Row Zero Master Services Agreement

This Row Zero Master Services Agreement (this “Agreement”), effective as of the date of the last signature below (the “Effective Date”), is by and between Row Zero, Inc.(“Row Zero”), and Customer and governs Customer’s access to and use of the Services. If you are entering into this Agreement on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you are authorized to bind that entity to this Agreement, in which case “Customer” will refer to that entity (otherwise, "Customer" refers to you as an individual). Row Zero and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

1. Definitions.
   1. “Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means direct or indirect ownership of more than fifty percent (50%) of the voting interests of the subject entity.
   2. “Authorized User” means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased from Row Zero.
   3. “BAA” means a business associate agreement governing the parties’ respective obligations with respect to any PHI processed by Customer in the Services in accordance with the terms of this Agreement.
   4. “Confidential Information” is as defined in Section 7 of this Agreement.
   5. “Customer Data” means, other than Usage Data, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
   6. “Customer Personal Data” means any ‘personal data’ or ‘personal information’ contained within Customer Data. “Personal data” and “personal information” shall have the meanings given to them in the Applicable Data Protection Laws.
   7. “Documentation” means the then-current documentation related to the Services located at https://rowzero.com/docs.
   8. “Fees” is as defined in Section 5 of this Agreement.
   9. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996.
   10. “Order” means an ordering document, statement of work, or invoice relating to the Services, which may be provided via online checkout at https://rowzero.com, or order form.
   11. “PHI” means any protected health information regulated by HIPAA.
   12. “Row Zero IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Row Zero IP includes Usage Data and any information, data, or other content derived from Row Zero’s monitoring of Customer’s access to or use of the Services (including through its Authorized Users), but does not include Customer Data.
   13. “Services” means the software-as-a-service offering hosted by or on behalf of Row Zero and ordered by or for Customer as set forth in the Order, specifically including Row Zero’s productivity, collaboration, and data visualization tools and related product and service offerings.
   14. “Subprocessor” means the third parties listed at https://rowzero.com/subprocessors and engaged by Row Zero to process Customer Personal Data on Row Zero’s behalf in connection with the provision of the Services.
   15. “Third-Party Products” means separate or third-party data, services, offerings, storage, software, network, or applications (and other consulting services related thereto) made available by or on behalf of Customer or to Customer that interoperate with the Services and are subject to an independent agreement or supplemental terms to this Agreement.
   16. “Usage Data” means usage and operations data in connection with the Customer’s and Authorized User’s use of the Services, including aggregated statistics, feature logs, query logs, and resource consumption. Usage Data does not include any data uploaded to the Services.
2. Service.
   1. Provision of Services. Subject to the terms and conditions of this Agreement, Row Zero hereby grants Customer and its Authorized Users a non-exclusive, non-transferable (except in compliance with Section 14(h)) right to access and use the Services during the Term, in accordance with the terms and conditions herein. Such use is limited to Customer's internal business use.
   2. Documentation License. Subject to the terms and conditions contained in this Agreement, Row Zero hereby grants to Customer and its Authorized Users a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14(h)) right to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
   3. Use Restrictions. Customer shall not, nor shall any Authorized User, use the Services or any Documentation for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part, including to probe, scan, or test the vulnerability of any Row Zero system or network; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, including any applicable federal, state, local, or international law or regulation; (vi) use the Services or Documentation for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise; (vii) use the Services or Documentation to transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation; (viii) use the Services or Documentation to impersonate or attempt to impersonate Row Zero, a Row Zero employee, another user, or any other person or entity; (ix) use the Services or Documentation to engage in cryptocurrency mining without Row Zero’s prior written consent; (x) use the Services or Documentation to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by Row Zero, may harm Row Zero or users of the Services or expose them to liability; (xi) knowingly, intentionally or negligently introduce malware into, or otherwise engage in any malicious act or disrupt the security, integrity or operation of, the Services. In addition, Customer hereby covenants and agrees that it will ensure that: (a) its Authorized Users will not use the Services or Documentation in violation of this Agreement or any export restriction or embargo by the United States; (b) it will not provide access to any Service or Documentation to any persons or entities that are barred from receiving such Services or Documentation under the laws of the United States or other applicable country, including the country in which an Authorized User resides or from which such Authorized User accesses the Services or Documentation; and (c) that it will ensure that each Authorized User is an individual (not an entity) at least eighteen (18) years of age.
   4. Reservation of Rights. Row Zero reserves all rights not expressly granted in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any Authorized User or any third party any intellectual property rights or other right, title, or interest in or to the Row Zero IP.
   5. Updates to the Services and Documentation. Row Zero may from time to time make updates to the Services and the Documentation as it deems reasonably necessary, and this Agreement shall apply to such updated Services and Documentation. Customer’s continued use of the Services or Documentation (either directly or through any Authorized User) after such update indicates Customer’s (and such Authorized User’s) acceptance of the updated Services or Documentation.
   6. Suspension. Notwithstanding anything to the contrary in this Agreement, Row Zero may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Row Zero reasonably determines that (a) Customer fails to pay any amount when due hereunder and such failure continues for fifteen (15) days after written notice thereof; (b) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (c) Customer’s use (or any Authorized User’s use) of any Row Zero IP poses, or may pose a security risk to Row Zero, Customer, or any third party; (d) Customer or any Authorized User may be using any of the Row Zero IP for fraudulent or illegal activities; (ii) any vendor of Row Zero has suspended or terminated Row Zero's access to or use of any third-party services or products required to enable Customer to access the Services (such suspension described in subclause (i), or (ii), a “Service Suspension”). Row Zero shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Row Zero shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Row Zero will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension to the extent such suspension is attributable to Customer’s or its Authorized Users’ acts or omissions.
3. Registration; Account Creation; Fees
   1. Registration. To register to use the Service, Customer must provide Row Zero with such reasonable information requested by it during the registration process, including the name and email address for all Authorized Users. Customer is responsible for all activities that occur under Customer’s account and all Authorized User accounts. Customer will provide complete and accurate information during the registration process and will update it to ensure it remains accurate.
   2. Account Creation. Accounts for Customer’s Authorized Users will be automatically created upon initial access to the Services, and such accounts will provide access to the Services and Documentation pursuant to this Agreement for the Term. Customer can add or remove Authorized Users during the Term by integration with identity systems, or through the Row Zero Services. Fees will be adjusted accordingly (based upon the rates in the Order for both increases and decreases in the total number of Authorized Users).
4. Customer Responsibilities.
   1. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement and its provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.
   2. Unauthorized Access. In the event of any unauthorized access to or use of a Customer Account or an Authorized User account, Customer must promptly notify Row Zero in writing.
   3. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. ROW ZERO SHALL HAVE NO LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, OR CORRUPTION OF CUSTOMER DATA TO THE EXTENT CAUSED BY: (A) ACTIONS OR OMISSIONS OF CUSTOMER OR ITS AUTHORIZED USERS; (B) CUSTOMER'S CONFIGURATION OR MISCONFIGURATION OF ADMINISTRATIVE OR ACCESS CONTROLS PROVIDED BY THE SERVICES; (C) CUSTOMER'S FAILURE TO MAINTAIN ITS OWN DATA BACKUPS AS DESCRIBED ABOVE; OR (D) THIRD-PARTY SYSTEMS, DATA WAREHOUSES, OR EXTERNAL DATA SOURCES FROM WHICH CUSTOMER DATA IS DERIVED. ANY LIABILITY OF ROW ZERO FOR DATA LOSS DIRECTLY CAUSED BY ROW ZERO'S OWN ACTS OR OMISSIONS SHALL BE SUBJECT TO THE LIMITATION OF LIABILITY SECTION OF THIS AGREEMENT.
   4. Third-Party Products. Row Zero may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions (which may be referred to in an Order). If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.
5. Fees and Payment.
   1. During the Term, Customer shall pay Row Zero the fees (“Fees”) as set forth in the Order, without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order, in the manner provided in the Order. If Customer fails to make any payment when due, and such failure continues for fifteen (15) days after written notice thereof, without limiting Row Zero's other rights and remedies: Row Zero may charge interest on the past due amount at the rate of one percent (1.0%) per month calculated daily and without compounding or, if lower, the highest rate permitted under applicable law; Customer shall reimburse Row Zero for all reasonable costs incurred by Row Zero in collecting any late payments or interest, including reasonable attorneys' fees, court costs, and collection agency fees.
6. Taxes.
   1. All Fees and other amounts payable by Customer under an Order or this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Row Zero's income.
7. Confidential Information.
   1. From time to time during the Term, 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, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. 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 shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (B) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall, upon request by the disclosing Party, take reasonable steps to 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 destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding, the receiving Party may retain copies of Confidential Information to meet legal or regulatory obligations, or in accordance with bona fide record retention policies, or incident to its customary data backup practices in the ordinary course of business (provided that in any case, Confidential Information continues to be secured and maintained as confidential consistent with this Agreement). Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the start of the Term and will expire five 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.
8. Customer Data
   1. Rights in Customer Data. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of operation of the Service. Subject to the terms of this Agreement, Customer hereby grants to Row Zero and its Subprocessors a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide the Row Zero Services to Customer, to prevent or address service or technical problems therein, or as may be required by law.
   2. Use Obligations. Customer’s use of the Services and Documentation (including through its Authorized Users) will comply with applicable laws, government regulations, and any other legal requirements, including but not limited to, any data localization or data sovereignty laws, regulations, and any other third-party legal requirements applicable to Customer (or its Authorized Users, if applicable). Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to Row Zero under this Agreement and that the processing of Customer Data by Row Zero in accordance with this Agreement will not violate any laws or the rights of any third party.
   3. PHI. Customer agrees that it will not process (nor will any Authorized User process) any PHI in the Services unless Customer has entered into a BAA with Row Zero. Unless a BAA is in place, Row Zero will have no liability under this Agreement for PHI, notwithstanding anything to the contrary in this Agreement or in HIPAA or any similar federal or state laws, rules or regulations. If Customer (either directly or through an Authorized User) is permitted to process PHI in the Services, then Customer (and, if permitted, its Authorized Users) may process PHI in the Services only by providing it as Customer Data. Upon mutual execution of the BAA, the BAA is incorporated by reference into this Agreement and is subject to its terms.
   4. Data Protection. This Section 8(d) applies to Row Zero’s processing of Customer Personal Data on Customer’s behalf in the course of providing the Services that is subject to data protection and privacy laws and regulations (the “Applicable Data Protection Laws”). With respect to such personal information, Row Zero acts as Customer’s service provider or processor.
      1. Use Restrictions. Row Zero shall not: (1) sell or share personal information; (2) retain, use, or disclose personal information for any purpose other than providing the Services or as otherwise permitted under this Agreement or the Applicable Data Protection Laws; or (3) retain, use, or disclose personal information outside the direct business relationship between the Parties. Row Zero shall not combine such personal information with information from other sources except as permitted by the Applicable Data Protection Laws. If a law requires Row Zero to disclose personal information for a purpose unrelated to the Services, Row Zero will first notify Customer and provide an opportunity to object, unless the law prohibits such notice.
      2. Compliance. Row Zero shall comply with the Applicable Data Protection Laws applicable to its provision of the Services and shall provide the level of privacy protection required of a service provider or processor thereunder.
      3. Subprocessors. Row Zero shall ensure that each Subprocessor is bound by data protection obligations at least as protective as those set forth in this Section, and Row Zero shall remain liable for the acts and omissions of its subprocessors to the same extent it would be liable for such act or omission had it been caused by Row Zero.
   5. Security. Row Zero shall implement and maintain administrative, physical, and technical safeguards designed to protect Customer Data against unauthorized access, use, disclosure, alteration, loss, or destruction. Row Zero shall notify Customer without undue delay, and in any event within seventy-two (72) hours, after discovering a breach of security leading to any actual unauthorized access, disclosure, acquisition, alteration, loss, or destruction of Customer Personal Data (a “Security Breach”). A Security Breach shall not include an unsuccessful attempt or activity that does not compromise the security of Customer Data, including (without limitation) pings and other broadcast attacks of firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond headers) or similar incidents. Row Zero maintains a record of Security Breaches that includes description, dates and times of relevant activities, and disposition. Suspected and confirmed security incidents are investigated by security, operations, or support personnel; and appropriate resolution steps are identified and documented. For any Security Breaches, Row Zero will take appropriate, reasonable steps to minimize product and Customer damage or unauthorized disclosure.
9. Intellectual Property Ownership; Feedback.
   1. Row Zero IP. Customer (on behalf of itself and each Authorized User) agrees that Row Zero or its suppliers retain all right, title and interest (including all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Row Zero IP. Except for the express limited rights set forth in this Agreement, no right, title or interest in any Row Zero IP is granted to Customer or any Authorized User. Further, Customer (on behalf of itself and each Authorized User) acknowledges that the Services is offered as an online, hosted solution, and that neither Customer nor any Authorized User has any right to obtain a copy of the underlying computer code for the Services. Each Authorized User confirms its agreement with the above.
   2. Usage Data. Notwithstanding anything to the contrary in this Agreement, Row Zero may collect and use Usage Data to develop, improve, support, and operate its products and services. Row Zero may not share any Usage Data that includes Customer’s Confidential Information with a third party except (i) in accordance with Section 7 (Confidential Information) of this Agreement, or (ii) to the extent the Usage Data is aggregated and anonymized such that Customer and its Authorized Users cannot be identified.
   3. Feedback. If Customer or any of its employees or contractors (including any Authorized User) sends or transmits any communications or materials to Row Zero by mail, email, telephone, the Row Zero website, or otherwise, suggesting or recommending changes to the Row Zero IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Row Zero is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby grants to Row Zero on Customer's behalf, and on behalf of its employees, contractors and/or agents (including all Authorized Users), a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Row Zero is not required to use any Feedback. Each Authorized User confirms its agreement with the above.
   4. Customer Reference. Row Zero may, with Customer’s prior written consent, identify Customer as its customer to other Row Zero customers, prospective customers, investors, prospective investors, and other third parties. Without limiting the foregoing, Row Zero may, with Customer’s prior written consent, use and display Customer’s name, logo, trademarks, and service marks on Row Zero’s website and in Row Zero’s marketing materials in connection with identifying Customer as a customer of Row Zero. Upon Customer’s written request, Row Zero will promptly remove any such marks from Row Zero’s website and, to the extent commercially feasible, Row Zero’s marketing materials.
10. WARRANTY; WARRANTY DISCLAIMER.
    1. Limited Warranty. Row Zero warrants that, during the Term, the Services will perform materially in accordance with the applicable Documentation. Customer must report any non-conformity to Row Zero in writing with reasonable detail. As Customer’s sole and exclusive remedy and Row Zero’s entire liability for breach of this warranty, Row Zero will use commercially reasonable efforts to repair or correct the non-conformity, and if Row Zero fails to do so within thirty (30) days after Customer’s notice, Customer may terminate the affected non-comforming Services and receive a pro-rata refund of any prepaid but unused Fees for the terminated portion of the Term. This warranty does not apply to non-conformities caused by (a) use of the Services other than in accordance with this Agreement or the Documentation, (b) modifications to the Services not made by Row Zero, or (c) Third-Party Products, Customer Data, or Customer’s systems or networks. For the avoidance of doubt, the sole and exclusive remedy set forth in this Section 10(a) applies only to a breach of this limited warranty, Customer’s termination rights under Section 13(b)(iii), or any related refund under Section 13(d), all of which are in addition to the remedy set forth in this Section 10(a).
    2. DISCLAIMER. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH ABOVE, THE ROW ZERO IP IS PROVIDED “AS IS” AND ROW ZERO HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ROW ZERO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ROW ZERO MAKES NO WARRANTY OF ANY KIND THAT THE ROW ZERO IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ROW ZERO STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. WITHOUT LIMITING THE FOREGOING, ROW ZERO HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA, EXCEPT TO THE EXTENT DIRECTLY CAUSED BY ROW ZERO’S NEGLIGENCE OR WILLFUL MISCONDUCT.
11. Indemnification.
    1. Row Zero Indemnification.
       1. Row Zero shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights (“Third-Party IP Claim”).
       2. If a Third Party-Claim is made or appears possible, Customer agrees to permit Row Zero, at Row Zero's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Row Zero determines that neither alternative is reasonably available, Row Zero may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and Row Zero shall provide Customer with a pro-rata refund of any prepaid but unused Fees.
       3. This Section 11(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Row Zero or authorized by Row Zero in writing; (B) modifications to the Services not made by Row Zero; or (C) Customer Data; or (D) Third-Party Products.
    2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Row Zero’s option, defend Row Zero from and against (a) any Losses resulting from Customers Data; (b) Customer’s use of the Services in violation of any applicable laws; or (c) any Third-Party Claim that the Customer Data or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights (“Data Claim”);.
    3. Sole Remedy. THIS SECTION 11 SETS FORTH CUSTOMER'S SOLE REMEDIES AND ROW ZERO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
    4. Indemnification Procedures. A party seeking indemnification under this Section 11 (the “Indemnified Party”) shall promptly notify the other party (the “Indemnifying Party”) in writing of any Third-Party Claim for which it seeks indemnification; provided that the failure to give such prompt notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall have the right to assume and control the defense and settlement of such Third-Party Claim with counsel of its choosing, and the Indemnified Party shall reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in connection with such defense. The Indemnified Party may participate in the defense of the Third-Party Claim with counsel of its own choosing at its own expense. The Indemnifying Party shall not settle or compromise any Third-Party Claim without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld, conditioned, or delayed) if such settlement or compromise (i) imposes any liability or obligation on the Indemnified Party, (ii) requires any admission of fault or wrongdoing by the Indemnified Party, or (iii) does not include a full and unconditional release of the Indemnified Party from all liability with respect to such Third-Party Claim.
12. Limitations of Liability.
    1. IN NO EVENT WILL THE PARTIES BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
    2. IN NO EVENT WILL EITHER PARTY’S AND ITS AFFILIATES AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER TO ROW ZERO UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (“GENERAL CAP”).
    3. NOTWITHSTANDING SECTION 12(b) (GENERAL CAP), THE AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES FOR ANY CLAIMS OR DAMAGES ARISING OUT OF: (i) EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 7 (CONFIDENTIAL INFORMATION); AND (ii) ROW ZERO’S OBLIGATIONS UNDER SECTION 8(d) (DATA PROTECTION AND SECURITY) SHALL BE LIMITED TO TWO (2) TIMES THE TOTAL AMOUNT PAID BY CUSTOMER TO ROW ZERO UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (“SUPER CAP”)
    4. NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY’S LIABILITY FOR CLAIMS ARISING FROM (A) FRAUD OR FRAUDULENT MISREPRESENTATION; (B) A PARTY’S PAYMENT OBLIGATIONS UNDER THE AGREEMENT; (C) ROW ZERO’S INDEMNIFICATION OBLIGATIONS FOR A THIRD-PARTY IP CLAIM; (D) CUSTOMER’S INDEMNIFICATION OBLIGATIONS FOR A DATA CLAIM; (E) INFRINGEMENT BY A PARTY OF THE OTHER’S INTELLECTUAL PROPERTY RIGHTS; OR (G) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAWS.
13. Term and Termination.
    1. Term. The “Term” of this Agreement means the date commencing on the first day of the term set forth in an Order and continuing until the earlier of: (i) the last day of the term set forth in an Order; and (ii) the date the Order is terminated in accordance with the provisions of Section 13(b) below.
    2. Termination Rights. Either party may terminate this Agreement on thirty (30) days’ prior written notice if there are no operative, outstanding orders for the provision of the Services. Either party may terminate this Agreement or an Order if the other party is in material breach of this Agreement (including nonpayment of undisputed Fees) or such Order, as applicable, and fails to cure that breach within thirty (30) days after receipt of written notice. Either party can immediately terminate this Agreement if the other party has made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding, and the proceedings are not dismissed within thirty (30) days.
    3. Effect of Termination. At the end of the Term: (i) all of Customer’s rights, including the rights of its Authorized Users, under this Agreement immediately terminate and Customer and each Authorized User must cease using the Services and the Documentation, (ii) Customer is solely responsible for deleting or retrieving Customer Data from the Services prior to the end of the Term, (iii) Customer is solely responsible for requesting deletion of Customer Data after the end of the Term by contacting Row Zero at support@rowzero.io, and (iv) Customer must pay all unpaid Fees to Row Zero. If the Term is ended by Row Zero due to Customer’s material breach,, Row Zero will provide Customer with a reasonable opportunity to retrieve Customer Data from the Services, if Customer so requests. Such a request must be sent by email to Row Zero at support@rowzero.io seven (7) days after Customer receives notice regarding the termination. Customer Data will be deleted from the Services no earlier than thirty (30) days after the termination. If the Term is ended by Customer due to Row Zero’s material breach, Customer will receive a pro-rata refund for any pre-paid but unused Fees. 
    4. Survival. All provisions of this Agreement that by their nature should survive termination will so survive..
14. Miscellaneous.
    1. Due Authorization. Each party represents and warrants to the other party that:(a) if it is accepting this Agreement on behalf of an entity, such acceptance has been duly authorized by all necessary corporate or organizational action of such party; and (b) this Agreement constitutes the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, including all related Orders and any BAA entered into between Row Zero and Customer, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, Orders, any BAA, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the BAA, (ii) second, this Agreement; (iii) third, Orders tied to the current Term; and (iii) fourth, any other documents incorporated herein by reference.
    3. Notices. Except as expressly permitted otherwise herein, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth in the Order (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party if sent by personal delivery, courier, or mail, or upon transmission if sent by email; and (ii) if the party giving the Notice has complied with the requirements of this Section.
    4. Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo or failures, outages, or interruptions of third-party hosting providers, internet service providers, or other third-party infrastructure or utilities upon which the Services depend (each, a “Force Majeure Event”). The affected party shall use commercially reasonable efforts to mitigate the impact of any Force Majeure Event and to resume performance as soon as reasonably practicable.
    5. Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the state of Delaware, in each case located in the city of Wilmington and County of New Castle, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    8. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Row Zero, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that Customer may assign this Agreement without Row Zero’s consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Customer’s assets. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. Row Zero may freely assign or transfer any of its rights or delegate any of its obligations hereunder, including in connection with the sale or transfer of all or substantially all of its assets or equity securities (including by merger or reorganization or other similar event).
    9. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
    10. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefore, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
    11. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    12. Relationship of the Parties. Row Zero and Customer are independent contractors. This Agreement does not create or imply any agency, partnership, joint venture, fiduciary, employment or franchise relationship. No right or cause of action for any third-party is created by this Agreement or any transaction under it.