MASTER SOFTWARE LICENSE AGREEMENT for Noteefy Course Solution™

THIS MASTER SOFTWARE LICENSE AGREEMENT and all corresponding exhibits, schedules, and Order Forms (this “Agreement”) is entered into as of Effective Date in the applicable Order Form, or if no Effective Date is stated, the date the Order Form is signed by the Parties (the “Effective Date”), by and between Noteefy Inc., a Delaware corporation, located at 22543 Ventura Blvd, Ste 220 PMB1136, Woodland Hills, CA 91364 (“Licensor”), and Licensee, with individual or multiple associated golf properties, identified in the applicable Order Form. (“Licensee”). Licensor and Licensee may hereinafter be referred to individually as “Party” and collectively as “Parties.”
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Recitals

A. Licensor (together with its Affiliates) is a developer and licensor of certain technologies and services. Licensor’s proprietary software applications, collectively known as the “Noteefy Course Solution” provide golf tee-time booking confirmation and wait list services and compiles certain corresponding data into proprietary databases accessible by Licensee. This proprietary software, which may be provided in one or more applications, tools, or accessible portals, is referred to herein as the “Licensed Software.” The Licensed Software may include (i) the Confirm™ Tool, (ii) the Waitlist™ Tool, (iii)  separate proprietary databases or portals accessible by Licensee, but not accessible by End Users (the “Noteefy Admin Portals”), and (iv) other tools or functionality as may be added by Licensor to the Noteefy Course Solution from time-to-time and made available to Licensee.

B. Licensee desires to license the Licensed Software from Licensor, subject to the terms and conditions of this Agreement, to use the Licensed Software and to make the Confirm Tool and the Waitlist Tool available to its customers (also referred to as “End Users” in this Agreement). Access to and use of the Licensed Software is limited as described in this Agreement.

Terms

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

For purposes of this Agreement, capitalized terms used but not defined elsewhere in this Agreement have the meanings assigned to those terms below.

“Action” is defined in Section 13.15.

“Affiliate” means, with respect to any Person, any other Person directly or indirectly Controlling or Controlled by, or under direct or indirect common Control with such Person.

“Agreement” is defined in the Preamble.

“Applicable Law” means all applicable laws, rules, regulations, rulings, judgments, directives, or other requirements of any governmental authority in any country or jurisdiction, including the Privacy Laws, as amended from time to time.

“CANSPAM” means the Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 USC §§ 7701-7713).

“CCPA” means the California Consumer Protection Act of 2018 (Cal. Civ. Code §1798.100 et. seq.), as amended by the CPRA.

“Claim” is defined in Section 11.3.

“Confidential Information” is defined in Section 8.1.

“Confirm Tool” means a tool that allows the End User, after booking a tee time in Licensee’s scheduling system, to request and receive confirmation messages by text message or email related to and to confirm scheduled tee times. The End User checks a box on Licensee’s website (in the online scheduling system) to request confirmation messages.

“Control, Controlling, and Controlled” means, with respect to any Person, the possession, directly or indirectly, of the affirmative power to direct or cause the direction of the management and policies of such Person, whether through the ownership of securities, partnership interests or other ownership interests, by contract, by membership or involvement in the board of directors or other management structure of such Person, or otherwise.

“CPRA” means the California Privacy Rights Act of 2020.

“Disclosing Party” means the Party disclosing Confidential Information.

“Effective Date” is defined in the Preamble.

“End User” means any customer or prospective customer of Licensee that uses or accesses the Licensed Software from Licensee’s website, opens an account with Noteefy to use or access the Licensed Software for Licensee’s golf courses, or permits the customer’s information to be added to the Licensed Software in order to access or receive the functionality of the Licensed Software.

“End User Agreement” is defined in Section 5.2.

“End User Personal Data” means the Personal Data of an End User.

“Exceptions” is defined in Exhibit A.

“Extension Term” is defined in Section 12.1.

“Force Majeure Event” is defined in Section 13.11.

“GDPR” means the General Data Protection Regulation.

“Improvement” means any invention, modification, addition, derivative work, enhancement, Update, revision, translation, abridgement, condensation or expansion, by any Party, to, or arising from, the Licensor Intellectual Property, or any other form in which the Licensor Intellectual Property or any part thereof, may be recast, transformed, or adapted.

“Indemnified Party” is defined in Section 11.6.

“Indemnifying Party” is defined in Section 11.6.

“Initial Term” is defined in Section 12.1.

“Licensed Software” is defined in the Recitals.

“Licensee” is defined in the Preamble.

“Licensee Authorized User” means Licensee’s personnel and any other person authorized by Licensee to, on behalf of Licensee, access and use the Licensed Software, including the Confirm Tool, the Waitlist Tool, and the Noteefy Admin Portals.

“Licensee Intellectual Property” means all software source code and object code of Licensee and any and all component parts thereof, any and all documentation relating thereto, and all copyrights, trade secrets, patents, trademarks, service marks, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights and proprietary rights therein or arising therefrom, as they may exist now or hereafter come into existence, and all renewals and extensions thereof. Licensee Intellectual Property does not include any Licensor Intellectual Property including the Licensed Software and Updates, the Use Data, or any improvements or derivative works thereof.

“License Fee” is defined in Section 7.1.

“Licensor” is defined in the Preamble.

“Licensor Intellectual Property” means the Licensed Software, any Improvements to or derivative works of the Licensed Software, all software source code and object code embodied in the Licensed Software and any and all component parts thereof, any and all documentation relating to the Licensed Software, the Licensor Marks, the Use Data, any Improvements or derivative works thereof, and all copyrights, trade secrets, patents, trademarks, service marks, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights and proprietary rights therein or arising therefrom, as they may exist now or hereafter may come into existence, and all renewals and extensions thereof. The Licensor Intellectual Property includes Licensor’s business principles, and those analytical concepts, approaches, methodologies, models, algorithms, processes, discoveries, ideas, and formats developed by Licensor in the course of its work for Licensee as well as other parties, or during its own research or research with others, as well as databases therein. Licensor Intellectual Property does not include any Licensee Intellectual Property.

“Licensor Marks” means the trademarks, service marks, logos and other marks, designs, or source indicators of or used by Licensor or its Affiliates.

“Modifications” is defined in Section 2.2.

“Noteefy Admin Portals” is defined in Recital A.

“Noteefy Course Solution” is defined in Recital A.

“Order Form” is defined in Section 7.1.

“Parties” is defined in the Preamble.

“Permitted Uses” is defined in Section 2.1.

“Person” means individual, company (whether general or limited), limited liability company, corporation, trust, estate, association, nominee or other entity.

“Personal Data” means any information that relates to an individual (e.g., a customer) and that, alone or in combination with other data, can be used to identify, contact, or precisely locate an individual, or other information that constitutes “personal data,” “personal information,” or “personally identifiable information” governed under Privacy Laws.

“Privacy Laws” means all Applicable Laws and restrictions relating to the processing of Personal Data, privacy and security that may exist in any relevant jurisdiction, including the CCPA, GDPR, CANSPAM, CPRA, and the TCPA, each of the foregoing as amended or replaced from time to time.

“Recipient” is defined in Section 8.1.

“Security Incident” means any unauthorized access or disclosure of any End User Personal Data not permitted by this Agreement.

“Security Program” is defined in Section 4.1.

“Support Services” is defined in Section 4.2.

“System Availability” is defined in Exhibit A.

“TCPA” means Telephone Consumer Protection Act of 1991 (47 USC § 227).

“Term” is defined in Section 12.1.

“Updates” is defined in Section 4.2.

“Use Data” means any and all statistics, information and data received or generated by or through, or with the assistance of, the Licensed Software or arising as a result of the use by Licensee, a Licensee Authorized User, or any End User of the Licensed Software, not including End User Personal Data.

“Waitlist Tool” means a tool that allows the End User to create an account and then request and receive text message or email notifications when the End User’s desired tee time becomes available in Licensee’s tee time scheduling system. After creating an account, the End User will, while using Licensee’s online scheduling system, be able to request to receive notifications related to desired tee times identified by the End User.
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2. GRANT OF RIGHTS

2.1 Limited License.

Subject to the terms and conditions of this Agreement, Licensor grants to Licensee a limited, non-exclusive, non-transferable, and non-sublicensable license to the Licensed Software during the Term, solely for the Permitted Uses. The Permitted Uses are: (i) making the Waitlist Tool and the Confirm Tool available to its End Users for non-commercial, personal use in accordance with and subject to this Agreement; (ii) accessing the Use Data and the End User Personal Data made available to Licensee in the Noteefy Admin Portals  (collectively, the “Permitted Uses”).

Licensee’s rights in the Licensed Software are limited to the Permitted Uses expressly granted in this Agreement. Licensee has no right to transfer, sublicense or otherwise sell or distribute the Licensed Software, the Use Data, or the End User Personal Data to any third party except as permitted by the terms of this Agreement. If Licensor accepts in writing a Licensee request for customization of the Licensed Software, Licensee hereby grants Licensor a limited, non-exclusive, non-transferable, and non-sublicensable (except to the extent required to customize the Licensee Intellectual Property under this Section) license to use the Licensee Intellectual Property and End User Personal Data for the sole purpose of customizing the Licensed Software in accordance with any reasonable usage instructions provided to Licensor by Licensee.

2.2 Modifications and Improvements.

Any and all modifications to the Licensed Software performed by or for Licensee, including changes to the source code of the Licensed Software (the “Modifications”) and any Improvements are and remain the sole and exclusive property of the Licensor, subject to Licensee’s limited rights, along with any and all restrictions, under this Agreement. Licensee hereby assigns to Licensor any and all rights in or to any Modifications and Improvements, which will be deemed upon creation to be elements of the Licensed Software. Licensor may, at its sole discretion, elect to integrate any Modification or Improvement into the Licensed Software.

2.3 Restrictions and Prohibited Uses.

Licensee will and is only permitted to use the Licensed Software, the Use Data, and the End User Personal Data (from or in the Waitlist Tool) for the Permitted Uses outlined in Section 2.1 and in accordance with this Agreement. Any purpose or use not specifically authorized herein is strictly prohibited unless otherwise agreed to in writing by Licensor. Licensee will not, and is not authorized to, at any time, directly or indirectly: (i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, copy, provide, disclose, or otherwise make available the Licensed Software to any person, firm, entity or third party, except to its End Users as specifically permitted in this Agreement; (ii) modify, alter, adapt, customize or otherwise change the Licensed Software in any manner, for any purpose without the prior written consent of Licensor at its sole discretion; (iii) decompile, disassemble, decode, reverse translate, reverse engineer or otherwise attempt to derive, discover, directly access or gain access to the source code of the Licensed Software or any component or portion thereof; (iv) bypass or breach any security protection used for or contained in the Licensed Software; (v) use the Licensed Software for purposes of benchmarking or competitive analysis of the Licensed Software; developing, using, or providing a competitive software product or service; or any other purpose that is to Licensor’s detriment or commercial disadvantage; (vi) copy or create derivative works of the Licensed Software, in whole or in part; (vii) use the Licensed Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any third party, or that violates Applicable Law; (viii) remove any proprietary notices included within the Licensed Software; (ix) disclose, release, distribute, deliver, or otherwise make available the Use Data or any End User Personal Data (other than to the End User that owns it), or any portion thereof, to any third party ; or (x) publish, enhance, or display any compilation or directory based upon information derived from the Use Data or the End User Personal Data, or any portion thereof. The Licensee may not use any Licensed Software, Use Data, or End User Personal Data for commercial use or marketing purposes. Licensee represents and warrants that End User Personal Data will be used in accordance with and only as permitted by Applicable Laws and regulations, including the Privacy Laws.

2.4 Reservation of Rights.

Licensor hereby expressly reserves unto itself all rights not granted to Licensee in this Agreement. Nothing in this Agreement grants Licensee the right to use any of the Licensor Marks without the prior written consent of Licensor. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the Licensed Software or the Use Data.

2.5 Security Measures.

The Licensed Software may contain technological measures designed to prevent unauthorized or illegal use of the Licensed Software, the Use Data or End User Personal Data. Licensee acknowledges and agrees that: (a) Licensor may use these and other lawful measures to verify Licensee's compliance with the terms of this Agreement and enforce Licensor's rights, including all intellectual property rights, in and to the Licensed Software and the Use Data; (b) Licensor may deny any individual access to or use of the Licensed Software if Licensor, in its sole and absolute discretion, believes that a person's use of the Licensed Software would violate any provision of this Agreement, regardless of whether Licensee designated such person as an authorized End User; and (c) Licensor and its representatives may collect, maintain, process and use the Use Data and any diagnostic, technical, usage and related information, including information about Licensee's computers, systems and software, that Licensor may gather periodically to improve the performance of the Licensed Software or provide the Support Services. End User Personal Data collected through the Waitlist Tool will be treated in accordance with Licensor's privacy notice, as amended from time to time, which can be viewed at: https://noteefy.com/privacy, and which will be in compliance with applicable Privacy Laws.

Licensee hereby grants Licensor a limited, non-exclusive, non-transferable, and non-sublicensable license to use the Licensee Intellectual Property and End User Personal Data in connection with these security measures and for the uses set forth in this Section, in accordance with any reasonable usage instructions provided to Licensor by Licensee. Licensee is responsible to ensure that this use of End User Personal Data is permitted as required under applicable Privacy Laws, including obtaining any required consents. If End Users are provided with an “opt out,” Licensee will immediately notify Licensor of any End Users who exercise an “opt out” in connection with any End User Personal Data that may be collected in the Licensed Software or used by either Party under this Agreement. Licensee is responsible for End User Personal Data added into the Confirm Tool by Licensee or any End User. End User Personal Data collected in or through the Confirm Tool will be treated in accordance with Licensee's privacy notice, as amended from time to time, which will be in compliance with applicable Privacy Laws.

3. IMPLEMENTATION

Licensor will use its commercially reasonable efforts to implement the Licensed Software for Licensee promptly and with Licensor’s standard technical and design requirements for the Licensed Software, unless other requirements are agreed to in the Order Form. For standard implementations, the initial implementation costs are included in the fees set forth in the initial Order Form to be paid by the Licensee. Additional fees may apply to non-standard implementations and subsequent development or customizations, as agreed upon by the Parties in writing or in an Order Form.

4. SECURITY; SUPPORT SERVICES; DATA PROCESSING

4.1 Security Program.

Licensee will use its commercially reasonable efforts to implement, and will require its third party service providers to implement, appropriate security measures, systems, and tools that are customary in the applicable industry to secure the Licensed Software and Use Data on its systems, Licensor’s Confidential Information, and the End User Personal Data on its systems. Licensor will use its commercially reasonable efforts to implement, and will require its third party service providers to implement, appropriate security measures, systems, and tools that are customary in the applicable industry to secure Licensee’s Confidential Information and the End User Personal Data located on Licensor’s systems.

Licensor and Licensee will maintain commercially reasonable information security programs designed to protect the confidentiality, integrity, and availability of End User Personal Data, that are appropriate to (i) the size, scope and type of its business, ( ii) the amount of resources available to it, (iii) the type of information that it stores or processes, and (iv) the need to maintain the security and confidentiality of such information (collectively, the “Security Program”). The Security Program must include access controls regarding the End User Personal Data, systems and network monitoring (including the use of intrusion detection and intrusion prevention systems), management and oversight of vendors, and patching and vulnerability management. Neither Party is liable for any failures to comply with Privacy Laws to the extent the other Party's failure to implement adequate security measures contributes to the loss or event giving rise to the liability.

If either Party discovers or is notified of a Security Incident, such Party must promptly notify the other Party of the Security Incident. In the event of a Security Incident, the Party experiencing the Security Incident will (i) immediately investigate and take commercially reasonable steps to mitigate any potential damages and remediate the cause of the Security Incident; (ii) provide the other Party with a reasonable description of the cause and impact of any Security Incident and provide updates of material developments; (iii) take commercially reasonable actions to prevent any similar reoccurrence (or terminate this Agreement and Licensee must remove all Licensed Software, Use Data, and Licensor Confidential Information from its systems); (iv) cooperate with the other Party in its efforts to investigate and mitigate the Security Incident and comply with any Applicable Laws that require reporting of the Security Incident; and (v) cooperate with the other Party with respect to any litigation or investigation by or against third parties in connection with the Security Incident.

4.2 Support Services and Updates.

Support Services. Licensor provides email support services (the “Support Services”) during reasonable business hours. Licensor will provide e-mail support information to End Users through the online FAQ or terms of use, as applicable, with respect to the proper use and functionality of the Licensed Software. Support Services are subject to the terms of this Agreement, and Licensor’s support responders do not have the ability or authority to change the terms of this Agreement through Support Services. Licensor’s current email for Support Services is support@noteefy.com. Other contact information for Support Services may be provided in the Order Form.

Updates. “Updates” means minor improvements in or corrections to the performance or functionality of the Licensed Software. Licensor will, included in the annual License Fee, provide to Licensee Updates to the Licensed Software within a reasonable time after such Updates become available and have been tested and approved by Licensor, as long as Licensee’s License Fee is fully paid and Licensee’s account is current. Licensee must follow all instructions provided with the Updates, and if the Updates require any action on the part of Licensee or End Users to install or use the Updates, Licensee will inform End Users and Licensee Authorized Users as instructed by Licensor, and if needed, require an updated End User consent, notice, or acceptance before using or continuing to use the Licensed Software. All Updates must be installed in accordance with applicable instructions, and if a sooner time is not provided in the instructions, within 90 days of availability.

4.3 Processing of End User Personal Data.

With respect to Licensee’s instance of the Confirm Tool, Licensee acknowledges that Licensee is the controller and Licensor is the processor of the End User Personal Data. Licensor will process End User Personal Data solely on behalf of Licensee and in accordance with the Licensee's documented instructions and is not a controller of any End User Personal Data. Licensor is not responsible for ensuring compliance with Privacy Laws applicable to Licensee or with Licensee’s privacy policy. Licensor will cooperate with Licensee in responding to requests from End Users exercising their rights under applicable Privacy Laws. Licensor is not responsible for Licensee's compliance with such requests.

With respect to the Waitlist Tool, Licensor acknowledges that Licensor is the controller and Licensee is the processor of the End User Personal Data. Licensee will process End User Personal Data solely on behalf of Licensor and in accordance with the Licensor's documented instructions and is not a controller of any End User Personal Data. Licensee is not responsible for ensuring compliance with Privacy Laws applicable to Licensor or with Licensor’s privacy policy. Licensee will cooperate with Licensor in responding to requests from End Users exercising their rights under applicable Privacy Laws. Licensee is not responsible for Licensor's compliance with such requests.

5. LICENSEE ADDITIONAL OBLIGATIONS

5.1 Availability to End Users.

During the Term, Licensee is authorized under the terms and conditions of this Agreement to make the Licensed Software available to its End Users on or through Licensee’s website.

5.2 Terms and Conditions for End Users.

Licensee acknowledges and agrees that each individual End User may be required to, prior to use of the Licensed Software, agree to Licensor’s terms and conditions for use of the Licensed Software, as amended from time to time, which can be viewed at: https://noteefy.com/terms (the “End User Agreement”). Licensee acknowledges and agrees that Licensor may update the End User Agreement from time to time at Licensor’s sole discretion, and each End User’s use of the Licensed Software will serve as its acceptance of the updated End User Agreement. If the End User Agreement is updated, Licensee will require End Users to accept the new End User Agreement before accessing the Licensed Software. Licensee will take no action to interfere with routing of any End Users to the End User Agreement as a requirement to access the Licensed Software.

Licensee will also provide the End User with access to Licensee’s Privacy Notice describing Licensee’s collection and use of End User Personal Data and will comply with its Privacy Notice and applicable Privacy Laws. Licensee will be responsible for its receipt, collection, and use of any End User Personal Data and the collection of the End User Personal Data by Licensor in accordance with Licensee’s instructions in connection with use of the Confirm Tool. Licensee will provide Licensor with instructions regarding End User Personal Data that is processed by Licensor and will promptly inform Licensor of any (a) End User “opt out” election and (b) End User Personal Data that must be deleted or collected by Licensee in response to any End User request.

5.3 Unauthorized Use or Access.

Only Licensee Authorized Users are permitted to access the Licensed Software on behalf of Licensee, and only for the Permitted Uses. Licensee is responsible for compliance with this Agreement by Licensee Authorized Users.

Licensee will promptly notify Licensor if it becomes aware of any illegal or unauthorized use of any part of Licensor Intellectual Property by End Users or any other third party, including any use of the Licensor Marks, and will reasonably assist Licensor in taking all steps necessary to defend Licensor’s rights therein; provided, however, that Licensee will not be required to incur any out of pocket expenses in connection therewith.

Licensee will promptly notify Licensor if it becomes aware of any illegal or unauthorized use of any part of Licensor Intellectual Property by Licensee Authorized Users, including any use of the Licensor Marks, and will reasonably assist Licensor in taking all steps necessary to defend Licensor’s rights therein.

6. OWNERSHIP RIGHTS

6.1 Licensed Software.

Licensee acknowledges and agrees that: (i) the Licensed Software is licensed, not sold, to Licensee by Licensor and Licensee does not have under or in connection with this Agreement any ownership interest or any intellectual property rights in the Licensed Software; (ii) Licensor exclusively owns and at all times retains all right, title, and interest, including all intellectual property rights, in and to all Licensor Intellectual Property including the Licensed Software; and (iii) Licensee hereby unconditionally and irrevocably assigns to Licensor or Licensor’s designee, its entire right, title, and interest in and to any intellectual property rights that Licensee may now or hereafter have in or relating to the Licensed Software (including any rights in derivative works or Improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise. Licensee will not claim for itself or for any third parties any rights, title, interest or licenses to the Licensor Intellectual Property, except for the licenses expressly set forth in this Agreement. Licensee will execute any reasonably requested documents, render any reasonably requested assistance, and take such other actions as may be reasonably requested by Licensor when necessary to apply for, register, perfect, confirm and protect any rights in Licensor’s intellectual property rights described in this Section. Licensee further acknowledges that: (a) the Licensed Software is an original compilation protected by copyright laws; (b) Licensor has dedicated substantial resources to create, collect, manage, and compile the Licensed Software; and (c) various aspects of the Licensed Software constitute trade secrets of Licensor. Licensor may terminate this Agreement without advance notice to Licensee or an opportunity for Licensee to cure and without further obligation or liability, if Licensee contests any of Licensor's right, title, or interest in or to the Licensor Intellectual Property, including in a judicial proceeding anywhere throughout the world. Licensor acknowledges that, as between Licensor and Licensee, Licensee exclusively owns and at all times retains all right, title, and interest, including all intellectual property rights, in and to all Licensee Intellectual Property. Licensor will not claim for itself or for any third parties any rights, title, interest or licenses to the Licensee Intellectual Property, except for the licenses expressly set forth in this Agreement.

6.2 Improvements and Modifications.

Licensor, at all times, exclusively owns all right, title, and interest in and to any Improvements and Modifications to any Licensor Intellectual Property. The Parties acknowledge and agree that no joint development will be conducted under this Agreement. Any mutual development projects require a separate agreement written and duly executed by each Party.

6.3 Markings and Notices.

Licensee will not intentionally remove, alter, destroy or distort any proprietary, trademark or copyright markings or notices on or contained within the Licensor Intellectual Property, or any related materials or documentation provided by Licensor to Licensee. Licensor will not intentionally remove, alter, destroy or distort any proprietary, trademark or copyright markings or notices on or contained within the Licensee Intellectual Property, or any related materials or documentation provided by Licensee to Licensor.

6.4 End User Personal Data.

Confirm Tool End User Personal Data

As between Licensor and Licensee, all right, title and interest in and to the End User Personal Data collected and used in the Confirm Tool will vest exclusively in Licensee, and Licensor hereby unconditionally and irrevocably assigns to Licensee or Licensee’s designee its entire right, title, and interest in and to any rights that Licensor may now or hereafter have in or relating to this End User Personal Data, whether held or acquired by operation of law, contract, assignment or otherwise. Licensee represents and warrants that it will comply with all Applicable Law, including Privacy Laws, with respect to this End User Personal Data and to enter into any other agreements and establish and implement any policies and procedures regarding data transfer or protection that may be required in furtherance of compliance with any such Privacy Laws.

Waitlist Tool End User Personal Data

As between Licensor and Licensee, all right, title and interest in and to the End User Personal Data collected and used in the Waitlist Tool will vest exclusively in Licensor, and Licensee hereby unconditionally and irrevocably assigns to Licensor or Licensor’s designee its entire right, title, and interest in and to any rights that Licensee may now or hereafter have in or relating to this End User Personal Data, whether held or acquired by operation of law, contract, assignment or otherwise. Licensor represents and warrants that it will comply with all Applicable Law, including Privacy Laws, with respect to this End User Personal Data and to enter into any other agreements and establish and implement any policies and procedures regarding data transfer or protection that may be required in furtherance of compliance with any such Privacy Laws.

6.5 Limited Use.

Licensee will use the Licensed Software and the Use Data solely for the Permitted Uses per the terms and conditions of this Agreement and not for any commercial use or resale.

7. FEES AND PAYMENT
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7.1 License Fee‍
Licensee will pay Licensor the fees (collectively, the “License Fee”) included in the applicable Licensor order form (“Order Form”) during or for the Term specified in the Order Form for the licenses to the Licensed Software for the Permitted Uses under this Agreement. Licensee must make all payments in United States dollars on or before the invoice due dates reflected in the Order Form. Unless otherwise stated in the Order Form, all License Fees, plus applicable taxes and other charges, must be paid on or before the first day of the applicable Initial Term or Extension Term of the License.

Licensor may increase the License Fee each year; however, if the increase from the prior year License Fee is more than 10%, Licensor will notify Licensee at least 30 days before the increase becomes effective and Licensee will have 10 days to terminate this Agreement by written notice to Licensor from the date of the notification from Licensor. If Licensee does not terminate this Agreement within the 10-day period, then the new License Fee will be deemed accepted by Licensee.

7.2 Taxes.

Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local government or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor’s income.

7.3 Reports.

Licensor will provide the agreed upon Use Data, if any, to Licensee from time to time by making it available in the Noteefy Admin Portals or as otherwise agreed upon in writing by the Parties.

7.4 Delinquent Payments.

Any payments not received when due will be considered delinquent. Without limiting Licensor's other rights and remedies: (a) Licensor may charge interest to Licensee on all past due amounts, including the entire past due balance, late payment fees, and collection costs, at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under Applicable Law; and (b) Licensee will reimburse Licensor for all costs Licensor incurs in collecting any amounts due from Licensee, including reasonable attorneys' fees, court costs, and collection fees. Interest will accrue from the date the applicable payment was due until paid in full and Licensee’s account is current.

Late, rejected, reversed, or returned payments are also subject to a monthly late payment fee (if disclosed in the Order Form) beginning on the date the payment was due and continuing until Licensee’s account is current with no outstanding overdue balances. Licensor reserves all other rights and remedies under this Agreement that it may have with respect to late, rejected, returned, or reversed payments under this Agreement. If a payment is late, rejected, or reversed or otherwise missed, and Licensee does not rectify and return the account to current within five business days of notice from Licensor, then Licensor may also, at its discretion, lock the Noteefy Admin Portals and disable the Confirm Tool and the Waitlist Tool on the Licensee’s website, terminate this Agreement, or pursue any other remedies available to it, and, if this Agreement is not terminated, Licensor may continue to collect the License Fee, late payment fees, interest, and any other collection costs until Licensee’s account is again current. To bring the account current after a late, rejected, or reversed payment, Licensee must make all outstanding payments in full, including applicable late payment fees, interest, and any other collection costs or expenses.
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8. CONFIDENTIALITY

8.1 Confidential Information.

In connection with this Agreement, each Party acknowledges that it may receive the other Party’s confidential or proprietary information, whether orally or in written, electronic, or other form and whether or not marked, designated, or otherwise identified as “confidential” (the “Confidential Information”), and each Party will (i) treat the other Party’s Confidential Information in a confidential manner; (ii) not use any of the other Party’s Confidential Information for any purpose not expressly contemplated by this Agreement; (iii) not copy, use or disclose the Confidential Information to third parties without the express written consent of the other Party; (iv) cause its employees, Affiliates, and representatives to comply with the terms and provisions of Section 8 while remaining responsible for the actions and disclosures of such employees, Affiliates, and representatives; and (v) upon expiration or termination of this Agreement, promptly return or destroy all of the other Party’s Confidential Information that is in written or tangible form in accordance with Section 8.2.

Without limiting the foregoing, for purposes of this Agreement, the Licensed Software, the Use Data, and the End User Personal Data collected or used in the Waitlist Tool will be deemed Confidential Information of Licensor, and the Licensee Intellectual Property and the End User Personal Data collected or used in the Confirm Tool will be deemed Confidential Information of Licensee. To the extent the End User Personal Data in the Confirm Tool and in the Waitlist Tool are identical, each Party may consider the identical data to be its Confidential Information and will not be liable to the other Party for failure to protect that information under Section 8, although such information is still subject to the other promises and obligations under this Agreement and liability may arise under other Sections of this Agreement.

The terms and content of this Agreement are Confidential Information of Licensor and will not be revealed to any third party by Licensee, except to the extent (i) permitted by this Agreement, (ii) required by Applicable Law, or (iii) made to a court or other mediator in connection with a dispute between the Parties. Licensee understands that, although Licensee’s specific License Fee and other pricing information is “Confidential Information” of both Licensee and Licensor, Licensor may offer and provide this Agreement to other licensees, with different terms or with the same or substantially identical terms.

“Confidential Information” does not include information that: (a) is now or subsequently becomes public knowledge through no fault, omission, or other act of the Party receiving Confidential Information (the “Recipient”); (b) was already in the Recipient’s possession at the time of disclosure and was not obtained directly or indirectly from the Disclosing Party; or (c) was received by the Recipient from an independent third party free of any restriction and without breach of any obligation owed to the Disclosing Party.

8.2 Return or Destruction of Confidential Information.

At any time after the Term, at the Disclosing Party's written request, the Recipient and its Affiliates will promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Despite the foregoing, the Recipient may retain copies of Confidential Information that are stored on the Recipient’s IT backup and disaster recovery systems until the ordinary course deletion thereof. The Recipient will continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.

8.3 Survival.

The provisions of Section 8 survive any termination of the Agreement.
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9. REPRESENTATIONS AND WARRANTIES

9.1 Mutual Representations and Warranties.

Each Party represents and warrants to the other that as of the date hereof: (i) it has the power and authority to enter into this Agreement and to perform all of its respective obligations and undertakings and to grant the rights set forth herein; (ii) the execution and delivery of this Agreement, the performance of its obligations hereunder, and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate, board, and shareholder action, as applicable; (iii) this Agreement constitutes legal, valid, and binding obligations enforceable against such Party in accordance with its respective terms; (iv) it is validly existing and in good standing under the laws of the jurisdiction of its organization, and (v) the execution, delivery and performance of this Agreement does not and will not conflict with or violate any organizational documents of such Party, any Applicable Law, the terms of any agreement between it and a third party, or require the consent, notice, declaration, or filing with or other action by any Person.

9.2 Licensee Representations and Warranties.

Without limiting the generality of Section 9.1, Licensee represents and warrants to Licensor that: (i) to the best of Licensee’s knowledge, the Licensee Intellectual Property does not infringe the copyrights, trademarks, trade dress, patents, intellectual property rights or any other right of any third party; and (ii) Licensee will only make the Licensed Software available to End Users in accordance with Licensor’s instructions and the terms of this Agreement.

9.3 Licensor Representations and Warranties.

Without limiting the generality of Section 9.1, Licensor represents and warrants to Licensee that: (i) to the best of Licensor’s knowledge, the Licensor Intellectual Property does not infringe the copyrights, trademarks, trade dress, patents, intellectual property rights or any other right of any third party; (ii) when initially made available by Licensor to Licensee, the Licensed Software is free from viruses and any malicious code and will operate in accordance with this Agreement (this applies prior to installation and does not include any corruption, inoperability, viruses, or malware or malicious code introduced by Licensee’s systems or during the attempt to implement the Licensed Software on Licensee’s systems); and (iii) Licensor will use commercially reasonable efforts to maintain the System Availability set forth in Exhibit A, subject to the Exceptions..

In connection with this Section, Licensee’s sole remedy, except as otherwise provided in Section 11.3 or Exhibit A (as applicable to Section 9.3 (iii)), is (at Licensor’s option): (a) repair or replacement by Licensor of the Licensed Software with Licensed Software that is compliant with this Agreement or (b) termination of this Agreement. The implementation fee, if any, will not be refunded to Licensee unless implementation was not possible due to no fault of Licensee or its systems, and Licensor exercises its right to terminate this Agreement rather than repair or replace the Licensed Software. Section 11.3 supersedes this Section with respect to, and describes the sole remedy for, any Claims described and included in that Section.

9.4 Disclaimer of Warranties.

The warranties set forth above are limited warranties and are the only warranties provided by Licensor with respect to the Licensed Software. Licensor expressly disclaims, and Licensee hereby expressly waives, all other warranties, express or implied, including warranties of merchantability, fitness for a particular purpose. Except for the limited warranties set forth herein, Licensor provides and Licensee accepts the Licensed Software, Use Data, and Support Services “as is” without any warranties, express, implied, or statutory.

There is no warranty or guarantee that the Licensed Software or Use Data will be error free or sufficient for Licensee’s or an End User’s purposes. Licensee agrees that its use of the Licensed Software is at its own discretion and risk and that the Licensee is solely responsible for any damage to Licensee’s computer systems or other devices, including those of Licensee Authorized Users, or any loss of data that results from use by Licensee Authorized Users or End Users. Licensee is solely responsible for any Licensee website that features the Licensed Software and any and all use by Licensee, Licensee Authorized Users, and any End Users using Licensee’s website to access or use the Licensed Software.

10. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, EXCEPT IN CASE OF ANY INFRINGEMENT OR MISAPPROPRIATION OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY, BREACHES OF THE CONFIDENTIALITY TERMS, OR DAMAGES FINALLY AWARDED TO A THIRD PARTY THAT ARE TO BE INDEMNIFIED UNDER SECTION 11, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSS OF BUSINESS OR PROFITS, OR REPLACEMENT COSTS, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EXCEPT IN THE CASE OF ANY INFRINGEMENT OR MISAPPROPRIATION OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY, UNDER NO CIRCUMSTANCES WILL LICENSOR’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY WARRANTY CLAIMS HEREUNDER, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, INFRINGEMENT OR ANY OTHER LEGAL THEORY, EXCEED THE AMOUNT PAID BY LICENSEE DURING THE PREVIOUS 12 MONTHS LEADING UP TO THE CLAIM; PROVIDED, HOWEVER, THAT IN NO EVENT WILL THE LIMITATION SET FORTH HEREIN LIMIT A PARTY’S RIGHT TO OBTAIN EQUITABLE RELIEF AGAINST THE OTHER PARTY OR LIMIT LICENSOR’S RIGHT TO ANY PAYMENT OF LICENSEE FEES OR OTHER COMPENSATION PAYABLE UNDER THIS AGREEMENT.

EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION REFLECT AN INFORMED, VOLUNTARY ALLOCATION BETWEEN THE PARTIES OF THE RISKS (KNOWN AND UNKNOWN) THAT MAY EXIST IN CONNECTION WITH THIS AGREEMENT.

11. INDEMNIFICATION; INTELLECTUAL PROPERTY INGFRINGEMENT

11.1 Licensee’s Indemnity.

Licensee will indemnify, defend and hold harmless the Licensor and its owners, officers, directors, employees, and contractors against any and all claims, damages, liabilities, charges or expenses raised against or incurred by the foregoing Indemnified Parties as a result of a third party claim arising out of or related to (i) Licensee’s material breach of any of its obligations or representations and warranties under this Agreement; (ii) any negligent or tortious act, willful misconduct or willful omission by Licensee; or (iii) any illegal or unauthorized use of the End User Personal Data or the Licensor Intellectual Property, including the Licensed Software and the Use Data, or breach of Privacy Laws, by Licensee or the Licensee Authorized Users.

11.2 Licensor’s Indemnity.

Licensor will indemnify, defend and hold harmless the Licensee and its owners, officers, directors, employees, and contractors against any and all claims, damages, liabilities, charges or expenses raised against or incurred by the foregoing Indemnified Parties  as a result of a third party claim arising out of or related to (i) Licensor’s material breach of any of its obligations under this Agreement; (ii) any negligent or tortious act, willful misconduct or willful omission by Licensor; or (iii) any illegal or unauthorized use of the End User Personal Data or the Licensee Intellectual Property, or breach of the Privacy Laws, by Licensor.

11.3 Infringement Claim.

If the Licensed Software becomes subject to any claim, suit, action or proceeding alleging that Licensee’s use of the Licensed Software according to this Agreement’s terms and conditions infringes or violates a third party’s patent, copyright, trade secret, or other intellectual property right (a “Claim”), or if as a result of a Claim or the settlement thereof, Licensee’s use of the Licensed Software under this Agreement is prohibited or enjoined, Licensor will in its sole and absolute discretion: (i) obtain for Licensee the right to use the Licensed Software; (ii) modify the Licensed Software so that it becomes non-infringing but without impairing its functionality or deleting any material features; (iii) replace the Licensed Software with non-infringing software having features and functionality substantially similar to the Licensed Software and customizations reasonably acceptable to Licensee; or (iv) if the foregoing actions in clauses (i) through (iii) are not reasonably available after having used commercially reasonable efforts to cause or obtain the same, terminate this Agreement upon 30 days’ advance written notice to Licensee.

11.4 Exclusions.

Notwithstanding any other provision of Section 11, Licensor will have no liability or indemnity obligations for any claim arising (i) from Licensee’s alleged breach of a contractual obligation to any third party, whether express, implied or quasi contractual; or (ii) from any modifications or customizations of the Licensed Software other than those made by Licensor.

11.5 Exclusive Remedy.

NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SECTIONS 11.2 AND 11.3 REPRESENT LICENSOR’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDIES WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED SOFTWARE, WHETHER UNDER THEORY OF CONTRACT, WARRANTY, INDEMNITY OR OTHERWISE.

11.6 Notice; Participation.

The Party claiming indemnification under Section 11 (the “Indemnified Party”) must promptly notify the other Party (the “Indemnifying Party”) of any such claim of which it becomes aware and will, at the Indemnifying Party’s expense, provide reasonable cooperation in connection with the defense or settlement of any such claim. In connection with any third party claim giving rise to indemnity hereunder, Licensor’s counsel will assume the defense of any such action and its fees and expenses in defending such action will be paid by the Indemnifying Party. No action taken by the Indemnified Party in accordance with such defense, including the settlement of such action, will relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any damages resulting therefrom.

11.7 Licensor’s Insurance.

During the Term, Licensor will carry commercially reasonable insurance policies including commercial general liability insurance with a limit of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate.
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12. TERM AND TERMINATION

12.1 Term.

The term of this Agreement will be the term specified in the Order Form or other written agreement between the Parties, or if not otherwise agreed to by the Parties in writing, will commence on the Effective Date and end on the day before the one year anniversary of the Effective Date (the “Initial Term”), unless terminated earlier pursuant to the terms herein or as otherwise agreed in the Order Form or by the Parties in writing. This Agreement will automatically renew following the Initial Term in successive one year terms (each an “Extension Term”; the Extension Terms, together with the Initial Term, collectively, the “Term”), unless terminated by either Party for any reason with written notice at least 30 days prior to the expiration of the Initial Term or any given Extension Term, or unless otherwise terminated as permitted in this Agreement.

12.2 Termination for Convenience.

Licensor may terminate this Agreement at any time, without cause, upon 30 days’ prior written notice to Licensee. If Licensor terminates this Agreement without cause, Licensor will refund to Licensee the prorata portion of the fully paid annual subscription fee (not including any implementation fee contained therein) for the number of full months during the year covered by the annual subscription fee that follow the effective date of the termination. Under any other circumstances, subscription fees are not refundable, except as otherwise provided in Section 9.3.

12.3 Termination for Breach.

Termination by Licensor.

If Licensee breaches any material term or condition of this Agreement, including its payment obligations, Licensee will have 30 days after the delivery of written notice by Licensor to reasonably cure the breach. If such breach is not cured within such 30 day period, or if Licensee becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against Licensee and not dismissed within 60 days, Licensor will have the right (but not the obligation) to immediately terminate this Agreement.

Termination by Licensee.

If Licensor breaches any material term or condition of this Agreement, Licensor will have 30 days after the delivery of written notice by Licensee to reasonably cure the breach. If such breach is not cured within such 30 day period, or if Licensor becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against Licensor and not dismissed within 60 days, Licensee will have the right (but not the obligation) to immediately terminate this Agreement.

12.4 No compensation.

Neither Party is entitled to any compensation (whether for the loss of distribution rights, goodwill or otherwise) as a result of the termination of this Agreement at the end of the Term or in accordance with Section 12.2, except that Licensee is entitled to payment of any License Fees that became due but were not paid during the Term and all other fees, costs, taxes, interest, and expenses accrued or incurred by Licensor or otherwise owed to Licensor by Licensee under Section 7.

12.5 Effect of Expiration or Termination.

Upon any expiration or termination of this Agreement, Licensee will immediately (i) cease using the Use Data, End User Personal Data, and any Licensor Intellectual Property including the Licensed Software; (ii) except for one copy if required by law for legal and regulatory purposes, return to Licensor or destroy every copy of the Licensed Software and the Use Data and End User Personal Data in its possession or control; and (iii) upon written request from Licensor, provide Licensor with written certification of its compliance with the foregoing. For the avoidance of doubt, notwithstanding any expiration or termination of this Agreement, Licensor will continue to be entitled to all License Fees arising under this Agreement during the specified Term, even if the Agreement terminates before the end of the Term.
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13. GENERAL PROVISIONS

13.1 Governing Law.

All matters arising out of or relating to this Agreement are governed by and will be construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction).

13.2 Venue.

Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby must be instituted in the federal courts of the United States of America or the courts of the State of California, in each case located in Los Angeles County within the City of Los Angeles, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

13.3 Injunctive Relief.

Each Party acknowledges that a breach or alleged or threatened breach by the other Party of any confidentiality obligations or infringement or misuse of any intellectual property or intellectual property rights of a Party would cause the irreparable harm for which monetary damages would not be an adequate remedy, and each Party agrees that, in the event of such breach or alleged or threatened breach, the injured Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

13.4 Waiver of Jury Trial.

Each Party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each Party to this Agreement certifies and acknowledges that (a) no representative of any other Party has represented, expressly or otherwise, that such other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such Party has considered the implications of this waiver, (c) such Party makes this waiver voluntarily, and (d) such Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section.

13.5 Entire Agreement; Amendment.

This Agreement and all related exhibits and schedules and Order Forms, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. To the extent of any conflicting terms between this Agreement and the Order Form, this Agreement will prevail, except with respect to terms specifically added to the Order Form to modify this Agreement (in which case, the Order Form will prevail as to those terms).

This Agreement may be amended, modified, or supplemented by an agreement in writing signed by each Party. Signing of a new Order Form by the Parties incorporating the new terms of this Agreement is a satisfactory signed writing for purposes of amending this Agreement. This Agreement may also be unilaterally amended by Licensor upon notice to Licensee at least 30 days before the amendment becomes effective and Licensee will have 10 days to terminate this Agreement by written notice to Licensor from the date of the notification from Licensor. If Licensee does not terminate this Agreement within the 10-day period, then the amendment will be deemed accepted by Licensee. Despite the foregoing, the License Fee may only be increased by Licensor during a Term as described in Section 7.1 or by written agreement or Order Form signed by both Parties.

13.6 Assignment.

This Agreement may not be assigned by either Party to any other Person without the express written approval of the other Party and any attempt at assignment in violation of this Section is null and void. Despite the foregoing, Licensor may assign this Agreement without such consent to (i) any Affiliate, or (ii) any third party in the event of a merger, reorganization, or sale of all or substantially all of Licensor’s assets or voting securities.

13.7 Publicity.

Subject in all respects to Section 8, the Parties agree that Licensor may issue press releases and make public statements regarding this Agreement and the transactions contemplated hereby, including disclosing that Licensee is a customer that licenses the Noteefy Course Solution, with the prior consent of the Licensee, which consent will not be unreasonably withheld.

13.8 Notices.

Except for routine notices (which may be delivered via email), all notices, requests, consents, claims, demands, waivers, and other communications hereunder must be in writing and will be considered given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); or (c) on the third day after the date mailed, by certified mail (return receipt requested, postage pre-paid). Notices must be sent to the respective Parties at the following addresses (or at such other address specified for a Party in a notice given in accordance with this Section):

If to Licensee: to the address specified in the Order Form.

If to Licensor:
Noteefy Inc.
Attn: Jake Gordon
22543 Ventura Blvd, Ste 220 PMB1136
Woodland Hills, CA 91364
Email: jake@noteefy.app

13.9 Waiver.

No waiver by any Party of any of the provisions in this Agreement is effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party will operate as a waiver with respect to any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement is a waiver thereof; nor does any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

13.10 Independent Contractors.

The Parties acknowledge and agree that they are dealing with each other hereunder as independent contractors. Nothing contained in this Agreement will be interpreted as constituting either Party the joint venture, employee or partner of the other Party or as conferring upon either Party the power of authority to bind the other Party in any transaction with third parties. Notwithstanding the foregoing, all services provided must be performed in the United States unless specifically stated otherwise in a written amendment.

13.11 Force Majeure.

No Party is liable or responsible to the other Party, nor will be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except under Section 6, Section 8, or any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the affected Party's reasonable control, including: (a) acts of God; (b) flood, fire, earthquake, other potential disasters or catastrophes, such as epidemics and pandemics (including the Covid-19 pandemic), or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (i) shortage of adequate power or transportation facilities (a “Force Majeure Event”). The Party suffering a Force Majeure Event must give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue, and must use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.

13.12 Severability.

Any provision of this Agreement, or the application thereof to any person or circumstance, that, for any reason, in whole or in part, is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement (or the remaining portions of such provision) or the application thereof to any other person or circumstance, and any such prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable such provision (or portion thereof) or the application thereof to any person or circumstance in any other jurisdiction.

13.13 Counterparts.

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are one and the same agreement. A signed copy of this Agreement delivered by email or other recognized means of secure electronic transmission (such as DocuSign or AdobeSign) have the same legal effect as delivery of an original signed copy of this Agreement. This Agreement may be duly executed by the Parties by signing an Order Form that incorporates this Agreement and its terms by reference.

13.14 Third Parties.

The Parties confirm that there are no third-party beneficiaries to this Agreement. Except as explicitly granted to Indemnified Parties within the indemnification provisions to this Agreement, the Parties do not intend to and do not confer any rights on any third parties by virtue of this Agreement, and accordingly any provisions of law conferring rights to third parties will not apply to this Agreement.

13.15 Attorney’s Fees.

Should either Party hereto initiate a legal or administrative action or proceeding (an “Action”) to enforce any of the terms or conditions of this Agreement, the prevailing Party is entitled to recover from the losing Party all reasonable costs of the Action, including attorneys’ fees and all other costs and expenses.

13.16 Export Regulation.

The Licensed Software may be subject to export control laws, including the Export Control Reform Act and its associated regulations. Licensee will not, directly or indirectly, export, re-export, or release the Licensed Software to, or make the Licensed Software accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Licensee will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Licensed Software available outside the United States.

13.17 Survival.

Any rights, obligations, or required performance of the Parties in this Agreement which, by their express terms or nature and context are intended to survive termination or expiration of this Agreement, will survive any such termination or expiration, including the rights and obligations set forth in Sections 2, 4, 5, 6, 7, 8, 10, 11, 12.5, and 13.

13.18 Successors and Assigns.

This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.

13.19 Headings; Interpretation.

The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules, exhibits, and Order Forms referred to in this Agreement are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. The terms and any form of the terms “including” or “includes” will be interpreted as if followed by “without limitation to.”

13.20 Further Assurances.

Each of the Parties hereto will, and will cause their respective Affiliates to, execute and deliver such additional documents, instruments, conveyances, and assurances and take such further actions as may be reasonably required to carry out the provisions hereof and give effect to the transactions contemplated hereby.

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