Subscription Agreement

This Subscription Agreement (this “Agreement”) contains terms and conditions that govern your purchase of subscriptions to, and use of, the Services (as defined below), and is a contract between Loyaliser, and you or the entity or organization that you represent.

If you are an individual using the Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power, and authority to enter into this Agreement.

If you are using the Services on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power, and authority to enter into this Agreement on behalf of the Customer.

This Agreement becomes binding and effective on the Customer upon the earliest of: (1) when you access or use the Services, (2) when you click an “I Accept,” “Sign Up” or similar button or check box referencing this Agreement, or (3) when you enter into an Order (as defined below) with Loyaliser.

1. Orders

This Agreement sets forth the terms pursuant to which Customer may access and use Loyaliser’s Services in connection with one or more Orders. Subject to the terms of an Order, the Services will support Customer’s operation of a digital customer loyalty program for the Customer’s business (collectively, but exclusive of the subscribed Services, “Customer’s Environment”).

2. Access and Use

2.1 Subject to the applicable Order and this Agreement, Loyaliser hereby grants to Customer the right to access and use the Services in accordance with the Documentation during the Order Term for Customer’s Environment.

2.2 All rights granted by each Party to the other under this Section 2 are limited, non-exclusive and, except as otherwise provided in this Agreement, non-transferable.

3. Availability

Loyaliser commits to make the Services Available at least 99.8% of the time, exclusive of any time the Services are not Available as a result of one or more Exceptions (the “Availability Standard”). If the actual Availability of the Services is less than the Availability Standard in any two consecutive months, Customer may terminate the applicable Order in the calendar month following such two-month period upon written notice to Loyaliser. In the event of such termination, Loyaliser will issue Customer a Pro-Rated Refund (as defined in Section 14.4).

4. Support

Subject to this Agreement, Loyaliser will provide Support to Authorized Users through email. Although resolution times are not guaranteed, Loyaliser commits to respond to each request for Support from an Authorized User (each, a “Support Request”) within 48 hours. Customer’s sole and exclusive remedy for any alleged failure by Loyaliser to provide Support with reasonable skill, care, and diligence following a Support Request shall be the re-performance of the applicable Support.

5. Security and Privacy

5.1 Each Party has obligations with respect to the security of the Services and Customer Data. Taking into account the nature and types of Customer Data, Loyaliser will employ administrative, physical, and technical measures in accordance with applicable industry practices to protect the Services and prevent the accidental loss or unauthorized access, use, alteration, or disclosure of Customer Data under its control during each Order Term.

5.2 Customer is responsible for properly configuring the Services in accordance with the Documentation, enabling single sign-on for Customer’s accounts, and securing access passwords, keys, tokens, or other credentials used by Customer in connection with the Services (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Services and to promptly notify Loyaliser if Customer believes (a) any Customer Credentials have been lost, stolen, or made available to an unauthorized third party or (b) an unauthorized third party has accessed the Services or Customer Data.

5.3 Except for limited Personal Information in Account Data, Loyaliser does not require Personal Information for Customer’s access and use of the Services. Customer shall limit Personal Information in Account Data to only that necessary for the creation and administration of its Loyaliser account. With regard to Customer Data, Customer shall not use the Services to Process any Sensitive Information and shall use reasonable efforts to restrict the inclusion of other Personal Information in Customer Data. The Documentation provides further information on both filtering Personal Information from, and masking Personal Information in, data before they are submitted to the Services.

5.4 Loyaliser may Process information about Customer’s configuration and use of the Services (“Usage Data”), Customer Data, and Account Data: (a) to manage Customer’s account; (b) to provide and improve the Services and Support, including to address Support Requests and troubleshoot other issues; and (c) to provide Customer and Authorized Users insights, service and feature announcements, and other reporting. Loyaliser may also Process Usage Data that has been aggregated and/or anonymized (including, for clarity, that does not allow a third party to identify Customer as the source of the information): (i) to develop new services and features and (ii) to promote Loyaliser’s services, including, for example, through analyses of patterns and trends. Loyaliser’s Processing of Usage Data, Customer Data, and Account Data shall at all times be subject to Loyaliser’s obligations under this Agreement, including those of security under Section 5.1 and confidentiality under Section 11; the DPA (as defined in Section 7.1), if applicable; and, with respect to Account Data, the Privacy Policy.

6. Customer Responsibilities and Restrictions

6.1 Customer will be solely responsible for: (a) Customer’s Environment, including as necessary to enable Authorized Users’ access and use of the Services; (b) Account Data, Customer Data, and Customer Credentials (including activities conducted with Customer Credentials), subject to Loyaliser’s Processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer Component providers, Authorized Users, and persons whose Personal Information may be included in Account Data, Customer Data, or Customer Credentials; and (d) ensuring use of the Services is only for Customer’s Environment and in accordance with the AUP, Documentation, and applicable Third-Party Terms.

6.2 No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorized Users to access and use the Services; (b) attempt to gain unauthorized access to any Service or its related systems or networks; (c) use any Service to access Loyaliser Intellectual Property Rights except as permitted under this Agreement; (d) modify, copy, or create any derivative work based upon a Service or any portion, feature, or function of a Service; (e) resell, distribute, or otherwise make available any Service to any third party, including as part of a managed services offering; (f) except to the extent limited by Applicable Law, reverse engineer, disassemble, or decompile all or any portion of, or attempt to discover or recreate the source code for, the Services or access or use the Services or Documentation in order to (1) copy ideas, features, functions, or graphics, (2) develop competing products or services, or (3) perform competitive analyses; (g) remove, obscure, or alter any proprietary notice related to the Services; (h) send or store Malicious Code; (i) use or permit others to use the Services in violation of Applicable Law; or (j) use or permit others to use the Services other than as described in the applicable Order, Documentation, and this Agreement.

6.3 Loyaliser reserves the right to investigate potential violations of the above provisions of this Section 6. In the event Loyaliser reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity (including termination pursuant to Section 14.2), Loyaliser will have the right to suspend Authorized Users suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. Except where Loyaliser reasonably believes the violations are willful, or in urgent or emergency situations, Loyaliser will notify Customer of any such suspension in advance (each, a “Suspension Notice”) and work with Customer in good faith to resolve the potential violation. For clarity, Loyaliser reserves the right, but does not assume any obligation to Customer (except with respect to the Suspension Notice), to take any of the actions described in this Section 6.3.

7. Compliance with Applicable Laws

Each Party agrees to comply with all Applicable Laws with respect to its performance of its obligations and exercise of its rights under this Agreement. Without limiting the foregoing:

7.1. Each Party shall comply with Applicable Laws concerning the privacy and protection of Personal Information. Without limiting Section 6.1, Customer will be solely responsible for providing any notices required by Applicable Law to, and receiving any consents and authorizations required by Applicable Law from, persons whose Personal Information may be included in Account Data, Customer Data or Customer Credentials. Without limiting Section 5.3, if Customer believes Customer Data may include the Personal Information of natural persons located in the European Economic Area and wishes to execute a Data Processing Addendum (“DPA”) pursuant to the GDPR, Customer may do so by submitting a request by email to [email protected]. Promptly following Loyaliser’s receipt of Customer’s request, Loyaliser will send Customer a DPA ready for execution.

7.2. Each Party shall comply with Applicable Laws concerning anti-bribery and anti-corruption, which may include the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. As of the date of this Agreement and the date of each Order, Customer represents that it has neither received nor been offered any illegal or improper bribe, kickback, payment, gift or thing of value from any employee, agent or representative of Loyaliser or its Affiliates in connection with this Agreement. Customer agrees to promptly notify Loyaliser if it learns of any violation of the foregoing. This representation is not intended to include customary and reasonable gifts and entertainment provided in the ordinary course of business, to the extent such gifts and entertainment are permitted by Applicable Law.

7.3. Each Party shall (a) comply with Applicable Laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designating countries, entities and persons (“Sanctions Targets”) and (b) not directly or indirectly export, re-export or otherwise deliver Services to a Sanctions Target, or broker, finance or otherwise facilitate any transaction in violation of any Export Laws. Customer represents that it is not a Sanctions Target or prohibited from receiving Services pursuant to this Agreement under Applicable Laws, including Export Laws.

8. Pricing and Fees

8.1. Customer agrees to pay all fees charged by Loyaliser for Customer’s use of Services in accordance with this Agreement and applicable Order(s) and Service Plan(s) (collectively, “Fees”). Except as otherwise provided in an Order: (a) Fees for Services are set forth on the Pricing Page; (b) Fees must be paid in U.S. dollars and, subject to Section 6.2, at the time the applicable Order is made; and (c) Fees for Services include Support at no additional charge.

8.2. If Customer is paying Fees using a credit card or any digital payment method supported by Loyaliser, Customer authorizes Loyaliser to charge Customer’s account for the Services using that payment method. Customer must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid. If Customer notifies Loyaliser to stop using a previously designated payment method and fails to designate an alternative, Loyaliser may immediately suspend use and access to the Services. Any notice from Customer changing its billing account will not affect charges Loyaliser submits to Customer’s billing account before Loyaliser reasonably can act on Customer’s request. Loyaliser uses a third-party intermediary to manage credit card processing, and this intermediary is not permitted to use Customer’s credit card information except in connection with Customer’s authorized purchases. Notice (including email) from Loyaliser’s third-party credit card processor declining Customer’s credit card or otherwise relating to Customer’s account will be deemed valid notice from Loyaliser.

9. Taxes

All Fees are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”). Customer shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by Customer under the Orders and this Agreement (other than any Taxes on Loyaliser’s income, revenues, gross receipts, personnel or assets). Without limiting the foregoing, if Customer is required to deduct or withhold any Taxes under Applicable Laws outside the United States, Customer shall remit such Taxes in accordance with those Applicable Laws and all Fees payable shall be increased so that Loyaliser receives an amount equal to the sum it would have received had no withholding or deduction been made.

10. “Private Label” Option

If the Customer purchases as part of any Order or Service Plan the “private label” option, then it shall be subject to Loyaliser’s standard Private Label Policy.

11. Ownership

As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s Environment and Customer Data, including in each case all associated Intellectual Property Rights, and (b) Loyaliser owns all right, title and interest in and to the Services, Documentation and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Agreement, all rights are reserved by the granting Party.

12. Confidentiality

12.1. As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement and all Orders. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.

12.2. The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Section, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.

13. Disclaimers

13.1. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR GUARANTEE OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESS, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

13.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL SERVICES, SUPPORT AND ANY OTHER MATERIAL ARE PROVIDED BY LOYALISER ON AN “AS IS” AND “AS AVAILABLE” BASIS. LOYALISER MAKES NO REPRESENTATION OR WARRANTY, AND HAS NO SUPPORT OBLIGATIONS OR LIABILITY, WITH RESPECT TO ANY CUSTOMER COMPONENT. WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 13, LOYALISER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, DOCUMENTATION, ANCILLARY TOOLS OR ANY OTHER MATERIAL, OR RESULTS OF THE USE THEREOF, WILL: (a) MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS; (b) OPERATE WITHOUT INTERRUPTION; (c) ACHIEVE ANY INTENDED RESULT; (d) BE ERROR FREE OR (e) BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH CUSTOMER COMPONENTS. ANY CHANGES TO CUSTOMER COMPONENTS (INCLUDING THEIR UNAVAILABILITY) OR THIRD-PARTY TERMS DURING AN ORDER TERM DO NOT AFFECT CUSTOMER’S OBLIGATIONS UNDER THE APPLICABLE ORDER OR THIS AGREEMENT.

14. Term and Termination.

14.1. The term of this Agreement will continue through the expiration or earlier termination of the last Order to be in effect.

14.2. Upon expiration or earlier termination of an Order:

  • (a) subject to Section 14.4, all rights granted to Customer with respect to Services under such Order will terminate effective as of the effective date of termination; and
  • (b) subject to Section 14.4, Loyaliser will have no obligation to provide Services to Customer or Authorized Users after the effective date of the termination.

14.3. If an Order is terminated early by Customer pursuant to Section 3, or by Loyaliser pursuant to Section 15.2:

  • (a) Customer shall not be obligated to pay any additional amounts specified in the Order following the effective date of termination; and
  • (b) Loyaliser will refund to Customer a pro rata share of any unused amounts prepaid by Customer under the applicable Order for the Services on the basis of the remaining portion of the current Order Term (a “Pro-Rated Refund”). In all other cases, and regardless of whether Customer uses the Services at the levels reflected in the Orders or otherwise, Customer will not be entitled to a refund of Fees paid, and any unpaid Fees outstanding will become immediately due and payable.

14.4. Provided Customer has paid all amounts due under this Agreement, and subject to any applicable shorter Service Plan retention periods, for up to 30 days from the effective date of termination of this Agreement, an Authorized User designated by Customer will be permitted to continue to access and download Customer Data that was accessible to Authorized Users through the Services immediately prior to termination. The designated Authorized User’s access and use will continue to be subject to the terms of this Agreement, provided the Authorized User shall not access or use the Services other than to download Customer Data.

14.5. 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: 5.4, 6.2, 7, 9 through 16, and 18 through 28.

15. Indemnification.

15.1. Subject to Sections 15.2 and 15.4, Loyaliser agrees to defend, indemnify, and hold harmless Customer, its Participating Affiliates (as defined in Section 19), and their employees, contractors, agents, officers, and directors (collectively, “Customer Indemnitees”), from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including without limitation attorneys’ fees) (collectively, “Losses”) arising out of or related to any legal claim, suit, action, or proceeding (each, an “Action”) by a third party alleging use of the Services as permitted under this Agreement infringes such third party’s United States patent or copyright, or misappropriates such third party’s trade secrets (each, a “Customer Infringement Claim”).

15.2. If the Services become, or in Loyaliser’s opinion are likely to become, the subject of a Customer Infringement Claim, Loyaliser may in its discretion and at its own expense:

  • (a) obtain for Customer the right to continue using the Services;
  • (b) modify the Services so that they no longer infringe or misappropriate; or
  • (c) terminate this Agreement and all Orders and issue a Pro-Rated Refund. Loyaliser will have no obligation to indemnify Customer for a Customer Infringement Claim to the extent it arises from any of the following (collectively, “Customer-Controlled Matters”):
    • (i) Customer’s Environment, including Connections to Customer Components, whether enabled through APIs, Ancillary Tools, or otherwise;
    • (ii) Account Data, Customer Data, or Customer Credentials (including activities conducted with Customer Credentials), subject to Loyaliser’s Processing obligations under this Agreement; or
    • (iii) use of the Services by Customer or an Authorized User in a manner that breaches an Order, Service Plan, or this Agreement. SECTIONS 15.1 AND 15.2 STATE LOYALISER’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM OF INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT OR MISAPPROPRIATION.

15.3. Subject to Section 15.4, Customer agrees to defend, indemnify, and hold harmless Loyaliser, its Affiliates, and their employees, contractors, agents, officers, and directors (collectively, “Loyaliser Indemnitees”), from and against any and all Losses arising out of or related to any Action by a third party arising out of or relating to Customer-Controlled Matters.

15.4. A Customer Indemnitee or Loyaliser Indemnitee (each, an “Indemnitee”) seeking indemnification shall promptly notify the other Party (each, an “Indemnifying Party”) in writing of any Action for which it seeks indemnification pursuant to Section 15.1 or 15.3 (as applicable) and cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s expense. An Indemnitee may participate in and observe the proceedings at its own expense with counsel of its own choice. A Party’s failure to perform any obligations under this Section 15.4 will not relieve the Indemnifying Party of its obligations under Section 15.1 or 15.3 (as applicable) except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnifying Party shall not settle an Action without the Indemnitee’s written consent if such settlement shall require action or payment by the Indemnitee.

16. Limitations of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 16:

  • (a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS, OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND
  • (b) IN NO EVENT SHALL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE FEES PAID TO LOYALISER BY CUSTOMER UNDER THE APPLICABLE ORDER(S), INCLUDING PRIOR ORDERS FOR THE SAME SERVICES, IN THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE EXCLUSIONS SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 15, CUSTOMER’S BREACH OF SECTION 6.2, OR CUSTOMER’S PAYMENT OBLIGATIONS TO LOYALISER UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 16 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE SERVICES.

17. Publicity.

Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that Loyaliser may (subject its obligations of non-attribution under Section 5.4) include Customer’s name and logo in its lists of Loyaliser customers, its public website, and other promotional material. Loyaliser agrees to promptly cease such uses of Customer’s name and logo following Customer’s request sent to [email protected].

18. Notices.

Subject to change pursuant to this Section:

  • (a) Loyaliser’s physical address for notices is at Loyaliser; and
  • (b) Customer’s physical and email addresses for notices are those associated with its Order(s). Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given:
    • (i) one business day after being sent by overnight courier to the Party’s physical address;
    • (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or
    • (iii) one business day after being sent by email to the Party’s email address (provided that (1) the sender does not receive a response that the message could not be delivered or an out-of-office reply, and (2) any notice for an indemnifiable Action must be sent by courier or mail pursuant to clause (i) or (ii)).

19. Customer Affiliates.

Customer’s Affiliates may use the Services procured by Customer hereunder subject to the terms of this Agreement. Customer and its Affiliates will be jointly and severally liable for compliance with this Agreement by Customer’s Affiliates. Any claims under this Agreement by Customer’s Affiliates will be considered claims made by Customer.

20. Assignment.

Customer may assign this Agreement in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided Customer is current on its payment obligations at the time of assignment and the assignee agrees to be bound by all terms of this Agreement. Loyaliser may assign this Agreement in its entirety to an Affiliate. Otherwise, neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent. Any purported assignment in violation of this Section will be void.

21. U.S. Government Customers.

The Services and Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFARS 227.7202 and FAR 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Services or Documentation by the U.S. Government will be governed solely by the terms of this Agreement and is prohibited except to the extent expressly permitted by the terms of this Agreement.

22. Independent Parties; No Third-Party Beneficiaries.

The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person or entity other than the Parties and their respective successors and assigns.

23. Force Majeure.

Neither Party will be liable for any delays or failures to perform any part of this Agreement due to a cause beyond its reasonable control, including natural disasters, war, terrorism, riots, labor conditions, governmental actions, and Internet disturbances, provided that the affected Party promptly notifies the other Party and uses reasonable efforts to minimize the impact of such events.

24. Miscellaneous.

This Agreement, together with all Orders and the AUP, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral. No amendment to or modification of this Agreement will be binding unless in writing and signed by authorized representatives of both Parties. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing and signed by the Party granting the waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. Headings in this Agreement are for reference purposes only and will not affect the interpretation of this Agreement. As used in this Agreement, “including” (and its variants) means “including without limitation” (and its variants).

25. Definitions.

Capitalized terms used in this Agreement are defined in this Section 26 and elsewhere in this Agreement.

26. Counterparts.

Orders may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed to be original signatures.

27. Changes to this Agreement.

Loyaliser may modify this Agreement from time to time by posting a revised version on the Loyaliser website, which modifications will become effective as of the first day of the calendar month following the month in which they were posted, or by notifying Customer via email at least 30 days before the modifications take effect. In either case, if Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose not to renew, including canceling any terms set to auto-renew. For fixed-term Orders, the updated Agreement will apply upon the start of the next Renewal Order Term. Except as otherwise expressly permitted in this Agreement, this Agreement may be amended only by a written agreement signed by authorized representatives of the Parties.

05/31/2024.