42CRUNCH CUSTOMER AGREEMENT

1. Definitions.

“42Crunch Solution” or “Solution” means 42Crunch’s API security services (modules) referenced in the relevant Order for which Customer has obtained a license; For clarity, the definition of Solution includes all components of the services (modules) referenced in the Order, including to the extent the relevant components of the 42Crunch SaaS Platform, the relevant Downloadable(s), as well as any 42Crunch API security best practices, information, and data made available in connection with the offering, and any modifications, copies, Updates, and Documentation relating to any of the forgoing which are delivered or made available to Customer in connection with the offering during the relevant Subscription Term. Current services (modules) available for licensing include the 42Crunch API Audit, 42Crunch API Scan, and 42Crunch API Protect.

“42Crunch SaaS Platform” or “Platform” means the hosted components of the Solution which are hosted by or on behalf of 42Crunch and made available to Customer on a software-as-a-service (SaaS) basis. For clarity, the definition of Platform shall include any Updates or modified versions of the Platform that may be made available to Customer by 42Crunch.

“42Crunch Downloadable(s)” or “Downloadable(s)” means all software, plugin(s), extension(s), docker image(s), sample code, sample scripts, and other proprietary materials provided by or on behalf of 42Crunch to Customer in connection with its subscription to the Solution from time to time during the Subscription Term.  For clarity, the definition of Downloadable(s) shall include any Updates or modified versions of the Downloadable(s) that may be provided or made available to Customer by 42Crunch, and specifically excludes any Third Party Products.

“42Crunch Professional Services” or “Professional Services” means professional services to be delivered by 42Crunch Personnel to Customer which may be outlined in the Order or Statement of Work, e.g., training, configuration, implementation, etc.  For clarity, the definition of Professional Services does not include Support and Maintenance Services, which are separately defined herein.

“42Crunch Support and Maintenance Services” or “Support and Maintenance Services” means the technical support and maintenance services which Customer is entitled to which are provided by 42Crunch to Customer in accordance with the 42Crunch Support Policy .

“Affiliate” means any entity Controlling, Controlled by, or under common Control with a party.

“Agreement” means this 42Crunch Customer Agreement, including all the attachments and exhibits hereto, Statement of Work(s), and any terms incorporated by reference herein.

“API” shall mean the application programming interfaces supported by the Solution.

“Authorized Reseller” means any authorized reseller of 42Crunch Solution who validly sells 42Crunch’ products or services, subject to the terms and conditions of this Agreement.

“Authorized Users” means Customer’s (and, where applicable, the Licensed Affiliates’) employees and independent contractors who are authorized to create an account on the 42Crunch SaaS Platform or locally on premise otherwise access or use the Solution on behalf of and for the benefit of Customer (and, where applicable, Licensed Affiliates).

“Control” and its grammatical variants mean (i) a general partnership interest in a partnership, (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors, or (iii) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise, provided that for Customers that are French entities then “control” shall have the meaning defined under article L.233-3 of French Commercial Code.

“Customer Data” means the data or files or information inputted or otherwise uploaded by Customer and/or its Authorized Users to 42Crunch Solution or collected from Customer and/or its Authorized Users in connection with Authorized Users’ normal use of the Solution, including Customer Authorized Users’ account login information, Customer’s API files/definitions uploaded to the Solution by Authorized Users, Customer’s security audit reports generated by the Solution, Customer’s scan audit reports generated by the Solution, and Customer’s firewall configuration files created in connection with the normal use of the Solution. For clarity, Customer Data specifically excludes Usage Data, the general look and feel or organization of any reports, summaries, and/or any general 42Crunch API security best practices, information, and data or advice or recommendations provided to Customer which relate to usage of Solution and/or are not unique only to data, files or information inputted or otherwise uploaded by Customer and/or its Authorized Users to 42Crunch Solution.

“Documentation” means any applicable 42Crunch end-user documentation made available by 42Crunch to its licensees as such documentation is updated from time to time during the Subscription Term (which definition specifically excludes any marketing or promotional materials

“Evaluation Products” means any version of the 42Crunch Solution delivered free of charge, including any pre-commercial release (alpha or beta versions) or other commercially released versions of the 42Crunch Solution (or components thereof) made available to Customer on a trial or evaluation basis or otherwise free of charge (including specifically via free subscriptions obtained through the 42Crunch website

“Intellectual Property Rights” means any patents, copyrights, trademarks, industrial designs, trade secrets, confidential information and all  other proprietary rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world

“Internal Business Purposes” means the access and use of the Solution by Authorized Users in compliance with the Documentation and on behalf of and for the benefit of Customer (and, where applicable, Licensed Affiliates), solely to access, filter, and secure APIs (and related data) which are owned or licensed by Customer (and, where applicable, Licensed Affiliates) solely for Customer’s (and, where applicable, Licensed Affiliates) internal use and benefit

“Licensed Affiliate" means a Customer’s Affiliate(s) who is identified as an additional licensee of the Solution in the Order; a Licensed Affiliate is applicable only if so identified.

“Malicious Code” means any software, code, file or program or content that is designed to prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network, or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of or reliability of any program or data,  or adversely affect the user experience, that contains any virus, trojan horse, worm, backdoor, shutdown mechanism, sniffer, bot, drop-dead mechanism, spyware, malicious, or similar code or content

“Order” means an ordering document or form (whether in written format or online form, direct or indirect via an Authorized Reseller) that identifies the commercial terms of the purchase, namely, for example, the 42Crunch products and/or services ordered, the applicable Subscription Parameters or any other restrictions or limitations on use, the Subscription Term, and any pricing and payment terms relating to the same (each as relevant).  Multiple Orders may apply if additional subscriptions, products, or services are purchased, provided that, unless expressly stated otherwise, terms specified in an Order shall be relevant only to that Order.

“Reverse Engineer” means any act of reverse engineering, translating, disassembling, decompiling, decrypting, or deconstructing data, software (including interfaces, protocols, and any other data included in or used in conjunction with programs that may or may not technically be considered software code) or services or any method or process of obtaining or converting any information, data or software from one form into a human-readable form

“Statement of Work” or “SOW” means any document provided by 42Crunch outlining the Professional Services to be delivered by 42Crunch, if any which references this Agreement (or an Order placed under this Agreement).

“Subscription Term” means the term of the license granted with respect to the Solution as identified on the relevant Order, or if no term is specified then one (1) year. For clarity, the Subscription Term shall be subject to the termination rights specified herein.

“Subscription Parameter(s)” means any factor that serves as a basis for calculating the amount of fees payable by Customer for the subscription to the Solution as identified in the Order, including, for example, where relevant

(i) the number of API files or definitions uploaded to or created on the Platform;
(ii) number of Authorized Users,
(iii) the number of API calls made
(iv) the number of audits or scans conducted,

(v) the number of endpoints, and/or
(vi) any other measurement/parameter identified as a factor that serves as a basis for calculating the amount of fees payable by Customer for the subscription to the Solution in the Order.

“Third Party Products” means Customer or any third party:

(i) software,
(ii) content,
(iii) products, services or systems, including third-party CI/CD and IDE systems/services, internet connectivity products, systems, wireless networks and non-42Crunch websites, devices, servers, equipment, and other hardware products.

“Updates” means error corrections, bug fixes, software updates and upgrades to the Solution (including Downloadable(s)) and improvements to the infrastructure of the Platform that are released or made available during the relevant Subscription Term and made generally available by 42Crunch without extra charge to other 42Crunch customers purchasing a license to the relevant Solution.

2. License; Access and Use Rights.

Subject to the terms and conditions of this Agreement, during the Subscription Term, 42Crunch grants to Customer a non-exclusive, non-transferable (except as expressly permitted herein), and non-sublicensable license to:

(i) access and use the 42Crunch SaaS Platform and Documentation if a Teams or Enterprise Customer; and
(ii) install, access, and use the Downloadable(s), provided such Downloadable(s) are installed, accessed, and used on systems and/or environments owned and controlled by Customer (and, where applicable, Licensed Affiliates), whether integrated development environment, continuous-integration continuous-development environment (CI/CD) or other development or production environments owned and controlled by Customer (and, where applicable, Licensed Affiliates).

For each of the rights granted in sub-section (i) and (ii) above, such license is granted solely for Internal Business Purposes and such license is subject to compliance with the Subscription Parameter(s) stated in the relevant Order, as updated with subsequent Orders, if any.  Customer may authorize its Authorized Users to exercise the foregoing rights in sub-section (i) and (ii) above on behalf of and for the benefit of Customer (and, where applicable, Licensed Affiliates) provided that Authorized Users are deemed to be subject to all the limitations and restrictions stated herein that apply to Customer.

3. Evaluation License.

If an Evaluation Product is made available by 42Crunch to Customer, then access and use of the Evaluation Product(s) by Customer or Customer’s Authorized Users shall be for the limited purpose of evaluating the Evaluation Product’s features and functionality in a non-production environment and establishing Customer’s desire to purchase a subscription license to the Evaluation Product(s) and/or providing any feedback desired, as relevant.  Customer understands and agrees that all restrictions stated herein with respect to the Solution in the “Restrictions” section below shall apply equally to Evaluation Product(s).  The following additional terms shall apply with respect to Evaluation Product(s) (notwithstanding any contrary term specified in any other sections of this Agreement):

(i) any access or use of the Evaluation Product(s) shall terminate at the end of the evaluation period identified by 42Crunch or 42Crunch’ Authorized Reseller (or if no period identified, then in thirty (30) days from delivery of access to the Evaluation Product or such other extended period authorized by 42Crunch);
(ii) Evaluation Products (and results of use) are not intended for use in any production environment or other environment where Customer is relying on the performance of the Evaluation Product(s);
(iii) to the extent not already commercialized, Evaluation Product(s) may never be authorized by 42Crunch for commercial use or certified by government or other authorities and 42Crunch makes no representation that such authorization or certification shall occur;
(iv) 42Crunch and/or the Authorized Reseller may terminate access rights and license to the Evaluation Product with written notice to Customer (email to Authorized User(s) account is sufficient) and, if relevant, require Customer to promptly return and/or remove any copies of any component of Evaluation Product from any systems it was uploaded to, as relevant
(v) Evaluation Products are excluded from any indemnification obligations of 42Crunch;
(vi) Customer shall not be entitled to any Support and Maintenance Services or any Updates with respect to Evaluation Product unless a license is later purchased;
(vii) EXCEPT AS REQUIRED BY LAW, EVALUATION PRODUCTS (AND ALL RESULTS OF USE) ARE DELIVERED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND 42CRUNCH AND ITS SUPPLIERS DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, AS APPLICABLE, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, SATISFACTORY QUALITY, TITLE OR NONINFRINGEMENT WITH RESPECT TO THE SAME.

4. Restrictions.

Except as otherwise expressly permitted under this Agreement, Customer shall not (and shall not authorize or permit any third party including any Authorized Users to):

(i) use the Solution (or any portion thereof) in excess of or beyond the Subscription Parameters and/or other restrictions/limitations described in this Agreement or the Order;
(ii) use the Solution to access, filter or secure APIs not owned by Customer or Licensed Affiliates;
(iii) modify the Solution or create derivative works based upon the Solution or Reverse Engineer the Solution, except and only to the extent any foregoing restriction is prohibited by applicable law;
(iv) create a program or a set of programs similar or identical to the Solution, using any elements or functionalities of the Solution to do so;
(v) use the Solution in any way that is unlawful or in violation in any applicable laws, or allow Solution to be used in any embargoed country or region, or involving a sanctioned person or party;
(vi) distribute, sell, rent, lease, license, transfer, or otherwise provide or allow access to the Solution to third parties other than Authorized Users;
(vii) use or permit the Solution to be used to perform services for third parties, whether on a service bureau, SaaS, time sharing basis or otherwise;
(viii) install any component of the Solution on computers or systems which are not owned and controlled by Customer or Licensed Affiliates;
(ix) release, publish, and/or otherwise make available to any third party the results of any performance or functional evaluation of the Solution without the prior written approval of 42Crunch;
(x) share Authorized User accounts for access/use of the Solution;
(xi) alter or remove any proprietary notices or legends contained on or in the Solution
(xii) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms in the Solution, including without limitation any such mechanism used to restrict or control the functionality of the Solution;
(xiii) use the Solution on or in connection with unauthorized or unsupported systems, equipment or products (i.e. not identified in Documentation);
(xiv) upload Malicious Code to Solution;
(xv) attempt to gain unauthorized access to any component or portion of the Solution, other accounts, computer systems or networks connected to a Solution, or obtain or attempt to obtain any materials or information made available through any component or portion of the Solution not intentionally made available by 42Crunch to Customer;
(xvi) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Solution.

For the avoidance of doubt, all restrictions specified herein with respect to Solution apply to all components of the Solution.  There are no implied licenses granted by 42Crunch under this Agreement.  Competitors of 42Crunch are strictly prohibited from accessing or using the Solution for any purpose. Production traffic logs derived from the 42Crunch API Protect module may not be maintained or stored on 42Crunch SaaS Platform and must be directed to and stored by Customer on its own systems. It is the responsibility of Customer to ensure that all Authorized User(s) are aware of the terms and conditions (including all the restrictions) of this Agreement.  Customer agrees that all actions or inactions of Authorized User(s) shall be deemed an action or inaction by Customer and that Customer shall be liable and responsible for any action or inaction of the Authorized User(s) which is in violation of the terms of this Agreement.

5. Support and Maintenance.

As part of its purchase of a subscription license to the Solution, Customer shall be entitled to receive 42Crunch standard Support and Maintenance Services. For clarity, a Single User license has access to the 42Crunch developer community, self-service tutorials and can also submit issues to our support team via our support portal. 42Crunch will deliver Support and Maintenance Services in accordance with 42Crunch’s support and maintenance policy found at https://us.42crunch.cloud/support-policy.pdf (or such updated URL provided by 42Crunch from time to time)(“Support Policy”), which policy is hereby incorporated by reference.  For clarity, such Support and Maintenance Services include the provision of Updates to the Solution as they become generally available to other relevant 42Crunch customers during the relevant Subscription Term. 42Crunch may make changes to its Support Policy with thirty (30) days’ notice to Customer (via the support portal or otherwise), provided such change is in connection with a standard change made to its then-current standard support and maintenance terms and there is no material degradation of the support offering.  If Customer has purchased add-on support services (premium) or access to a Technical Account Manager (TAM) as identified in the relevant Order, 42Crunch shall provide such services in accordance with its Support Policy.  For clarity, all Support and Maintenance Services acquired by Customer are provided subject to:

(i) this Agreement;
(ii) the Support Policy; and
(iii) Customer’s payment of all applicable fees for the requisite period and number and type of licenses acquired by Customer according to an accepted 42Crunch Order.

6. Professional Services.If Customer orders Professional Services (e.g., deployment, training, configuration, or other consulting professional services related to assisting Customer in the use of the Solution), then 42Crunch shall deliver such Professional Services subject to the terms and conditions of this Agreement, the relevant Order and/or the relevant Statement of Work.  For clarity, no work for hire shall be provided hereunder.  Customer agrees that it will reasonably cooperate with 42Crunch in connection with the performance of such Professional Services under this Agreement by making available such personnel and information as may be reasonably required for 42Crunch to perform Professional Services.  If applicable, Customer will reimburse 42Crunch (either directly or through the Authorized Reseller, as relevant) for reasonable and pre-approved travel and lodging expenses which are incurred by 42Crunch in connection with any Professional Services.  Professional Services will be delivered during the timelines identified in the Order or Statement of Work, provided that if no timelines are specified then Professional Services will only be delivered for one year from the Order effective date (“Delivery Period”). If Customer does not request delivery of the Professional Services ordered within such Delivery Period, then Professional Services will be deemed delivered at the end of the relevant Delivery Period.

7. Fees; Payment Terms; Updating Subscription Parameters.

A. Fees; Payment Terms.

1. 1. 1. If you choose a paid-subscription plan, you agree to pay us fees in accordance with the relevant pricing plan. Details of those fees are set out on our Pricing Page at https://42crunch.com/pricing/. 
      2. Depending on the pricing plan chosen by you, our third party payment processor will (and you hereby authorize it to) bill your payment card for the applicable fee in advance on or shortly after the date you subscribe for a paid plan and each month or anniversary thereafter, until terminated by you or us. The fees are non-cancellable and non-refundable, except as expressly stated otherwise in these Terms of Service. 
      3. If you move to a higher tier of a paid plan, the change will take effect immediately and we will charge you for the additional fees associated with the new paid plan on a pro-rata basis. If you move to a lower tier of a paid plan, the fee change will take effect in the next billing cycle. You acknowledge that you will not receive a refund for the then-current billing cycle if you move to a lower tier of a paid plan, or to a non-payment subscription plan. 
      4. We reserve the right not to provide you with the Services until the relevant fee has been received in full and cleared funds. 
      5. We also reserve the right to change our fees or payment plans at any time. If you do not agree to such change, you must ask us to delete your account via email to support@42crunch.com and stop using the Services within 30 days of the date the new fee or payment plan becomes effective, at which point this Agreement will be deemed to have been terminated by you. We will only charge you in respect of the period before termination and based on the old fee or payment plan. If you do agree to such change (which will be deemed from your continued use of the Services after the date the new fee or payment plan becomes effective), your next bill will include the new fees on a pro rata basis. 
      6. You will pay fees without any set-off, counterclaim, deduction or withholding of any kind, except as may be required by law. If any withholding or deduction is required by law, you will, when making the payment to which the withholding or deduction relates, pay to us such additional amount as will ensure that we receive the same total amount that it would have received if no such withholding or deduction had been required.

B. Updating Subscription Parameters. In connection with the use of or access to the Solution, Customer shall not exceed the Subscription Parameters agreed to as part of the Order.  At any time during the Subscription Term, if Customer desires to increase the relevant Subscription Parameters, or if the Parties learn that Customer’s actual usage (“Actual Usage”) exceeds the relevant Subscription Parameters paid for by Customer (“Purchased Usage”), then Customer shall notify 42Crunch (and/or the Authorized Reseller) and pay the incremental fees due for the relevant period of Actual Usage, and after the relevant Order is placed, the relevant Subscription Parameters shall be amended to reflect this change.  The Parties may each track Customer’s adherence to the Subscription Parameters and Actual Usage and 42Crunch (and/or the relevant Authorized Reseller) may invoice Customer if it learns of any shortfalls, i.e., that the Actual Usage is above the Purchased Usage.  Unless otherwise mutually agreed in writing, the fees charged to Customer for the additional usage on any subscription will be based on the then-current pricing charged to Customer in the relevant Order (not including any special discounts that are not relevant to overage usage, e.g. one-time marketing discounts, etc.) and fees shall be charged for the balance of the existing Subscription Term so that the licenses may be coterminous with the existing licenses.

8. Ownership and Intellectual Property.

A. Solution. The Solution is licensed and not sold. As between Customer and 42Crunch, 42Crunch and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Solution, 42Crunch’s Confidential Information, and all copies or portions thereof, and any derivative works thereof (by whoever created).  Customer agrees that it shall not refute or otherwise challenge 42Crunch’s and/or any of its Affiliates’ ownership of any such Intellectual Property Rights. Customer is not required to provide any feedback, suggestions for improvement, or updates to the Solution, however, if provided all such feedback regarding the Solution, including suggestions for improvements or updates to the Solution recommended or provided by Customer and/or any Authorized User to 42Crunch (“Feedback”) shall be owned by 42Crunch, and Customer hereby assigns the same to 42Crunch.  All rights, title, and interest not expressly granted herein are reserved by 42Crunch. Customer provides the Feedback “AS IS” and disclaims any express or implied warranties therein.

B. Customer Data. As between the Parties, Customer retains the ownership (including any Intellectual Property Rights) in and to the Customer Data.  Customer, on its own behalf and on behalf of its Authorized Users, grants 42Crunch a non-exclusive, sub-licensable, transferable, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify, the Customer Data (collectively “Process” or “Processing”) solely to the extent necessary to provide the Solution, Support Services, and/or Professional Services to Customer (and its Authorized User(s)) and in order to generate Usage Data.  Customer warrants and covenants that it has the right to grant to 42Crunch such licenses.

9. Confidentiality.

A. “Confidential Information” means any non-public data, information and other materials regarding the products, technology, software, services, or business of a party (and/or, if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by or made available by one party (“Disclosing Party”), either directly or indirectly through third parties, to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary.  The parties agree that, without limiting the foregoing, the Solution (including each component and any performance data, benchmark results, training materials, and technical information relating thereto), the Documentation, and 42Crunch’s pricing information shall be deemed the Confidential Information of 42Crunch, Customer Data shall be deemed the Confidential Information of Customer, and the terms and conditions of this Agreement (but not its existence) shall be deemed the Confidential Information of both parties.  Notwithstanding the foregoing, Confidential Information shall not include information which the receiving party can show:

(i) is already known to the Receiving Party prior to disclosure by the Disclosing Party;
(ii) becomes publicly available without fault of the Receiving Party;
(iii) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, or is approved for release by written authorization of the Disclosing Party; or
(iv) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information.

B. Duties. Except as expressly authorized herein, the Receiving Party agrees to:

(i) use the Confidential Information of the Disclosing Party only to perform its obligations under the Agreement  (including providing the features and services associated with the normal use of the Solution) or exercise rights granted to it under the Agreement;
(ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and
(iii) disclose the Disclosing Party’s Confidential Information only to its Affiliates, and those employees, agents and contractors of the Receiving Party and those of its Affiliates (collectively “Personnel”) who have a need to know such information for the purposes of this Agreement, provided that any such Personnel are subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement.   Receiving Party shall remain liable for any non-compliance of such Personnel with the terms of this Agreement.

C. Disclosures Required by Law. Either party may disclose Confidential Information of the other party if it is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure (to the extent permitted by law) and reasonably cooperates with the Disclosing Party in limiting such disclosure and ensuring confidential handling of the Confidential Information.  A Party may also disclose the terms of this Agreement to its advisors, investors, lawyers and accountants or as part of any legal proceeding or as necessary to defend its rights or enforce the terms of this Agreement.

D. Survival. The obligations in this Section shall survive for five (5) years from the date of access to Confidential Information, provided that with respect to any trade secrets, the obligations of confidentiality shall survive for so long as the matter is maintained as a trade secret.

10. Security; Data Processing.

A. Security; Compliance. 42Crunch has achieved ISO 270001 compliance.  During the Subscription Term, 42Crunch agrees to continue to maintain (a) ISO 270001 (and/or similar highly regarded industry-standard certifications) certification and (b) an information security management program (ISMP) that aligns with industry standards, and use reasonable commercial efforts to comply with such ISMP throughout the Subscription Term.

B. Personal Data and Privacy Notice. Customer, on its own behalf and on behalf of its Authorized Users:

(i) agrees that 42Crunch and its Affiliates and their respective service providers may Process Customer Data for the purposes set out in this Agreement and in 42Crunch’s Privacy Notice, as may be amended from time-to-time by 42Crunch and which is incorporated by reference herein, the current version of which can be viewed at https://42crunch.com/privacy-policy/; and
(ii) represents and warrants that it has a lawful basis for such processing, including the collection of Authorized User’s personal data as required for the use of the Solution, products or services used with the Solution and as contemplated in this Agreement.

11. Term and Termination; Survival.

A. Term.This Agreement commences upon Customer's agreement to be bound by the terms and conditions of this Agreement (as outlined at the beginning of this Agreement) and continues only for as long as a Subscription Term is still in effect, subject to renewal and/or early termination in accordance with the terms of this Agreement.

B. Termination. This Agreement may be terminated by either Party:

(i) if the other Party materially breaches this Agreement and fails to cure it within thirty (30) days after written notice of the breach; and
(ii) where permitted by law, if the other Party ceases to carry on business in the ordinary course without a successor, becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed,  or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.

C. Effect of Expiration or Termination. Upon expiry or termination of this Agreement for any reason:

(i) all licenses and rights to the Solution and/or obligations to provide Support and Maintenance Services or Professional Services shall immediately terminate
(ii) Customer shall promptly pay all amounts due and not yet paid under the relevant Order
(iii) Except as expressly provided herein, and unless termination is by Customer for a material uncured breach by 42Crunch, Customer shall not be entitled to any refund of fees paid under the relevant Order and if termination is based on an uncured 42Crunch breach, then Customer shall be entitled to a pro-rata refund of any unused subscription fees, starting from the effective date of such termination;
(iv) Customer and its Authorized Users shall immediately cease all use of and/or access to the Solution and delete and/or destroy all copies of Downloadable(s) that are in the possession or control of Customer and/or its Authorized Users and, on 42Crunch's request, confirm the same in writing signed by an officer of Customer;
(v) 42Crunch shall have the right to block any use of and/or access to the Solution, and/or delete any files, programs, data and e-mail messages associated with any account of Customer or an Authorized User, without notice to Customer or the Authorized User;
(vi) 42Crunch may retain Customer Data pursuant to the terms of this Agreement, or for so long as may be required to comply with any law or regulation applicable to 42Crunch or any court, regulatory agency or authority to which 42Crunch is subject; and,
(vii) Where only a portion of the license to Solution expires or is terminated, the foregoing subsections shall be limited to such portion and the Agreement shall continue for the remaining portion(s).
(viii) The following Sections of this Agreement shall survive its expiry or termination: Sections 1, 3, 4, 7, 8, 9, 10 (for as long as 42Crunch stores Customer Data), 11,12,13, 14, and 15.

12. Limited Warranties; Disclaimers; Assumption of Risk.

A. Mutual Warranties. Each party warrants to the other that

(i) it has the full power to enter into this Agreement and
(ii) this Agreement constitutes a legal, valid and binding obligation of such party, enforceable against it
(iii) this Agreement does not contravene, violate or conflict with any other agreement of such party with any third party; and
(iv) each Party shall comply with all applicable law in connection with its activities contemplated under this Agreement.

B. Solution Warranty. During the Subscription Term, 42Crunch warrants that the Solution materially conforms to its published specifications described in the relevant Documentation. Customer’s sole and exclusive remedy and the entire liability of 42Crunch and its suppliers and licensors under this limited warranty will be for 42Crunch to use reasonable efforts to promptly correct the non-conformity or provide a workaround for such problem (which fix or workaround may be provided to Customer at 42Crunch’s reasonable discretion in one of a variety of forms or means)or if 42Crunch is unable to deliver a fix or workaround within a reasonable time, then to terminate the Agreement and provide a pro-rata refund of any prepaid subscription fees paid to 42Crunch for the non-conforming Solution for the remaining unused portion of the Subscription Term following such termination.

C. Malicious Code. 42Crunch will use standard industry practices to test and/or review the Solution made available to Customer hereunder prior to its delivery or transmission for “Malicious Code” and 42Crunch shall remove any “Malicious Code” it discovers prior to delivery of Solution to Customer. For clarity, Malicious Code shall not include standard routines in the Solution which are intended to delete data and are implicit in the standard functionality of the Solution, or any standard Solution bugs or errors handled through Support and Maintenance, or any license key or other equivalent code which may limit the functionality or scope of the use of the Solution to the scope of the license purchased by Customer hereunder.  If Malicious Code is found 42Crunch will remediate the Malicious Code from the Solution at its sole cost and expense.

D. Professional Services Warranty. or a period of thirty (30) days from the date of the delivery of the Professional Services to Customer,42Crunch warrants to Customer that such Professional Services provided shall be provided in a professional and workmanlike manner and shall be performed in a manner conforming to any requirements stated herein or in the relevant Statement of Work or Order (as relevant).  42Crunch’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty will be for 42Crunch, at its cost, to re-perform the nonconforming Professional Services, or if 42Crunch is unable to deliver conforming Professional Services within a reasonable time, then refund any fees paid to 42Crunch for the relevant non-conforming Professional Services (if any).

E. By Customer. Customer warrants that Customer has and will have the legal authority, and all consents, permissions, notices and all rights necessary, including any of the foregoing from Customer employees or third parties or regulatory authorities, employee representative bodies, each to the extent relevant to Customer:

(i) to upload or otherwise provide access to the Customer Data to 42Crunch and
(ii) for 42Crunch to fulfill its obligations and exercise its rights with respect to the Customer Data as set forth in this Agreement.

F. Exclusions. Any warranties of 42Crunch with respect to the Solution (and any component thereof) shall not apply to trial Evaluation Products, Sample Code, or Sample Scripts, or to the extent the failure is due to:

(i) use of the Solution in a manner inconsistent with any of Customer’s obligations set out in this Agreement or in a manner inconsistent with the instructions in the Documentation;
(ii) a malfunction or other problem related to any Third Party Product(s) or other external causes affecting the Solution, including changes to Third Party Products that adversely affect interoperability or
(iii) defects due to repairs or modifications to Solution not authorized by 42Crunch in writing.

G. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT AND AS PERMITTED BY APPLICABLE LAW, THE SOLUTION, THE SUPPORT AND MAINTENANCE SERVICES, EVALUATION PRODUCTS, PROFESSIONAL SERVICES, DELIVERABLES AND/OR RESULTS OF ANY OF THE FOREGOING PROVIDED BY 42CRUNCH HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND, TO THE EXTENT APPLICABLE,  42CRUNCH DISCLAIMS ALL OTHER IMPLIED OR EXPRESSED REPRESENTATIONS AND WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT WITH RESPECT TO THE SAME. WITHOUT LIMITING THE FOREGOING, 42CRUNCH DOES NOT WARRANT

(I) UNINTERRUPTED OR ERROR-FREE USE OR OPERATION OF THE SOLUTION;
(II) THAT ALL API VULNERABILITIES, THREATS, OR ATTACKS WILL BE DISCOVERED, REPORTED, OR REMEDIED WHEN USING THE SOLUTION OR RESULTS OF SERVICES;
(III) THAT CUSTOMER DATA, SYSTEMS OR NETWORKS SHALL BE FREE FROM LOSS, ERROR OR CORRUPTION; OR
(IV) THAT AUTHORIZED CONTENT SHALL BE TRANSMITTED THROUGH CUSTOMER APIS WITHIN A REASONABLE PERIOD OF TIME. CUSTOMER ACKNOWLEDGES THAT ANY RESULTS OBTAINED FROM THE SOLUTION, EVALUATION PRODUCT(S), AND/OR PROFESSIONAL SERVICES MAY BE INCOMPLETE OR INACCURATE AND SUCH RESULTS ARE PROVIDED FOR GENERAL CONSIDERATION BY CUSTOMER AND THAT CUSTOMER IS REQUIRED TO INDEPENDENTLY EVALUATE ANY SUCH RESULTS BEFORE ITS RELIANCE ON THE SAME. 42CRUNCH IS NOT RESPONSIBLE OR LIABLE FOR CUSTOMER’S RELIANCE ON ANY SUCH RESULTS.

CUSTOMER UNDERSTANDS THAT THE FILTERING AND THE SECURITY OPERATIONS ENABLED BY CUSTOMER AND PERFORMED ON APIS BY THE SOLUTION MAY EXPOSE VULNERABILITIES AND ATTACKS AND/OR MAY BLOCK THE API CLIENT REQUEST FROM REACHING API ENDPOINTS OR MAY BLOCK THE API SERVER RESPONSE FROM REACHING THE API CLIENT CUSTOMER ASSUMES ANY SUCH RISK OR LOSS OR FAILURE ASSOCIATED WITH USE OF THE SOLUTION.  CUSTOMER ACKNOWLEDGES THAT THE SOLUTION IS NOT DESIGNED OR INTENDED FOR USE WITH SYSTEMS OR SOLUTIONS CONTROLLING ANY APPLICATION OR SYSTEM WHERE A FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE.

13. Indemnification.

A. 42Crunch Indemnification. 42Crunch shall defend, or at its option settle, any third party claim brought against Customer, Licensed Affiliate(if applicable) and/or Authorized Users (“Customer Indemnitee(s)”) alleging that use of the Solution in accordance with the terms of this  Agreement, infringes a third party copyright or patent right, and shall pay any damages finally awarded, to such third party by a court of competent jurisdiction or that is agreed to in a settlement by 42Crunch to the extent the Solution is the basis of such a claim.  If such a claim occurs, or if in 42Crunch’s opinion is likely to occur, 42Crunch in its sole discretion may:

(i) procure the right for Customer to continue to use the applicable Solution or infringing portion(s); or
(ii) modify or replace the applicable Solution or infringing portion(s); or, if neither (i) nor (ii) is available or commercially practicable,
(iii) terminate Customer’s license to the affected portion of the Solution and refund or credit a portion of the license fees paid by Customer on a pro-rata basis corresponding with the remaining portion of the license term for the affected portion.

42Crunch shall have no obligations or liability under this subsection (a) to the extent that any claim is based upon or arises out of:

(i) any modification or alteration to the applicable Solution not made by or on behalf of 42Crunch;
(ii) any combination or use of the applicable Solution with equipment, software, services, products or systems not provided by 42Crunch;
(iii) Customer’s continued use of allegedly infringing Solution or infringing component thereof after being notified;
(iv) Customer’s failure to use software updates or upgrades made available by 42Crunch at no additional cost;
(v) use of the Solution other than in accordance with the applicable Documentation or outside the scope of the license granted under this Agreement;
(vi) Evaluation Product(s), Sample Codes, or Sample Scripts or
(vii)Third Party Open Source.  The remedies set forth in this subsection constitute Customer Indemnitees’ sole and exclusive remedies, and 42Crunch’s entire liability, with respect to infringement or violation of third-party Intellectual Property Rights.

B. Customer Indemnification. Customer shall defend, or at its option settle, any third party claim brought against 42Crunch, its Affiliates, and/or any of their respective employees, officers, directors, contractors and/or licensors (“42Crunch Indemnitee(s)”) arising out of or in connection with (i) use of the Solution by Customer, Licensed Affiliated and/or Authorized Users in violation of the terms of this Agreement or any applicable laws (ii) Customer Data (including any API) and/or 42Crunch or its Personnel’s authorized use or processing of Customer Data as authorized by the Agreement, and Customer shall pay any damages finally awarded, to such third party by a court of competent jurisdiction or that is agreed to in a settlement by Customer.

C. Indemnification Process. Each indemnifying party’s indemnification obligations are subject to the indemnified party (e.g. Customer Indemnitee(s) or 42Crunch Indemnitee(s), as relevant)

(i) promptly notifying the indemnifying party in writing of the third party claim subject to indemnification hereunder, provided, however, the failure to provide such notice will only relieve the indemnifying party of its indemnity obligations hereunder to the extent it is prejudiced thereby);
(ii) promptly giving the indemnifying party the right to control and direct the investigation, preparation, defense and settlement of such claim (provided that the indemnified party shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim), and
(iii) providing reasonable assistance and cooperation for the defense of same, at the indemnifying party’s reasonable expense.

14. LIMITATION OF LIABILITY.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT FOR ANY LIABILITY ARISING FROM FRAUD OR FRAUDULENT MISREPRESENTATION, DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, OR FOR ANY VIOLATION OF THE CONFIDENTIALITY OBLIGATIONS STATED IN SECTION 9 , OR THE INDEMNIFICATION OBLIGATIONS STATED IN SECTION 13, OR FOR ANY MATTER FOR WHICH IT WOULD BE UNLAWFUL TO LIMIT LIABILITY UNDER APPLICABLE LAW:

IN NO EVENT SHALL 42CRUNCH BE LIABLE FOR:

(I) INDIRECT, ECONOMIC, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE DAMAGES;
(II) LOST PROFITS, REVENUE OR EARNINGS, LOST OR CORRUPTED DATA,COST OF REPLACEMENT OR RESTORATION OF DATA, DELAYS OR FAILURE TO TRANSMIT OR RECEIVE DATA, BUSINESS INTERRUPTION, FAILURE TO REALIZE EXPECTED SAVINGS, COST OF SUBSTITUTE PRODUCTS, OR SERVICES, LOST GOODWILL, REPUTATIONAL DAMAGE; AND
(III) DAMAGES RELATED TO OR ARISING OUT OF ANY THIRD PARTY PRODUCTS; AND

NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF 42CRUNCH EXCEED THE AMOUNTS RECEIVED BY 42CRUNCH IN CONNECTION WITH THE ORDER WHICH IS RELATED TO THE SUBJECT MATTER OF THE CLAIM(S).
THE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SET OUT IN THIS AGREEMENT SHALL APPLY:

(I) WHETHER AN ACTION, CLAIM OR DEMAND ARISES FROM A BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY STRICT LIABILITY, STATUTORY LIABILITY, OR ANY OTHER THEORY OF LIABILITY;
(II) WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR POSSIBILITY HAS BEEN DISCLOSED TO 42CRUNCH; AND
(III) TO 42CRUNCH, ITS AFFILIATES, AND THEIR RESPECTIVE SUPPLIERS, SUCCESSORS AND ASSIGNS.

15. General.

A. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of Ireland (“Governing Law”),

B. Notices. Any notice, request, demand or other communication required or permitted under this Agreement shall be in writing and delivered by hand or sent by registered mail or courier, effective on the date of receipt, addressed as follows: if to Customer, at the billing address supplied to 42Crunch by Customer in the Order, and, if to 42Crunch, Attention: 42Crunch  Legal, addressed to 42Crunch entity that is the counterparty to the Agreement as specified above, at the address specified above  with a copy to 42Crunch Parent entity Attention Legal, addressed to 42Crunch Ltd, 71-75 Shelton Street, WC2H 9JQ, London, UK (if not the same entity). A Party may from time-to-time change its address for notice by notice in writing to the other Party delivered hereunder.  In addition, 42Crunch may at its option deliver the foregoing notice or other communication to an e-mail address provided by Customer to 42Crunch, which shall be effective and deemed delivered when transmitted, and if Customer has provided 42Crunch with no such address, notice may be duly given when prominently posted on 42Crunch.com/legal notices.

C. Dispute Resolution. With respect to any dispute, claim or controversy (collectively “Claims”) arising out of or relating to this Agreement including the determination of the scope, applicability or adjudicative process associated with this Agreement such Claims:

(1) shall be submitted to and determined by arbitration in the Dublin Ireland and shall be conducted in the English language
(2) the Parties waive any right to a trial by jury with respect to any lawsuit or judicial proceeding arising or relating to this Agreement;
(3) shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“Rules) by one or more arbitrators appointed in accordance with the said Rules.

D. Equitable Relief. Notwithstanding anything to the contrary, the parties agree that a material breach of this Agreement which adversely affects either Party’s Confidential Information or 42Crunch’ or its licensors’ Intellectual Property Rights in Solution shall cause irreparable injury to such Party for which monetary damages would not be an adequate remedy and the non-breaching party shall be entitled to  equitable relief in any court of competent jurisdiction (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.

E. Interpretation and Language.  Headings are inserted herein for convenience only and are not to be used in the interpretation of this Agreement. As used herein:

(i) "days" means calendar days;
(ii) “include” and “including” are not limiting; and
(iii) use of a Solution shall be deemed to include active or inactive use.

This Agreement, any disputes or claims raised hereunder, and all services to be provided hereunder by 42Crunch to Customer (if any) shall be conducted and provided in the English language.  If this Agreement is translated into a language other than English, the English version shall prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof.

F. Independent Contractors. The parties are independent contractors for all purposes under this Agreement, and neither party shall be deemed an employee, partner, or agent of the other. Each party shall be solely responsible for any and all obligations and payments due with respect to their personnel, including any wages, salaries, and amounts due or payable to its personnel in connection with this Agreement.  This Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.

G. Usage Data. Customer, on its own behalf and on behalf of its Authorized Users, authorizes 42Crunch to collect and analyze data, metrics and other information relating to the provision, use, and performance of various aspects of the Solution, related 42Crunch systems and interactions and interoperability with other technologies (collectively “Usage Data”). For clarity, Usage Data shall not be deemed Customer Data or Customer Confidential Information.  42Crunch (and its successors and permitted assigns) will be free (during and after the Term of this Agreement) to:

(a) use such Usage Data for any internal lawful business purpose including to verify compliance with Subscription Parameters, to develop, improve and enhance the Solution, to improve interoperability, to develop, enhance, diagnose, correct or improve its offerings, to create reports, summaries, and other materials, and
(b) disclose such Usage Data to others, provided such Usage Data is in an “Aggregated and Anonymized Form”. The term “Aggregated and Anonymized Form” means the data has been collected from multiple sources and compiled in a way that does not identify, and is not capable of identifying, Customer, Authorized Users, or any individual or entity associated with Customer, including as the source of such Usage Data.  Notwithstanding the foregoing, Usage Data may be disclosed in a non-Aggregated but Anonymized Form to 42Crunch advisors, investors, lawyers and accountants under obligations of confidentiality or as part of a legal proceeding as necessary to defend 42Crunch rights or enforce this Agreement.

H. Third Party Open Source. Notwithstanding anything else herein, to the extent Downloadable(s) contain any third-party open source libraries/components/applications/user interface/utilities (collectively referred to as “Third Party Open Source”) and to the extent required by the relevant licensor, such Third Party Open Source delivered shall be subject to the relevant Third Party Open Source proprietary notices, disclaimers, requirements and/or extended rights which are relevant to the relevant Third Party Open Source and identified to the Authorized User via the Platform (or otherwise upon request). 42Crunch confirms that Solution delivered hereunder shall not be delivered together with any Third Party Open Source that is subject to terms which create, or purport to create, an obligation that Customer grant to any third party any rights to, or immunities under, any of Customer’s Intellectual Property Rights, or that Customer disclose or make any of its own proprietary code (or any part or derivative work thereof) available to third parties under any circumstances.

I. Force Majeure. A Party shall not be liable for its failure or delay in the performance of its obligations under the Agreement if such failure results from circumstances beyond its reasonable control, including but not limited to supplier strikes, lock-outs, labor disputes or availability, third party acts, war, riot, civil disorder, acts of terrorism, curtailment of transportation, work stoppages, epidemic, compliance with any law or governmental order, prohibition, rule, regulation or direction not in force on the date the Agreement commences. (“Force Majeure Event”).  If a Force Majeure Event continues to cause failure or delay in performance of a Party’s obligations for more than thirty (30) days, the affected Party shall have the right to terminate, without liability, to the other.

J. Compliance with Laws, Export Control and U.S. Government Users.  Customer agrees that the Solution may include cryptographic technology, data or other information and shall not be received, exported, imported, used, transferred, distributed, accessed or re-exported except in compliance with the applicable laws and regulations of the relevant government authorities, including United Kingdom, EU, and/or U.S. export control and sanction regulations.  Customer also represents and covenants:

(i) not to, directly or indirectly, allow access to or use of the Solution in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for prohibited end-uses under applicable law; and
(ii) that Customer shall ensure that its receipt and use of and/or access to the Solution, or that of its Authorized Users, is in accordance with the restrictions in this subsection. If any part of the Solution is being licensed by the U.S. government, including any U.S. federal agency, the Solution is considered access to commercial computer software and documentation developed exclusively at private expense and the Solution is provided as a “commercial item” as that term is defined in FAR 2.101 (and as it is defined and used in all corresponding agency specific Federal Acquisition Regulation supplements) and is provided with only those rights specified in Section 2.

K. Assignment. This Agreement may not be wholly assigned or transferred without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement to a successor in interest of all or substantially all of its business or assets.  Any action or conduct in violation of the foregoing shall be void and without effect. 42Crunch may delegate any of its obligations hereunder to any Affiliate, contractor, subcontractor, services provider or third party, provided it shall remain fully liable and responsible for its delegates’ actions or inactions in violation of this Agreement.  All validly assigned rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.  Notwithstanding the foregoing, if Customer has purchased an enterprise-wide or unlimited license to the Solution or if such assignment would provide Customer a windfall given the manner in which Subscription Parameters were negotiated prior to the assignment, then as a condition of such assignment the Parties must negotiate in good faith an equitable, pro-rata adjustment to the fees based on fees originally negotiated, and if the Parties cannot agree, then such assignment shall be prohibited.

L. No Third Party Beneficiaries. The provisions of this Agreement are for the benefit of Customer and 42Crunch and not for any other person or entity, whether under statute or otherwise.

M. Marketing and Promotion.  From time-to-time, 42Crunch lists and/or mentions its customers in its marketing and communications initiatives.  Customer agrees that 42Crunch may use Customer’s name and logo, for such purpose. In addition, subject to applicable privacy law and 42Crunch’s Privacy Notice, Customer expressly consents to 42Crunch contacting Customer for marketing or promotional purposes.

N. No Waiver.  The waiver by either Party of any right provided under this Agreement must be in writing signed by such Party and any waiver shall not constitute a subsequent or continuing waiver of such right or of any other right under this Agreement.

O. Severability. If any section, provision or part thereof of this Agreement is held to be illegal, invalid or unenforceable by a court of competent authority in any jurisdiction, that section, provision or part shall be limited if possible and only thereafter severed to the extent necessary to render this Agreement valid and enforceable in such jurisdiction.

P. Entire Agreement; Modifications.  Unless a separate written Agreement has been executed between the Parties which is referenced in the Order, this Agreement is the complete agreement between the Parties concerning the subject matter hereof and supersedes any prior agreements and understandings between the Parties applicable to the Solution, Support and Maintenance Services or Professional Services ordered hereunder. .This Agreement prevails over any pre-printed terms or other conflicting or additional terms of any purchase order, acknowledgment, confirmation, or other ordering document issued by Customer or an Authorized Reseller to set out commercial terms, even if signed and returned. For clarity, where 42Crunch and Customer have entered into a signed agreement that is referenced in the Order, then such written terms of an executed agreement shall prevail and override these terms, in all other circumstances  Except as expressly provided herein, this Agreement may only be modified by the Parties in writing executed by both parties, referencing the specific section being amended.  Except to the extent expressly precluded by applicable law, 42Crunch may modify this Agreement, including to reflect changes in law or business practices with notice to Customer.  Notwithstanding any notice requirements herein, 42Crunch may notify Customer of the change by a reasonable means of notice, including email to Authorized User account(s) or if no valid email available, by posting the revised Agreement to the Platform Customer agrees to regularly visit the site to review the most current version of this Agreement.  Customer agrees that its continued access or use of the Solution after the changes become effective shall constitute Customer’s acceptance of the revised Agreement. Unless otherwise specifically set out in the relevant document, in the event of a conflict between these terms and conditions and the Support Policy, Statement of Work, or Order, these terms and conditions shall prevail.

Q. Basis of the Bargain.The Parties acknowledge and agree that 42Crunch has set its prices and entered into this Agreement in reliance upon the disclaimers of warranty and the limitations of liability agreed to herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.