FIVERITY'S TERMS OF SERVICE

Last updated: August 8, 2023

Welcome to FiVerity, Inc. (“FiVerity”, “we”, “us” or “our”). If you are not already a Subscriber, thank you for your interest in our Service. While we tried to make these Terms of Service (“Terms”) as user-friendly and simple as possible, in some areas we could not avoid using legal language because, after all, this is a legal contract between you and us, and we encourage you to read these Terms carefully. Capitalized terms that are not defined have the meaning ascribed in the order form.

These Terms, together with any documents they expressly incorporate by reference apply to all of our Service as defined below. By creating a user account, or by signing a written order form that we provide (an “Order”), or otherwise by using the Service, you agree to be bound by and abide by these Terms and you (“Subscriber”, “you” or “your”) become a Subscriber. An Order will generally establish the fees you owe us for the Service and any specific terms and conditions applicable to your use of the Service. In the event of a conflict between these Terms and an Order, the Order will control. These Terms, together with an applicable Order, constitute our “Agreement” permitting your use of the Services.

The Service are offered and available to financial institutions and fintech companies that reside in the United States. Acceptance of these Terms may only be made by individuals who have the legal authority to bind such U.S. company or legal entity to these Terms. By using the Service, you represent and warrant that you meet the foregoing requirements. If you do not meet all these requirements, you must not access or use the Service or any related materials.

We may revise and update these Terms from time to time. All such changes are effective seven (7) days after they are posted. If you continue to have an active subscription and/or continue to use the Service following the posting of revised Terms, you will have accepted the changes.

1. The Service
   1.1 Description. We provide an “Anti-Fraud Collaboration Platform” (the “Service”) which uses mathematical algorithms, machine learning, and identity management to assist analysts and investigators to detect digital fraud. The Service includes a “Digital Fraud Network” that allows participating Subscribers, including financial institutions, data and solution providers and regulatory agencies, to securely share encrypted identities of known fraudulent accounts and fraudster patterns with each other. The Service includes the provision of fraud reports or results generated by the Services (“Reports”) and the documentation we provide you for use with the Service (“Documentation”).
   
   1.2 Modifications; Version Upgrades. FiVerity reserves the right to modify the Service in ways that Fiverity believes will improve the overall security or functionality of the Service. Occasionally, FiVerity may need to reduce or eliminate features of the Service to improve security or to improve the overall functionality of the Service. If FiVerity plans to cease or to materially reduce the functionality of the then-current version of the Service, it will notify you via the e-mail you provided in your account information. You may cancel your subscription to a Service where Fiverity has materially reduced the functionality by providing us with written notice of your cancellation within sixty (60) days of our email to you of the feature reduction. In this circumstance, we will refund a portion of any prepaid fees you have paid us, prorated to account for the length of your subscription to the Service and the amount of time you have had access to the Service prior to your cancellation.

2. Access and Use
   2.1. Use of the Service. Subject to payment of all applicable fees set forth in the Order and compliance with these Terms, FiVerity grants to Subscriber, solely for use by Authorized Users, during the Subscription Term, a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Service and the documentation for the Service provided to you by FiVerity. Your right to use the Service is solely for your internal business purposes for identity fraud risk alert purposes only and subject to any use limitations (such as the quantity of users or lookups, etc.) specified in the applicable Order, and in accordance with these Terms. You may not provide third parties with access to the Service through your account. However, you may permit your Authorized Users (as described in Section 2.3) to access and use the Service on your behalf.
   
   2.2. Restrictions. You may use the Service for identity fraud prevention and related lawful purposes in accordance with these Terms. You, represent, warrant, and agree not to (and not to allow Authorized Users or anyone else who may access the Service through your account to):

(a)    use the Service, in whole or in part, in decision-making for consumer credit applications or for any purpose for which a consumer report may be used under the Fair Crediting Reporting Act (“FCRA”) or use the Service in any way for the purpose of taking “adverse action” against a consumer, as defined in the Equal Credit Opportunity Act and Regulation B;

(b)    use the Service in violation of any applicable international, national, federal, state, or local law, rule, or regulation, including those governing privacy, data protection, marketing, fair information practices, and public records;

(c)    use the Service in a manner that is not specifically licensed to you above, including, for example, copying, distributing, adapting, creating derivative works of, translating, localizing, porting, sublicensing, or otherwise modifying the Service or any portion of it, or permitting any third party to engage in any of the foregoing

(d)    sell or otherwise monetize your access to and use of the service, for example, by encumbering, renting, leasing, time-sharing, or otherwise transferring the rights granted to you under these Terms to any third party, except as expressly permitted herein;

(e)    except to the limited extent applicable laws specifically prohibit such restriction, reverse engineer, decompile, or attempt to derive the source code or underlying ideas or algorithms of any part of the Service (To the extent that reverse engineering is permitted by applicable law, the results of any such reverse engineering will be the Confidential Information of FiVerity and may not be used for any purpose other than identifying and analyzing those elements that are necessary to achieve interoperability which may not be limited according to applicable law);

(f)     make use of your access to the Service to attempt to recreate the Service or use the Service for any purpose competitive with our business;

(g)    use the Service in any manner that you expect or we inform you would be likely to disable, overburden, damage, or impair the Service or interfere with any other party’s use of the Service, including their ability to engage in real time activities through the Service (and, so you are aware, using any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on, or through the Service is likely to overburden the Service and is, therefore, prohibited);

(h)    introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful to or through the Service;

(i)     attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Service, the server on which the Service is stored, or any server, computer, or database connected to the Service;

(j)     use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third person or entity, or in a manner that is defamatory, libelous, harmful to minors, obscene, pornographic, or unlawfully threatening or harassing; or

(k)    otherwise attempt to interfere with the proper working of the Service.

• 2.3. Account Security and Authorized Users. You are solely responsible for: (a) identifying and authenticating the employees (“Authorized Users”) who will access the Service (b) ensuring that Authorized Users are aware of the obligations set forth in these Terms and shall cause all such Authorized Users to comply with these Terms; (b) proper usage of passwords, access codes and access procedures with respect to logging in to the Service. You agree to promptly change passwords and/or notify us immediately of any unauthorized access to or use of your or any of your Authorized User’s usernames or passwords or any other breach of security. Without limiting the generality of the foregoing, Subscriber is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Subscriber will be deemed a breach of this Agreement by Subscriber.
  
  
• 2.4. Freemium Service. FiVerity offers a limited free trial of the Service which allows a capped number (as set forth on the Order) of lookups per week with a limited number of Authorized User logins (as set forth on the Order) (“Freemium Service”). Additional credits may be issued, at FiVerity’s discretion for additional lookups based on referrals or submissions of known bad actors to the Digital Fraud Network. Freemium Service Subscribers may also be invited to participate in at least 2 feedback sessions. Subject to the terms and conditions of this Agreement including Section 2.2, FiVerity hereby grants Freemium Service Subscriber for the Freemium Subscription Term, a non-exclusive, nontransferable right to access and use the Freemium Service through no more than the permitted number of Authorized User accounts and for no more than the authorized number of weekly lookups only for Subscriber’s for identity fraud risk alert purposes in accordance with the Documentation.
  
  
• 2.5. Risk Decision Threshold. In connection with certain portions of the Service, Subscriber may establish a threshold above which the subject is verified/authenticated, and/or below which the subject is not verified/authenticated (“Risk Decision Threshold”). Subscriber in its sole discretion, will set its Risk Decision Threshold(s); and depending upon its Risk Decision Threshold, a subject may be able to successfully pass verification/authentication even though the individual about whom the inquiry relates is not the actual individual to whom the inquiry pertains.
  
  
• 2.6. Death Master Flag. The Subscriber may receive, through use of the Services, an indication that a given consumer is deceased, generated by FiVerity’s access to the Limited Access Death Master File (“LADMF”). FiVerity, Equifax, and their data suppliers (including government agencies) (i) make no warranty, express, implied or statutory, and specifically disclaims all warranties with respect to information obtained from the LADMF, including but not limited to, implied warranties of merchantability and fitness for any particular use or that use of the LADMF constitutes compliance with any law or regulation; (ii) assume no liability for any direct, indirect or consequential damages flowing from any use of any part of the LADMF, including infringement of third party intellectual property or privacy rights; and (iii) assume no liability for any errors or omissions in the LADMF. The LADMF contains inaccuracies. As such, neither FiVerity, Equifax, NTIS, nor the Social Security Administration which provides the LADMF to NTIS, guarantees the accuracy of the LADMF. The LADFM does not contain death records for all deceased persons. Therefore, the absence of a particular person in the LADMF is not definitive proof that the individual is alive. Further, it is possible for the records of a person who is not deceased to be included erroneously in the LADMF. Subscriber acknowledges and agrees that the LADMF does not guarantee the identity of or information regarding any individual and that Subscriber has processes in place to independently verify the information provided in the LADMF. Subscriber certifies that its access to the LADMF is appropriate because Subscriber (a) has a legitimate fraud prevention interest, and/or a legitimate business purpose pursuant to a law, governmental rule, regulation, or fiduciary duty; (b) has systems facilities, and procedures in place to safeguard such information, and experience in maintaining the confidentiality, security, and appropriate use of such information, (c) agrees to satisfy such similar requirements, and (d) it will provide a renewal certification from time to time upon request from FiVerity. Subscriber will not share access to the LADMF with any person or entity unless they first meet the requirements of this Agreement and this Section6. Subscriber understands that any successful attempt by any person to gain unauthorized access to or use of the LADMF that FiVerity may immediately terminate Subscriber’s access to the Services. In addition, any successful attempt by any person to gain unauthorized access may under certain circumstances result in penalties as prescribed in 15 CFR § 1110.200 levied on Subscriber and the person attempting such access.

3. Fees & Payment
   3.1. Fees. Subscriber agrees to pay to FiVerity the fee(s) as set forth in the Order (“Subscription Fee”). Unpaid amounts will bear interest at, the lower of, the rate of 1.5% per month, or the maximum rate permitted by law, from the due date until all amounts have been paid in full. Please note that while there will be no charge for Freemium Service subscriptions during the Freemium Service Subscription Term, following the Freemium Service Subscription Term the fees set forth in the Order will apply unless the Order is terminated or expires in accordance with its terms. If the Order expressly indicates that it rolls over to a paid tier. If an Order for a Freemium Service is silent on its term or renewal, it will be capped at a period of fifty-two (52) weeks and will terminate at the end of the Freemium Service Subscription Term.
   
   3.2. Taxes. FiVerity is responsible for the payment of income taxes based on FiVerity’s net income and any taxes based on FiVerity’s personal property or assets. Any and all other taxes, duties, and charges of any kind imposed by any governmental authority associated with the Service are the responsibility of the Subscriber. FiVerity and Subscriber each agree to use reasonable good faith efforts to work with the other to provide any documentation required by a governmental authority in conjunction with any such tax, duty or charge.

4. TERM & TERMINATION
   4.1. Subscription Term.
   • 4.1.1. Freemium Services. If specified in the Order, Subscriber may receive the Freemium Service (subject to the weekly lookup cap) for the term set forth in the Order (the “Freemium Subscription Term”). Thereafter, if the Order does not provide for an automatic rollover to a paid tier, the Subscriber must agree to a new Order or a written amendment of the existing Order (email is sufficient) with FiVerity to continue to use the Service at the paid tier level.
   • 4.1.2. Regular Service. Unless provided otherwise in an Order, the initial term for the Service shall begin on the effective date specified in the applicable Order and expire on the date specified in the applicable Order. Unless the Order specifies otherwise, Services will automatically renew for additional term(s) equal to the term set forth on the Order, unless either party provides a written notice of non-renewal of such Order to the other party, at least thirty (30) days prior to the expiration of the then-current term (together with the initial term and any renewal terms, the “Subscription Term”)
     
     
   
   

   4.2. Termination. This Agreement and the Subscription Term may be terminated by either party, if the other party materially breaches these Terms or the applicable Order and such breach remains uncured for thirty (30) days from the date the non-breaching party notified the breaching party thereof, unless the breach is not curable then termination is effective immediately upon notice by the non-breaching party. FiVerity reserves the right to terminate or suspend your access to all or part of the Service for any violation of these Terms or any of FiVerity’s then-current security policies regarding access to the Service, at any time, with immediate effect.

   4.3. Effect of Termination Upon termination for any reason, (a) Subscriber will pay FiVerity all amounts due to FiVerity as of, and prior to, the effective date of termination together with any other amounts payable as a result of such termination; (b) Subscriber’s right to access and use the Service, shall immediately terminate and Subscriber will destroy all Documentation in Subscriber’s possession or control; and (c) each party shall return to the other party all of such other party’s Confidential Information; provided that FiVerity may withhold delivery of any Reports pending full payment of any amounts due to FiVerity under an Order. FiVerity will not be responsible for any rebates, compensation, damages or otherwise by reason of termination of an Order at any time.

5. PROPRIETARY RIGHTS
   5.1. FiVerity Property. Except for the rights expressly granted in these Terms, all rights, title, and interest in and to the Service and the intellectual property contained or used therein are hereby reserved by FiVerity and/or its licensors.
   
   5.2. Subscriber Data. Subscriber will own all right, title and interest in all data that Subscriber loads, inputs or transmits into the Service (“Subscriber Data”). Subscriber hereby grants to FiVerity a nonexclusive, worldwide, royalty-free, fully paid up, irrevocable license to use Subscriber Data as required to provide the Service to Subscriber and to enhance the performance of the Service, including, without limitation, sharing with other users the results of analysis conducted on Subscriber Data, which may consist of identifying personas suspected of being fraudulent to other members of FiVerity’s network based upon Subscriber’s identification of suspected fraudulent activity within the Subscriber Data; disclosure as required by law; and/or to create Anonymized Data (as defined below) in order to improve FiVerity’s community sharing models. For clarity, anonymized versions of personas and related information included in Subscriber Data to which the Subscriber has attributed fraudulent status will be uploaded to FiVerity’s Digital Fraud Network and retained to compare against anonymized data submitted by other users of the Digital Fraud Network. Users are informed of which portion of the information they submitted matched stored information in the Digital Fraud Network but are not directly provided with access to any Subscriber Data. Subscriber represents and warrants that it will use reasonable efforts to avoid misidentifying Subscriber Data as related to suspected fraudulent activity and that it will promptly correct any Subscriber Data which it determines was inappropriately identified as potentially fraudulent. FiVerity reserves the right, but shall not have the obligation, to correct or remove data which FiVerity reasonably determines is not fraudulent from the Digital Fraud Network.

6. REPORTS AND FEEDBACK
   6.1. Reports. For clarity, although the Subscriber will retain ownership of Subscriber Data contained in Reports created by the Service, the rights to the selection, arrangement, structuring, matching, scoring and linking of the results in the Reports, as well as any other rights owned by FiVerity in the Reports are reserved by FiVerity. Subscriber acknowledges that: (a) the Reports are an original compilation protected by United States copyright laws and (b) the Reports constitute FiVerity Property. Subscriber shall not sell, lease, offer for sale or aggregate the data, in whole or in part, contained in any Reports or materials generated by the Service.
   
   6.2. Anonymized Data and Feedback. Subscriber Data that has been stripped of any personally identifiable information and that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to Subscriber or any of Subscriber’s customers or any other individual is “Anonymized Data.” FiVerity may collect and use Anonymized Data for its reasonable business purposes, to improve the Service and for the benefit of Subscriber. Anonymized Data shall not be considered Subscriber Data so long as it meets the definition of Anonymized Data. Subscriber may provide feedback to FiVerity through the Service, including feedback on the effectiveness of the Service, suggestions for corrections and/or modification to the Service (“Feedback”). Subscriber hereby grants to FiVerity an irrevocable, worldwide, royalty free, fully paid up, sublicensable, non-exclusive license to use, reproduce, distribute, display and otherwise commercially exploit such Feedback in all mediums now existing or hereafter conceived.

7. CONFIDENTIALITY
   7.1. Confidential Information. During the Subscription Term, each of us (as the “Disclosing Party”) may disclose or make available to the other (as the “Receiving Party”) non-public information that a reasonable person would consider confidential given the context of its disclosure, whether or not such information is marked as confidential. (“Confidential Information”). Confidential Information will include, for example, but not by way of limitation, as to the Subscriber, your Subscriber Data and as to FiVerity, the specifications for our Services, our Documentation, and information you obtain from our Service. The Receiving Party may only use the Disclosing Party’s Confidential Information to fulfill the purpose of this Agreement and in accordance with these Terms. The Receiving Party will protect the Confidential Information of the Disclosing Party by using at least the same degree of care as the Receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, publication or disclosure of such Confidential Information. Each Receiving Party may disclose the Confidential Information of the Disclosing Party to its employees, advisors, consultants, and agents who have a reasonable need to have access to such Confidential Information provided that such entity or individual is bound by obligations of confidentiality consistent with, and similar to, these Terms. The Receiving Party shall be responsible for any breach of this Section 6 caused by any of its employees, contractors or agents. FiVerity may use your Confidential Information for our internal purposes such as auditing, analysis, research and improvements to our product and service offerings, provided that any Subscriber Data used for such purpose will be converted to Anonymized Data before or as a part of such use.
   
   7.2. Non-Confidential Information. Confidential Information does not include information that: (i) becomes publicly known other than through a breach of these Terms by the Receiving Party; (ii) was already in the possession of the Receiving Party prior to disclosure by the Disclosing Party; (iii) the Receiving Party obtained from a third party; provided that to Receiving Party’s knowledge, such third party was not in breach of any obligation confidentiality; or (iv) is independently developed by the Receiving Party without the use of the Confidential Information of the Disclosing Party. Following any termination or expiration of the Terms, at Disclosing Party’s written request, the Receiving Party shall destroy all of the Disclosing Party’s Confidential Information in its possession or control, except as necessary to comply with applicable laws.
   
   7.3. Disclosure. If FiVerity authorizes the disclosure of Confidential Information from Subscriber that includes information from Subscriber’s members or customers, including nonpublic personal information (NPI) as defined under the Gramm-Leach-Bliley Act (15 U.S.C. §6809) and regulations promulgated thereunder (GLBA), FiVerity agrees to maintain the confidentiality of and to safekeep NPI in accordance with all relevant state and federal laws, regulations, and other legal mandates, including without limitation the Gramm-Leach-Bliley Act, the Fair Credit Reporting Act, all applicable regulations related thereto, and the requirements imposed upon “service providers” pursuant to the National Credit Union Administration’s Guidelines For Safekeeping of Member Information (12 CFR 748), and in accordance with then-current industry practices. The Receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested. The Receiving Party shall reasonably cooperate with the Disclosing Party (at the Disclosing Party’s expense) in limiting the scope of any such required disclosure to the extent permissible by law.
   
   FIVERITY RESERVES THE RIGHT TO DISCLOSE INFORMATION TO THIRD PARTIES IF WE BELIEVE WE ARE REQUIRED TO DO SO BY LAW OR HAVE A GOOD-FAITH BELIEF THAT SUCH ACCESS OR DISCLOSURE IS REASONABLY NECESSARY TO EITHER:

• SATISFY ANY APPLICABLE LAW, REGULATION, LEGAL PROCESS OR GOVERNMENTAL REQUEST;
• ENFORCE FIVERITY’S TERMS OF USE, INCLUDING INVESTIGATION OF POTENTIAL VIOLATIONS THEREOF;
• DETECT, PREVENT, OR OTHERWISE ADDRESS FRAUD, SECURITY OR TECHNICAL ISSUES;
• RESPOND TO USER SUPPORT REQUESTS;
• PROTECT THE RIGHTS, PROPERTY OR SAFETY OF FIVERITY, ITS USERS OR THE PUBLIC.
  
  7.4. Relief. Money damages may not be an adequate remedy if this Section 6 is breached and, therefore, either party will, in addition to any other legal or equitable remedies, be entitled to seek an injunction or similar equitable relief against such breach or threatened breach without the necessity of posting of bond.

8. INFORMATION SECURITY AND DATA PROCESSING
   8.1. FiVerity Security. FiVerity maintains and operates in accordance with a information security program (“ISP”) which includes physical, technical, and administrative controls and safeguards that are intended to be as protective as the then-prevailing industry standards. FiVerity will make available to Subscriber on written request (no more than once per year) a copy of FiVerity’s most recent ISP, SOC Reports and other independent audits typically provided to our subscribers, as well as a copy of its management memorandum detailing its response to any issues raised in said report. Subscriber shall treat such ISP and reports as FiVerity’s Confidential Information.
   
   8.2. Subscriber Security. Subscriber shall use the FiVerity Services in accordance with such commercially reasonable security and privacy policies as may be established by FiVerity or its data suppliers from time to time and as set forth in any written materials provided or made available by FiVerity to Subscriber reasonably in advance of such policies taking effect. Subscriber maintains and operates in accordance with a written information security program or other legally sufficient data security program (the “Subscriber Security Program”) which includes physical, technical, and administrative controls and safeguards that are intended to be as protective as the then-prevailing industry standards. In the event of a breach of the Subscriber Security Program which may reasonably involve the Services or data obtained by the Subscriber from the Services (a “Subscriber Data Breach”), Subscriber will provide FiVerity with prompt written notification and, at FiVerity’s written request, a copy of the Subscriber Security Program and information reasonably related to the breach. FiVerity shall treat such materials as Subscriber Confidential Information. Subscriber will, without charge, provide FiVerity with all information reasonably requested by FiVerity as deemed necessary by FiVerity to resolve any Subscriber Data Breach. Unless Subscriber obtains FiVerity’s prior written consent, Subscriber acknowledges and agrees to not interfere or attempt to interfere with service to any FiVerity Service user, host, or network ("denial of service attacks"), including, but not limited to, "flooding" of FiVerity Service networks, deliberate attempts to overload a service and attempts to "crash" a host. Unless Subscriber obtains FiVerity’s prior written consent, Subscriber may not use any kind of tool, program, or script to perform port sweeps, vulnerability scans, or penetration tests against FiVerity’s Services, and may not attempt to interfere or intercept data sent to and from FiVerity’s Services.

9. WARRANTIES
   9.1. Warranty. FiVerity represents and warrants that the Service was and will be developed and provided in a professional and workmanlike manner and shall be provided in accordance with the terms and conditions of this Agreement. 
   
   9.2. Disclaimer of Warranty. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8.1, WHICH ARE THE ONLY WARRANTIES MADE BY FIVERITY REGARDING THE SERVICE , THE SERVICE IS PROVIDED ON AN “AS-IS,” AS-AVAILABLE BASIS, AND FIVERITY AND ITS LICENSORS HEREBY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT, NON-INTERFERENCE WITH ENJOYMENT, ACCURACY, INTEGRATION, VALIDITY, EXCLUSIVITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR MERCHANTABILITY, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. SUBSCRIBER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY PROVIDED HEREIN NO OTHER WARRANTIES HAVE BEEN MADE TO SUBSCRIBER BY OR ON BEHALF OF FIVERITY OR OTHERWISE FORM THE BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
   
   9.3. Authorization. Subscriber represents and warrants that it has all requisite rights and authority to authorize and license, and hereby authorizes and licenses, FiVerity to use and create derivatives of any materials, information or content provided by Subscriber, as and to the extent necessary to provide the Service or as otherwise set forth in this Agreement.

10. INDEMNITY
    10.1. Infringement. Except as provided in the exclusions below, FiVerity will defend and indemnify, you and your affiliates, directors, officers, and employees against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (collectively “Losses”) arising out of any third party that claims that the Service infringes a United States patent or copyright or misappropriates a trade secret of that third party. If any Service (or any component) becomes or, in our opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, we may, at our option, (i) procure the right for you to continue using the Service; (ii) replace or modify the Service, so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not reasonably available, then (iii) terminate your license to access and use the allegedly infringing Service, and refund you an amount not to exceed the amount prepaid by you for the Service for the unused portion of the then current Subscription Term. This is our sole liability to you, and your sole remedy with respect to third party claims or infringement of patents, copyrights and trade secrets by the Service.
    
    10.2. Exclusions. We will not, however, have any liability to you or any other party for Losses to the extent they arise from (i) the access to, storage or use of any Subscriber Data or your Confidential Information, (ii) use of a Service other than in conformance with its documentation, (iii) your written specifications or directions, (iv) modifications, alterations, combinations or enhancements of a Service not created by or on behalf of FiVerity, or (v) any patent, copyright or trade secret in which Subscriber or any indemnified party has an interest. You agree to indemnify and hold FiVerity and our affiliates, directors, officers, and employees harmless from all Losses arising out of any third party that claim of infringement of a United States patent or copyright or misappropriation of a trade secret of a third party arising from any claim enumerated in clauses (i) through (v).
    
    10.3. Use of Service. Each party will defend, indemnify and hold harmless the other party and its affiliates, directors, officers, and employees against any Losses that result from or relate to the party’s breach of these Terms, and, as to Subscriber, from your use of the Service (except for claims subject to indemnification by FiVerity pursuant to Section 9.1 and 9.3)
    
    10.4. Indemnification Procedure. To obtain the benefit of the foregoing indemnification, the indemnitee must (a) promptly provide notification of the claim and reasonable cooperation to the indemnitor; provided that failure to promptly notify Indemnitor shall not limit the claim for indemnification hereunder except to the extent that such failure actually prejudices indemnitor; (b) tender to indemnitor complete control of the defense, settlement and compromise of the claim; and (c) not make any admissions to any third party regarding the claim or settle any indemnified claim except as approved by indemnitor in writing or as required by applicable law. Each indemnitee may participate in its defense at its own cost and expense and the indemnitor will consult with the indemnitee in connection with defense and settlement. Neither party has any obligation to indemnify the other party in connection with any settlement made without the indemnifying party’s written consent.

11. LIMITATION OF LIABILITY
    11.1. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICE RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF CUSTOMER’S TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THESE TERMS, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER CAUSE OF ACTION RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, EXCEED THE TOTAL AMOUNTS PAID OR PAYABLE BY SUBSCRIBER TO FIVERITY IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THESE TERMS AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS. The exclusions and limitations set forth in this Section 10 do not apply to (a) breaches of a party’s obligations under Section 6; (b) indemnification claims; or (c) infringement or misappropriation of intellectual property rights.

12. MISCELLANEOUS
    12.1. Entire Agreement.These Terms, together with any applicable Order are the entire understanding between the parties with respect to the subject matter and supersedes any and all prior understandings and agreements, oral or written, relating thereto.
    
    12.2. Governing Law.The Terms and the relationship between Subscriber and FiVerity shall be governed by and construed under the laws of the Commonwealth of Massachusetts, without respect to its conflict of laws principles. Subscriber and FiVerity agree to irrevocably submit to the personal jurisdiction of the competent courts located in Boston, Massachusetts, U.S.A.
    
    12.3. Class Action and Collective Arbitration Waiver.To the maximum extent permitted by applicable law, neither the Subscriber nor FiVerity shall be entitled to consolidate, join or coordinate disputes by or against other individuals or entities, or participate in any collective arbitration or arbitrate or litigate any dispute in a representative capacity, including as a representative member of a class or in a private attorney general capacity. In connection with any dispute, any and all such rights are hereby expressly and unconditionally waived.
    
    12.4. Severability. Should any provision of this Terms agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provisions shall not be affected thereby.
    
    12.5. Limitations Period.Subscriber agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
    
    12.6. Notices. All notices, requests, and demands, other than routine communications under this Terms agreement, shall be in writing and shall be deemed to have been duly given when delivered by email, or one (1) business day after being given to an overnight courier with a reliable system for tracking delivery, or three (3) business days after the day of mailing, when mailed by United States mail, registered or certified mail, return receipt requested, postage prepaid, and addressed as set forth below. Notices to FiVerity should be sent to: FiVerity, Inc., 3 Allied Drive, Suite 303, Dedham, MA 02026. Notices to Subscriber will be sent to the email and/or physical address provided by Subscriber in the Order. Either Party may change its address or its designated addressee by giving written notice to the other Party in accordance with the terms of this section.
    
    12.7. Subscriber Reference. Subscriber acknowledges and accepts that FiVerity may use Subscriber’s name and logo to identify Subscriber publicly as a Subscriber of FiVerity or user of the Service.
    
    12.8. Survival. In the event of any termination or expiration of the Terms of Service for any reason, Sections 1.4-1.6, 2.3, 3-6, 9.2-9.5, and 9.10-9.11 shall survive termination. Neither party shall be liable to the other party for damages of any sort resulting solely from terminating the Terms in accordance with its terms.
    
    12.9. Assignment. Subscriber may not assign its rights or obligations under this Agreement without the prior written consent of FiVerity.  Any attempted assignment will be void.  FiVerity may freely assign its rights and obligations under this Agreement, whether in connection with a merger, acquisition, sale of assets, by operation of law or otherwise.  This Agreement will bind and inure to the benefit of each Party’s permitted successors and assigns.