Thank you for using our service! These terms of use (the "Agreement") govern access to and use of the interconnection.fyi services offered from time to time ("Services") of CS Technology Ventures, LLC (hereinafter, "Company"), provided through our website (the "Platform") to you ("Customer"), so please carefully read them before using the Platform and Services. These terms, including our Privacy Policy, as set forth from time to time at our website (the "Privacy Policy") which is hereby incorporated into this Agreement by reference, together any Order Forms applicable from time to time establish the legal terms and conditions of the agreement between us governing your use and our provision of the Platform and Services. IMPORTANT WARNINGS PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT REQUIRES BOTH PARTIES TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, EACH PARTY EXPRESSLY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS ALL OF THE TERMS OF THIS AGREEMENT AND HAS TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. For more details, go to Section 12.3. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Definitions and Construction. Capitalized terms in this Agreement have the meanings indicated in Exhibit A unless the context otherwise requires, which meaning will be equally applicable to both the singular and plural forms of those terms. In this Agreement, unless a clear contrary intention appears (a) "Section" and "Exhibit" refer to sections and exhibits of or to this Agreement; (b) "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term, (c) where any word or phrase is given a definite meaning, any part of speech or other grammatical form of that word or phrase has a corresponding meaning, (d) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating that period will be excluded and, if the last day of that period is not a business day, the period will end on the next business day, and (e) any reference to a consent, determination or other exercise of discretion by Company, unless expressly provided to the contrary, means a determination for exercise of discretion in Company's sole and absolute discretion. 2. Hosted Service. 2.1 Company will make the Hosted Service available to Customer and its Users pursuant to this Agreement and the applicable Order Form during each Subscription Term. In the event of a conflict between an Order Form and the terms of this Agreement, the Order Form will control. Customer agrees that its purchases under this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Company regarding future functionality or features. Customer will be responsible for Users' compliance with this Agreement. The Hosted Service may automatically deactivate and become non-operational at the end of the Subscription Term, and Customer will not be entitled to access the Hosted Service unless the Subscription Term is renewed. 2.2 Customer will not: (a) sub-license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Service or any Licensed Materials available to any third party other than Users for Customer's internal purposes, or use the Hosted Service to bulk download material portions of the database underlying the Hosted Service, except for any additional uses expressly permitted by the applicable Order Form with express reference to this Section 2.2; (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Hosted Service for any purpose; (c) remove or alter any restrictive or ownership legends, trademarks, trade names, copyright legends and other identifications appearing on or in the Hosted Service, the Licensed Materials or the Documentation and will reproduce such legends, trademarks, trade names, copyright legends and other identifications on any copies it makes of the Licensed Material or Documentation, (d) access or use the Hosted Service or any Licensed Materials in order to build a similar or competitive product or service; (e) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information. Except as expressly stated in this Agreement, no part of the Hosted Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including electronic, mechanical, photocopying, recording, or other means. Customer will make reasonable efforts to prevent unauthorized third parties from accessing the Hosted Service, and notify Company promptly of any such unauthorized access or use. 2.3 Company reserves the right to change or upgrade any equipment or software that Company uses to provide the Hosted Service without notice to Customer. Company may install security patches, updates, upgrades, modifications and service packs with respect to the Hosted Service ("Updates") as Company determines in its discretion, and Company reserves the right, but not the obligation, to roll back any Updates. Updates may change system behavior and functionality and as such may negatively affect the Services used by Customer. Company will not be responsible or liable for service disruption or changes in functionality or performance due to Updates. Company will not be responsible or liable for issues that may arise from incompatibilities between Customer's systems or software and any Update or hardware or software change or configuration, regardless of whether discretionary or requested. 2.4 Customer is responsible for safeguarding the username, password and other access credentials that Customer uses to access the Hosted Service ("Access Credentials") and Customer agrees not to disclose Customer's Access Credentials to any third party. Customer is responsible for any activity using Customer's Access Credentials, whether or not Customer authorized that activity. Customer will immediately notify Company of any unauthorized use of Customer's account and of any actual or potential disclosure of Customer's Access Credentials. Customer acknowledges that if Customer wishes to protect Customer's transmission of data or files to Company, it is Customer's responsibility to use a secure encrypted connection to communicate with the Platform and Services. Company makes no representations or warranties as to the security of any such encrypted connection, however, and Customer agrees that Company will have no liability if it fails to protect Customer's transmission. 2.5 Company may use technological means to place reasonable use limits to prohibit excessive use, including excessive downloads or screen views, that Company believes, in its reasonable discretion, indicate a violation of this Agreement, such as sharing access with third parties or attempting to circumvent limitations. 3. Ownership. 3.1 As between the parties, Company will own and retain all right, title and interest in and to the Hosted Service and Licensed Materials, including all intellectual property rights. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement. As between the parties, Customer will own all right, title and interest in and to any Customer Data. Customer grants to Company the non-exclusive, worldwide right to copy, adapt, transmit, communicate, display, distribute and create compilations and derivative works of the Customer Data solely for the purpose of providing the Hosted Service to Customer. Notwithstanding the foregoing, Company reserves the right to monitor, record and use data as to Customer's use of the Platform to improve or enhance the Platform and the Hosted Service, including the use of such usage data to compile, use and disclose anonymous, aggregated statistics, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer's Users. Customer will be solely responsible for ensuring that Customer has obtained all necessary third-party consents and made all required disclosures in connection with the foregoing grant. In addition, Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Data. 3.2 Subject to the terms and conditions of this Agreement, Company grants to Customer a limited, non-exclusive, non-transferable, worldwide license, without the right to sublicense to use the Licensed Materials solely for (a) internal purposes, and (b) uses expressly permitted in the applicable Order Form with express reference to this Section 3.2, and (the "Permitted Purpose"). Customer may make copies of the Licensed Materials as reasonably necessary for the Permitted Purpose. 3.3 For clarification, (a) the uses of Licensed Materials permitted under Section 3.2 are subject to the provisions of Section 2.2(b) – (e), and (b) nothing in Section 3.2 will be deemed to permit any publication or public display or access to the Hosted Service, Licensed Materials or Documentation. 3.4 Customer may choose or Company may invite Customer to submit comments or ideas about the Hosted Service, including about how to improve the Hosted Service ("Feedback"). By submitting Feedback, Customer agrees that its submissions are gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that Company is free to use the Feedback without any additional compensation to Customer, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer's submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than Customer. 3.5 The parties understand and agree that monetary damages will not be sufficient to avoid or compensate for Customer's use of the Hosted Service other than as authorized under this Agreement, and that injunctive relief would be appropriate to prevent any such actual or threatened use or disclosure. 4. Billing And Payment. 4.1 Except as otherwise set forth in an Order Form, Customer agrees to pay in advance for the Hosted Service ordered. To the extent an Order Form expressly provides for fixed fees, unless otherwise provided, the fees set forth in each Order Form will be fixed only during the first Subscription Term. Fees for each Subscription Term will be invoiced, if applicable, in advance approximately 30 days before the start of each subsequent Subscription Term or charged automatically at the start of each subsequent Subscription Term. All fees under this Agreement are nonrefundable except as otherwise set forth in this Agreement. Company's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer will be responsible for payment of all those taxes, levies, or duties, even if the amounts are not listed by Company. 4.2 Except as otherwise provided in an Order Form, payment for invoices is due within 30 days of Customer's receipt of the applicable invoice (excluding amounts under reasonable and good faith dispute). If any amounts are withheld by Customer, Customer will, within the Dispute Period provide Company a reasonably detailed written explanation of the nature of the dispute, which explanation will set forth the dollar amounts withheld and the reasons for withholding those amounts. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute will be deemed waived. For clarity, Customer remains obligated to pay Company for all fees when due, regardless of any dispute. Overdue amounts are subject to interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower, and may result in suspension of Customer's ability to access the Hosted Service until payment is made, at Company's discretion. Customer will reimburse Company for all reasonable, actual costs (including reasonable attorneys' fees) incurred by Company in the collection of overdue amounts. 4.3 On reasonable advance notice, Customer will permit Company and/or its designated representatives, during normal business hours and at Company's sole cost and expense, to verify Customer's compliance with the license terms of this Agreement, including the number of authorized Users, the scope of permitted use, and any redistribution restrictions set forth in this Agreement or the applicable Order Form, provided that Company will not exercise its rights under this Section 4.3 more than once in any 12-month period. If a verification under this Section 4.3 reveals an underpayment by Customer, Customer will make all payments required to eliminate the underpayment within 30 days after Company's demand by notice. All information inspected by Company or its designees under this Section 4.3 will be deemed Confidential Information of Customer. 5. Contributing UGC to Services. 5.1 User Responsibility. Company does not pre-screen all UGC and does not endorse or approve any UGC that any User may Upload to the Hosted Service. Customer is solely responsible for its Users' UGC and may be held liable for UGC those Users post. Customer bears the entire risk of the completeness, accuracy and/or usefulness of other customers' UGC shared with Customer on the Hosted Service. 5.2 Intellectual Property. Company respects the Intellectual Property of others. Customer must have the legal right to Upload to the Hosted Service any UGC Uploaded to the Hosted Service by Customer's Users. Customer may not Upload any UGC to the Hosted Service that infringes the Intellectual Property or any other rights of a third party nor may Customer Upload to the Hosted Service any UGC in violation of applicable Legal Requirement or this Agreement. Customer may Upload to the Hosted Service only UGC that Customer is permitted to Upload by the owner or by applicable Legal Requirement. Company may, without prior notice to Customer and in its discretion, remove UGC that Company believes may infringe the Intellectual Property or other rights of a third party. 5.3 Treatment of UGC. Company reserves the right (but has no obligation except as required by applicable Legal Requirement) to remove, block, edit, move or disable UGC for any reason, including when Company determines that UGC violates this Agreement. The decision to remove UGC at any time is in Company's discretion. To the maximum extent permitted by applicable Legal Requirement, Company does not assume any responsibility or liability for UGC or for removal of, UGC or any failure to or delay in removing, UGC or other Content. 5.4 Take Down Procedure. If Customer believes that Customer's or any other person's Intellectual Property have been infringed by someone else on the Hosted Service, Customer may contact Company by e-mailing the following information to [email protected]: (a) a description of the Intellectual Property and an explanation as to how it has been infringed; (b) a description of where the infringing material is located; (c) the complaining person's address, phone number and email address; (d) a statement, made under penalty of perjury, that (i) Customer has a good-faith belief that the disputed use of material in which that person owns Intellectual Property is not authorized, (ii) the information provided is accurate, correct, and (iii) that Customer is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (e) a physical or electronic signature of Customer. 5.5 UGC License Grant. If Customer uses the Hosted Service to share UGC with another user of the Hosted Service, except as expressly communicated by that other user to the recipient in writing at the time of transmittal, then Customer grants that recipient the right to use, copy, modify, display, perform, create derivative works from, and otherwise communicate and distribute the UGC shared through the Hosted Service without further notice, attribution or compensation to Customer, subject to the recipient's obligations to the Company and under applicable Legal Requirement. Company has no liability for Customer's violation of this Agreement, including this Section 5 and Section 7, or any third party's violation of Legal Requirement or of any agreement between that third party and Company. 5.6 Company Has No Duty to Monitor. There is no requirement or expectation that Company will monitor or record any online activity on the Hosted Service, including communications and sharing of UGC. However, Company reserves the right to access and/or record any online activity on the Hosted Service and, subject to the terms of this Agreement, including Section 9 and the Privacy Policy, Customer gives Company Customer's express consent to access and record Customer's activities. 6. Support. For the Subscription Term Company will provide Customer reasonable assistance from 8:00 a.m. to 5:00 p.m. Central Time (Monday – Friday, excluding U.S, federal holidays as listed at https://www.opm.gov/policy-data-oversight/pay-leave/federal-holidays) by telephone or e-mail. Company will use commercially reasonable efforts to acknowledge support requests within 24 business hours. Premium support services are subject to any service-specific terms and conditions included with the Order Form. Company will have no obligation to provide any modifications to the Hosted Service. 7. Warranties; Limitation of Liability. 7.1 Customer's Limited Warranties. Customer warrants that (a) this Agreement constitutes the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, (b) neither the execution and delivery of this Agreement nor either party's performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any domestic or foreign, federal, state or local statute, law (including principles of common law), ordinance, rule, policy, guideline, permit, administrative interpretation, regulation, order, writ, injunction, legally binding directive, judgment, decree or other requirement of any governmental body ("Legal Requirement") to which Customer may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of this Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Customer. 7.2 Company's Limited Warranties. Company warrants that (a) this Agreement constitutes the legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms, (b) neither the execution and delivery of this Agreement nor either party's performance under it will, directly or indirectly (with or without notice or lapse of time) (i) contravene, conflict with, or result in a violation of any Legal Requirement to which Company may be subject; (ii) give any governmental body or other person the right to challenge the validity or performance of this Agreement or to exercise any remedy or obtain any relief under, any contract or any Legal Requirement; or (iii) contravene, conflict with, or result in a default under any contractual or other obligation binding on Company, (c) the Hosted Service will operate substantially as described in the applicable Documentation, and (d) any support services provided pursuant to Section 6 will be provided in a workmanlike manner consistent with industry standards. 7.3 Exclusive Remedy. Customer's sole and exclusive remedy, and Company's entire liability, for any breach by Company of its warranties under this Agreement will be, at Company's discretion, either (a) to correct the error that caused the breach, or (b) as applicable, (i) to provide the Hosted Service in conformance with the warranties, or (ii) to re-perform any support services in a manner conforming to the warranties. If Company is unable, using commercially reasonable efforts, to correct the error or otherwise cure the breach by providing a conforming Hosted Service or re-performing support services, as applicable, then Company may terminate this Agreement and return to Customer the fees paid for the specific non-conforming portion of the Hosted Service or support services. 7.4 Limited Warranty. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO THE HOSTED SERVICES OR ANY SUPPORT SERVICES TO BE SUPPLIED UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. NO OTHER WARRANTY, EXPRESS OR IMPLIED, IS MADE REGARDING THE RESULTS OF ANY HOSTED SERVICES, OR THAT USE OF ANY HOSTED SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS IN THE HOSTED SERVICES WILL BE CORRECTED, OR THAT ANY HOSTED SERVICES' FUNCTIONALITY WILL MEET CUSTOMER'S REQUIREMENTS. 7.5 Limitation of Liability. IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY BY WAY OF FEES FOR THE 12-MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY. 7.6 No Consequential Damages. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, EVEN IF SUCH PARTY WILL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH LOSS. 8. Term, Termination, Suspension. 8.1 The term of this Agreement will commence when accepted by Customer and will continue until terminated by either party by notice to the other party. 8.2 The Subscription Term of an Order Form commences on the effective date of that Order Form and continues for the Subscription Term specified in that Order Form. This Agreement will continue to apply to any Order Form until the termination or expiration of that Order Form. 8.3 A party may terminate (a) this Agreement, including any Order Forms for cause (i) on breach of this Agreement if that breach has not been cured within 30 days of written notice (or two business days' notice in case of Customer's failure to timely pay any amount due under this Agreement) from the non-breaching party specifying the breach in detail (and, if Company is the non-breaching party, Company may terminate Customer's Access Credentials); (ii) immediately on written notice if the other party becomes the subject of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding; or (iii) as otherwise provided in this Agreement, (b) this Agreement on notice to the other party if no Subscription Term is then in effect, (c) any Order Form as set forth in that Order Form. 8.4 If the Company terminates an Order Form pursuant to Section 8.3(a), all amounts that would be due over the term of that Order Form will be immediately due on termination. If Customer terminates an Order Form pursuant to Section 8.3(a), Company will refund a portion of any pre-paid amounts, pro-rated for the portion of period of time for which those amounts were pre-paid remaining at termination. Any provisions of this Agreement which, by their nature, have application after termination of this Agreement will survive termination to that extent. 8.5 Company may suspend, limit or condition Customer's access to the Hosted Service or any of its features if Company reasonably believes that that Customer has violated this Agreement or appears likely to do so and Company will have no liability to Customer for any such suspension, limitation or conditioning of access. Any suspension, limitation or conditioning of access to the Hosted Service will have no effect on Customer's obligation to pay for the Hosted Service. 8.6 If Customer fails to make timely payment of all amounts due under this Agreement, Company may, in its discretion (a) suspend, limit or condition Customer's access to the Hosted Services until Customer has paid all amounts due, (b) terminate this Agreement pursuant to Section 8.3(a), or (c) accelerate the payment of all amounts payable under all current Order Forms, such that all amounts to be paid under those Order Forms will be immediately due and payable. Company will have no liability to Customer for any suspension, limitation or conditioning of access pursuant to Section 8.6(a) and any such suspension, limitation or conditioning of access to the Hosted Service will have no effect on Customer's obligation to pay for the Hosted Service. 9. Confidentiality. Each party will protect the other's Confidential Information from unauthorized dissemination and use with the same degree of care that such party uses to protect its own like information. Neither party will use the other's Confidential Information for purposes other than those necessary to directly further the purposes of this Agreement. Neither party will disclose to third parties the other party's Confidential Information without the prior written consent of the other party. A party may disclose Confidential Information to that party's employees or professional advisors (e.g., accountants, attorneys and financial advisors), affiliates and contractors who have a need to know that Confidential Information and receive it under a duty of confidentiality substantially similar to this Section 9. The parties may disclose Confidential Information if required by applicable Legal Requirement so long as the party required to disclose takes reasonable steps available to narrow the required disclosure and obtain protective treatment and notifies the other party, to the extent permitted by applicable law, before disclosure in sufficient time to enable that party to seek protective treatment. 10. Customer's Responsibilities. Customer will comply with all applicable Legal Requirements in connection with its use of the Hosted Service, including those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Company controls and operates the Hosted Service. Customer will ensure that any use of the Hosted Service by Customer's Users is in accordance with the terms of this Agreement. It is the responsibility of Customer to provide, prepare and maintain a system environment from which the Hosted Service is to be accessed, as applicable, in conformance with the Documentation provided by Company from time to time. 11. Professional Services. To the extent an Order Form provides for professional services by Company for Customer ("Professional Services"), the following terms apply with respect to those Professional Services except as otherwise specified the applicable Order Form: 11.1 Any deliverable provided to Customer by Company in the performance of the Professional Services (each, a "Deliverable") will be presumed accepted on the date that is the earlier of (a) two business days after Customer's receipt of the Deliverable, and (b) Customer's written acceptance. Any rejection of a Deliverable must be based upon material failure to conform to the written specifications set forth in the applicable Order Form and must be specific, reasonable and in writing. 11.2 Customer will provide all information reasonably requested by Company and will reasonably cooperate with Company and make available relevant Customer personnel to facilitate provision of the Professional Services. 11.3 All Deliverables consisting of customizations or other modifications to the Hosted Service or Documentation will be deemed to be part of the Hosted Service and Documentation for all purposes under this Agreement after their acceptance. 11.4 Customer grants to Company a non-exclusive, worldwide and royalty-free right and license, including the right of sublicense, to modify and edit any materials and content delivered by Customer to Company for purposes of performing Professional Services ("Customer Content"), as well as, to combine, and create derivative works of, any Customer Content with other content and materials for the sole purposes of providing the Professional Services. 11.5 Subject to Section 9, Company's provision of any Professional Services under this Agreement will not preclude Company from developing, using, or selling products or services that are similar to or related to the Deliverables. 11.6 Customer will comply with all applicable Legal Requirements in connection with Customer's provision to Company of Customer Content, including those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Company performs the Professional Services. Customer will assure that Customer has all rights required under applicable Legal Requirements for Customer's submission of that Customer Content to Company. Customer will provide any privacy notices required by applicable Legal Requirements to any person whose personal information is included in the Customer Content, and by providing any Customer Content to Company, Customer represents and warrants that Customer has done so and that Customer has the right to process and the right to authorize Company to process any such Customer Content. 12. General Provisions. 12.1 If Customer is a federal government entity, Company provides the Hosted Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Technical data and computer software rights related to the Hosted Service include only those rights customarily provided to the public as set forth in this Agreement. The license rights under this Agreement are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer 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 those rights must be included as part of this Agreement. 12.2 The validity and enforceability of this Agreement, and all claims or causes of action (whether in contract, tort, statute or otherwise) that may be based on, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based on, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), will be governed by, construed in accordance with, and enforced in accordance with, the domestic internal laws of the state of Delaware, including its statutes of limitations, but without regard for conflicts of law principles. 12.3 Binding, confidential arbitration pursuant to this Section 12.3 will be the only remedy for any dispute or claim of any kind, including third-party claims arising under, concerning, or relating to this Agreement, its interpretation, its validity (including any claim that all or any part of this Agreement is void or voidable), its termination, or its subject matter, whether sounding in contract, tort, equity, statutory law, administrative regulation or otherwise (a "Dispute"). Any Dispute will be resolved in a confidential expedited arbitration administered by the JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (a copy of which can be found here: https://www.jamsadr.com/rules-comprehensive-arbitration) (the "Rules") then in effect. For purposes of clarification, the parties understand and agree that (a) Section 12.2 will apply to any arbitration under this Section 12.3, both as to the governing law to be applied by the Arbitrator to the Dispute and as to the law governing the arbitration and the interpretation of this Section 12.3, and (b) the Federal Arbitration Act, 9 U.S.C. §§ 1-16, will also apply to any arbitration under this Section 12.3 by virtue of Article VI, Clause 2 to the United States Constitution. Any Dispute submitted to arbitration will be decided by a single, neutral arbitrator (the "Arbitrator") mutually agreed by the parties or, if they cannot agree within 15 business days of the commencement of arbitration, in accordance with the Rules. The Arbitrator must be qualified as a Delaware attorney who has at least ten years of prior combined professional experience either as a judge or in private practice as a business or commercial litigator. Any arbitration hearings or conferences pursuant to this Section 12.3 will be conducted exclusively by means of conference telephone or other communications technology, as reasonably determined by the Arbitrator, by means of which all persons participating in those hearings or conferences can hear each other, and neither the parties, the Arbitrator or any attorneys, witnesses or other representatives of the parties will be required to be physically present in any particular place for purposes of any hearing or conference unless the Arbitrator determines that a physical hearing is necessary to effectively arbitrate the Dispute, in which case that physical hearing will be in a location selected by the Arbitrator to be reasonably convenient to the parties and the Arbitrator. The Arbitrator will have the exclusive power to adjudicate the alleged breach, enforcement, interpretation or validity of this Agreement, including as to the scope or applicability of this arbitration clause. Discovery within the arbitration will be as the Arbitrator determines is reasonable or necessary for the fair and efficient arbitration of the Dispute. All JAMS fees and costs will be borne equally by the parties, except that in rendering the award, the Arbitrator will allocate and award an appropriate share of the prevailing party's reasonable attorneys' fees and costs, to the losing party. Judgment on any arbitration award may be entered and enforced by any court of competent jurisdiction. If there is more than one Dispute between the parties, all such Disputes may be heard in a single arbitration under this Section 12.3. Except to the extent required by applicable Legal Requirements that cannot be waived or modified by this Agreement, Disputes under this Agreement may not be consolidated into a single arbitration proceeding with claims between Company and other persons, even if those claims are governed by an arbitration proceeding similar or identical to this Section 12.3 and even those other persons are similarly situated and their claims are similar or identical in the nature to a Dispute under this Agreement. EACH PARTY EXPRESSLY AGREES AND UNDERSTANDS THAT BY AGREEING TO ARBITRATION, IT IS WAIVING THE RIGHT TO A JURY TRIAL OR TO A CIVIL ADMINISTRATIVE TRIBUNAL. 12.4 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then those provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. 12.5 No joint venture, partnership, employment, or agency relationship exists between Company and Customer as a result of this Agreement or use of the Hosted Service. 12.6 Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (a) either party may assign this Agreement in its entirety (including all Order Forms) to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity; and (b) Company may assign its rights and obligations relating to implementation of the Hosted Service to an Affiliate. Any attempted assignment in breach of this Section 12.6 will be void. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. 12.7 Company reserves the right to use third-party providers in the provision of the Hosted Service and Company will be responsible for the acts or omissions of those third parties in the same manner Company would be responsible under this Agreement for its own acts and omissions. 12.8 Neither party will be liable to the other for any delay or failure to perform under this Agreement (excluding payment obligations) due to circumstances beyond that party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, epidemics, pandemics, civil unrest, acts of terror, strikes or other labor problems (excluding those involving that party's employees), internet or other Hosted Service disruptions involving hardware, software or power systems not within that party's possession or reasonable control, and denial of service attacks ("Force Majeure Events"). 12.9 Any notice required or permitted under this Agreement will be given in writing by personal delivery, by USPS Priority Express Mail, by nationally recognized overnight delivery service (e.g. UPS), or e-mail, in each case addressed to the party to which the notice is provided in the case of notice to Company at 1606 Headway Cir STE 9804 Austin, TX 78754 or at another address or e-mail address designated by Company by notice from time to time to Customer, and, in the case of Customer at the address and email address on file with Company in connection with Customer's account. Any notice will be deemed received on the earlier of the date of actual delivery or the date on which delivery is refused, regardless of whether the party has vacated the physical address or discontinued the e-mail address. The actual receipt by the addressee of any written notice will constitute notice under this Section 12.9 notwithstanding the failure to have complied with any provisions of this Section 12.9. 12.10 This Agreement may not be amended except by a written agreement executed by both parties. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of that right or provision unless acknowledged and agreed to by that party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party will be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted in this Agreement are reserved by the parties. 12.11 This Agreement is entered into by the parties for the exclusive benefit of the parties and their successors and permitted assignees. The Agreement is expressly not intended for the benefit of any other person. No third party will have any rights under this Agreement. 12.12 This Agreement, together with the Privacy Policy and the Order Forms, sets forth the entire agreement and understanding of the parties relating to its subject matter, supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions, whether written or oral, and will not be modified or affected by any offer, proposal, statement or representation, oral or written, made by or for any party in connection with the negotiation of this Agreement. Exhibit A Definitions "Affiliate" means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. "Confidential Information" means all technical, business, marketing, planning, and other information and data relating to the business of the disclosing party or other third parties with whom the disclosing party does business, whether in written, oral, electronic, magnetic, photographic, optical and/or other forms (including all ideas, concepts, designs, algorithms, calculations, methods, techniques, and know-how that are trade secrets of the disclosing party or other third parties with whom the disclosing party does business) and which the disclosing party designates in writing to be confidential on disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential. Confidential Information does not include information (a) known to the receiving party before its receipt from the disclosing party without a limitation or obligation of confidentiality, (b) independently developed by the receiving party without reference to or use of any Confidential Information, (c) in the public domain at the time of disclosure other than as a result of disclosure by the receiving party; or (d) received from a third party with a legal or contractual right to disclose that information or data to the receiving party, provided that third party had no duty to keep that information confidential and that the receiving party did not (and was not required to) agree to keep that information confidential. "Control" means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. "Customer Data" means any data, information or other materials submitted by Customer to the Hosted Service. "Dispute Period" means 15 days from receipt of invoice. "Documentation" means the applicable Order Form and the Company's then current on-line help, guides, and manuals published by Company and made generally available by Company for the Hosted Service. Documentation will include any updated Documentation that Company provides. "Hosted Service" means Company's generally available online interconnection.fyi, web-based applications and services that are ordered by Customer under an Order Form, including updates to those services from time to time. "Intellectual Property" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications therefor and renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. "Licensed Materials" means reports and other materials generated through the Hosted Service and the information contained in such reports. "Order Form" means the ordering documents (whether paper or electronic) for Customer purchases from Company that are executed under this Agreement by Customer and Company from time to time. All Order Forms will be deemed incorporated in this Agreement. "Subscription Term" means the period of time that Customer may use and access the Hosted Service as set forth in the applicable Order Form. "UGC" means content Uploaded by Customer and other users of the Hosted Service that may be shared with Customer. "Upload" means to upload to the Platform, post, share, transmit, distribute, store, create or otherwise publish through the Hosted Service. "Users" means individuals who are employees or service providers of Customer and who are authorized by Customer to use the Hosted Service for Customer's internal purposes, for whom subscriptions to the Hosted Service have been purchased, and who have been supplied user credentials by Company at Customer's request.