EXPORTLY TERMS AND CONDITIONS

These Exportly Terms and Conditions (this “Agreement”) are a legally binding contract by and between Frontier Talent, Inc., a Delaware corporation (“Frontier”) located at 3790 El Camino Real, Palo Alto 94306, CA, USA, and you, the user of the Services (“Customer”), together referred to as the “Parties” and each individually as a “Party.” In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

References to “you” or “Customer” refer to the individual, company, or other entity that accepts the Agreement using the online functionality Frontier makes available for acceptance of the Agreement (e.g. clicking a box, creating an account, or otherwise affirmatively accepting the Agreement through another means Frontier offers); provided that if the Services are being used on behalf of a company or other entity, then all references to “Customer” refer to the company or other entity, and the individual accepting this Agreement on the company’s or entity’s behalf represents and warrants that they have authority to bind the company or entity to this Agreement.

THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICES (DEFINED BELOW); PROVIDED THAT IF AN AUTHORIZED REPRESENTATIVE OF THE COMPANY OR ENTITY HAS ALREADY ACCEPTED THIS AGREEMENT ON BEHALF OF THE ENTITY OR ENTERED INTO A SEPARATE AGREEMENT REGARDING YOUR USE OF THE SERVICE (“SEPARATE AGREEMENT”) PRIOR TO THE DATE UPON WHICH YOU ACCEPT THIS AGREEMENT (“EFFECTIVE DATE”), THIS AGREEMENT WILL NOT APPLY TO YOU, AND YOUR AND THE ENTITY’S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE SERVICE WILL AT ALL TIMES BE GOVERNED BY, AND SUBJECT TO, THE SEPARATE AGREEMENT.  

IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS AND CONDITIONS OF THE AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. SPECIFIC SERVICES TERMS WILL BE SET FORTH IN THE APPLICABLE ORDER FORM(S), WHICH IS BINDING ON THE PARTIES AND SUBJECT TO THIS AGREEMENT.

1. DEFINITIONS. Capitalized terms will have the meanings set forth below or, if not set forth below, assigned to them where such term is first used herein.

“Affiliate” of a Party means any entity that controls, is controlled by, or is under common control with, such Party where control means having more than fifty percent (50%) of the voting interests of the subject entity.

“Authorized User” means individual natural persons, whether an employee or contractor of Customer or its authorized Affiliates, who is authorized by Customer to use the Services.

“Customer Data” means data that Customer or its Authorized Users submit to the Services pursuant to this Agreement, but excluding FRONTIER Data and Integrated Services Data.

“Documentation” means FRONTIER’s specifications for the applicable Services and any related manuals or other documentation.

“Frontier Data” means data that FRONTIER provides or otherwise makes available to Customer, but excluding Customer Data and Integrated Service Data.

“Integrated Service” means a product, service, platform, or other technology that is operated, provided, or otherwise made available by a third party and used or intended to be used by Customer together with the Services.

“Integrated Service Data” means data that is provided or otherwise made available to Customer from an Integrated Services via the Services.

“Order Form” means the order form entered into by the Parties, which may be via online or other electronic functionality made available by FRONTIER, that references this Agreement and sets forth the pricing and options of the Services selected by Customer. An Order Form is not binding until it is duly executed by both FRONTIER and Customer, or in the case of an online or electronic Order Form, once accepted by Customer using the functionality for acceptance provided by FRONTIER.  Once an Order Form becomes binding in accordance with the foregoing sentence, it becomes incorporated into and part of this Agreement.

“Services” means the services to be provided by FRONTIER to Customer hereunder as expressly set forth in the applicable Order Form, which may include access to certain data enrichment and augmentation services currently known as “Exportly”, if set forth on the Order Form.

2. USE AND PROVISION OF SERVICES.

1. Use of the Services; Authorized Users. Subject to the terms and conditions of this Agreement, FRONTIER will provide the Services to Customer and its Authorized Users as set forth in the Order Form and in accordance with the limits set forth therein. Customer shall require compliance with the applicable terms of this Agreement by all Authorized Users, and, as between the parties, Customer shall be responsible for such Authorized Users’ and Customer’s Affiliates’ breaches of this Agreement. Without limiting the generality of the foregoing, use of the FRONTIER Services will be allowed by Authorized Users only if (a) the user is bound by obligations and restrictions with respect to the Services and Frontier Data that are at least as restrictive as those in this Agreement and (b) the user is using the Services and FRONTIER Data solely to support Customer’s and/or an authorized Customer Affiliate’s internal business purposes in accordance with this Agreement.

2. Authorized Users. Only Authorized Users, using the mechanisms designated by FRONTIER (“Log-in Credentials”), may access and use the Services, and the amount of Authorized Users accessing the Services must not exceed the amount of User Seats set forth in the applicable Order Form and paid for by Customer.  Registering to receive Log-in Credentials may require Customer to provide FRONTIER with information (such as name, email address, or other contact information).  FRONTIER may also allow Customer to register for and log into the Services using credentials from supported third-party identity provider accounts (e.g., Google) (each, a “Third-Party Login” and when used or registered for access to the Services will also be deemed “Log-In Credentials” under this Agreement).  By using a Third-Party Login, Customer authorizes FRONTIER to access certain information from Customer’s Third-Party Login account, which may include, without limitation, Customer’s name and email address.  Customer agrees that the information it provides to FRONTIER is accurate, complete, and not misleading and that Customer will keep it accurate and up to date at all times. Each Authorized User must keep its Log-in Credentials confidential and not share them with anyone else, including any other employee or contractor of Customer or its authorized Affiliates. Customer will promptly notify FRONTIER if it becomes aware of any compromise of any Log-in Credentials. FRONTIER may Process Log-in Credentials in connection with FRONTIER’s provision of the Services or for FRONTIER’s internal business purposes.

3. Customer Responsibilities. Customer represents, warrants, and covenants that it shall (a) retain sole responsibility for Customer Data and Integrated Services Data; (b) comply with all applicable laws, rules, and regulations in connection with Customer’s use of the Services and Frontier Data, Customer Data, and Integrated Services Data; and (c) solely use the Services, Frontier Data, Customer Data, and Integrated Services Data in accordance with this Agreement. Additionally, Customer hereby (d) permits FRONTIER to use third party resources and providers to assist with performance of the Services; and (e) acknowledges and agrees that data made available by Frontier via the Services (including Integrated Services Data) may contain data licensed from such third party resources.  

4. Restrictions. Customer shall not, and shall not permit others to, do the following with respect to the Services, Documentation, and Frontier Data: (a) copy, distribute, manufacture, adapt, modify, translate, localize, port or create a derivative work of any portion of the Documentation, Services, or Frontier Data; (b) publish, license (or sublicense), distribute, transfer, rent, sell, lease, loan, host for other parties, assign, provide or provide access to, disclose, timeshare, transfer, or otherwise use or make available for the benefit of any third parties, any portion of the Services, Documentation, or Frontier Data, including without limitation by making any Frontier Data downloadable or exportable by, or otherwise shareable with, any third parties (provided that the foregoing shall not be deemed to prohibit Customer’s Authorized Users’ use of the Services in accordance with this Agreement); (c) reverse engineer, disassemble, decompile, or otherwise attempt to gain access to the Services, Documentation, or Frontier Data, or any of underlying ideas, algorithms or trade secrets in any of the foregoing, except to the extent the foregoing restriction is expressly prohibited by applicable law; (d) remove, alter, or cover any copyright notices or other proprietary rights notices placed or embedded on or in any part of the Services, Documentation, or Frontier Data; (e) use the Services, Frontier Data, or any other FRONTIER Confidential Information to create or develop any product, service, application, or other application programming interface or software that can be used with any service or product other than the Service or that is similar to or competitive with any aspect of the Services; (f) interfere with the normal operation of the Service; (g) disable or circumvent any license key or other security features of the Services; (h) use, or allow the transmission, transfer, export, re-export or other transfer of, any product, technology or information it obtains or learns pursuant to the Agreement (or any direct product thereof) in violation of any export control or other laws, regulations and directives of the United States or any other relevant jurisdiction; or (i) use the FRONTIER Data to make or build a separate data file – in csv format or otherwise. Additionally, Customer shall not, and shall not permit others to, use or otherwise Process any Integrated Service Data in violation of the terms of any agreement between Customer and the Integrated Service provider(s). For clarity, the foregoing restrictions shall not prohibit Customer from storing and viewing Frontier Data within an Integrated Service provided that Customer is in compliance with the terms of this Agreement.  FRONTIER may remove or restrict access to Frontier Data or Integrated Service Data, including if FRONTIER believes such data may violate applicable law, if the source of such data becomes unavailable, if required by the third party source of such data, or if a third party brings or threatens, or is FRONTIER’s opinion is likely to bring or threaten, legal action against FRONTIER, Customer, any data providers, or any other party related to the Frontier Data or Integrated Service Data.  

3. SECURITY AND DATA RESPONSIBILITIES.

1. Security. FRONTIER will use commercially reasonable industry standard information security technologies that contain administrative, technical, and physical safeguards designed to protect Customer Data, Integrated Service Data, and other proprietary data in the performance of the Services.

2. Customer Data. Customer shall be responsible for all Customer Data. Further, Customer is solely responsible for determining the suitability of the Services, including Frontier Data and Integrated Service Data, for Customer’s business and complying with all regulations, laws or conventions applicable to the collection and use of Customer Data and Integrated Service Data. Customer grants to FRONTIER the non-exclusive right to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process (collectively, “Process”) Customer Data and, as applicable, Integrated Service Data: (a) to provide, operate, and maintain the Services; (b) to derive, generate, or otherwise Process Usage Data; and (c) as otherwise set forth in this Agreement. Without limiting the generality of the foregoing, Customer represents, warrants and agrees that (d) it has all rights, consents, and authorizations necessary for FRONTIER to Process Customer Data and, as applicable, Integrated Service Data as contemplated hereunder; and (e) the Processing of all Customer Data and, as applicable, Integrated Service Data, including without limitation to or via an Integrated Service complies with all applicable contracts with the Integrated Services and laws, rules, and regulations, including without limitation all data privacy and protection laws, rules, and regulations.  Subject to the terms and conditions of this Agreement, Customer hereby grants to FRONTIER a right and license to (g) host, copy, transmit, display, use, and otherwise process any Customer Data, Integrated Service Data, and other data made available to FRONTIER by or for Customer to provide the Services and as otherwise set forth under this Agreement and (h) derive, generate, or otherwise Process Usage Data (defined below).  

3. Integrations. If Customer chooses to use any third-party services with the Services, including any Integrated Service, Customer hereby grants to FRONTIER the right to access, receive, and otherwise Process: (a) Integrated Services Data and Customer Data stored within such third-party service and (b) data about Customer’s use of such third party service, in each case, to the extent necessary to provide the Services to Customer or as otherwise permitted by this Agreement.  Customer also acknowledges and agrees that FRONTIER may provide such third party with Customer Data and Frontier Data as FRONTIER deems appropriate for the interoperation of such third-party services with the Services. Customer represents and warrants to FRONTIER that Customer has all necessary rights, consents, and authorizations necessary to grant to FRONTIER the rights set forth in this Section 3.3. Customer will indemnify and defend FRONTIER and its Affiliates, and each of their employees, directors, and representatives, from any actual or threatened third-party claim or legal or administrative agency action or proceeding to the extent arising from a breach of this Section 3.3. FRONTIER is not responsible for any third-party services, including without limitation any Integrated Services, or any information or data received therefrom.

4. FEES.

1. Fees and Rates. Customer will pay all fees set forth in the Order Form within the payable timeframe set forth in the Order Form, or if not set forth in the Order Form, as set forth in this Agreement. Upon execution by Customer and FRONTIER, each Order Form is non-cancellable and non-refundable except as expressly provided in this Agreement.

2. Late Charges. FRONTIER may assess late charges on any undisputed amounts owed by Customer equal to the lesser of one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable law. If Customer fails to timely pay any undisputed amounts due under this Agreement, then without limitation of any of its other rights or remedies, FRONTIER may suspend performance of those Services until FRONTIER receives all such past due amounts from Customer. FRONTIER will not exercise its rights under this Section 4.2 with respect to late charges and/or suspension if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

3. Taxes. The fees set forth in an Order Form do not include any taxes, levies, duties or similar governmental assessments of any nature, and Customer is responsible for paying all of such taxes, levies, duties or assessments associated with its purchase of the Services and based on its income, property and employees, except taxes based on FRONTIER’s income.

4. Invoicing and Payment. FRONTIER shall issue an invoice to Customer for all fees corresponding to the use of SERVICES as per the Order Form. Unless otherwise expressly set forth in the applicable Order Form, (a) Customer shall pay all undisputed invoices within thirty (30) days after receipt of the invoice and (b) any disputes related to the invoices should be raised within this thirty (30) day period. Failure to pay within this period may affect future access to Services. All fees are stated and must be paid in United States Dollars.

5. OWNERSHIP.

1. Customer Data. Customer Data Processed using the Services is and will remain, as between Customer and FRONTIER, owned by Customer.

2. Services; Frontier Data. FRONTIER, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights, and other intellectual property or other rights in and to the Services, Documentation, and Frontier Data, and all updates, upgrades, improvements, design contributions, or derivative works thereto. Customer shall not acquire any proprietary rights in or to the Frontier Data (other than the underlying Customer Data).

3. Limited Interface with Customer System. Customer shall allow for a limited interface of the Customer’s internal and/or external systems accessible by FRONTIER to receive and/or retrieve data required for conducting Services under this Agreement.

4. Feedback. If Customer or any of its employees, contractors, or Authorized Users sends, transmits, or otherwise provides any feedback, suggestions, or ideas to FRONTIER (collectively, “Feedback”), including without limitation by mail, email, telephone, or otherwise, related to the functionality or performance the Services or to FRONTIER’s other products or services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like, Customer hereby grants to FRONTIER a nonexclusive, transferable, perpetual, irrevocable, royalty free, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform and otherwise exploit such Feedback without restriction and without compensation or obligation to Customer.

5. Usage Data.  Customer acknowledges and agrees that FRONTIER may, during and after the Term (defined below), host, copy, transmit, display, use, and otherwise Process aggregated or de-identified analytics, data, and information derived, generated, or otherwise Processed by or for FRONTIER from Customer Data, Integrated Service Data, or the Services (“Usage Data”) for FRONTIER’s business purposes, including to develop, improve, and operate FRONTIER’s products, services, and business.

6. CONFIDENTIALITY.

1. Restrictions.  From time to time during the Term (defined below), 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 that (a) is either marked, designated, or otherwise identified as “confidential” or (b) would be reasonably understood to be confidential given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (c) in the public domain through no fault of the receiving Party; (d) rightfully known to the receiving Party at the time of disclosure without restriction; (e) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (f) independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, or other service providers who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are apprised of the confidential nature of the Confidential Information and all of the applicable restrictions in this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (g) 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 (i) first, to the extent legally permissible, have given written notice to the other Party and made a reasonable effort to obtain a protective order and (ii) cooperate with disclosing Party in the exercise of its right to protect the confidentiality of the Confidential Information before any such court or other governmental body; (h) to establish a Party’s rights under this Agreement, including to make required court filings; or (i) in connection with a bona fide due diligence inquiry for a potential financing, acquisition, or similar transaction. On the expiration or termination of the Agreement, the receiving Party shall 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.

2. Ownership. The receiving Party acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in the receiving Party’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party.

3. Remedies. The recipient of the disclosing Party’s Confidential Information acknowledges that any actual or threatened breach of this Section 6 may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party may seek injunctive relief in addition to all remedies available to the disclosing Party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from such breaches.

7. TERM AND TERMINATION.

1. Term. The term of an Order Form starts on the day Customer accepts and agrees the Order form by means FRONTIER makes available for acceptance of this Agreement, like clicking a box or otherwise affirmatively accepting the Agreement through another means (the “Order Form Effective Date”) and, unless terminated sooner as provided herein, will continue in effect for the duration of the Subscription Term set forth in such Order Form (such period, the “Initial Order Form Term”). After the end of the Initial Order Form Term, the Order Form shall automatically renew and continue for additional subsequent terms that are equal in length to the Subscription Term set forth in the Order Form (each, an “Order Form Renewal Term”) unless and until either Party notifies the other Party of its intent to not renew in writing at least thirty (30) days before the end of the then-current term. If the Order Form does not specify a subscription term, the subscription term will be one (1) year. The term of this Agreement (the “Term”) shall continue as long as an Order Form governed by this Agreement remains valid and in effect. Termination or expiration of any Order Form shall leave other Order Forms unaffected. Termination of this Agreement will terminate all outstanding Order Forms unless otherwise agreed to by the Parties in writing (email acceptable).

2. Termination for Breach; Termination for Insolvency; Additional Termination Rights. If either Party commits a material breach or default in the performance of any of its material obligations under this Agreement or any Order Form, then the other Party may terminate this Agreement and/or such Order Form in its entirety, including without limitation, in the case of termination of this Agreement, all outstanding Order Forms issued hereunder, by giving the defaulting Party thirty (30) days’ prior written notice of termination, unless the material breach or default in performance is cured within such thirty- (30) day notice period. Either Party may terminate this Agreement in its entirety upon written notice if the other Party becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or an assignment for the benefit of creditors. FRONTIER also reserves the right to terminate this Agreement or any applicable Order Form if Customer is using any Services with an Integrated Service, and such Integrated Service becomes unavailable hereunder or thereunder.

3. Post-Termination Obligations. If the Agreement expires or is terminated (a) Customer will pay to FRONTIER all undisputed amounts due and unpaid as of the effective date of the expiration or termination; (b) any and all liabilities of either Party to the other Party that have accrued before the effective date of the expiration or termination will survive; (c) FRONTIER’s obligation to provide any further services to Customer, and Customer’s rights to use the Services or any Frontier Data under this Agreement will immediately terminate; and (d) the Parties’ rights and obligations under Sections 1, 2.3, 3.2, 5, 6, 8.2, 9, 10, and 12 will survive. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, FRONTIER will make Customer Data available to Customer for export or download in an industry standard format. After such 30-day period, FRONTIER will have no obligation to maintain or provide any Customer Data.

8. WARRANTIES AND DISCLAIMERS.

1. Mutual Warranties. Each Party warrants that: (a) this Agreement constitutes a valid and binding agreement enforceable against it in accordance with the terms of this Agreement; (b) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement; (c) it shall perform all of its obligations under this Agreement in accordance with all applicable laws, rules, and regulations.

2. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, INTEGRATED SERVICE DATA, AND FRONTIER DATA ARE PROVIDED “AS IS” AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, FRONTIER 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. EXCEPT AS EXPRESSLY SET FORTH HEREIN, FRONTIER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS, DELIVERABLES, OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, INTEGRATE WITH CUSTOMER’S SYSTEM 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. EXCEPT AS EXPRESSLY SET FORTH HEREIN, FRONTIER STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY DATA AND/OR PRODUCTS USED BY FRONTIER IN THE PERFORMANCE OF ITS SERVICES AND THE PREPARATION OF THE DELIVERABLES.

9. INDEMNIFICATION.

1. By FRONTIER. FRONTIER will indemnify and defend Customer, and its employees, directors, and representatives from any actual or threatened third-party claim or legal or administrative agency action or proceeding (“Claim”) to the extent arising from or related to: (i) FRONTIER’s gross negligence or willful misconduct; or (ii) any alleged infringement of any third-party intellectual property rights by the Services as provided by FRONTIER; provided, however, that FRONTIER will not be responsible for alleged infringement that is due to (a) Customer Data, Integrated Service Data or third-party data; (b) the combination of FRONTIER Services, Documentation, Integrated Service Data, or Frontier Data with goods or services provided by Customer or third parties; (c) modifications to the Services, Documentation, Integrated Service Data, or Frontier Data made by a party other than FRONTIER or its agents; (d) third-party services; (e) Customer’s use of the Services, Documentation, Integrated Service Data, or Frontier Data other than in strict accordance with this Agreement and an Order Form; or (f) Customer’s or its Authorized Users’ breach of this Agreement.

2. By Customer. Customer will indemnify and defend FRONTIER and its Affiliates, and each of their employees, directors, and representatives, from any Claim to the extent arising from or related to (a) any breach by Customer of its representations or warranties set forth in this Agreement; (b) Customer’s gross negligence or willful misconduct; (c) Customer Data; (d) Integrated Service Data, (e) the combination of FRONTIER Services, Documentation, Frontier Data or Integrated Service Data with goods or services provided by Customer or third parties; (f) modifications to the Services, Documentation, Frontier Data, or Integrated Service Data made by a party other than FRONTIER or its agents; or (g) Customer’s use of the Services, Documentation, or Frontier Data other than in strict accordance with this Agreement and an Order Form.

3. Procedures. The Parties’ respective indemnification obligations above are conditioned on: (a) the indemnified Party giving the indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the indemnifying Party is prejudiced by the delay or failure; (b) the indemnifying Party has full and complete control over the defense and settlement of the Claim (provided that the indemnifying Party may not enter into a settlement that includes any payment of any amounts by or any admissions of liability on the part of the indemnified Party without the indemnified Party’s prior written consent, not to be unreasonably withheld, delayed, or conditioned); (c) the indemnified Party providing reasonable assistance in connection with the defense and settlement of the Claim, as the indemnifying Party may reasonably request and at the indemnifying Party’s expense; and (d) subject to subsection (b), the indemnified Party’s compliance with any settlement or court order made in connection with the Claim.

4. Infringement Remedy. If FRONTIER believes that Customer is or may become enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a Claim covered by FRONTIER’s indemnification obligations under Section 9.1 above, then FRONTIER may, at its sole expense and option, either: (a) obtain for Customer the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the FRONTIER Services with non-infringing items of substantially similar functionality. If FRONTIER determines that the foregoing remedies are not commercially reasonable, then either Party may terminate this Agreement, and in such case, FRONTIER will promptly provide a prorated refund to Customer for any prepaid fees received by FRONTIER under this Agreement that correspond to the unused portion of the Term.

5. Sole Remedy. This Section 9 sets forth Customer’s sole remedies and FRONTIER’s sole liability and obligation for any actual, threatened, or alleged claims that the Services or any portion thereof infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.

10. LIMITATIONS OF LIABILITY.

IN NO EVENT WILL EITHER PARTY OR ANY OF ITS AFFILIATES, LICENSORS, OR INTEGRATION PARTNERS 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) LOSS OF GOODWILL OR REPUTATION; (C) INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA; OR (D) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S 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, INDEMNIFICATION, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE TO FRONTIER UNDER THE APPLICABLE ORDER FORM IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 10 SHALL NOT APPLY TO BREACHES OF SECTION 6 (CONFIDENTIALITY) (EXCLUDING CLAIMS RELATED TO CUSTOMER DATA), A PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

11. Trials and Betas. If Customer receives access to Services, or features thereof, on a free, freemium or trial basis, or as an alpha, beta, or early access offering (all of the foregoing, “Trials and Betas”), Customer may use such Trials and Betas solely for its internal purposes during the period designated by FRONTIER, in its sole determination, (or, if no period is designated, for 14 days), and such use may be subject to additional restrictions, including, without limitation,. a usage limit for the Services. Trials and Betas are optional, and either party may terminate them at any time for any reason. Without limiting the generality of the foregoing, FRONTIER may terminate Customer’s access to and use of the Services after the end of the trial period or once Customer exceeds the applicable usage restrictions. Trials and Betas may be inoperable, incomplete, or include features that FRONTIER may never release, and their features and performance information are FRONTIER’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, FRONTIER PROVIDES NO WARRANTY, INDEMNITY, SLA, OR SUPPORT FOR TRIALS AND BETAS, AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US$50.

12. MISCELLANEOUS.

1. Relationship. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

2. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, 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, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

3. Notices. 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 on the applicable Order Form (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), facsimile 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: (a) upon receipt by the receiving Party; and (b) 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, epidemics, pandemics, 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.

Amendment and Modification; Waiver. Except as expressly set forth below, no amendment to or modification of this Agreement will be effective unless it is in writing and signed by an authorized representative of each Party. Notwithstanding the foregoing, Company may amend or modify this Agreement from time to time in its sole discretion by providing at least thirty (30) days’ prior notice to Customer, which notice may be provided by email, through the Platform, or by posting an updated version of the Agreement on Company’s website or within the Platform. Any such amendment or modification will become effective upon the expiration of the notice period, unless Customer terminates this Agreement prior to the effective date in accordance with its terms. Customer’s continued access to or use of the Platform following the effective date constitutes acceptance of the amended Agreement. 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, (a) no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (b) 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.

5. 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.

6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York 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 New York. 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 New York in, each case located in the city of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

7. Assignment. Neither Party may 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 the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either Party may assign this Agreement without consent to an affiliate or any successor to all or substantially all of its business that concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). 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.

8. DPAs. The terms of the Exportly Data Processing Agreement available at [URL] posted as of the Effective Date are hereby incorporated by reference.

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, any Frontier Data, Integrated Service Data, or any Customer Data outside the United States.

10. Publicity.  Nothing contained in this Agreement shall be construed as conferring any right on FRONTIER to use in any manner Customer’s name or any trade name or trademark of Customer; provided that FRONTIER may include Customer’s name, trademark, and logo on FRONTIER’s customer lists, including without limitation on its website.

11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under this Agreement may cause the other Party irreparable harm for which monetary damages may 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.