ProFund™ Access Agreement
Last Updated: June 1, 2024
Thank you for choosing ProFund™ for your business. This ProFund™ Access Agreement ("Agreement") is a legal agreement between Company and Licensee and used in conjunction with non-subscription, data services provided under a separate Order Form and is incorporated by reference therein. When you use our Licensed Technology you agree to our terms, so please read this Agreement carefully as it contains important information regarding your legal rights and obligations.
1. Recitals
2. Definitions
3. License Grant
4. Services
5. Ownership
6. Competitive or Similar Materials
7. Restrictions and Responsibilities
8. Confidential Information
9. Legal Compliance
10. Representations and Warranties
11. Indemnification
12. Limitation of Liability
13. Term and Termination
14. Modifications, Monitoring and Auditing
15. Fees and Payment Terms
16. Miscellaneous
1. Recitals
Company and Licensee desire to establish terms and conditions that will govern the licensing and use of Company’s Data. Licensee desires to be able to access Company’s Data via Licensed Technology. In consideration of the mutual covenants and promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
2. Definitions
2.1
“API” means the ProFund™ application programming interface and any accompanying or related documentation, source code, object code, programming, executable applications, and other materials made available by Company.
2.2
“App” means the software used by Company to allow end users to access Company’s Data and may include applications downloaded and installed on Licensee local devices.
2.3
“Application Key(s)” mean the confidential security keys Company provides to Licensee for the use of the API.
2.4
“Data” means any data accessed through or made available to Licensee through use of the API, App, or Website. Data is owned by Company and made available to Licensee under the terms of this Agreement and may include, without limitation, information about real property attributes and occupants located at specific physical addresses.
2.5
“Intellectual Property Rights” mean patents, inventions, copyrights, trademarks, domain names, trade secrets, and any other intellectual property rights. It includes the work product of Company in developing databases, organizing information, and otherwise preparing Data for use by Company, in the App, the Website, or in the API. It also includes worldwide statutory and common law rights associated with: (a) patents and patent applications; (b) works of authorship, including copyrights, copyright applications, copyright registrations, and “moral rights”; (c) the protection of trade and industrial secrets; (d) trademarks, trade names, service marks, and logos, whether registered or unregistered; and(e) divisions, continuations, renewals, and re-issuances of any of the foregoing, whether now existing or acquired in the future.
2.6
“Licensed Technology” means the API, Website, and App subject to the terms and conditions of this Agreement as such is identified in an Order Form under this Agreement for the term of that Order Form. If API, Website, or App is not included in an Order Form, then it is excluded from this definition and Licensee has no license or other right to that technology.
2.7
“Licensee Applications” mean the applications developed or licensed by Licensee that utilize or interact with the API.
2.8
“Order Form” means a separate document detailing the price, methods, and amount of access to Data. These forms may provide limitations on the amount of Data or how it may be accessed by Licensee.
2.9
"Report” means a document or reply created by the API, App or Website in response to a request delivering Data related to the request. The format of the report may be a PDF format.
2.10
“Users” means Licensee and its Affiliates and its and their respective employees and contractors that perform services for Licensee or its Affiliates.
2.11
“Website” means the website maintained by the Company to allow end users to access Company’s Data.
3. License Grant
3.1
Authorized Use for App and Website. Subject to the terms and conditions set forth in the Agreement and applicable Order Form(s), Company grants Licensee a revocable, non-exclusive, non-transferable, and non-sublicensable, limited license to use the Licensed Technology for the Term of the Agreement, limited by the terms of this Agreement, solely in the United States and solely in the manner prescribed hereunder and as described in an Order Form.
3.2
Authorized Use of API. Subject to the terms and conditions set forth in the Agreement and applicable Order Form(s), Company grants Licensee a revocable, non-exclusive, non-transferable, and non-sublicensable, limited license to use the ProFund API for the Term of the Agreement, solely in the United States and solely in the manner prescribed hereunder and as described in an Order Form.
3.2.1 Licensee is responsible for enabling Licensee Applications, as set forth in the applicable Order Form, to interact with the API for the sole purpose of pulling Data or Reports.
3.2.2 Company will provide Licensee with the Application Keys that permit Licensee to access the API. Licensee may not share or transfer Application Keys to any third party without Company's prior written consent. The Application Keys are the property of Company and may be revoked at any time by Company.
3.2.3 Licensee shall be limited to 50,000 API calls per day and 1,000,000 API calls per calendar month. Excessively calling API endpoints may incur additional fees. Company is not responsible for saving or caching the results of calls to the API.
4. Services
4.1
Company will provide access to Licensed Technology specified in an Order Form, which includes the services to make the Licensed Technology available by Company to Licensee for remote access and use, including configuration, hosting and implementation services (collectively, “Services”). Company agrees to provide the Licensed Technology and the Services as set forth in one or more mutually executed Order Forms (each, an “Order Form”), which incorporate this Agreement by reference. Each Order Form shall describe the Licensed Technology, Services, applicable fees and payment structure, and any other applicable transaction details, including the issuance of passwords or other methods by which Users Licensee may access the Licensed Technology. All Services shall be performed from the State of Georgia by Company, in all cases utilizing systems installed in the United States, unless otherwise indicated in an Order Form expressly identifying mutually acceptable Services locations outside of the United States where the Services may be performed. All Licensed Technology will be hosted in the United States using servers, other equipment and/or network resources owned and/or controlled by Company. Company may utilize subcontractors in relation to the Services.
4.2
Company shall host, operate, and maintain the Licensed Technology and the Services, and provide continuous access thereto. Company shall promptly provide to Licensee (or, with respect to hosted programs, make available to Licensee) any and all modifications, error corrections, bug fixes, new releases, or other updates of or to the Services, hosted programs, and documentation that are provided or otherwise made available by Company from time to time. Any update made available by Company hereunder shall be deemed to be part of the Licensed Technology and shall be subject to the terms and conditions of this Agreement. To the extent Company licenses any Licensed Technology and/or other components of the Services from third-party vendors (“Vendors”), Company shall incorporate such modifications, error corrections, bug fixes, new releases or other updates as are appropriate or necessary to the operation of the Licensed Technology and Services when available. (such updates, “Vendor Updates”). All Vendor Updates provided to Licensee hereunder are deemed part of the Licensed Technology, and subject to the terms and conditions of this Agreement.
5. Ownership
5.1
Except for the limited license granted in the Agreement, Company retains all right, title, and interest in and to all Intellectual Property Rights embodied or associated with the Licensed Technology, the Data, and any content or materials created or derived therefrom (including, without limitation, any modifications, improvements, derivatives or enhancement thereof or thereto). Licensee shall have only those rights in and to the Licensed Technology, the Services and Updates thereto as are expressly granted under this Agreement or the Order Form(s). There are no implied licenses under the Agreement, and any rights not expressly granted to Licensee are hereunder reserved for Company. Licensee agrees not to take any action inconsistent with Company’s Intellectual Property Rights. Licensee and Company agree that even information that may arguably be public, is owned by Company as the information is organized, stored, utilized, and accessed by Company.
5.2
Licensee’s Proprietary Rights. Licensee owns and shall retain all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to Licensee Applications, if any, and any portions thereof.
5.3
Limited Rights. Nothing in this Agreement conveys or shall be construed to convey any ownership interest in any License Materials or any Intellectual Property Rights associated therewith to Company.
6. Competive or Similar Materials
Licensee represents and warrants that it does not intend to use any rights or abilities granted by this Agreement to compete with Company in the marketplace and that it will not do so during the term of this Agreement. “Compete” includes, without limitation: (1) using Data obtained from the Licensed Technology in any form to create a new database controlled by Licensee; (2) creating new software designed to duplicate the function of the Licensed Technology or Company’s API, App, or Website; (3) offering the same or similar service as offered by Company in the marketplace; and (4) preparing to do any of the above.
7. Restrictions and Responsibilities
7.1
Licensee must comply with all duties and restrictions set forth in the Agreement and all incorporated documents in all uses of the Licensed Technology and the Data. Company may suspend Licensee’s login credentials or access to the Licensed Technology (including Users) if Licensee is in breach of this Agreement or if Licensee misuses the Licensed Technology in a way that: a) disables or damages the Licensed Technology or otherwise interferes with Company’s ability to use its systems to deliver services to other customers; b) is illegal or fraudulent; or c) undermines the security of the Licensed Technology; d) uploads or transmits software, content or code that does or is intended to harm, disable or adversely affects the performance of the Services. Attempts to circumvent the limits placed on using the Licensed Technology may result in the suspension of the Agreement upon prior notice to Licensee. If Company believes, in its sole discretion, that Licensee has violated or attempted to violate any term, condition, or spirit of the Agreement, or attempted to circumvent the limits placed on Licensed Technology, the license afforded pursuant to the Agreement may be revoked by Company. If you breach this Agreement, ProFund™ may, at its option: (a) terminate this Agreement immediately, with or without advance written notice; (b) suspend, delete, or limit access to your account (and other accounts you control) or any content within it; and (c) to the extent permitted by applicable law, offset any amounts due ProFund™ against any amounts payable to you. In no event will any termination relieve you of your obligation to pay any fees payable to ProFund™.
7.2
Licensee Applications shall not in any manner, display any form of advertising within or connected to any Data received by Licensee.
7.3
Licensee may include Data or Reports with its own work product within Licensee’s applications, or as an appendix or other attachment. Licensee may not modify the Data or Reports, remove Company’s name or other identifying information, conceal, or misrepresent the source of the Reports or the Data.
7.4
Licensee may not, under any circumstances, through Licensee Applications or otherwise, repackage or resell the Licensed Technology or Data. In addition, Licensee shall not, and shall not attempt to: (a) interfere with, modify, or disable any features, functionality, or security controls related to the Data, or Licensed Technology; (b) defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms for the Data or Licensed Technology; (c) reverse engineer, decompile, disassemble or derive source code, underlying ideas, algorithms, structure or organizational form from the Data or Licensed Technology; (d) copy all or any portion of the Licensed Technology; (e) use Licensed Technology or Data in any form of machine learning or training for artificial intelligence; (f) utilize the license to compile statistical and performance data and information, for data mining, or to satisfy curiosity; or (g) to compile its own version of the Data or create its own database.
7.5
Licensee acknowledges that Licensee is solely responsible and that Company has no responsibility or liability of any kind, for the content, development, operation, support, or maintenance of Licensee Applications and Licensee shall indemnify, defend, and hold harmless Company from any claims, damages, or losses to third parties related to Licensee Applications.
7.6
Licensee will respect and comply with the technical and policy-implemented limitations of the API and the restrictions of the Agreement in designing and implementing the Licensee Applications. Without limiting the foregoing, Licensee shall not violate any limitations on calling or otherwise utilizing the Licensed Technology.
7.7
Licensee shall not make any modifications to any Data, other than as reasonably necessary to modify the formatting of such Data in order to display it in a manner appropriate for the pertinent Licensee Applications.
7.8
Licensee shall keep the Data in strict confidence, shall only use the Data for its own internal business purposes, shall not modify or make any copies of the Data, shall not sell or commercialize the Data, and shall not allow any third parties to access, view, copy, or use the Service Data. Notwithstanding the foregoing, Licensee may incorporate the Data into its Licensee Applications for use and display to Licensee’s subscribed users.
7.9
Company may retain information provided by Licensee in the course of using the Licensed Technology including address and customer information, for the purpose of tracking Licensee’s use, calculating the price owed by Licensee, in connection with the development or improvement of the Licensed Technology, to determine whether Licensee has previously requested a report for a particular address or customer, or for other internal purposes.
8. Confidential Information
8.1
Definition. “Confidential Information” shall mean all non-public, competitively sensitive or proprietary information of a Party, in whatever form presented, whether or not marked confidential, restricted or proprietary, including, without limitation (a) past, present and future research, development, data processing systems, networks, finances, operations, business partners, and business activities; (b) policyholder and customer data, customer lists, sales, profits, organizational restructuring, new business initiatives and financial information; (c) insurance and financial products, including actuarial calculations, product strategies, product designs, and how such products are administered and managed; (d) information that Licensee or its Affiliates are required to keep confidential pursuant to a nondisclosure agreement with a third party; (e) information identifying or personally identifiable to Licensee or its Affiliates’ former, present and prospective employees, insureds, agents, suppliers, and financial and insurance services customers and/or claimants (“Personal Information”); (f) code, processes, ideas, means, methods, systems, and intellectual property related to the Licensed Technology; and (g) non-public information regarding Company’s pricing, product and services plans and/or product roadmaps.
8.2
Obligations. With respect to Confidential Information received by a Party from the other, that Party shall (a) hold all Confidential Information in confidence and shall not disclose to anyone, during the term of this Agreement and for three (3) years thereafter, to anyone other than employees or contractors who need to receive such Confidential Information to perform the Services, and (b) protect Confidential Information against unauthorized access, use, disclosure, destruction, loss or alteration using the same degree of care that the Party uses to protect its own highly sensitive and/or proprietary information, but in no event less than a reasonable degree of care.
8.3
Exclusions. Confidential Information does not include information that a receiving party can demonstrate is (a) publicly available; (b) independently developed by such receiving party without access or reference to disclosing party’s Confidential Information; (c) previously known to such receiving party free from any obligation to keep it confidential; or (d) rightfully obtained by such receiving party from a third party without an obligation of confidentiality. Provided, however, that Data as organized or provided by Company is owned by Company regardless of the fact that the raw code data may be theoretically be publicly available.
8.4
Terms of Agreement. Neither party shall disclose the terms of this Agreement to any third parties without the prior written consent of the other party, except that each party may disclose its terms (a) in accordance with Section 8.6 below; (b) in confidence, to a party’s accountants, legal counsel, tax advisors, and other financial and legal advisors; (c) as required during the course of litigation; (d) with obligations of confidentiality comparable to those contained herein, to another person or its legal or financial advisors in connection with a proposed merger, acquisition, spin-off, financing or similar transaction of such party involving such person or entity; (e) with obligations of confidentiality comparable to those contained herein, by Licensee to contractors and service providers in connection with their provision of services for Licensee; and (f) as necessary to file this Agreement or portions thereof with governmental authorities.
8.5
Compelled Disclosure. If a party becomes legally compelled (by applicable law or by deposition, interrogatory, request for documents, order, subpoena, civil investigative demand or similar process issued by a court of competent jurisdiction or by a government body) to disclose any of the other party’s Confidential Information or the terms of this Agreement, the party so compelled shall provide the other party with prompt prior written notice (to the extent legally permitted) of any such requirement so that the other party may seek a protective order or other appropriate remedy, and the party so compelled shall provide all assistance reasonably necessary for the other party to seek such order or remedy.
8.6
Injunction. In case of breach, the affected party shall have the right to seek injunctive relief, which relief shall not exclude any other recourse provided by law.
9. Legal Compliance
Company represents and warrants that the Licensed Technology, and Licensee represents and warrants that the Licensee Applications, comply and will comply with all applicable laws, statutes, ordinances and/or other requirements of or promulgated by any governmental authority, as amended or as newly adopted to replace previously existing laws (collectively, “Law”). No Party to this Agreement is providing legal advice to the other and no Party is relying on legal advice provided by any other Party. At all times, Licensee itself and the Licensee Applications will comply with all laws, rules, regulations, and best industry practices, including, without limitation, those concerning privacy, security, and data protection. Without limiting the generality of the foregoing, Licensee must make available and must abide by, an appropriate privacy notice for the Licensee Applications.
10. Representations and Warranties
10.1 Company warrants that (a) it has the full corporate power and authority to enter into this Agreement; (b) the services provided hereunder will materially conform to this Agreement and will be performed in a diligent and professional manner; and (c) it has the necessary rights, title, licenses, permissions and approvals to perform its obligations hereunder. Licensee’s sole remedy, and the sole liability of Company, for a failure to comply with this warranty shall be to modify the applicable programs and/or services such that they comply with this warranty or to terminate the Agreement.
10.2 Licensee represents and warrants: (a) it has the full corporate power and authority to enter into this Agreement and (b) it has the necessary rights, title, licenses, permissions and approvals to perform its obligations hereunder and provide the Customer Data to Company under this Agreement.
10.3 Each individual signing this Agreement and any Order form represents and warrants that the party has actual authority to obligate the entity on whose behalf the signature is made. Each party represents and warrants that this Agreement has been duly authorized by all necessary corporate action.
10.4 EXCEPT AS EXPRESSLY WARRANTED IN SECTIONS 10.1, 10.2 AND 10.3, ALL SERVICES AND DATA ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE,” AND EACH PARTY AND ITS LICENSORS EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY AS TO TITLE, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY AND ITS LICENSORS CANNOT AND DO NOT REPRESENT, WARRANT OR COVENANT THAT THE PROFUND DATA IS ACCURATE, COMPLETE, CURRENT, OR TIMELY, OR THAT THE PROFUND DATA, PROFUND MATERIALS OR IMPLEMENTATION SUPPORT SERVICES WILL ACHIEVE A PARTICULAR OUTCOME OR RESULT. PROFUND EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER’S USE OR DISTRIBUTION OF THE DERIVED DATA.
11. Indemnification
11.1
Company agrees to defend, indemnify and hold harmless Licensee, its Affiliates, and their respective employees, directors, officers, suppliers, customers, successors and assigns (collectively, the “Licensee Indemnified Parties”) from and against all costs, expenses (including attorneys’ fees), damages or liabilities (collectively, “Damages”) resulting from any third party Action arising out of: (a) Company’s breach of its obligations pursuant to this Agreement or (b) violation of any applicable Law in the performance of Company’s obligations hereunder. Company agrees to defend, indemnify and hold the Licensee Indemnified Parties harmless from any Damages resulting from any Action brought or threatened against any Licensee Indemnified Party based on an allegation that the Licensed Technology infringes any Intellectual Property Right of any third party or constitutes misuse or misappropriation of a trade secret of any third party.
11.2
Licensee agrees to defend, indemnify, and hold harmless Company, its Affiliates, and their respective employees, directors, officers, suppliers, customers, successors and assigns (“Indemnified Persons”) from and against any and all third-party losses, claims, damages, demands, and expenses (including, without limitation, reasonable attorney’s fees of counsel selected by Company) arising in connection with or related to: (i) any breach of the Agreement by Licensee or User(s); (ii) Licensee’ willful misconduct or gross negligence by Licensee or User(s); (iii) unauthorized access to or use of the Licensed Technology by Licensee or User(s). Licensee agrees to defend, indemnify and hold the Company Indemnified Parties harmless from any Damages resulting from any Action brought or threatened against any Company Indemnified Party based on an allegation that the Licensee Applications infringes any Intellectual Property Right of any third party or constitutes misuse or misappropriation of a trade secret of any third party.
11.3
Indemnification Procedures. A party seeking indemnity (“Indemnified Party”) shall notify the indemnifying party of any Action for which an Indemnified Party seeks indemnification under this Agreement and give the indemnifying party authority, reasonable information, and assistance (at Company's expense) for the defense of such Action. Indemnifying Party will pay all Damages awarded therein against any Indemnified Party or agreed upon by Indemnified Party in settlement of the Action. Indemnified Party shall not, without the indemnified party’s prior written consent, enter into any settlement agreement which (a) admits guilt, fraud, liability or wrongdoing of the Indemnified Party, (b) requires Indemnified Party to commit to action or to refrain from action, or (c) provides for any Damages other than money damages for which Indemnified Party is indemnified. The Indemnified Parties reserve the right to participate in defense at their cost.
12. Limitation of Liability
12.1 EXCEPT IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS, LICENSEE’S OBLIGATIONS NOT TO COMPETE, OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (A) NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY UNDER THIS AGREEMENT, IN CONTRACT OR IN TORT, OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY), FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM; AND (B) IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY OR ITS AFFILIATES UNDER THIS AGREEMENT EXCEED THE GREATER OF $50,000 OR THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO COMPANY DURING THE TERM OF THIS AGREEMENT.
12.2 AS-IS. ALL ASPECTS OF THE LICENSED TECHNOLOGY AND THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSEE ACKNOWLEDGES THAT COMPANY DOES NOT WARRANT THAT API, APP, WEBSITE, REPORTS, AND THE DATA WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE DUE TO THE ACTIONS OF LICENSEE OR THIRD PARTIES, AND NO INFORMATION OR ADVICE OBTAINED BY LICENSEE FROM COMPANY OR THROUGH THE LICENSED TECHNOLOGY SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
13. Term and Termination
13.1 Term. This Agreement shall be in full force and effect as of the Effective Date and stay in effect until terminated as provided herein (“Term”). Each Order Form shall set forth the initial term for the use of the Licensed Technology and/or Services (“Initial License Term”).
13.2 Termination. In the event of a material breach by Company (or Users) of this Agreement or any Order Form, Licensee may, at its option, terminate this Agreement and any or all Order Form(s) effective thirty (30) days after Company’s receipt of written notice from Licensee; provided that Company has not cured such breach within such notice period. Either party may terminate this Agreement for any reason on ninety (90) days’ written notice to the other party. Company may terminate without notice if Licensee materially breaches this Agreement. Either party may terminate this Agreement, any or all Order Form(s) upon written notice to the other party in the event such other party files any petition in bankruptcy or becomes the subject of any other insolvency, bankruptcy, receivership, custodianship, or proceeding or other similar proceeding for the settlement of its debt or experiences an event analogous to any of the foregoing.
13.3 Effect of Termination. Upon the effective date of any expiration or termination of this Agreement or any Order Form(s), Licensee shall cease its use of the terminated Licensed Technology, if any. Termination of this Agreement or any Order Form by either party shall not act as a release from any liability for breach of either party’s obligations hereunder. Upon termination of the Agreement Company may return or destroy any information provided by Licensee. Neither party shall be liable to the other party for Damages of any kind solely as a result of terminating this Agreement or Order Form in accordance with the terms of this Agreement. Certain provisions of this Agreement related to fees, other consideration, releases, or indemnities owed to Company or for the benefit of Company, or related to confidentiality, shall survive termination of this Agreement.
14. Modifications, Monitoring and Auditing
14.1 Modification of the Services. Company may modify the API, API call limits or Licensed Technology. Modifications may affect the Licensee Applications and may require Licensee to make changes to the Licensee Applications or make other changes at Licensee’s own cost to continue to be compatible with the API or to continue to access the Data. No prior notice is required in order for Company to make modifications.
14.2 Monitoring and Auditing. Licensee agrees that Company may monitor or audit the Licensee Applications or activities relating to the access or use of the API, App, Website, and Data. At Company’s request and without a fee, Licensee will provide access to the Licensee Applications for the purpose of monitoring or auditing the Licensee Application and Licensee’s use of the API, App, Website, and Data. Auditing may also include requests for documentation and information and visits to Licensee’s facilities.
15. Fees and Payment Terms
15.1 Fees. With respect to the licenses granted herein, Licensee will pay to Company the fees specified in the applicable Order Form (“Fees”), according to the schedule set forth therein. All Services to be performed hereunder will be deemed included in the Fees, unless otherwise expressly set forth in a particular Order Form.
15.2 Invoices. Subject to the terms and conditions of this Agreement, all payment of Fees required to be made by Licensee hereunder shall be due and payable thirty (30) days after Licensee’s receipt of the applicable invoice for such Fees, or within thirty (30) days after the Acceptance Date, if later, where applicable. Unpaid invoices shall accrue interest at the rate of 18% from the due date until paid in full unless a different interest rate is indicated on the applicable Order Form.
15.3 Taxes. Licensee shall pay all state, local, and federal taxes applicable to the Licensed Technology and Services exclusive of Company’s property taxes and taxes based on Company’s income.
16. Miscellaneous
16.2 Relationship of Parties. The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.
16.3 Notice. All notices under this Agreement shall be in writing and shall be given by letter or facsimile with hard copy confirmation to the parties’ respective addresses above on the first page of this Agreement, and will be effective when received. For purposes of this Agreement, an electronic mail message does not constitute a signed writing.
16.4 Amendment and Modification; Waiver. The terms of this Agreement may only be modified or waived in writing. No failure to exercise or delay in exercising any right under this Agreement shall be a waiver. All of Company’s remedies under this Agreement are cumulative and shall not preclude Licensee pursuing any other remedies available to such party at law, in equity, by contract or otherwise.
16.5 Governing Law. The Agreement is governed by and construed in accordance with the internal laws of the State of Georgia without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Any legal suit, action, or proceeding brought by Licensee arising out of the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States located in Atlanta, GA or the courts of the State of Georgia located in Fulton County, GA and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
16.6 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under this agreement to the extent such failure or delay is caused by circumstances beyond its reasonable control, including without limitation acts of God, government restrictions, wars, terrorism, insurrections, riots, epidemics, pandemics, natural disasters, strikes, lockouts, or other labor disputes, failure or delay of third-party services, data breaches (other than as the result of a party’s negligence or failure to take reasonable precautions), hacking, cyber-attack, or failures or fluctuations in electrical power, heat, light, air conditioning, or telecommunications equipment or lines ("Force Majeure Event").
16.7 Assignment. No party may assign or otherwise transfer this Agreement (including any Order Form), or any of its rights or obligations thereunder, in whole or in part, whether by merger, consolidation, dissolution, operation of law or any other manner without the other party’s prior written consent, not to be unreasonably withheld or delayed. Any purported attempt to do so in violation of this provision will be void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. There are no third-party beneficiaries to this Agreement, except as expressly set forth herein.
16.8 Interpretation. The parties to this Agreement have participated jointly in the negotiation and drafting of this Agreement and it shall not be construed against one party. The headings of the sections of this Agreement constitute no part of this Agreement between the parties, having been inserted for convenience of reference only.
16.9 Entire Agreement. This Agreement, its Exhibits, and all Order Forms constitute the entire agreement between the parties with respect to the subject matter of this Agreement, supersede all prior agreements, representations, and understandings between the parties, written, oral, or otherwise. This Agreement may not be altered except by a written amendment, executed by both parties. In the event of a conflict between the Agreement and an Order Form the terms of the Order Form shall prevail.
16.10 Counterparts. This Agreement may be executed in one or more counterparts, by facsimile, or otherwise, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
