MSA

ETHYCA, INC.
MASTER SUBSCRIPTION AGREEMENT

Last Modified:    February 10 2023

1. Definitions. Capitalized terms used and not otherwise defined in this Agreement shall have the meanings set forth below.

1. 1. “Affiliate” means an entity that, either directly or indirectly, controls, is controlled by, or is under common control with, the relevant entity, where "control" means the ability to direct the affairs of another by ownership, contract or otherwise.
   2. “Agreement” means the Order Form, this Master Subscription Agreement.
   3. “Audit Data” means a subset of Customer Data used by Ethyca for the purposes of creating an audit trail of Customer’s use of the Services, comprising: (i) the primary identifier relating to the subject of a DSR, erasure, portability, rectification or consent request; (ii) a time stamp of the request; and (iii) the number of records affected and a list of the affected systems.
   4. “Authorized User” means an individual authorized by Customer to access and use the Service.
   5. “Confidential Information” means any non-public or proprietary information, including any business or technical information, trade secrets, know-how, processes, pricing and financial data, software, and documentation, provided, disclosed or made accessible by a Party to the other Party under the Agreement that is either identified, orally or in writing, as confidential or would be understood to be confidential by a reasonable person under the circumstances. For the avoidance of doubt, the Service and Documentation shall be deemed Ethyca’s Confidential Information.
   6. “Customer” means the company or other legal entity identified as the Customer on the Order Form.
   7. “Customer Data” means all data fields that Customer configures through the Service to be monitored for data privacy management and the data generated therefrom through Customer’s use of the Service.
   8. “Customer Data Store” means a database or other data management or data storage system, that is managed, owned or otherwise controlled by Customer, from which Customer Data is provided to the Service by Customer (or a third party acting on the Customer’s behalf) by a means other than an integration with a Third Party Platform.
   9. “Data Processing Agreement” or “DPA” means Ethyca’s standard Data Processing Agreement available here: [https://ethyca.com/legal/dpa-hosted-fides] as may be amended from time to time.
   10. “Documentation” means the user guidelines and other user documentation related to the use or operation of the Service, as provided by Ethyca.
   11. “Effective Date” means the date referred to in the Effective Date section of the Order Form.
   12. “Ethyca” means Ethyca, Inc.
   13. “Fides” means Ethyca software applications provided for data privacy and governance purposes.
   14. “Order Form” means the Ethyca, Inc. order form(s) entered into between Customer and Ethyca that sets out the Services to be provided by Ethyca to Customer.
   15. “Party” means either Ethyca or Customer as determined by the context in which the term appears, and “Parties” means both of them.
   16. “Service”means the Fides applications authored by Ethyca as part of the online product and services referred to in, and ordered by Customer under, an Order Form and made available to Customer via the user login link designated by Ethyca.
   17. “Term” means the duration of the Agreement comprising the Minimum Term and each Renewal Term (if any) (each as defined in Section 7.1).
   18. “Third Party Platform” means the third party application, platform or data storage system that the Service is configured to integrate with, which is selected by Customer for integration.

2. SERVICE SUBSCRIPTION .

1. 1. Service. During the Term of the Agreement, Ethyca grants to Customer the right to access and use the Service, and to permit Authorized Users to access and use the Service for Customer’s internal business purposes only in accordance with the terms and conditions set forth in the Agreement. Ethyca may modify, amend, alter, supplement or replace (a “Service Change") the Service from time to time, in whole or in part, without any notice to Customer; provided that Ethyca will provide Customer with reasonable prior written notice (unless Ethyca determines in good faith that the provision of immediate notice is advisable) if Ethyca believes that any modification, amendment, alteration, supplement or replacement will cause the Service to no longer operate with the Third Party Platform selected by Customer or otherwise be of detriment to the Customer. For the avoidance of doubt, Ethyca’s right to introduce Service Changes does not include the right to increase the price of the Fees under an Order Form entered into with Customer.
   2. Restrictions. Customer may use the Service for its own internal business purposes only and shall not, and shall ensure that Authorized Users do not, except as expressly permitted in the Agreement: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, timeshare, or otherwise commercially exploit or make the Service available to any third party; (b) use the Service in the operation of a service bureau or similar service for third parties; (c) modify, copy or create derivative works based on the Service; (d) disassemble, reverse engineer, decompile or otherwise seek access to the source code of the Service; (e) access the Service in order to build a competitive product or service (e) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (f) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (g) attempt to gain unauthorized access to the Service or its related systems or networks; or (h) remove from the Service any language or designation indicating the confidential nature thereof or the proprietary rights of Ethyca. If the jurisdiction in which Customer operates expressly permits by applicable law the reverse compiling, disassembly, translation or reverse engineering of the Service regardless of contractual restriction, then Customer agrees that prior to engaging in any such activity, Customer will first notify Ethyca of its desire to reverse engineer the Service, and Ethyca may in its sole discretion either provide such information or impose reasonable terms and conditions on such use of the Service to ensure that Ethyca’s proprietary rights are protected.
   3. Integration.The Service may be integrated with the Third Party Platform or a Customer Data Store to assist Customer to monitor their data processing and storage activities. Customer understands and agrees that use of the Third Party Platform and of any Customer Data Store that is provided to the Customer by a third party may be subject to additional or different terms or fees, including without limitation, any license terms or use policy required by the applicable third party service provider. Ethyca does not warrant the performance, availability, safety or reliability of any such Third Party Platform or Data Store and is not responsible for the third party service provider’s performance or failure to perform in any respect, whether or not such third party service provider is designated by Ethyca as a “partner” and whether or not their services are designated by Ethyca as “certified,” “validated,” or otherwise. Upon reasonable prior written notice to Customer (unless Ethyca determines in good faith that the provision of immediate notice is advisable), Ethyca may terminate the Services integration with any Third Party Platform at any time for any reason. Any exchange of data or other interaction between Customer (or an Authorized User) and a Third Party Platform outside of the Service, and any purchase or use by Customer (or an Authorized User) of any product or service offered by the Third Party Platform outside of the Service is solely between Customer (or such Authorized User) and such Third Party Platform provider, and Ethyca will have no liability or obligation with respect to such exchange or interaction.
   4. Customer Built Integration.Customer may build their own integrations with Third Party Platforms or Customer Data stores. Where Customer builds their own integrations to Third Party Platforms or Data Stores, Customer understands and agrees that Customer is responsible for the performance, availability, safety and reliability of any integration they have built and Ethyca does not warrant the same for any Customer built integrations.
   5. Logon Credentials.  Customer must create a Customer admin account, including a user name, and password, or other logon credentials (altogether, “Logon Credentials”) for each of its Authorized Users to access and use the Service. Customer is solely responsible for maintaining the confidentiality of the Logon Credentials and for all activities on the Service that occur through the use of such Logon Credentials. 
   6. Authorized Users.  Customer is solely responsible for all activities that occur under Authorized User accounts, for procuring that all Authorized Users comply with the terms of the Agreement and for taking reasonable steps to ensure such compliance, for providing the Logon Credentials only to individuals that Customer intends to be Authorized Users. Any individual using the Logon Credentials will be presumed to be an Authorized User unless Customer notifies Ethyca that such individual is not authorized.
   7. Professional Services. 

(a) If Ethyca performs any professional services (“Professional Services”), including but not limited to setting up and/or customizing and/or implementing the Service for Customer or to integrate the Service with a third party platform for which no prior integration has been developed, then, subject to Section 2.6 (b), the following terms will apply: (i) Ethyca shall provide the Professional Services with reasonable care and skill; (ii) Ethyca shall use reasonable endeavors to meet any dates for performance agreed with Customer, but such dates will be estimates only and time will not be of the essence in relation to them nor to the provision of the Professional Services; (iii) the Professional Services shall be performed for the fixed Fee (which may be referred to as the Set Up Fee) stated in the Order Form; (iv) the scope of the Professional Services shall be as agreed in writing between the Parties prior to commencement of the Professional Services; and (v) if no other acceptance criteria are agreed in writing between the Parties, then for any items provided by Ethyca that the Parties have agreed in writing are to be deliverables to which acceptance criteria apply, Customer shall have 14 days from delivery of the relevant deliverable to assess whether the deliverable conforms with the agreed criteria and to notify Ethyca where the deliverable does not conform to the agreed criteria Upon notifying Ethyca of any such non-conformity, Customer shall be entitled to require that Ethyca undertake a rectification of the non-conformity and the redelivery of the deliverable at no additional charge.

(b) The Parties may agree that the Professional Services will be performed pursuant to a Statement of Work (SOW). If the Parties enter into a SOW, then its terms will supersede those of Section 2.6(a) to the extent of any conflict or inconsistency.

(c) The following license shall apply in respect of any Professional Services: Customer hereby grants to Ethyca a non-exclusive, non-transferable, terminable, limited license during the Term, on all intellectual property rights owned or controlled by Customer solely to the extent required for Ethyca to perform Professional Services in accordance with the terms of the Agreement and (if any) the Professional Services Statement of Work.

3. Ownership.

1. 1. Service. As between the Parties, Ethyca shall retain all right, title and interest (including all intellectual property and proprietary rights) in and to the Service, including any updates, upgrades, modifications or improvements thereto.  All rights to the Service not expressly granted under the Agreement are reserved by Ethyca.
   2. Customer Data.  Customer retains all right, title and interest in and to the Customer Data.  Except for the limited rights granted to Ethyca in Section 4.1, all rights to the Customer Data are reserved by Customer.
   3. Feedback. Customer acknowledges that all suggestions for corrections, changes, additions or modifications to the Service, and any other feedback provided by Customer (collectively, “Feedback”) are the exclusive property of Ethyca and Customer hereby assigns all rights in and to any Feedback to Ethyca.

4. DATA; privacy.

1. 1. License to Data. Customer shall only disclose, submit, or provide to Ethyca Customer Data as necessary for Ethyca to provide the Service to Customer. Customer hereby grants Ethyca a non-exclusive, royalty-free, fully paid, worldwide license (with the right to sublicense) to access and use: (a) the Customer Data in order to provide the Service for Customer and fulfill Ethyca’s obligations under the Agreement; and (b) the Audit Data solely to comply with applicable laws and regulations. The license granted in Section 4.1(a) shall be for the Term of the Agreement and the license in Section 4.1(b) shall be irrevocable until the expiry of Ethyca’s compliance obligations as they relate to the Audit Data.
   2. Privacy.  Subject to Section 4.3, Ethyca will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data.  Ethyca agrees to collect, process, store, use and disclose the information included in the Customer Data solely for legitimate operational needs such as audit trail creation or the monitoring of system functionality, or where required by law.
   3. Data Processing Agreement. The terms and conditions of the Data Processing Agreement will apply where the European Data Protection Laws or the CPRA applies to Customer or to Ethyca or to any of their respective Affiliates. If the DPA applies, then its terms supersede Section 4.2. In the event of a conflict or inconsistency between a term of the DPA and any other term of this MSA or the Order Form, then the DPA takes precedence. The words “CCPA” and “European Data Protection Laws” used in this Section 4.3 shall have the meaning given to them in the DPA.

5. CUSTOMER SUPPORT.

1. 1. Ethyca shall (a) maintain technical support via live chat available Monday through Friday from 9:00 AM to 6:00 PM ET, excluding U.S. national holidays, and (b) establish an email address through which it shall provide responses to technical support inquiries. Ethyca shall maintain and utilize a sufficient number of knowledgeable personnel in order to provide timely and effective responses to such live chat and email technical support inquiries. Customer acknowledges that Ethyca will not have any obligation to provide support services if the Service does not comply with the Documentation due to (a) the failure of computer hardware, equipment, servers, cloud infrastructure or software not provided by Ethyca; (b) any cause or causes beyond the reasonable control of Ethyca (e.g., floods, fires, loss of electricity or other utilities), negligence of Customer or any third-party, operator error, improper use of the Service or attempted maintenance by unauthorized persons; (c) use of the Service outside the scope of permitted use in the Agreement; or (d) the operation (or failure to operate) of third-party software. Except as set forth in this Section 5, Customer shall be solely responsible for all maintenance and support obligations with respect to its use of the Service, including with respect to implementation and/or configuration with Customer’s servers and networks

6. Fees.

1. 1. Fees. Customer shall pay the fees specified in the Order Form (the “Fees”). If Customer chooses to add Connector Integrations to its Service, or to change between the Fides True, Fides Team, Fides Plus and Fides Enterprise Services, then the Fees stated in the Order Form for such Integration or Service will apply, and will be calculated on a pro-rata basis for the duration of the use of the additional Integration or Service.
   2. Payment. . Ethyca shall invoice Customer monthly in advance for the Fees and Customer shall pay such invoice within 30 days of the date of such invoice. Except if the Agreement is terminated due to Ethyca’s breach, the Fees shall be non-refundable.
   3. Changes to Fees. Ethyca may only change the price of the Fees under an Order Form: (i) from the start of a Renewal Term and where it has provided Customer at least 60 days prior notice; and (ii) where such price increase is applied generally to the Service.
   4. Taxes. The Fees are exclusive of all taxes and Customer agrees to pay all taxes, including local, state, federal or foreign sales, use and value-added taxes, withholding taxes or similar charges imposed by any governmental entity in connection with its use of the Service, excluding taxes on Ethyca’s net income. If Ethyca has the legal obligation to pay directly or collect any such taxes for which Customer is responsible under this Section 6.3, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Ethyca with a valid tax exemption certificate authorized by the appropriate taxing authority. If Customer is required to deduct or withhold any taxes from any payment due to Ethyca, then (a) the amount payable to Ethyca shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 6.2), Ethyca receives an amount equal to the amount it would have received had no such deductions been made, (b) Customer shall make such deductions, (c) Customer shall pay the full amount deducted to the relevant governmental authority in accordance with applicable law and (d) Customer shall promptly provide Ethyca satisfactory evidence of such payment upon request.
   5. Late Payment. Any amounts not paid by their  due date in accordance with Section 6.2  will be subject to interest at the lesser of one and one-half percentage (1.5%) per month or the maximum allowed by applicable law, which interest will be immediately due and payable. Customer agrees to pay to Ethyca all reasonable costs and expenses of collection, including reasonable attorneys’ fees and court costs, incurred by Ethyca to collect payments past due under the Agreement.

7. Term and Termination.

1. 1. Term. The Agreement shall begin on the Effective Date for a period of 12 months (the “Minimum Term”), and will automatically renew for successive 12 month terms on each subsequent anniversary of the Effective Date (each a “Renewal Term”), unless the Customer provides not less than 60 days’ written notice to Ethyca prior to the end of the Minimum Term or a Renewal Term (as appropriate), or until the expiration or termination of the Agreement in accordance with its terms and conditions (whichever is sooner).
   2. Termination for Breach. Either Party may, upon giving thirty (30) days’ written notice identifying specifically the basis for such notice, terminate the Agreement  for a material breach, provided the other Party shall not have cured such breach within the thirty (30)-day period.
   3. Effect of Termination. Upon the termination of the Agreement for any reason: (a) the Service  will immediately terminate, (b) the license granted in Section 2.1 hereof shall automatically and immediately terminate; and (c) within thirty (30) days after the effective date of termination, each Party shall either return or destroy all Confidential Information of the other Party in its possession or control, together with all copies, extracts, summaries and portions thereof and shall certify the forgoing in writing to the other Party. No termination or expiration of the Agreement shall affect any rights or liabilities of a Party that accrued prior to the date of termination or expiration, including any Fees accrued or payable to Ethyca prior to the effective date of termination or expiration.
   4. Suspension.  Ethyca may immediately suspend Customer’s or any Authorized User’s access to or use of all or part of the Service in the event of a violation of Section 2.2.  Additionally, if Ethyca determines in good faith that suspending access to the Service by Customer or any Authorized User is advisable (a) for security reasons, (b) in response to a request from law enforcement or a governing body or in relation to legal proceedings, (c) due to nonpayment of Fees or (d) for the continued normal and efficient operation of the Service, then following Ethyca’s written notice to Customer describing such conditions, the corresponding performance obligations of Ethyca under the Agreement shall be suspended accordingly until such matter is resolved to Ethyca’s reasonable satisfaction
   5. Survival. Notwithstanding any provision herein to the contrary, the provisions of Sections 1, 3, 4.1(b), 7.5, 8, 9, 10, 11, and 12 shall survive the termination or expiration of the Agreement, regardless of cause.

8. Indemnification.

1. 1. Ethyca Indemnity. Ethyca shall indemnify, defend and hold Customer and its officers, directors, employees, members, managers, shareholders, agents, and representatives (“Customer Indemnified Parties”) harmless from and against any and all liabilities, losses, settlement costs, fines, penalties, damages, judgments, costs and expenses, including reasonable attorneys’ fees and costs (collectively, “Losses”) actually awarded by a court of competent jurisdiction arising from or in connection with any claim, demand, suit, cause of action or legal proceeding (each, a “Claim”) brought by a third party against Customer Indemnified Party alleging that the Service as provided to Customer hereunder infringes any valid U.S. issued patent, or any trademark, copyright, trade secret or other third-party intellectual property rights (each, a “Customer Claim”). Ethyca shall have no obligation under this Section 8.1 or otherwise regarding Claims that arise from or relate to: (a) Customer’s use of the Service other than as contemplated by the Agreement; (b) any modifications made to the Service by any entity other than Ethyca; (c) any combination of the Service with services or technologies not provided by or expressly authorized by Ethyca; (d) Customer’s failure to use the most current version of the Service; (e) Customer’s use of the Service or a portion thereof after Ethyca has terminated the Agreement or such portion of the Service in accordance with this Section 8.1; or (f) Customer’s own obligations to comply with all applicable regulations and laws, including, without limitation, any data privacy or security laws (items (a) – (f) shall collectively be referred to as the “Excluded Activities”). If in Ethyca’s opinion a Customer Claim is likely to be made or if an existing Customer Claim may cause Ethyca liability, Ethyca may in its discretion: (x) obtain a license to enable Customer to continue to use the potentially infringing portion of the Service; (y) modify the Service to avoid potential infringement; or (z) if the foregoing cannot be achieved after using commercially reasonable efforts, terminate the Agreement. ETHYCA’S OBLIGATIONS IN THIS SECTION 8.1 SHALL BE ITS SOLE AND EXCLUSIVE LIABILITY TO CUSTOMER, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CUSTOMER CLAIM OF INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS INVOLVING THE SERVICE.
   2. By Customer. Customer shall indemnify, defend, and hold Ethyca, its affiliates, and their respective officers, directors, employees, members, managers, shareholders, agents, and representatives (the “Ethyca Indemnified Parties”) harmless from and against any and all Losses which any or all of them may hereafter suffer arising from (a) Customer’s gross negligence or willful misconduct, (b) any actions taken by Customer that are in direct contradiction to any recommendation provided by Ethyca or through the Service, or (c) any Excluded Activities.
   3. Indemnity Procedures. A Party entitled to indemnification under this Section 8 (an “Indemnified Party”) shall notify the other Party (the “Indemnifying Party”) promptly in writing of any claim, demand, suit, cause of action or legal proceeding that may give rise to an indemnification obligation hereunder; provided, however, that the failure of the Indemnified Party to provide prompt notice shall not relieve the Indemnifying Party of its indemnity obligations hereunder, except to the extent the failure to so notify materially prejudices the Indemnifying Party’s ability to defend the claim. The Indemnifying Party shall have sole control of the defense and all related settlement negotiations but if the settlement of a claim may have an adverse effect on the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld or delayed. The Indemnified Party shall reasonably cooperate in the defense of any such claim.

9. Confidentiality.

1. 1. Non-Disclosure. Each Party agrees to hold the other Party’s Confidential Information in trust and confidence and will not at any time, directly or indirectly, use, disclose, furnish, divulge or permit any person or entity access to the other Party’s Confidential Information except as otherwise expressly permitted in the Agreement. Neither Party shall use the other Party’s Confidential Information for any purpose other than in connection with the Agreement. Each Party shall take reasonable measures, consistent with those taken to protect its own Confidential Information, and in no event less than commercially reasonable steps, to protect the other Party’s Confidential Information against disclosures in violation of the Agreement. Each Party will limit the disclosure of the other Party’s Confidential Information to employees and contractors with a need to know who (a) have been advised of the proprietary nature thereof, and (b) have in writing either acknowledged a specific obligation to maintain the confidentiality thereof or agreed to protect and keep confidential all proprietary information to which they have access in the scope of their employment.
   2. Exceptions. Nothing herein shall limit either Party’s (the “Receiving Party”) use or dissemination of the other Party’s (the “Disclosing Party”) Confidential Information which: (a) was known without obligation of confidentiality by the Receiving Party prior to its receipt from the Disclosing Party; (b) is or becomes public knowledge through no breach of the Agreement by the Receiving Party; (c) is independently developed by the Receiving Party without any use by the Receiving Party of or reference to any of the Disclosing Party’s confidential information; or (d) was acquired by it from a third party without obligation of confidentiality and who was, to the best of Receiving Party’s knowledge, under no obligation of confidentiality.
   3. Court Orders. Notwithstanding anything on the contrary in this Section 9, the Receiving Party may disclose the Confidential Information of the Disclosing Party in the event that the Receiving Party receives a subpoena or other government process that purports to require the production of Confidential Information of the Disclosing Party for use in an action or proceeding, provided that the Receiving Party shall (a) promptly inform the entity issuing such subpoena or other government process of the existence of the Agreement, (b) promptly inform the Disclosing Party of the receipt of such subpoena or other government process and (c) not oppose any effort by the Disclosing Party to quash or limit any such subpoena or other government process. In the event that any Confidential Information is ordered produced in an action or proceeding, such Confidential Information shall not lose its confidential status through such use and the Receiving Party shall take all reasonable and necessary steps to maintain the confidentiality of such Confidential Information during such use.
   4. Return of Confidential Information. Upon request of either Party, copies and embodiments of such Party’s Confidential Information shall be promptly returned to such Party by the Receiving Party or destroyed by the Receiving Party, and the Receiving Party agrees to certify such return or destruction in writing.

10. Warranties; Limitations on Liability.

1. 1. Mutual Warranties. Each Party hereby represents and warrants that: (a) it is a valid legal entity duly organized, qualified and in good standing under the laws of the jurisdiction in which it is organized and (b) it has the legal power to enter into the Agreement.
   2. Limited Warranty. Ethyca hereby represents and warrants that the Service shall comply in all material respects with the Documentation. In the event of a breach of the foregoing limited warranty, Customer shall notify Ethyca in writing of the alleged issue, providing details of the problems, and upon confirmation of the issue by Ethyca, Ethyca will use commercially reasonable efforts to promptly correct any identified problem or provide work-arounds that address the identified issue to enable the Service to perform in accordance with this limited warranty. If Ethyca is unable to correct any identified problem, Ethyca shall notify Customer and Customer shall have the right to terminate the Agreement upon thirty (30) days’ written notice to Ethyca. The foregoing shall be Ethyca’s sole obligation and exclusive liability, and Customer’s exclusive remedy, for any breach of the warranty set forth in this Section 10.2.
   3. Warranty Disclaimer. EXCEPT AS SET FORTH IN SECTION 10.2, THE SERVICE IS PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ETHYCA HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICE, ANY SERVICES PROVIDED BY ETHYCA AND ANY REPORTS OR OUTPUTS THEREOF, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. FURTHERMORE, ETHYCA DOES NOT WARRANT THAT THE SERVICE SHALL MEET CUSTOMER’S REQUIREMENTS, THAT USE OF THE SERVICE WILL RESULT IN CUSTOMER’S COMPLIANCE WITH APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, ANY DATA PRIVACY OR SECURITY LAWS) OR THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR LOCATION, UNINTERRUPTED OR SECURE. CUSTOMER UNDERSTANDS AND AGREES THAT THE DISCLAIMER OF WARRANTIES IN THIS AGREEMENT IS A FUNDAMENTAL PART OF THIS AGREEMENT AND THAT ETHYCA WOULD NOT AGREE TO ENTER THIS AGREEMENT WITHOUT SUCH DISCLAIMERS.
   4. No Legal or Regulatory Advice. Customer acknowledges and agrees that Ethyca is not providing any legal, accounting, tax or regulatory services while providing the Service. Without limiting the foregoing, Ethyca is not providing any advice on compliance with or an interpretation of any data privacy or security laws or other laws or regulations that may be applicable to the Customer or Customer’s use of the Service. Customer acknowledges and agrees that any recommendations or advice provided by Ethyca in connection with the Service concern the functionality of the Service only, are provided from a business perspective only and do not constitute in any way legal advice or recommendations, and Customer should not rely on them as such. Customer retains sole responsibility for compliance with its legal and regulatory obligations as well as for identifying such obligations as they apply to its business and its implementation of the Service.

2. 11. LIMITATIONS OF LIABILITY.
   
   1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHETHER DIRECT OR INDIRECT) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR SIMILAR DAMAGES HOWSOEVER ARISING WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE) WHETHER OR NOT ETHYCA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, EXCEPT AS PROHIBITED BY APPLICABLE LAW.   
   2. SUBJECT TO SECTION 11.1 AND SAVE IN RELATION TO GROSS NEGLIGENCE AND WILFUL MISCONDUCT; PAYMENT OBLIGATIONS ARISING UNDER SECTION 6; AND CLAIMS UNDER THE INDEMNITIES GRANTED IN SECTION 8.2, THE TOTAL AGGREGATE LIABILITY OF EACH PARTY TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT HOWSOEVER ARISING WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO AN AMOUNT EQUIVALENT TO 150% OF THE FEES PAID BY THE CUSTOMER TO ETHYCA HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE LIABILITY.
   3. SUBJECT TO SECTION 11.1 AND NOTWITHSTANDING SECTION 11.2, ETHYCA’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE INDEMNITY GRANTED IN SECTION 8.1 SHALL BE LIMITED TO 300% OF THE FEES PAID BY THE CUSTOMER TO ETHYCA HEREUNDER DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT OR OMISSION GIVING RISE TO THE CUSTOMER CLAIM.

12. General.

1. 1. Changes to Terms. Other than in relation to the exercise of Ethyca’s rights to introduce changes under Section 2.1 and Section 6.3, no amendment or modification of any terms or provisions of this Agreement shall be effective unless it is stated in writing and signed by the Parties.
   2. Relationship. In all matters relating to the Agreement, Customer and Ethyca shall act as independent contractors. Except as may be otherwise expressly permitted hereunder, neither Party will represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of the other Party, or to represent the other Party as joint-venture, agent, employee, or in any other capacity.
   3. Third-Party Beneficiaries. The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third-party.
   4. Name Use.  Customer hereby grants Ethyca a non-exclusive, royalty-free, perpetual license to use and display Customer’s name and logo on Ethyca’s website and in press releases, product brochures and other marketing materials, financial reports and prospectuses solely to indicate Customer as a customer of Ethyca.  All such usage will be subject to Customer’s branding guidelines, as provided to Ethyca in writing.
   5. Customer Reference.Excluding any confidential information, Customer hereby grants Ethyca the use of Customer's name and other already publicly available details about the Customer as well as basic facts about the work performed for the Customer including a brief verbal testimonial as a reference in connection with the marketing and sale of the Ethyca Service.
   6. Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings between the Parties including, without limitation, any prior purchase orders, or requests for proposals. In the event that any clause, sub-clauses or other provision contained in these Terms, a Professional Services SOW, or the Order Form are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such clause, sub-clause or other provision shall be interpreted as closely as possible to achieve the objectives of the parties, and the remainder of the Agreement shall continue to be valid and enforceable to the fullest extent permitted by law. The Order Form may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. The Parties agree that .pdf signature copies of the Order Form will be legally binding. Any conflict between the terms of the Order Form, and this MSA (including any Professional Services SOW), will be resolved in the following order: (i) the Order Form; (ii) the Professional Services SOW; and (iii) the MSA.
   7. Force Majeure. Except for payment obligations, neither Party shall lose any rights hereunder or be liable to the other Party for damages or losses on account of failure of performance by the defaulting Party if the failure is occasioned by war, strike, fire, act of God, earthquake, flood, lockout, embargo, pandemic, act of terrorism, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing Party (each, a “Force Majeure Event”).
   8. Assignment. Customer may not assign or otherwise transfer the Agreement, directly or indirectly, by operation of law, change of control or otherwise, without the prior written consent of Ethyca (except that Customer may assign or transfer the Agreement without Ethyca’s consent in respect of a merger or acquisition of Customer, or to an Affiliate of Customer in respect of a corporate reorganization). Any purported assignment in violation of this Section 12.5 shall be null and void from the beginning. Subject to the foregoing, the Agreement will bind and insure to the benefit of any successors and permitted assigns.
   9. Compliance with Laws. Each Party shall comply with all applicable federal, state, county, and local rules, and all foreign laws. Customer will not export or re-export, directly or indirectly, the Service to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List.
   10. Governing Law. The Agreement shall be governed by the laws of the State of Delaware, without regard to any conflicts of law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The Parties agree that any dispute hereunder shall be subject to the exclusive jurisdiction of the state or federal courts in New York, New York.
   11. Notices. All notices shall be given in writing, and shall be deemed to have been duly given when delivered by hand, posted by registered first class mail (airmail if international), or sent via recognized overnight couriers (e.g., Federal Express) to the Party to which such notice is required to be given at the address set forth on the first page or to such other address as such Party may have specified to the other in writing in accordance with this provision. Notices shall be deemed received on the earlier of the following: (a) notices delivered by hand shall be deemed received the first business day following such delivery; and (b) notices which have been posted or sent via overnight courier shall be deemed received on the second business day following posting.
   12. Injunctive Relief. Customer agrees that certain breaches of the Agreement by it may result in irreparable harm to Ethyca, the extent of which would be difficult and/or impracticable to assess, and where money damages would not be an adequate remedy for that breach, including without limitation infringement of Ethyca’s intellectual property rights in the Service and a breach of confidentiality obligations. Accordingly, Ethyca shall be entitled to seek any and all remedies available at law or in equity, including, without limitation, injunctive relief or specific performance.