Terms & Conditions

INKY HOSTED SERVICES AGREEMENT

This Inky Hosted Services Agreement (“Agreement”) is entered into on this _______ day of ________, 20__, (the “Effective Date”) between Inky Technology Corporation with offices at 5825 University Research Ct. College Park, Maryland 20740 (“Inky”), and [CUSTOMER NAME], with offices at [CUSTOMER’S ADDRESS] (“Customer”).  Inky and Customer are each a “Party” to this Agreement and are together referred to herein as the “Parties.”  The terms and conditions of this Agreement shall control in the event any conflicting or differing terms and conditions are contained in any related document, including the Quotation or similar form, even if signed by the Parties after the date hereof, unless expressly provided for in this Agreement.  Each Party’s acceptance of this Agreement is expressly conditional upon the other’s acceptance of the terms contained in the Agreement to the exclusion of all other terms.  For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows. The foregoing text is incorporated herein by reference. 

1. 1. DEFINITIONS.
1. 1.1 “Confidential Information” is as defined in Section 5.1 of this Agreement.
2. 1.2 “Customer Data” means any data or information relating to Customer, generated by and/or through Customer’s access to and/or use of the Platform, or which was acquired by Inky during the course of providing the Platform to Customer, including Customer Confidential Information, Personal Information, information on individual phishing attacks on Customer, Customer data, and email content (including associated meta-data).
3. 1.3 “Dashboard Data” means meta-data retained by Inky for the purposes of providing an analysis tool to Customer and to populate Customer’s administration console.  The administration console allows Customer to view current and historical decisions made by the Platform, to assess current threats, and to intuit overall security/situational awareness.
4. 1.4 “Disaster Recovery Plan” is as defined in Section 16 of this Agreement.
5. 1.5 “End Users” means employees, contractors and/or other Customer agents or representatives having a Customer-issued email address that use the Platform.
6. 1.6 “Hosting Provider” means the provider hosting the Platform as identified in the Data Processing Addendum and any successor thereto.
7. 1.7 “Hosting Services” means the provision of on-demand online access to the Platform by the Hosting Provider in accordance with the terms of service referenced herein.
8. 1.8 “Intellectual Property Rights” means any and all: (i) registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, design, mask work, typography, database protection, or other intellectual property rights or proprietary rights laws, (ii) similar or equivalent rights or forms of protection arising under statutory or common law, contract, or otherwise, and whether or not perfected, (iii) goodwill associated with the foregoing, and (iv) customizations, enhancements, improvements, modifications and derivative works of and to the foregoing described in (i) through (iv), as may now or in the future exist in any part of the world, in all media, for all versions and elements, in all languages, and for the entire duration of such rights.
9. 1.9 “Inky Property” is as defined in Section 7 of this Agreement.
10. 1.10 “Learned Data” is as defined in Section 6.4 of this Agreement.
11. 1.11 “Personal Information” means any non-public personal information of a Party or its customers that is protected by any law applicable to such Party and is disclosed by a Party to the other Party in connection with this Agreement.
12. 1.12 “Platform” means the hosted Inky anti-phishing security solution described in the Quotation.
13. 1.13 “Quotation” means the initial subscription order attached hereto as Exhibit B, titled Product & Services Quotation, and any renewal subscription order(s).
14. 1.14 “Term” is as defined in Section 4.1 of this Agreement.
15. 2. LICENSE, SERVICES AND SUPPORT.
16. 2.1 Subject to the terms and conditions of this Agreement, Inky will use a Hosting Provider to host the Platform and hereby grants Customer a revocable, non-transferable, and non-exclusive right to access and use the Platform remotely.  Customer may only access and use: (a) the Platform for its intended purpose and in the ordinary course of its business; and (b) the services provided by the Hosting Provider in connection with this Agreement for its intended purpose as related to the Platform and in the ordinary course of its business. 
17. 2.2 Customer is solely responsible for completing any implementation and onboarding steps located at https://www.inky.com/hubfs/Exhibit A - Inky Onboarding.pdf, which are minimum requirements necessary to allow Inky to enable and activate the Platform for Customer, the terms, steps, and procedures, which are incorporated herein by reference.
18. 2.3 Inky will exercise commercially reasonable efforts to provide the level and type of support for the Platform, during normal business hours and in accordance with its Support & Service Level Agreement, attached hereto as Exhibit C.  Customer, at no extra charge, shall be entitled to receive any enhancements, modifications, fixes and/or improvements to the Platform that Inky generally makes in its routine support and maintenance of the Platform.
19. 3. PAYMENT OF FEES.
20. 3.1 Upon execution of this Agreement and its associated Quotation or the execution of subsequent Quotations for a Renewal Term (as hereinafter defined), Inky will invoice Customer the full amount indicated in the Quotation within ten (10) business days, unless indicated otherwise in the Quotation.
21. 3.2 Customer will pay Inky the applicable Fees set forth in the Quotation (the “Fees”).  The initial Quotation in connection with this Agreement is attached hereto as Exhibit B.  If in any given month during the Term, Customer’s use of the Platform exceeds any use limitations set forth in the Quotation, Customer will be invoiced at the end of each calendar month for the excess usage at the per user rate set forth in the Quotation, and Customer agrees to pay the additional undisputed Fees without any right of set-off or deduction.  All payments will be made in accordance with the payment terms set forth in this Section 3, unless otherwise set forth in the Quotation. 
22. 3.3 Customer will pay Inky Fees invoiced within thirty (30) days of receipt by Customer of an invoice. In the event Customer’s account is more than thirty (30) days overdue on payment for any reason, Inky shall provide written notice to Customer of such condition and Customer shall have thirty (30) days from receipt of such notice to cure the overdue condition of its account. In the event Customer fails to cure the overdue condition of its account within thirty (30) days after receipt of such notice from Inky, then Inky shall have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to immediately suspend access to or use of the Platform without further notice to Customer, until Customer has paid the balance owed in full.
23. 3.4 In the event this Agreement is renewed, Fees may not be increased by more than ten (10%) percent of the Fees applicable in the immediately prior term.
24. 3.5 Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any.  Customer agrees to pay such taxes that are assessed and lawfully imposed on the Customer (and for which no exemption is available) (excluding taxes measured by or based on Inky’s gross or net income, or gross or net receipts (including any capital gains or minimum taxes) or capital, doing business, excess profits, net worth, franchise, property, and Inky personnel-related taxes) unless Customer has provided Inky with a valid exemption certificate authorized by the appropriate tax authority.  In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount to be paid by Customer on account thereof.
25. 4. TERMINATION.
26. 4.1 Subject to early termination as provided in this Agreement, the subscription period for the Platform begins on the Start Date specified in the Quotation and ends on the End Date specified in the Quotation (such period, the “Initial Term”).  After the Initial Term, the Agreement shall automatically renew for one (1) year renewal terms (each, a “Renewal Term”) unless either Party gives prior written notice of its intent not to renew the Agreement at least thirty (30) days before the end of the then-current Term, as applicable.  The Initial Term and any Renewal Terms are referred to collectively as the “Term.”
27. 4.2 In the event of any material breach of this Agreement, the non-breaching Party may terminate this Agreement prior to the end of the then-existing Term by giving thirty (30) days’ prior written notice of said breach to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such thirty (30) day period. 
28. 4.3 Either Party may terminate this Agreement, without notice, (i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other Party’s making an assignment for the benefit of creditors, or (iii) upon the other Party’s dissolution or ceasing to do business or becoming insolvent, failing to pay, or admitting in writing its inability to pay debts as they become due.
29. 4.4 Except for termination due to Customer’s breach of this Agreement and/or any Quotation, upon any termination Inky will refund to Customer the unused pro rata portion of any prepaid Fees to the date of termination within thirty (30) days following termination.
30. 4.5 Following termination and upon Customer’s request, within fifteen (15) days following termination,  Inky will provide to Customer, at no charge to Customer, any Customer Data then in its possession in an industry standard encrypted electronic format and will delete all copies of Customer Data then in its possession from its computer systems and use reasonable efforts to delete any references to Customer from its computer systems, Learned Data and Dashboard Data excepted; provided, however, that Inky may retain a copy of Customer Data it deems necessary to comply with its internal retention policies or any obligations under all applicable law and any Confidential Information it believes cannot reasonably be destroyed (such as oral communications reflecting Confidential Information, electronic mail back-up records, back-up server tapes and any similar such automated record-keeping or other retention systems), which shall remain in perpetuity subject to the Confidentiality (Section 5) provision of this Agreement.
31. 4.6 Inky may immediately suspend, terminate or otherwise deny Customer, any of its End Users, or any other person’s access to or use of all or any part of the Platform, without incurring any resulting obligation or liability, if: (a) Inky receives a judicial or other governmental demand or order, or law enforcement request that expressly or by reasonable implication requires Inky to do so; provided, however, that Inky shall notify Customer within ten (10) business days of this action to allow Customer, at its expense, to defend against such governmental demand or order, or law enforcement request; or (b) Inky believes, in its good faith discretion, that: (i) Customer or any End User has failed to comply with, any term of this Agreement, or accessed or used the Platform beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any End User is or has been involved in any fraudulent or unlawful activities relating to or in connection with any use of the Platform; or (iii) this Agreement expires or is terminated.  This Section 4.6 does not limit any of Inky’s other rights or remedies, whether at law, in equity or under this Agreement.
32. 4.7 Upon any termination or expiration of this Agreement, Customer shall promptly pay all amounts due and remaining payable through the date of such termination or expiration hereunder.  Furthermore, upon expiration or termination of this Agreement, Customer will, and will ensure that all End Users will, immediately cease all use of the Platform and delete all copies of Inky Property in its control, and all rights licenses, consents and authorizations granted by Inky to Customer hereunder will immediately terminate. Upon Inky’s request, Customer will confirm in writing that it has complied with the terms of this provision.
33. 4.8 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.
34. 5. CONFIDENTIALITY.
35. 5.1 Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose non-public or proprietary information including but not limited to information relating to the Disclosing Party’s technology or business identified as proprietary or confidential, or which given its nature and the circumstances surrounding its disclosure should reasonably be construed to be confidential including, without limitation Customer Data and Personal Information (hereinafter referred to as “Confidential Information” of the Disclosing Party).  The Receiving Party agrees: (i) not to disclose, divulge or otherwise make available to any third party any such Confidential Information, (ii) to give access to such Confidential Information solely to those employees or independent contractors with a need to have access thereto for purposes of this Agreement and who agree to policies and obligations consistent with the terms of this Agreement with respect to such Confidential Information or by the nature of the capacity in which they render services, it is implicit they assume obligations consistent with the terms of this Agreement and for which it shall be liable for the acts or omissions of such employees or independent contractors, (iii) to hold the other Party’s Confidential Information in confidence and protect such Confidential Information from unauthorized disclosure and take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the Party takes with its own proprietary information, but in no event will a Party apply less than commercially reasonable precautions to protect such Confidential Information, and (iv) not to use or duplicate the Confidential Information of the other Party for any purpose other than to perform its obligations or exercise its rights hereunder.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to Receiving Party without any obligations of confidentiality by a third party, or (d) was independently developed by or for Receiving Party without use of any Confidential Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order or request, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure (to the extent permitted by applicable law) to allow Disclosing Party to contest such order and the Receiving Party shall reasonably cooperate, at the Disclosing Party’s expense, with the Disclosing Party in protecting against any such disclosure and/or obtaining a  restraining or similar protective order. In the event that the parties are not successful in obtaining a protective order and the Receiving Party is, in the opinion of its counsel, compelled to disclose the Confidential Information, the Receiving Party may disclose such information solely in accordance with and for the limited purpose of compliance with the court order or governmental or regulatory requirement or request without liability hereunder and in any such event, the Receiving Party will use its reasonable best efforts (and will reasonably cooperate with the Disclosing Party in its efforts) at Disclosing Party’s expense to ensure that such Confidential Information and other information that is so disclosed will be accorded confidential treatment.
36. 5.2 Either Party has the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
37. 5.3 Upon written request at any time, the Receiving Party will return to the Disclosing Party in an industry standard encrypted electronic format, or destroy at the  Disclosing Party’s request, any and all of the Disclosing Party’s Confidential Information then in the Receiving Party’s possession or control and, if destroyed, provide the Disclosing Party with written confirmation of such destruction, provided that the Receiving Party may retain one (1) encrypted copy of the Confidential Information it deems necessary to comply with its internal retention policies or any obligations under all applicable law and any Confidential Information it believes cannot reasonably be destroyed (such as oral communications reflecting Confidential Information, electronic mail back-up records, back-up server tapes and any similar such automated record-keeping or other retention systems), which shall remain subject to the confidentiality terms of this Agreement in perpetuity.
38. 6. INTELLECTUAL PROPERTY RIGHTS.
39. 6.1 Except as expressly set forth herein, as between Inky and Customer, Inky alone (and its licensors, where applicable) will retain all Intellectual Property Rights relating to (i) Inky Property, the Platform, including without limitation, improvements, enhancements, additions or other modifications made thereto, or (ii) any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Inky Property, the Platform, which are hereby assigned to Inky.  Customer will not copy, distribute, reproduce or use any Inky Property except as expressly permitted under this Agreement.    
40. 6.2 Subject to Customer’s payment of applicable Fees and compliance with the terms and conditions of the Agreement, Inky hereby grants Customer a limited, non-exclusive, revocable (as provided herein), non-sublicensable, royalty-free right and license during the Term to use solely that portion of the Inky Property generated or provided by the Platform specifically for Customer in the administration console pursuant to this Agreement, solely internally, and in the ordinary course of its business, including any documentation, reports, analyses, in each case, each made part of such Inky Property. Other than the right to access and use the Platform, and the limited non-exclusive license to use Inky Property during the Term of this Agreement, nothing in this Agreement shall be construed to, or be deemed to, assign or grant to Customer any right, title, or interest in or to the Platform or Inky Property relating thereto.
41. 6.3 By using the Platform, Customer acknowledges and agrees for Inky to obtain, collect, and process Customer Data for the performance of its obligations under this Agreement. Such processing may include, but is not limited to, reading, scanning, analyzing Customer Data, and modifying Customer Data through functionalities of the Platform. Modifications may also include authorized End Users authorizing Inky through the Platform to delete Customer Data, such as emails.  Subject to the terms of this Agreement, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data. 
42. 6.4 Customer hereby grants to Inky and its respective officers, directors, members, managers employees, subcontractors, and agents an irrevocable, royalty-free, worldwide right and license to access, collect, analyze, and use Customer Data collected and/or received by Inky: (i) during the Term, solely as necessary to provide the services associated with the Platform to Customer and its End Users; (ii) in perpetuity, to the extent Inky is using Customer Data by aggregating it with similar data of other Inky customers and de-identifying and anonymizing it so it does not identify Customer as the source of Customer Data or any part thereof, to improve and enhance its products and services (“Learned Data”), provided that the Learned Data does not include any Customer Confidential Information; and (iii) to display, among other things, Dashboard Data in the administration console of the Platform to authorized End Users.
43. 7. RESTRICTIONS AND RESPONSIBILITIES. 

Customer will not, and will not permit anyone else, to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, algorithms or models of the Platform, its software, and the data generated or provided by the Platform (collectively, “Inky Property”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) modify, translate, or create derivative works based on Inky Property; (iii) use Inky Property for any purpose other than its own internal use for the benefit of its End Users; (iv) use Inky Property for the development, provision or use of a competing software service or product; or (v) use Inky Property other than in accordance with this Agreement and in compliance with all applicable laws and regulations. 

1. 8. INDEMNIFICATION.
2. 8.1 Indemnification by Inky.
1. (a) Inky shall defend, indemnify and hold harmless  Customer and its respective officers, directors, employees, and agents (together with the Customer, collectively “Customer Indemnified Persons”) from any finally adjudicated third party claims, liabilities, counterclaims, suits, demands, actions, damages, (including, but not limited to, any judgement, arbitration award or court approved settlement and reasonable attorneys’ fees)  or allegations arising out of any claim by a third party (i) that the Platform or any materials provided by Inky to Customer, infringe any patent or copyright, or misappropriate any trade secret, of such third party, (ii) arising from the gross negligence, willful misconduct or fraudulent actions of Inky and/or its employees, directors, managers, members, officers or agents in the performance of their obligations under this Agreement, or (iii) based upon any failure by Inky or its employees, directors, officers or agents to comply with applicable law and regulations in the performance of their obligations under this Agreement; provided, however, Inky is promptly notified of the adjudicated result of any and all such claims.  Customer further agrees to notify Inky upon the knowledge or discovery of the initiation of any and all such claims covered by this Section 8.1.  Upon notification, Inky may, within fifteen (15) days of notification, elect to control and defend Customer against such claims; provided, however, that Inky shall obtain the express prior written approval of the Customer Indemnified Persons for any settlement that requires any specific performance or non-pecuniary remedy by the Customer Indemnified Persons, requires the payment of any amount by the Customer Indemnified Persons or does not provide an unconditional release to the Customer Indemnified Persons, further provided Inky is given sole control over the defense and/or settlement discussions thereof, and all reasonably requested assistance (at Inky’s expense) in connection therewith. If Inky elects to defend Customer in such claim, Customer may retain its own counsel, at its own expense, subject to Inky’s rights herein. The foregoing obligations set forth in this Section 8.1 do not apply with respect to portions or components of the Platform to the extent such services are (u) not created by Inky, (v) result in whole or in part from Customer specifications, (w) are modified after delivery by Inky (other than modifications made by or on behalf of Inky), (x) combined with other products, processes or materials where the alleged infringement relates to such combination unless such combination was installed or implemented at the direction of Inky, (y) where Customer continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (z) where Customer’s use of the Platform is not strictly in accordance with this Agreement and all related documentation.
2. (b) If, due to a claim of infringement, the Platform is held by a court of competent jurisdiction to be or are believed by Inky to be infringing, Inky may, at its option and expense and in addition to its foregoing indemnification obligations (a) replace or modify the Platform to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer the appropriate license to allow Customer to continue using the Platform, or (c) terminate this Agreement.  In the event of termination, Inky will refund Customer any unused pro rata portion of prepaid Fees.  The foregoing states the entire liability of Inky with respect to the foregoing grounds for indemnification
3. 8.2 Indemnification by Customer.  Customer shall defend, indemnify and hold harmless  Inky and its respective officers, directors, members, managers employees, and agents (together with Inky, collectively “Inky Indemnified Persons”) from any third party claims,  liabilities, counterclaims, suits, demands, actions, damages, (including, but not limited to, any judgement, arbitration award or court approved settlement and reasonable attorneys’ fees)  or allegations arising out of any claim by a third party (i) that Customer Data, when used in accordance with this Agreement, infringe or misappropriate any Intellectual Property Rights of such third party, or (ii) arising from the gross negligence (including breach of confidentiality obligations), willful misconduct or fraud of Customer and/or its employees, directors, officers or agents in the performance of their duties under this Agreement, or (iii) based upon any finally adjudicated failure by Customer or its employees, directors, officers or agents to comply with applicable law and regulations in the performance of their obligations under this Agreement; provided, however, that Customer shall obtain the express prior written approval of Inky Indemnified Persons for any settlement that requires any specific performance or non-pecuniary remedy by Inky Indemnified Persons, requires the payment of any amount by Inky Indemnified Persons or does not provide an unconditional release to Inky Indemnified Persons, further provided that Customer is promptly notified of any and all such claims, and given sole control over the defense and/or settlement thereof, and all reasonably requested assistance (at Customer’s expense) in connection therewith.  Inky may retain its own counsel, at its own expense, subject to Customer’s rights herein.
4. 9. WARRANTIES AND WARRANTY DISCLAIMER.
5. 9.1 Each Party represents and warrants that it has all right, power and authority to enter into this Agreement and to grant the rights granted by it under this Agreement.
6. 9.2 EXCEPT AS PROVIDED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PLATFORM AND THE ASSOCIATED SERVICES AND SOFTWARE SUPPORTING THE PLATFORM, AND ALL RELATED INFORMATION (INCLUDING THE CONFIDENTIAL INFORMATION OF INKY), TECHNOLOGY AND SERVICES PROVIDED BY OR ON BEHALF OF INKY ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND INKY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF INKY IS ADVISED OF THE PURPOSE), TITLE, NON-INFRINGEMENT, OR ACCURACY. IN ADDITION, INKY DOES NOT WARRANT THAT THE PLATFORM AND THE ASSOCIATED SERVICES AND SOFTWARE SUPPORTING THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THEY WILL MEET CUSTOMER’S NEEDS, OR THAT ANY DATA WILL NOT BE LOST.
7. 9.3 Without limiting any of the foregoing and in addition thereto, no guarantee is made that the Platform eliminates any or all risk of loss, damage, or unauthorized access to Customer’s information systems, software and equipment, or other unwanted effects on Customer’s infrastructure or business, including the inability or the excessive delay to send or receive emails, as the result of processing emails for email-based threats (whether or not detected by the Platform), and Inky assumes no obligation or liability with respect to any of the foregoing.  It is not possible to detect or alert End Users to all threats, and there is no guarantee that End Users will observe and take appropriate action with respect to any alerts the Platform provides.  Inky is not responsible for any failure by any End User to observe or comprehend any alert issued by the Platform, or for any action or inaction taken by End Users in response to any such alerts.  The Platform is intended to be part of, and not a substitute for, Customer’s implementation of sound information security practices.
8. 9.4 Inky represents and warrants that (i) it will provide the Platform in a professional and workmanlike manner consistent with then-existing industry standards and practices and will minimize errors and disruptions during the Term of this Agreement, (ii) for a period of ninety (90) days from the Effective Date of this Agreement, the Platform shall conform in all material respects to any documentation or specifications provided by Inky to Customer, (iii) for a period of ninety (90) days from the Effective Date of this Agreement, the functionality of the Platform will not be materially decreased during the Term, (iv) the Platform’s source code will not intentionally contain any harmful computer code, viruses, worms, time-bombs, disabling features, tracking devices, trap doors, or code that will enable access to the Customer’s systems code, files, scripts, agents or programs intended to do harm, including without limitation Trojan horses, malware, vulnerabilities, advanced persistent threats, exploits, code injections and targeted attacks, (v) it owns all rights, title, and interest in and to, the Platform and materials claimed to be its intellectual property which do not and will not violate the Intellectual Property Rights, or any other rights of any person or infringe or misappropriate any third party’s rights, and (vi) it will comply with all applicable laws, regulations, and ordinances applicable to its performance under this Agreement.
9. 10. LIMITATION OF LIABILITY.

NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PLATFORM OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR THE PLATFORM, THE DELAY OR INABILITY TO USE THE PLATFORM OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.  THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE FEES PAYABLE TO INKY HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (OR IF SUCH EVENT OCCURS IN THE FIRST TWELVE (12) MONTHS OF THE AGREEMENT TERM, THE AMOUNT ESTIMATED TO BE PAID IN THE FIRST TWELVE (12) MONTHS OF THE TERM).  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

1. 11. U.S. GOVERNMENT MATTERS.

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Platform or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”) in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, the parties acknowledge and agree that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  Use of the Platform is a representation and warranty by the Customer that it and its End Users are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.  As defined in FAR section 2.101, the Platform, any software and documentation provided by Inky are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 

1. 12. HOSTING PROVIDER.
2. 12.1 Hosting Provider.  Customer acknowledges and agrees that the Hosting Services are provided by and made available to the Customer by a hosting provider identified in the Data Processing Addendum (Exhibit D) (the “Hosting Provider”), which is authorized to make modifications and enhancements to the Hosting Services at any time and in its discretion.  The term Hosting Provider shall include any and all successors thereto.  Customer’s ability to use the Platform is dependent upon the availability and capabilities of the Hosting Services and may be affected or limited by the Hosting Services.  Customer is at all times is responsible for adhering to the encryption methods provided by inky and hosting provider while customer data is in transit to and from the hosting provider or when processed or stored by hosting provider.
3. 12.2 Hosting Provider & Hosting Services.  Customer acknowledges and agrees that Inky will not be liable for any interruption, unavailability or outage to the Hosting Services or the Platform, and any interruption, unavailability or outage of the Customer’s systems, or unauthorized access to or use of Customer Data caused by any such third-party Hosting Provider that is not within Inky’s reasonable control.
4. 13. DATA PROTECTION AND INFORMATION SECURITY.
5. 13.1 Inky will implement and maintain a comprehensive written information security program that includes appropriate administrative, technical, and physical safeguards and other security measures designed to: (A) ensure the security and confidentiality of such Customer Data; (B) protect against any anticipated or reasonably likely threats or hazards to the security or integrity of such Customer Data; (C) protect against any actual or suspected unauthorized access to or use, disclosure, processing or acquisition of such Customer Data (hereinafter, an “Information Security Incident”); and (D) ensure the proper disposal of Customer Data. Inky shall promptly notify Customer in writing within 72 hours of its confirmation of the occurrence of an Information Security Incident of which Inky becomes aware. Such notice shall summarize in reasonable detail the effect on Customer, if known, of the Information Security Incident and the corrective action taken or to be taken by Inky. Inky shall within seven (7) days take all necessary and advisable corrective actions, and Customer shall cooperate fully with Inky in all reasonable and lawful efforts to prevent, mitigate or rectify such Information Security Incident. Inky shall (i) investigate such Information Security Incident; and (ii) to the extent reasonably practical, remediate the effects of such Information Security Incident.  If Inky issues any press releases or reports or makes any public filings related to any Information Security Incident, then it will make a copy available to Customer. Inky will reasonably assist Customer with any and all reporting, audit, and/or notification obligations incurred by Customer relating to an Information Security Incident.  If to the extent that the Information Security Incident was caused by Inky’s material breach of this Section 13.1, Inky shall reimburse Customer for costs incurred by Customer relating to with remediation, reporting, and notification of such incident, net of any insurance proceeds actually recovered by Customer.
6. 13.2 To the extent that Customer Data is subject to the California Consumer Privacy Act (“CCPA”) or the General Data Protection Regulation (“GDPR”) of the European Union, the Data Processing Addendum, attached as Exhibit D, shall apply to such Customer Data, and is hereby incorporated into this Agreement by reference.  Customer is solely responsible for determining whether Customer Data is subject to CCPA and GDPR.
7. 14. ACCESS.
8. 14.1 Access Controls. Unauthorized Access.  Inky will exercise commercially reasonable efforts to prevent unauthorized access to the computer systems, and any databases or files containing Customer Data. Inky will exercise commercially reasonable efforts to prevent unauthorized destruction, alteration or loss of Customer’s information contained in its computer systems.  Inky will maintain an audit log of access to the Platform, which it will provide to Customer promptly upon request. To maintain the integrity of its computer systems, Inky will install all security upgrades and patches with respect to its computer systems as soon as reasonably possible. If Inky is to be provided with access to Customer’s computer systems, in connection with this Agreement, Inky and its personnel will be required to execute a separate system access agreement before such access is granted, which agreement will be deemed a part of this Agreement.
9. 14.2 Access List.  At Customer’s request, Inky will provide Customer with a list of all End Users that are authorized to access Customer’s administration console.
10. 14.3 Customer Access Control.  Customer is responsible for establishing unique account credentials for any users who will have access to any administrative functions of the Platform, and for removing account credentials for any administrative users if Customer wishes to suspend or terminate their access to administrative functions.  Customer will be solely responsible for all activity occurring under user accounts established by or for Customer.
11. 15. INSURANCE. 

During the Term of this Agreement, Inky will maintain the insurance coverages outlined in Exhibit A, attached hereto.

1. 16. DISASTER RECOVERY PLAN.

If the Platform is interrupted for any reason other than scheduled maintenance, Inky will activate its disaster recovery plan, which is located at https://www.inky.com/hubfs/Exhibit D-Disaster Recovery Plan.pdf (“Disaster Recovery Plan”), so that the Platform will continue without further interruption and will notify Customer of this activation. Inky will keep the Disaster Recovery Plan in effect during the term; provided, however, that Inky reserves the right to adjust the Disaster Recovery Plan on an as-needed business basis without notice to Customer, but in no event shall Inky significantly decrease the quality of the Disaster Recovery Plan. During the Term, Inky will test its disaster recovery plan not less often than annually and will promptly deliver the results of each test to Customer upon request.

1. 17. MISCELLANEOUS.
2. 17.1 Survival. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be eliminated or limited to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
3. 17.2 Entire Agreement. Both parties acknowledge and agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. 
4. 17.3 Relationship of Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
5. 17.4 Subcontractors. Inky is authorized to use subcontractors in the performance of its obligations under this Agreement; provided that said subcontractors are not from any countries sanctioned by the Office of Foreign Assets Control (U.S. Department of the Treasury) and that they do not have access to Customer Data.
6. 17.5 Notice. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid, and the day after it is sent, if sent for next day delivery by a nationally recognized overnight delivery service.

In the case of notice to Customer, to:

_____________________________
_____________________________
_____________________________

and, to Inky:
Inky Technology Corporation
Attn: Chief Operating Officer
5825 University Research Court
College Park, Maryland 20740
legal@inky.com

Either Party may, by like notice, specify or change an address to which notices and communications shall thereafter be sent.   

1. 17.6 Governing Law and Venue. This Agreement will be governed by the laws of the State of Maryland, U.S.A. without regard to its conflict of laws provisions.  The federal and state courts located in or having jurisdiction over Montgomery County, Maryland will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.  NEITHER PARTY NOR ITS COUNSEL SHALL ELECT A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT.
2. 17.7 Attorneys’ Fees. In any action or proceeding brought to enforce any provision of this Agreement, including the collection of Fees, Inky shall, to the extent permitted by applicable law, be entitled to reasonable attorney's fees, costs, ad and expenses.
3. 17.8 Force Majeure. Neither Party shall be liable under this Agreement for failure or delay in the performance of its obligations (except for payment of Fees) for reasons of strikes, shortages, riots, insurrection, fires, floods, storms, explosions, acts of God, war, governmental actions, labor conditions, earthquakes, material shortages, failures of internet service providers, utilities, and/or telecommunication providers, or any other cause which is beyond the reasonable control of such Party.
4. 17.9 Assignment. Customer may not assign or transfer this Agreement in whole or in part by operation of law or otherwise, without Inky’s prior written consent which consent shall not be unreasonably withheld or delayed. Any attempt by Customer to transfer or assign this Agreement without such written consent will be null and void and may be deemed by Inky to be a material breach of this Agreement. Notwithstanding the foregoing, either Party may assign this Agreement without consent of the other Party to the acquiring or surviving entity in a merger or acquisition in which either Party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of either Party’s assets and shall provide prompt notice of such assignment to the other Party.  This Agreement will be binding upon the parties and their respective legal successors and permitted assigns.
5. 17.10 Execution & Counterparts. The parties may execute this Agreement in one or more counterparts. Execution of counterparts may occur by manual signature, manual signature contained in an imaged document attached to an email transmission or by electronic signature. Each counterpart executed in accordance with the foregoing will be deemed an original, with all such counterparts together constituting one and the same instrument. The exchange of executed copies of this Agreement or of executed signature pages to this Agreement as an imaged document attached to an email transmission constitutes effective execution and delivery of this Agreement and may be used for all purposes in lieu of a manually executed copy of this Agreement.
6. 17.11 Publicity. Inky may use Customer’s name for advertising, trade or other commercial purposes without Customer’s express prior written consent. Inky and its contractors, employees and agents shall not hold themselves out as an employee, affiliate, or subsidiary of Customer at any time while performing services under this Agreement. Any materials provided to Inky by Customer pursuant to this Agreement or in connection with Inky’s performance of services hereunder, bearing any Customer names, logos, styles or trademarks may be used by Inky only as necessary to perform services under this Agreement. 
7. 17.12 Third Party Beneficiaries. This Agreement has been entered into for the sole benefit of the parties and their respective permitted successors and assigns. Except as specifically set forth in this Agreement, the parties do not intend the benefits of this Agreement to inure to any third party, and nothing contained herein shall be construed as creating any right, claim or cause of action in favor of any such third party against any party.

AGREED AND ACCEPTED:

INKY TECHNOLOGY CORPORATION CUSTOMER: