Enterprise Terms of Use

Last Update: February 6, 2024

PLEASE READ THESE ENTERPRISE TERMS OF USE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY HORKOS, INC. D/B/A PRIVY (“PRIVY”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH PRIVY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PRIVY’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PRIVY SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Free Services

If you are accessing the Services on a free, unpaid, trial, beta, testing or similar basis (“Free Services”), then unless otherwise indicated on an applicable Order Form, certain of Privy’s obligations under this Agreement will not apply, as further described below.

2. Order Forms; Access to the Service

Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Privy grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use Privy product(s) and/or service(s) specified in such Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Privy’s applicable official user documentation for such Services (the “Documentation”).

3. Creating Wallets

Customer’s end users (“Users”) may create Wallets via the Services. A “Wallet” is an intangible medium which secures a set of cryptographic keys for a user enabling them to sign arbitrary messages on behalf of third party applications. This includes signature of cryptocurrency transactions enabling the user to control digital assets. Wallets provided by Privy are self-custodial, meaning that signatures can only be generated in the Users’ presence and with their express approval. Wallets can be orchestrated by Privy or a third party service provider of the User’s choosing, in which case Customer agrees to, and shall direct Users to comply with, all rules, agreements and requirements of such third party service provider. When a User creates a Wallet, the User generates “user entropy”, which is a user-input sequence of characters enabling generation of encryption keys to protect the Wallet. Customer and its Users are solely responsible for storing and safeguarding such sequence of characters which can be used to recover access to their Wallet, passwords, private keys, recovery phrases and other credentials associated with use of Wallets (“Credentials”), and Customer agrees to, and shall direct its Users to, use commercially reasonable efforts to prevent unauthorized access to, or use of, Wallets and all other accounts through the Services, except for any portion of the private keys associated with a Wallet that are solely stored by Privy (the “Privy Wallet Shard”). Customer acknowledges on behalf of its Users that Privy only provides non-custodial services and Privy does not store or have access to Users’ Wallets, Credentials or assets contained in Wallets, and Privy cannot assist with retrieving any such Credentials, in each case, other than the Privy Wallet Shard, for which Privy shall use commercially reasonable efforts to maintain the confidentiality and safeguard from unauthorized access. Any unauthorized access to a User’s Wallet could result in the loss or theft of any asset that may be held in the Wallet, including any linked financial information such as bank accounts and financial accounts. If Customer or any User notices any unauthorized or suspicious activity in Wallet(s) or accounts that are related or linked to the Services, such Customer or User agrees to notify Privy immediately through his or her account or by emailing support@privy.io. As part of its Services, Privy offers Customer an alternative set of Wallet recovery services under which Privy generates entropy on the User’s behalf. Using this alternate system, Privy can assist the User with Wallet recovery but still cannot access Credentials or any other User assets stored in Wallets. Customer will at all times be responsible for the acts or omissions of any person who accesses an account or Wallet provided through the Services.

4. Implementation

Upon payment of any applicable fees set forth in each Order Form, Privy agrees to use reasonable commercial efforts to provide standard implementation and integration assistance for the Services only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”). If Privy provides Implementation Assistance in excess of any agreed-upon number of integrations or hours estimate, or if Privy otherwise provides additional services beyond those agreed in an Order Form, Customer will pay Privy at its then-current hourly rates for professional services. For clarity, any technology and associated intellectual property rights developed by Privy or by a third party on Privy’s behalf in providing Implementation Assistance (“Implementation IP”), except with respect to Third Party Services (defined below), are the sole and exclusive property of Privy and Privy retains all right, title, and interest in and to such technology and intellectual property rights. In order to receive Implementation Assistance, Customer agrees to provide reasonable assistance, including providing login credentials, making Customer’s infrastructure directly accessible to Privy, configuring systems in accordance with Documentation and as requested by Privy, as well as other assistance reasonably requested by Privy. This Section 4 does not apply to Free Services.

5. Support; Services Levels

Subject to Customer’s payment of all applicable Fees, Privy will provide support, maintenance, and uptime for each Services in accordance with (i) the support package selected by Customer on the applicable Order Form (if any) and (ii) Privy’s then-current standard Support and Availability Policy (the current version of which is set forth here). The Support and Availability Policy and Privy’s obligations under this section do not apply to Free Services.

6. Services Updates; Beta Products

From time to time, Privy may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Privy shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Privy may make improvements and modifications to the Services at any time in its sole discretion; provided that Privy shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes that might adversely impact Customer’s use of the Services. In the event that Privy provides Customer with access to any beta, free trial, demonstration, pre-release or similar versions of the Services (as may be indicated on an applicable Order Form or otherwise in writing), then (i) Customer acknowledges that such Services are experimental in nature, are provided “AS IS”, and may not be functional on any machine or in any environment, and (ii) Privy’s obligations pursuant to Sections 4 (“Implementation”), 5 (“Support; Service Levels”) and 15 (“Indemnification”) shall not apply to such beta, free or similar versions of Services.

7. Ownership; Feedback

As between the parties, Privy and its licensors retain all right, title, and interest in and to the Services, including any Implementation Assistance provided, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Privy for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may provide suggestions, comments or other feedback to Privy with respect to the Services (“Feedback”). Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Privy notwithstanding anything else. Customer shall, and hereby does, grant to Privy a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Subject to the confidentiality and non-use obligations contained in this Agreement, nothing herein will impair Privy’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.

8. Fees; Payment

Customer shall pay Privy fees for the Services as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced monthly in arrears and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Company uses a third party Payment Processor identified in the applicable Order Form and Customer authorizes Company, through the Payment Processor, to charge Customer’s chosen payment provider (your “Payment Method”) and Customer agrees to the terms, conditions and privacy policies of the Payment Processor, including any provided on the Order Form. Our submission of charges to your Payment Method does not waive our right to seek payment directly from you. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. We reserve the right to correct any errors or mistakes that the Payment Processor makes even if it has already requested or received payment. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Services (excluding taxes based on Privy’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Privy shall invoice Customer in the following month for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Privy’s then-current rates for such higher tier service level), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below), such renewal shall continue to be subject to the payment terms herein unless and until this Agreement is terminated or either party notifies the other of its non-renewal. Customer agrees to accept responsibility for all recurring charges prior to termination or non-renewal and Customer’s continued use of the Services reaffirms that Company is authorized to charge the Payment Method for the Services. If the Agreement is terminated before the end of a 30-day period, Customer will not be eligible for a prorated refund of Fees paid. PAID SUBSCRIPTIONS CANNOT BE TERMINATED BEFORE THE END OF THE PERIOD FOR WHICH YOU HAVE ALREADY PAID AND EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS, THE COMPANY WILL NOT REFUND ANY FEES ALREADY PAID. IF YOU DO NOT WANT TO CONTINUE TO BE CHARGED ON A RECURRING MONTHLY BASIS, YOU MUST CANCEL THE APPLICABLE SERVICE BY REACHING OUT VIA EMAIL TO YOUR ACCOUNT MANAGER (OR AT SUPPORT@PRIVY.IO).

9. Restrictions

Except as expressly set forth in this Agreement, Customer shall not (and shall not allow any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Privy product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Service; (viii) bypass any measures Privy may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Service) or (ix) make available to Privy any Customer Data (as defined below) without having obtained full permission and required consents or rights to do so. Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Data onto the Service. Customer (A) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (B) shall not use the Services in a manner that violates any third party intellectual property, contractual or other proprietary rights.

10. Customer Data

For purposes of this Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services. Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein, as well as to any pre-existing intellectual property owned or developed by Customer or on its behalf independently of this Agreement. Customer, not Privy, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer represents and warrants that it has all rights and consents necessary to provide the Customer Data to Privy as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Privy shall use commercially reasonable efforts to maintain the security and integrity of the Services and the Customer Data. Privy is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to Privy’s gross negligence or willful misconduct. Customer is responsible for the use of the Services by any person to whom Customer has given access to the Services, even if Customer did not authorize such use. Customer acknowledges that the Services may enable Users to control the use of their data. Customer retains full responsibility for any services it renders to Users, and Privy does not assume any responsibility such services. Notwithstanding anything to the contrary, Customer acknowledges and agrees that Privy may (i) internally use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer, (B) generating Aggregated Anonymous Data (as defined below), and (ii) freely use, retain and make available Aggregated Anonymous Data for Privy’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Privy’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Privy in connection with Customer’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Customer.

11. Confidentiality

For purposes of this Agreement, “Confidential Information” shall mean to the extent previously, presently or subsequently disclosed by or for either party (the “Disclosing Party”) to the other party (the “Receiving Party”) all financial, business, legal and technical information of the Disclosing Party or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and other derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information shall not include any information that (i) was rightfully known to the Receiving Party without restriction before receipt from the Disclosing Party, (ii) is rightfully disclosed to the Receiving Party without restriction by a third party, (iii) is or becomes generally known to the public without violation of this Agreement by the Receiving Party, or (iv) is independently developed by the Receiving Party or its employees without access to or reliance on such information. The pricing information set forth in an applicable Order Form, Documentation and Feedback are Privy’s Confidential Information, and the Customer Data is Customer’s Confidential Information. Each party shall treat as confidential all Confidential Information of the other party, shall not use such Confidential Information except as permitted under this Agreement, and shall not disclose such Confidential Information to any third party except (A) as expressly permitted herein without the Disclosing Party’s written consent or (B) to Receiving Party’s employees, contractors and agents that have a need-to-know such Confidential Information for the sole purpose of performing its obligations under this Agreement and who are bound by written agreements that include confidentiality and non-use obligations at least as restrictive as the terms hereunder. The Receiving Party shall be responsible for its employees’, contractors’ and agents’ compliance with the terms hereunder. The Receiving Party shall use at least the same degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of the Disclosing Party’s Confidential Information, but in no event less than reasonable care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse or unauthorized disclosure of any of the Confidential Information. In the event of any termination or expiration of this Agreement, the Receiving Party will either return or, at the Disclosing Party’s request, destroy the Confidential Information of the Disclosing Party; provided however, that the Receiving Party may retain copies of the Disclosing Party’s Confidential Information for routine backup and archival purposes subject to the confidentiality and non-use obligations set forth herein. The Receiving Party may make disclosures required by law or court order provided that, if permissible pursuant to applicable law, the Receiving Party shall promptly notify the Disclosing Party of any disclosure requirement and provide reasonable assistance to the Disclosing Party in the Disclosing Party’s efforts to prevent and/or limit the disclosure.

12. Third Party Services

Customer acknowledges and agrees that the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated, licensed or provided by third parties, including without limitation software that is subject to open source licenses (“Third Party Services”). Privy is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (including any Customer Data or other information relating thereto) and Customer agrees to comply with all applicable terms governing use of Third Party Services. Privy does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

13. Term; Termination

This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (i) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (ii) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Privy may suspend or limit Customer’s access to or use of the Services if (A) Customer’s account is more than five (5) days past due for any undisputed fees, provided that Customer provides to Privy prior written notice of any disputed fees at least fourteen (14) days prior to the date on which payment is due, or (B) Customer’s use of the Services results in (or is reasonably likely to result in) damage to or material degradation of the Services which interferes with Privy’s ability to provide access to the Services to other customers; provided that in the case of subsection (B): (1) Privy shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (2) prior to any such suspension or limitation, Privy shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; and (3) Privy shall reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue promptly following receipt of such notice. If Customer is subject to insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts, dissolves or becomes insolvent, or ceases to conduct its business, Users may be able to retrieve their Wallets via a Privy-hosted feature, but Privy makes no representations as to its ability to retrieve Wallets and hereby disclaims all liabilities with respect thereto, except with respect to providing availability to Privy Wallet Shard. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. For clarity, any services provided by Privy to Customer, including the data export set out above, and any assistance in exporting the Customer Data, shall be billable at Privy’s standard rates then in effect.

14. Representations, Warranties and Covenants

• a. Each party represents and warrants to the other party that: (i) it is duly incorporated or formed, validly existing and in good standing under the laws of the country, province or state in which it is incorporated or formed; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement, to perform its obligations and to grant the rights hereunder; and (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms.

• b. Privy represents and warrants to Customer that: (i) the Services will be provided in a good and workmanlike manner; (ii) to Privy’s knowledge, the Services provided hereunder do not infringe, misappropriate or violate any third party’s intellectual property; and (iii) the Services will perform in accordance with the Documentation provided in all material respects. In the event that the Services fail to satisfy the warranties hereunder, Privy will, at its own expense, as Customer’s sole and exclusive remedy, either promptly repair or replace the Services with a solution that materially conforms to the Documentation. The warranty set forth in this Section 14(b) shall not apply to the extent there has been: (A) an unauthorized use of the Services by Customer in a manner not permitted hereunder or otherwise by Privy, in accordance with Documentation or applicable law; or (B) an alteration, modification or combination of the Services with, if applicable, other technology or intellectual property not authorized by Privy by Customer or other third party other than Privy.

15. Indemnification

Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) in the case of Customer as Indemnitor, that the Customer Data, when used as permitted by this Agreement, or Customer’s use of the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right, including any rights of privacy, or violates any applicable law, or (ii) in the case of Privy as Indemnitor, the Services infringes, violates, or misappropriates any third party intellectual property or proprietary right, provided that Privy has had a reasonable opportunity to either repair or replace the Services with a solution that cures a failure to satisfy the warranties provided under and in accordance with Section 14(b). Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (A) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (B) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (C) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Privy do not apply with respect to the Services or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (1) not created or provided by Privy (including without limitation any Customer Data), (2) integrated or made in whole or in part in accordance to Customer specifications, (3) modified after delivery by Privy, (4) combined by Customer with other products, processes or materials not provided by Privy (where the alleged Losses arise from or relate to such combination), (5) where Customer continues allegedly infringing activity after being expressly notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (6) Customer’s use of the Services is not strictly in accordance herewith. Additionally, Customer shall defend, indemnify, and hold harmless Privy, its affiliates and its affiliates’ employees, contractors, directors, suppliers and representative from all Losses that arise from or relate to Customers’ or Users’ acts or omissions that jeopardize the accessibility and security of Wallets offered or provisioned by Privy, including from lost or compromised Credentials or corrupt Wallet files. Notwithstanding anything to the contrary herein, Privy shall have no obligation under this Section 15 with respect to Free Services. Privy’s indemnification obligations pursuant to this Section 15 are Customer’s sole and exclusive remedy with respect to any claim that the Services infringe, violate or misappropriate any unaffiliated third party’s intellectual property.

16. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

17. Limitation of Liability

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 15, THE PARTIES’ BREACH OF CONFIDENTIALITY AND NON-USE OBLIGATIONS UNDER SECTION 11 AND CUSTOMER’S BREACH OF SECTION 9, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), (III) THIRD-PARTY SOFTWARE USED WITH THE SERVICES, OR (IV) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO PRIVY HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

18. Miscellaneous

This Agreement represents the entire agreement between Customer and Privy with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Privy with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties’ consent to exclusive jurisdiction and venue in the state and federal courts located in New York, New York. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party; provided that if Customer is a user of Free Services, then Privy may amend or modify this Agreement by (i) posting a new version of this Agreement on the Services, and (ii) providing notice to Customer via email or other reasonable means. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of Services attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s prior written consent; provided that either party may assign this Agreement without the other party’s prior written consent in connection with a merger, acquisition, change of control or sale of all or substantially all of its assets. Customer acknowledges that Privy may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.