Datacy for Business Terms of Use Agreement

Welcome, and thank you for your interest in Datacy, Inc. ("Datacy”) and Datacy’s data and analytics licensing platform for businesses located at datacy.com and/or any associated domains (the "Platform").  Please read this Datacy for Business Terms of Use Agreement ("Agreement") carefully.  To purchase a license to data and/or analytics that is accessible through the Platform, you must execute an ordering document with Datacy that references this Agreement or place an order for such license online via the functionality of the Platform (any such online or written order that is accepted by Datacy is hereafter referred to as an "Order").  As part of the ordering process, you must identify the applicable entity that is designated as the customer (“Customer”).  Each Order will also identify any data sets (“Data”) or derived data insights (“Insights”) to be provided to Customer pursuant to such Order (such Data and Insights are, together with the Platform and any other services provided by Datacy in connection therewith, collectively referred to as the “Service”) and may also identify additional usage limitations.  Datacy will not be required, by virtue of this Agreement or otherwise, to provide to Customer any other Data, Insights, Platform features or functionality which are not expressly covered by such Order.  All Orders will be deemed to be a part of this Agreement and are hereby incorporated by reference.  

THIS AGREEMENT SETS FORTH THE LEGALLY BINDING CONTRACT BETWEEN DATACY AND CUSTOMER THAT GOVERNS USE OF THE SERVICE.  BY CLICKING "I ACCEPT" OR EXECUTING AN ORDER, YOU REPRESENT AND WARRANT THAT YOU: (1) WISH TO USE THE SERVICE ON BEHALF OF, OR WITHIN YOUR CAPACITY AS, A REPRESENTATIVE, AGENT, OR EMPLOYEE OF THE ENTITY THAT IS DESIGNATED AS THE CUSTOMER AT THE TIME OF SIGN UP OR IN SUCH ORDER, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER.  BY CHECKING "I ACCEPT" OR EXECUTING OR SUBMITTING AN ORDER, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY ALL OF THE PROVISIONS OF THIS AGREEMENT.  

This Agreement is subject to occasional revision, and Datacy reserves the right to modify fees for accessing or using the Service in the future.  See Section 8.4 of this Agreement for further information about changes to this Agreement.

SERVICE

1. Access and Use of Service.  Subject to Customer's ongoing compliance with this Agreement (including timely payment of all applicable fees), Datacy grants Customer a non-exclusive, non-transferable right to access and use the Platform in accordance with any limitations set forth in the applicable Order, solely for Customer's internal business purpose and solely in accordance with the published documentation for the Service which is made available at datacy.com ("Documentation").  
2. Access and Use of Data and Insights.  Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Datacy grants Customer a non-exclusive, non-transferable license to access and use the Data and/or Insights which are identified in the Order and provided to Customer through the Platform during the applicable Subscription Term, provided that: (i) Customer must comply with any limitations set forth in the applicable Order, (ii) any such access and use must be solely for Customer’s internal business purpose, (iii) Customer may not share the Data or Insights with any third party, (iv) Customer must comply with all applicable laws and regulations, (v) Customer may only use Data and Insights in a manner consistent with Datacy’s Privacy Policy in place from time-to-time, (vi) Customer must cease using and permanently delete or destroy any Data and Insights (including any copies thereof in Customer’s possession or control) upon expiration of the applicable Subscription Term, (vii) Customer must delete any individual’s Data (including any copies thereof in Customer’s possession or control) promptly after Customer receives notification from Datacy that such Customer has requested its data be deleted and (viii) Customer treats all Data and Insights as Confidential Information in accordance with Section 5.
3. Accounts.  As part of the set-up process, Customer may be asked to create one or more accounts on the Service for itself and its Authorized Users (defined below) (each, an "Account") and provide certain information as prompted in the account registration process.  Customer represents and warrants that: (i) all required Account registration information submitted is truthful and accurate; and (ii) Customer will maintain the accuracy of such information.  Customer is responsible for maintaining the confidentiality of all Account login information and is fully responsible for all activities that occur under Customer's and its Authorized Users' Accounts.  Customer will use reasonable efforts to prevent any unauthorized access or use of the Service and Customer agrees to immediately notify Datacy of any unauthorized use, or suspected unauthorized use, of the Accounts or any other breach of security.  Additionally, if there is unauthorized access or use by anyone who obtained access directly or indirectly through Customer or its Authorized Users, Customer will also take all steps reasonably necessary to terminate the unauthorized access or use and cooperate and assist with any actions taken by Datacy to remediate any issues resulting from, or related to, such unauthorized access or use.  Datacy will not be liable for any loss or damage arising from any unauthorized use of the Accounts or Customer's failure to comply with the above requirements.
4. Authorized Users.  Customer will only permit the Service to be accessed by Customer's employees that are authorized by Customer to access the Service for Customer's internal business purposes ("Authorized Users"), provided that Customer shall remain liable for all acts and omissions of such users.  Customer will ensure its Authorized Users' use of the Service is in compliance with the terms of this Agreement and Customer will be solely responsible for enforcing any of Customer's internal policies regarding its Authorized Users' use of the Service or any portion thereof.
5. Restrictions.  The Service is made available to Customer solely for its own internal business purpose and use.  To the maximum extent permitted by applicable law, Customer shall not, directly or indirectly, and shall not authorize any person to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, structure, ideas, algorithms, or other hidden or non-public elements of; (ii) translate, adapt, or modify; (iii) write or develop any program based upon; (iv) use in any manner for the purpose of developing, distributing or making accessible products or services that compete with; (v) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any rights in, (vi) make the available on a service bureau basis, or otherwise access or use for the benefit of a third party; (vii) allow unauthorized persons to have access to; (viii) transmit unlawful, infringing or harmful data, content or code to or from; (ix) copy or replicate; (x) interfere with, disrupt, or create an undue burden on (or violate the regulations, policies or procedures of) any servers or networks connected to; (xi) attempt to gain unauthorized access to; (xii) alter or remove any trademarks or proprietary notices contained in or on; (xiii) engage in framing, mirroring, or otherwise simulating the appearance or function of; (xiv) perform or publish any performance or benchmark tests or analyses relating to; or (xv) otherwise use except as expressly permitted hereunder, in each case of (i) – (xv), in whole or in part, the Service, all other technology constituting or used to provide the Service, and Documentation (collectively, the "Datacy Technology"). 
6. Beta Features and Tools.  FROM TIME TO TIME, DATACY MAY OFFER NEW "BETA" FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT.  SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT DATACY'S SOLE DISCRETION. 

FEES; PAYMENT

1. Fees.  Customer agrees to pay to Datacy the fees set forth in the Order.  For licenses that automatically renew, the billing cycle (typically monthly or annually) will be indicated in the applicable Order, and in such case, the applicable fees for any subsequent billing cycle will be charged at Datacy's then-current published list price, until the license terminates in accordance with this Agreement.  Unless otherwise expressly set forth in an Order, any overage fees will be billed to Customer monthly in arrears.  Customer will be billed for all amounts due under this Agreement using the billing method Customer selects through its Account management page or other Customer-provided payment method on file in accordance with the terms set forth in the Order.  Customer must provide current, complete, and accurate information for Customer's billing account and promptly update all information to keep Customer's billing account current, complete, and accurate.  Fees paid by Customer are non-refundable, except as provided in this Agreement or when required by law.  Customer must terminate any automatically renewing license before it renews in accordance with this Agreement in order to avoid billing of the recurring subscription fees to Customer.  By choosing an automatically renewing license plan, Customer acknowledges that such Service has a recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination.  If there are no valid payment methods on file for Customer, Datacy may send Customer invoices for the balance of any amounts due.
2. Taxes.  Prices do not include, and Customer must pay or reimburse Datacy for, all federal, state, local, sales, use, value-added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on Datacy's net income).  If Datacy has a legal obligation to pay or collect sales tax for which Customer is responsible, Datacy will calculate the sales tax based upon the billing information it has about Customer and charge Customer that amount (which, if Customer's billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer timely provides Datacy with a valid tax exemption certificate acceptable to the appropriate taxing authority. 
3. Overdue Amounts.  Datacy may charge Customer interest on overdue fees at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue. 

TERM AND TERMINATION

1. Term.  This Agreement will start on the effective date of Customer's first Order (or otherwise as agreed by the Customer and Datacy) and, unless terminated earlier in accordance with this Agreement, will continue until all Orders hereunder have expired or been terminated for ninety (90) days.  Additionally, in the event that all Orders have expired or terminated, then either party may terminate this Agreement upon written notice to the other party.  
2. Subscription Term.  The duration of Customer's initial license term for any Data and/or Insights will be as set forth in the Order ("Initial License Term"), and will automatically renew on a monthly or annual basis (as applicable, a "Renewal License Term") unless terminated or canceled by Customer or Datacy as set forth below. The Initial License Term of an Order, together with any applicable Renewal License Term(s) for such Order, are collectively, the "Subscription Term."
3. Termination of Recurring Licenses.  Unless otherwise set forth in an Order, either party may cancel any automatically renewing licenses under this Agreement by providing the other party with at least thirty (30) days' notice of its intent to terminate prior to the end of the then-current Subscription Term. Customer should send notices of termination to [email protected].  If Customer cancels or Datacy terminates a license as set forth above, then, subject to Sections 3.4 and 3.6, Customer will continue to have access to the applicable Data or Insights through the Platform until completion of Customer's then-current Subscription Term, provided that Customer has timely paid all applicable fees and remains in compliance with the terms of this Agreement.  
4. Termination for Cause.  Datacy may terminate this Agreement and/or any applicable Order, in whole or in part, by written notice if Customer fails to pay within ten (10) days after notice of nonpayment any amounts owed to Datacy.  Additionally, ether party may terminate this Agreement and all Orders in the event that: (i) the other party is in material breach of this Agreement, which is not cured within 30 days after written notice of such breach; or (ii) the other party files for or is adjudicated bankrupt or suffers any other analogous event.
5. Effect of Termination.  Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and access to Datacy Technology will automatically terminate, and Customer shall delete or destroy all Data and Insights and any copies thereof; and (ii) all outstanding payment obligations of Customer become due and payable immediately.  All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.3, 1.5, 1.6, 2, 3.5 and 4 through 8.
6. Delinquent Accounts; Suspension.  Datacy reserves the right to suspend or terminate, the Service, in its sole discretion, if any amount under an Order is due but unpaid until such time as all amounts due under this Agreement are paid in full.  In addition to the amount due for the Service, Customer will be charged with fees or charges that are incidental to any chargebacks or collection of any such unpaid amounts including collection fees.  Additionally, Datacy reserves the right to suspend Customer and/or its Authorized Users' access to the Service or any portion thereof at any time: (i) in the event that Datacy suspects in good faith that Customer or any of its Authorized Users is using the Service or any portion thereof (including any Data or Insights) in violation of this Agreement or the applicable Order, or (ii) if Datacy otherwise believes such action is reasonable to comply with any applicable law, regulation or court order.  
7. LICENSE; OWNERSHIP 
   1. License from Customer.  As between the parties, Customer retains its ownership of all right, title and interest in and to any other content, materials, or data that it uploads or provides to the Service through the accounts of Authorized Users (the "Customer Content"), provided that Datacy is hereby granted a worldwide, non-exclusive, royalty-free, fully paid-up, sublicensable, irrevocable, right and license to (i) collect, access, process, use, reproduce, transmit, modify and make derivative works of the Customer Content for the purpose of providing the Service to Customer and its Authorized Users during the term of this Agreement, (ii) collect, access, process, and analyze log and other data related to the Service and the provision, use and performance and various aspects of the Service and related systems technologies and use such data to train Datacy's algorithms, to troubleshoot, improve and enhance the Service and for other development, diagnostic, security and corrective purposes.  Although Datacy has no obligation to monitor Customer's use of the Service, Datacy may do so and may prohibit any use of the Service it believes may be (or is alleged to be) in violation of this Agreement, applicable laws, or any acceptable use policies identified in the Service or any Documentation thereto. Customer will obtain all necessary consents, permissions, approvals, or licenses to use and permit Datacy to use the Customer Content in accordance with this Agreement and all applicable laws.
   2. Ownership.  Except for the limited rights granted in this Agreement, Datacy hereby retains all right, title and interest, including all intellectual property rights, in and to the Datacy Technology.  ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY DATACY.
   3. Feedback.  Customer hereby grants to Datacy and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use and exploit without restriction all feedback and suggestions provided by Customer and its Authorized Users (collectively, "Feedback"), including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the Datacy Technology or any portion thereof.

CONFIDENTIALITY AND PERSONAL INFORMATION

1. Definition of Confidential Information.  "Confidential Information" means (i) any information disclosed, directly or indirectly, by one party ("Disclosing Party") to the other party ("Receiving Party") pursuant to this Agreement that is designated as "confidential," or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself.  Without limiting the foregoing, the non-public features of the Datacy Technology, Data and Insights are the Confidential Information of Datacy.  However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party's possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party's contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party's Confidential Information.
2. Use and Maintenance of Confidential Information.  Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement.  Neither party shall disclose any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality.  Notwithstanding the foregoing, Datacy may disclose Customer Content to (i) Authorized Users as permitted by the features and functionality of the Service, and (ii) to Datacy's service providers (such as Datacy's hosting provider) so that these service providers can provide services on Datacy's behalf, provided that such service providers are bound by confidentiality obligations.  Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party.  A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party's Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment.  Datacy may list Customer as a customer in its promotional and marketing materials, including its website.
3. Use of Personal Information. Each party shall comply with applicable national, state, foreign and local laws and regulations pertaining to its use, collection, sharing, storage and other processing of information relating to identified or identifiable natural persons under and pursuant to this Agreement (including, if and as applicable, the California Consumer Privacy Act of 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679) as it applies in the European Economic Area and in the UK pursuant to the European Union (Withdrawal) Act 2018). 

INDEMNIFICATION  

1. By Customer.  Customer shall indemnify, defend and hold harmless Datacy and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (collectively, the "Datacy Entities") from and against any third party claim, loss, or damage (including reasonable attorney’s fees), arising out of or relating to (i) an allegation that the use by or on behalf of Datacy in accordance with this Agreement of any of the Customer Content, and/or any other data or materials obtained pursuant to a request from Customer, infringes or misappropriates any third party's rights or violates applicable laws; or (ii) Customer's violation or alleged violation of Section 1.2 or any limitations on the use of Data or Insights set forth in the Order.  Datacy will provide Customer with (a) prompt written notice of; (b) control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.  Notwithstanding the foregoing, Datacy will at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at Datacy's own expense.

WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY  

1. Disclaimer.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE DATACY TECHNOLOGY, DATA, INSIGHTS AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY OR THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS; (ii) THE DATACY ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE DATACY TECHNOLOGY, DATA, INSIGHTS AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY DATACY OR THROUGH THE SERVICE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY, COMPLETENESS, RELIABILITY, OR ARISING FROM COURSE OF DEALING, USAGE, TRADE OR RELIANCE.  THE DATACY ENTITIES DO NOT WARRANT ANY THIRD PARTY DATA, THE INSIGHTS, OR ANY WEBSITE CONTENT OR FUNCTIONALITY.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE DATACY ENTITIES DO NOT WARRANT THAT THE DATACY TECHNOLOGY, DATA, INSIGHTS AND ANY OTHER MATERIALS, RECOMMENDATIONS OR CONTENT MADE AVAILABLE THROUGH THE DATACY TECHNOLOGY WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ITS AUTHORIZED USERS FROM DATACY OR THROUGH THE DATACY TECHNOLOGY WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.  TO THE FULLEST EXTENT PERMITTED BY LAW, THE DATACY ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER'S OR ITS AUTHORIZED USERS' USE OF OR ACCESS TO THE DATACY TECHNOLOGY OR ANY OTHER MATERIALS OR CONTENT THAT IS MADE AVAILABLE BY DATACY OR THROUGH THE DATACY TECHNOLOGY.  CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER'S AND ITS AUTHORIZED USERS' USE OF THE DATACY TECHNOLOGY, INCLUDING ANY CONTENT, DATA, INSIGHTS OR MATERIALS THAT ARE ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED FROM DATACY OR THROUGH THE DATACY TECHNOLOGY, IS AT CUSTOMER'S OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DATACY ENTITIES ARE NOT RESPONSIBLE FOR ANY LOSS OF DATA OR CUSTOMER CONTENT.  NOTWITHSTANDING THE FORGOING THE DATACY ENTITIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT THE DATACY ENTITIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.
2. Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE DATACY ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE DATACY ENTITIES' TOTAL LIABILITY (INCLUDING ATTORNEYS' FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS.  THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

GENERAL PROVISIONS 

1. Assignment.  Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Datacy may assign this Agreement without the written consent of Customer as part of the conversion to a corporation or other corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
2. Force Majeure.  Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.  The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
3. Governing Law.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Santa Clara County, California for any lawsuit filed there against Customer by Datacy arising from or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
4. Modifications to this Agreement.  Datacy may modify this Agreement from time to time by giving notice to Customer through Datacy's online user interfaces, by sending Customer an email to the e-mail address last provided to Datacy (if any), by prominently posting notice of the changes on the Service, or in any other manner permitted by this Agreement.  In the event that the last e-mail address that Customer has provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, Datacy's dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.  Unless a shorter period is specified by Datacy (e.g. due to changes in the law or exigent circumstances), the modifications become effective upon renewal of Customer's current Subscription Term or entry into a new Order.  If Datacy specifies that the modifications to this Agreement will take effect prior to Customer's next renewal or Order and Customer notifies Datacy in writing at [email protected] of Customer's objection to the modifications within thirty (30) days after the date of such notice, Datacy (at its option and as Customer's exclusive remedy) will either: (i) permit Customer to continue under the existing version of the Agreement until expiration of the then-current Subscription Term (after which time the modified Agreement will go into effect), or (ii) allow Customer to terminate this Agreement and receive a pro-rata refund of any pre-paid Service subscription fees allocable to the terminated portion of the applicable Subscription Term.  Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Service, and, in any event, continued use of the Service after the modified version of this Agreement becomes effective will constitute Customer's acceptance of such modified version.
5. Export Controls; Government Rights.  Customer agrees that Customer will not, and will ensure that its Authorized Users will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Datacy Technology or any technical information about the Datacy Technology to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other government entity as may have jurisdiction over such export or re-export.  Customer hereby represents and warrants that (a) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (b) Customer is not listed on any U.S. Government list of prohibited or restricted parties.  The Datacy Technology is deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  Any use, modification, reproduction release, performance, display, or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
6. Miscellaneous.  This Agreement (together with the Orders) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to the said subject matter.  In the event of any conflict between the terms of an Order and the terms of this Agreement, the terms of this Agreement will apply unless the Order expressly indicates that a provision of the Order should supersede contrary language in the Agreement.  No terms of any purchase order, acknowledgment or other form provided by Customer will modify this Agreement, regardless of any failure of Datacy to object to such terms.  Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof.  Except as set forth in Section 8.4, this Agreement may only be amended by a writing signed by both parties.  This Agreement may be executed in counterparts.  The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement.  Any required notice shall be given in writing by customary means with receipt confirmed.  Notices to the Customer should be sent to the address set forth on the Order.  Notices to Datacy should be given to Paroma Indilo at 1721 3rd Ave N, Suite 201, Birmingham, AL 35203.  Either party may substitute its address for notice by providing written notice thereof to the other party.  Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the mail.  The relationship between the parties shall be that of independent contractors.  Datacy may use subcontractors.  Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement.  Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.