Terms of Service

This PIT Labs License Agreement (the “Agreement”) is by and between PIT Labs Inc. (aka vBase, aka ValidityBase, aka vBase.com), a Delaware corporation, with its principal offices at 224 W. 35th St. Suite 500 #577, New York, NY 10001 (“PIT Labs”), and users of the Services (as defined below) (“you” or “your”), and is made as of the date on which you first access the Services (“Effective Date”), (each, a “party,” and together, the “parties”).

This Agreement consists of this License Agreement and all Order Forms signed by the parties hereunder, if applicable, which are incorporated by reference. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. YOU ARE ADVISED THAT NO PIT LABS REPRESENTATIVE OR RESELLER HAS AUTHORITY TO BIND PIT LABS TO REPRESENTATIONS, WARRANTIES, TERMS OR CONDITIONS THAT ARE NOT EXPRESSLY STATED IN THIS AGREEMENT.

PIT LABS PROVIDES THE SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CLICKING THE “ACCEPT” BUTTON ON THIS WEBPAGE YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR THE APPLICABLE AGE OF MAJORITY IN YOUR JURISDICTION TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO BIND SUCH COMPANY TO THIS AGREEMENT. NO ONE UNDER THE AGE OF 18 MAY ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, PIT LABS WILL NOT AND DOES NOT PROVIDE THE SERVICES TO YOU.

THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES (SECTION 7) AND LIMITS PIT LABS’ LIABILITY (SECTION 9). PLEASE REFER TO THESE SECTIONS FOR ADDITIONAL DETAILS.

1. Definitions.

In addition to terms defined elsewhere in this Agreement, the following terms have the following meanings:

1.1 “Business Hours” means Monday to Friday (excluding PIT Labs holidays), 8 a.m. to 5 p.m. Eastern Standard Time.

1.2 “Converted Data” means the data derived from the Data through the Conversion Services, including any Hashes based on the Data.

1.3 “Data” – means all electronic data, information or files submitted by you or a Named User through the PIT Labs Platform or the Services, including Personal Data.

1.4 “Data Controller” means a person or entity which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data. For purposes of this Agreement, you are the Data Controller.

1.5 “Data Processor” means a person or entity which Processes Personal Data on behalf of the Data Controller. For purposes of this Agreement, PIT Labs is the Data Processor.

1.6 “Data Subject” means, with respect to an item of Personal Data, the person to whom the Personal Data relates.

1.7 “Intellectual Property Rights” means any and all known or hereafter existing worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, know-how, moral rights, contract rights, and other proprietary rights, and all registrations, applications, renewals, extensions, and combinations of the foregoing.

1.8 “Modifications” means: (a) for copyrightable or copyrighted material, any translation (including translation into other computer languages), port, modification, correction, addition, extension, upgrade, improvement, compilation, abridgment or other form in which an existing work may be recast, transformed or adapted; (b) for patentable or patented material, any improvement thereon; and (c) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret.

1.9 “Named User” means any of your employees, agents, or contractors that you authorize to use and access the PIT Labs Platform pursuant to the terms and conditions of this Agreement.

1.10 “Open Source Software” means any software that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software (e.g., Linux) or similar licensing or distribution models, including, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL; (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL), (f) the Sun Industry Standards License (SISL); (g) the BSD License; (h) the Apache License, or (i) any other license identified as an open source license by the Open Source Initiative (www.opensource.org).

1.11 “Order Form” means an ordering document, specifying price, term length, and other business terms and limitations, submitted in writing or online and agreed to by the parties.

1.12 “Personal Data” means any information relating to an identified or identifiable individual that has been provided to PIT Labs by you or a Named User to enable PIT Labs to Process such information in connection with this Agreement.

1.13 “PIT Labs Documentation” means any user guides or other documentation that are provided by PIT Labs to you.

1.14 “PIT Labs Platform” means PIT Labs’ proprietary cloud based software that provides the Conversion Services, Publication Services, Snapshot Services, and Analytic Services. The PIT Labs Platform includes the PIT Labs Documentation. PIT Labs may provide some or all of these Services to you.

1.15 “Processing or Process” means any operation or set of operations which is performed upon Personal Data, including the collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure, or destruction of Personal Data.

1.16 “Published Data” means data published at your request via the Publication Services.

1.17 “Services” – means the combination of current PIT Labs services set forth on one or more Order Forms or on PIT Labs’ website. The Services may initially consist of:
(a) “Analytic Services” means the process of PIT Labs performing an analysis or verification of the Published Data;
(b) “Conversion Services” – means the process of converting data through a cryptographic hash function via the PIT Labs Platform to produce fixed-size values (“Hashes”);
(c) “Professional Services” – by which PIT Labs consults with you as further stated in an Order Form;
(d) “Publication Services” – means the process of publishing data (typically Hashes) via the PIT Labs Platform to a secure and verifiable storage medium (e.g. open blockchain);
(e) “Snapshot Services” – means the process of helping you securely store snapshots of data tables (“Snapshot Data”) that correspond with the Published Data; and
(f) “Support Services” as further stated in Section 5 of this Agreement.

2. License; Restrictions; and Administration.

2.1 License.

Subject to the terms and conditions of this Agreement, including the payment of all amounts due, PIT Labs grants to you, during the term of this Agreement, a limited, non-exclusive, non-transferable (except as set forth in the assignment section below) license, without the right to grant sublicenses, (a) to access and use the PIT Labs Platform as set forth in the following subsections (i) and (ii) by the Named Users only as expressly permitted by this Agreement to (i) use the PIT Labs Documentation solely for your internal business purpose for receiving Conversion Services, Publication Services, Snapshot Services, or Analytic Services; and (ii) access and use the PIT Labs Platform through PIT Labs’ website or the API key provided by PIT Labs hereunder, solely for your internal business purpose for receiving Conversion Services, Publication Services, Snapshot Services, or Analytic Services; and (b) to use the Converted Data, Published Data, Snapshot Data, or Analytic Service output data (“Analytic Data”). You are responsible and liable for all uses of the Services and PIT Labs Platform resulting from access provided by you, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, you agree that you will be liable for the actions and omissions of each Named User, including any breach of the terms and conditions of this Agreement by a Named User. You will take reasonable efforts to make all Named Users aware of this Agreement’s provisions as applicable to such Named User’s use of the Services and will cause Named Users to comply with such provisions.

2.2 Restrictions.

You acknowledge and agree that the PIT Labs Platform (and its structure, organization, and source code) constitute valuable trade secrets of PIT Labs. Accordingly, except as expressly permitted by this Agreement, you must not, and must not permit or encourage any Named User or any third party to: (a) download, copy, modify, adapt, alter, translate, port or create derivative works of the PIT Labs Platform; (b) permit others to use the PIT Labs Platform (except for Named Users); (c) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer any part of the PIT Labs Platform; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for or any other proprietary information or trade secrets from the or PIT Labs Platform; (e) remove, alter, or obscure any proprietary notices (including, any copyright and trademark notices) of PIT Labs or its licensors and suppliers from the PIT Labs Platform; (f) disseminate performance-related information relating to the PIT Labs Platform; (g) access, modify, remove, or alter the data stored in the PIT Labs Platform other than through the tools and user interfaces provided by PIT Labs; or (h) otherwise use, reproduce, display or copy the PIT Labs Platform. Except as stated in this Agreement, PIT Labs grants no rights or licenses to you, by implication, estoppel, or otherwise, in or to the PIT Labs Platform, or any Intellectual Property Rights therein, and any and all rights not expressly granted to you hereunder are reserved by PIT Labs. You acknowledge and agree that any Open Source Software provided to you as part of the PIT Labs Platform is not licensed to you by PIT Labs hereunder and that any license to such Open Source Software is obtained by you directly from the licensor of such Open Source Software.

2.3 Administration.

PIT Labs will issue to one Named User (“Administrator”) an individual logon identifier and password (“Administrator’s Logon”) or a private API key for purposes of administering and accessing the PIT Labs Platform. Using the Administrator’s Logon or API key, the Administrator will be able to access the PIT Labs Platform and where applicable will be able to assign each remaining Named User a unique logon identifier and password and assign and manage the business rules that control each such Named User’s access to the PIT Labs Platform. You will ensure that each Named User will: (a) not disclose their logon identifier to any person or entity; (b) not permit any other person or entity to use their logon identifier; and (c) use the PIT Labs Platform solely in accordance with the terms and conditions of this Agreement. Use of the Administrator’s Logon or PIT Labs’ API keys for any purpose other than the express purpose stated in this Agreement for use of the PIT Labs Platform is strictly prohibited.

2.4 Suspension.

Notwithstanding anything to the contrary in this Agreement, PIT Labs may temporarily suspend your and any Named User’s access to any portion or all of the Services and the PIT Labs Platform if: (a) PIT Labs reasonably determines that (i) there is a threat or attack on any of the PIT Labs IP (subsequently defined); (ii) your or any Named User’s use of the PIT Labs IP disrupts or poses a security risk to the PIT Labs IP or to any other customer or vendor of PIT Labs; (iii) you, or any Named User, are using the PIT Labs IP for fraudulent or illegal activities; (iv) subject to applicable law, you have ceased to continue your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) PIT Labs’ provision of the Services or the PIT Labs Platform to you or any Named User is prohibited by applicable law; or (b) any vendor of PIT Labs has suspended or terminated PIT Labs’ access to or use of any third-party services or products required to enable you to access the Services or the PIT Labs Platform (any such suspension described in subclause (a) or (b), a “Service Suspension”). PIT Labs will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that you or any Named User may incur as a result of a Service Suspension.

3. Ownership.

3.1 PIT Labs Ownership

The PIT Labs Platform, the Analytic Data, and the Aggregated Data, and all worldwide Intellectual Property Rights to all of the foregoing, including all Modifications thereto, by whomsoever made, are and will remain the sole and exclusive property of PIT Labs (“PIT Labs IP”). You hereby assign to PIT Labs all Intellectual Property Rights you may now or hereafter possess in the PIT Labs IP and agree to (a) execute all documents, and take all actions, that may be necessary to confirm such rights, and (b) retain all proprietary marks, legends, and other intellectual property notices that appear on the PIT Labs Documentation and all whole or partial copies thereof. You acknowledge and agree that you are expressly prohibited from using the Analytic Data and/or the Aggregated Data in training any artificial intelligence language models or systems.

3.2 Data.

PIT Labs acknowledges that, as between PIT Labs and you, you own all right, title, and interest, including all Intellectual Property Rights, in and to the Data. You hereby grant to PIT Labs a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Data and perform all acts with respect to the Data as may be necessary for PIT Labs solely to provide the Services to you. PIT Labs will not sell, rent or lease Data. PIT Labs will not use Data for any purpose other than to perform the Services hereunder. You hereby grant PIT Labs a nonexclusive, fully paid up, royalty-free, perpetual, irrevocable, worldwide, sublicensable, transferable license in and to the Converted Data, Published Data, and Snapshot Data to use such Converted Data, Published Data, and Snapshot Data to provide Analytic Services to any person, or for any other use mutually agreed upon by the parties in writing.

3.3 Aggregated Data.

PIT Labs may use Converted Data, Published Data, and Snapshot Data in anonymous, aggregated form and information related to and derived as a result of your use of the Services (“Aggregated Data”) for its business purposes; provided that such Aggregated Data does not identify you, any of your Named Users or any third-party entities or individuals. Aggregated Data is not your Confidential Information.

4. Feedback.

Except for the limited license granted under this Agreement, at no time will you have any right, title, or interest in or to the PIT Labs Platform. If you, or any of your users, provide any feedback to PIT Labs related to the PIT Labs Platform including any flaws, errors, bugs or other problems you find in the PIT Labs Platform as well as any suggested improvements or Modifications of the PIT Labs Platform (collectively, “Feedback”), you hereby acknowledge and agree that PIT Labs owns all right, title, and interest in and to such Feedback and all Intellectual Property Rights inherent therein or related thereto. You hereby assign to PIT Labs all right, title and interest in and to the Feedback and all Intellectual Property Rights inherent therein and related thereto. During and after the term of this Agreement, you agree to do all acts reasonably required to perfect and enforce such rights. All such Feedback will be deemed to be PIT Labs’ Confidential Information and will be subject to the restrictions set forth herein.

5. Services.

5.1 Support Services.

Subject to the terms and conditions of this Agreement, PIT Labs will provide the Support Services set forth in this Section 5 to you, unless either party terminates the Agreement in accordance with the terms hereunder. Other than the Support Services set forth in this Agreement, PIT Labs will have no obligation to provide to you any maintenance or support services for the PIT Labs Platform. Unless otherwise expressly agreed to in writing by PIT Labs, you will not permit any third party to perform or provide any maintenance and support services with respect to the PIT Labs Platform.

5.2 Telephone Support.

As part of the Support Services, PIT Labs will use reasonable commercial efforts to provide Support Services by phone during Business Hours.

5.3 Email Support.

As part of the Support Services, PIT Labs will use reasonable commercial efforts to provide Support Services via its email support address during Business Hours.

5.4 Professional Services and Other Services.

Any work product created in the course of providing Support Services, Professional Services or other Services under this Agreement, will become part of the PIT Labs Platform and will be licensed to you subject to the terms and conditions as set forth in this Agreement, including, all provisions for PIT Labs’ ownership of such PIT Labs Platform and all restrictions placed thereon.

5.5 Exclusions from Support Services.

PIT Labs’ obligation to provide Support Services will continue only in accordance with the terms and conditions set forth in this Agreement and only so long as you are not in breach of any of your obligations to PIT Labs. The Support Services and Professional Services do not include services for any failure or defect in the PIT Labs Platform caused by: (a) the improper use or alteration of, or damage to the PIT Labs Platform by you, any Named User or third party; or (b) interaction between the PIT Labs Platform and operating systems, database software or other software, unless PIT Labs expressly approves such use in writing.

5.6 Your Responsibilities.

In addition to and without limiting your other obligations as set forth herein and, in the Agreement, you are exclusively responsible for the supervision, management, backup, security, and control of your information technology systems. You must provide PIT Labs with full, good faith cooperation and such information as may be required by PIT Labs to perform the Support Services and any Professional Services, and you must provide PIT Labs with: (a) specific detailed information concerning your use of or access to the PIT Labs Platform as may be required for the performance of the Support Services and any Professional Services; and (b) all necessary computer services information and access to key personnel needed to provide the Support Services and any Professional Services. If you fail or delay in your performance of any of your responsibilities under this Agreement, PIT Labs will be relieved of its obligations hereunder to the extent PIT Labs’ obligations are dependent upon your performance. Unless otherwise mutually agreed in writing by the parties, you are responsible for providing all hardware including all devices. Further, you are responsible for: (i) controlling who may access or use the Services or PIT Labs Platform on your behalf, for protecting Named User passwords and PIT Labs’ API keys, and for compliance with this Agreement; (ii) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Data; and (iii) using commercially reasonable efforts to prevent unauthorized access to, or use of, the PIT Labs Platform, and notify PIT Labs promptly of any such unauthorized access or use.

6. Fees, Payment and Taxes.

6.1 Fees.

In consideration of the license to use the PIT Labs Platform as provided under this Agreement, you hereby agree to pay PIT Labs the fees set forth on an Order Form or as specified by PIT Labs on its website depending on the Services you choose (the “Fees”). PIT Labs reserves the right to increase Fees on no less than 30 days prior written notice to you. PIT Labs may elect to charge by Named User, regardless of whether or not a Named User uses the PIT Labs Platform, by the number of connected devices, or other mechanism provided that both parties agree in writing to such charging formula.

6.2 Renewal.

Unless you provide PIT Labs written notice of your intent not to renew any Services, as applicable, at least 30 days prior to the expiration of the current license period, PIT Labs will charge you in advance for the upcoming license period.

6.3 Expansion.

You must notify PIT Labs of any expansion to the license and pay any additional fees as outlined in the Order Form or on PIT Labs’ website. These notifications must occur on the last day of February, May, August, and November each year. Immediately following the notification, PIT Labs will charge you for the expansion.

6.4 Payment.

You will pay all amounts as charged by PIT Labs for the Services in immediately available U.S. funds, without offset or deduction, by the due date specified on PIT Labs’ website or an Order Form. Any disputes regarding the Fees charged by PIT Labs must be brought no later than 30 days after such charge, otherwise you waive your right to raise such dispute. Any Fee dispute should be directed to the PIT Labs’ support department. Pursuant to Section 13.16, any payment made for use of the PIT Labs Platform and/or the Services provided hereunder through a third party website, a third party payment processor, or similar to the foregoing will be governed by such third party’s terms and conditions and PIT Labs is not responsible or liable for any action to arise out of or that may occur regarding such transaction.

6.5 Taxes.

The Fees exclude all applicable sales, use, and other taxes, fees, duties and similar charges (“Taxes”), and you will be responsible for payment of all such Taxes (other than taxes based on PIT Labs’ income) and any penalties or charges that accrue with respect to the non-payment of any Taxes.

6.6 Failure to Pay.

Should you fail to pay any amounts when due, then PIT Labs may terminate or suspend any Services connected with the charges. If you fail to pay the Fees for the PIT Labs Platform license, then PIT Labs may terminate the PIT Labs Platform license upon written notice to you. PIT Labs will not provide any Services if you have not paid the renewal Fees for such Services. If you do not pay any amounts due under this Agreement when such amounts are due, such amounts will be subject to a late charge of 1.5% of the overdue amount per month or any applicable legal maximum, whichever is less, plus the costs of collection, including reasonable attorney fees and court costs. Late charges are intended as reasonable estimates of the amounts necessary to compensate PIT Labs for costs and losses associated with delays in payment, and not as penalties.

7. Disclaimers.

7.1

7.1 PIT LABS MAKES NO WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PIT LABS PLATFORM, THE SUPPORT SERVICES, THE PROFESSIONAL SERVICES, OR ANY OTHER SERVICES OR GOODS PROVIDED OR REFERENCED PURSUANT TO THIS AGREEMENT. PIT LABS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. UNDER NO CIRCUMSTANCE WILL PIT LABS BE RESPONSIBLE FOR ANY DAMAGES RESULTING FROM MISUSE, ABUSE OR COMPUTER OR ELECTRICAL MALFUNCTION. PIT LABS DOES NOT WARRANT THAT YOUR USE OF THE PIT LABS PLATFORM WILL BE ERROR-FREE, UNINTERRUPTED, VIRUS-FREE, OR SECURE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES FROM PIT LABS OR ANY THIRD PARTY.

8 Indemnification.

8.1 Indemnification.

You will defend, indemnify and hold PIT Labs and PIT Labs’ officers, directors, employees, consultants, agents, and suppliers harmless (“PIT Labs Indemnified Parties”) against any claim, suit or action and any related loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims made or brought against the PIT Labs Indemnified Parties by a third party arising out of or related to (a) you or a Named User’s use of the PIT Labs Platform, the Analytic Data, the Aggregated Data, or the Services in violation of this Agreement, or (b) as a result of your breach or alleged breach of Section 12. PIT Labs will promptly notify you in writing (but PIT Labs’ failure to promptly notify you will only affect your obligations under this Section to the extent that PIT Labs’ failure prejudices your ability to defend the claim) and provides control of the defense or settlement, and assistance to you, at your expense. PIT Labs may appoint its own non-controlling counsel, at its own expense. Any settlement requiring PIT Labs to admit liability, pay money, or take (or refrain from taking) any action, will require PIT Labs’ prior written consent, not to be unreasonably withheld, conditioned, or delayed.

8.2 PIT Labs Indemnification.

PIT Labs will defend and indemnify you at PIT Labs’ own expense, against any action against you brought by an unaffiliated third party that alleges that the PIT Labs Platform as provided by PIT Labs to you infringes any U.S. copyright or misappropriates any trade secret, and PIT Labs will pay those costs and damages finally awarded or those costs and damages agreed to in a monetary settlement of such action in accordance with this Section.

(a)

The foregoing obligations are conditioned on you: (i) notifying PIT Labs promptly in writing of any such action; (ii) giving PIT Labs sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at PIT Labs’ reasonable request and expense, assisting in such defense.

(b)

If the PIT Labs Platform or any part thereof becomes, or in PIT Labs’ opinion is likely to become, the subject of an infringement claim, PIT Labs may, at its option and expense, either (i) procure for you the right to continue using the PIT Labs Platform; (ii) replace or modify the PIT Labs Platform so that it becomes non-infringing; or (iii) terminate this Agreement upon written notice to you, and refund you any unearned Fees pro-rated for the applicable license period.

(c)

Notwithstanding the foregoing, PIT Labs will have no obligation under this Section or otherwise with respect to any allegation or claim based upon: (i) any use of the PIT Labs Platform by you or any Named User not in accordance with this Agreement; (ii) any use of the PIT Labs Platform by you or any Named User in combination with products, equipment, software, or data not supplied by PIT Labs if such infringement would have been avoided but for such combination; or (iii) any modification of the PIT Labs Platform by any person other than PIT Labs or its expressly authorized agents or subcontractors. You must defend and indemnify PIT Labs against any action to the extent arising from a claim based on any action or conduct set forth in subsections (i)-(iii) above.

(d)

THIS SECTION STATES PIT LABS’ ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INDEMNITY CLAIMS OR ACTIONS.

9. Limitation of Liability.

9.1

9.1 IN NO EVENT WILL PIT LABS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (C) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (D) COST OF REPLACEMENT GOODS OR SERVICES; (E) LOSS OF GOODWILL OR REPUTATION; OR (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. PIT LABS’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE GREATER OF: (A) AMOUNT OF FEES PAID TO PIT LABS DURING THE 12 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY, OR (B) $1,000. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

9.2

9.2 You acknowledge and agree that the Fees reflect the allocation of risk set forth in this Agreement and that PIT Labs would not enter into this Agreement without these limitations on its liability.

10. Term and Termination

10.1 Term.

This Agreement will commence on the Effective Date and will continue until the termination date stated on an applicable Order Form(s), or if the parties did not enter into an Order Form, then until you stop accessing the Services, unless terminated as stated in this Agreement or upon mutual written agreement between the parties. Any renewal term will be specified in writing by PIT Labs either in an Order Form or when you renew the Services on PIT Labs’ website where you purchased the Services.

10.2 Termination.

Either party may terminate this Agreement if the other party materially breaches any provision of this Agreement and does not cure such breach (provided that such breach is capable of cure) within 30 calendar days after sending written notice thereof. Notwithstanding the foregoing, PIT Labs may terminate this Agreement immediately if you or any Named User, in any manner, breaches Sections 2, 3, 11, or 12.

10.3 Effects of Termination.

Immediately upon expiration or termination of this Agreement for any reason, all of your rights to the PIT Labs Platform (including, the rights of any Named Users) granted hereunder will immediately cease, and you will immediately cease all use of the PIT Labs Platform and will insure that all Named Users discontinue all use of the PIT Labs Platform. Any amounts owed to PIT Labs under this Agreement prior to its termination or expiration will become due and payable immediately upon such termination or expiration.

10.4 Survival.

All definitions and Sections 1, 2.2, 3, 4, 6, 7, 8, 9, 10.3, 10.4, 11, 12 and 13 will survive the termination of this Agreement for any reason.

11. Confidentiality.

11.1

From time to time during the term of this Agreement, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). You agree that the PIT Labs Platform (and any trade secrets and other information and intellectual property contained therein) are proprietary and Confidential Information of PIT Labs. Confidential Information does not include information that, at the time of disclosure is: (a) publicly available or later becomes publicly available other than through a breach of this Agreement; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party without use of the Confidential Information disclosed hereunder as evidenced by the receiving party.

11.2

The receiving party will not disclose the disclosing party’s Confidential Information to any person or entity, except you may make the PIT Labs Platform available only to those Named Users who are bound to terms at least as protective of PIT Labs’ proprietary and Confidential Information as the terms set forth herein. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party, have made a reasonable effort to obtain a protective order, and only disclosed the exact Confidential Information, or portion thereof, required; or (b) to establish a party’s rights under this Agreement, including to make required court filings.

11.3

On the expiration or termination of the Agreement, the receiving party will promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or, upon the disclosing party’s written request, destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire 5 years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

12. Data and Privacy.

12.1 Data Processing.

PIT Labs may Process Personal Data as instructed in writing by you or a Named User. You hereby instruct PIT Labs to Process Personal Data to provide the Services hereunder selected by You or a Named User and as contemplated by the parties in this Agreement or in any documentation for the PIT Labs Platform and agree that such instruction will remain in force throughout the term of this agreement. PIT Labs will not use, retain, or disclose Personal Data for any purpose other than for providing the Services under this Agreement. To the extent You or a Named User provides any instructions to PIT Labs regarding Processing of Personal Data that are not expressly provided for herein, PIT Labs’ compliance with such instructions will be subject to: (a) your payment of Fees and reimbursement of expenses if compliance requires non-incidental time spent by PIT Labs personnel or out-of-pocket expenses; and (b) technical feasibility.

12.2 Your Personal Data.

You acknowledge that PIT Labs is reliant on you alone for direction as to the extent PIT Labs is entitled to Process Personal Data hereunder to provide the Services. Consequently, PIT Labs will have no liability in circumstances where you, Data Subject, or a data protection authority makes a claim or complaint with regards to PIT Labs’ actions that reasonably relate to instructions received from you or a Named User, or actions taken by you or a Named User, relating to the Personal Data provided by you hereunder.

12.3 Representation and Warranty.

You represent and warrant that you have all rights, title, authority, licenses and consents necessary to transfer to PIT Labs all Data that you provide to PIT Labs.

12.4 Data Transmission and Access.

You acknowledge and agree that Personal Data, where applicable, may be accessed from and/or transmitted by PIT Labs to countries in which PIT Labs has data Processing facilities, including the United States of America. Without limiting anything else in this Agreement, you represent and warrant that, subject to your cooperation, you will make all necessary registrations and disclosures and obtain all necessary consents for such access to and/or transmission of Personal Data by PIT Labs. Where you indicate that Personal Data processed under this Agreement is collected from individuals located in California, the European Union, or United Kingdom, the parties agree to enter into the PIT Labs Data Protection Addendum (or comparable document) and, with respect to EU or UK Personal Data only, an EU-US Model Clause Agreement and in such cases these documents are incorporated by reference in this Agreement.

12.5 Security Measures.

Each party will use reasonable efforts to ensure that its personnel who may have access to Personal Data in connection with this Agreement will be reasonably trained in the handling of Personal Data and the need for security measures with respect thereto. You are responsible for taking appropriate measures to maintain appropriate security and protection of Data. You acknowledge and understand that there is an inherent risk in electronic storage and in the transmission of Data over the internet and agree to rely solely on your own back-up copies of any Data stored in or transmitted through the PIT Labs Platform should the Data become lost or damaged for any reason. At no time will PIT Labs be responsible for recovering or retrieving any Data stored or transmitted by you in using the PIT Labs Platform or for any unauthorized access to Data.

12.6 Subcontractors.

PIT Labs may use subcontractors (including its affiliates) to provide Processing services on its behalf in accordance with the terms of this Agreement.

12.7 Support.

Each party will reasonably support the other party in dealing with requests from Data Subjects and/or a governmental authority with respect to the Processing of Personal Data and in ensuring compliance of the PIT Labs Platform and the provision thereof with all applicable laws, rules and regulations.

13. General Provisions.

13.1 Press Release.

Within 30 days of the Effective Date, PIT Labs may, with your consent, issue a press release announcing the relationship between the us and describing certain aspects of that relationship.

13.2 Use of Your Name and Marks.

You agree that PIT Labs may, at PIT Labs’ expense and with your consent, use your name, logo and trademarks thereof, and may disclose that you use the PIT Labs Platform, in PIT Labs’ advertising, marketing, promotion and similar public disclosures with respect to the PIT Labs Platform.

13.3 Compliance with Laws and Export Regulations.

You must comply with all applicable laws, statutes, rules, and regulations concerning your use of the PIT Labs Platform including any and all laws or governmental regulations, in any jurisdiction, relating to the handling, treatment and protection of Data, including Personal Data. You must not acquire, ship, transport, export or re-export the PIT Labs Platform, directly or indirectly, into any country in violation of any applicable law (including, but not limited to, the United States Export Administration Act and the regulations promulgated thereunder) nor will you use the PIT Labs Platform for any purpose prohibited by such laws.

13.4 Assignment.

You may not assign, delegate or transfer, including by operation of law, sale of assets, merger and otherwise, any of your rights or obligations (in whole or in part) under this Agreement to any third party without PIT Labs’ prior written consent. Any attempted assignment, delegation or transfer in violation of the foregoing will be void and of no force or effect. PIT Labs may assign this Agreement without your consent.

13.5 Notices.

All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, electronic facsimile (fax), or certified or registered mail, (postage prepaid and return receipt requested) to the other party and will be effective upon receipt or 5 business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.

13.6 Governing Law and Venue.

This Agreement and all relationships created hereby will in all respects be governed by and construed in accordance with the laws of the State of New York without regard to its conflict of laws principles. The parties hereby submit to the personal jurisdiction of, and agree venue is proper in, the state courts located in New York County, New York and the federal courts located in the Southern District of New York, as appropriate. Because some states and jurisdictions do not allow limitation of liability or caps on damages in certain instances, some provisions herein may not apply to you. In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law).

13.7 Negotiation and Escalation of Disputes.

If any controversy or claim arises relating to this Agreement, the parties will attempt in good faith to negotiate a solution to their differences, including progressively escalating any controversy or claim through senior levels of management. If negotiation does not result in a resolution within 30 days of the date when one party first notifies the other of the controversy or claim, either party may resort to mediation under Section 13.8.

13.8 Mediation.

Mediation will commence in New York County, New York, no later than 30 days following a party’s notice to the other party requesting mediation. Unless otherwise agreed by the parties, a party will have no obligation to mediate under this Section 13.8 if the party receiving notice fails to appear for mediation within such 30 day period. The mediator will decide the dispute immediately following the conclusion of the parties’ presentation. Each party will bear its own costs in the mediation. The fees and expenses of the mediator will be shared equally by the parties. Following mediation, the parties will be entitled to seek any available legal or equitable remedy. Notwithstanding the foregoing, either party may at any time, without waiving any remedy under this Agreement, seek from any court having jurisdiction, interim or provisional relief that is necessary to protect the rights or property of that party.

13.9 Remedies.

Except as provided in Sections 8 and 9, the parties’ rights and remedies under this Agreement are cumulative. You acknowledge and agree that the PIT Labs Platform contains valuable trade secrets and proprietary information of PIT Labs, that any actual or threatened breach of Sections 2, 3, 11, or 12 will constitute immediate, irreparable harm to PIT Labs for which monetary damages would be an inadequate remedy, and that injunctive relief, without the requirement of posting a bond, is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

13.10 Force Majeure.

Neither party shall be liable for any delay or failure due to a force majeure event and other causes beyond its reasonable control. This provision shall not apply to any of your payment obligations.

13.11 Waivers.

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

13.12 Severability.

If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be deleted and re-interpreted to the extent necessary to comply with law and interpreted and substituted to accomplish the objectives of such provision to the greatest extent possible under applicable law. The remaining provisions of this Agreement will continue in full force and effect.

13.13 Entire Agreement.

This Agreement, including any Order Forms (all of which are hereby incorporated herein by reference), constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. Unless expressly accepted in writing by PIT Labs in a manner that specifically references this Agreement, any terms on any purchase order or similar document submitted by you to PIT Labs that purport to amend, alter, modify or add to the terms and conditions of this Agreement are hereby deemed to be offers to amend this Agreement that are rejected by PIT Labs, and such terms will have no force or effect.

13.14 Construction & Interpretation.

When a reference is made in this Agreement to a section, such reference will be to a section of this Agreement, unless otherwise clearly indicated to the contrary. Whenever the words “include,” “includes” or “including” are used in this Agreement they will be deemed to be followed by the words “without limitation”. The words “hereof,” “herein” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and section, exhibit and schedule references are references to the sections, exhibits and schedules of this Agreement, unless otherwise specified. The plural of any defined term will have a meaning correlative to such defined term and words denoting any gender will include all genders and the neuter. Where a word or phrase is defined herein, each of its other grammatical forms will have a corresponding meaning. Any reference to a party will include such party’s permitted successors and permitted assigns. If any ambiguity or question of intent arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. No prior draft of this Agreement will be used in the interpretation or construction of this Agreement. Each provision of this Agreement will be given full separate and independent effect. Although the same or similar subject matters may be addressed in different provisions of this Agreement, except as expressly provided in this Agreement, each such provision will be read separately, be given independent significance and not be construed as limiting any other provision of this Agreement (whether or not more general or more specific in scope, substance or content).

13.15 Changes to this Agreement.

PIT Labs may update or change this Agreement and any other terms, conditions, and notices for the Services and the PIT Labs Platform from time to time. You understand that PIT Labs reserves the right to make these changes and that you are responsible for regularly reviewing this Agreement and other terms, conditions, and notices. Continued access to or use of the Services and/or the PIT Labs Platform after any such change will constitute your consent to such change. Unless explicitly stated otherwise, any modifications to the Services and/or the PIT Labs Platform will be subject to this Agreement, as modified from time to time. PIT Labs may also make changes to the Services or the PIT Labs Platform (including content and service offerings), or discontinue the Services or the PIT Labs Platform, at any time and without notice to you. No modification of this Agreement will be binding on PIT Labs unless posted by PIT Labs, or unless in writing and signed by a person authorized to act on behalf of PIT Labs. You should periodically visit PIT Labs’ website to review the current version of this Agreement. Your use of PIT Labs’ Services and/or the PIT Labs Platform will be at you own and sole risk and PIT Labs will not be liable for any data loss or damage to any device, including your own devices, arising out of or relating to your use of the Services and/or the PIT Labs Platform.

13.16 Third Party Content.

PIT Labs may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control, including links to third-party payment processors’ websites. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against PIT Labs with respect to such services. PIT LABS IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE PIT LABS’ WEBSITE. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through PIT Labs’ website, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that PIT Labs is not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party websites or resources on PIT Labs’ website.