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VELOCITY ENGINE PLATFORM TERMS OF SERVICE AGREEMENT – AGENCY PARTNERS

These Agency Partner Terms of Service (this “Agreement”) are entered into by and between Velocity Engine, Inc., a Delaware corporation, with its principal place of business located at 3801 N. Capital of Texas Hwy, Suite E-240, #81, Austin, TX 78746 (“Velocity Engine”), and the agency partner identified in an Order Form that references this Agreement (“Agency”), effective as of the effective date of the first such Order Form (the “Effective Date”). Agency accepts this Agreement by executing an Order Form that references it.

1.     DEFINITIONS

“Account” means the account registered in the name of Agency to access the Velocity Engine Service, including any sub-accounts registered for Authorized Users.

“Account Data” means the account information and data relating to Agency and/or its Authorized Users provided by or on behalf of Agency, which may include, name, location, e-mail address or other contact information, and billing information.

“Agency Materials” means any and all data (including, Account Data), information, content, and/or other materials that are uploaded, submitted, and/or transmitted to the Platform, input into the AI Features, or otherwise provided to Velocity Engine, by or on behalf Agency and/or any Authorized User in connection with the use of the Velocity Engine Platform, but expressly excluding Velocity Engine Materials.

“Agency Services” means collectively or singularly, Agency’s professional services provided by Agency to Clients.

“Agency Users” Agency’s employees, contractors, representatives, and/or agents, each who are authorized by Agency to use the Velocity Engine Service.

“AI Features” means the generative artificial intelligence and other machine learning functionality or features available through the Platform.

“AI Input” means the Agency Materials and/or Velocity Engine Materials, including in the form of prompts or queries, input by or on behalf of Agency or its Authorized Users into the AI Features.

“AI Output” means the output generated through the submission of AI Input to the AI Features.

“Authorized Users” means Agency Users and Client Users.

“Beta Features” means any beta versions of and/or beta features and/or functionality of the Platform, which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description, and made available by Velocity Engine to Agency hereunder.

“Client” means the client of Agency specified in the applicable Order Form.

“Client Agreement” has the meaning given to such term in Section 3.2.

“Client Users” means any employees of the Client who have been authorized by Agency to use, or have otherwise been granted access to, the Platform in connection with the Agency Services

“Documentation” means Velocity Engine’s then-current technical and functional documentation for the Platform made available to Agency hereunder.

“Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.

"Order Form" means one or more written and/or electronic order form(s) that is mutually agreed upon and executed by the parties specifying: (a) the Client and Agency Services provided to such Client, (b) the Subscription and Subscription Term, (c) any Implementation Services or other services to be performed by Velocity Engine, and (d) the applicable fees payable to Velocity Engine by Agency for the Subscription and/or other services set forth in such Order Form. Each Order Form shall reference and incorporate this Agreement.

“Platform” means Velocity Engine’s proprietary hosted software platform, made available by Velocity Engine to Agency on a remote online basis pursuant to this Agreement, and any and all modified, updated, or enhanced versions thereof.

“Subscription” means the applicable subscription tier purchased by Agency set forth in the applicable Order Form to access the Velocity Engine Service.

“Subscription Term” means the term of Agency’s subscription license specified in the applicable Order Form, and any renewal(s) thereof pursuant to Section 6.2, during which the Agency is authorized to access and use the Velocity Engine Service in connection with the Agency Services provided to the applicable Client.

“Term” has the meaning given to such term in Section 6.1.

“Territory” the United States of America.

“Usage Parameters” means the maximum number of campaign assets and maximum number of user seats (if any) included in the subscription tier purchased by Agency as specified on the applicable Order Form(s), and any other parameters or restrictions applicable to the applicable Subscription purchased by Agency and/or otherwise specified in the Documentation, Order Form, or in writing by Velocity Engine regarding the use of the Velocity Engine Service by Agency and/or its Authorized Users.

“Velocity Engine Marks” means Velocity Engine’s trademarks, trade names and logos.

“Velocity Engine Materials” means any templates, documents, forms, content and/or other materials that Velocity Engine makes available to Agency for use in connection with the Velocity Engine Service.

“Velocity Engine Service” means, as applicable, the operation of and provision of access to the Platform and AI Features, Beta Features, Documentation, Velocity Engine Materials, Support, and/or Implementation Services that are made available or provided by Velocity Engine to Agency and its Authorized Users under this Agreement

2.      OVERVIEW

2.1      Scope; Authorization. This Agreement sets forth the terms and conditions under which Velocity Engine authorizes Agency the right to (a) market and promote the Platform to Agency’s Clients in connection with the Agency Services, and (b) purchase Subscriptions for Agency’s use of the Velocity Engine Service in connection with the Agency Services provided to Clients. Subject to the terms and conditions of this Agreement, Velocity Engine authorizes Agency, on a non-exclusive basis, to market and promote the Platform to Agency’s Clients located in the Territory, and solely as part of and/or in connection with Agency Services. Agency’s rights and obligations under this Agreement are non-sublicensable and non-transferable. Agency shall not make available the Velocity Engine Service (or any part thereof ) to any person or entity located outside, or for use outside, the Territory, unless Velocity Engine has agreed in writing (which approval may be given by e-mail by Velocity Engine’s authorized representative) to such use outside the Territory on a case-by-case basis (which may be subject to such additional terms as Velocity Engine may require, in its sole discretion). Agency shall not actively advertise or promote the Velocity Engine Service outside the Territory, without Velocity Engine’s prior written consent. Any enquiries from persons or entities outside the Territory shall be referred by Agency to Velocity Engine. Nothing in this Agreement will be deemed to grant Agency the right to re-frame, operate, host, distribute or otherwise control the Velocity Engine Service (or any part thereof).

2.2      Subscriptions; Order Forms. Agency acknowledges and agrees that (a) a separate Subscription is required to be purchased by Agency for each Client, and (b) the Agency’s use of the Velocity Engine Service, and any access to the Platform provided to Clients, and must be used and provided by Agency: (i) in combination with the Agency Services provided by Agency to the applicable Client, and not on a standalone basis, (ii) subject to any applicable Usage Parameters; and (iii) pursuant to a Client Agreement that complies with Section 3.2 below. Each Order Form must be mutually agreed upon and executed by the parties and will be governed by the terms of this Agreement. The term “Agreement” as used herein, includes the terms of this Agreement and all Order Forms executed pursuant to this Agreement whether on or after the Effective Date. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of this Agreement shall govern, and the conflicting or inconsistent provision in the Order Form will have no force or effect unless expressly stated otherwise in the Order Form.

2.3      Non-Exclusive Agreement. This Agreement is non-exclusive. Subject to compliance with the provisions of this Agreement, each party shall be free to: (a) enter similar arrangements with other third parties that provide the same or similar products or services as the other party, and (b) develop, have developed, or license products and/or services that compete with the other party’s products and/or services; provided that; in each case, such party does not misuses, infringe, misappropriate or otherwise violate the other party’s Intellectual Property Rights or Confidential Information, or otherwise violate any terms of this Agreement, in carrying out such activities.

3.      AGENCY OBLIGATIONS

3.1      Marketing & Distribution Obligations.

3.1.1      Agency shall (i) ensure that each Client has entered into a Client Agreement that complies with Section 3.2, including, without limitation, incorporation of the Mandatory Terms; (ii) not engage in illegal, or any deceptive, unethical practices in its marketing and distribution of the Platform, or make false or misleading representations regarding the function and performance of the Velocity Engine Service; (iii) observe and comply with all applicable laws (including, in connection with the Agency Services); (iv) maintain relationships with Clients; and (v) conduct its business in such manner as will reflect favorably on, and will not disparage, Velocity Engine, or the Velocity Engine Service or any other products or services of Velocity Engine, or may otherwise cause a decrease in the goodwill and reputation of any Velocity Engine Marks.

3.1.2      Agency’s rights under Section 2.1 are subject to the requirement that Agency use the Velocity Engine Marks in connection with its advertising, promotion and marketing of the Platform in the Territory and in related brochures and other materials, provided, however, that Agency may use its name to identify itself as an “agency partner” of Velocity Engine in the Territory, subject to the terms of this Agreement. Any marketing materials created or used by Agency shall comply with Velocity Engine’s then-current marketing and advertising guidelines concerning independently produced advertising and publicity material. Agency agrees not to associate any marketing materials with content that is unlawful in any manner, or which is otherwise harmful, threatening, defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, or otherwise objectionable in Velocity Engine’s sole discretion. Agency further agrees not to send unsolicited electronic messages to multiple unrelated recipients (“Spamming”) in promoting the Platform, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.

3.1.3      Agency shall not make any warranties, representations, promises or commitments on behalf of Velocity Engine with respect to the Velocity Engine Service without the prior written authorization of Velocity Engine.

3.1.4      Agency shall be solely and exclusively responsible for the performance and provision of the Agency Services to the Client.

3.2      Mandatory Terms. Prior to permitting any Client User to access the Platform, or use the Platform to provide Agency Services to a Client, Agency must enter into a legally binding written agreement with each Client that contains terms that are no less protective of Velocity Engine than the terms set forth in this Agreement (the “Client Agreement”), including without limitation, the terms set forth in the following Sections: 4.4 (Evaluation Version), 4.5 (Beta Features), 4.6 (AI Features), 4.7 (Agency Materials & AI Output), 4.9 (Prohibited Uses), 4.10 (Third Party Integrations), 6.5 (Effect of Termination), 7 (Proprietary Rights), 8 (Confidentiality), 9.1 (Personal Data, 10 (Indemnification), 11 (Disclaimers), 12 (Limitation of Liability), 13 (Basis of the Bargain), 14.3 (Export Control), 14.4 (Government Licenses), 14.8 (Electronic Communications), and 14.10 (Third Party Rights) (collectively, the “Mandatory Terms”). If Agency makes any claim, representation or warranty regarding the Velocity Engine Service (or any part thereof) that is different from or in addition to those warranties expressly specified as “passthrough warranties” in this Agreement (hereinafter, the “Passthrough Warranty”), Agency shall be solely and exclusively responsible for such claim, representation or warranty and Velocity Engine shall have no liability for any such claim, representation or warranty. Agency agrees to diligently enforce the terms of each Client Agreement, and further agrees to work diligently and in good faith with Velocity Engine to enforce and cause Client and Client Users to adhere to the Client Agreement in the event of any actual or suspected breach thereof by any Client User with respect to the Velocity Engine Service. Upon Velocity Engine’s request, Agency will provide Velocity Engine with a copy of each Client Agreement and all documents related thereto.

3.3      Agency Trademark License. Subject to the terms and conditions contained herein, Agency grants Velocity Engine a personal, non-exclusive, non-transferable (except in accordance with Section 14.9 below) license to use the Agency’s trademarks, trade names and logos (“Agency Marks”) solely in connection with any marketing and/or promotion of the Agency Services in connection with the Velocity Engine Service and the parties’ relationship hereunder; provided that, such use is in accordance with Agency’s then current guidelines for using the Agency Marks. Velocity Engine agrees that all use of Agency Marks shall inure to the benefit of and be on behalf of Agency. Nothing in this Agreement grants Velocity Engine ownership or any rights in or to use the Agency Marks, except in accordance with this license. Velocity Engine will not use any Agency Mark as part of Velocity Engine’s trade name, service mark, or trademark.

3.4      Accounts. Agency agrees to, and shall ensure that its Authorized Users, provide and maintain Account Data that is true, accurate, current, up to date, and complete. Agency agrees that it will not, and will not permit any Authorized User or other third party to, create an Account or sign up to access the Velocity Engine Service using a false identity or fictitious name or information. Agency understands and agrees that Agency is solely responsible for maintaining the confidentiality of and protecting Agency’s and its Authorized Users’ passwords, license keys and/or other access credentials for the Account. Agency is solely responsible for any activity occurring under the Account, regardless of whether such activity is authorized by Agency. Agency agrees to notify Velocity Engine immediately of any unauthorized use of or access to the Account.

3.5      Administrators. Agency shall designate an administrator or administrators (each, an “Administrator”), that is responsible for administration and management of the Account for purposes of managing access to the Platform under the Account, which may include, (a) designating and inviting Authorized Users, in each case, to be provisioned a sub-Account, (b) replacing, or appointing additional, Administrators, and (c) where available as part of the functionality of the Platform, assigning or designating certain permissions and access rights to Authorized Users, including, but not limited to, assigning admin rights and permissions (“Permissions”). Agency acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to access and use the Platform and/or administration over the Account. Agency acknowledges and agrees that Agency is solely responsible and liable for its Administrators’ administration and management of the Account, including, but not limited to, the management of inviting and granting of access to the Platform and Permissions to Authorized Users.

3.6      Authorized Users. Agency agrees that it shall (a) not permit any person other than Authorized Users to access or use the Platform or Velocity Engine Materials, (b) ensure that Authorized Users use the Velocity Engine Service solely in accordance with this Agreement and the applicable Usage Parameters. Agency shall be responsible for its Authorized Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any Authorized User shall be deemed a breach of this Agreement by Agency. Agency agrees to promptly notify Velocity Engine of any unauthorized use of or access to Agency’s or any Authorized User’s Account. For the avoidance of doubt, “Administrators” shall be deemed Authorized Users.

3.7      Client Fees. Agency shall determine the price it charges to Clients, if any, for the Subscription licenses purchased by Agency in the provision of Agency Services to such Clients, and shall be responsible for the collection of all fees and charges directly from each Client. Velocity Engine shall have no liability for costs, expenses or charges due to Agency from any Client. A Client’s failure to make payments due to Agency shall not relieve Agency of its payment obligations to Velocity Engine under this Agreement.

3.8      Compliance with Laws. Agency will at its own expense, make, obtain and maintain in force at all times during the Term, all reports, registrations, licenses, permits and authorizations required to perform its obligations under this Agreement in the Territory. Agency will provide proof of such reports, registrations, licenses, permits and authorizations to Velocity Engine upon request. Agency will at all times comply with all applicable laws and regulations in performing its obligations hereunder (including any Agency Services). Without limiting the generality of the foregoing, Agency represents that it is aware of the Foreign Corrupt Practices Act (FCPA) of the United States and that it has appropriately instructed its employees, agents and representatives concerning requirements and restrictions of the FCPA. Agency shall not take any actions which would constitute a violation of the FCPA or which would cause Velocity Engine to be in violation of the FCPA.

4.      LICENSE GRANTS; ACCESS TO THE VELOCITY ENGINE SERVICE

4.1      Demonstration License. Subject to the terms and conditions of this Agreement, Velocity Engine grants to Agency a non-exclusive and non-transferable limited license, to access, use, perform and display the Platform, solely on Agency’s own computer for the purpose of conducting demonstrations of the Platform as combined with and/or integrated into the Agency Services, to prospective customers in the Territory, and in accordance with applicable Usage Parameters. Unless otherwise specified by Velocity Engine in writing, the demonstration licenses for standard promotional purposes will be supplied free of charge. The Platform will be made available to Agency under this Agreement in object code only; no source code is provided to Agency under this Agreement.

4.2      Velocity Engine Trademark License. Subject to the terms and conditions contained herein, Velocity Engine grants Agency, during the Term. a non-exclusive, non-transferable (except in accordance with Section 14.9 below), license to use the Velocity Engine Marks solely in connection with the marketing and promotion of the Platform in connection with the Agency Services, provided that such use is in accordance with Velocity Engine's then current guidelines for using the Velocity Engine Marks. Agency agrees that all use of Velocity Engine Marks shall inure to the benefit of and be on behalf of Velocity Engine. Nothing in this Agreement grants Agency ownership or any rights in or to use the Velocity Engine Marks, except in accordance with this license. Agency will not (a) alter or remove any Velocity Engine Mark applied to, or used in conjunction with Velocity Engine Service, or (b) use any Velocity Engine Mark as part of Agency's trade name, service mark, or trademark.

4.3      Right to Access to the Platform. Subject to the terms and conditions of this Agreement, Velocity Engine grants to Agency a personal, non-exclusive, non-sublicensable, non-transferable limited right, during the applicable Subscription Term or Evaluation Period (as defined in and subject to Section 4.4 below), to: (a) permit Agency Users to access and use the Platform, over the internet, solely for Agency’s internal business purposes to facilitate, manage and support its Client’s use of the Platform as part of the Agency Services, and (b) permit its Client Users to access and use the Platform, over the internet, solely for the Client’s use of the Platform as part of the Agency Services; in each case, in accordance with this Agreement and the Documentation, and subject to any applicable Usage Parameters or restrictions specified in the Documentation or by Velocity Engine in writing regarding the scope of use of the Velocity Engine Service.

4.4      Evaluation Version. Notwithstanding Section 4.3, if Agency has obtained the Velocity Engine Service (or any part thereof) for a proof of concept or otherwise on an evaluation basis for a specific Client (the “Evaluation Version”), Agency understands and agrees that the license set forth in Section 4.3 is granted to Agency by Velocity Engine: (a) solely for the evaluation period set forth on the Order Form (the “Evaluation Period”), (b) solely for the Client’s own internal evaluation purposes of the Platform in connection with the Agency Services, and (c) subject to applicable Usage Parameters and any technical limitations implemented by Velocity Engine in the Evaluation Version. Unless otherwise set forth on the Order Form, Agency acknowledges and agrees that the Subscription Term will automatically commence upon expiration of the Evaluation Period, unless Agency has provided Velocity Engine with prior written notice of its intent to terminate the Agreement and/or Order Form prior to such expiration.

4.5      Beta Features. If Agency elects to access any Beta Features, Velocity Engine grants to Agency a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Features solely for Agency’s internal evaluation and subject to any and all technical limitations implemented in the Beta Features and/or other applicable limitations by Velocity Engine for the Beta Features. Beta Features are provided as-is, are not supported, and may be subject to additional terms as specified by Velocity Engine in writing and/or in the applicable documentation for the Beta Features. Nothing in this Agreement requires or otherwise obligates Velocity Engine to make available any Beta Features to Agency. Velocity Engine reserves the right to terminate Agency’s access to any Beta Features at any time, for any reason.

4.6      AI Features. The Platform utilizes and/or integrates AI Features which may be developed and owned by Velocity Engine or third parties. Certain AI Features provided by third parties may be subject to additional terms, conditions or policies (collectively, “AI Policies”). Agency agrees to and shall ensure its Authorized Users use the AI Features in accordance with the authorized use of the Platform as set forth in this Agreement and any applicable AI Policies. Velocity Engine’s current list of third party AI Features and any applicable AI Policies are available at www.velocityengine.co/models. If Agency does not agree to comply with the AI Policies (including, any updates thereto), Agency may notify Velocity Engine thereof and Velocity Engine shall disable access to the AI Features. Agency Materials processed using the AI Features and/or any AI Inputs or AI Outputs based on Agency Materials will not be used by Velocity Engine or third parties for any reason other than as necessary to provide Agency the AI Features as part of the Platform (including adaptive prompting as described below) or as expressly permitted in this Agreement, as required by law, or as necessary to enforce any AI Policies. Velocity Engine shall not use Agency Materials, or any AI Inputs or AI Outputs based on Agency Materials for training, improving, or developing its AI Features or other machine learning models unless the Agency elects to opt-in to such use by Velocity Engine. For the avoidance of doubt, Agency acknowledges and agrees that the Velocity Engine Service and AI Features utilize adaptive prompting based on the AI Inputs and AI Outputs; provided that, any such adaptive prompts generated from Agency’s use of the Velocity Engine Service shall only be made available to Agency for Agency’s benefit. Agency acknowledges, understands and agrees that: (a) artificial intelligence and machine learning are rapidly evolving fields of study, (b) given the probabilistic nature of machine learning, use of the AI Features may in some situations result in incorrect AI Output that does not accurately reflect real people, places, or facts or conform to Agency’s specifications, prompts or requirements, and (c) Agency is responsible for evaluating the accuracy of any AI Output as appropriate for Agency’s use case, including by using manual human review of the AI Output. Without limitation to Section 4.9, Agency agrees that it will not, and it will not permit any Authorized User other person to: (i) use the AI Features or any AI Output to develop, train or improve any AI or ML models (separate from authorized use of the Platform under this Agreement); (ii) represent any AI Output as being approved or vetted by Velocity Engine or our affiliates, personnel, service providers, agents, or representatives; or (iii) represent any AI Output as being an original work or a wholly human-generated work. AI OUTPUTS ARE GENERATED THROUGH MACHINE LEARNING PROCESSES AND ARE NOT TESTED, VERIFIED, ENDORSED OR GUARANTEED TO BE ACCURATE, COMPLETE OR CURRENT BY VELOCITY ENGINE. AGENCY IS SOLELY RESPONSIBLE FOR VERIFYING THAT ALL AI OUTPUTS ARE ACCURATE AND APPROPRIATE FOR ANY AND ALL OF AGENCY’S USE CASES OR APPLICATIONS.

4.7      Agency Materials & AI Output. Agency acknowledges and agrees that Agency, not Velocity Engine, is solely responsible for any and all Agency Materials and AI Output submitted, transmitted, contributed, provided, generated, and/or created by Agency and/or its Authorized Users in connection with the use of the Velocity Engine Service, including its legality, reliability, security, accuracy, and appropriateness. Agency hereby grants to Velocity Engine a worldwide, royalty-free, non-exclusive license to process and use (including through the use of subcontractors) Agency Materials and AI Output generated by or on behalf of Agency solely to the extent necessary to provide Agency the Velocity Engine Service and other services provided by Velocity Engine to Agency hereunder or as otherwise expressly permitted in this Agreement. Agency represents and warrants that Agency has all necessary ownership, rights, authorizations and consents to transmit, submit, and otherwise use the Agency Materials in connection with the Velocity Engine Service and to grant Velocity Engine the licenses in and to the Agency Materials as set forth in this Agreement.

4.8      Support and Implementation Services. Velocity Engine will use commercially reasonable efforts to provide Agency remote technical support by email and/or phone for Agency’s use of the Velocity Engine Service during Velocity Engine’s normal business hours (“Support”). To submit a request for Support please contact Velocity Engine here: support@velocityengine.ai. Velocity Engine may also provide Agency with certain implementation, integration and/or other professional services as specified on the applicable Order Form (the “Implementation Services”). The scope, timeline, and tasks of the parties with respect to such Implementation Services shall be as specified in an Order Form or as otherwise mutually agreed upon by the parties in writing. Velocity Engine may, but has no obligation to provide any Support or Implementation Services directly to, or respond to any requests from, any Client or Client Users (unless otherwise agreed in writing by Velocity Engine on a case-by-case basis).

4.9      Prohibited Uses. Agency acknowledges that the Velocity Engine Service embodies, contains, and constitutes valuable trade secrets of Velocity Engine and its licensors and suppliers. Accordingly, Agency agrees that it will not, and it will not permit any third party (including, without limitation, any Authorized User) to:

4.9.1      use or allow access to the Velocity Engine Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable Usage Parameters or restrictions;

4.9.2      license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Velocity Engine Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement;

4.9.3      access or use the Velocity Engine Service (or any part or component thereof) for the purpose of developing competitive products or services or for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose;

4.9.4      reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the Velocity Engine Service;

4.9.5      use the Velocity Engine Service (or any part thereof) in a way, including, without limitation, to store, transmit, or upload any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;

4.9.6      upload, distribute or disseminate any unlawful, defamatory, pornographic, harassing, abusive, fraudulent, obscene, or otherwise objectionable content through or in connection with the use of the Velocity Engine Service (or any part thereof);

4.9.7      remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Velocity Engine or its licensors and/or suppliers on or within any part of the Velocity Engine Service;

4.9.8      interfere with or disrupt the integrity or performance of the Velocity Engine Service, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Velocity Engine Service;

4.9.9      take any action that imposes an unreasonable or disproportionately large load on the Velocity Engine Service (or any part or component thereof), or its underlying infrastructure and systems;

4.9.10      attempt to gain unauthorized access to the Velocity Engine Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by Velocity Engine, in the Velocity Engine Service;

4.9.11      frame, mirror, or utilize framing techniques to enclose the Velocity Engine Service or any portion thereof;

4.9.12      use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Velocity Engine Service (or any part thereof), and/or the personal information of others without Velocity Engine’s prior written permission or authorization;

4.9.13      use the Velocity Engine Service to store or transmit any malicious or unsolicited code or software;

4.9.14      impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Agency’s affiliation with any person or entity or falsify age or date of birth or any other eligibility requirements; or

4.9.15      use the Velocity Engine Service (or any part thereof), or transmit Agency Materials, AI Output, or any other content, data or materials, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.

4.10      Third Party Integrations. The Velocity Engine Service may contain links to, or otherwise allow Agency and/or its Authorized Users to connect to and/or use, certain third party products, data, services, websites, applications, software, scripts and/or APIs (all of the foregoing, collectively “Third Party Integrations”). Third Party Integrations are not owned, controlled, or operated by Velocity Engine and are subject to separate terms and conditions of the applicable third party provider. If Agency or any Authorized User decides to access or use any Third Party Integrations, such use is and shall be governed solely by the terms and conditions for such Third Party Integrations. Velocity Engine does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle, secure, protect or use Agency’s data. Velocity Engine is not liable for any damage or loss caused or alleged to be caused by or in connection with Agency's or any Authorized User’s access or use of any such Third Party Integrations, or Agency's reliance on the privacy practices or other policies of such Third Party Integrations. VELOCITY ENGINE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY INTEGRATIONS, AND VELOCITY ENGINE WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN AGENCY AND THE THIRD PARTY PROVIDERS OF SUCH THIRD PARTY INTEGRATIONS.

5.      FEES; PAYMENT TERMS

5.1      Fees. Agency shall pay the fees set forth on the applicable Order Form for Agency’s use of the Velocity Engine Service (including, where applicable, fees for the Evaluation Version). The fees payable by Agency for during the Subscription Term shall be based on the subscription tier purchased by Agency, and except as otherwise set forth in the Order Form, the subscription fees payable by Agency will remain fixed during the Subscription Term unless Agency (a) exceeds any Usage Parameters or restrictions specified in the Order Form; or (b) upgrades the subscription tier, increases the Usage Parameters, and/or subscribes to any additional features, functionality, or products which are subject to additional fees. Upon any increase in subscription fees as described above, Agency shall pay the subscription fees for such increase on pro-rated basis for the remainder of Agency’s then-current Subscription Term, and all applicable subscription fees shall renew in full at the start of any subsequent renewal term.

5.2      Support and Implementation Fees. Velocity Engine’s standard Support offering is included in the subscription fees. If Agency requests any additional or enhanced Support beyond the standard offering, such Support may be subject to additional fees, which shall be set forth in the applicable Order Form entered into by Agency and Velocity Engine for the purchase of such Support. If Agency purchases Implementation Services, Agency shall pay the applicable fees as set forth in the applicable Order Form.

5.3      Payment Terms. All fees are due and payable by Agency in advance of the Subscription Term or Evaluation Period, as applicable, unless otherwise expressly and mutually agreed to by Agency and Velocity Engine in writing. Invoiced fees shall be due and payable by Agency to Velocity Engine within thirty (30) days after Agency’s receipt of the applicable invoice for such fees. Agency agrees to pay interest at the rate of 1.5% per month (or the maximum rate allowed by applicable law, whichever is lower) on amounts past due, and to pay all reasonable costs, including attorneys’ fees and costs, associated with Velocity Engine’s collection of past due amounts. If payment is not received or cannot be charged to Agency for any reason in advance, Velocity Engine reserves the right to suspend or terminate Agency’s and its Authorized User’s access to Velocity Engine Service and/or terminate this Agreement in accordance with Section 6.4(a). All fees are non-refundable and non-cancellable, and will be paid in U.S. dollars.

5.4      Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Agency is and shall be responsible for payment of all such taxes (other than taxes based on Velocity Engine’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of Velocity Engine Service, or performance of any services by Velocity Engine hereunder.

5.5      Changes to Fees. Velocity Engine reserves the right to change the subscription fees or applicable charges and to institute new charges and subscription fees upon each renewal of a Subscription. Velocity Engine will use reasonable efforts to provide notice of any such changes at least thirty (30) days prior to the end of Agency’s then-current Subscription Term, and any such changes will not take effect for Agency until the start of the next Subscription Term.

5.6      Records; Audit. Agency shall maintain true and correct records related to the distribution of licenses to the Platform to Clients in connection with the Agency Services, the Client Agreements and any and all activities with current Clients and potential customers associated with the marketing, promotion, and access to the Platform, including through demonstrations, (the “Sales Records”) for at least one (1) year after the expiration or termination of this Agreement. Velocity Engine shall be entitled to audit the Sales Records upon thirty (30) days prior written notice. Any such audit shall be performed at Velocity Engine’s expense during Agency’s normal business hours and in a manner that does not unreasonably interfere with Agency’s normal business activities and operations. If an audit reveals underpayment or over-retention of monies by Agency, Agency shall, within thirty (30) days after conclusion of the audit, pay Velocity Engine the amounts due as a result of the audit. If Agency has underpaid or retained monies otherwise due to Velocity Engine that, in the aggregate, equal more than five percent (5%), then Agency shall also bear the reasonable cost of the audit.

6.      TERM; TERMINATION

6.1      Term. The term of this Agreement will begin on the Effective Date and remain in effect for an initial term of one (1) year (the “Initial Term”), unless earlier terminated as set forth below. Thereafter, this Agreement shall auto renew for successive renewal terms of one (1) year (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”) at the end of the then-current term, unless earlier terminated as set forth below or either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

6.2      Order Forms; Subscriptions. Each Order Form shall commence on the effective date thereof and continue until the expiration of the Subscription Term set forth therein. Unless otherwise set forth on the applicable Order Form, each Subscription Term will automatically renew for successive terms equal to the initial Subscription Term, unless either party provides the other written notice of non-renewal at least sixty (60) days prior to the end of the then-current Subscription Term.

6.3      Termination for Convenience. Either party may terminate this Agreement for convenience upon sixty (60) days prior written notice to the other party; provided that, unless otherwise agreed in writing, all Order Forms in effect as of the effective date of termination shall continue in full force in effect for until the expiration of the then-current Subscription Term of such Order Form. The terms of this Agreement shall continue in full force and effect with respect to such Order Forms.

6.4      Termination for Cause. Either party may terminate this Agreement immediately upon written notice if the other party (a) materially breaches its obligations under this Agreement and does not remedy such material breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non-breaching party; or (b) becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or makes an assignment for the benefit of creditors.

6.5      Effect of Termination. Upon termination of this Agreement: (a) Agency’s and its Authorized Users’ right to access and use the Velocity Engine Service will terminate, and Agency will cease, and ensure its Authorized Users’ cease, all use of the Velocity Engine Service, and (b) except in the event of termination by Agency in accordance with Section 6.4(a) above, all outstanding fees immediately becoming due and payable, including, without limitation, any subscription fees due and payable for the remainder of the then-current Subscription Term. Agency is responsible for exporting Agency Materials uploaded and processed by Agency in connection with its use of the Velocity Engine Service prior to the effective date or expiration of this Agreement. After the effective date of termination or expiration of this Agreement, Velocity Engine will have no obligation to maintain or provide Agency Data, and will, in its sole discretion, delete or destroy all copies of Agency Materials in its systems or otherwise in Velocity Engine’s possession or control in accordance with Velocity Engine’s then-current data retention and deletion processes, unless legally prohibited. Upon termination of this Agreement for any reason, following the termination of any applicable Order Forms entered into prior to the date of termination, Velocity Engine will have the right to migrate Clients to the Velocity Engine Services and enter agreements directly with such Clients. The following Sections will survive any termination or expiration of this Agreement: 1, 3.6, 3.7, 4.6, 4.9, 4.10, 5, 6.5, 7, 8, and 10 through 14.

7.      PROPRIETARY RIGHTS

7.1      Agency Proprietary Rights. As between the parties, and subject to the licenses and rights granted to Velocity Engine under this Agreement, Agency shall retain all right, title and interest in and to the Agency Materials and the Agency Services. In addition, subject to Agency’s compliance with this Agreement and the AI Policies, Agency shall own the AI Output based on Agency Materials, expressly excluding any AI Output based on, or otherwise incorporating any Velocity Engine Materials (“Agency Output”). Notwithstanding the foregoing, Agency acknowledges and agrees that due to the nature of machine learning, AI Output (including, Agency Output) may not be unique to Agency, and the Velocity Engine Service may generate the same or similar AI Output (including, Agency Output) for Velocity Engine or its other customers, and any output generated by or for other Velocity Engine customers, even if the same or similar as the AI Output (including, Agency Output). Subject to the terms and conditions of this Agreement, to the extent any AI Output incorporates or is based on any Velocity Engine Materials, Velocity Engine hereby grants to Agency a perpetual, worldwide, fully-paid, royalty-free, nonexclusive license to use the Velocity Engine Materials solely as, and to the extent, incorporated in the AI Output.

7.2      Usage Data. Agency acknowledges and agrees that Velocity Engine has the right to (a) collect, generate and process information, metrics, analytics, and data relating to the use and performance of the Velocity Engine Service and which may be derived from Agency Property (collectively, “Usage Data”), and (b) use Usage Data for Velocity Engine’s internal purposes of training, improving, developing, and enhancing Velocity Engine’s own AI Features or other algorithms and machine learning models, and for any other lawful purposes; provided that, Velocity Engine will only disclose Usage Data to third parties, including subcontractors, for the purposes of facilitating the Velocity Engine Service, to, improve, test, and maintain the Velocity Engine Service, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law. In addition, Agency agrees that Velocity Engine may obtain and use Agency Property and Usage Data to create aggregated, anonymized or deidentified data or information of similar form that does not permit the identification of Agency or any Authorized Users or other individual or entity (the “De-Identified Data”). Velocity Engine shall own De-Identified Data and may retain, use and disclose such data for any lawful business purpose, including to improve its products and services.

7.3      Velocity Engine Proprietary Rights. Subject to Agency’s rights in and to Agency Materials and Agency Output (collectively, “Agency Property”), Velocity Engine or its licensors retain all right, title and interest in and to (a) the Velocity Engine Service, including, all materials, graphics, user and visual interfaces, images, code (including source code or object code), products, applications, and text, embodied in, or comprising the Velocity Engine Service, as well as the design, structure, selection, coordination, expression, "look and feel” and arrangement of the Velocity Engine Service, (b) the Usage Data, De-Identified Data, Velocity Engine Materials, and any AI Output based specifically on any Velocity Engine Materials, (c) the Velocity Engine Marks and any other trademarks, service marks, proprietary logos and other distinctive brand features found in the Velocity Engine Service, and (d) any and all modifications, updates, enhancements and improvements thereto, and all intellectual property and proprietary rights, embodied in, or otherwise applicable to any of the foregoing (collectively, “Velocity Engine Property”). There are no implied rights or licenses in this Agreement and all rights and licenses not expressly granted in this Agreement are expressly reserved by Velocity Engine.

7.4      Feedback. To the extent Agency or any Authorized User provides any suggestions and feedback to Velocity Engine regarding the functioning, features, and other characteristics of any Velocity Engine Property, or any part or component thereof, or other materials or services provided or made available by Velocity Engine hereunder (“Feedback”), Agency hereby grants Velocity Engine a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Agency’s and its licensors’ Intellectual Property Rights to use and exploit such Feedback in any manner and for any purpose.

8.      CONFIDENTIALITY. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information”). Without limiting the foregoing, Confidential Information shall include: (a) with respect to Velocity Engine: the Platform, Beta Features, Documentation, Feedback, and any non-public technical and business information regarding the Velocity Engine Service, non-public aspects of the Velocity Engine Service (or any part thereof), and all other materials and information disclosed under this Agreement that are marked “confidential” by Velocity Engine or that Agency knows or should have known, under the circumstances, are considered confidential by Velocity Engine; and (b) with respect to Agency: the Agency Materials, non-public business information regarding the Agency Services, and all other materials and information disclosed under this Agreement that are marked “confidential” by Agency or that Velocity Engine knows or should have known, under the circumstances, are considered confidential by Agency. The Receiving Party agrees that it will not disclose to any third party or cause to be disclosed any of the Disclosing Party's Confidential Information unless authorized in writing by the Disclosing Party, and shall refrain from using the Disclosing Party's Confidential Information except to the extent necessary to perform its obligations or exercise its rights under this Agreement. Confidential Information does not include information that is: (i) publicly available through no fault of the Receiving Party; (ii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party; (iii) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iv) independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party without violating this Section to the extent that such Confidential Information is required to be disclosed by law or court order; provided, however, that the Receiving Party shall first give the Disclosing Party prompt notice of such order so that the Disclosing Party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy. Neither party will disclose any terms of any Order Form to anyone other than its attorneys, accountants, and other professional advisors, in each case under a duty of confidentiality except (x) as required by law, or (y) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality). Upon expiration or termination of this Agreement, the Receiving Party shall promptly return or destroy Confidential Information in its possession or control and, except as otherwise expressly provided in this Agreement or Velocity Engine’s Privacy Notice, will not make or retain any copies of such information, except that the Receiving Party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement or any applicable laws, rules or regulations. The Receiving Party will provide written certification of its compliance with the foregoing at the Disclosing Party’s written request (if provided at the time of termination or expiration). In addition, with respect to the destruction or return of Agency Materials stored in any Velocity Engine backups, Velocity Engine’s obligations shall be the destruction of such backups pursuant to Velocity Engine’s then-current data retention and deletion processes.

9.      DATA PROTECTION & SECURITY

9.1      Personal Data. To the extent any Agency Materials include, or Agency or any Authorized User otherwise transmits, processes, and/or provides, any personally identifiable information through or in connection with the use of the Velocity Engine Service (“Personal Data”), which is subject to any applicable data protection laws and/or regulations (“Applicable Data Laws”), Agency represents and warrants that: (a) such Personal Data is not sensitive data (such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers) as defined pursuant to Applicable Data Laws, and that Agency shall not upload to, or otherwise provide in connection with the use of, the Velocity Engine Service, any Agency Materials that contain any sensitive Personal Data; (b) Agency is in compliance with all Applicable Data Laws, and (c) Agency has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through the Velocity Engine Service and/or provide or make available such data to Velocity Engine hereunder. Personal Data shall only be used in accordance with this Agreement. In addition, each party agrees to work together in good faith to mutually agree upon and execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by a party in its discretion to comply with any Applicable Data Laws with respect to any Personal Data exchanged pursuant to this Agreement.

9.2      Security. Velocity Engine shall implement and maintain industry-standard technical and organizational security measures reasonably designed to prevent unauthorized access to and disclosure of unencrypted Agency Materials. Without prejudice to Velocity Engine’s foregoing obligations, Agency is responsible for its secure use of the Velocity Engine Service, including, without limitation: (a) protecting account authentication credentials; and (b) implementing measures to allow Agency to backup and archive appropriately in order to restore availability and access to Agency Materials in a timely manner in the event of a physical or technical incident.

9.3      Security Incidents. Velocity Engine shall promptly investigate any suspected breach of security with respect to Velocity Engine’s systems, and shall inform Agency without unreasonable delay (but in no event, less than 72 hours) after Velocity Engine has determined, in its reasonable discretion after reasonable investigation, that there has been a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to unencrypted Agency Materials (“Security Incident”). Velocity Engine shall provide all reasonable information in Velocity Engine’s possession concerning such Security Incident insofar as it affects Agency, including the following, to the extent then known: (a) the possible cause and consequences for any data subjects whose Personal Data was involved in the Security Incident; (b) a summary of the Agency Materials affected, and the categories of Personal Data involved, if applicable; (c) a summary of the unauthorized recipients of the Agency Materials; and (d) the measures taken by Velocity Engine to mitigate any damage. Velocity Engine shall use reasonable efforts to provide Agency updates of further developments concerning a Security Incident.

10.      INDEMNIFICATION

10.1      Indemnification by Velocity Engine. Velocity Engine shall defend or settle any claim, action or suit brought by a third party (each, a “Claim”) against Agency, and pay any damages, liabilities, fines, penalties, assessments, costs and expenses (including reasonable legal fees) and amounts (collectively, “Losses”) finally awarded by or agreed to (and reasonably approved by Velocity Engine) in settlement of such Claim, to the extent such Claim arises out of allegations that Agency’s use of the Platform or any Velocity Engine Marks as authorized herein infringes or misappropriates the Intellectual Property Rights of any third party. If Agency’s use, or Velocity Engine reasonably believes Agency’s use, of the Platform (or any part thereof) or Velocity Engine Marks is or may be enjoined, or if otherwise required by settlement or injunction (hereinafter, “Infringing Materials”), Velocity Engine may elect at its option to: (a) obtain a license for the affected portion of the Infringing Materials; (b) modify or replace the affected portion of the Infringing Materials, so as to avoid infringement; or (c) terminate or discontinue the Platform (or affected portion thereof) or the right to use the Velocity Engine Marks. Notwithstanding the foregoing, Velocity Engine will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim based on or arising from: (i) any modification of the Velocity Engine Service (or any part thereof) or any Velocity Engine Marks by any person other than Velocity Engine or its authorized representatives, (ii) Third Party Integrations or any third party AI Features, (iii) the use, operation, or combination of the Velocity Engine Service (or any part thereof) or any Velocity Engine Marks with software programs, data, equipment, materials or business processes not provided by Velocity Engine, if such claim would not have arisen but for such use, operation or combination, (iv) Agency Property, (v) Agency’s use of the Velocity Engine Service or Velocity Engine Marks other than in accordance with this Agreement; and/or (vi) any Beta Features, Evaluation Version provided on a “free” basis, or any other free, trial or promotional use of the Velocity Engine Service. THIS SECTION 10.1 STATES AGENCY’S SOLE AND EXCLUSIVE REMEDY AND VELOCITY ENGINE’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR MISAPPROPRIATION.

10.2      Indemnification by Agency. Agency shall indemnify, defend, and hold Velocity Engine and its affiliates, officers, directors, employees, contractors, representatives, licensors, and agents harmless from and against any Claims brought against Velocity Engine and any Losses attributable to such Claims to the extent arising out of or related to: (a) Agency’s or its Authorized Users’ breach of any representation, warranty, or agreements referenced herein; (b) Agency Property, or Agency’s or any Authorized Users’ violation of any third-party right, including without limitation any Intellectual Property Right, publicity, confidentiality, property or privacy right; (c) breach or violation of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any third party AI Features or any Third Party Integrations; (d) Agency’s failure to enter into a binding Client Agreement with each Client in accordance with Section 3.2; (e) or any statements or representations made by Agency that differ or exceed the Passthrough Warranty; (f) Agency’s and/or any Agency User’s actual or alleged violation of any applicable laws, rules or regulations, including, without limitation, any anti-money laundering and/or counter-terrorism in connection with its activities hereunder and/or use of the Velocity Engine Service, any other act or omission of Agency or any Agency User in connection with the marketing, selling, or distributing the Velocity Engine Service under this Agreement; (g) any claims brought by a Client or any Client Users; (h) any breach by a Client or Client Users of the Mandatory Terms and/or (i) the Agency Services.

10.3      Procedure. The party to be indemnified party shall (a) promptly notify the indemnifying party in writing of any claim asserted against the indemnified party (provided that, a delay in providing notice does not excuse the indemnifying party’s obligations unless the indemnifying party is prejudiced by such delay), (b) give the indemnifying party sole control of the defense thereof, and, (c) at the indemnifying party’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall the indemnifying party enter into any settlement that involves an admission of liability, negligence or other culpability of the indemnified party or requires the indemnified party to contribute to the settlement without the indemnified party’s prior written consent. The indemnified party may participate and retain its own counsel at its own expense.

11.      DISCLAIMERS. THE VELOCITY ENGINE SERVICE, AI FEATURES, SUPPORT, IMPLEMENTATION SERVICES, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY VELOCITY ENGINE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND. VELOCITY ENGINE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. VELOCITY ENGINE DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE VELOCITY ENGINE SERVICE (OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY AI FEATURES), SUPPORT, IMPLEMENTATION SERVICES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY VELOCITY ENGINE: (A) WILL MEET AGENCY’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH AGENCY’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY INTEGRATIONS OR OTHER THIRD PARTY PRODUCTS OR SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.

12.      LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOST DATA, OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) A PARTY’S TOTAL AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED (1) THE FEES PAID OR PAYABLE TO VELOCITY ENGINE BY AGENCY UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR LIABILITY, OR (2) WITH RESPECT TO ANY EVALUATION VERSION PROVIDED ON A “FREE” BASIS OR OTHER FREE, PROMOTIONAL, OR BETA VERSION PROVIDED ON A “FREE” BASIS, USD $200.00. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO: (I) A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS, (II) AGENCY’S BREACH OF ITS PAYMENT OBLIGATIONS, (III) AGENCY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 10.2; OR (IV) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THESE LIMITS. THE LIMITATIONS SPECIFIED IN THIS SECTION 12 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THESE TERMS OR ANY LIMITED REMEDY HEREUNDER. VELOCITY ENGINE DISCLAIMS ALL LIABILITY OF ANY KIND OF ITS AFFILIATES, LICENSORS AND SUPPLIERS.

13.      BASIS OF THE BARGAIN. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH ABOVE IN SECTIONS 11 AND 12 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN VELOCITY ENGINE AND AGENCY. VELOCITY ENGINE WOULD NOT BE ABLE TO PROVIDE THE VELOCITY ENGINE SERVICE ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF VELOCITY ENGINE’S SUPPLIERS.

14.      GENERAL

14.1      Governing Law; Venue. This Agreement will be governed by the laws of the State of Texas, U.S.A., without giving effect to any conflicts of law principles that may require the application of the law of a different jurisdiction. This Agreement (including without limitation, the Velocity Engine Service and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the State and Federal courts located in Travis County, Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. In any action or proceeding to enforce rights under this Agreement, the substantially prevailing party will be entitled to recover costs and reasonable attorneys’ fees. Notwithstanding anything in this Agreement to the contrary, in the event of any actual or alleged violation of Velocity Engine’s intellectual property or confidentiality rights, Velocity Engine may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country.

14.2      Relationship. Velocity Engine and Agency are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Nothing contained in this Agreement shall be construed to imply that either party, or any employee, agent or other authorized representative of a party, is a partner, joint venture, agent, officer or employee of the other party and neither party shall hold itself out as the same. Any use of the term “agency,” “partner”, “partnering” or “partnership” or any similar terminology (except as used in the immediately preceding sentence of this Section) does not mean or refer to a legal agency or legal partnership, but instead means or refers to a co-operative business or contractual relationship. Neither party may bind the other party or make representations on behalf of the other party, except as expressly authorized in writing by the other party.

14.3      Export Controls. The parties acknowledge that the Velocity Engine Service may be subject to U.S. and other countries’ export jurisdictions. Each party will comply with all laws and regulations applicable to the import or export of the Velocity Engine Service, including, but not limited to, the U.S. Export Administration Regulations, International Traffic in Arms Regulations, and sanctions regulations administered by the U.S. Office of Foreign Assets Control (collectively, “Trade Laws”). Neither party will take any action that causes the other party to violate U.S. or other applicable Trade Laws. If either party learns of a potential violation of Trade Laws relating to the performance of this Agreement, or a potential violation of the terms in this Section, such party will alert the other party promptly after acquiring this knowledge. Velocity Engine may suspend or terminate this Agreement to the extent that Velocity Engine reasonably concludes that performance would cause Velocity Engine to violate applicable Trade Laws or put Velocity Engine at risk of becoming the subject of economic sanctions under such Trade Laws. Agency represents that neither Agency nor any Authorized User is on any restricted party list under any applicable Trade Laws, including, but not limited to the U.S. Department of Commerce’s Table of Denial Orders or Entities list, or U.S. Treasury Department’s list of Specially Designated Nationals.

14.4      Government Rights. The Platform provided under this Agreement (and its underlying software) is a commercial computer software program developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.111 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Agency), any software underlying the Platform is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Agency), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.

14.5      Publicity. Agency agrees that Velocity Engine may include Agency’s name, logo and/or other marks on Velocity Engine’s website and in other internal and external marketing materials and/or presentations for the sole purpose of identifying Agency as a user of the Velocity Engine Service and an “agency partner” of Velocity Engine.

14.6      Amendments; Severability; Waiver. This Agreement may be amended only by a written agreement mutually agreed upon and signed by both parties. If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein. Notwithstanding the foregoing, Velocity Engine may update this Agreement by posting a revised version and noting its version number and effective date. The version of this Agreement in effect on the effective date of an Order Form governs that Order Form for its then-current Subscription Term, and any updated version will apply upon the next renewal of such Subscription Term, provided that Velocity Engine has given Agency at least thirty (30) days’ prior notice of the update.

14.7      Notices. All notices permitted or required to be sent to Velocity Engine under this Agreement shall be in writing and sent by personal delivery, email (where permitted), or by certified or registered mail, return receipt requested, and shall be deemed delivered (a) upon personal delivery, (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five (5) business days after being deposited in the mail as required above, and (c) upon confirmation of transmission if sent by email. Notices sent to each party at their respective addresses set forth in the initial Order Form(s), or to such other address as may be specified by either party to the other party by written notice in accordance with this Section.

14.8      Consent to Electronic Notices. Agency consents to receiving electronic communications from Velocity Engine via email, through the user-interface of the Velocity Engine Service or through Velocity Engine’s authorized support communication channels, which may include notices about transactional information and other information concerning or related to Agency’s use of the Velocity Engine Service. These electronic communications are part of Agency’s relationship with Velocity Engine and Agency receives them as part of Agency’s access and use of the Velocity Engine Service. Agency agrees that any notices, agreements, disclosures or other communications that Velocity Engine sends Agency electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.

14.9      Assignment. Agency may not assign its rights or obligations under this Agreement without Velocity Engine’s prior written consent. Any attempted assignment or transfer of this Agreement by Agency in contravention of the foregoing shall be null and void. Velocity Engine may freely assign or transfer this Agreement in its entirety, or otherwise assign or delegate any of its rights or obligations under this Agreement (including the performance of any services hereunder) to its affiliates, employees, contractors, and subcontractors, without Agency’s consent. This Agreement shall be binding on the parties and their respective successors and permitted assigns.

14.10      Third Party Rights. Velocity Engine shall be a third party beneficiary of the Client Agreement with respect to the Mandatory Terms, and shall be entitled to directly enforce against any Client, and rely upon any provision of, the Mandatory Terms that confers a right or remedy in favor of it. Except as otherwise expressly stated in this Section 14.10, this Agreement is not intended to grant rights to anyone except Agency and Velocity Engine, and in no event shall this Agreement create any third party beneficiary rights, nor be interpreted or construed to confer any rights or remedies on or to any third parties.

14.11      Governmental Approval. If any approval with respect to this Agreement, or the notification or registration thereof, will be required at any time during the term of this Agreement, with respect to giving legal effect to this Agreement in the Territory, or with respect to compliance with exchange regulations or other requirements so as to assure the right of remittance abroad of U.S. dollars pursuant to this Agreement, Agency will immediately take whatever steps may be necessary in this respect, and any charges incurred in connection therewith will be for the account of Agency. Agency will keep Velocity Engine currently informed of its efforts in this connection. Velocity Engine will be under no obligation to provide the Velocity Engine Service to Agency or any Authorized User hereunder until Agency has provided Velocity Engine with satisfactory evidence that such approval, notification or registration is not required or that it has been obtained.

14.12      Entire Agreement; Construction. This Agreement, together with the initial Order Form and any other Order Forms entered into by the parties hereunder, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof. Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.