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Infinite Talent Master Subscription Agreement

LAST UPDATED: March 11, 2022

Master Subscription Agreement Infinite Talent

This Master Subscription Agreement (“Agreement”) constitutes a binding contract on Customer (as defined below) and Infinite Talent, Inc., a Delaware Corporation (“Infinite”) and governs the use and access to the SaaS Solution (as defined below) by Customer.

By accepting this Agreement, by executing a Quote (as defined below), statement of work, or other similar document that references this Agreement, Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity identified on the relevant Quote, statement or work, or other similar document. If the individual accepting this Agreement does not have such authority or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the SaaS Solution.

This Agreement is effective between Infinite and Customer as of the date of last signature of the Quote, statement of work, or other similar document between Infinite and Customer (the "Effective Date").

  1. DefinitionsAccess Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the SaaS Solution.

    “Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

    “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, through the ownership of more than 50% of a Person.

    “Agreement” has the meaning set forth in the preamble.

    “Authorized Users” means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the SaaS Solution under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the SaaS Solution has been purchased hereunder.

    “Backup Policy” has the meaning set forth in Section 6.

    “Confidential Information” has the meaning set forth in Section 9.1.

    “Customer” has the meaning set forth in the preamble.

    “Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the SaaS Solution. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the SaaS Solution by or on behalf of Customer or any Authorized User.

    “Customer Failure” has the meaning set forth in Section 4.2.

    “Customer Indemnitee” has the meaning set forth in Section 12.1.

    “Customer Systems” means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.

    “Disclosing Party” has the meaning set forth in Section 9.1.

    “Documentation” means any manuals, instructions, or other documents or materials that the Infinite provides or makes available to Customer in any form or medium and which describe the functionality, components, features, specifications, or requirements of the SaaS Solution or Infinite Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.

    “Downtime” means total minutes that the SaaS Solution is not available for reasons that are not related to Scheduled Maintenance or attributable to circumstances described in Section 5.2.

    “Effective Date” has the meaning set forth in the preamble.

    “Employee” means a unique person employed in or otherwise paid by or acting on behalf of Customer or its Affiliates, whether or not given access to the SaaS Services.

    “Fees” has the meaning set forth in Section 8.1.

    “Force Majeure Event” has the meaning set forth in Section 15.9(a).

    “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the SaaS Solution or Infinite Systems as intended by this Agreement.

    “Indemnitee” has the meaning set forth in Section 12.3.

    “Indemnitor” has the meaning set forth in Section 12.3.

    “Infinite” has the meaning set forth in the preamble.

    “Infinite Indemnitee” has the meaning set forth in Section 12.2.

    “Infinite Materials” means the SaaS Solution, Specifications, Documentation, and Infinite Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Infinite or any Subcontractor in connection with the SaaS Solution or otherwise comprise or relate to the SaaS Solution or Infinite Systems. For the avoidance of doubt, (a) Infinite Materials include Resultant Data and any information, data, or other content derived from Infinite's monitoring of Customer's access to or use of the SaaS Solution, but does not include Customer Data and (b) unless specifically stated otherwise, references to Infinite Materials include Third Party Materials that are provided or otherwise made available for use by Customer or Authorized Users by Infinite or any Subcontractor in connection with the SaaS Solution. “Infinite Personnel” means all individuals involved in the performance of this Agreement as employees, agents, or independent contractors of Infinite or any Subcontractor. “Infinite Systems” means the information technology infrastructure used by or on behalf of Infinite in providing the SaaS Solution, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Infinite or through the use of third-party services. “Intellectual Property Rights” means any and all registered and unregistered rights (whether owned or licensed) granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

    “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.

    “Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

    “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

    “Personal Information” means information that Customer provides or for which Customer provides access to Infinite, or information which Infinite creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual (including, for example, names, addresses, telephone numbers, email addresses, and other unique identifiers); or (ii) can be used to authenticate an individual (including, without limitation, employee identification numbers, government-issued identification numbers, passwords or PINs, user identification and account access credentials or passwords, financial account numbers, credit report information, student information, biometric, genetic, health, or health insurance data, answers to security questions, and other personal identifiers, including Sensitive Personal Information as defined herein). Customer's business contact information is not by itself Personal Information.

    “Process” means to take any action or perform any operation or set of operations that the SaaS Solution is capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.

    “Quote” means a quote setting out the specific SaaS Solution and other services that Customer is obtaining from Infinite pursuant to this Agreement. This Agreement is incorporated by reference into each Quote executed by Customer.

    “Receiving Party” has the meaning set forth in Section 9.1.

    “Reimbursable Expenses” has the meaning set forth in Section 8.7.

    “Representatives” means, with respect to a party, that party's and its Affiliates’ employees, officers, directors, subcontractors, and legal advisors.

    “Resultant Data” means data and information related to Customer's use of the SaaS Solution that is used by Infinite in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Solution.

    “SaaS Solution” means the software-as-a-service offering described in a Quote.

    “Scheduled Maintenance” means total minutes that the SaaS Solution is unavailable due to planned maintenance.

    “Sensitive Personal Information” means an individual's (i) personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs; (ii) trade-union membership; (iii) genetic data, biometric data processed solely to identify a human being; (iv) health-related data; (v) data concerning a person’s sex life or sexual orientation; (vi) government-issued identification number, including Social Security number, driver's license number, or state-issued identification number; or (vii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual's financial account.

    “Specifications” means the specifications for the SaaS Solution set forth in a Quote or applicable statement of work.

    “Subcontractor” has the meaning set forth in Section 2.7.

    “Term” has the meaning set forth in Section 14.

    “Territory” means worldwide, except the Russian Federation, the People’s Republic of China, or any territories worldwide in which the Russian Federation or People’s Republic of China claim sovereignty.

    “Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the SaaS Solution that are not proprietary to Infinite.

  2. Services.

    1. Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Infinite hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15.8) right to access and use the SaaS Solution in the Territory during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Infinite shall provide to Customer the Access Credentials within a reasonable time following the Effective Date and any implementation period.

    2. Documentation License. Infinite hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.8) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the SaaS Solution.

    3. Implementation Services. Infinite shall provide the initial implementation and configuration of the SaaS Solution as set out in the applicable Quote or statement of work (the “Implementation Services”). The Implementation Services shall include basic implementation, configuration, and provisioning necessary for those features of the SaaS Solution identified in the Quote or statement of work to be used by Customer in the manner described in the Documentation.

    4. Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

      1. Infinite has and will retain sole control over the operation, provision, maintenance, and management of the Infinite Materials; and

      2. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Infinite Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the SaaS Solution or Infinite; (ii) results obtained from any use of the SaaS Solution or Infinite Materials; and (iii) conclusions, decisions, or actions based on such use.

    5. Acceptance. The SaaS Solution shall be deemed accepted by Customer when Infinite notifies Customer that (i) any Implementation Services have been completed (the “Completion Notice”), and (ii) Customer does not dispute such notice in writing within five (5) days after receiving a Completion Notice.

    6. Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the SaaS Solution, Infinite Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the SaaS Solution, the Infinite Materials, and the Third-Party Materials are and will remain with Infinite and the respective rights holders in the Third-Party Materials.

    7. Service Management. Each party shall, throughout the Term, maintain within its organization a designated resource to serve as such party's primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. Each point of contact shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Each party shall ensure its point of contact has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. Infinite shall use commercially reasonable efforts to maintain the same points of contact in place throughout the Term.

    8. Changes to SaaS Solution. Infinite reserves the right, in its sole discretion, to make any changes to the SaaS Solution and Infinite Materials that it deems necessary or useful to:

      1. maintain or enhance: (i) the quality or delivery of Infinite's services to its customers; (ii) the competitive strength of or market for Infinite's services; or (iii) the SaaS Solution's cost efficiency or performance; or

      2. to comply with applicable Law.

        Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the SaaS Solution. The parties shall evaluate and, if agreed, document all such agreed changes in a statement of work. No requested changes will be effective unless and until memorialized in a written statement of work signed by both parties.

    9. Subcontractors. Infinite may from time to time in its sole discretion engage third parties to perform any obligations under this Agreement or statement of work (each, a “Subcontractor”), including but not limited to its Affiliates.

    10. Suspension or Termination of SaaS Solution. Infinite may, directly or indirectly, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the SaaS Solution or Infinite Materials, without incurring any resulting obligation or liability, if: (a) Infinite receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Infinite to do so; or (b) Infinite believes, in its good faith discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement (including Section 3 (Use Restrictions)), or accessed or used the SaaS Solution beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the SaaS Solution; or (iii) this Agreement expires or is terminated. This Section 2.10 (Suspension or Termination of SaaS Solution) does not limit any of Infinite's other rights or remedies, whether at law, in equity, or under this Agreement.

    11. Additional Professional Services. In the event Customer desires to engage Infinite for additional professional services unrelated to the SaaS Solution, Customer and Infinite may execute a SOW for such professional services which shall be governed by this Agreement as well as any additional terms and conditions that may be incorporated into such SOW.

  3. Use Restrictions. Customer shall not, and shall not permit any Authorized User or other Person to, access or use the SaaS Solution or Infinite Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, and shall ensure that each Authorized User does not, except as this Agreement expressly permits: (i) copy, modify, or create derivative works or improvements of the SaaS Solution or Infinite Materials; (ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any SaaS Solution or Infinite Materials to any Person, other than an Authorized User through the use of his or her own then valid Access Credentials; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the SaaS Solution or Infinite Materials, in whole or in part; (iv) bypass or breach any security device or protection used by the SaaS Solution or Infinite Materials or access or use the SaaS Solution or Infinite Materials other than by an Authorized User through the use of his or her own then valid Access Credentials; (iv) input, upload, transmit, or otherwise provide to or through the SaaS Solution or Infinite Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code; (v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the SaaS Solution, Infinite Systems, or Infinite's provision of services to any third party, in whole or in part; (vi) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any SaaS Solution or Infinite Materials, including any copy thereof; (vii) access or use the SaaS Solution or Infinite Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law; (viii) access or use the SaaS Solution or Infinite Materials for purposes of competitive analysis of the SaaS Solution or Infinite Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Infinite's detriment or commercial disadvantage; or (ix) otherwise access or use the SaaS Solution or Infinite Materials beyond the scope of the authorization granted under this Section 3.

  4. Customer Obligations.

    1. Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the SaaS Solution are accessed or used; (b) provide Infinite Personnel with such access to Customer's premises and Customer Systems as is necessary for Infinite to perform under the Agreement in accordance with any availability requirements and Specifications; and (c) provide all cooperation and assistance as Infinite may reasonably request to enable Infinite to exercise its rights and perform its obligations under and in connection with this Agreement.

    2. Effect of Customer Failure or Delay. Infinite is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).

    3. Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3 (Restricted Use), Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the SaaS Solution and Infinite Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Infinite of any such actual or threatened activity.

    4. Non-Solicitation. During the Term and for 12 months after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior 6 months employed or engaged by Infinite or any Subcontractor and involved in any respect with the SaaS Solution or the performance of this Agreement.

  5. Service Levels.

    1. Subscription to the SaaS Solution includes Infinite's standard customer support services with the availability service levels for production provided in the table below (“Support Services”) and as described in this Section 5 (Service Levels). Infinite shall apply the highest applicable credit based on the cumulative availability of the SaaS Solution as shown in the table below. The availability percentage is calculated as the total number of minutes in a contracted month, minus the total number of minutes of Downtime in the contracted month, divided by the total number of minutes in the contracted month. Infinite shall provide Customer with advance notice of all Scheduled Maintenance.

      * The subscription fee is the contracted price for the month which is subject to the claim.

      Availability

      Credit (% of monthly subscription fee*)

      Less than 99.9%

      2%

      Less than 99.0%

      5%

      Less than 95.0%

      10%

    2. Notwithstanding anything to the contrary, measurement of the availability of the SaaS Solution shall not include any time attributable to: (i) Scheduled Maintenance; (ii) Customer Systems; (iii) third party products, or the installation, administration, and use of enabling technologies such as databases, computer networks, and communications systems that are not provided by Infinite; (iv) assistance in developing, testing, debugging, or any other support relating to the configuring or implementation of the SaaS Solution; or (v) errors unable to be reproduced by Infinite after commercially reasonable efforts to do so.

  6. Data Backup. The Infinite Systems are programmed to perform routine data backups as set out in Infinite's backup policy in effect from time to time, (the “Backup Policy”). In the event of any loss, destruction, damage, or corruption of Customer Data caused by Infinite Systems or SaaS Solution, Infinite will, as its sole obligation and liability and as Customer's sole remedy, use commercially reasonable efforts to restore the Customer Data from Infinite's then most current backup of such Customer Data in accordance with the then current Backup Policy.

  7. Data Privacy & Security.

    1. Data Processing Agreement. Customer and Infinite shall comply with all applicable privacy laws and regulations and shall provide help and cooperation to the other as is reasonably necessary or requested to comply with these laws and regulations, including executing any supplemental agreements or amendments necessary for compliance with future data privacy Laws. If the SaaS Solution involves the Processing of Personal Information of data subjects (as defined by applicable data protection legislation) located within the United Kingdom, European Economic Area, or Switzerland on behalf of Customer, then the Parties agree to execute Infinite’s form of a data processing agreement.

    2. California Consumer Privacy Act. In this Section 7.2, capitalized terms not otherwise defined under the Agreement shall have the meaning defined under the California Consumer Privacy Act of 2018 (Cal. Civ. Code §§ 1798.100 - 1798.199) (“CCPA”). Where Customer’s use of and access to the SaaS Solution requires Processing Personal Information by Infinite, the Parties agree that Infinite is acting solely as a Service Provider, and Customer is the Business under the CCPA. As a Service Provider, Infinite: (i) represents and warrants that it is a sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners; (ii) represents and warrants that, to the extent that Customer discloses a Consumer’s Personal Information to Infinite, Infinite will Process that Personal Information only on behalf of Customer and pursuant to this Agreement and SOW, or as otherwise permitted by law; (iii) shall not Process, retain, use, or disclose a Consumer’s Personal Information for any purpose other than for the specific purpose of performing the services specified in the Agreement, or as otherwise permitted by law; (iv) shall cooperate as reasonably requested by Customer to enable Customer to comply with obligations under the CCPA to respond to verifiable Consumer requests to delete or access Personal Information processed by Infinite in providing the SaaS Solution; and (v) certifies that it understands the restrictions and obligations set forth in this Section 7.2 and will comply with them.

    3. Information Security. Infinite will employ security measures in accordance with Infinite's data privacy and security policy as amended from time to time. Customer acknowledges that the SaaS Solution operates in a multi-tenant environment in which all Infinite SaaS Solution clients share the hosting environment, and it is not possible to apply Customer-specific information security policies and procedures. Infinite shall implement and maintain reasonable and appropriate administrative, technical, and physical safeguards that are designed to: (i) ensure the security and confidentiality of Customer Data in Infinite's possession or control; (ii) protect against anticipated threats or hazards to the security or integrity of Customer Data in Infinite's possession or control; and (iii) protect Customer Data in Infinite's possession or control from loss, misuse, or unauthorized access, disclosure, alteration, and destruction, taking into account the risks involved in the processing and the nature of such Customer Data. These safeguards shall include, without limitation: (a) a information security plan; (b) information access controls; (c) the performance of background checks on all personnel with access to Customer Data to the extent legally permissible; (d) system protections (e.g., intrusion protection); (e) physical security measures; and (f) a security awareness program, including employee training. Infinite shall otherwise comply with all applicable laws in connection with its performance under this Agreement.

    4. Data Breach Procedures. Infinite maintains a data breach plan in accordance with applicable law and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).

    5. Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the SaaS Solution; (c) Customer Systems; (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the SaaS Solution and Infinite Materials directly or indirectly by or through the Customer Systems or any Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

    6. Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of any Access Credentials or the SaaS Solution; and (b) control the content and use of Customer Data, including the uploading or other provision of any Customer Data to the SaaS Solution.

  8. Fees and Payment.

    1. Fees. Customer shall pay Infinite the fees set forth in the Quote (“Fees”) in accordance with this Section 8.

    2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Infinite's income. Where applicable, taxes are based upon the location(s) the Customer identifies as receiving benefit of the SaaS Solution and any associated services. Infinite will apply taxes based upon the business address listed on a Quote as the primary benefit location unless the Customer provides additional information to Infinite. Customer shall keep such information current and providing any changes to Infinite. If Customer claims an exemption from any sales, use, or other tax, the Customer shall provide such exemption information to Infinite. It is the responsibility of Customer to make sure that its proof of exempt status remains current. In no event shall Infinite be liable for any taxes due by Customer and Customer hereby indemnifies Infinite against any such claims for taxes by any tax in authority or party acting on behalf of such taxing authority.

    3. Payment. Customer shall pay all Fees and Reimbursable Expenses within thirty (30) days after the date of the applicable invoice. Customer shall make all payments hereunder in US dollars by check, wire, or ACH. Customer shall make payments to the address or account specified in the applicable invoice or such other address or account as Infinite may specify in writing from time to time. Customer may reasonably and in good faith dispute an invoiced amount within thirty (30) days after the invoice date, provided that Customer shall promptly pay the undisputed portion of the invoice pursuant to Section 8.3 and may only withhold payment of the disputed portion until the dispute is resolved. The parties shall negotiate in good faith to resolve any payment dispute within forty-five (45) days.

    4. Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

      1. Infinite may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;

      2. Customer shall reimburse Infinite for all reasonable costs incurred by Infinite in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and

      3. if such failure continues for sixty (60) days following written notice thereof, Infinite may suspend access to the SaaS Solution or other Infinite Materials until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

    5. No Deductions or Setoffs. All amounts payable to Infinite under this Agreement shall be paid by Customer to Infinite in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

    6. Service Usage. Each Quote sets forth Fees based on total number of Customer’s Employees (each a “Service Allocation”), beginning with the Fees payable by Customer for the levels of usage and data storage in effect as of the Effective Date. Subject to an additional Fee, Customer may increase its Service Allocation. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Infinite any applicable excess usage Fees. Customer acknowledges that exceeding its then-current Service Allocation without notice to Infinite may result in service degradation for Customer and other Infinite customers and agrees that: (i) Infinite has no obligation to permit Customer to exceed its then-current Service Allocation; and (ii) Customer is not entitled to any credits or refunds for periods during which Customer exceeds its then-current Service Allocation.

    7. Fixed Fees. Unless otherwise specified in a Quote, statement of work or other similar document, Fees are fixed for the term of the respective Quote, statement of work, or other similar document.

    8. Reimbursable Expenses. Customer shall reimburse Infinite for out-of-pocket expenses incurred by Infinite in connection with performance under the Agreement as mutually agreed in writing in a Quote or statement of work (“Reimbursable Expenses”).

    9. Customer Employee Count and Excess Service Usage. Infinite or its nominee (including its accountants and auditors) may reasonably request Customer to confirm the total number of Customer Employees at any time during the Term and for two (2) years following the termination or earlier expiration of this Agreement for purposes of determining whether Customer has exceeded its Service Allocation. If the inspection of the total number of Customer Employees determines that Customer's use of the SaaS Solution exceeded the Service Allocation by more than 5%, Customer shall pay to Infinite all amounts due for such excess use of the SaaS Solution. If the total number of Customer Employees does not exceed 5%, then the Customer’s Service Allocation will be updated to reflect the total number of Customer Employees in any subsequent Quote, statement of work, or other similar document. Customer shall make all payments required under this Section 8.9 within thirty (30) days of the date of written notification of the results of the inspection.

  9. Confidentiality.

    1. Confidential Information. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 9.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, employees, Customer Data, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Infinite Materials are the Confidential Information of Infinite, and the financial terms of this Agreement are the Confidential Information of Infinite.

    2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

    3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:

      1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;

      2. except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;

      3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;

      4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and

      5. ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.

      6. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

    4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify to the extent permitted the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

  10. Intellectual Property Rights.

    1. Infinite Materials. All right, title, and interest in and to the Infinite Materials, including all Intellectual Property Rights therein, are and will remain with Infinite and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Infinite Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3 (Use Restrictions). All other rights in and to the Infinite Materials are expressly reserved by Infinite. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Infinite an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

    2. Customer Data. As between Customer and Infinite, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3 (Consent to Use Customer Data). Customer commits to Infinite that neither the Customer Data nor Infinite’s use of Customer Data will: (a) violate this Agreement or any applicable Laws; (b) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (c) constitute an infringement or misappropriation of the Intellectual Property Rights or other rights of any third party; (d) be illegal in any way or advocate illegal activity; or (e) be false, misleading, or inaccurate.

    3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary for Infinite, its Subcontractors, and the Infinite Personnel to perform each of their respective obligations hereunder and to enforce each of their respective rights hereunder or under applicable Law.

    4. Voluntary Feedback. The term “Voluntary Feedback” means suggestions, ideas, feature requests, and recommendations made by Customer relating to the SaaS Solution or other elements of Infinite's business. This Agreement places no obligations on Customer to provide Voluntary Feedback. If Customer chooses to provide Voluntary Feedback to Infinite, then Customer hereby transfers to Infinite the Customer's rights in Voluntary Feedback (including associated Intellectual Property Rights).

  11. Representations and Warranties.

    1. Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; and (iii) the execution of the document incorporating this Agreement by reference by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and (iv) when the document incorporating this Agreement by reference is executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

    2. Additional Infinite Representations, Warranties, and Covenants. Infinite represents, warrants, and covenants to Customer that Infinite will perform under the Agreement using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

    3. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Infinite that Customer owns or otherwise has and will have the necessary rights, permissions, and consents in and relating to the Customer Data necessary to grant Infinite all rights and licenses in and to the Customer Data granted hereunder and that the Processing of Customer Data in accordance with this Agreement will not cause Infinite to infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

    4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SAAS SOLUTIONS, INFINITE MATERIALS, IMPLEMENTATION SERVICES, AND ANY OTHER SERVICES ARE PROVIDED “AS IS.” INFINITE 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. WITHOUT LIMITING THE FOREGOING, INFINITE MAKES NO WARRANTY OF ANY KIND THAT THE SAAS SOLUTIONS, INFINITE MATERIALS, IMPLEMENTATION SERVICES, OR ANY OTHER SERVICES OR PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SAAS SOLUTION, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS, AND IN NO EVENT SHALL ANY SUCH THIRD-PARTY HAVE ANY LIABILITY OR OBLIGATION TO CUSTOMER OR ANY AUTHORIZED USER UNDER THIS AGREEMENT.

  12. Indemnification.

    1. Infinite Indemnification. Infinite shall indemnify, defend, and hold harmless Customer and Customer's officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred resulting from any Action by a third party that Customer's use of the SaaS Solution (excluding Customer Data and Third-Party Materials) in accordance with this Agreement (including the Specifications) infringes or misappropriates such third party's US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from: (i) Third-Party Materials or Customer Data; (ii) access to or use of the Infinite Materials in combination with any hardware, system, software, network, or other materials or service not provided by Infinite or specified for Customer's use in the Documentation; (iii) modification of the Infinite Materials other than: (a) by or on behalf of Infinite; or (b) with Infinite's written approval in accordance with Infinite's written specification; (iv) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Infinite; or (v) any act, omission, or other matter described in Section 12.2 (Customer Indemnification), whether or not the same results in any Action against or Losses by any Infinite Indemnitee.

    2. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Infinite and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Infinite Indemnitee”) from and against any and all Losses incurred by such Infinite Indemnitee resulting from any Action by a third party that arise out of or result from, or are alleged to arise out of or result from: (i) Customer Data, including any Processing of Customer Data by or on behalf of Infinite in accordance with this Agreement; (ii) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Infinite's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Infinite; (iii) allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (iv) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

    3. Indemnification Procedure. Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2 , as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed.

    4. Mitigation. If any of portion of the SaaS Solution or Infinite Materials are, or in Infinite's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer's or any Authorized User's use of the SaaS Solution or Infinite Materials is enjoined or threatened to be enjoined, Infinite may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the SaaS Solution or other Infinite Materials materially as contemplated by this Agreement; (ii) modify or replace the SaaS Solution or other Infinite Materials, in whole or in part, to seek to make the SaaS Solution and Infinite Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute SaaS Solution or Infinite Materials, as applicable, under this Agreement; or (iii) if, in Infinite’s sole discretion, neither of these options is viable, terminate this Agreement and provide a pro-rata refund of any pre-paid Fees to Customer.

    5. Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER'S SOLE REMEDIES AND INFINITE'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SAAS SOLUTION AND INFINITE MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

  13. Limitations of Liability.

    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL INFINITE OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SAAS SOLUTIONS, OTHER INFINITE MATERIALS, OR ANY OTHER SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    2. CAP ON MONETARY LIABILITY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF INFINITE AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO INFINITE UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  14. Term and Termination.

    1. Term. The term of this Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to any of the Agreement’s express provisions, continue until all Quotes, statements of work, or other similar documents incorporating this Agreement have expired or have been terminated.

    2. Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

      1. Infinite may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than sixty (60) days after Infinite's delivery of written notice thereof;

      2. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and

      3. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

    3. Effect of Termination or Expiration. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

      1. All rights, licenses, consents and other authorizations granted by Infinite to use the SaaS Solution or any other Infinite Materials under this Agreement, to the Customer and all Authorized Users, will immediately terminate;

      2. Infinite shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) upon Customer’s written request, either promptly return to Customer for a fee to be mutually agreed upon, or destroy at no additional cost, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data, and if Customer does not make such a written request within thirty (30) days of termination, Infinite shall delete Customer Data consistent with its then-current retention policy; and (ii) erase all Customer's remaining Confidential Information from all systems Infinite directly or indirectly controls, provided that, for clarity, Infinite's obligations under this Section 14.4(b) do not apply to any Resultant Data;

      3. Customer shall immediately cease all use of any SaaS Solution or Infinite Materials and (i) promptly return to Infinite, or at Infinite's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Infinite Materials or Infinite's Confidential Information; and (ii) permanently erase all Infinite Materials and Infinite's Confidential Information from all systems Customer directly or indirectly controls;

      4. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) Infinite may retain Customer Data; in its then current state and solely to the extent and for so long as required by applicable Law; (ii) Infinite may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (iii) all information and materials described in this Section 14.4(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;

      5. Infinite may disable all Customer and Authorized User access to the Infinite Materials;

      6. if Customer terminates this Agreement pursuant to Section 14.3(b) , Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Infinite will: (i) refund to Customer Fees paid in advance for SaaS Solution that Infinite has not performed as of the effective date of termination;

      7. if Infinite terminates this Agreement pursuant to Section 14.3(a) or Section 14.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of Infinite's invoice therefor.

    4. Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3, Section 9, Section 11.4, Section 12, Section 13, Section 14.4, this Section 14.5, and Section 15.

  15. Miscellaneous.

    1. Further Assurances. On a party's reasonable request, the other party shall, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

    2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

    3. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Infinite may, without Customer's consent, include Customer's name and other indicia in its lists of Infinite's current or former customers of Infinite in promotional and marketing materials.

    4. Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 15.4):

      If to Infinite: 2600 Tower Oaks Blvd., Suite 700 Rockville, MD 20852 Email: eric.sidle@infinite.com Attention: General Counsel

      If to Customer: Customer’s address and business contact as specified on the Quote, statement of work or other similar document.

      Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the next day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

    5. Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

    6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

    7. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, 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, 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, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference.

    8. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Infinite's prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Infinite's prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

    9. Force Majeure.

      1. No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemic, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; and (viii) shortage of adequate power. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.

      2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

    10. Compliance with Applicable Law.

      1. Applicable Law. The parties agree to comply with all applicable law in the performance of this Agreement.

      2. OFAC. Customer represents and warrants that it is not and will not provide any Infinite Materials to any Person subject to sanctions by the U.S. State Department, U.S. Office of Foreign Asset Control (OFAC), U.S. Bureau of Industry and Security (BIS), UK HM Treasury's Office for Financial Sanctions, or EU Consolidated List of Sanctions. Any breach of this Section is a material breach of this Agreement.

      3. Anti-Bribery. Each party agrees to comply with the U.S. Foreign Corrupt Practices Act (“FCPA”), the UK Bribery Act (“UKBA”), as well as all other applicable anticorruption laws. Neither party will pay or give, offer or promise to pay or give, or authorize the promise, payment or giving directly or indirectly of any monies or anything of value to anyone, including but not limited to, any person or firm employed by or acting for or on behalf of any governmental customer, any government official or employee, any employee of state-owned or state-sponsored entities, any political party, any employee of any political party, any members or royal or ruling families, or any candidate for political office to corruptly: (a) influence any official act or decision; (b) secure any improper advantage; (c) obtain or retain business, or to direct business to any person or entity, or (d) for the purpose of inducing or rewarding any favorable action in any matter related to the subject of this Agreement or the business of either party. Any breach of this Section is a material breach of this Agreement.

    11. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

    12. Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

    13. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall 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 hereto shall negotiate in good faith to modify this Agreement so as to effectuate the original intent of the parties 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.

    14. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware in each case located in the County of New Castle, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

    15. Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

    16. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and 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.

    17. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the substantially prevailing party is entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.

    18. Electronic Signatures. The parties consent to conducting business electronically and that this Agreement may be electronically or digitally signed. Any electronic or digital signature appearing on this Agreement is the same as handwritten signatures for the purposes of validity, enforcement, and admissibility.