IMPORTANT: PLEASE CAREFULY READ THESE CURRENT TERMS AND CONDITIONS GOVERNING YOUR USE OF NFINITE’S DOCUMENTATION, PROPRIETARY SOFTWARE AND SERVICES USED TO PRODUCE PRODUCT CONTENT AND IMAGERY FOR CUSTOMER’S USE, INCLUSIVE OF SUCH LIMITATIONS OR OPTIONAL FEATURES AS MAY BE COMMUNICATED TO CUSTOMER AND ANY SUPPORTING SERVICES (“COLLECTIVELY, SERVICES”). THIS IS A LEGAL AGREEMENT BETWEEN YOU AND THE LEGAL ENTITY YOU REPRESENT ("CUSTOMER") AND NFINITE, INC. AND ITS SUBSIDIARIES AND AFFILIATES, AS APPLICABLE (“NFINITE”). BY CLICKING THE "I ACCEPT" BUTTON, EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, OR BY EITHER ACCESSING OR USING THE NFINITE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED, UNDERSTANDS, AND ACCEPTS THESE TERMS AND CONDITIONS. YOU WARRANT AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND YOUR LEGAL ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY. IF CUSTOMER DOES NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE NFINITE SERVICES. BY USING THE NFINITE SERVICES, CUSTOMER WARRANTS TO USE BEST EFFORTS TO ENSURE CONTRACTUAL EFFICACY TO ALL TERMS HEREIN. NFINITE MAY MAKE CHANGES TO THE NFINITE SERVICES OR MODIFY THE TERMS AND CONDITIONS HEREIN AT ANY TIME. CUSTOMER’S CONTINUED USE OF THE NFINITE SERVICES AFTER MODIFICATIONS HAVE BEEN POSTED TO NFINITE’S WEBSITE WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS. TO THE EXTENT ANY TERMS OF THIS AGREEMENT DIRECTLY CONFLICT WITH THE TERMS OF ANY FULLY EXECUTED WRITTEN AGREEMENT BETWEEN NFINITE AND CUSTOMER (“SUPPLEMENTAL AGREEMENT”), THE SUPPLEMENTAL AGREEMENT SHALL APPLY.

1.0 Order(s).

1.1. This Agreement incorporates any current or future order(s) for Services, which may include an order and/or statement of work (collectively, “Order”) submitted online or in written or electronic form between the parties after the Effective Date and until the last expired Order or until such time as this Agreement is terminated in accordance with the terms herein (“Term”).

2.0 Access & License to Nfinite Software, Platform, Services and Documentation.

2.1. Subject to all terms and conditions of this Agreement, Nfinite hereby grants to Customer the right to access and use the Services during the Term as expressly agreed in applicable Order(s) and strictly limited to Customer’s lawful business purposes. Subject to the terms of this Agreement, Nfinite grants to Customer and Customer accepts from Nfinite a limited, revocable, non-exclusive, non-transferable limited license and right to use and access the Services, during the Term, in strict accordance with this Agreement and written guides and guidelines that describe the Services, the operating instructions, getting started guides, user manuals, and help files, in written or electronic form, made available to Customer (“Documentation”).

3.0 Product Digitization.

3.1. As agreed in any Order, Nfinite may, utilizing input from Customer, provide product digitization of Customer’s products, which may include 3D modeling or other multimedia that represents Customer Products (“Digital Products”).  Upon full payment of amounts under any Order, Nfinite shall grant Customer a perpetual, irrevocable, royalty-free, fully-paid, nonexclusive, worldwide license  to use the Digital Products in any legal commercial manner.  Any such license grant shall not impair Nfinite’s ownership rights, including but not limited to, the ability to use Digital Products to improve or promote the Services or  to resell or distribute Digital Products to third parties.  In addition, Nfinite shall own all background technology or other intellectual property Nfinite uses or embeds (“Background Technology”) to create the Digital Products or Supporting Visuals (as defined herein).  Nfinite grants Customer a worldwide, non-exclusive license to use Background Technology solely as needed to display the Digital Products.

4.0 Supporting Visuals.

4.1. Nfinite may provide multimedia, including but not limited to, lifestyle images, accessories, backgrounds, videos, movies, 3D, augmented and virtual reality background models, in which Customer may use to promote their products and services (“Supporting Visual(s)”).  A current list of available multimedia options may be found here: (www.nfinite.app/supportingvisuals).  Customer will provide specific input regarding the creation of any new Supporting Visuals. Supporting Visual types may be discontinued at any time without notice.  All Supporting Visuals are provided in accordance with the then-current Documentation.  Subject to the terms of this Agreement, Nfinite grants the Customer a worldwide non-exclusive license for the duration of the copyright protection to host, copy, forward, use, reproduce, and display the Supporting Visuals for the purposes of promoting, advertising, and selling Customer’s products or services.

5.0 Customer Data.

5.1. Customer Data refers to all data provided by the Customer to Nfinite.  Customer Data notably includes, but is not limited to, all information, instructions or suggestions related to creation of the Digital Products or Product Visual.  Customer Data may include software programming codes created or provided by the Customer in Customer’s use of the Services.  However, Customer Data specifically excludes Supporting Visuals, Background Technology, and any other technology including software that was provided, embedded or developed by Nfinite and is incorporated in the Services, in whole or in part (“Nfinite Technology”).  Customer represents and warrants that Customer has or will procure all rights necessary for its use of any Customer Data in conjunction with the Services.  Customer will have sole discretion as to which Customer Data it will utilize in connection with Customer’s use of the Nfinite Services and shall provide any and all necessary disclosures.  Customer owns all right and title and is solely responsible for any use of Customer Data used during the Term of this Agreement. Customer hereby grants to Nfinite a non-exclusive, royalty-free, worldwide license during the Term to access, reproduce, de-identify or to otherwise use Customer Data solely for providing, supporting or improving the Services or fulfilling other obligations to Customer under this Agreement.

5.2. Customer and Nfinite acknowledge that Customer Data should not include any third party personally identifiable information (“Personal Data”).  However, to the extent Customer provides Personal Data to the Nfinite Customer agrees that it will comply with all applicable federal, state, local and international privacy, data protection, and security laws, rules and regulations, including without limitation, laws relating to the collection, use, reuse, processing, storage, security, protection, handling, cross-border transfer and disclosure of Personal Data.  

6.0 De-identified Data & Feedback.

6.1. Customer grants to Nfinite a non-exclusive, non-transferable, worldwide, commercial, perpetual, irrevocable, royalty-free license to use de-identified data from Customer’s use of the Service to: (i) provide and maintain Services; (ii) improve or offer new Services; (iii) measure performance of Services; or (iv) for any other lawful business purpose.  For clarity, de-identified data, which may include metadata or aggregated data, used by Nfinite under this Section 6.1 will never identify the Customer.  To the extent that any Customer provides any suggestions, enhancement request, correction, ideas or other feedback regarding the Services (“Feedback”), Customer grants Nfinite a non-exclusive, worldwide, irrevocable, royalty-free license to reproduce, modify, create derivative works of, license, distribute and otherwise commercialize the Feedback as part of any of Services.

7.0 Restrictions of Use for Nfinite Services.

7.1. Customer agrees not to attempt to, nor allow any third party to: (i) copy or make derivative works of the Services, expand the rights of access or use beyond the Order, or make the Services available to any third party via sublicense, rent service bureau or time sharing basis, (ii) decompile, reverse engineer, or disassemble the Services or otherwise attempt to reconstruct or discover any source code, underlying ideas or algorithms of the Services; (iii) disclose or publish, without Nfinite’s express prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Services; (iv) use the Services to develop a competitive product offering promote or support any product or service that is competitive with the Services; (v) attempt to gain unauthorized access to the Services, including access to other Nfinite customer’s data; (vi) remove any identification, patent, trademark, copyright, or other notice from the Services; (vii) interfere with or disrupt the integrity or performance of the Services, or unreasonably burden the infrastructure utilized by Nfinite to deliver the Services; (viii) use the Services including the transmission of Customer Data, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency or political subdivision, whether federal, state, local, or foreign; or (ix) use, reproduce, distribute, or permit others to use, reproduce, or distribute any harmful code.

8.0 Additional Customer Obligations & Suspension.

8.1. Customer is solely responsible for any use of Digital Products or Supporting Visuals, including but not limited to, any commercial or business use.  To the extent that Customer requires any right or license to use Digital Products or Supporting Visuals, Customer shall strictly comply with any such rights or licenses.

8.2. Customer is solely responsible for all activities required by or otherwise related to the development, production, delivery, updating and promotion of any technology outside of the Services, including but not limited to, the Customer’s websites, applications, or other technology used to interface with the Service (“Customer Services”). Customer is solely responsible for all Customer Services issues, including but not limited to, functionality, warranty, and technical and end user support.

8.3. Customer shall comply with all applicable laws in the performance of its obligations hereunder and shall promptly notify Nfinite if it reasonably believes that any use of the Services (i) violates law or the terms of this Agreement, or (ii) if Customer becomes aware of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of security related to the Services.

8.4. Customer shall promptly fix any bugs in Customer Service or Customer Data that causes the Services to be accessed in a way that is not consistent with the Documentation or is otherwise detrimental to the performance of the Services.

8.5. Customer shall maintain and adhere to all commercially reasonable security measures to protect from unauthorized control, tampering, or any other unauthorized access, including, without limitation, compliance with applicable laws.

8.6. Customer shall ensure that at all times during the term of this Agreement, Customer’s authorized users use of Services shall (i) conform to specifications set forth in the applicable Documentation and (ii) comply with all the terms and conditions of this Agreement.

8.7. Customer shall regularly back up their Customer Data on a second medium separate from the Services. Nfinite may limit the storage capacities offered by the Services, according to what can be reasonably expected from the provision of the Services, by technical measures such as imposing size limits on files, storage space, or processing capacity. Nfinite may suspend Services until the Customer no longer exceeds the storage space limit associated with Customer account.

8.8. If Customer becomes aware of any reason wherein Customer is unable or likely unable to meet its obligations under this Agreement, Customer will promptly notify Nfinite at legal@nfinite.app.   Nfinite reserves the right to block any Customer Data or suspend any Customer account that violates the terms of Sections 7 or 8 of this Agreement, violates applicable law or, due to a security risk, in Nfinite’s reasonable discretion is necessary to mitigate liability or damages or reasonably necessary protect the interests of either party to this Agreement.

9.0 Integration of Third-Party Applications & Platforms.

9.1. The Services may support integrations with certain third-party applications and platforms (“Third-Party Services”). Customer may be required to input credentials or Nfinite may provide the applicable credentials on behalf of the Customer to access and use Third-Party Services. Any access or use is entirely at the Customer’s sole discretion. By enabling any access or use of the Third-Party Services, Customer has authorized Nfinite to provide, on Customer's behalf, an integration with the Third-Party Services and has provided all permissions required under applicable law. Customer represents and warrants that Customer, in any use of Third-Party Services, will comply with applicable law, as well as the terms, conditions and restrictions of the Third-Party Services provider. Customer acknowledges and agrees that Nfinite has no responsibility or liability for any Third-Party Services, including but not limited to, how a Third-Party Services uses or processes any information shared, including Customer Data, after such is exported to a Third-Party Services. Nfinite does not guarantee that it will continue to make available or maintain integrations with any Third-Party Services, and moreover, Nfinite may disable such integrations at any time with or without notice to Customer.  Customer agrees to indemnify, defend and hold harmless Nfinite against any claim arising out of or relating to Customer’s use of any Third-Party Services.

10.0 Limited Warranties and Disclaimers.

10.1. With respect to Services, the Services shall conform in substantial conformance to the functionality as set forth in the Order.  

10.2. The preceding obligation will not apply if: (i) the Services provided are used inconsistent with this Agreement or the Documentation; (ii) if the Services or any part thereof have been modified without the prior written consent of Nfinite; or (iii) a defect in Services provided hereunder has been caused by any of Customer Data, Customer Services, Customer’s written instructions or any Third-Party Services. In addition, the preceding obligation does not apply to downtime, service interruption or other related issues covered by Nfinite's then-current Service Level Agreement https://www.Nfinite.app/support-sla (the "SLA"). Customer's sole and exclusive remedies for Nfinite's failure to meet an SLA Obligation is described in the applicable SLA.

10.3. In the event Customer discovers that the Services provided by Nfinite hereunder, as applicable, are not in conformance with the obligations set forth in Section 10 and reports, in writing, such non-conformity to Nfinite, Nfinite will, at Nfinite’s sole discretion, (i) exercise commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or (ii) terminate the Order(s) or portion thereof covering the non-conformity and/or the Agreement and refund Customer any prepaid, unused fees covering the remainder of the then-current term dating from the Nfinite’s receipt of written notice of such non-conformance. THE REMEDY STATED IN THIS PARAGRAPH AND THE REMEDY STATED IN NFINITE'S SLA, AS APPLICABLE, CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND NFINITE’S ENTIRE LIABILITY UNDER SECTIONS 10 OF THIS AGREEMENT.

10.4. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, THE SERVICES PROVIDED HEREUNDER BY NFINITE ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES. NFINITE MAKES NO REPRESENTATION OR WARRANTY THAT THE NFINITE SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, VIRUS-FREE OR ERROR-FREE. THIS DISCLAIMER OF WARRANTY EXTENDS TO CUSTOMER AND END USERS OF CUSTOMER’S PRODUCTS AND SERVICES AND IS IN LIEU OF ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDES A DISCLAIMER OF THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

11.0 Intellectual Property & Trademarks.

11.1. The Services, Nfinite Technology and Documentation, embodied in or used in connection with the implementation, operation, improvement, maintenance, or hosting of the Services including all associated software (whether in source code, object code, or other form), databases, indexing, search, and retrieval methods and routines, HTML, active server pages, intranet pages, and similar materials) and all intellectual property and other rights, title, and interest therein (including copyrights, trade secrets, and all rights in patents, custom reports, compilations, algorithms, inventions, improvements, modifications, extensions, enhancements, configurations, derivative works, discoveries, processes, methods, designs and know-how (regardless of whether copyrightable or patentable) pertaining to any of the foregoing (all of which shall be deemed part of the Nfinite Proprietary Materials), whether conceived by Nfinite alone or in conjunction with others constitute Confidential Information and the valuable intellectual property, proprietary material, and trade secrets of Nfinite and are protected by applicable intellectual property laws of the United States and other countries.  Customer acknowledges and agrees that except for the rights of access expressly granted to Customer in this Agreement, Nfinite shall retain all right, title and interest in and to the foregoing, inclusive of any derivatives, modifications or improvements and nothing contained in this Agreement shall be construed as conferring upon Customer by implication, operation of law, estoppel, or otherwise, any other license or right to Nfinite Proprietary Materials

11.2. Each party shall strictly comply with all standards with respect to the other party’s trademarks which may be furnished by such party from time to time. Further, neither party shall create a combination mark consisting of one or more marks of the other party. All uses of the other party's marks shall inure to the benefit of the party owning such mark. Notwithstanding the foregoing, Nfinite may identify Customer by name, with or without use of the Customer’s trademark, in general promotional lists of Nfinite’s customers without Customer’s prior consent.

12.0 Confidentiality.

12.1. Confidential Information means any data or information disclosed to one party, oral or written, wherein a reasonable person with general industry knowledge would likely understand such information is non-public, sensitive, proprietary or confidential.  Such information includes, but is not limited to, Nfinite Proprietary Materials (in whatever form or media provided), inventions, internal processes, plans, financial information, transaction volume, forecasts, projections, pricing and the terms and conditions of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that the receiving party may reasonably demonstrate: (i) is in or has entered the public domain through no breach of this Agreement; (ii) it has been rightfully received by the receiving party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iii) it has been approved for release by written authorization of the owner of the Confidential Information; or (iv) was independently developed by a party without use of or access to the Confidential Information of the other party.

12.2. Each party acknowledges and agrees that, from time to time, it may receive Confidential Information from the other party. The party that receives Confidential Information (the Receiving Party) hereby agrees (i) to hold the other party’s (the Disclosing Party) Confidential Information in confidence and to take commercially reasonable precautions to protect such Confidential Information from unauthorized disclosure (including, without limitation, all precautions the Receiving Party employs with respect to its own confidential materials), (ii) not to make any use whatsoever at any time of such Confidential Information except in furtherance of this Agreement, (iv) not to copy or reverse engineer any such Confidential Information, and (v) that any employee, subcontractor, or agent given access to any such Confidential Information must have a legitimate need to know and shall be bound in writing to comply with confidentiality obligations at least as restrictive as the Receiving Party's confidentiality obligations in this Agreement.

12.3. Notwithstanding the above, the Receiving Party may disclose Confidential Information only to the extent legally compelled by a court or other government authority, provided, however, that the Receiving Party will, to the extent legally permissible, give prompt written notice to the Disclosing Party of such legal process upon receipt so that the Disclosing Party may seek an appropriate protective order, or pursue such other legal action, as the Disclosing Party may deem appropriate.

12.4. Each party’s confidentiality obligations will survive for the longer of three (3) years after termination, or as applicable for each Receiving Party, one (1) year after such Receiving Party no longer holds any of Disclosing Party’s Confidentiality Information in its possession, custody or control.  

13.0 Fees & Payment.

13.1. Customer shall pay to Nfinite the amounts set forth in an Order Form, which such fees may include any applicable support fees.  All fees are non-refundable and non-cancelable. Fees listed do not include any applicable sales, use, withholding, excise or VAT taxes. Customer shall be responsible for payment of all such taxes, fees, duties and charges, and any related penalties and interest, arising from the payment of such fees or the delivery or use of the Services.

13.2. In the event of a good faith dispute as to the calculation of a charge, Customer shall promptly give written notice to Nfinite stating the details of any such dispute and shall promptly pay any undisputed amount. The acceptance by Nfinite of such partial payment shall not constitute a waiver of payment in full by Nfinite of the disputed amount. Customer agrees to pay all costs and expenses of whatever nature, including reasonable attorneys’ fees, incurred by or on behalf of Nfinite in connection with the collection of any unpaid amounts due to Nfinite hereunder.

13.3. Any Order’s that renew may be subject to an increase of fee’s.  Any increase will be communicated to Customer within forty-five day(s) of renewal (email shall suffice).

13.4. ny undisputed amount due to Nfinite under this Agreement and not paid within 30 days of invoice due date may be subject to a finance charge payable by Customer which is equal to one and one-half percent (1.5%) or the highest rate allowable by law, whichever is less, determined and compounded daily from the date such amount is due until the date such amount is paid. Notwithstanding anything to the contrary contained in this Agreement, failure to make timely payments of undisputed amounts shall constitute a default hereunder and shall entitle Nfinite to suspend Customer access to the Services without notice at Nfinite’s sole discretion.

14.0 Indemnification.

14.1. Customer will defend, indemnify and hold harmless Nfinite its officers, directors, employees, subsidiaries, affiliates, successors and assigns from all claims, demands, actions, proceedings, liabilities, judgments, settlements, damages, costs and expenses (including reasonable attorneys' fees) arising from, directly or indirectly: (i) facts that, if true would constitute a breach of this Agreement by Customer, (ii) Customer’s or its users access to, use, misuse or illegal use of the Nfinite Service or (iii) the Customer Data, including but not limited to, use of Customer Data for Digital Products and Supporting Visuals, or Customer Service’s violation or infringement of any intellectual property rights.  

14.2. Nfinite will defend, indemnify and hold harmless Customer against any final award of damages paid to unaffiliated third parties arising out of any claim that the Services, during the Term, infringe any U.S. patent issued as of the Effective Date (“Claim”); provided that: (i) Customer promptly notifies Nfinite in writing after Customer’s receipt of notification of a potential Claim; (ii) Nfinite shall have the right to assume sole control of the defense of such Claim and all related settlement negotiations; and (iii) Customer provides Nfinite, at Nfinite’s request and expense, with the assistance, information and authority necessary to perform Nfinite’s obligations under this Section.  Notwithstanding the foregoing, Nfinite shall have no liability for any Claim to the extent it is based on (i) Customer’s written specifications or direction, or (ii) Customer’s or any agent of Customer’s modification of the Services. Customer reserves the right to retain counsel at its own expense to participate in the defense and settlement of any such Claim. If, due to a Claim, (i) the Services are held by a court of competent jurisdiction to be or are believed by Nfinite to infringe, or (ii) Customer receives a valid court order enjoining Customer from using the Services, Nfinite may at its expense, (i) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, or (ii) obtain for Customer a license to continue using the Services or (iii) terminate the applicable Order and its indemnity obligation for further activity by requesting that Customer cease use of the offending Service and then refunding to Customer the unused fees for those Services at issue hereunder.  THE FOREGOING STATES THE ENTIRE LIABILITY OF NFINITE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS WITH RESPECT THERETO.

15.0 Limitation of Liability.

15.1. EXCEPT FOR PAYMENT OBLIGATIONS AND CLAIMS ARISING DUE TO A PARTY’S WILFULL MISCONDUCT OR GROSS NEGLIGENCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE; COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR (II) ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF THE FEES PAID OR PAYABLE TO NFINITE HEREUNDER DURING THE SIX MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.

16.0 Termination and Effects.

16.1. Nfinite may terminate this Agreement, if the Customer breaches this Agreement and Customer is unable to cure such breach within thirty (30) days after receipt of written notice. Notwithstanding the foregoing, Nfinite may terminate this Agreement or any Order(s) for any reason in its sole and absolute discretion by giving thirty (30) days prior written notice.  If Nfinite terminates this Agreement or any Order for any reason other than Customer’s breach, Nfinite shall, upon termination, refund any prepaid, unused fees that represent the remainder of the then-current term.    

16.2. For any Orders that automatically renew, Customer may terminate such Order by giving sixty (60) days prior written notice before the end of the then-current term.

16.3. Upon expiration or termination of this Agreement, all right to access the Services and the Documentation shall expire. Nfinite shall discontinue the provision of the Services, and Customer shall immediately pay any outstanding invoices for services rendered through the date of termination.  The Customer is solely responsible for downloading all Customer Data that the Customer has stored in the Services before termination. Customer understands and acknowledges that thirty (30) days after termination, Nfinite reserves the right to delete Customer Data without any liability and Customer shall hold Nfinite harmless from any such action.

16.4. Any provision of this Agreement that contemplates performance or observance subsequent to any termination or expiration of this Agreement, including, without limitation, all provisions with respect to Intellectual Property, limitation of liabilities, indemnification, governing law and arbitration shall survive any termination or expiration of this Agreement and continue in full force and effect in perpetuity.

17.0 General Terms.

17.1. The Services and Nfinite Proprietary Materials are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer agrees that it will not import, export, re-export, transfer or otherwise use the Nfinite Platform or Nfinite Proprietary Materials in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Nfinite Platform and Nfinite Proprietary Materials, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer will not engage in activity that would cause Nfinite to be violation of these laws and regulations, and will indemnify Nfinite for any fines, penalties or other liabilities incurred by Nfinite for Customer’s failure to comply with this provision.

17.2. The parties shall perform all of their duties under this Agreement as independent contractors, and nothing in this Agreement shall be construed to give either party the power to direct or control the activities of the other party, or to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking. The parties understand and agree that neither party grants the other party the power or authority to make or give any agreement, statement, representation, warranty, or other commitment on behalf of the other party, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of the other party, or to transfer, release, or waive any right, title or interest of such other party.

17.3. Neither this Agreement nor any rights hereunder may be transferred or assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed.  Notwithstanding the foregoing, either party may assign or transfer this Agreement or any rights or obligations hereunder without the other’s consent to (i) any related entity wherein the party owns an interest of at least twenty five percent (25%) or (ii) a third party acquirer of all, or substantially all, of the assets or business of a party, whether by sale, merger, or otherwise. Except as provided in this section, any attempts by either party to assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other party shall be null and void.

17.4. Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, natural disasters, war, acts of terrorism, strikes, revolutions, lack or failure of third party infrastructure, lack or failure of public or private utilities, laws or governmental regulations (including legislation that makes performance herein impossible,  impractical, or economically unreasonable) or any other causes that are beyond the reasonable control of such party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. In the event that such force majeure should obstruct performance of this Agreement for more than ten (10) days, the parties hereto shall consult with each other to determine whether this Agreement should be modified or terminated.

17.5. This Agreement shall be governed by and construed under the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and the parties consent to exclusive jurisdiction and venue of the State or Federal Courts located in Dover, Delaware.  Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of 30 days after written notice of a dispute has been given by one party hereunder to the other, shall be finally settled by arbitration in New York, New York, using the English language in accordance with the Arbitration Rules and Procedures of JAMS/Endispute (“JAMS”) then in effect, by an arbitrator with substantial experience in resolving complex commercial contract disputes, who will be chosen from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of an arbitrator within 15 days following the arbitration date, then an arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator may determine. The prevailing party in the arbitration shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator.

17.6. This Agreement, and any other references, appendices, exhibits or attachments, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes any and all written or oral prior agreements and understandings between the parties concerning such subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. Additionally, terms, provisions or conditions on any purchase order, acknowledgement, or other business form or writing (aside from an Order Form) that Customer may provide to Nfinite or use in connection with the procurement of Nfinite Services will have no effect on the rights, duties or obligations of the parties hereunder, regardless of any failure of Nfinite to object to such terms, provisions or conditions. In the event of any conflict or inconsistency among the following documents, the order of preference shall be: (1) the applicable Order Form, (2) this Agreement, (3) Documentation. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the parties, and the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired thereby.

17.7. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself. Failure or delay by either party in exercising any right hereunder shall not operate as a waiver of such right.

17.8. Any notice required or permitted to be given hereunder will be deemed to have been delivered and given for all purposes: (i) on the delivery date, if delivered by hand courier to the party to whom such notice is directed; (ii) two (2) Business Days after deposit with a commercial overnight carrier; (iii) five (5) Business Days when mailed by United States mail; (iv) acknowledgement of receipt after sending by email (provided email shall not be sufficient for notices of an indemnifiable claim).