1.   CERTAIN DEFINED TERMS.

1.1. "Builder.io Site" means www.builder.io.

1.2. "Enterprise Order Form" means an order form executed by Customer and Builder and titled "Enterprise Order Form," pursuant to which the Customer pays for access to the Service's enterprise plan and as associated with an organization ID.

1.3. "Free Access Order Form" means an order for free access to the Services electronically agreed by Customer when Customer clicks the free access option on the Builder.io Site.

1.4. "Order Form" means an order for access to the Services, whether on electronic or physical paper executed by Customer and Builder or when Customer clicks to agree to the Services from the Builder.io Site. The term "Order Form" includes, without limitation, any Enterprise Order Form, any other paid order form, and any Free Access Order Form.

1.5. "Party" and "Parties" refers to Builder and Customer individually and collectively.

1.6. "Service" means Builder's SaaS platform offering and services described in the Order Form. The Services are intended for business use or use in connection with an individual's trade or profession only.

2.   ACCEPTANCE OF AGREEMENT.

2.1. This SaaS Services Agreement (the "Agreement") is entered into between Builder.io, Inc. ("Builder") and the person or entity accessing or using the Services ("you" or "Customer"). If you register on behalf of an entity or you register using a business email address, then "Customer" means that entity or that business. If you are accepting on behalf of Customer, you represent and warrant that (i) you have full legal authority to bind Customer to this Agreement, (ii) you have read and understand this Agreement, and (iii) you agree, on behalf of Customer, to this Agreement.

2.2. This Agreement is effective (the "Effective Date") upon the earlier of (1) Customer's use of or access to any Services, or (2) the effective date of the Order Form. Customer's use of and access to the Service is governed by this Agreement and the applicable Order Form. In the event of any conflict between this Agreement, any Order Form, or any exhibit, the following order of precedence applies: (a) the Order Form, (b) the exhibit, and (c) this Agreement. Each Order Form will specify an organization ID. In the event that Customer has Order Forms with different organization IDs, the Services (including service levels, support, on-demand, and roll-over terms) will be associated with the applicable organization ID and will not be combined with other organization IDs.

2.3. Builder may change this Agreement at any time by posting an updated Agreement to the Builder.io Site, with such updated Agreement being effective upon Customer's start of a renewal term. For Free Access Order Forms, changes to this Agreement are effective when posted to the Builder.io Site. Customer's continued use of the Service after the effective date of the changes will indicate acceptance of such changes.

2.4. Builder may make updates to the Services from time to time.

3.  SERVICES AND SUPPORT.

3.1. Access and Use. Subject to the terms of this Agreement and the Order Form(s), Builder hereby grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Services and corresponding Documentation as associated with the organization ID stated in the Order Form, during the Service Term (defined in Section 7), solely for its internal use by Authorized Users on Customer's and its Affiliates' owned digital properties ("Customer Properties"). "Documentation" means any manuals, instructions, or other documents or materials that Builder provides to its customers which describe the functionality, features, or requirements of the Services. "Authorized User" means Customer's and its Affiliates' employees, contractors, and agents authorized by Customer or its Affiliates to access and use the Service. For purposes of this Agreement, an "Affiliate" shall mean a person or entity which controls, is controlled by or is under common control with, a Party to this Agreement. The AI terms located at https://builder.io/docs/ai-terms form part of this Agreement.

3.2. Service Levels and Support Services. For Enterprise Order Forms only, Builder will provide Customer the Services in accordance with the service levels and the technical support services set forth in such Enterprise Order Forms.  

3.3. Customer Affiliates. Customer's Affiliates may further separately purchase and use subscriptions to the Services subject to the terms of this Agreement by entering into an Order Form directly with Builder hereunder. This Agreement shall apply to such Customer Affiliates and such Affiliates shall be deemed the "Customer" as contemplated herein.

3.4. Free Access Order Forms and Beta Releases. Without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS ORDER FORMS OR BETA RELEASES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION, WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SERVICE LEVEL AGREEMENT, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH BUILDER WILL NOT BE RESPONSIBLE. ANY USE OF BETA RELEASES OR THE SERVICES PURSUANT TO A FREE ACCESS ORDER FORM ARE AT CUSTOMER'S SOLE RISK. Builder makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. Builder may suspend any Beta Release or Free Access Order Form at any time without liability.

4.  RESTRICTIONS AND RESPONSIBILITIES

4.1. Restrictions. Customer will not and will ensure that its Authorized Users will not: (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Services; (ii) modify, translate or create derivative works based on the Services; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms or technology relevant to the Services or Documentation or any software or data related to the Services; (iv) access the Services in order to build a product using features, functions or graphics similar to any of the Service; (v) copy any features, functions or graphics of the Services; (vi) allow Authorized User logins to be shared or used by more than one individual Authorized User; (vii) remove any proprietary notices or labels; or (viii) use the Services to: (a) send unsolicited or unlawful messages; (b) send or store infringing, obscene, threatening, harmful, libelous, or otherwise unlawful material, including material harmful to children or violative of privacy rights; (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, or agents; (d) interfere with or disrupt the integrity or performance of the Service or the data contained therein; (e) attempt to gain unauthorized access to the Service or its related systems or networks; or (f) upload, share, or distribute any content composed of minors, inappropriate language, and/or any content promoting bigotry, racism or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age. 

4.2. Customer Responsibilities. Customer will abide by all applicable laws and regulations regarding its access and use of the Services. Customer will be liable for the acts and omissions of all Authorized Users in connection with this Agreement, as well as any and all access to and use of the Service by any other person logging in under an Authorized User ID registered under Customer's account or providing and/or receiving Customer Data or other information through the Service. Customer is responsible for maintaining the confidentiality of its access information. Customer will: (i) notify Builder promptly of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to Builder promptly and use reasonable efforts to stop immediately any copying or distribution of any of the Services that is known or suspected by Customer or the Authorized Users. Builder is not liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement. "Customer Data" means any data, materials, or content (including personal information) provided, submitted, or made available by Customer, the Authorized Users or Customer's end users, to or through the Service.

4.3. Equipment. Customer shall obtain and maintain all equipment and services needed to connect to, access or otherwise use the Services, including Internet access, servers, software, operating systems, networking, web servers and the like. 

5.  CONFIDENTIALITY; PROPRIETARY RIGHTS

5.1. Confidential Information. Each Party (the "Disclosing Party") may disclose, in any manner, certain business, technical, operational, financial, pricing and other information relating to the Disclosing Party's business ("Confidential Information") to the other Party (the "Receiving Party"). Customer Data is Customer's Confidential Information. The Receiving Party will (i) not use the Confidential Information except to perform its obligations or exercise its rights under this Agreement, and (ii) not disclose the Confidential Information to any third party except to its representatives on a need-to-know basis to perform Receiving Party's obligations or exercise its rights under this Agreement and who are bound by comparable obligations of confidentiality. The Receiving Party is liable for any breach of this Section by its representatives. The foregoing will not apply to information that (a) is or becomes generally available to the public through no fault of the Receiving Party, (b) was in the Receiving Party's possession or known by it, without restriction, prior to receipt from the Disclosing Party, (c) was rightfully disclosed to the Receiving Party without restriction by a third party, or (d) was independently developed by the Receiving Party without use of or reference to any Confidential Information. If the Receiving Party is legally compelled to disclose any Confidential Information, then it will promptly notify the Disclosing Party so that the Disclosing Party may seek a protective order or other remedy. Upon termination of this Agreement and upon the Disclosing Party's written request at any time, the Receiving Party shall promptly return or destroy all originals and copies of all documents, materials and other embodiments and expressions in any form or medium to the extent they contain, reflect, incorporate or are based on the Disclosing Party's Confidential Information, except to the extent required to be retained by applicable law or in automatic backup systems in the ordinary course, provided that all such Confidential Information will remain subject to this Section.

5.2. Proprietary Rights.

5.2.1. Customer owns and retains all right, title and interest in and to Customer Data and its digital properties, including all related intellectual property rights therein. Customer reserves all rights in and to the foregoing.

5.2.2. Builder (and its licensors and suppliers) owns and retains all right, title and interest, including all related intellectual property rights, in and to the Services, Documentation and Usage Data. Builder reserves all rights in and to the foregoing.

5.3. License. Customer hereby grants Builder and its licensors and suppliers a worldwide, royalty-free, fully-paid up, non-exclusive, transferable, sublicensable license to use the Customer Data during the Service Term to process the Customer Data for the purpose of providing the Services, including as described in Builder's privacy policy located at https://builder.io/docs/privacy. 

5.4. Feedback. Customer acknowledges and agrees that Builder may use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of the Services. 

5.5. Usage Data. Builder may create aggregated, anonymized data based on Customer Data, aggregate traffic on Customer's web pages containing Builder.io content, and Customer's and Authorized Users' use of the Services ("Usage Data") for the purpose of improving and enhancing the Services. Usage Data will not identify Customer, any Authorized User, any user of Customer's website, the Customer Data or any other Confidential Information of Customer. 

5.6. Publicity. Customer agrees that Builder may display Customer's logos, promotional graphics, and related marketing designs (the "Client Art") on Builder's website(s) and on sales and marketing materials. Customer hereby grants to Builder a worldwide, royalty-free, non-exclusive license during the Service Term to use the Client Art, as well as Customer's corporate and/or trade name, for such purposes.

6.  FEES; PAYMENT

6.1. This Section is not applicable for Customers who access the Services under a Free Access Order Form.

Fees; Payment. Customer will pay Builder the fees described in the Order Form (the "Fees"). Payments are in U.S. dollars. Customer's Order Form will provide for either payment upon invoice or payment via authorized credit card charge. Builder shall invoice Customer or charge Customer's credit card for the subscription Fees upfront for the Service Term. Any on-demand Fees are invoiced or charged to Customer's credit card, monthly in arrears and any Fees for increased contract rates are invoiced following Customer's election to increase the contracted rates. In the event that Builder discovers that any Authorized User's login was used by more than one individual, Builder will invoice Customer for the shared login. Invoiced payments shall be due net thirty (30) days from Customer's receipt of an invoice, except any amount that Customer disputes in good faith no later than 15 days after receipt of invoice. Builder may increase Fees for an upcoming renewal term by providing at least 30 days written notice prior to commencement of the renewal term. 

6.2 On-Demand and Contracted Rates. Customer may elect to add Service capacity at any time at either the on-demand rates or, for Enterprise Order Forms only, the contracted rates as set forth in the Order Form. In the event that Customer elects the contracted rates, Customer must enter into an amended Order Form with Builder reflecting such election. Following the Parties' execution of the amended Order Form, Customer will be invoiced the new contracted rate for the existing Service Term, pro-rated for the remainder of the Service Term, and net of the prepaid subscription fee originally paid by Customer for such Service Term. If Customer exceeds its Service capacity and does not enter into such amended Order Form for new contracted rates, then Customer will automatically be billed at the on-demand rates for the excess capacity.

6.3 Publish Product Visual Views. For Publish product subscriptions only, Customer acknowledges and agrees that Builder requires the use of a pixel on Customer's digital property in order to count Visual Views and accordingly determine the Fees owed. Customer will not, nor allow others to, through action or inaction, remove, block, or in any way prevent the inclusion or operation of the pixel while using, accessing, or leveraging the Service. For Enterprise Order Forms only, any unused Visual View in a calendar month that is associated with an organization ID will rollover to the following month and increase the applicable service capacity by such unused amount for that subsequent month for the same organization ID within the same annual subscription term only. Unused Visual Views will only roll over within the same annual subscription term, not subsequent renewals. For Publish product subscriptions licenses only, in the event that Builder discovers that any past Visual View count was inaccurate, Builder will invoice Customer for the additional Visual Views. A "Visual View", is an instance of a page on Customer's digital property being rendered or loaded which contains one or more Builder.io-created or Builder.io-managed visual content model content entries, including but not limited to content entries associated with a page models or section models. Builder may make available additional visual content models at any time and, for the avoidance of doubt, such additional models will count towards Visual Views.

6.4. Taxes. Builder.io's fees do not include any sales, services, value-added (VAT), goods and services (GST), use, or withholding taxes or similar taxes, levies, or duties imposed by any jurisdiction (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. Customer warrants to Builder.io that Builder.io may rely on the ship-to name and address set forth in the Order Form(s) as being the place of supply for Tax purposes. If Builder.io has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Builder.io will invoice Customer and Customer will pay that amount unless Customer provides Builder.io with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will not deduct or withhold any Taxes from its payments of Builder.io's fees, except as required by law, in which event Customer will gross up the amount of fees payable so that after making all required deductions and withholdings, Builder.io receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deduction or withholding been made. Notwithstanding the foregoing, each Party is solely responsible for taxes assessable against it based on its income. The Parties' obligations under this Section will survive any termination or expiration of this Agreement.

6.5. Effect of Nonpayment. Builder may suspend or terminate the Services and/or this Agreement if Customer's account falls into arrears or Builder's attempt to charge Customer's credit card is declined. Unpaid amounts are subject to interest at the lesser of 1.5% per month or the maximum permitted by law plus all collection costs. Customer will continue to be charged for Services during any suspension.

7.  TERM AND TERMINATION

7.1. Term. The term of this Agreement ("Service Term") commences as of the Effective Date and continues in effect until the Order Form has expired or been terminated or until this Agreement is terminated as set forth in this Agreement. The annual subscription term in Order Forms (if applicable) will automatically renew for annual terms, unless terminated on written notice at least 30 days prior to the end of the then-current term.

7.2. Termination for Cause. Either Party may terminate this Agreement (including all Order Forms) if the other Party materially breaches this Agreement and fails to cure the breach within 30 calendar days' written notice specifying the material breach; provided, however, that the cure period for any breach with respect to payment of Fees shall be 5 business days.

7.3. Free Access Order Forms.

7.3.1. Termination due to Inactivity. For Customers who access the Services under Free Access Order Forms, Builder reserves the right to terminate this Agreement upon 30 days' advance notice without liability if, for a period of 60 days, Customer has not visited the Builder platform at www.builder.io/content or any of its subpages.

7.3.2. Termination for Convenience. For Customers who access the Services under Free Access Order Forms, Customer may terminate this Agreement at any time by emailing a request to terminate at support@builder.io, and Builder may terminate this Agreement at any time without liability.

7.4. Suspension of Services. Builder may suspend Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or Documentation, without incurring any resulting obligation or liability, if Builder believes, in good faith, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement (including any obligation in Section 4 (Restrictions and Responsibilities)), or otherwise accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; or (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services.

7.5. Effect of Termination. Upon any termination, (i) Customer's access and use rights to the Services will immediately terminate, except to retrieve Customer Data in accordance with this Section; (ii) if applicable, Customer will pay in full all outstanding invoices and all Fees owed for the Services; (iii) Customer shall not be entitled to any refund of any paid or prepaid Fees; provided, however, that upon any early termination by Customer for cause pursuant to Section 7.2, Customer shall be entitled to a refund of that portion of prepaid Fees, if any, attributable to the remaining, unused portion of Services; and (iv) Builder will make all Customer Data available to Customer for Customer's electronic retrieval for a period of thirty (30) days, but thereafter Builder may, but is not obligated to (except as set forth in this Agreement and as required by applicable law), delete stored Customer Data.

7.6. Survival. The following sections of this Agreement shall survive termination: 5.1 (Confidentiality), 5.2 (Proprietary Rights) 5.4 (Feedback), 5.5 (Usage Data), 6.1 (Fees; Payment), 7.5 (Effect of Termination), this Section 7.6 (Survival), 10 (Indemnification), 11 (Limitation of Liability), and 12 (Miscellaneous).

8.  REPRESENTATIONS AND WARRANTIES

8.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) it is duly organized, validly existing, and in good standing as an entity under the laws of the jurisdiction of its organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement; and (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary organizational action of such Party.  

8.2. Additional Builder Representations and Warranties. Builder represents and warrants to Customer that it will provide the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.           

8.3. Additional Customer Representations and Warranties. Customer represents and warrants to Builder that: (a) it owns or otherwise has the right to use and share the Customer Data, (b) it has provided all necessary disclosures to individuals and has obtained all necessary consents from individuals and lawful rights, in each case as necessary and as required by applicable law to share Customer Data with Builder, for Builder and its service providers to use the Customer Data as contemplated by this Agreement, and for Builder to otherwise provide the Services to Customer (including the required pixel on Customer's digital property for purposes of counting Visual Views for Publish product subscriptions only), (c) neither the Customer Data nor Builder's or its service providers' use of the Customer Data as contemplated by this Agreement will violate any law, regulation or judicial order, including applicable privacy laws, or any rights of any third party, (d) Customer will not, and will cause its Authorized Users not to, include any personal information in Builder's library tracking function within the Services, and (e) Customer will not include any Sensitive Information in the Customer Data or otherwise make any Sensitive Information available to Builder or via the Services. "Sensitive Information" means social security numbers or other government identifiers, information related to racial or ethnic origin, political opinions, religion or other beliefs, medical or health conditions, criminal background, trade union membership, sexual orientation, or any other sensitive data or special categories of data as defined under applicable data protection law.

8.4. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED AS-IS. BUILDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BUILDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR THE RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9.  PRIVACY; SECURITY

9.1. Each Party will comply with all data protection and security laws applicable to it in connection with this Agreement. Customer will at all times display a privacy policy or other notice on its websites and applications as required by applicable laws. In the event that Customer displays a cookie preference banner on the Customer Properties and wishes to implement such banner on the Services, Customer is responsible for taking all steps necessary to integrate its banner with the Services.

9.2. Each Party will implement and maintain reasonable administrative, physical and technical security procedures and practices appropriate to protect the personal information that is under its control or in its possession. Each Party will notify the other as soon as reasonably practicable after becoming aware of a personal information security breach with respect to the Services. Each Party will promptly investigate such security breach if it occurred on its systems or in another area it is responsible

9.3. To the extent applicable, the parties will comply with their respective obligations set forth in the European data processing addendum located at www.builder.io/docs/EDPA and the U.S. data processing addendum located at www.builder.io/docs/USDPA.

10. INDEMNIFICATION

10.1. Builder Indemnification. Builder shall indemnify, hold harmless, and defend Customer and its officers, directors, employees and agents ("Customer Indemnified Parties") from and against any loss, liability, judgment, penalty, damage or expense, including reasonable attorneys' fees and costs ("Losses") resulting from any third-party claim, suit, action or other proceeding (an "Action") brought against any Customer Indemnified Party to the extent alleging or arising out of an allegation that Customer's use of or access to the Services (excluding any Customer Data) in accordance with this Agreement infringes any intellectual property right of such third party.

10.2. Customer Indemnification. Customer shall indemnify, hold harmless, and defend Builder and its officers, directors, employees and agents ("Builder Indemnified Parties") from and against any Losses resulting from any Action brought against any Builder Indemnified Party to the extent arising out of (i) Customer Data or Builder Indemnified Parties' use of the Customer Data in accordance with this Agreement or (ii) Customer's use of the Services in breach of this Agreement.

10.3. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed.

10.4. Exclusions. Sections 10.1 (Builder Indemnification) and 10.2 (Customer Indemnification) will not apply to the extent the underlying allegation, Loss or Action arises from (a) the indemnified party's breach of this Agreement, or (b) in the case of Builder as the indemnifying party, (1) any Services provided to Customer under a Free Access Order Form, (2) Beta Releases, (3) the Customer Data, (4) access to or use of the Services in combination with hardware, system, software, network, or other materials or service provided by Customer or specified by Customer, (5) modification of the Services, or (6) any act or omission of Customer or any Authorized User.

11. LIMITATIONS OF LIABILITY

11.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR CUSTOMER'S OBLIGATION TO PAY FEES UNDER THIS AGREEMENT, ANY BREACH OF SECTION 5.1 (CONFIDENTIALITY), OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), FRAUD, WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY'S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNTS PAID AND PAYABLE BY CUSTOMER TO BUILDER UNDER THIS AGREEMENT IN THE FIRST 12 MONTHS OF THIS AGREEMENT; EXCEPT THAT, NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUILDER'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT (I) RELATING TO SERVICES PROVIDED UNDER FREE ACCESS ORDER FORMS OR FOR BETA RELEASES, IS LIMITED TO US$50.00; AND (II) RELATING TO THE PROCESSING OF PERSONAL DATA AND ANY PERSONAL DATA BREACH (INCLUDING INDEMNIFICATION RELATING THERETO), IS LIMITED TO $1,000,000.

11.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACH OF SECTION 5.1 (CONFIDENTIALITY), NEITHER PARTY SHALL BE LIABLE TO OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, WHETHER CAUSED BY BREACH OF CONTRACT, TORT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

12.  MISCELLANEOUS

12.1. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.2. Assignment. Neither Party may assign this Agreement without the other Party's prior written consent. Notwithstanding the foregoing, this Agreement may be assigned by either Party, without consent of the other Party, to an affiliate or in connection with a sale of all or substantially all of the assets of such Party.

12.3. No Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

12.4. Independent Contractors. The relationship between the parties is that of independent contractors. No agency, partnership, joint venture, or employment arrangement or agreement is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever.

12.5. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

12.6. Export Restrictions. Customer will not export from the United States or allow the export or re-export of the Services, or Software in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other similar United States or foreign agency or authority.

12.7. Governing Law; Venue. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and agrees to bring actions hereunder exclusively in such courts. 

12.8. Remedies. The Parties' rights and remedies hereunder are cumulative, except as provided herein. Any breach of this Agreement relating to Section 5 (Confidentiality; Proprietary Rights) will constitute irreparable harm to the other Party for which monetary damages would be inadequate, and accordingly such Party may seek injunctive relief. 

12.9. Force Majeure. If the performance of any part of this Agreement, other than the payment of money, is prevented or delayed by reason of an act of God, act of war, act of terrorism, fire, governmental action, labor dispute or other cause beyond the performing party's reasonable control, then that party will be excused from performance for the length of that prevention or delay.

12.10. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever, under this Agreement.

12.11. Entire Agreement. This Agreement (including any Order Forms, if any) is the final and exclusive agreement of the parties and supersedes all previous written and oral agreements, communications and other understandings, relating to the subject matter of this Agreement. Any preprinted terms on any Customer purchase order will have no effect on the terms of this Agreement and are hereby rejected.