Terms of Service

“Affiliate” means any Person that, directly or indirectly, Controls, is Controlled by, or is under common Control with, a specified Person.

“Applicable Law” means any applicable national, federal, state, county, and local law, ordinance, regulation, rule, code, and order.

“Authorized Users” mean Customer’s employees and Contractors whom Customer authorizes to access and use the Platform; provided, however, that any Contractors’ access to, and use of, the Platform will be limited to their provision of services to Customer.

“Beta Features” means features, functionalities, and/or modules of the Platform that are not generally available to Brickroad’s customers for production use.

“Brickroad” means EmetX, Inc. d/b/a Brickroad.

“Confidential Information” means each Party’s business and technical information in any form, including without limitation, the Platform, Customer Data, business and marketing plans, strategies, sales, product and financial data and projections, processes, techniques, trade secrets, know how, inventions, processes (business, technical, or other), designs, algorithms, source code, customer lists, and the terms of these Terms of Service. Confidential Information does not include information or data which is: (i) known to the Party receiving the Confidential Information (the “Receiving Party”) prior to its receipt from the other Party (the “Disclosing Party”) without a limitation or obligation of confidentiality under another agreement; (ii) independently developed by the Receiving Party without use of any Confidential Information; (iii) generally known to the public at the time of disclosure other than as a result of disclosure by the Receiving Party; or (iv) received from a third party with a legal or contractual right to disclose such information or data.

“Contractor” means any third party that is under contract to provide services to Customer.

“Control” or “controls” and the formatives “controlling” and “controlled” mean the possession, directly or indirectly, of fifty percent (50%) or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract, or otherwise.

“Customer Data” means any and all (i) data uploaded to the Platform by Authorized Users; and (ii) any queries and prompts entered into the Platform by Authorized Users.

“Documentation” means any documentation (whether in hard copy, electronic, or digital form) that Brickroad makes available to provide guidance and instructions regarding the specifications, operation, maintenance, and use of the Platform.

“Fees” mean the fees due to Brickroad for the Services. The Fees are set forth in the Plan.

“Intellectual Property Rights” mean all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress, or other proprietary trade designations, including all registrations and applications therefor; (iv) all rights throughout the world to proprietary know-how, trade secrets, and other Confidential Information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property recognized in any jurisdiction.

“Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.

“Person” means an individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency, or political subdivision thereof or other entity.

“Plan” means the pricing plan selected by Customer at the time of signup. During the Subscription Term, Customer may upgrade the Plan, but may not downgrade the Plan. The Plans are available at https://brickroad.network/pricing.

“Platform” means: (i) Brickroad’s proprietary agentic artificial intelligence discovery platform; and (ii) any Updates thereto.

“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; or (vii) contains Malicious Code.

“Sample Data” means sample data obtained by Customer from Suppliers. Customer may use any such Sample Data solely for evaluation purposes.

“Services” mean Brickroad’s provision of access to, and usage of, the Platform as set forth herein and all related hosting, maintenance, and support services provided by Brickroad. Brickroad may perform the Services directly or through one or more subcontractors.

“Subscription Term” shall have the meaning set forth in Section 4.1.

“Super Administrator” means the Authorized User designated by Customer to manage the access and level of responsibility of all Authorized Users.

“Suppliers” means third-party data suppliers from which Customer obtains Sample Data via the Platform.

“Updates” mean any error correction, bug fix, patch, enhancement, update, upgrade, new version, release, revision, or other modification to the Platform provided or made available by Brickroad pursuant to these Terms of Service.

“Website” means any website through which Brickroad provides the Platform.

Subscription. During the Subscription Term: (i) Brickroad shall provide the Super Administrator access to the Platform’s administrative console via the Website; (ii) the Super Administrator shall create the accounts for (and manage) all Authorized Users; (iii) Brickroad shall provide Authorized Users access to the Platform via the Website; and (iv) Brickroad shall be responsible for hosting the Website, and Customer shall be responsible for obtaining Internet connections and other third-party software and services necessary for it to access the Website. Customer is responsible for the acts and omissions of its Authorized Users and any other Person who accesses and uses the Platform using any of Customer’s or its Authorized Users’ access credentials.

Access to Documentation. Brickroad shall provide Customer access to the Documentation, as may be updated from time to time in order to reflect any Updates. Customer may print copies of, use, and permit its Authorized Users to use, the Documentation solely in connection with the use of the Platform.

Restrictions on Use. Customer shall not (and shall not authorize or knowingly permit any Authorized User or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of the Platform or of any files contained therein; (iii) copy, modify, adapt, or translate the Platform or otherwise make any use, resell, distribute, or sublicense the Platform other than in accordance with these Terms of Service; (iv) make the Platform available on a “service bureau” basis; (v) remove or modify any proprietary markings or restrictive legends placed on the Platform or the Documentation; (vi) use the Platform in violation of any Applicable Law; (vii) introduce into the Platform any Prohibited Content (including any Customer Data that is Prohibited Content); or (viii) use the Sample Data for any purposes other than evaluating the applicable Suppliers of such Sample Data.

Title. Brickroad retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to Platform, the Sample Data, and the Documentation, and Customer shall have no rights with respect to the same other than those license rights expressly granted under these Terms of Service; and (ii) Customer retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Customer Data, and Brickroad shall have no rights with respect to the same other than those license rights expressly granted under these Terms of Service.

Modifications; No Contingency for Future Commitments. Brickroad may, in its sole discretion, modify the Platform from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that during the Subscription Term, such additions, deletions, or modifications to features will not materially decrease the overall functionality of the Platform. Unless otherwise expressly agreed by the Parties in writing, Customer agrees that payment of the Fees under these Terms of Service is not contingent on the delivery of any future Platform functionalities or features or any other future commitments, except as expressly set forth in these Terms of Service.

Beta Features. From time to time, Brickroad may invite Customer to try Beta Features at no charge. Customer may accept or decline any such trial in its sole discretion. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Platform under these Terms of Service, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by Brickroad, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available to all of Brickroad’s customers for production use or upon the date that Brickroad elects to discontinue such Beta Feature. Brickroad may discontinue Beta Features at any time in its sole discretion and may never make them generally available as part of the Platform. Brickroad will have no liability for any harm or damage arising out of or in connection with any use of a Beta Feature, and Customer uses any Beta Feature at its own risk.

Free Trials. If Customer registers for a free trial of the Platform, Brickroad will make the Platform available to Customer on a trial basis free of charge until the earlier of (i) the end of the free trial period for which Customer registered to use the Platform; or (ii) the start date of the Subscription Term ordered by Customer pursuant to a Plan. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms and Conditions by reference and are legally binding. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF SERVICE, DURING THE FREE TRIAL PERIOD, THE PLATFORM IS PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OR INDEMNIFICATION OBLIGATIONS ON THE PART OF BRICKROAD.

Suppliers and Sample Data. Customer acknowledges and agrees that: (i) Suppliers are not employees or agents of Brickroad, and as such are not able to bind or otherwise obligate Brickroad; (ii) Customer is solely responsible for determining the identity and suitability of Suppliers; (iii) Brickroad makes no representations, offers no assurances, and does not investigate any of the Suppliers or their data, including, without limitation, the Sample Data, and Customer hereby acknowledges that Customer assumes the risk of any encounter or interaction with such Suppliers and any usage of Suppliers’ data, including, without limitation, the Sample Date; (iv) Brickroad encourages Customer to communicate directly with Suppliers through the tools available on the Platform; (v) Brickroad does not endorse any Supplier; and (vi) although Customer is able to find information about Suppliers and be connected to them through the Platform, Brickroad is not a party to any transactions between Customer and any Suppliers and shall have no liability to any party in connection with such transactions. Brickroad recommends that in connection with any such transaction, Customer and Supplier reduce their agreement to writing.

Fees. All Fees are non-cancelable, and, unless otherwise set forth herein, non-refundable.

Taxes.

Payments. Brickroad shall invoice Customer for the Fees and any applicable taxes in advance based on the duration of the Plan (i.e., monthly for monthly plans and annually for annual plans). Customer shall pay such invoices within thirty (30) days from the date that the invoices are deemed to be given under Section 9.1. Except as otherwise expressly provided in these Terms of Service, Customer shall not be entitled by reason of any set-off, counter-claim, or other similar deduction to withhold payment of any amount due to Brickroad.

Late Payments. Undisputed payments that are past due shall accrue interest at the lesser of one and one half percent (1.5%) per month, or the maximum rate permitted by Applicable Law. Brickroad shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from Customer that are more than thirty (30) days delinquent.

Suspension for Non-Payment. Brickroad may suspend the Services upon written notice to Customer if any undisputed invoiced amount is past due. Brickroad will not suspend the Services while Customer is disputing any invoiced amount reasonably and in good faith and is cooperating diligently to resolve the dispute.  If the Services are suspended for non-payment, Brickroad may charge a re-activation fee to reinstate the Services.

Subscription Term. The initial Subscription Term begins on the Effective Date and shall continue for the period of time set forth in the Plan (the “Initial Subscription Term”). Upon expiration of the Initial Subscription Term or any Renewal Subscription Term, the Subscription Term shall automatically renew for successive periods of equal length to the Initial Subscription Term (each, a “Renewal Subscription Term” and collectively with the Initial Subscription Term, the “Subscription Term”), unless either Party provides written notice to the other Party of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Term.

Termination.

Effect of Termination or Expiration. In the event of any termination or expiration of these Terms of Service: (i) Customer shall pay Brickroad for all amounts payable hereunder as of the effective date of termination or expiration; (ii) all rights and licenses granted hereunder to Customer shall immediately cease, and Customer and its Authorized Users shall immediately cease all access to, and usage of, the Website, the Platform, the Sample Data, and the Documentation; and (iii) each Receiving Party shall either return to the Disclosing Party, or, at the Disclosing Party’s direction, destroy and provide the Disclosing Party with written certification of the destruction of, all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s possession, custody, or control; provided, however, that each Receiving Party may keep a copy of such Confidential Information for legal and/or regulatory purposes and/or as part of any electronic archival back-up system.

Survival. The following provisions shall survive any termination or expiration of these Terms of Service: Section 1 (“Definitions”), Section 2.4 (“Title”), Section 3 (“Financial Terms”) until all monies due have been paid in full, Section 4.3 (“Effect of Termination or Expiration”), Section 6 (“Confidentiality, Data, and Feedback”), Section 6.3 (“Disclaimer”), Section 7 (“Indemnification”), Section 8 (“Limitation of Liability”), Section 9 (“General Provisions”), and this Section 4.4 (“Survival”).

Use and Disclosure of Confidential Information. The Receiving Party shall, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under these Terms of Service; (ii) subject to Section 5.3 below, restrict disclosure of such Confidential Information to only those employees, consultants, and subcontractors of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of its obligations and exercise of its rights under these Terms of Service; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.

Protection of Confidential Information. The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).

Compliance by Personnel. The Receiving Party shall, prior to providing any employee, consultant, or subcontractor access to any Confidential Information of the Disclosing Party, inform such employee, consultant, or subcontractor of the confidential nature of such Confidential Information and require such employee or consultant to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information. The Receiving Party shall be responsible to the Disclosing Party for any violation of this Section 5 by any such employee, consultant, or subcontractor.

Required Disclosures. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.

Use of Customer Data. Notwithstanding anything to the contrary contained in these Terms of Service, Brickroad may: (i) during the Subscription Term, use any Customer Data to perform Brickroad’s obligations hereunder and operate, maintain, and improve the Platform and the Website; and (ii) both during and after the Subscription Term, provided that Brickroad de-identifies any and all such data so that Customer is not identified, merge such de-identified data with other data, and use such de-identified data for its reporting, planning, development, and promotional purposes and to improve the Platform, the Website, and its other products and services. Brickroad shall comply with its obligations under Applicable Laws in respect of Customer Data processed by it in connection with these Terms of Service.

Irreparable Injury. Each Party acknowledges that the other Party may be irreparably harmed by any breach of this Section, and agrees that such other Party may seek, in any court of appropriate jurisdiction, an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof, without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, that the non-breaching Party would otherwise have under or with regard to these Terms of Service.

Feedback. During the Term, Customer may elect to provide Brickroad with feedback, comments, and suggestion with respect to the Platform, the Sample Data, and/or the Website (“Feedback”). Customer agrees that Brickroad shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Customer.

Mutual Representations and Warranties. Each Party represents and warrants that: (i) these Terms of Service constitute its valid and binding obligation and are enforceable against it in accordance with the terms of these Terms of Service; and (ii) the execution and delivery of these Terms of Service by it and the performance of its obligations and exercise of its rights hereunder: (a) will not conflict with or violate any Applicable Law; or (b) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, without limitation, any non-disclosure, confidentiality, non-competition, or other similar agreement.

Representations and Warranties of Brickroad. In addition to the representations and warranties set forth in Section 6.1, Brickroad represents and warrants that: (i) Brickroad shall use commercially reasonable efforts to ensure that the Platform will not contain any Malicious Code; and (ii) all support services shall be performed in a professional and workmanlike manner.

Representations and Warranties of Customer. In addition to the representations and warranties set forth in Section 6.1, Customer represents and warrants that it has all consents, permissions, and authorizations necessary to upload the Customer Content to the Platform, to grant the rights granted hereunder, to run the queries and other searches via the Platform, and to use the results of such queries and searches.

Disclaimer. CUSTOMER ACKNOWLEDGES AND AGREES THAT ALTHOUGH THE PLATFORM AND THE SAMPLE DATA CONTAINED THEREIN CAN BE USED AS AIDS TO CUSTOMER TO MAKE INFORMED BUSINESS DECISIONS, THE PLATFORM AND THE SAMPLE DATA CONTAINED THEREIN ARE NOT MEANT TO BE SUBSTITUTES FOR LEGAL OR BUSINESS ADVICE OR CUSTOMER’S EXERCISE OF ITS OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT CUSTOMER’S SOLE DISCRETION AND ELECTION. WHEN THE PLATFORM AND/OR THE SAMPLE DATA CONTAINED THEREIN INCLUDE ESTIMATES OR PREDICTIONS OF FUTURE EVENTS OR BEHAVIORS, BRICKROAD MAKES NO GUARANTEES AS TO THE OCCURRENCE OF SUCH FUTURE EVENTS OR BEHAVIORS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, SECTION 6.2, AND THE SERVICE LEVEL AGREEMENT SET FORTH IN SCHEDULE A, THE SERVICES, THE PLATFORM, THEIR COMPONENTS, ANY DOCUMENTATION, THE SAMPLE DATA, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY BRICKROAD HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND BRICKROAD MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THESE TERMS OF SERVICE AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT BRICKROAD MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

Indemnification by Brickroad. Subject to Section 7.2, Brickroad shall defend, indemnify, and hold harmless Customer and its officers, directors, managers, and employees from any and all liabilities, losses, damages, fines, penalties, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by them in connection with any third-party claim, action, or proceeding (each, a “Claim”) that the use of the Platform in accordance with these Terms of Service infringes, violates, or misappropriates any third-party Intellectual Property Rights.

Exceptions to Brickroad Indemnification Obligations. Brickroad shall not be obligated to indemnify, defend, or hold harmless the parties set forth in Section 7.1 to the extent that the Claim arises from: (i) use of the Platform in combination with modules, apparatus, hardware, software, or services not provided by Brickroad; (ii) use of the Platform in a manner that breaches these Terms of Service or any Applicable Law; or (iii) the alteration or modification of the Platform by a party other than Brickroad.

Infringement Claims. In the event that Brickroad reasonably determines that the Platform is likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party Intellectual Property Rights, Brickroad shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Customer the right to continue to use the Platform as set forth hereunder; (ii) replace the infringing components of the Platform with other components with the same or similar functionality that are reasonably acceptable to Customer; or (iii) suitably modify the Platform so that it is non-infringing and reasonably acceptable to Customer. If none of the foregoing options is available to Brickroad on commercially reasonable terms, Brickroad may terminate these Terms of Service without further liability to Customer, in which case Brickroad shall promptly provide Customer with a pro-rata refund of any Fees paid, but not used, by Customer. This Section 7.3, together with the indemnity provided under Section 7.1, states Customer’s sole and exclusive remedy, and Brickroad’s sole and exclusive liability, regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.

Indemnification by Customer. Customer shall defend, indemnify, and hold harmless Brickroad and its officers, directors, managers, and employees from any and all Losses incurred by them in connection with any Claim: (i) arising from Customer’s gross negligence or willful misconduct; (ii) arising from Customer’s breach of its representations and warranties hereunder; (iii) alleging that the use of the Customer Data in accordance with these Terms of Service breaches, infringes, violates, or misappropriates the rights of any third-party, including, without limitation, Intellectual Property Rights, or violates any Applicable Law; and/or (iv) arising from any Authorized User’s use of the Platform in violation of these Terms of Service.

Procedure for Handling Indemnification Claims. In the event of any Claim for which indemnification is available, the indemnified Party shall give prompt written notice of any such Claim to the indemnifying Party; provided, however, that the failure of the Party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that the indemnifying Party demonstrates actual damage caused by such failure. The indemnifying Party shall have the right to control and direct the investigation, defense, and settlement of each such Claim. The indemnified Party shall reasonably cooperate with the indemnifying Party (at the indemnifying Party’s sole cost and expense) in connection with the foregoing. The indemnified Party may participate in the defense of the Claim with counsel of its own choosing, at its own cost and expense, on a strictly monitoring basis. The indemnifying Party shall not enter into any settlement or resolution of any Claim that would constitute an admission of guilt or liability on the part of the indemnified Party, without the indemnified Party’s express prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed).

Liability Exclusion. SUBJECT TO SECTION 8.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THESE TERMS OF SERVICE, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.

Limitation of Damages. SUBJECT TO SECTION 8.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO BRICKROAD BY CUSTOMER UNDER THESE TERMS OF SERVICE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES (THE “LIABILITY CAP”).

Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 8.1 AND SECTION 8.2 SHALL NOT APPLY TO: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS; (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (iii) CUSTOMER’S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER OR BREACH OF SECTION 2.3.

Notices. Unless otherwise specified herein, all notices and other communications between the Parties (other than routine operational communications) required or permitted by these Terms of Service or by Applicable Law, will be deemed properly given, if given by: (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) nationally or internationally recognized private courier service to the respective addresses of the Parties set forth above or such other address as the respective Parties may designate by like notice from time to time. Notices so given shall be effective upon: (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.

Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing herein shall constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.

Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under these Terms of Service without the prior, written consent of the other Party; provided, however, that each Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer these Terms of Service: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise); provided, further, however, that if Brickroad objects to any such assignment in subsection (i) or (ii), it may terminate these Terms of Service on written notice to Customer. Notwithstanding anything to the contrary in this Section, the scope of use of the Platform and Services cannot in any way be broadened by an assignment hereunder, and in such case, the Parties shall negotiate a modification to these Terms of Service in good faith, including re-pricing the Fees. Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its obligations under these Terms of Service to the extent such failure or delay or both is caused, directly or indirectly, without fault by such Party, by any reason beyond its reasonable control, including, without limitation, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, pandemics, embargoes, and other similar governmental action (each a “Force Majeure Event”). Any Party so delayed in its performance will promptly notify the other and describe in reasonable detail the circumstances causing such delay. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than thirty (30) consecutive days, the Party not relying on the excusable delay may terminate these Terms of Service upon written notice to the other Party.

Governing Law, Venue. The validity, interpretation, and performance of these Terms of Service shall be governed by the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. Any disputes, controversies, or claims in connection with or arising out of these Terms of Service, their negotiation, breach, existence, validity, or termination, shall proceed in a federal or state court located in the State of New York, Borough of Manhattan. Each Party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each Party irrevocably waives, to the fullest extent permitted by Applicable Law, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to these Terms of Service and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by Applicable Law.

Modification. No modification of, or amendment to, these Terms of Service shall be effective unless in writing signed by authorized representatives of both Parties.

No Waiver. The rights and remedies of the Parties to these Terms of Service are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under these Terms of Service shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.

Severability. If any provision of these Terms of Service is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of these Terms of Service will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.

Entire Agreement. These Terms of Service, including the attached schedule, which is hereby incorporated herein, when read in conjunction with these Terms of Service, contain the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in these Terms of Service. In the event of any conflict between any terms or conditions contained in the body of these Terms of Service and the attached schedule, the following order of priority shall govern (in descending order): (i) the applicable schedule; and (ii) the terms and conditions contained in the body of these Terms of Service.

Third-Party Beneficiary. There are no other third-party beneficiaries hereunder.