Last Updated: December 1, 2024

 

This Master Services Agreement governs Order Forms executed on or after the “Last Updated” date set forth above unless you have a separate written agreement with Provider; in such case, this Master Services Agreement will not apply to those Offerings governed by that separate written agreement.

This Master Services Agreement is entered into by and between the GeoComply entity or entities identified as the Provider in the applicable Order Form (the “Provider”) and the entity or entities identified as the Customer in the applicable Order Form (the “Customer”) and, together with all applicable Order Forms, exhibits, and attachments (including linked online supplements), is the complete agreement of the Parties regarding the Customer’s access to and use of the Offerings (the “Agreement”). In the event of a conflict or inconsistency among the documents comprising the Agreement, the following order of precedence will govern: (a) the applicable Order Form, (b) the applicable Product Terms, (c) the Data Processing Addendum, (d) this Master Services Agreement, and (e) any other document not referenced in this sentence. Customer and Provider are referred to in the Agreement individually each as a “Party” and together as the “Parties.”

1. Rights and Restrictions

1.1. Customer’s Limited License and Rights to the Offerings. Provider hereby grants Customer a non-exclusive, limited, revocable, non-transferable (except as may be provided for in an applicable Order Form), non-sublicensable (except as provided in Section 1.2 below) license and right during the Order Form Term to access and use the Offerings set forth in that Order Form solely within the Territory for the Permitted Purpose, in accordance with the applicable Documentation and the Agreement.

1.2. Approved Sublicensees. If the applicable Order Form expressly permits, and the applicable Product Terms do not prohibit, sublicensing a particular Offering, then, notwithstanding anything to the contrary in the Agreement, and subject to Customer’s ongoing compliance with the Agreement, Provider hereby grants Customer the right to sublicense the applicable Offering to Approved Sublicensees which have each been pre-approved in writing by Provider, with such pre-approval not to be unreasonably withheld. Customer will: (a) provide to Provider all reasonably necessary information it may require regarding the Approved Sublicensee; (b) ensure each Approved Sublicensee complies with all terms applicable to Customer under the Agreement; and (c) be liable for any Approved Sublicensee’s failure to comply with such terms. Provider reserves the right to withdraw its approval of any Approved Sublicensee if Provider determines, in its reasonable discretion, that such Approved Sublicensee has failed to meet standard know-your-customer or due diligence requirements and has failed to promptly cure such failures after notice, in which case Customer’s right to sublicense the applicable Offering to such Approved Sublicense will immediately terminate.

1.3. Customer’s Restrictions in the Offerings. Except as expressly permitted in writing by Provider, Customer will not allow any Person other than Authorized Users and any Authorized Third-Parties (in accordance with Section 5.3 below) to access or use the Offerings from Customer’s accounts (including Online Services and Customer Portal), and Customer will not, and will not authorize or cooperate with any Authorized User, Authorized Third-Party, or any other party to: (a) attempt to interfere with or disrupt the Offerings (or any related systems or networks) or use the Offerings other than directly for Customer’s benefit in connection with the Permitted Purpose; (b) scrape, copy, modify, unbundle, or distribute any portion of the Offerings; (c) rent, lease, assign, or resell the Offerings; (d) transfer any of its rights hereunder; (e) reverse-engineer or access all or any portion of the Offerings for competitive analysis or in order to build or improve a similar or competitive product or service; (f) access or use the Offerings in any jurisdiction Customer has not obtained the required regulatory approvals and/or licenses, if any, necessary to access or use the Offerings; (g) pre-fetch, cache, index, copy, re-utilize, extract, or store any data that is extracted or derived from an Offering via query by Customer except as strictly required for the Permitted Purpose; (h) use any Offerings or Provider Data for any of the following purposes: (i) in connection with establishing an individual’s eligibility for credit or for the review or collection of a credit account of an individual; (ii) in connection with underwriting insurance to be used primarily for personal, family, or household purposes; (iii) for employment purposes or for tracking the physical location of employees; (iv) in connection with a determination of an individual’s eligibility for a license or other benefit granted by a government agency; (v) as a potential investor or servicer, or current insurer, in connection with a valuation of, or assessment of credit or prepayment risks associated with, an existing credit obligation; (vi) to determine an individual’s eligibility for any purpose under Section 604 of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681b; or (vii) to take any “adverse action”, as that term is defined in Section 603(k) of the federal Fair Credit Reporting Act, 15 U.S.C. § 1681a(k), against an individual; (i) combine, use or distribute any Offering with other software that could materially threaten the required licensure or regulatory approvals, if any, of any portion of the Offerings; (j) combine, use or distribute any Offering with other software that could cause or result in any portion of the Offerings to be subject to any open source license or similar license that: (i) requires as a condition of use, modification or distribution that the Offering or such other software to be: (A) made available or distributed in a form other than binary (e.g., in source code form); (B) licensed for the purpose of making derivative works; (C) licensed under terms that allow for reverse engineering, reverse assembling or disassembling of the Offering (other than as required to by law); or (D) redistributable at no charge; or (ii) requires or purports to require the grant of any license, covenant not to sue, authorization or other right with respect to patents or patent applications; (k) include any data from an End User in Customer Data without the End User’s informed consent or opt-in authorization sufficient to comply with Applicable Data Protection Laws; (l) provide or make available to Provider or any of its Affiliates any “cardholder data” or “sensitive authentication data” as defined under the Payment Card Industry Data Security Standards or Applicable Law, including any Primary Account Number (e.g., credit or debit card account number) beyond the first six (6) or last four (4) digits or any card validation code (e.g., security code).

1.4. Customer’s Rights. Subject to the limited licenses and rights granted to Provider under the Agreement, Customer owns and retains all rights in and to: (a) the Customer Application(s), (b) Customer Data; and (c) all Intellectual Property Rights in and to any of the foregoing.

1.5. Provider’s Rights. Subject to the limited licenses and rights granted to Customer under the Agreement, Provider owns and retains all rights in and to: (a) the Offerings, and all improvements, enhancements, or modifications to them made by any Person; (b) the Usage Data; (c) the Provider Data; (d) any software, applications, inventions or other technology developed by Provider in connection with providing the Offerings; (e) any suggestions or other feedback concerning the Offerings provided by Customer, its Authorized Users, and its Authorized Third-Parties, and (f) all Intellectual Property Rights in and to any of the foregoing. When Customer provides or makes accessible Customer Data to Provider, Customer authorizes and hereby grants the right and license to Provider and its designees to use Customer Data solely to develop, improve, protect, operate, and make available the Offerings and other Provider products and services, in accordance with Applicable Law, the Privacy Statement, and the Data Processing Addendum. Notwithstanding anything in the Agreement to the contrary, Provider is expressly authorized to use and disclose Usage Data and Other Anonymized Data without restriction, including in the development and delivery of its products and services.

2. Provider’s Obligations

2.1. Compliance with Applicable Laws. Provider will comply with all Applicable Laws in providing the Offerings, including Applicable Data Protection Laws as it relates to the collection and processing of End User Data. Provider will promptly inform Customer of any legal or regulatory demand, notice, investigation, penalty, or other proceeding, that it receives or becomes aware of that would affect Provider’s provision to Customer or Customer’s use of the Offerings.

2.2. Data Security and Privacy. Provider will maintain physical, technical, and administrative security measures designed to protect Customer Data from unauthorized access and disclosure. Provider will process Customer Data in accordance with the Data Processing Addendum and Provider’s Privacy Statement.

2.3. Setup and Provision of Offerings. As necessary and appropriate, and with necessary Customer cooperation, Provider will provide or create a testing environment for the Offering. Unless specifically stated otherwise in the applicable Order Form or Documentation, the Offerings will be made available in the English language only. Customer acknowledges that the Offerings rely upon Customer Data and if Customer ceases to provide Customer Data or requires Provider to return or destroy any Customer Data, Provider may be unable to continue providing an Offering to Customer.

2.4. Support. Provider will provide Client with technical support, as applicable to the respective Offering, in accordance with Provider’s standard practices and consistent with general industry standards.

3. Customer’s Obligations

3.1. Compliance with Applicable Laws. Customer will comply with all Applicable Laws in its access and use of the Offerings, including Applicable Data Protection Laws as it relates to the collection, control, and processing of End User Data, including, without limitation, obtaining all necessary consents and opt-ins from its End Users necessary for its implementation and use of the Offerings (in a Customer Application or otherwise). Customer will at all times maintain, conspicuously display to its End Users, and abide by a privacy policy that complies with Applicable Data Protection Laws. Customer will promptly inform Provider of any actual or potential legal or regulatory demand, notice, investigation, penalty, or other proceeding, that it receives or becomes aware of in any way related to or arising from Customer’s access or use of the Offerings.

3.2. KYC & Due Diligence. Customer will promptly provide all reasonably requested information for Provider to satisfy its “Know Your Customer” and other due diligence requirements.

3.3. Updates. Customer will promptly install Updates and, if required by Applicable Law or any applicable legal or regulatory authority, no later than the date so required.

3.4. Customer Security. Customer is responsible for all activities conducted under its and its Authorized Users’ and any Authorized Third-Parties’ accounts. Except as may be expressly provided otherwise, Customer will take sufficient steps to ensure that (a) its access to the Offerings, the Customer Portal, Authorized Users’ accounts, and applicable Third-Party Supplier platforms and systems will be restricted to Customer’s employees or agents who are properly engaged in the provision of Customer Applications, and (b) such employees and agents will not utilize such access for personal or improper means. Customer will limit its employees’ and agents’ access to passwords, access codes, or other confidential information necessary for such access to those employees and agents with a need-to-know in connection with the Customer Application. Customer will notify Provider promptly, but no later than forty-eight (48) hours if Customer knows of or suspects unauthorized access to any Offering, Authorized User account, or to any Third-Party Suppliers’ platforms and systems. Customer will cooperate with Provider in implementing other reasonable access security controls recommended by Provider or its Third-Party Suppliers. Customer is responsible for the workstations, software, internet access, and hardware, including all aspects of the physical, technical, and administrative security that it uses with the Customer Application and to send and
receive data from Provider or its Third-Party Suppliers.

4. Representations & Warranties

4.1. Mutual. Each Party represents and warrants to the other Party that: (a) it has the legal power and authority to enter into this Agreement; and (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its domicile.

4.2. By Customer. Customer represents and warrants that it is entitled to transfer the Customer Data (including End User Data) to Provider so that Provider and its authorized Third-Party Service providers may lawfully use, process, and transfer the Customer Data in accordance with this Agreement.

4.3. By Provider; Disclaimer. The Offerings will materially conform to the specifications set forth in the Agreement and Documentation when accessed and used as permitted under the Agreement, and Provider will perform its other obligations under the Agreement in a professional and workmanlike manner substantially consistent with general industry standards. As Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy for any breach of this Section 4.3 Provider will use commercially reasonable efforts to modify the Offerings to correct the non-conformity. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, PROVIDER DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF ANY OFFERINGS OR THAT PROVIDER WILL CORRECT ANY DEFECTS OR PREVENT DISRUPTIONS. THE EXPRESS WARRANTIES CONTAINED IN THE AGREEMENT ARE THE EXCLUSIVE WARRANTIES FROM PROVIDER AND REPLACE ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, NON- INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER WARRANTIES WILL NOT APPLY IF THERE HAS BEEN MISUSE, MODIFICATION, DAMAGES NOT CAUSED BY PROVIDER, OR FAILURE TO COMPLY WITH INSTRUCTIONS PROVIDED BY PROVIDER. PROVIDER DISCLAIMS ALL LIABILITY FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. PROVIDER MAKES BETA SERVICES AVAILABLE AS-IS WITHOUT WARRANTIES OF ANY KIND.

5. Confidentiality & Third-Party Access

5.1. Confidentiality. Each Party agrees to protect the Confidential Information (as defined below) of the other Party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event using less than a reasonable standard of care. A Party will not: (a) disclose or use any Confidential Information of the other Party for any purpose outside the scope of this Agreement, except with the disclosing Party’s prior written permission and (b) disclose or make the other Party’s Confidential Information available to any party, except those of its employees, contractors, and agents that have signed an agreement containing disclosure and use provisions substantially similar to those set forth herein and have a “need to know” in order to carry out the purpose of the Agreement. Confidential Information does not include any information that (i) is or becomes generally known to the public, other than as a result of the act or omission of the receiving Party; (ii) was rightfully known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) is lawfully received from a third party without breach of any obligation owed to the other Party; or (iv) was independently developed by a Party without breach of any obligation owed to the other Party. If a Party is compelled by law to disclose Confidential Information of the other Party, it will provide prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance if the other Party wishes to contest the disclosure. Due to the unique and sensitive nature of the Parties’ respective Confidential Information, there may be no adequate remedy at law for a Party’s breach of its obligations hereunder, and any such breach may result in irreparable harm to the non-breaching Party. Therefore, upon any such breach or threat thereof, the Party alleging breach will be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies available to it. This Section 5.1 will not cancel, terminate, or modify any nondisclosure or confidentiality agreement(s) previously entered into by the Parties.

5.2. Third-Party Access.

5.2.1. Except as otherwise expressly permitted in the Agreement, Customer will not disclose, provide, or otherwise share any Offerings, Provider Data, or Usage Data with any third parties, including Customer’s third-party service providers, suppliers, developers, contractors, or consultants without Provider’s written consent.

5.2.2. Notwithstanding the foregoing, Provider may: (a) communicate with Authorized Third-Parties and Authorized Users on behalf of Customer as reasonably necessary to facilitate any necessary technical integrations between Customer, Provider and Authorized Third-Parties to enable Customer to use an Offering; and (b) communicate with Authorized Third-Parties and any third-party payment processor on behalf of Customer relating to any transaction that Customer submits through an Offering, solely for the purpose of providing such Offering to Customer.

5.2.3.Notwithstanding the foregoing, Customer may provide limited access to certain Offerings, Provider Data, and Usage Data to Authorized Third-Parties, provided: (a) Provider has provided prior written consent, (b) such Authorized Third-Party has entered into an appropriate form of limited license and or non-disclosure agreement as may be required by Provider from time to time, (c) such third party does not develop or provide any services similar to or competitive with any of Provider’s Offerings, and (d) Customer will be fully liable for the access, use, and disclosure of the Offerings, Provider Data, and/or Usage Data by its Authorized Third-Parties.

5.2.4.Provider retains the sole and absolute discretion from time to time as to which, if any, Authorized Third-Parties of Customer receive any access to Offerings and/or Provider Data, which content they are able to access, and any necessary restrictions on such access.

6. Payments & Taxes

6.1. Invoices & Fees. Provider will submit to Customer monthly and/or other periodic or timely invoices with respect to the Offerings and other services provided by Provider to Customer under the Agreement. Unless the applicable Order Form expressly provides otherwise, Customer’s payment obligations, including the Fees, are: (a) stated and will be paid in U.S. Dollars, (b) due within thirty (30) days of receipt of an invoice from Provider by electronic transfer (or other means specified by Provider) to such bank account as notified by Provider to Customer from time to time, (c) to be paid in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law), and (d) non-cancellable and non-refundable.

6.2. Payment Disputes. If Customer has a good-faith disagreement about any Fees invoiced, Customer must: (a) pay all undisputed Fees on time and must notify Provider about the dispute before payment is due at the Provider Primary Contact Email Address and also the Email Address for Legal Notice; and (b) give Provider written notice of any bona fide dispute to legal@geocomply.com and billing@geocomply.com by the due date of the invoice containing the Fees subject to the good-faith disagreement, with such notice detailing the basis for the good-faith disagreement. The Parties will then promptly meet and confer in good faith to resolve the dispute within ten (10) days.

6.3. Late Payments. If Customer has failed to pay an invoice within the time required, Provider may: (a) after ten (10) days’ additional written notice, suspend Customer’s access to or use of any Offerings until all Fees not subject to a good-faith disagreement are paid in full, and (b) charge Customer interest on all overdue Fees, including Fees that are determined to be properly payable after a good-faith disagreement, at the monthly rate of 1.5% (compounding) or the maximum interest rate permitted by law, whichever is less, for each month that such Fees are overdue if: (i) Customer has not given Provider the notice required by Section 6.2(b) or the Parties determine the disputed Fees should have been paid, (ii) the Parties agree in writing that the disputed Fees should have been paid, or (iii) the dispute resolution process set forth in Section 10.16 determines that the disputed Fees should have been paid.

6.4. Taxes. All Fees and other amounts stated or referred to in the Agreement are exclusive of all taxes, duties, levies, tariffs, and other governmental charges (“Taxes”). Customer will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Provider’s net income. If Provider has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.

7. Term; Termination; Effect of Termination or Expiration; Suspension

7.1. Term. The term of each Order Form (the “Order Form Term”) will be set forth in such Order Form. The term of the Agreement (a) will commence on the Order Effective Date of the first Order Form between Provider and Customer which is subject to the Agreement, and (b) will remain in effect until expiration or termination in accordance with the Order Form or this Master Services Agreement, including Section 7.2 below. If there are no operative Order Forms for a period of ninety (90) consecutive days, the Master Services Agreement will expire automatically after such 90-day period.

7.2. Termination.

7.2.1. For Breach. Either Party may terminate the Agreement if the other Party is in material breach of the Agreement and fails to cure such breach within thirty (30) days after written notice of the breach, if such breach is capable of cure.

7.2.2. To Protect Regulatory Approvals and/or Licenses. Either Party may terminate the Agreement altogether or an applicable Order Form upon written notice to the other Party if: (a) required or directed to do so by a competent regulatory authority; (b) a competent regulatory authority elects to disapprove, revoke, suspend or limit in any manner a Party’s regulatory approvals and/or licenses such that a Party’s continued performance under the Agreement or Provider’s provision or Customer’s use of a particular Offering could threaten a Party’s regulatory approvals and/or licenses; or (c) the Party reasonably and in good faith believes that the other Party’s acts or omissions threaten the Party’s applicable regulatory approvals and/or licenses and regulatory approvals. Any termination under subsection (c) will only be effective if the Party has provided the other Party with written notice of the basis of such belief and the other Party has failed to take the necessary steps to resolve such issue within thirty (30) days from receipt of such written notice.

7.2.3. For Insolvency. Either Party may terminate the Agreement upon written notice to the other Party if the other Party: (a) becomes subject to bankruptcy or insolvency proceedings; (b) becomes insolvent, makes an arrangement with or affecting its creditors (including an assignment for the benefit of a creditor) to commence a process of liquidation; (c) has a receiver or trustee appointed; (d) ceases or threatens to cease to carry on business; or (e) claims the benefit of any statutory moratorium.

7.3. Effect of Termination or Expiration. Except as may be expressly provided in an applicable Order Form, upon expiration or termination of an Order Form, Customer’s rights with respect to the applicable Offerings will end. Upon termination or expiration of the Agreement (however caused), all applicable Order Forms subject to the Agreement will terminate and Customer’s rights with respect to all applicable Offerings will end. Except as may be expressly provided in an applicable Order Form or the Agreement, promptly upon expiration or termination of the applicable Order Form or the Agreement, Customer will: (a) stop all access to and use of the applicable Offerings; (b) uninstall and destroy any and all copies of any Software, Documentation, tools, materials, services or information made available by Provider in connection with or as part of the applicable Offerings; (c) permanently clear and destroy any Customer-side Provider Data; and (d) promptly remove and any all references to the applicable Offerings from the Customer Applications. At Provider’s request, Customer will certify in writing to Provider its compliance with the provisions of this Section 7.3. Notwithstanding the foregoing, Customer may use, store, and retain any Provider Data for a commercially reasonable period of time during the term of the applicable Order Form and after expiration or termination of the Agreement as required: (i) for record retention purposes imposed by Applicable Law; (ii) to respond to governmental, law enforcement or regulatory authorities in response to legitimate and valid inquiries of such third parties to Customer; and (iii) for commercially reasonable historical analysis by Customer of events that occurred during the Order Form Term, so long as such use remains in compliance with the restrictions in Sections 1.3 and 5.1 above. Termination for any reason, other than termination by Customer for Provider’s breach pursuant to Section 7.2.1, will not relieve Customer of the obligation to pay all future amounts due under all Order Forms.

7.4. Suspension. Without limiting and not to the exclusion of any other right (including Provider’s termination rights) under the Agreement, Provider may suspend Customer’s access or use of any Offering or portion thereof if: (a) Customer’s acts or omissions threaten Provider’s regulatory approvals and/or licenses or ability to provide the Offering to its other customers; (b) Customer’s access or use of the Offering may pose a material security, privacy, intellectual property risk, or otherwise may materially impair Provider’s ability to provide the Offerings to its customers; or (c) Customer is in material breach of the Agreement. Provider will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such issue prior to such suspension. Notwithstanding the foregoing, Provider will comply with Section 6.3 relating to the notice required prior to suspension for non-payment of Fees by Customer.

8. Liability

8.1. Limitation of Indirect Damages and Claims. To the fullest extent permitted by law, except for Excluded Claims (as defined below) for which there will be no cap on liability, neither Customer nor Provider nor their respective Affiliates will be liable under the Agreement for any (a) indirect, special, incidental, consequential, exemplary, or punitive damages; or (b) loss of use, data, business, revenues, profits, goodwill, or reputation in any case, whether direct or indirect, even if the Party knew or should have known that such damages were possible, even if a remedy fails of its essential purpose, and regardless of the type of action or theory of liability.

8.2. Total Liability. To the fullest extent permitted by law, except for Excluded Claims (for which there will be no cap on liability) or Special Claims (which are subject to the Enhanced Liability Cap set forth in Section 8.4), neither Party’s aggregate liability under the Agreement will exceed the amount paid or payable by Customer to Provider during the twelve (12) months prior to the event giving rise to liability.

8.3. Excluded Claims. “Excluded Claims” means any claims resulting from fraudulent or intentional misconduct, or gross negligence by either Party.

8.4. Special Claims. “Special Claims” means any claims resulting from (a) any breach by either Party of their respective obligations under Section 5 (Confidentiality & Third-Party Access); (b) any breach by Provider of its obligations under the Data Processing Addendum; (c) any breach by Customer of Section 1.1 (Customer’s Limited License and Rights to the Offerings) and/or Section 1.3 (Customer’s Restrictions in the Offerings), or (d) any amounts payable to third parties pursuant to either Party’s indemnification obligations under Section 9.1 or 9.2. For any and all Special Claims, the liable Party’s aggregate liability under the Agreement will not exceed three times (3x) the amount paid or payable by Customer to Provider during the twelve (12) months prior to the event giving rise to liability (the “Enhanced Liability Cap”).

9. Indemnification

9.1. Indemnification by Provider. Provider will defend Customer, its officers, directors, and employees, from and against any claims, demands, suits or proceedings (“Claims”) brought by a third party against Customer alleging: (a) that the Offerings, as provided by Provider and when used by Customer pursuant to the Agreement, infringes any Intellectual Property Rights of a third party (an “Infringement Claim”); or (b) any material breach of Applicable Law by Provider in the provision of the Offerings to Customer. Provider will indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Provider (including reasonable attorneys’ fees) resulting from such Claims. In the event of any Infringement Claim, Provider may, at its sole option and expense, either: (a) procure for Customer the right to continue to use the applicable Offering without infringement, or (b) modify or replace the Offering with a substantially equivalent system that is non-infringing. If Provider is unable to accomplish (a) or (b) in the immediately preceding sentence, Provider may direct Customer to cease use of the Offering, which direction Customer agrees to follow, and in such case, either Party may then immediately terminate the Agreement without penalty upon written notice to the other Party with Provider refunding on a pro-rated basis any pre-paid unearned Fees. Notwithstanding anything to the contrary contained herein, Provider will have no obligation with respect to any Infringement Claim to the extent it is based upon: (i) any modification of the Offering by Customer, Authorized Third-Party, or any other third party (unless such third party was engaged by Provider), to perform such modifications; (ii) any combination or use of the Offering with any product, service, or system with which the Offering is not intended to operate, as specified in the Agreement or applicable Documentation, and any combination where the Offering is not the “but-for” cause of the alleged infringement; or (iii) any use or other exploitation of the Offering outside the scope of the rights granted hereunder or otherwise in violation of the Agreement. This Section 9.1 sets forth Provider’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement or misappropriation of third-party Intellectual Property Rights of any kind.

9.2. Indemnification by Customer. Customer will defend Provider, its officers, directors, and employees, from and against any Claims brought by a third party against Provider alleging: (a) that the Customer Data infringes or violates the rights of a third party; or (b) any material breach of Applicable Law by Customer in the access or use of the Offerings. Customer will indemnify and hold harmless Provider from and against any damages and costs awarded against Provider or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claims.

9.3. Indemnification Requirements. The Party seeking indemnity under this Section 9 (“Indemnitee”) must give the other Party (“Indemnitor”) the following: (a) prompt written notice of any Claim for which the Indemnitee intends to seek indemnity, (b) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the Claim, at the Indemnitor’s sole expense, and (c) sole control over the defense and settlement of the Claim, provided that the Indemnitee may participate in the defense of the Claim at its sole expense and Indemnitor may not settle any Claim in a manner that imposes any material liability upon Indemnitee or requires Indemnitee to admit any wrongdoing.

10. General Provisions

10.1. Entire Agreement; Severability; No Waiver; Modification; Amendment. The Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter of the Agreement and supersedes any previous agreement or understanding between the Parties in relation to such subject matter. If any provision of the Agreement is invalid or unenforceable, the remaining provisions remain in full force and effect. Failure to enforce or exercise any provision of the Agreement is not a waiver of such provision unless such waiver is specified in writing and signed by the Party granting the waiver. Except as otherwise expressly provided in the Agreement, no modification or amendment to the Agreement (or any component thereof) will be valid unless it is in writing and signed by each of the Parties to the Agreement.

10.2. Assignment. Except as expressly set forth in the Agreement (including Section 1.2 (Approved Sublicensees) and Section 5.3 (Authorized Third-Parties), neither Party may, directly or indirectly, assign or transfer the Agreement (or any component thereof), or delegate any of its rights or obligations under the Agreement, whether by operation of law, contract, or otherwise, without the prior written consent of the other Party, and any attempt to do so in breach of the foregoing will be null and void. Notwithstanding the foregoing, either Party may assign the Agreement without the other Party’s consent to any Affiliate or in connection with an internal reorganization or change of control, subject to the purported assignee obtaining all necessary regulatory licenses and/or approvals as applicable, and such assignee being bound to the Agreement; however, Customer may not assign the Agreement or delegate its obligations under the Agreement to a party that develops or provides (or intends to) any products or services substantially similar to those provided by Provider to Customer or any other competitor of Provider.

10.3. Notices. Provider may give general notices related to the Offerings that apply to all or many customers by email or by posting them through the Customer Portal or Online Services. Other notices under the Agreement must be in writing and sent to the business mailing or email address specified in this Section or the Order Form, unless a Party designates in writing a different address. Notices are deemed given when received. Notices to Provider must be sent to legal@geocomply.com.

10.4. Relationship of the Parties. Provider is an independent contractor, not Customer’s agent, joint venturer, partner, or fiduciary. No right or cause of action for any third party is created by the Agreement or any transaction under it. Provider will have the right to use third-party service providers, subcontractors, and Affiliates to perform any of its obligations and exercise any of its rights under the Agreement, and in such event, Provider will remain responsible for such obligations and exercise of rights.

10.5. Export Control and Economic Sanctions Compliance. Each Party will comply with United States and foreign export control laws or regulations relating to its performance under the Agreement. Without limiting the foregoing, both Parties represent and warrant that for itself, its Affiliates, directors, employees, and contractors, that: (a) it is not listed on any United States government list, or is a prohibited or restricted party; (b) it is not subject to any United Nation, United States, European Union, or any other applicable economic sanctions or trade restrictions; and (c) it does not have operations in a country subject to comprehensive United States trade sanctions.

10.6. Anti-Corruption Compliance. Each Party represents and warrants that it is familiar with the U.S. Foreign Corrupt Practices Act, and all other Applicable Laws regarding anti-corruption and anti-bribery, and both Parties represent and warrant that for itself, its Affiliates, directors, employees, and contractors, that every other person working on their behalf will comply with.

10.7. Audit. During the Order Form Term and for one (1) year thereafter, Customer agrees to provide reasonable cooperation in the event Provider is required to audit Customer’s use of the Offerings and compliance with the Agreement, which, unless otherwise directed or requested by a competent regulatory authority, may occur only upon reasonable advance written notice, during Customer’s business hours, and not more than once per calendar year, unless in connection with Customer’s material breach of the Agreement.

10.8. Survival. The following sections of this Master Services Agreement, and any other sections and provisions of the Agreement which by their terms or nature must survive for interpretation or enforcement of the Agreement, will survive expiration or termination for any reason: Section 1 (Rights and Restrictions), Section 4 (Representations & Warranties) Section 5 (Confidentiality & Third-Party Access), Section 7.3 (Effect of Termination or Expiration), Section 8 (Liability), Section 9 (Indemnification), Section 10 (General), and Section 11 (Definitions).

10.9. Force Majeure. Neither Party is responsible for failure to fulfill its non-monetary obligations due to Force Majeure. The affected Party will give the other Party prompt written notice (when possible) of the failure to perform and use commercially reasonable efforts to limit the resulting delay in its performance.

10.10. Publicity. Provider may use Customer’s name and logo on Provider’s website and in promotional and marketing materials to identify Customer as a customer of Provider. Provider will use commercially reasonable efforts to comply with any Customer trademark and/or brand guidelines provided to Provider by Customer.

10.11. Access to Beta Services. Customer’s access and use of Provider services that are labeled or are indicated by Provider as Beta Services, but excluding the Offerings in an Order Form, are not subject to this Master Services Agreement but are instead subject to the GeoComply Beta Services Terms: https://www.geocomply.com/beta-services-terms.

10.12. Governing Law. The Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its conflicts of law principles. The provisions of the United Nations Convention on the International Sale of Goods will not apply to the Agreement.

10.13. Dispute Resolution. Notwithstanding anything herein to the contrary, any controversy, dispute, or claim arising out of or related to the Agreement that cannot be resolved by informal and good-faith negotiations between authorized representatives of the Parties will be referred to and finally resolved by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules of Arbitration. The seat, or legal place, of arbitration, will be the Borough of Manhattan, New York. The language of the arbitration will be English. The Emergency Arbitrator Provisions will not apply. Except in respect of disputes falling under the Arbitration Exceptions, the Parties agree that they are each waiving the right to a trial by jury. The arbitration award will be final and binding on the parties. Judgment upon the award may be entered by any court having jurisdiction over the award or having jurisdiction over the relevant party or its assets. Neither Party will announce any award or procedural order made in the arbitration. Notwithstanding the agreement to arbitrate above, or the provisions of the Rules of Arbitration of the International Chamber of Commerce, the Parties agree that the obligations under this Section will not apply to any claim (including to seek injunctive relief) by a Party: (i) to enforce its intellectual property rights, including claims relating to any actual or alleged infringement of a Party’s copyrights, patents or patent applications, trademarks, or trade secrets; or (ii) for any breach of confidentiality under the Agreement (the “Arbitration Exceptions”).

11. Definitions

11.1. Capitalized terms used in the Agreement will have the below meanings.

11.1.1. “Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with such specified Person. The term “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting interests, by contract, or otherwise.

11.1.2. “Applicable Data Protection Laws” means any data protection laws, rules, regulations, self-regulatory
guidelines, or implementing legislation applicable to Provider’s provision and/or Customer’s use of an Offering, including data protection and privacy laws, rules, and regulations to which Personal Information is subject.

11.1.3. “Applicable Law” means any of the following that relate to the provision, access or use of an Offering: (a) any statute, legislation or regulation having the force of law that is issued by any governmental entity of local, municipal, regional or national authority having jurisdiction and binding authority over the applicable Party; (b) any treaty, multinational convention or the like having the force of law and that is binding on the applicable Party; (c) the common or general law; (d) any court order, judgment or decree that is binding on the applicable Party; (d) any applicable industry code, policy or standard enforceable by law that is binding on the applicable Party; or (e) any applicable direction, policy or order that is given by a regulator having binding authority on the applicable Party; and (f) any subsequent amendments, re-enactments, consolidations, replacements or new implementations of the foregoing.

11.1.4. “Approved Sublicensees” means Customer’s Affiliates or other third parties to whom Customer is authorized pursuant to Section 1.2 to sublicense the right to access and use permitted Offerings under the Agreement.

11.1.5. “Authorized Users” means identified individual employees of Customer or an Approved Sublicensee, and any identified individual employees of Authorized Third-Parties, authorized by Customer from time to time to access or use an Offering.

11.1.6. “Authorized Third-Parties” means identified third-party service providers of Customer who may from time to time require certain access to an Offering, Provider Data, and/or Usage Data in order to provide its services to Customer, which access may only be provided in accordance with Section 5.2.

11.1.7. “Confidential Information” means any information and documentation of a Party or its Affiliates (and in the case of Provider, its Third-Party Suppliers) disclosed to or accessed by the other Party in connection with the Agreement (a) that is marked or verbally designated as “confidential” or the like or (b) that, given the circumstances surrounding its disclosure or the nature of the information, a reasonable person would conclude to be confidential. Confidential Information does not include any information that (i) becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party before receipt from the Disclosing Party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation (and without a duty of confidentiality) owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. Without limiting the foregoing, Provider Confidential Information includes the non-public aspects of and information regarding (A) any Offerings and any related product plans, technology, data and other technical information (including Documentation, the structure and organization, the underlying algorithms and other internals, the protocols, data structures and other externals, and the source code of any of the foregoing) and (B) Offering pricing and business negotiations with Customer with respect to the Agreement.

11.1.8. “Customer Application” means any Customer application, product, or service that uses or otherwise exploits an Offering for the Permitted Purpose.

11.1.9. “Customer Data” means any data and information provided or otherwise made available to Provider or its Affiliate by or on behalf of Customer or an End User in connection with an Offering, excluding Usage Data and Other Anonymized Data.

11.1.10. “Customer Portal” means the secured website made available by Provider where Customer may access and download, among other things, Offerings and Documentation.

11.1.11. “Data Processing Addendum” means the Data Processing Addendum made available to Customer by
Provider at https://www.geocomply.com/dpa, (and any successor or related locations designated by Provider), as may be updated by Provider from time to time, or any alternate agreement or instrument related to the Parties’ respective data processing commitments to each other that may be executed from time to time.

11.1.12. “Documentation” means any documentation (including online, printed, or other documentation) and any technical or legal requirements for an Offering. Documentation may be made available to Customer through the Customer Portal, or otherwise.

11.1.13. “End User” means an individual accessing or using a Customer Application and/or other relevant Customer products and services.

11.1.14. “End User Data” means any Customer Data that is the Personal Information of an End User, such as name, address, date of birth, phone number, or social security number.

11.1.15. “Fees” means the amounts properly payable by Customer to Provider under the terms of the Agreement, including Fees specified in an applicable Order Form.

11.1.16. “Force Majeure” means an event beyond the applicable Party’s reasonable control.

11.1.17. “Order Form” means a written instrument identified as an Order Form that is executed by the Parties related to the purchase of Offerings by Customer.

11.1.18. “Offering” means Software, Online Services, and Support Services made available by or for Provider, and any information, data, tools, materials, services, and rights made available to Customer by or for Provider in connection with the foregoing, including Documentation and the Provider Data.

11.1.19. “Online Services” means an online or cloud-based service made available by or for Provider, whether made available for free, for a fee, or on any other basis.

11.1.20. “Other Anonymized Data” means any anonymized data that may have originated from Customer Data, but has been anonymized, de-identified, or aggregated so that it does not include Personal Information and cannot be used to identify an End User.

11.1.21. “Permitted Purpose” means the permitted purpose for Customer’s use of the applicable Offering set forth in the applicable Order Form.

11.1.22. “Person” means any individual, partnership, corporation, limited liability company, association, joint stock company, trust, joint venture, or unincorporated organization.

11.1.23. “Personal Information” means any data that identifies, relates, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or is defined as “personally identifiable information,” “personal information,” “personal data” or similar terms under Applicable Data Protection Laws.

11.1.24. “Privacy Statement” means Provider’s Privacy Statement provided at https://www.geocomply.com/privacy-statement/, (and any successor or related locations designated by Provider), as may be updated by Provider from time to time.

11.1.25. “Product Terms” means the additional terms applicable to certain Offerings referenced in the Order Form made available by Provider to Customer.

11.1.26. “Provider Data” means any data and information provided or otherwise made available by or on behalf of Provider, its Third-Party Suppliers, or their respective data providers in connection with an Offering.

11.1.27. “Software” means software or similar materials, including any software, application programming interfaces (“API”), software development kits (“SDK”), programming tools, or cloud-based solutions, made available by or for Provider through a license, whether made available for free, for a fee or any other basis.

11.1.28. “Support Services” means the support program and associated level of support and any other support services provided by Provider or its Affiliate to Customer in relation to an Offering, whether made available for a fee, for free or any other basis.

11.1.29. “Territory” means the geographic territory in which Customer may access and use an Offering as defined in the Product Terms for such Offering unless otherwise specified in an Order Form.

11.1.30. “Third-Party Services” means any software, information, data, tools, materials, services, and rights made available within or via an Offering by a third party.

11.1.31. “Third-Party Supplier” means a third-party licensor or service provider of Third-Party Services.

11.1.32. “Updates” means security and hotfixes, patches, and other updates to an Offering to the extent made available to Customer by or for Provider as an update.

11.1.33. “Usage Data” means data and information regarding access to and use of any Offerings.

 

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