DEFINITIONS. In addition to the terms defined elsewhere in the Agreement, the terms set forth in this Section 1 shall have the following meanings: 

1.    “Application” means the Client-operated web-based or mobile application through which Client can obtain real estate information, data, and analytics from DF. 

2.    “Authorized Users” shall mean one registered user at Client who has been granted permission by DF to access DF data and use the DF Platform and Deliverables on Client’s behalf, and who has been supplied with and is uniquely identified by a user identification (userid) and password by Client. Employees, consultants, and contractors will have to pay for its own data subscription. 

3.    “Client Content” shall mean any content or materials, including without limitation, Client’s name, logos, trademarks and other identifying marks, provided by Client to DF for use in connection with the Services, excluding Client Data. 

4.    “Client Data” shall mean electronic data and information uploaded, generated or transmitted by or for Client or its End Users to the Services, excluding Client Content. 

5.    “Deliverables” means the Client’s access to and usage of the Application including any information and data obtained or derived from such usage, as well as any deliverables, reports, data or work product provided, delivered or made available through the Services. 

6.    “DF Platform” shall mean DF’s data-as-a-service Application made available to Client pursuant to an Order Form. 

7.    “Documentation” means DF-provided user documentation, in all forms, relating to the Deliverables. 

8.    “End User(s)” means Client’s end users who are specifically identified in the Order Form as authorized to receive access and use the Application and/or the Deliverables as expressly specified in an Order Form. 

9.    “Non-DF Services” shall mean a web-based, mobile, offline or other software application functionality that interoperates with the Services or Deliverables, that is provided by Client or a third party. 

10. “Order Form” shall mean an ordering document or online order specifying the Services and Deliverables to be provided hereunder that is entered into between Client and DF, including any addenda and supplements thereto. All Order Forms shall be deemed incorporated into the Agreement. 

11. “Professional Services” shall mean any implementation, integration, consulting, training or other services provided by DF to Client, as set forth in an Order Form. 

12. “Services” shall mean the services rendered by DF through which Client can obtain real estate information, data, and analytics from DF, including through DF Platform and Professional Services. “Services” excludes any Non-DF Services.  

2.    VENDOR RESPONSIBILITIES.  

1.    Provision of the Services. DF will make the Deliverables available to Client pursuant to this Agreement and the applicable Order Form(s). 

3.    USE OF THE SERVICES.  

1.    Scope. Unless otherwise provided in the applicable Order Form, the Services and access to DF Platform are purchased pursuant to the pricing and scope of work set forth in the applicable Order Form(s). Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by DF regarding future functionality or features.  

2.    Cooperation. Client acknowledges that the successful and timely providing of the Services shall require the good faith cooperation of Client. DF shall not be liable for any failure to provide the Services that arises from Client’s failure to cooperate in good faith with DF.  

3.    Use Guidelines.    

1.    Usage Limits. The Services and Deliverables are subject to usage limits specified in Order Form. If Client exceeds a contractual usage limit and Client is unable or unwilling to abide by a contractual usage limit, Client will execute an Order Form for additional quantities of the applicable Services and Deliverables promptly upon DF’s request and/or pay any invoice for excess usage. 

2.    Client Responsibilities. Client will (a) be responsible for its and its Authorized User’s’ compliance with this Agreement, Documentation and Order Forms and all activity occurring under its Authorized User’s accounts, (b) be responsible for the accuracy, quality and legality of Client Data and Client Content, the means by which Client acquired Client Data and Client Content, and Client’s use of Client Data and Client Content with the Services and Deliverables, (c) be responsible for the interoperation of any Non-DF Services Client uses with the Services and Deliverables and compliance with terms of service of any Non-DF Services Client uses with the Services and Deliverables, (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Deliverables, and notify DF promptly of any such unauthorized access or use, (e) comply with and use Services and Deliverables in accordance with applicable laws and government regulations (including without limitation applicable privacy and data protection laws), and (f) be responsible all use of the Deliverables by Client’s End Users (including providing all required notices and obtaining all necessary consents from such End Users) and shall be liable to DF for all acts and omissions of its Authorized Users and End Users which would constitute a breach of this Agreement if such act or omission were Client’s. If requested by DF, Client will be required to enter into a separate brokerage and/or contractual agreement with DF for each real estate transaction performed with a DF agent or broker. 

3.    Use Restrictions. Client will not, and will not allow any third party (including any End Users) to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Services and/or Deliverables by any means, or disclose any of the foregoing; (ii) except as expressly set forth in the Agreement, provide, rent, lease, lend, or use the Services and/or Deliverables for timesharing, subscription, or service bureau purposes; (iii) sublicense, transfer or assign the Services and/or Deliverables or any of the rights or licenses granted under the Agreement; or remove or obscure any trademark, product identification, proprietary marking, copyright or other notices provided with the Services, Deliverables or related documentation; (iv) interfere with or disrupt the integrity or performance of any Service, Deliverables, or third-party data contained therein, (v) permit direct or indirect access to or use of any Services and/or Deliverables in a way that circumvents a contractual usage limit, or use any Services and/or Deliverables to access or use any of DF intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (vi) except as expressly set forth in the Agreement, modify, copy, or create derivative works based on the Services and/or Deliverables or any part, feature, function or user interface thereof, (vii) access the Services and/or Deliverables to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Services and/or Deliverables, or (3) copy any ideas, features, functions or graphics of the Services and/or Deliverables or create derivative works based on the Services and/or Deliverables or any part, feature, function or user interface thereof, (viii) use the Services and/or Deliverables to store or transmit infringing, libelous, obscene, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party intellectual property or privacy rights, (ix) use the Services and/or Deliverables to store or transmit any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, or (x) use the Services and/or Deliverables in furtherance of illegal activities, or any activities that may be harmful to any third party, or DF’s operations or reputation.  Without limiting the foregoing, Client may not copy, download, store, publish, transmit, transfer, sell or otherwise use DF’s Deliverables or DF IP or any portion of such Deliverables or DF IP, in any form or by any means except (a) as expressly permitted by this Agreement, or (b) with DF’s express prior written permission, or (c) if not expressly prohibited by this Agreement as allowed under the fair use provision of the U.S. Copyright Act (17 U.S. Sec. 107). Downloaded Deliverables or DF IP may not be stored or used by Client in an archival database or other searchable database except as expressly permitted by this Agreement. Client shall not sell, license or distribute DF’s Deliverables or DF IP in any form to third parties or use such Deliverables or DF IP as a component or as a basis for any material offered for sale, license or distribution. Use of DF’s Deliverables or DF IP to create mailing or marketing lists for commercial purpose or for distribution to third parties is strictly prohibited. Client must keep strictly confidential the userid and password issued to it by DF and said userid and password must remain within Client’s sole possession and control at all times and may not be communicated in any manner or form to any party not authorized by DF to have access to and use of said userid and password. Except for the limited license granted by this Agreement, all right, title and interest in the Services and Deliverables (including the DF IP and related data), in all languages, formats and media worldwide, including all copyrights, are and will continue to be the exclusive property of DF.

4.    No Data Sharing; No Derivatives; No Work Product Use Client shall not, and shall not permit any Authorized User, End User, employee, contractor, consultant, affiliate, or any other third party to, without DF’s prior express written consent: (a) disclose, publish, transfer, sell, license, sublicense, distribute, share, transmit, or otherwise make available any Deliverables, DF data, DF IP, or any portion thereof; (b) create, compile, merge, enrich, train on, model, summarize, index, analyze, scrape, or otherwise prepare any derivative works, derivative data sets, derived data, outputs, insights, reports, spreadsheets, databases, lists, models, or other work product based on or using any Deliverables, DF data, or DF IP, except solely for Client’s internal use expressly authorized under this Agreement; or (c) use, disclose, commercialize, or otherwise exploit any such derivative works, derivative data sets, or work product for the benefit of any third party or for any competitive, commercial, resale, redistribution, or data-brokerage purpose. For clarity, Client may not use any Deliverables or DF data to create, populate, or enhance any database, list, profile, lead list, marketing list, CRM, artificial intelligence model, or other dataset that is made available to, shared with, licensed to, sold to, or otherwise monetized by any third party.

5.    Liquidated Damages for Unauthorized Disclosure or Exploitation. Client acknowledges that any unauthorized external disclosure, distribution, sale, license, sublicense, publication, transfer, sharing, or other external exploitation of any Deliverables, DF data, DF IP, derivative data, or work product would cause DF immediate and irreparable harm, including loss of exclusivity, diminution in data value, competitive injury, remediation expense, and enforcement costs, the amount of which would be difficult to determine with precision at the time of contracting. Accordingly, for each separate unauthorized external disclosure to a third party, sale, license, sublicense, transfer, or other prohibited external commercialization or exploitation of any Deliverables, DF data, DF IP, derivative data, or work product, Client shall pay DF liquidated damages in the amount of $10,000 per event. The parties agree that such amount is a reasonable pre-estimate of the damages likely to result from each such breach and is not a penalty. DF’s rights under this subsection are cumulative and in addition to any other rights or remedies available under this Agreement, at law, or in equity, including suspension of access, termination for cause, injunctive relief, specific performance, and recovery of attorneys’ fees and costs to the extent permitted by law. For purposes of this Section, each disclosure or transfer to a different third party, and each separate sale, license, sublicense, or other external commercialization transaction, shall constitute a separate event.

6.    Suspension. Any use of the Services in breach of Sections 3.3.2, 3.3.3 or 3.3.4, or that in DF’s judgment threatens the security, integrity or availability of the Services and/or Deliverables, may result in DF’s immediate suspension of the Services and/or Deliverables. 

4.    Non-DF Services and Third Party IP. DF or third parties may make available third-party products or services, including, Non-DF Services. Any acquisition or use by Client of Non-DF Services and any exchange of data between Client and any non-DF provider is solely between Client and the applicable non-DF provider. DF does not warrant or support Non-DF Services. DF is not responsible for any disclosure, modification or deletion of Client Data resulting from access by Non-DF Services or its provider. If Client chooses to use a Non-DF Service with the Services, Client grants DF permission to allow the Non-DF Service and its provider to access Client Data and information about Client’s usage of the Non-DF Service as appropriate for the interoperation of that Non-DF Service with the Service. The parties agree and acknowledge that the Deliverables may include or be built on certain software or materials of third parties and their licensors (“Third Party IP”). DF shall not be liable for any Third-Party IP incorporated or linked in the Deliverables. 

4.    PROPRIETARY RIGHTS AND LICENSES. 

1.    Proprietary Rights. Client agrees that DF, its licensors, or its suppliers retain all right, title and interest including all intellectual property rights in and to the Services, Deliverables, Documentation, DF IP and any and all related and underlying software, databases, data, information, reports, technology, reports and documentation, and any adaptation, modification, derivation, addition or extension to the Services and Deliverables. Except for the licenses granted hereunder, nothing in the Agreement gives the Client any right, title or interest in or to the Services, Deliverables, Documentation, DF IP, or any related materials.

2.    Deliverables. DF is and will remain the sole and exclusive owner of all Services and Deliverables, including, without limitation, materials, information, developments, inventions, improvements, documents, discoveries, processes, writings, models, algorithms, data, information, reports, diagrams, devices, computer programs, software, technology, know-how and other works of DF created, conceived, or developed, (a) prior to the term of this Agreement, (b) outside the scope of this Agreement; or (c) in the course of this Agreement, including any copies, enhancements and modifications thereto (collectively, “DF Inventions”) and all intellectual property rights therein (collectively, “DF IPR,” and, together with the DF Inventions, “DF IP”). 

Derived Materials. To the extent any derivative works, derivative data sets, derived data, reports, lists, models, outputs, or other work product are created by or for Client from or based on any Deliverables, DF data, or DF IP, such materials shall be deemed DF Confidential Information, and Client shall have no right to disclose, transfer, commercialize, or exploit such materials except as expressly authorized in writing by DF.

3.    Client Data and Client Content. Client shall retain all right, title and interest in and to any Client Data and Client Content. Client grants DF a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to collect, transmit, store, use, disclose, process, copy, modify, publicly perform, publicly display, distribute and prepare derivative works of any Client Data and Client Content as necessary to provide the Services and/or Deliverables. DF may use the Client Data in an aggregated format with data provided by other third parties for various business purposes, including to improve the Services and/or Deliverables, and for industry analysis, benchmarking, and analytics; provided that it is not possible to identify Client, or any individual Client transaction from the data. Client acknowledges that DF may, in its discretion, remove any Client Content or Client Data from the Services. In the event DF determines that certain Client Content or Client Data should be removed from the Services, Client will (and will require that its Authorized Users) take all steps necessary, including providing assistance to DF, to remove or disable access to such Client Content or Client Data. 

4.    Usage Data. Client acknowledges and agrees that DF may collect, transmit, store, use, disclose, and otherwise process aggregated and/or de–identified data derived from Client Data or Client’s use of the Services and/or Deliverables (“Usage Data”) for DF’s business purposes, including to improve the Services and/or Deliverables, and for industry analysis, benchmarking, and analytics.  

5.    Feedback. Client grants to DF a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its products and services, and otherwise exploit any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or its End Users relating to the operation of DF’s Services and/or Deliverables. 

6.    Federal Government End Use Provisions. DF provides the Services and/or Deliverables, including related software and technology, for ultimate federal government end use in accordance with the following: The Services and/or Deliverables consist of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in connection with the Services shall be as provided in this Agreement, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to this Agreement specifically granting those rights. 

5.    Fees; Payment

1.    Fees; Invoicing; Payment Terms.
Client agrees to pay all fees set forth in the applicable Order Form or checkout terms. Unless otherwise stated in the applicable Order Form, fees for the Services will be invoiced in advance and shall be due and payable in United States dollars within thirty (30) days after the date of invoice, without setoff, deduction, withholding, or counterclaim, except for amounts disputed in good faith and supported by written notice delivered to DF before the payment due date.

2.    Late Payments.
Any amount not paid when due shall accrue interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by law, whichever is less, from the due date until paid in full. Client shall reimburse DF for all reasonable costs of collection, including attorneys’ fees and expenses, to the extent permitted by law.

3.    Non-Cancellable Fees.
Except as expressly provided in Section 6, all fees are non-cancellable and non-refundable. Client is responsible for all fees incurred during the applicable billing period, including any subscription period that begins before cancellation becomes effective.

4.    Taxes.
All fees are exclusive of applicable sales, use, value-added, excise, withholding, and similar taxes, duties, and charges, all of which shall be Client’s responsibility except for taxes based on DF’s net income.

6.    CANCELLING AND REFUND POLICY 

1.    Subscription Start; Recurring Charges.
By purchasing a monthly or annual subscription, Client authorizes DF to begin providing access to the Services immediately and to charge the applicable subscription fees on a recurring basis in accordance with the applicable Order Form or checkout terms.

2.    Monthly Subscriptions; No Refunds.
Monthly subscription fees are non-refundable once charged. If Client cancels a monthly subscription, cancellation will be effective at the end of the then-current billing period, and no refund or credit will be issued for any unused portion of that billing period, except as required by applicable law.

3.    Annual Subscriptions; Limited Refund Eligibility.
Annual subscription fees are generally non-refundable once charged, except that Client may request a partial refund of the annual subscription fee actually paid as follows:
(a) if the refund request is received within the first thirty (30) days after the annual subscription start date, Client shall be eligible for a refund equal to thirty percent (30%) of the annual subscription fee actually paid;
(b) if the refund request is received after the first thirty (30) days but on or before the ninetieth (90th) day after the annual subscription start date, Client shall be eligible for a refund equal to ten percent (10%) of the annual subscription fee actually paid; and
(c) no refund shall be available for any request received after the ninetieth (90th) day following the annual subscription start date.

4.    Cancellation Deadline.
Client may cancel at any time by providing written notice to DF through the designated support or billing contact. To avoid being charged for the next renewal period, DF must receive the cancellation notice at least ten (10) business days before the applicable renewal date. If cancellation is received fewer than ten (10) business days before renewal, the cancellation may take effect after the renewal charge is processed and will apply to the following billing period.

5.    No Prorated Credits.
Except as expressly stated in this Section 6 or as otherwise required by applicable law, DF will not provide prorated refunds, credits, or partial billing adjustments for unused time, reduced usage, change in need, or early cancellation.

6.    All Other Sales Final.
Except as expressly stated in this Section 6, all sales are final, payment obligations are non-cancellable, and all fees paid are non-refundable.

7.    TERM AND TERMINATION. 

1.    Term of the Agreement. The Agreement commences on the date this Agreement is accepted by Client and continues until all Order Forms have expired or the Agreement is terminated earlier, pursuant to the terms set forth herein.  

2.    Term of Subscription. The term to the Services shall be as set forth in the Order Form (the “Subscription Term”). Unless otherwise set forth in an Order Form, upon the expiration of the Subscription Term, the Subscription Term shall automatically renew for additional one (1) year periods, unless either party notifies the other of its intent not to renew at least thirty (30) days prior to the end of the Subscription Term.]  

3.    Termination for Cause. Either party may terminate the Agreement or an Order Form by written notice if the other party commits a material breach and fails to cure such breach within thirty (30) days following receipt of written notice of such breach.  

4.    Effect of Termination. Termination of this Agreement shall be deemed termination of all outstanding Order Forms entered hereunder. Termination or expiration of any Order Form shall not be deemed termination of this Agreement. Upon any termination or expiration of the Agreement (i) DF will terminate Client’s access to and cease providing the Services and/or Deliverables; (ii) Client shall immediately cease any and all use of and access to any Services and/or Deliverables; and (iii) each party hereunder shall return to the other party any and all Confidential Information of the other party in its possession. Termination shall not relieve Client of the obligation to pay DF the fees agreed in any Order Form. 

8.    WARRANTIES AND DISCLAIMER.

1.    Mutual Warranties. Each party represents and warrants to the other that: (a) it is duly organized and in good standing under the laws of its state of incorporation or organization and is duly qualified to do business in the applicable jurisdiction;  and (b) to its knowledge, it has all the necessary power and authority to make, execute, deliver, and perform under this Agreement. 

2.    Client Warranty. Client hereby warrants that it (a) owns or has all right and title to grant DF the right to use the Client Data and Client Content as provided herein, (b)  has provided all notices, and obtained all rights, authorizations, and consents, necessary to grant the rights to use the Client Data and Client Content as provided herein, and (c) the Client Data and Client Content and DF’s use thereof, does not and will not infringe any third party intellectual property or privacy rights.  

3.    DF Warranty. DF hereby warrants that the DF Platform and Deliverables will operate in substantial conformity with the then-current functional specifications specified in an Order Form. Client’s sole remedy and DF’s sole liability for breach of the foregoing warranty shall be, at DF’s sole option, either (i) DF will repair the applicable DF Platform or Deliverables, or (ii) DF will terminate the Agreement and refund to Client a sum equal to the fees paid for use of the DF Platform or Deliverable for the period during which the DF Platform or Deliverable were rendered unusable, prorated on a monthly basis.  

4.    DISCLAIMER OF WARRANTIES. EXCEPT FOR THE WARRANTIES CONTAINED IN THIS SECTION 7, VENDOR MAKES NO WARRANTIES REGARDING THE SERVICES OR DELIVERABLES. VENDOR SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. VENDOR DOES NOT WARRANT THAT ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ALL DEFECTS AND ERRORS IN THE DELIVERABLES WILL BE CORRECTED, OR THAT THE SERVICES OR DELIVERABLES WILL MEET CLIENT’S PARTICULAR REQUIREMENTS OR EXPECTATIONS. VENDOR DOES NOT PROVIDE ANY WARRANTIES REGARDING THE ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES. VENDOR SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, SERVICE FAILURES AND ANY OTHER PROBLEMS ARISING FROM CLIENT’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN VENDOR AND CLIENT. VENDOR’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITED WARRANTIES SPECIFIED HEREIN.  

9.    CONFIDENTIAL INFORMATION. 

1.    Obligations. During the term of the Agreement and for a period of three (3) years after the date of termination or expiration of the Agreement, each party: (i) shall treat as confidential all Confidential Information (as defined below) provided by the other party; (ii) shall not use such Confidential Information except as expressly permitted under the terms of the Agreement or otherwise previously authorized in writing by the disclosing party; (iii) shall implement reasonable procedures to prohibit the disclosure, unauthorized duplication, reverse engineering, disassembly, decompiling, misuse or removal of such Confidential Information; and (iv) shall not disclose such Confidential Information to any third party, without the express written consent of the disclosing party. Without limiting the foregoing, each party shall use at least the same degree of care to prevent the disclosure of the other party’s Confidential Information as it uses to prevent the disclosure of its own Confidential Information, and shall in any event use no less than a reasonable degree of care. “Confidential Information” shall mean all confidential information of a party, whether written or oral, and whether in paper or electronic format, disclosed to a receiving party that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential information related to either party’s customer lists, data, databases, customer information, products, technical information, pricing information, pricing methodologies, or information regarding the disclosing party’s business planning or business operations shall be deemed Confidential Information without any marking or further designation. 

For the avoidance of doubt, Deliverables, DF data, DF IP, and all derivative works, derivative data sets, derived data, reports, lists, models, outputs, and work product based on any of the foregoing constitute Confidential Information of DF whether or not marked confidential.

2.    Exceptions. Notwithstanding the above, the receiving party’s nondisclosure obligations shall not apply to information that the receiving party can demonstrate: (i) was generally available to the public at the time it was disclosed, or becomes generally available to the public through no fault of the receiving party; (ii) was known to the receiving party, without an associated confidentiality obligation, at the time of disclosure as shown by written records in existence at the time of disclosure; (iii) was developed independently by the receiving party prior to the disclosure, as shown by written records in existence prior to the disclosure; (iv) is disclosed with the prior written approval of the disclosing party; (v) becomes known to the receiving party from a source other than the disclosing party without breach of the Agreement by the receiving party and in a manner which is otherwise not in violation of the disclosing party’s rights. In addition, the receiving party may disclose Confidential Information of the disclosing party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party shall provide reasonable advance notice to enable the disclosing party to seek a protective order, and that such information remains Confidential Information for all other purposes. 

10. INDEMNIFICATION. 

1.    Client Indemnity. Client will defend DF and its parents, subsidiaries, affiliates, shareholders, officers, directors and employees against any claim, demand, suit or proceeding made or brought against DF by a third party (a) alleging that (1) any Client Data, Client Content or Client’s use of Client Data or Client Content with the Services, (2) a Non-DF Service provided by Client, or (3) the combination of a Non-DF Service provided by Client and used with the Services, infringes or misappropriates such third party’s intellectual property rights, (b) arising from Client’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, and will indemnify DF from any damages, attorney fees and costs finally awarded against DF as a result of, or for any amounts paid by DF under a settlement approved by Client in writing of, any such claim against DF and/or (c) arising from Client’s breach of this Agreement. DF will (a) promptly gives Client written notice of the claim, (b) gives Client sole control of the defense and settlement of the claim (except that Client may not settle any claim unless it unconditionally releases DF of all liability), and (c) gives Client all reasonable assistance, at Client’s expense; provided that failure to do any of the foregoing shall not invalidate the claim for indemnification, unless such failure has a material adverse effect on the settlement, defense, or compromise of the matter that is the subject of the claim for indemnification. The above defense and indemnification obligations do not apply if a claim arises from DF’s breach of this Agreement, the Documentation or applicable Order Forms. 

2.    DF Indemnity. DF shall defend Client and its parents, subsidiaries, affiliates, shareholders, officers, directors and employees against and pay any settlement or final judgment amounts resulting from third party claims alleging any intellectual property infringement by the DF Inventions utilized by DF pursuant to this Agreement, and incorporated by DF into the Deliverables. Client will (a) promptly gives DF written notice of the claim, (b) gives DF sole control of the defense and settlement of the claim (except that DF may not settle any claim unless it unconditionally releases Client of all liability), and (c) gives DF all reasonable assistance, at DF’s expense; provided that failure to do any of the foregoing shall not invalidate the claim for indemnification, unless such failure has a material adverse effect on the settlement, defense, or compromise of the matter that is the subject of the claim for indemnification. DF will not be liable for any infringement based on (i) any modification of or additions to the Deliverables performed by parties other than DF; (ii) misuse of the Deliverables; (iii) use of the Deliverables in conjunction with software or hardware not supplied by DF or any Non-DF Services; (iv) any Client Data or Client Content; (v) any specifications or instructions provided by Client; or (vi) Client’s breach of this Agreement, the Documentation or applicable Order Forms. 

1.    If any Deliverable or DF Invention infringes or misappropriates, or in the reasonable determination of DF is likely to infringe or misappropriate any third party’s intellectual property rights, then DF may, at its sole option and expense: (i) obtain from such third party the right to continue to use the Deliverable or DF Invention consistent with the rights granted hereunder; (ii) modify the Deliverable or DF Invention to avoid and eliminate such infringement or misappropriation; or (iii) terminate this Agreement and any rights of Client with respect to such Deliverable or DF Invention.  

2.    THE FOREGOING PROVISIONS OF THIS SECTION 9.2 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF VENDOR, AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT. 

11. LIMITATIONS OF LIABILITY. EXCEPT FOR BREACH OF SECTION 8, NEITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES OR LIABILITY (INCLUDING REASONABLE ATTORNEYS’ FEES) THAT RESULT FROM OR ARE RELATED TO THE AGREEMENT OR, IN THE CASE OF VENDOR, ANY OF THE SERVICES OR DELIVERABLES, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY. THE AGGREGATE LIABILITY OF VENDOR RELATED TO OR ARISING OUT OF THE AGREEMENT OR ANY OF THE SERVICES OR DELIVERABLES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE AMOUNTS RECEIVED BY VENDOR FROM CLIENT IN THE [THREE] MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH DAMAGES.  

12. GENERAL PROVISIONS. 

1.    Non-Solicitation. It is recognized that DF has made a significant investment in its employees, vendors contractors, suppliers and/or customers. As such, to the extent such restriction is permitted under applicable law, Client shall not solicit for employment any employees, vendors, contractors, suppliers and/or customers of DF during the term of this Agreement and for a minimum of ninety (90) days following the expiry or termination of this Agreement unless otherwise agreed in writing. The restriction in this Section 11.1 shall not be deemed to prohibit Client’s advertisements addressed to the general public.  

2.    Governing Law. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without application of conflicts of laws principles and without application of the United Nations Convention on the International Sale of Goods.  

3.    Dispute Resolution. Should a dispute arise between the parties relating to this Agreement, senior executives of each party shall in good faith attempt to resolve the dispute within thirty (30) days following receipt of written notice sent by one party to the other party. If the senior executives cannot resolve the dispute within thirty (30) days after notice is given, then either party may invoke formal dispute resolution procedures by submitting to the other party a written demand for arbitration. Any dispute subject to arbitration shall be determined and settled by confidential arbitration, conducted in English, held in Plano, Texas, administered by the American Arbitration Association (“AAA”) before a sole arbitrator in accordance with the then-current AAA Commercial Arbitration Rules. The award rendered by the arbitrator shall be final and binding on the parties thereto, and judgment thereon may be entered in any court of competent jurisdiction. Nothing in this Section 11.3 shall prevent either party from applying to a court of competent jurisdiction for equitable or injunctive relief. 

4.    Severability. If any provision of the Agreement is held to be invalid or unenforceable for any reason, it shall be deemed omitted and the remaining provisions will continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.   

5.    Waiver. The waiver by either party of a breach of any provision of the Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.   

6.    Assignment. The Agreement shall be binding upon the parties’ respective successors and permitted assigns. Client shall not assign the Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of DF.  DF may assign or transfer the Agreement upon a change of control or pursuant to a sale of all or substantially all the stock or assets of the assigning party related to this Agreement and DF may subcontract all or part of its duties hereunder so long as DF remains liable for the performance thereof.  

7.    Independent Contractors. The parties to the Agreement are independent contractors. There is no relationship or partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. 

8.    Publicity. DF may include the name and logo of Client in lists of customers in the same manner in which it uses the names of DF’s other customers, including without limitation disclosing Client’s name to DF’s third party providers and partners. 

9.    Notices. Any notices required to be given under the terms of the Agreement, shall be in writing and either delivered personally, delivered by a nationally or internationally recognized overnight courier service or sent by registered or certified mail. Notices to either party hereunder shall be sent to those addresses set forth in the Order Form. Notices shall be deemed to have been received: (i) on the day given if delivered by hand (securing a receipt evidencing such delivery); (ii) on the second day after notice is sent, if sent by an overnight courier service; or (iii) on the fifth day after notice was mailed, if sent by registered or certified mail. 

10. Survival. All provisions of the Agreement relating to proprietary rights, payment of fees accrued, confidentiality and non-disclosure, and limitation of liability shall survive the completion of the Services or any termination of the Agreement. 

11. Facsimile, Email Transmission; Counterparts. The Agreement (including any Order Form) may be executed and delivered by facsimile or email and each full reproduction, including reproductions by photocopy or scan, shall be deemed an original. Receipt of any such reproduction by facsimile or email transmission shall be deemed delivery of an original. The Agreement (including any Order Form) may be executed in several counterparts each of which when executed shall be deemed to be an original, and such counterparts shall each constitute one and the same instrument and notwithstanding their date of execution shall be deemed to be effective as of the Effective Date.  

12. Force Majeure. Except for Client’s obligation to pay amounts due to DF hereunder, neither party will be liable to the other for any failure to meet its obligations under the Agreement where such failure is caused by events beyond its reasonable control including, but not limited to, such as failure of communications networks, inability to timely obtain instructions or information from the other party, governmental action, epidemic, pandemic (including COVID-19), fire, storms, floods or other acts of God, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.  

13. Subsequent Modifications. DF may amend the terms and conditions of this Agreement by providing Client 60 day written notice thereof. Any or all other amendments to this agreement must be in writing. 

14. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between DF and Client regarding Client’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.    

15. Export Compliance. The Services, Deliverables, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Client represents that it is not named on any U.S. government denied-party list. Client will not permit any Authorized User to access or use any Service or End User access the Deliverables in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.