WHEREAS, Wrench.ai, Inc. (“Wrench,” “we,” “our,” “us”) offers an enterprise-grade platform for developing, deploying, and tracking customer information, analytics and analytical strategies across finance platforms;

WHEREAS, Wrench provides the Services pursuant to these terms and conditions (“Agreement”); and

WHEREAS, the customer identified on the applicable order form that references this Agreement (“Customer”) wishes to engage, and Wrench is willing to provide, certain of Services to Customer pursuant to this Agreement, in exchange for the fees set forth hereinafter as well as Wrench’s access to certain contact, client, market, and industry data created by or in the possession of Customer. 

WHEREAS, Wrench and Customer may be referred to herein individually as a “Party” or collectively as the “Parties.”

NOW THEREFORE, in consideration of the mutual promises set forth below, and other good and valuable consideration, the sufficiency of which is hereby acknowledge, the Parties agree as follows:

AGREEMENT

1  CERTAIN DEFINITIONS

The following terms, when used in this Agreement shall have the following meanings:

“Affiliate” means with respect to a Party, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Party.  The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

“Confidential Information” means, subject to the exceptions set forth in the following sentence, all information that either Party receives from the other that is marked “confidential” by the disclosing party (“Disclosing Party”) or that would reasonably be considered confidential by a party experienced in the industry.  In all instances, all Wrench Property (as defined below) is Confidential Information of Wrench.  Information is not Confidential Information if it: (a) has been known or becomes known publicly; (b) has been known generally in the industry on a non-confidential basis before communication by the Disclosing Party to the recipient (“Receiving Party”); (c) has been known otherwise by the Receiving Party before communication by the Disclosing Party; or (d) has been received by the Receiving Party without any obligation of confidentiality from a source (other than the Disclosing Party) lawfully having possession of such information.

“Data” means any research, content, analysis, reports, charts, documents, pricing, bid or ask information, purchase, sale, performance, volume, inventory, metrics, product features, underwriting criteria, or other similar data or information relating to common stock, preferred stock, loans, notes, credit, advances, debt instruments, securities, or other financial instruments issued, distributed, or originated by, on behalf of, or relating to Customer, whether pertaining to a single instrument or the aggregate instruments or metrics of Customer, and whether such data or information is provided directly or other electronic means (e.g., Excel spreadsheet, FTP site, .csv file, .pdf report, or other electronic or downloadable media) or via tangible means (e.g., hard copy report, statement, document, or other written media).

“Platform” means the commercially available suite of programs, components, functions, screen designs, report formats, and Wrench Tools available from Wrench as a service over the internet.

“Services” means the License to the Platform and any other services provided by Wrench as agreed to by the Parties in an applicable order form.

“Wrench Market Data” means any aggregate, sector-level, anonymized, de-identified, or market-level Data combining or pertaining to two or more customers of Wrench created by or on behalf of Wrench or its Affiliates.

“Wrench Tools” means any algorithm, calculation, model, equation and/or software provided by Wrench to Customer. 

2  LICENSE TO PLATFORM; PERFORMANCE OF SERVICES.

2.1 Platform License. Wrench hereby grants Customer a limited, non-exclusive, non-sublicensable, transferable (only as expressly provided for herein) license and right to access and use the Platform solely for Customer’s internal business purposes (“License”).  The Platform may only be used or accessed by individual employees authorized by Wrench to access the Platform solely using a user identifier and password provided to Customer by Wrench.

2.2 Service Levels. Wrench shall use reasonable efforts consistent with prevailing industry standards to provide the Platform in a manner that minimizes errors and interruptions in accessing the Platform. Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Wrench or by third-party providers, or because of other causes beyond Wrench’s reasonable control, but Wrench shall use reasonable efforts to provide advance notice by email of any scheduled service disruption within Wrench’s control.

2.3 Reservation of Rights. All ownership rights, title, and interest in and to the Platform, Wrench Tools, Wrench Market Data and Services, as such may be modified, upgraded, or enhanced from time to time (together with all intellectual property rights therein, the “Wrench Property”) will remain with and belong exclusively to Wrench. Wrench reserves all rights not expressly granted to Customer herein.

2.5 Wrench License Restrictions. Customer’s License rights to use the Platform and related Wrench Property are subject to the following restrictions:

(a)  Customer shall not transfer, display, publish, download, distribute, sell, resell, lease, sublease, license, sub-license, assign, or otherwise offer for use on a service bureau, outsourced, or value-added basis, or create any derivative works from any Wrench Property without the prior written consent of Wrench;

(b)  Customer shall have no rights to the Wrench Property and shall not remove or modify any proprietary marking or restrictive legends placed thereon;

(c)  Customer shall not reverse engineer, decompile, disassemble or otherwise create, attempt to create, or authorize or assist any third party to create a source code version of any Wrench Property.  Customer further acknowledges and agrees that, the Wrench Property, especially all Wrench Market Data, constitutes Confidential Information of Wrench.

(d) Customer shall not use the Services for research or benchmarking or any related endeavor with the intent of creating a competing or similar product.

(e) Customer shall not use the Services in any manner or for any purpose other than as expressly permitted by this Agreement, the Privacy Policy, or any other policy, instruction or terms applicable to the Services.

(f) Customer shall not use the Services to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Wrench; (iv) store or transmit inappropriate content, such as content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (v) store or transmit any content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (vi) abuse, harass, stalk or otherwise violate the legal rights of a third party.

(g) Customer shall not interfere with or disrupt servers or networks used by Wrench to provide the Services or used by other users to access the Services, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user’s full use and enjoyment of any of the Services.

(h) Customer shall not cause, in Wrench’s sole discretion, inordinate burden on the Services or Wrench’s system resources or capacity.

(i) Customer shall not share passwords or other access information or devices or otherwise authorize any third party to access or use the Services.

2.6 No Implied License. Customer acknowledges and agrees that this Agreement in no way shall be construed to provide to Customer, or any third party, any express or implied right or license to access, use, copy or otherwise exploit Wrench Property, the Services, or any portion thereof (including any intellectual property embodied therein), except as specifically provided herein.

2.7 Data License; Restrictions.  Customer hereby grants Wrench a non-exclusive, non-transferable, perpetual, worldwide, irrevocable, right and license to access and use the Data to provide the Services, including but not limited to, converting the Data into Wrench Market Data.  Except in the case of Wrench’s express license and right to anonymize and then use the Data as Wrench Market Data, the Data shall be used or accessed only by those individual employees authorized by Wrench, or as otherwise agreed to by the Parties in writing.  Wrench’s rights in and to the Data are further subject to the following restrictions:

(a)  Except as expressly set forth herein, Wrench shall have no rights to the Data, and shall not remove or modify any proprietary marking or restrictive legends placed thereon, unless such removal is exclusively for Wrench’s internal business purposes, such as the processing and analysis of the Data, or to use the Data as Wrench Market Data.

(b)  All ownership rights, title, and interest in and to the Data, as such may be added to, modified, upgraded, and/or enhanced from time to time will remain with and belong exclusively to the Customer.

2.8 Customer Responsibilities.  Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of Wrench Property and notify Wrench promptly of any such unauthorized access or use; and (b) use Wrench Property only in accordance with the relevant documentation provided directly to Customer by Wrench, as well as applicable laws and regulations.

2.9 Third-Party Data.  Third-party research, data and tools may be obtained from companies not affiliated with Wrench, and are provided to Customer for informational purposes only. Wrench does not guarantee the accuracy, completeness, or suitability of such third-party information for any purpose, and makes no warranties with respect to the results to be obtained from its use.

2.10 Trials and Beta. From time to time, Wrench may offer access to beta models of the Services or trials of paid subscriptions for a specified period without payment or at a reduced rate (each, a “Trial”).  Wrench reserves the right, in its absolute discretion, to determine Customer’s eligibility for a Trial, and, subject to applicable laws, to withdraw or to modify a Trial at any time without prior notice and with no liability, to the greatest extent permitted under the law.

For some Trials, Wrench may require Customer to provide payment details to start the Trial. AT THE END OF SUCH TRIALS, WRENCH MAY AUTOMATICALLY START TO CHARGE CUSTOMER THE APPLICABLE FEES ON THE FIRST DAY FOLLOWING THE END OF THE TRIAL, ON A RECURRING MONTHLY BASIS. BY PROVIDING PAYMENT DETAILS IN CONJUNCTION WITH THE TRIAL, CUSTOMER AGREES TO THIS CHARGE USING SUCH PAYMENT DETAILS. IF CUSTOMER DOES NOT WANT THIS CHARGE, CUSTOMER MUST CANCEL THE APPLICABLE PAID SUBSCRIPTION THROUGH CUSTOMER’S ACCOUNT OR TERMINATE THE ACCOUNT BEFORE THE END OF THE TRIAL. PAID TRIALS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH CUSTOMER HAS ALREADY PAID, AND EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WRENCH WILL NOT REFUND ANY FEES THAT CUSTOMER HAS ALREADY PAID. 

IF THE TRIAL CONSISTS OF ACCESS TO A BETA MODEL, CUSTOMER ACKNOWLEDGES THAT THE BETA MODEL HAS NOT BEEN FULLY DEVELOPED AND MAY BE SUBJECT TO DEFECTS THAT WOULD BE UNACCEPTABLE IN A FULLY DEVELOPED VERSION.  CUSTOMER AGREES THAT THE LICENSE GRANTED UNDER A BETA TRIAL IS WITHOUT WARRANTY OF ANY NATURE, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, AS WELL AS NON-INFRINGEMENT, AND ANY OTHER WARRANTY.  BETA USERS HAVE NO CLAIM WHATSOEVER AGAINST US FOR ANY REASON WHATSOEVER WITH RESPECT TO THEIR USE OF THE SERVICES IN CONNECTION WITH A BETA TRIAL. 

3  FEES; REIMBURSEMENT OF EXPENSES

3.1 Fees. Customer shall pay to Wrench all fees detailed on an applicable order form for the License and to use the Services and related Wrench Property.

3.2 Payments. 

Automatic payments: Customer is automatically charged via ACH or credit card after they either initiate a License agreement, use the Platform, or purchase any other Wrench products, services, or deliverables. Automatic payments occur at the start of your engagement, 30 days after your last automatic charge, or when you reach a preset amount (known as your threshold), whichever comes first. You can also make payments at any time to control your costs. Note: Wrench does not accept prepaid cards for automatic payments.

Manual Payments. Upon Wrench’s written approval, Wrench shall, either once per month or at such other time period as mutually agreed upon by the Parties in writing, deliver an invoice to Customer, requesting payment for the Services, use of the Platform and any other deliverables incurred by Customer and for the reimbursement of expenses incurred during the immediately preceding billing period.  Fees shall be due and payable within ten (10) days from the date that the applicable invoice is sent to Customer.  

If payment of any invoiced fees or automatic payments are attempted but (including any reimbursement of expenses) are not made after it becomes due and payable, a late fee shall accrue at the rate of the lesser of two and one half percent (2.5%) per month or the highest legal rate permitted by law.

3.3 Net of Taxes. All amounts payable by Customer to Wrench under any applicable invoice are exclusive of any sales, use and other taxes or duties, however designated, including, without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively, “Taxes”).  Customer shall be solely responsible for payment of any Taxes, except for those Taxes based on the income of Wrench.  Customer will not withhold any Taxes from any amounts due to Wrench.

4 OWNERSHIP, FEEDBACK AND CONFIDENTIALITY

4.1 Customer Ownership Rights. Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to the Customer’s Confidential Information are retained by Customer. Wrench agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Customer in and to such intellectual property rights.

4.2 Wrench Ownership Rights.  Except for the rights granted hereunder, all rights, title and interests, including, but not limited to, all worldwide patent, copyright, trademark, trade secret and any other rights in and to Wrench Property and Wrench’s Confidential Information are retained by Wrench.  Customer agrees that it shall not do, or cause to be done, any acts or things contesting or in any way impairing or tending to impair any portion of the right, title and interest of Wrench or its licensors in and to such intellectual property rights.

4.3 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Customer Feedback”) to Wrench with respect to Wrench Property. Wrench may consider and discuss with Customer all Customer Feedback, but shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Should Wrench determine that it wishes to so proceed, Wrench, upon its discretion, may elect to integrate the new enhancement, feature and/or functionality into its overall product planning process, including but not limited to, integration with the Wrench Property.  The Parties agree that such Customer Feedback shall be given voluntarily.  Customer hereby grants Wrench a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to: (a) copy, distribute, transmit, display, perform, and create derivative works of the Customer Feedback; and (b) use the Customer Feedback or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide or lease products or services which practice or embody, or are configured for use in practicing, the Customer Feedback and/or any subject matter of the Customer Feedback.

4.4 Confidential Information.  

(a) The Receiving Party shall keep confidential all Confidential Information of the Disclosing Party, and each Party agrees to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below. 

(b) Each Party agrees, during the term hereof and for a period of five years thereafter, to keep confidential all Confidential Information disclosed to it by the Disclosing Party in accordance herewith, and to protect the confidentiality thereof with at least the same standard of care with which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable standard of care in the protection of Confidential Information.

(c) If the Receiving Party is required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, regulatory processes (including those of self-regulatory organizations), or similar process) in connection with any proceeding to disclose or otherwise becomes legally compelled to disclose any Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt written notice and, if requested by the Disclosing Party after receipt of such notice, the Receiving Party shall provide Disclosing Party with reasonable assistance (subject to reimbursement by the Disclosing Party of all reasonable and out-of-pocket expenses incurred by the Recipient in providing such assistance) so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with this Agreement. If such a protective order or other remedy is not obtained or if the Disclosing Party waives compliance with this Section 4, the Receiving Party may disclose Confidential Information, but only such Confidential Information as it is legally required to disclose in the reasonable opinion of counsel to the Receiving Party, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information disclosed. Customer’s obligations under this paragraph will survive the termination of this Agreement or of any License granted under this Agreement for whatever reason.

4.5 Data Privacy. Customer shall at all times comply with all privacy, data security, and data protection laws, regulations, rules, and industry best practices in any jurisdiction applicable to Customer’s use of Wrench Property.

5 REPRESENTATIONS, WARRANTIES AND EXCLUSIONS

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

5.2 Representations and Warranties of Customer. Customer represents, warrants and covenants to comply with all laws, rules, and regulations in connection with its use of any of Wrench Property.  Customer also represents, warrants and covenants that the Data (and Wrench’s use of the Data) will not infringe the intellectual property rights of any third party, nor breach any obligation of confidentiality or right of privacy of a third party.

5.3 Exclusions.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES, PLATFORM AND RELATED WRENCH PROPERTY ARE PROVIDED ON AN “AS–IS” AND “AS AVAILABLE” BASIS AND WRENCH DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  IN NO EVENT SHALL WRENCH HAVE ANY LIABILITY ARISING FROM THE UNAUTHORIZED USE OF WRENCH PROPERTY OR INFORMATION DERIVED THEREFROM.  CUSTOMER ACKNOWLEDGES THAT WRENCH DOES NOT WARRANT THAT WRENCH PROPERTY WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES.

6 INDEMNIFICATION

6.1 Infringement Defense. Wrench shall indemnify, defend and hold harmless Customer against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) directly or indirectly brought against Customer by any third party arising from or related to the infringement or misappropriation of a third party copyright, United States patent, trade secret or trademark by reason of the use of Wrench Property (excluding any third party materials incorporated therein) by Customer as contemplated hereunder. Wrench’s indemnification obligations are contingent on the following: (a) Customer promptly notifies in writing Wrench of such claim ; (b) Wrench has the sole and exclusive authority to defend or settle any such claim; and (c) Customer reasonably cooperates with Wrench in connection therewith.

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

6.3 Limitation on Infringement Indemnification. Wrench shall have no liability or obligation under Sections 6.1 and 6.2 with respect to any claim if such claim is caused in whole or in part by: (a) compliance with designs, guidelines, plans or specifications provided by Customer; (b) modification of Wrench Property by any party other than Wrench without Wrench’s express written consent; or (c) the combination, operation or use of Wrench Property with other applications, portions of applications, product(s), data or services where Wrench Property would not by itself be infringing.

6.4 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Wrench against any and all claims, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) directly or indirectly brought against Wrench by any third party arising from: (a) the use of Wrench Property in violation of the terms of this Agreement; (b) any of the circumstances described in Section 6.3; (c) the infringement or misappropriation of a third party copyright, United States patent, trade secret or trademark by Wrench’s use of the Data; or (d) Customer’s violation of applicable law.

6.5   THIS SECTION 6 STATES WRENCH’S ENTIRE AND EXCLUSIVE LIABILITY AND OBLIGATION, AND CUSTOMER’S EXCLUSIVE REMEDY (AT LAW OR IN EQUITY), WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE, FOR ANY CLAIM OF ANY NATURE RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY.

7 LIMITATION OF LIABILITY

7.1 LIMITATIONS ON REMEDY. IN NO EVENT WILL WRENCH, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF DATA OR GOODWILL, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR RELIANCE UPON WRENCH PROPERTY, EVEN IF WRENCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WRENCH BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF WRENCH PROPERTY, EXCEPT IN THE CASE OF WRENCH’S WILLFUL MISCONDUCT WITH RESPECT TO SUCH USE OR MISUSE. CUSTOMER ASSUMES RESPONSIBILITY FOR THE INSTALLATION, USE, AND RESULTS OBTAINED FROM WRENCH PROPERTY. UNDER NO CIRCUMSTANCES WILL WRENCH’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO WRENCH DURING THE IMMEDIATELY PRECEDING TWELVE-MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME STATES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY TO CUSTOMER.

8 TERM, TERMINATION

8.1 Term. This Agreement commences as of the date Wrench and Customer enter into an order form or the date on which Wrench first provides access to any Wrench Property to Customer (“Effective Date”), and unless earlier terminated in accordance with this Agreement, will remain in effect for the term as stated in the applicable order form, or until one (1) year from the Effective Date (the “Initial Term”) whichever is less.  Thereafter, the term of this Agreement shall automatically be extended for successive renewal periods of one year unless either Party notifies the other Party in writing of its intent to terminate at least thirty (30) days prior to the expiration of the then current term (each, a “Renewal Term” and, together with the Initial Term, the “Term”).

8.2 Right to Suspend. Wrench may suspend Customer’s access to any portion of the Wrench Property if Wrench reasonably determines that: (a) Customer is in breach of its obligations under this Agreement; (b) there is a threat or attack on the Wrench Property or other event that may create a risk to the Wrench Property, Customer or any other customer of Wrench; (c) Customer’s use of the Wrench Property disrupts or poses a security risk to the Wrench Property or any other Wrench customer; (d) any of the circumstances described in Section 6.3 occurs; or (e) Client is using the Wrench Property for fraudulent or illegal activities (collectively, “Service Suspensions”). Wrench will provide written notice of any Service Suspension to Customer and will provide updates regarding resumption of access to the Wrench Property following any Service Suspension.  Customer will be provided with a billing credit for the time of any Service Suspensions, except for Service Suspensions described in Sections 8.2(a), (c), (d), or (e). If the circumstances resulting in a Service Suspension are not cured within thirty (30) days of the notice of said Service Suspension, Wrench may immediately terminate Agreement, including Customer’s access to any Wrench Property.

8.3 Obligations on Termination.  Upon termination of this Agreement or expiration of the Term, all rights granted hereunder and all obligations of Wrench to provide the Platform and the Services shall immediately terminate.  Termination of this Agreement or expiration of the Term shall not relieve Customer from paying all fees accruing prior to termination and Customer shall promptly pay such fees upon termination of the Agreement.  Any section that should by its nature survive the termination of this Agreement or the expiration of the Term for any reason whatsoever, so survives.

8.4 Force Majeure. No Party hereto shall have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement (except Customer’s payment obligations) to the extent such failure or delay is the result of any of the following events (each, a “Force Majeure Event”): (a) any fire, explosion, unusually severe weather, natural disaster or act of God; (b) epidemic, pandemic, any nuclear, biological, chemical, or similar attack, any other public health or safety emergency, any act of terrorism, and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment, any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure, or any means of disrupting or damaging internet or other computer networks or facilities; (e) any strike, lockout or other labor dispute or action; (f) any action taken in response to any of the foregoing events by any civil or military authority; or (g) any other event beyond such Party’s control, provided, that, financial inability in and of itself shall not be a Force Majeure Event.

9 GENERAL

9.1 Non-Solicitation. During the Term and for a period of one (1) year thereafter, Customer shall not, and shall cause each of its Affiliates and each of their respective directors, managers, partners, officers and employees not to, directly or indirectly on behalf of any other person, cause, solicit, induce or encourage any employee of Wrench or any of its Affiliates to leave his or her employment with Wrench or any of its Affiliates or hire, employ or otherwise engage any such individual; provided, that nothing contained in this Section 9.1 shall prohibit Customer or its Affiliates from hiring any such individual in the event that: (a) such individual shall have responded to a general solicitation for employment not otherwise aimed or targeted at employees of Wrench or its Affiliates; or (b) such individual has not been employed by Wrench or any of its Affiliates at any time during the twelve (12) months period preceding the date on which such individual is hired by Customer or one of its Affiliates.

9.2 Compliance with Laws.  Each Party shall, at its own expense, be responsible for current and ongoing familiarity with, and shall at all times comply with all applicable laws, treaties, rules, regulations, orders and other requirements relating to this Agreement. Without limiting the generality of the foregoing, Customer shall not transfer, either directly or indirectly, any Wrench Property, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and shall otherwise comply with all other applicable import and export laws, rules and regulations.

9.3 Publicity. Wrench may identify Customer as a Wrench customer and use Customer’s name and logo in promotional, marketing, advertising, and other contexts, including but not limited to, on Wrench’s website. Customer grants to Wrench a revocable, non-exclusive, worldwide fully paid up license to use Customer’s name and logo, including any intellectual property rights therein, for purposes of this Section.

9.4 No Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the non-assigning Party, which consent may be withheld at the sole discretion of the non-assigning Party.  Notwithstanding the foregoing, Wrench may assign this Agreement without such consent to any person or entity controlling, controlled by, or controlled in conjunction with Wrench or that acquires all or substantially all of the assets and business of Wrench by merger or purchase, provided that such person or entity assumes in writing all of the terms and conditions of this Agreement.  Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.

9.5 Amendment; Waiver. This Agreement may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both Parties.  No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the Party making the waiver.  Any such waiver shall be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and shall not apply with respect to any repeated or continued violation of the same provision or any other provision.  Failure or delay by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

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

9.7 Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.  If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law.  In such event, the invalid or unenforceable provision shall be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.

9.8 Governing Law. Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement or the transactions contemplated hereby shall be governed by and construed in accordance with the laws of the State of Utah without regard to its rules of conflict of laws.  Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Utah and of the United States of America located in Salt Lake County, State of Utah (the “Utah Courts”) for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in the Utah Courts and agrees not to plead or claim in any Utah Court that such litigation brought therein has been brought in an inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of the Utah Courts.

9.9 Attorney Fees. In case of an action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, the non-prevailing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.

9.10  Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement.  Notices will be deemed given when: (a) delivered personally; (b) sent by read-receipt confirmed email or other electronic means; (c) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt.  All communications will be sent to the addresses designated by the Parties in writing pursuant to the means of communication set forth in this Section.

9.11 Entire Agreement. This Agreement, together with any applicable order form, constitutes the entire agreement between the Parties.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.  This Agreement may not be modified or waived, in whole or part, except in writing and signed by an officer or duly authorized representative of both Parties.  This Agreement may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the Parties.  There are no unwritten or oral agreements between the Parties.

9.12 Headings. The titles, headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.