Last Updated:  October 10, 2025

TERMS AND CONDITIONS

These Terms and Conditions, together with the Order Form incorporating these Terms and Conditions by reference (collectively, the “Agreement”) govern your or the company or entity on whose behalf you entered this Agreement or that is otherwise identified on the Order Form (“Customer”) use of the Stuut Platform and related products and services made available by Stuut, Inc. (“Stuut”).  The “Stuut Platform” is Stuut’s proprietary software-as-a-service platform which simplifies order-to-cash services. Each of Stuut and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.  Capitalized terms used in these Terms and Conditions that are not defined herein have the meanings given in the Order Form.

1. AGREEMENT TO TERMS AND CONDITIONS.

This Agreement, is effective, and you agree to be bound by this Agreement, the earlier of the date: (i) you first clicked a button titled “Create Account” or similar; or (ii) the effective date set forth in the Order Form (the “Effective Date”).  If you are accepting this Agreement on behalf of Customer, you represent and warrant that you have the authority to bind Customer to the terms and conditions of this Agreement.  If you do not have such authority, or if you do not agree with this Agreement, you must not accept this Agreement and may not use the Stuut Platform.  

2. CHANGES TO THE SERVICES AND THIS AGREEMENT.

2.1. Changes to the Platform. Stuut reserves the right to at any time change or modify or update the Stuut Platform (or any portions or part or content of the Stuut Platform) without advance notice, and Stuut will not be responsible to Customer, any Authorized User or any third party for any such change, modification or update of the Stuut Platform.

2.2. Changes to these Terms and Conditions. This Agreement may be amended or modified by the Parties in a written document executed by duly authorized representatives of the Parties; provided however, Stuut may also from time-to-time update, modify or amend these Terms and Conditions at any time, which modifications will take effect at the next Renewal Term and will automatically apply as of the renewal date.    

3. ACCESS TO THE STUUT PLATFORM.

3.1. Access Grant.  Stuut will use commercially reasonable efforts to make the Stuut Platform available to Customer.  Subject to the terms and conditions of this Agreement, Stuut hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted in Section 13.6), non-sublicensable right to access and use the Stuut Platform during the Term (as defined below), solely for Customer’s internal business purposes in connection with processing outstanding accounts receivable (“Receivables”) and in accordance with the documentation made available by Stuut from time-to-time (“Documentation”).

3.2. Authorized Users and Customer Responsibilities.  Customer will not provide access to the Stuut Platform except to its employees, contractors and consultants who assist in managing and/or servicing Customer’s properties and who Customer has authorized to use the Stuut Platform (“Authorized Users”). Customer will be liable for the acts or omissions of Authorized Users in connection with their use of the Stuut Platform, including any violation of this Agreement as if they were “Customer” hereunder.  Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Stuut Platform, including modems, hardware, server, software, operating system, networking, web servers and the like.  Customer will also be responsible for maintaining the confidentiality of Customer’s and its Authorized Users’ usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords.  Customer will not, and will ensure that its Authorized Users do not, disclose such usernames and passwords to any third parties (other than Authorized Users).  Customer will inform Stuut immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Stuut Platform.  Without limiting any other rights or remedies set forth herein or available pursuant to law, Stuut may immediately suspend Customer’s or any Authorized User’s access to the Stuut Platform and/or Professional Services if Customer is in breach of any term or condition of this Agreement. Stuut may process personal data about Authorized Users (“Account Data”) in accordance with its privacy policy available at: https://www.stuut.ai/privacy-policy. Account Data is not Customer Data.  

3.3. Use Restrictions.  Customer will not, and will not permit any other person or entity (including Authorized Users) to, directly or indirectly: (a) use the Stuut Platform or Documentation for any purpose other than the purposes expressly set forth herein; (b) decipher, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Stuut Platform or any components, models, algorithms or systems used to provide the Stuut Platform, in whole or in part; (c) copy, modify, translate, or create derivative works of any portion of the Stuut Platform or Documentation; (d) use the Stuut Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than an Authorized User), or frame, mirror, sell, resell, rent or lease use of the Stuut Platform or Documentation to any other person; (e) remove any proprietary notices or labels; (f) use the Stuut Platform. Documentation, or any other Stuut Confidential Information to develop or improve a product or service that is competitive to the Stuut Platform, or for benchmarking or competitive analysis; (g) use the Stuut Platform, Documentation, or Output (as defined below) 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; or (h) utilize the Stuut Platform (including any AI models or derivatives thereof) or Output to train, improve or have trained or improved an AI model (e.g., engage in “model scraping” or “model distillation”).  

3.4. License to Customer Data.  Customer hereby grants to Stuut a non-exclusive, royalty-free, fully paid-up, non-sublicensable (except to contractors, consultants and service providers of Stuut), non-transferable (except as permitted in Section 13.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data and information (a) uploaded, input or otherwise made available by or on behalf of Customer to or through the Stuut Platform or the Third Party Services (as defined below), including invoice and other data related to Receivables, (b) the Outputs (collectively, the “Customer Data”), and (c) Input (as defined below) to (x) provide the Stuut Platform and the Professional Services, and otherwise perform Stuut’s obligations under this Agreement, (y) improve and develop products and services, including by training and developing models and/or algorithms, and (z) create aggregated and/or anonymized data (“Aggregated Data”).  For the avoidance of doubt, Aggregated Data is not Customer Data.

3.5. Feedback.  Customer or its employees, contractors or representatives may from time to time provide suggestions, comments for enhancements, features or functionality or other feedback (collectively, “Feedback”) to Stuut with respect to the Stuut Platform or Evaluation Services (as defined below).  Customer acknowledges and agrees that all Feedback will be the sole and exclusive property of Stuut. Customer hereby assigns to Stuut, and agrees to assign to Stuut, all Customer’s right, title and interest in and to all Feedback, including all intellectual property rights therein. Stuut will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality included in Feedback.  

3.6. Evaluation Services.  From time to time, Customer may be invited to try certain services at no charge for a free pilot period or if such services are not generally available to customers (collectively, “Evaluation Services”).  Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like.  In the event Customer’s initial use of the Stuut Platform will be pursuant to a free pilot period (the “Pilot Period”), the duration of the Pilot Period and the Customer properties that will be included in connection with the use of the Stuut Platform during the Pilot Period will be included in the Order Form (provided that, if the Parties have entered into a separate agreement for a pilot period, the terms of such agreement shall govern such pilot period and this Agreement will govern the use of the Stuut Platform and any Evaluation Services made available thereafter).  For the avoidance of doubt, the provision of the Stuut Platform by Stuut during the Pilot Period (if any) is deemed “Evaluation Services” hereunder.  Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms.  Stuut may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available.  Notwithstanding anything to the contrary in this Agreement, Stuut will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.

3.7. Third Party Services.  The Stuut Platform may enable access to or integration with certain compatible third party services, products, solutions, software, content, application programming interfaces and/or other technology (collectively, the “Third Party Services”).  The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services.  Some Third Party Services may provide Stuut with access to certain information that Customer has provided to such Third Party Services.    Stuut does not provide any aspect of the Third Party Services, has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services.  Stuut will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services or any claim that Customer may have against any such third party.  Any dealings Customer has with third parties while using the Stuut Platform are between Customer and the third party.  

3.8. Service Levels and Support.  Subject to the terms and conditions of this Agreement, Stuut will use commercially reasonable efforts to make the Stuut Platform available in accordance with the service levels set forth at www.stuut.ai/service-level-objectives.  Customer acknowledges and agrees that the service levels are performance targets only and any failure of Stuut to meet any service level will not result in any breach of this Agreement or any payment or liability of Stuut to Customer.  

3.9. Authorization to Collect Receivables.  Customer agrees that use of the Stuut Platform includes Stuut processing Receivables on Customer’s behalf and such Receivables are credited to Customer in accordance with Stuut’s payment policies and procedures and subject to Stuut’s agreements with third party payment processors.  Customer agrees to provide all information reasonably requested by Stuut to support these collection and processing activities.  By using the Stuut Platform, Customer hereby expressly appoints Stuut as its limited payment collection agent solely for the purpose of collecting Receivables held by third parties (“Payors”), on Customer’s behalf (“Payment Agent”).  Customer agrees that any payment of Receivables made by a Payor to Stuut shall be considered the same as a payment made directly to Customer.  In accepting appointment as Payment Agent of Customer, Stuut assumes no liability for any acts or omissions of Customer.

As Payment Agent of Customer, Stuut shall remit funds to Customer upon Stuut’s receipt of the associated Receivables from the applicable Payor.  Stuut guarantees payments to Customer only for such amounts that have been successfully received by Stuut from the applicable Payor.  

3.10. Professional Services.  In connection with providing the Stuut Platform pursuant to this Agreement, Stuut will use commercially reasonable efforts to provide the implementation and other professional services, if any (“Professional Services”) described in one or more statements of work (each, a “Statement of Work”) issued pursuant to this Agreement.  Each Statement of Work will reference this Agreement and, once executed, is hereby incorporated by reference into this Agreement.

4. OWNERSHIP; RESERVATION OF RIGHTS.  

As between the Parties, Stuut retains all right, title and interest in and to the Stuut Platform, the underlying software provided in conjunction with the Stuut Platform, algorithms, AI models, AI systems, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Stuut Platform or any Professional Services, and Feedback and Aggregated Data, all improvements, modifications or enhancements to or derivative works of the foregoing (regardless of inventorship or authorship) and all associated intellectual property rights in any of the foregoing (collectively, “Stuut IP”).  Stuut grants no rights, with respect to the Stuut Platform and other Stuut IP, and reserves and all rights, other than the rights expressly granted to Customer under this Agreement.  As between the Parties, Customer retains all right, title and interest in and to the Customer Data. Customer’s rights in Output do not extend to other Stuut customers’ output.  Customer grants no, and reserves any and all, rights with respect to the Customer Data, other than the rights expressly granted to Customer under this Agreement.  

5. FEES; PAYMENT TERMS.

5.1. Fees.  Customer will pay to Stuut the fees set forth in the Order Form in accordance with the payment terms set forth therein and herein, and without offset or deduction. Stuut may increase prices or institute new charges or fees for any Renewal Term (as defined below) by providing Customer notice of the price increase at least forty-five (45) days’ prior to the end of the then-current term (which may be sent by email).  

5.2. Payment Terms.  Payment obligations are non-cancelable and all fees paid are non-refundable and must be made in U.S. dollars by wire transfer of immediately available funds to an account designated by Stuut or such other payment method mutually agreed by the Parties.  If Customer has signed up for automatic billing, Stuut will charge Customer’s selected payment method (such as credit card or other available method) for any fees on the applicable payment date, including any applicable taxes. Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. If the Order Form requires that Stuut invoice Customer for any fees, Customer will pay all such invoiced amounts within thirty (30) days of receipt of the applicable invoice.

5.3. Net of Taxes.  All amounts payable by Customer to Stuut hereunder are exclusive of any sales, use and other taxes or duties, however designated, including withholding taxes, excise, sales, use, value-added and property taxes (collectively “Taxes”).  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Stuut.  Customer will not withhold any Taxes from any amounts due Stuut, provided that in the event that Customer is required by law to deduct or withhold any Taxes from the amounts payable to Stuut hereunder, Customer will pay an additional amount, so that Stuut receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

6. TERM; TERMINATION.

6.1. Term; Termination.  This Agreement will commence on the Effective Date and continue for the Pilot Period (if any) and, thereafter, the initial term set forth in the Order Form (the “Initial Term”), unless otherwise earlier terminated in accordance with this Agreement.  Thereafter, this Agreement will automatically renew for renewal terms of equal duration (each, a “Renewal Term” and, together with the Pilot Period (if any) and the Initial Term, the “Term”), unless either Party provides written notice of termination during the Pilot Period (as set forth below) or written notice of non-renewal during the Initial Term or any Renewal Term to the other Party at least thirty (30) days’ prior to the end of the then-current term.  Either Party may terminate this Agreement for any or no reason during the Pilot Period, upon written notice to the other Party.  At any time during the Term, either Party may terminate this Agreement immediately by providing a written notice to the other Party if that other Party has breached any of its material obligations and has not fully cured the breach within thirty (30) days after it has been given an initial written notice specifying the breach.  

6.2. Effect of Termination.  In the event that this Agreement expires or is terminated for any reason, (a) all rights granted to Customer with respect to the Stuut Platform will immediately terminate and (b) Customer will (i) cease use of the Stuut Platform, and (ii) pay to Stuut all amounts due and owing under this Agreement.  In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.

6.3. Survival.  Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 3.3 (Use Restrictions), 3.5 (Feedback), 4 (Ownership; Reservation of Rights), 5 (Fees; Payment Terms), 6 (Term; Termination), 7 (Confidentiality), 8.3 (Disclaimers), 8.4 (Use of Artificial Intelligence), 9 (Limitations of Liability), 10 (Indemnification) and 13 (General) will survive.  

7. CONFIDENTIALITY.

7.1. Definition of Confidential information.  “Confidential Information” means, subject to the exceptions set forth in Section 7.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified.  

7.2. Exceptions to Confidential Information.  Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession without an obligation of confidentiality prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser; or (d) are independently developed by or for the Recipient without use of or access to any Confidential Information of the Discloser.

7.3. Use and Disclosure of Confidential Information.  The Recipient may only use the Confidential Information of the Discloser for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep strictly confidential and never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees, contractors, consultants and service providers who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees, consultants, contractors and service providers are bound by written agreements of confidentiality and non-use at least as restrictive as the terms of this Agreement or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use the same degree of effort and measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement as it uses to protect its own confidential information of similar sensitivity, which in any event will be a reasonable degree of care and adequate measures.

7.4. Disclosures Required by Law.  In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.

8. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

8.1. Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.  

8.2. Customer Representations and Warranties.  Customer represents and warrants that it has the legal authority and all rights necessary to provide the Customer Data and Input, to Stuut hereunder, and Customer’s provision of the Customer Data and Input (including any personal data provided), to Stuut hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.

8.3. Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE STUUT PLATFORM, OUTPUT AND OTHER STUUT IP, AND PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND STUUT DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STUUT EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF THE COURSE OF DEALING OR USAGE OF TRADE.  STUUT DOES NOT WARRANT THAT THE STUUT PLATFORM, PROFESSIONAL SERVICES OR OUTPUT ARE ERROR-FREE OR THAT OPERATION OF THE STUUT PLATFORM OR PROFESSIONAL SERVICES WILL BE SECURE OR UNINTERRUPTED. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, STUUT WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER DATA, INPUT, OUTPUT OR THEIR USE.  

8.4. Use of Artificial Intelligence.  Customer acknowledges and agrees that the Stuut Platform includes and integrates with proprietary and/or third-party advanced technologies, such as artificial intelligence, machine learning systems and similar technology and features (collectively, “AI Technology”) that may generate output for Customer in response to Customer’s interactions, request or input, or Customer Data uploaded or submitted to influence the Output (as defined below) or the Stuut Platform (collectively, “Input”). Customer is able to use AI Technology to, among other things, ask questions regarding debt collection and processing best practices.  Customer acknowledges and agrees that, in addition to the other limitations and restrictions set forth in this Agreement: Customer will use discretion and independent judgment before relying on, sharing or otherwise using the responses or other content generated by the AI Technology and provided to Customer through the Stuut Platform (“Outputs”) or relying on any actions taken by the AI Technology on behalf of Customer, and will monitor and track any such actions to ensure they are appropriate. AI TECHNOLOGY IS BASED ON PREDEFINED RULES AND ALGORITHMS, AND THE OUTPUTS MAY NOT NECESSARILY BE UNIQUE FROM OUTPUTS GENERATED, CREATED, ENHANCED OR MODIFIED BY OTHER USERS OF THE STUUT PLATFORM, AND MAY PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE.  THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, STUUT BEARS NO LIABILITY TO CUSTOMER OR ANYONE ELSE ARISING FROM OR RELATING TO CUSTOMER’S USE OF ANY OF THE OUTPUTS OR ANY ACTIONS TAKEN BY THE AI TECHNOLOGY IN CONNECTION WITH CUSTOMER’S INPUT, OUTPUT OR THEIR USE.  Customer may not represent that Output from the Stuut Platform was human-generated, nor may Customer sell or share for commercial benefit or purposes Output to any third parties.

9. LIMITATIONS OF LIABILITY.

9.1. Disclaimer of Consequential Damages.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 3.2 (AUTHORIZED USERS AND CUSTOMER RESPONSIBILITIES) OR SECTION 3.3 (USE RESTRICTIONS) OR (B) EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR ANY DAMAGED DATA, LOST PROFITS OR LOST REVENUE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.  

9.2. General Cap on Liability.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 3.2 (AUTHORIZED USERS AND CUSTOMER RESPONSIBILITIES) OR SECTION 3.3 (USE RESTRICTIONS), (B) EITHER PARTY’S BREACH OF SECTION 7 (CONFIDENTIALITY), (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, OR (D) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 5, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO STUUT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.  

9.3. Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

10. INDEMNIFICATION.

10.1. Indemnification by Stuut.  Stuut will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or action by a third party that the Stuut Platform infringes or misappropriates any United States copyright or trade secret (except for claims for which Stuut is entitled to indemnification under Section10.2, in which case Stuut will have no indemnification obligations with respect to such claim).  Stuut will have no liability or obligation under this Section 10.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Stuut Platform by any party other than Stuut; (b) the combination, operation, or use of the Stuut Platform with other product(s), data or services where the Stuut Platform would not by itself be infringing; (c) Customer’s failure to use any enhancements, modifications, or updates to the Stuut Platform that have been provided by Stuut; or (d) unauthorized or improper use of the Stuut Platform.  This Section 10.1 states Stuut’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

10.2. Indemnification by Customer.  Customer will indemnify, defend and hold Stuut and the officers, directors, agents, and employees of Stuut (“Stuut Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Stuut Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or action by a third party that arises out of or is in connection with (a) any use by Customer of the Stuut Platform in violation of this Agreement, (b) the Customer Data or Input, including Stuut’s use of the Customer Data or Input in accordance with this Agreement, or (c) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.

10.3. Action in Response to Potential Infringement.  If the use of the Stuut Platform or any portion thereof by Customer has become, or in Stuut’s opinion is likely to become, the subject of any claim of infringement, Stuut may at its option and expense (a) procure for Customer the right to continue using the Stuut Platform as set forth hereunder; (b) replace or modify the Stuut Platform to make it non-infringing so long as the Stuut Platform has at least equivalent functionality; (c) substitute an equivalent for the Stuut Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.

10.4. Indemnification Procedure.  If a Customer Indemnified Party or a Stuut Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 10.1 or Section 10.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder (unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party and does not place restrictions upon the Indemnified Party’s business, products or services), such consent not to be unreasonably withheld or delayed.

11. EXPORT; GOVERNMENT MATTERS.  

Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Stuut Platform, nor any direct product thereof, Customer Data, nor any technical data related to the foregoing is used, exported or re-exported directly or indirectly in violation of any Export Laws.  The Stuut Platform (including the software, documentation and technical data related thereto) were developed solely at private expense and are “commercial products”, “commercial computer software” and “commercial computer software documentation” as defined in Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, modification, reproduction, release, performance, display, or disclosure of the Stuut Platform, (including the software, documentation and technical data related thereto) by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement as consistent with federal laws and regulations. If these terms fail to meet the US Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Stuut Platform and related software, documentation and technical data.

12. PUBLICITY.

Customer hereby grants Stuut a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (a) the hosting, operation and maintenance of the Stuut Platform; and (ii) Stuut’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Stuut and in case studies.  All goodwill and improved reputation generated by Stuut’s use of the Customer Marks inures to the exclusive benefit of Customer.  Stuut will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

13. GENERAL.  

13.1. Force Majeure.  No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement (except for any payment obligations) to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e)  any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.

13.2. Severability.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.  The terms and conditions of this Agreement are severable.  If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force.  Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.

13.3. Relationship of the Parties.  Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship.  Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties.  Neither Party will represent to the contrary, either expressly, implicitly or otherwise.

13.4. Remedies.  Each Party acknowledges that a breach or threatened breach by it of its obligations under Section 7, or in the case of Customer, Section 3.3, would cause the other Party irreparable harm and significant damages that could not be adequately compensated by money damages.  Accordingly, each Party agrees that, in addition to all other remedies available at law, in the event of any such breach or threatened breach , the other Party may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of this Agreement.

13.5. Governing Law; Consent to Jurisdiction.  The law, including the statutes of limitation, of the State of New York will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York and the Parties irrevocably consent to the personal jurisdiction and venue therein.

13.6. Assignment; Binding Effect.  Neither Party may assign or transfer this Agreement in whole or in part, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates, whether by merger or purchase or otherwise.  Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.

13.7. Notices.  All notices under this Agreement will be in writing, reference this Agreement and be sent to the address set forth on the Order Form.  Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt.  Each Party may update its notice address by providing written notice to the other Party in accordance with this Section 13.7.

13.8. No Waiver.  Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

13.9. Complete Agreement.  This Agreement, together with all Statements of Work issued hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.  To the extent of any conflict or inconsistency between the terms of these Terms and Conditions and the Order Form or a Statement of Work, the terms of these Terms and Condition will prevail, unless the Order Form or Statement of Work expressly amends a provision in these Terms and Conditions.