LENND Service Terms of Service

THESE LENND SERVICE TERMS OF SERVICE TERMS (THESE{' '} "TERMS") ARE A LEGAL AGREEMENT THAT GOVERNS YOUR USE OF THE LENND SERVICE AND THE PROVISION OF RELATED SERVICES BY LENND, INC. ("PARTNER" ). BY ACCEPTING THESE TERMS, OR BY USING THE LENND SERVICE, YOU ( "CUSTOMER") AGREE TO ALL OF THESE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE LENND SERVICE. PARTNER MAY MAKE CHANGES TO THE LENND SERVICE AT ANY TIME. IN ADDITION, PARTNER MAY MAKE CHANGES TO THESE TERMS AT ANY TIME, AND WILL POST NOTIFICATION OF SUCH CHANGES ON THE LENND SERVICE. CUSTOMER'S CONTINUED USE OF THE LENND SERVICE AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER'S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.

  1. DEFINITIONS.
    • 1.1 "Activation Date" means the date on which Customer first subscribes to use the LENND Service.
    • 1.2 "Ancillary Services" means implementation, training or consulting services that Partner may perform as described in a SOW executed by the parties.
    • 1.3 "Contact" means the record of the information, including without limitation, the name, phone number, and email address, of Customer's employees, consultants, contractors and any third parties that Customer includes, inputs, uploads, manages or processes in the LENND Service and designates as a "Contact."
    • 1.4 "Customer Content" means all content and data submitted, entered or posted to the LENND Service by or on behalf of Customer or any User, including without limitation any Contacts.
    • 1.5 "Customer System" means Customer's internal website(s), servers and other equipment and software used in the conduct of Customer's business.
    • 1.6 "Documentation" means the online user instructions and help files made available by Partner for use with the LENND Service, as may be updated from time to time by Partner.
    • 1.7 "Event"{' '} means an event, production, convention, meeting, project or activity for which Customer has subscribed to manage using the LENND Service.
    • 1.8 "Intellectual Property Rights" means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
    • 1.9 "Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
    • 1.10 "Open Source Software" means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
    • 1.11 "Services" means the LENND Service, Ancillary Services and Support Services.
    • 1.12 "Statement of Work" or "SOW"{' '} means a written statement of work entered into and signed by the parties describing Ancillary Services to be provided by Partner to Customer.
    • 1.13 "Subscription Term" means the period for which Customer's has subscribed to use LENND Service under these Terms.
    • 1.14 "LENND Service" means Partner's web-based event operations platform, provided by Partner to Customer pursuant to these Terms.
    • 1.15 "Support Services" means the support and maintenance services offered by Partner and any upgraded or premium support and maintenance services, if made available by Partner and purchased by Customer separately.
    • 1.16 "Users" means Customer's employees, consultants, contractors, agents and third parties with whom Customer may transact business and (a) for whom access to the LENND Service during the Subscription Term has been purchased, (b) who are authorized by Customer to access and use the LENND Service, and (c) who have been supplied user identifications and passwords for such purpose by Customer (or by Partner at Customer's request).
  2. ORDERS; LICENSES; AND RESTRICTIONS. *
    • 2.1 Subscriptions. Subject to the terms and conditions contained in these Terms, Customer may purchase a subscription to use the LENND Service via Partner's online ordering system. Customer shall specify the features and functionality of the LENND Service that Customer desires to access and use, the Event(s) that Customer would like to manage using the LENND Service, and the number of Contacts that Customer will manage using the LENND Service. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Partner regarding any future functionality or features.
    • 2.2 Access and Use License. Subject to Customer's compliance with the terms and conditions contained in these Terms, Partner hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Users to access and use the LENND Service in accordance with the Documentation in each case solely for Customer's internal business purposes and not for the benefit of any other person or entity. Customer's use of the LENND Service may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Content, including without limitation the number of Contacts and Events.
    • 2.3 Restrictions. * Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the LENND Service; (b) modify, translate, or create derivative works based on any element of the LENND Service or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the LENND Service; (d) use the LENND Service for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (e) remove any proprietary notices from the Documentation; (f) use the LENND Service for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the LENND Service; (g) attempt to gain unauthorized access to the LENND Service or Partner's related systems or networks; or (h) disclose any pricing terms without Partner's prior written approval.
    • 2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by Partner.
  3. THIRD PARTY HOSTING.
    • 3.1 Third Party Hosting. Partner may use the services of one or more third parties to deliver any part of the Services. Partner will pass-through any warranties to the extent that Partner receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
  4. PASSWORDS; CONTENT.
    • 4.1 Passwords. Partner will issue user logins and passwords for Customer and its Users to access and use the LENND Service. Customer shall be, and shall ensure that each of its Users are, responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the User to which it was issued. Customer is solely responsible for any and all access and use of the LENND Service that occurs using the logins and passwords issued to any of its Users. Customer shall restrict its Users from sharing passwords. Customer agrees to immediately notify Partner of any unauthorized use of any account or login and password issued to Customer's Users, or any other breach of security known to Customer. Partner shall have no liability for any loss or damage arising from Customer's failure to comply with the terms set forth in this Section.
    • 4.2 No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of the LENND Service. Customer will immediately notify Partner of any breach, or attempted breach, of security known to Customer.
    • 4.3 Integrity of Customer Content. Partner will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards to protect the integrity of the Customer Content. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any precautions deployed by Partner, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and gain access to the LENND Service and Customer Content. Partner cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any precautions will be adequate or sufficient.
  5. CUSTOMER OBLIGATIONS.
    • 5.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer and its Users to access and use the LENND Service via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the LENND Service via the Internet; (c) paying all third party fees and access charges incurred in connection with the foregoing; and (d) providing all necessary notices and securing all necessary permissions from individuals, employees, consultants, contractors, agents and third parties regarding: (i) Customer's submission of Contact information, including personal information, relating to or identifying such individuals, employees, consultants, contractors, agents and third parties (the{' '} "Contact Information") to the LENND Service, and (ii) the processing, use, storage, maintenance and handling of Contact Information as part of the LENND Service . Except as specifically set forth in these Terms or a Statement of Work, Partner shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
    • 5.2 Acceptable Use. Customer shall be solely responsible for its actions and the actions of its Users while using the LENND Service. Customer, on behalf of itself and its Users acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to the use of the LENND Service, including without limitation the provision and storage of Customer Content; (b) not to send or store data on or to the LENND Service which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the LENND Service or another's computer or mobile device; (d) not to upload in any way any data regarding an individual's financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either "Protected Health Information" subject to and defined by the Health Insurance Portability and Accountability Act, or an individual's first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual's financial account; (e) not to distribute, promote or transmit through the LENND Service any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (f) not to interfere with another customer's use and enjoyment of the LENND Service or another person or entity's use and enjoyment of similar services; (g) to comply with all regulations, policies and procedures of networks connected to the LENND Service and Partner's service providers; and (h) to use the LENND Service only in accordance with the Documentation. Customer acknowledges and agrees that Partner neither endorses the contents of any Customer communications, Customer Content nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. Partner may remove any violating content posted or stored using the LENND Service or transmitted through the LENND Service, without notice to Customer. Notwithstanding the foregoing, Partner does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Content or any other information or data input into or stored in the LENND Service for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Content input into the LENND Service. Partner reserves the right to amend, alter, or modify Customer's conduct requirements as set forth in these Terms at any time. Partner may deliver notice of such updated requirements to Customer via e-mail or through the LENND Service. Customer's continued access to and use of the LENND Service following issuance of such updated Customer requirements shall constitute Customer's acceptance thereof. Partner may upon written notice to Customer amend this Section 5.2.
    • 5.3{' '} Accuracy of Customer's Contact Information; Email Notices . Customer agrees to provide accurate, current and complete information as necessary for Partner to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform Partner of any changes in Customer's legal business name, address, email address and phone number. Customer agrees to accept emails from Partner at the e-mail addresses specified by its Users for login purposes. In addition, Customer agrees that Partner may rely and act on all information and instructions provided to Partner by Users from the above-specified e-mail address.
    • 5.4 Temporary Suspension. Partner may temporarily suspend Customer's or its Users' access to the LENND Service in the event that either Customer or any User is engaged in, or Partner in good faith suspects Customer or any User is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Partner will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Partner's exercise of the suspension rights herein shall not be conditioned upon Customer's receipt of any notification. A suspension may take effect for Customer's entire account and Customer understands that such suspension would therefore include User sub-accounts. Customer agrees that Partner shall not be liable to Customer, any of its Users, or any other third party if Partner exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Partner's reasonable satisfaction, Partner shall reinstate Customer's and its Users' access and use of the LENND Service. Notwithstanding anything in this Section to the contrary, Partner's suspension of LENND Service is in addition to any other remedies that Partner may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Partner may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
    • 5.5 Evaluations. At Partner's request, Customer will provide Partner with written or oral report(s) of the results of Customer's evaluation of the LENND Service, including, but not limited to, a report of any errors that Customer has discovered in the LENND Service.
  6. AVAILABILITY; SUPPORT SERVICES.
    • 6.1 Availability. Subject to the terms and conditions of these Terms, Partner will use commercially reasonable efforts to make the LENND Service available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Partner's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, and Internet service provider failures or delays.
    • 6.2 Support. Partner shall make available to Customer the Support Services described on Partner's website. Certain enhancements to the LENND Service made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the LENND Service may require the payment of additional fees, and Partner will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the LENND Service includes, any enhancements, updates, upgrades and new modules to the LENND Service subsequently provided by Partner to Customer hereunder.
  7. ANCILLARY SERVICES. Partner shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable mutually executed SOWs. Each SOW will include, at a minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a "Deliverable" ), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. All SOWs shall be deemed part of and subject to these Terms. If there is any inconsistency between an SOW and these Terms, the SOW shall control. If either Customer or Partner requests a change to the scope of Ancillary Services described in a SOW, the party seeking the change shall propose such change by written notice. Promptly following the other party's receipt of the written notice, the parties shall discuss and agree upon the proposed changes. Partner will prepare a change order document describing the agreed changes to the SOW and any applicable change in fees and expenses (a{' '} "Change Order" ). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, these Terms. Partner and Customer shall cooperate to enable Partner to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each SOW. In addition, Customer shall perform any Customer obligations specified in each SOW. In the event the Ancillary Services are not performed in accordance with the terms of the applicable SOW, Customer shall notify Partner in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services by Partner. Customer's notice shall specify the basis for non-compliance with the SOW and, if Partner agrees with the basis for non-compliance, then at Partner's sole option, Partner shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service. THE FOREGOING CONSTITUTES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND PARTNER'S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.
  8. FEES AND PAYMENT.
    • 8.1 Fees. Customer agrees to pay all fees specified in applicable SOWs and the recurring fees and charges set forth in Partner's then-current pricing schedule for use of the LENND Service and other Services (collectively{' '} "Fees") using one of the payment methods Partner supports. Except as otherwise specified in these Terms or an applicable SOW, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services purchased, regardless of actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) Partner shall charge Customer additional subscription fees for each Event added after the first Event and for every additional one-thousand (1,000) Contacts added by the Customer. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
    • 8.2 Payment.{' '} When Customer registers for a subscription to use the paid version of the LENND Service (a " Subscription "), or adds Events or Contacts, Partner will charge Customer's credit card on the date that Partner processes the order for the Subscription or for the additional Events or Contacts. Subscriptions and the rights and privileges provided are non-transferable. By providing a payment method, Customer expressly authorizes Partner and/or Partner's third party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals. Customer agrees that Partner may invoice Customer for any unpaid fees, including without limitation any amounts owed by Customer that cannot be processed.{' '} Customer is responsible for providing complete and accurate billing and contact information to Partner and notifying Partner of any changes to such information.
    • 8.3 Automatic Renewals . IMPORTANT NOTICE {' '} : Unless Customer cancels prior to the expiration of its current Subscription Term (pursuant to Section{' '} {' '} 13 * ), Partner will automatically renew the Subscription on each monthly or yearly (depending on the Subscription Term Customer has chosen) anniversary of the date that Partner charged Customer's credit card for the first Subscription fee.{' '} Such charge will include the applicable renewal fee for and any taxes that may he imposed on such fee payments. * {' '} The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless Partner has given Customer written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter; provided however that no such pricing increase shall occur until after expiration of the then current Subscription Term. If Customer signs up for a subscription that includes a free-trial period, unless Customer has cancelled its subscription prior to the expiration of the free-trial period, Partner will automatically charge Customer's payment method for the first monthly or yearly membership fee upon the expiration of the free trial period and upon each subsequent membership fee on the anniversary of the date of the first billing.
    • 8.4 Overdue Charges. If Partner is unable to process Customer's payment for a Subscription or any additional Services, or in the event that Partner invoices Customer, Partner does not receive fees by the due date, then at Partner's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Partner may condition future purchases of Services on payment terms shorter than those specified in Section 8.1 (Invoices and Payment).
    • 8.5 Suspension of Service. If any amounts owed by Customer cannot be processed or are thirty (30) or more days overdue, Partner may, without limiting Partner's other rights and remedies, suspend Customer's and its Users' access to the Services until such amounts are paid in full.
    • 8.6 Payment Disputes. Partner agrees that it will not exercise its rights under Section 8.4 (Overdue Charges) or Section 8.5 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
    • 8.7 Taxes. "Taxes" means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with these Terms or any instrument, SOW or ancillary agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party's net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under these Terms, or under any SOW or similar document ancillary to or referenced by these Terms, shall not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, Partner has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by Partner unless Customer has furnished Partner with valid tax exemption documentation regarding such Taxes at the execution of these Terms or at the execution of any subsequent instrument, SOW or agreement ancillary to or referenced by these Terms. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify Partner for any Taxes and related costs paid or payable by Partner attributable to Taxes that would have been Customer's responsibility under this Section 7.7 if invoiced to Customer. Customer shall promptly pay or reimburse Partner for all costs and damages related to any liability incurred by Partner as a result of Customer's non-compliance or delay with its responsibilities herein. Customer's obligation under this Section 8.7 shall survive the termination or expiration of these Terms.
  9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
    • 9.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
    • 9.2 Disclaimer. EXCEPT FORTHE WARRANTIES SET FORTH IN THIS SECTION 9, THE LENND SERVICE, ANCILLARY SERVICES AND SUPPORT SERVICES, ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER'S USE OF THE LENND SERVICE, SUPPORT SERVICES, ANCILLARY SERVICES AND DELIVERABLES IS AT ITS OWN RISK. PARTNER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANY WARRANTIES MADE BY PARTNER ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH THE LENND SERVICE ARE LICENSED AND NOT SOLD.

NO AGENT OF PARTNER IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF PARTNER AS SET FORTH HEREIN. PARTNER DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PARTNER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

  1. INDEMNIFICATION.
    • 10.1 Partner Indemnity.
    • (a) General. Partner, at its expense, shall defend Customer and its officers, directors and employees (the "{' '} Customer Indemnified Parties" )from and against all actions, proceedings, claims and demands by a third party (a "Third-Party Claim" )alleging that the LENND Service infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys' fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Customer Indemnified Parties from any such Third-Party Claim. Partner's obligations under this Section are conditioned upon (i) Partner being promptly notified in writing of any claim under this Section, (ii) Partner having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at Partner's expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without Partner's prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to Partner's right to control the defense and settlement.
    • (b) Mitigation. If any claim which Partner is obligated to defend has occurred, or in Partner's determination is likely to occur, Partner may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the LENND Service, (b) substitute a functionally equivalent, non-infringing replacement for such the LENND Service, (c) modify the LENND Service to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the LENND Service due to such claim and the remaining days in the then-current Subscription Term.
    • (c) Exclusions. Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) the use of infringing or misappropriated Customer Content; (ii) use of the LENND Service in combination with any software, hardware, network or system not supplied by Partner where the alleged infringement relates to such combination, (iii) any modification or alteration of the LENND Service other than by Partner, (iv) Customer's continued use of the LENND Service after Partner notifies Customer to discontinue use because of an infringement claim, (v) use of Open Source Software; (vi) Customer's violation of applicable law; and (vii) the Customer System.
    • (d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF PARTNER WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE LENND SERVICE OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF PARTNER WITH RESPECT THERETO.
    • 10.2 Customer Indemnity. Customer shall defend Partner, its licensors and their respective officers, directors and employees ("Partner Indemnified Parties") from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Content or Customer System (and the exercise by Partner of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party's Intellectual Property Rights; (b) Customer's use or alleged use of the LENND Service other than as permitted under these Terms; or (c) the occurrence of any of the exclusions set forth in Section 10.1(c); or (d) the failure of Customer to provide any necessary notices to or obtain any necessary consents from any individuals, employees, consultants, contractors, agents and third parties for whom Contact Information is provided to the LENND Service. Customer shall pay all damages, costs and expenses, including attorneys' fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the Partner Indemnified Parties from any such Third-Party Claim. Customer's obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Partner providing all reasonable assistance (at Customer's expense and reasonable request) in the defense of such claim. In no event shall Partner settle any claim without Customer's prior written approval. Partner may, at its own expense, engage separate counsel to advise Partner regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer's right to control the defense and settlement.
  2. PROPRIETARY RIGHTS.
    • 11.1 LENND Service. As between Partner and Customer, all right, title and interest in the LENND Service and any other Partner materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Partner, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Partner or Partner's licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Partner all evaluations, ideas, feedback and suggestions made by Customer to Partner regarding the LENND Service (collectively,{' '} "Feedback") and all Intellectual Property Rights in the Feedback.
    • 11.2{' '} Customer Content.{' '} * As between Partner and Customer, all right, title and interest in the Customer Content is retained solely by Customer. Unless otherwise explicitly stated herein or in Partner's Privacy Policy, Customer agrees that any Customer Content provided by Customer in connection with the Services is provided on a non-proprietary and non-confidential basis. Customer hereby grants to Partner a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license (including the right to sublicense through multiple tiers) to use, reproduce, process, adapt, publicly perform, publicly display, modify, prepare derivative works, publish, transmit and distribute the Customer Content or any portion thereof, in any form, medium or distribution method now known or hereafter existing, known or developed, and authorize others to do the same, for the purposes of providing the services * . {' '} Partner may modify or adapt the Customer Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to the Customer Content as necessary to conform and adapt them to any requirements or limitations of any networks, devices, services or media or for any other purpose, at Partner's sole discretion. As between Partner and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
    • 11.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Partner may monitor Customer's use of the Services and use data and information related to such use and Customer Content in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the LENND Service ("Aggregated Statistics" ). As between Partner and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Partner. Customer acknowledges that Partner will be compiling Aggregated Statistics based on Customer Content and information input by other customers into the LENND Service and Customer agrees that Partner may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer.
    • 11.4 Partner Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Partner, whether solely or jointly, including without limitation, in connection with Partner's performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable SOW) all Deliverables ("Partner Developments") and all Intellectual Property Rights therein, shall be the sole and exclusive property of Partner. Customer agrees that, except for Customer Content, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Partner Developments is not, by operation of law or otherwise, vested in Partner, Customer hereby assigns and agrees to assign to Partner all right, title and interest in and to such Partner Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
    • 11.5 Further Assurances. To the extent any of the rights, title and interest in and to Feedback or Partner Developments or Intellectual Property Rights therein cannot be assigned by Customer to Partner, Customer hereby grants to Partner an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. To the extent that the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Partner those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Partner may reasonably request, to perfect ownership of the Feedback and Partner Developments. If Customer is unable or unwilling to execute any such document or take any such action, Partner may execute such document and take such action on Customer's behalf as Customer's agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
    • 11.6 License to Deliverables. Subject to Customer's compliance with these Terms, Partner hereby grants Customer a limited, non-exclusive, non-transferable license during the Subscription Term to use the Deliverables solely in connection with Customer's authorized use of the LENND Service. Notwithstanding any other provision of these Terms: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise ( "Tools") used by Partner to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term "Deliverables" shall not include the Tools.
  3. LIMITATION OF LIABILITY.
    • 12.1 *No Consequential Damages. * NEITHER PARTNER NOR ITS LICENSORS OR PARTNERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF PARTNER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE LENND SERVICE, ANCILLARY SERVICES, SUPPORT SERVICES OR THE RESULTS THEREOF. PARTNER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
    • 12.2 Limits on Liability. NEITHER PARTNER NOR ITS LICENSORS OR PARTNERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CUSTOMER TO PARTNER UNDER THESE TERMS DURING THE PERIOD OF TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
    • 12.3 Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 12 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
  4. TERM AND TERMINATION.
    • 13.1 Term. The term of these Terms commence on the Activation Date and continue until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms. Subscription Terms shall automatically renew for an additional period equal to{' '} twelve (12) months unless one party gives the other written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Term.
    • 13.2 Termination for Cause. A party may terminate these Terms (and all Subscription Term(s)) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the non-defaulting party or such other period as the parties may agree. Upon any termination for cause by Customer, Partner shall refund Customer any prepaid fees for the remainder of the terminated Subscription Term after the effective termination date. Upon any termination for cause by Partner, Customer shall pay any unpaid fees covering the remainder of all Subscription Terms after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to Partner for the period prior to the effective date of termination.
    • 13.3 Termination for Convenience. At any time after the initial Subscription Term, Customer shall have the right to terminate any subsequent Subscription Term for convenience on at least sixty (60) days prior written notice to Partner; provided, however, that (i) under no circumstances shall Customer be entitled to any refund of any Fees for such terminated Subscription Term, and (ii) in the event that Customer subscribes for a new subscription with Partner after such termination for convenience, Partner will not provide access to Customer Content from the subscription terminated for convenience under this Section. Partner shall have the right to terminate any Subscription Term for convenience on written notice to Customer. If Partner exercises such termination right, Partner shall refund to customer the amount of any pre-paid fees for the remainder of the terminated subscription.
    • 13.4 Effects of Termination. Upon expiration or termination of these Terms, (a) Customer's use of and access to the LENND Service and the performance of all Support Services and Ancillary Services shall cease; (b) all Statements of Work shall terminate; and (c) all fees and other amounts owed to Partner shall be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Statement of Work up through the date of termination for any Ancillary Services completed and a pro-rated portion of the Fees incurred for any partially completed Ancillary Services.. Partner shall have no obligation to maintain or provide any Customer Content and may thereafter, unless legally prohibited, delete all Customer Content in its systems or otherwise in its possession or under its control.
    • 13.5 Survival. This Section and Sections 1, 2.3, 9.2, 10, 11 , 12, 13.4, and 14 shall survive any termination or expiration of these Terms unless limited therein to the Subscription Term.
  5. MISCELLANEOUS.
    • 14.1 Notices. Partner may give notice to Customer by means of a general notice through the LENND Service interface, electronic mail to Customer's e-mail address on record with Partner, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer's address on record with Partner. Customer may give notice to Partner by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to LENND, Inc. 116 Solana Vista Drive, Solana Beach California 92075 Attention: Chris Carver. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
    • 14.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be California, United States. Notwithstanding the foregoing, Partner has the right to pursue equitable relief in the state and federal courts located in California, and Customer agrees to the exclusive jurisdiction and venue of such courts.
    • 14.3 Publicity. Partner has the right to reference and use Customer's name and trademarks and disclose the nature of the Services provided hereunder in each case in Partner business development and marketing efforts, including without limitation Partner's web site.
    • 14.4 No Solicitation of Employees. Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of Partner without Partner's prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, only job postings and social networking sites.
    • 14.5 U.S. Government Customers. If Customer is a Federal Government entity, Partner provides the LENND Service, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the LENND Service include only those rights customarily provided to the public, as defined in these Terms. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). * * If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.
    • 14.6 Export. The LENND Service utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively,{' '} "Embargoed Countries" ), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively,{' '} "Designated Nationals" ). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the LENND Service, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The LENND Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Partner and its licensors make no representation that the LENND Service is appropriate or available for use in other locations.
    • 14.7 Anti-Corruption; OFAC. Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of Partner in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify Partner. Customer represents and warrants to Partner that none of (a) Customer, (b) each person or entity owning an interest in any of them nor (c) their respective personnel are (x) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury ("OFAC") nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and (y) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.
    • 14.8 Waiver. No term or provision of these Terms shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.
    • 14.9 Severability. If any provision of these Terms is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve as closely as possible the economic effect of the original term and all other provisions shall continue in full force and effect.
    • 14.10 Assignment. Customer may not assign its rights or delegate its obligations under these Terms or any SOW to any third party, whether voluntarily or by operation of law or otherwise (including in connection with any merger or acquisition involving Customer), without the prior written consent of Partner, such consent not to be unreasonably withheld, and subject to Customer paying any applicable transfer or set-up fees. Any purported assignment or transfer in violation of this section shall be void. Subject to the foregoing restrictions, these Terms will bind and benefit the parties and their successors and permitted assigns.
    • 14.11 Relationship of the Parties. Partner is an independent contractor to Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
    • 14.12 Attorneys' Fees. In any action to enforce these Terms, the prevailing party shall be awarded all court costs and reasonable attorneys' fees incurred, including such costs and attorneys' fees incurred in enforcing and collecting any judgment.
    • 14.13 Force Majeure. Except for Customer's payment obligations, neither party shall be liable for any failure or delay in performance under these Terms due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot, acts of God or the public enemy; strikes or other labor problems; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of these Terms); or any other event beyond the reasonable control of the party whose performance is to be excused.
    • 14.14 Entire Agreement. These Terms and the terms of any applicable SOW constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.