use, excise, gross receipts, property, privilege, value-added, or other federal, state, or local taxes or tariffs (including any interest or penalties related thereto) now in force or enacted in the future which are applicable to this Agreement, the provision of Distinct Platform or Customer’s use thereof. 

4. INTELLECTUAL PROPERTY; RESTRICTIONS

(A) Ownership. Except for the limited rights set forth in Section 2(B), Customer does not acquire any rights in the Distinct Platform.  Distinct and its licensors own, and shall continue to own, all right, title and interest in and to the Distinct Platform and all related documentation, source code, tools, scripts, processes, techniques, methodologies, inventions, know-how, concepts, formatting, arrangements, visual attributes, ideas, database rights, copyrights, patents, trade secrets, and other intellectual property, and all derivatives, enhancements, modifications and improvements thereof (collectively, and including the Distinct Marks, “Distinct Materials”). 

(B) Feedback. Customer is not required to provide any suggestions, enhancement requests, recommendations or other feedback regarding the Distinct Platform (“Feedback”).  If, notwithstanding this policy, Customer submits Feedback, Customer understands and acknowledges that such Feedback is not submitted in confidence and Distinct assumes no obligation, expressed or implied, by considering it.  All right, title and interest in and to such Feedback shall be assigned to, and shall become the sole and exclusive property of, Distinct. 

(C) License Restrictions. Customer may not, and shall not authorize or permit any third party to: (i) use the Distinct Platform or its outputs to create any service, software, documentation or data that is competitive with, substantially similar or confusingly similar to the same; (ii) use, modify, display, perform, copy, disclose or create derivative works of the Distinct Platform; (iii) reverse engineer, decompile, disassemble, mimic, screen-scrape, frame or mirror the Distinct Platform, or use any other means to attempt to discover their source code; (iv) benchmark, encumber, distribute, sublicense, assign, share, sell, rent, lease, pledge or otherwise transfer the Distinct Platform to any third party; (v) access via automated or unauthorized means, interfere with, disrupt or attempt to monitor, override access or circumvent security measures for, the Distinct Platform or related systems, including via robots, spiders and other electronic methods; (vi) use the Distinct Platform in violation of applicable law, rule or regulation, including without limitation laws, rules and regulations concerning privacy and data security; (vii) use the Distinct Platform in any manner that intentionally damages, disables, overburdens, or impairs any of the Distinct websites or interferes with any other party's use of the Distinct Platform, including without limitation by using or launching any automated system that sends more messages to Distinct servers in a given period of time than a human can reasonably produce in the same period; (viii) attempt to gain unauthorized access to the Distinct Platform, including without limitation by breaching, disabling, tampering with, or developing or using (or attempting to do the same) any workaround for the Distinct Platform or any security measure related thereto; (ix) set, read, write, modify or delete any cookie on a Distinct-owned or operated web domain; and/or (x) obscure, remove or alter any proprietary rights or other notices on the Distinct Platform.  If Customer becomes aware of any actual or threatened activity prohibited by this Section, Customer shall immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects, including, where applicable, by discontinuing and preventing any unauthorized access to the Distinct Platform and permanently erasing from their systems any data to which any of them have gained unauthorized access; and (b) notify Distinct of any such actual or threatened activity.  Notwithstanding anything to the contrary herein, Distinct may, in its sole discretion, immediately revoke the grant of rights contemplated in Section 2(B) if Customer breaches the restrictions in this Section or creates other security or legal concerns. 

(D) Technical Restrictions. Distinct reserves the right to limit the number of users, volume of data flows, amount of data storage, and other access and use, as further detailed in the Documentation or an Order Form.  Customer shall not exceed any such limitations provided by Distinct.  Distinct may monitor Customer’s use of the Distinct Platform to confirm compliance with such limitations.  If Distinct believes that Customer has attempted to exceed or circumvent these limitations, Distinct may assess additional Fees, upgrade Customer’s service tier or suspend or block Customer’s access to the Distinct Platform, in each case on written notice to Customer. 

(E) Third Party Materials. Distinct Platform may link to, make available or provide third party products, services, websites, data, software or source code, including without limitation third party websites or social media platforms, open source software and licensed data sources (collectively, “Third Party Materials”).  Distinct has no control over Third Party Materials.  Accordingly, Distinct is not responsible or liable for any Third Party Materials and makes no representation as to the accuracy, usefulness, safety, or intellectual property rights in or relating to such Third Party Materials.  While Distinct has no obligation to monitor Third Party Materials, Distinct may remove or modify such Third Party Materials in its discretion, including without limitation to comply with applicable law.  Customer agrees to comply with all terms and conditions and privacy policies related to any Third Party Materials. 

(F) Trademarks. Distinct grants Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use Distinct’s names, logos, designs, and other trademarks listed in an Order Form (“Distinct Marks”) during the Term and solely for the purposes of displaying such notice as part of the Distinct Platform.  Customer recognizes the validity of the Distinct Marks and Distinct’s ownership and title thereto.  Any goodwill derived from the use of the Distinct Marks by Customer shall inure to the benefit Distinct.  Customer will not challenge the Distinct Marks, or Distinct’s ownership and title thereto, or the USPTO application or registration thereof, either during or subsequent to the term of this Agreement.  Customer shall execute such documents as may be reasonably requested by Distinct, or required by law, to establish Distinct’s sole and exclusive ownership and rights in the Distinct Marks, or to obtain registration thereof.  Customer agrees to use the Distinct Marks consistent with the highest standards of quality so as to protect and maintain the Distinct Marks and Distinct’s rights therein.  To this end, Distinct shall have the right to review and approve the manner of use of the Distinct Marks, and Customer agrees to modify use of any Distinct Marks which do not meet Distinct’s standards.  Notwithstanding the foregoing, Customer may not use any Distinct Marks in any manner implying any partnership with, sponsorship by, or endorsement by Distinct.

(G) Reservation of Rights. Except for the limited rights granted in Section 2(B), Customer does not acquire any rights in the Distinct Materials or Third Party Materials, whether expressly, by implication, estoppel, or otherwise.  All rights not expressly granted to Customer herein are reserved by Distinct and, in the case of Third Party Materials, by the applicable third party provider. 

5. CUSTOMER OBLIGATIONS; CUSTOMER MATERIALS

(A) Customer Manager. Customer shall, throughout the Term, maintain within its organization a manager to serve as Customer’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Distinct Platform and this Agreement. Customer’s manager shall be responsible for providing all day-to-day consents and approvals and Customer represents that such person has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity.

(B) Registration. As part of the registration and/or account creation process Customer will provide Distinct with certain registration information, all of which must be accurate, truthful, and updated.   Distinct reserves the right to deny creation of Customer account based on Distinct’s inability to verify the authenticity of Customer registration information. The use of Customer account by any individual under the age of eighteen (18) is strictly prohibited.

(C) Implementation and Access. Customer shall be responsible, at its sole cost, for procuring all connectivity, equipment and software needed to access the Distinct Platform.  Distinct shall provide Customer with non-transferable access credentials for the Distinct Platform, for use by Customer’s (i) employees, (ii) contractors and service providers acting on its behalf and (ii) third party partners (e.g., sponsors or official partners), provided, however, with respect to any third party partners, such third party partner shall enter into a separate partner Order Form with Distinct (collectively, “Users”).  Customer shall not (i) misrepresent or mask identities when using the Distinct Platform or seeking access credentials; (ii) select or use as a username a name that is already in use or that utilizes the rights of a person or entity other than Customer without appropriate authorization; or (iii) select or use, as Customer’s username, a name that is offensive, vulgar or obscene.  Customer shall safeguard all access credentials provided by Distinct and shall ensure the confidentiality and security thereof.  Customer shall immediately notify Distinct of any known or suspected unauthorized use(s) of Customer account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of Customer login information.  Customer is responsible for all acts and omissions of its Users and all activity on its account(s), including without limitation for any third party to whom it provisions access or who is acting on its behalf.

(D) Customer Systems and Cooperation. Customer shall, on its behalf or on behalf of any Users, at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Documentation and any Order Form all information technology infrastructure, including hardware, software, networks, and systems through which the Distinct Platform is accessed or used (collectively, “Customer System”); and (b) provide Distinct personnel with access to Customer’s or its Users’ premises and Customer Systems, and all other cooperation and access, as is necessary for Distinct to provide the Distinct Platform and to exercise its rights and perform its obligations hereunder.  As between the parties, Customer owns all right, title and interest in and to any Customer Systems.  Distinct is not responsible or liable for any delay or failure of performance caused by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement ("Customer Failure").

(E) Customer Materials; Resultant Data. Customer and/or Customer’s licensors or Users own and shall retain all rights in and to all content and materials that Customer or its Users directly upload, transmit or provide in connection with the Distinct Platform, as further detailed in an Order Form (collectively, “Customer Materials”). Customer hereby grants Distinct an irrevocable, non-exclusive, worldwide, transferable, sublicensable (to Distinct’s Subcontractors), royalty-free, fully paid up right and license during the Term to (i) display, replicate, use and modify the Customer Materials to provide the Distinct Platform or related services, including integrations with third-party applications, and/or (ii) create data, connections and information derived from Customer Materials or Customer’s use of the Distinct Platform (“Resultant Data”), in each case, in accordance with Distinct’s Privacy Policy. Resultant Data may be used for any business purpose of Distinct, including without limitation improving, operating, or developing Distinct’s products and services, or for the purpose of providing certain data analytics services.  Notwithstanding anything to the contrary in the foregoing, Distinct shall own all right, title and interest in and to Resultant Data, and Customer hereby unconditionally and irrevocably assigns all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto. Except for compliance with the foregoing license terms, Distinct is not responsible or liable for any Customer Materials.  For clarity, Customer Materials shall not include any Distinct Materials or Resultant Data.

(F) Customer Materials Warranties. Customer represents and warrants that (i) it owns, or has acquired the express license and written authority to use, all of the Customer Materials as contemplated herein; (ii) the Customer Materials and the receipt, collection, use and provision thereof shall not infringe or violate any third party rights, including without limitation any intellectual property, privacy and publicity rights; (iii) the Customer Materials were received, collected, used and provided to Distinct in compliance with all applicable laws, rules and regulations and self-regulatory guidelines and requirements, including without limitation laws on privacy and data security, unsolicited messaging, unfair or deceptive practices, or United States trade or export restrictions; and (iv) it has obtained all necessary consents, approvals or other authorizations or permissions for, and has complied with its posted terms and conditions and privacy policies and all third-party terms and conditions or privacy policies in connection with its receipt, use and/or provision of the Customer Materials hereunder. 

(G) Data Backups. The Distinct Platform does not replace the need for Customer to maintain regular data backups or redundant data archives.  Customer is solely responsible for ensuring any data retention obligations imposed by applicable law, including healthcare or financial regulations, are met through independent archival measures.  Except as set forth herein, Distinct has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Materials.

6. CONFIDENTIALITY; DATA

(A) Confidentiality; Publicity. Each party agrees that its business, technical and financial information that is designated in writing as confidential, or that should reasonably be considered confidential given the nature of the information and/or the manner or means of disclosure, shall be the confidential property of the disclosing party (“Confidential Information”).  Distinct’s Confidential Information includes the Distinct Materials and Resultant Data.  Each party shall use a reasonable degree of care to safeguard the other party’s Confidential Information in its possession or control.  Confidential Information does not include information that (i) was previously rightfully known to the receiving party without restriction on disclosure; (ii) is or becomes known to the general public, through no fault or breach on the part of the receiving party; (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation; (iv) was independently developed by the receiving party; or (v) is required to be disclosed pursuant to a judicial order or third party subpoena, provided the receiving party provides written notice to the disclosing party in order for the disclosing party to seek an appropriate remedy and only discloses the minimum information required by the order or subpoena.  Neither party shall disclose the terms of this Agreement, except as required by law, or to its attorneys, professional advisors, investors and potential investors bound to obligations of confidentiality substantially similar to those contained herein.  The parties hereby agree that the disclosing party will be entitled, in addition to any other remedies available to it at law or in equity, to injunctive relief to prevent the breach or threatened breach of the receiving party’s obligations under this Section, without any requirement to demonstrate irreparable harm or post a bond.  Customer agrees that Distinct may use Customer’s name, logos and trademark(s) to publicly list and promote Customer as a recipient of the Distinct Platform, via Distinct’s website, social media feeds, public announcements and other marketing materials.

(B) Distinct Data Collection; Privacy. To the extent Distinct processes Personal Information (as defined in the DPA) on behalf of Customer, the parties agree that the Distinct Data Processing Addendum (“DPA”) governs such processing. All data usage by Distinct shall be in accordance with Distinct’s Privacy Policy.   

7. WARRANTIES; LIMITATIONS

(A) Mutual Warranties. Each party represents and warrants that (i) it has the right and authority to enter into this Agreement and perform its obligations, covenants and promises hereunder and (ii) it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation.

(B) Customer Warranties. In additions to its representations and warranties in Sections 4 and 5, Customer further represents and warrants that (i) it has implemented or contractually required industry-standard administrative, technical and physical safeguards designed to protect the security and integrity of, and prevent, unauthorized access to the Distinct Platform, Customer Systems, and Customer Materials; (ii) it will not disrupt, disable, erase, alter, harm, damage, interfere with or otherwise impair in any manner the Distinct Platform; (iii) in the event of any security breach or unauthorized access to any Distinct Platform, Customer Systems and Customer Materials, Customer will immediately investigate and remediate such breach, all at Customer’s cost; (iv) Customer,  the Customer Materials, and Customer’s use of Resultant Data will comply with all applicable laws and not violate or infringe upon any third party intellectual property, privacy or publicity rights; (v) Customer shall include the Distinct Marks and links to Distinct’s disclosures, consents, website, terms and conditions and privacy policies in its customer user flows and emails, in the format to be agreed by the parties; and (vi) except as agreed in an Order Form, and subject to any additional agreements between the parties required by applicable law, Customer Materials shall not contain any “sensitive” Personal Information, including without limitation information of children under thirteen (13) years of age, payment or banking information, or protected health information.

(C) Distinct Product Limitations. Customer use of the Distinct Platform is at Customer’s sole risk.  The Distinct Platform is provided on an “as is” basis.  Distinct expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, non-infringement and title or that the Distinct Platform will meet Customer requirements or result in any outcome, or that the operation will be uninterrupted or error-free.  Customer acknowledges that Distinct has no control over Third Party Materials.  Additionally, Distinct shall not be responsible for any delays or outages caused by any third party systems, platforms or applications, and shall not be responsible for any internet service or cloud-based data host providers.

(D) Beta Offerings. From time to time, Customer may receive access to certain Distinct Platform features on a free, fully discounted or trial basis, or as an alpha, beta or early access offering  (“Beta Offerings”). Customer’s use of any Beta Offering is completely voluntary. The Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information. Notwithstanding anything else in this Agreement, to the maximum extent permitted by law, Distinct provides no warranty or indemnity for Beta Offerings and its aggregate liability for Beta Offerings is limited to $50 U.S. Dollars. Customer agrees that once Customer uses a Beta Offering, Customer Materials may be affected such that Customer may be unable to revert back to a prior non-beta version of the same.

8. INDEMNITY; LIMITATION OF LIABILITY

(A) Customer Indemnity. Customer will defend, indemnify, and hold harmless Distinct and its subsidiaries, affiliates, and parent companies, licensors and partners, and their respective directors, officers, employees, agents, successors and assigns (collectively, “Related Parties”), from and against any losses (including outside attorneys’ fees) arising out of a third party claim related to (i) the use of any Customer Materials or any other Customer products/services as contemplated herein; (ii) Customer’s negligence or willful misconduct, breach of this Agreement (including without limitation Sections 4, 5 and 7), violation of applicable law, or any third party investigation of the acts or practices of Customer (including any costs related to compliance with a third party subpoena or other discovery request); (iii) any security breach or unauthorized access to any Distinct Platform, Customer Systems, and/or Customer Materials; and/or (iv) any allegation of intellectual property, privacy or publicity infringement or violation third-party rights arising out of Customer Materials or Customer’s use of the Distinct Platform or Resultant Data, except for such uses expressly authorized herein. 

(B) Distinct Indemnity. Distinct will defend, indemnify, and hold harmless Customer and its Related Parties from and against any losses (including outside attorneys’ fees) arising out of a third party claim that the authorized use by Customer of the Distinct Platform infringes any U.S. copyright or trade secret (“IP Claim”).  Notwithstanding the foregoing, Distinct shall have no liability or obligation hereunder with respect to any IP Claim arising directly or indirectly from (a) the use of the Distinct Platform in combination with products, services, software, data or systems not provided by Distinct; (b) any modification or unauthorized use of the Distinct Platform or any breach of this Agreement by Customer; (c) any Customer Materials; (d) instructions or directions provided by or on behalf of Customer; (e) any open source software, Third Party Materials or Beta Offerings; or (f) the failure to use corrections or updates provided by Distinct (collectively, “Infringement Exclusions”).  If the Distinct Platform become the subject of any IP Claim that does not fall within the Infringement Exclusions, Distinct may, at its option (x) obtain for Customer the right to continue using the affected component of the Distinct Platform; (y) replace or modify the affected component of the Distinct Platform; or (z) if (x) or (y) cannot be achieved through reasonable efforts, Distinct may immediately terminate this Agreement.  This Section states Distinct’s sole liability with respect to any actual or alleged infringement of intellectual property, privacy or publicity rights by the provision or use of the Distinct Platform. 

(C) Indemnification Process. The party seeking indemnification shall promptly notify the indemnifying party of any claim for which it seeks indemnification; provided, however, that any delay in providing notification shall not impact the indemnifying party’s indemnification obligations, unless the indemnifying party is materially impacted thereby.  The indemnifying party shall have sole control over the defense of a claim, provided that the indemnified party may participate in the defense, at its cost. All settlements of indemnification claims require the consent of the indemnified party.

(D) Limitation of Liability. Except in the event of breach of Customer’s obligations in Sections 4, 5 and 7, in no event shall either party be liable for any indirect, punitive, or consequential damages, including lost profits or business opportunities.  In no event will Distinct’s aggregate liability to Customer exceed the Fees paid by Customer to Distinct in the prior payment period. The exclusions and limitations in this Section 8(D) 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 in this Agreement fails of its essential purpose.

9. TERM; TERMINATION

(A) Term. The initial term of this Agreement shall be set forth in the Order Form (“Initial Term”), unless earlier terminated as permitted herein.  The Initial Term shall automatically renew on a year-to-year basis (“Renewal Term”) (together with the Initial Term, “Term”), unless earlier terminated as permitted herein.  If a party desires to not renew an Order Form for a Renewal Term, such party must notify the other party in writing at least sixty (60) days prior to the expiration of the Initial Term or then-current Renewal Term.

(B) Termination. Distinct may terminate or suspend this Agreement immediately in the event of Customer’s breach or threatened breach of Sections 4, 5, and 7 of this Agreement or in the event any Fees come past due.  Either party may terminate this agreement immediately for (i) material breach if such breach, to the extent curable, remains uncured ten (10) days after notice thereof; or (ii) if a party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation or general assignment for creditors. 

(C) Obligations on Termination. Upon termination or expiration of this Agreement, Customer will immediately stop all use of the Distinct Platform and all applicable rights and access granted to Customer shall automatically terminate and Customer shall cease any further use of Distinct Platform or Confidential Information. Customer is responsible for all charges owed or accrued through the effective date of termination, and in the event of termination of the Agreement for Customer’s material breach or insolvency, any amounts due and owing for the remainder of the Term shall come due and owing. All amounts due hereunder shall be paid on the date of termination or expiration of the Agreement. Terms that by their nature should survive expiration or termination shall so survive. 

10. MISCELLANEOUS

(A) Force Majeure. Except with respect to Customer payment obligations, neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, shortage of materials, failure of transportation or communications or of Distincts of goods or services, power failures, and internet or cloud hosting disturbances, Third Party Materials, pandemics, public health emergencies and the malicious acts of third parties (e.g. cyber-attacks).

(B) Export. Distinct does not represent that materials in the Distinct Platform are appropriate or available for use in any particular location. The Distinct Platform are subject to U.S. export controls and may not be downloaded, exported or re-exported: (i) into (or to a national or resident of) Cuba, Iran, North Korea, Sudan, Syria, or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods; or (ii) to anyone on or acting on behalf of an entity on the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List. 

(C) Independent Contractor. Each party is an independent contractor with respect to the other party hereunder.  This Agreement shall not be construed to (i) create any employment, partnership, joint venture, franchise, master-servant, or agency relationship between the parties, or (ii) authorize any party to enter into any commitment or agreement binding on the other party.

(D) Non-Solicitation. During the Term and for one (1) year after, Customer shall not, and shall not assist any other person in, directly or indirectly, recruiting or soliciting for employment or engagement as an independent contractor any person then or within the prior twelve (12) months employed or engaged by Distinct.  Notwithstanding the foregoing, this Section shall not prohibit general solicitations not aimed at the personnel of Distinct.  In the event of a violation of this Section, in addition to any other remedies available at law or in equity, Distinct will be entitled to liquidated damages equal to the compensation paid by Distinct to the applicable employee or independent contractor during the prior twelve (12) months.  The parties agree that such liquidated damages are fair and reasonable and do not constitute a consequential or indirect harm hereunder, and that Distinct would not have agreed to this Agreement but for such liquidated damages.

(E) Subcontractors; Assignment. Distinct may engage third parties (sometimes called “subprocessors”) or affiliates to perform any of its obligations under this Agreement (collectively, “Subcontractors”). Distinct remains responsible for the performance of its Subcontractors, except with respect to Third Party Materials governed by separate license terms.  For the avoidance of doubt, Subcontractors shall not include the providers of any Third Party Materials. Except to an affiliate or in the event of a merger, acquisition or change of control, neither party may assign or otherwise transfer this Agreement, in whole or in part. 

(F) Governing Law; Jurisdiction. This Agreement shall be governed exclusively by the laws of the State of New York, irrespective of the conflict of law rules of any jurisdiction.  Any dispute arising under this Agreement shall be brought in the state and federal courts located within New York County, New York. 

(G) Notice. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Distinct, to the address listed in an Order Form, or if to Customer, to the email or physical address associated with Customer’s account.

(H) Updating These Terms. Unless otherwise indicated in an Order Form, Distinct may modify this Agreement from time to time in which case Distinct will update the “Last Revised” date at the top of this Agreement.  The updated Agreement will be effective as of the time of posting, or such later date as may be specified in the updated Agreement. Customer’s continued access to or use of the Distinct Platform after the modifications have become effective will be deemed Customer’s acceptance of the modified Agreement.

(I) Severability; Waiver. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable between the parties. Failure of either party to act in the event of a breach this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.

(J) Entire Agreement. This Agreement represents the entire understanding of the parties with respect to the subject matter hereof.  All other terms of Customer, including without limitation the terms on Customer’s invoices, or any other click-wrap or browse wrap terms of Customer, shall be of no force and effect. There shall be no third party beneficiaries under this Agreement.