Customer Terms of Service

LeapXpert SaaS Customer Terms of Service

THESE SAAS TERMS OF SERVICE (this “Agreement”) are entered into by and between the LeapXpert Affiliate set forth on the applicable Order Form (“LeapXpert
”) and the entity placing an order for or accessing the Services (“Customer”). The “Effective Date” of this Agreement is the effective date of the first Order Form referencing this Agreement. In consideration of the terms and conditions set forth below, the parties agree as follows:

DEFINITIONS “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject party. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject party.“Agreement” means this Master Services Agreement, together with all Order Forms, the DPA (as defined below), and the Privacy Policy, as well as any other exhibits attached hereto, as amended from time to time by the parties.“Applicable Law” means all applicable laws, regulations, rules, codes, rulings, directives, and interpretations of any applicable governmental or regulatory entity, or self-regulatory entity, as these may be amended and supplemented from time to time.“Confidential Information” means all information disclosed by one party to the other party, orally, in writing or electronically, that is designated as “confidential” (or with a similar legend), or which a reasonable person should understand to be confidential given the nature of the information and circumstances of disclosure. Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.“Customer Data” means all electronic data, text, pictures, sound, graphics, video, documents, or other materials, including, without limitation, Personal Data of Users and End Users, exchanged between the Customer’s Users and an End User through the Product as a result of Customer’s or an End User’s use of the Services.
“Data Protection Law” means any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (including any and all legislative and/or regulatory amendments or successors thereto), to which a party is subject and which is applicable to a party’s information protection and privacy obligations, and any other laws and regulations implementing, derogating from or made under them, in each case as amended or re-enacted and in force from time to time.

“Documentation” means the documents provided by LeapXpert for the Product, in either printed text or machine-readable form, including technical documentation, manuals and publications, feature specification(s), training materials, and all other related materials for aiding the Use of the Product.

“End User(s)” mean client(s) and/or potential client(s) having a business relationship, or potential business relationship, with the Customer and with whom a User Uses the Product with, including, but not limited to, those employed or retained by the Customer’s client, wherever located throughout the world.

“Intellectual Property Rights” means any unpatented invention, patent application, patent, design right, rights to inventions, copyright and related rights, database right, know-how or trade secret right, moral rights, trademark, service mark, trade name, domain name right, mask work right rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, know-how and trade secrets and any other intellectual property and proprietary rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

“Personal Data” means data relating to an individual who is or can be identified either from the data or from the data in conjunction with other information that is in, or is likely to come into, the possession of the data controller (as defined under applicable Data Protection Laws).

“Product” means LeapXpert’s communication platform, including the Leap Work application, mobile application, SaaS offering, and any new or successor software or work product provided by LeapXpert.

“Services” means the services, Product or any other deliverables or output identified in an Order Form or otherwise produced, provided and/or made available to the Customer by LeapXpert.

“Update” means, the generally available updates, upgrades, hot fixes, patches, workarounds to the Services provided by LeapXpert to all subscribing customers, but excludes separately priced new products or modules.

“Use” means: (i) in relation to any Product, the right to access, load, execute, store, transmit, display, use and copy or otherwise utilise to the extent necessary for operating such Product for Customer’s internal business purposes in accordance with the Documentation and the Order Form; and (ii) in relation to any Documentation, the right to use, copy, distribute, amend, translate, or otherwise deal with the Documentation as reasonably necessary for the internal use among the Users of the Customer and its Affiliates (and Used and Using shall be construed accordingly).

“User(s)” means the Customer and its Affiliates’ employee and independent contractor who Uses the Product.
SERVICES
1. Provision of Services. LeapXpert shall make the Services available to the Customer pursuant to this Agreement, the applicable order form(s) (“Order Form”), and the Documentation, and provide such Services in accordance with this Agreement, including, if applicable, the Data Processing Addendum (“DPA
  ”), the LeapXpert End User Privacy Policy (“Privacy Policy”), and any Applicable Law relating to LeapXpert’s business, during the Term. During the Term, LeapXpert grants to Customer a limited, non-exclusive, revocable right to access and Use the Services and Products only for its internal business purposes, subject to the terms and conditions of this Agreement and in accordance with applicable law.
2. End Users. As part of the Services, the Customer may provide the ability for Customer’s End Users to access and Use the Product throughout the Term, subject to the terms and conditions of this Agreement. Customer will be fully responsible for the acts and omissions of its End Users, and shall ensure that each End User complies with this Agreement and the Acceptable Use Policy, as posted at
  https://www.leapxpert.com/terms-of-service/, which is incorporated into this Agreement by this reference. Notwithstanding anything to the contrary in this Agreement, LeapXpert has no direct or indirect warranty, indemnity or other liability or obligations of any kind to End Users.
3. Customer Credentials. Customer acknowledges that it may need to register to use all or part of the Services and provide information about Customer to register for and/or use certain Services. Customer agrees to keep such information current, accurate and complete so that LeapXpert may send notices, statements, and other information to Customer via email or through the Services, which notifications will be subject to this Agreement and the Privacy Policy. Customer will be responsible for maintaining the confidentiality of User login information and credentials for accessing the Services and will notify LeapXpert promptly of any loss, misuse, or unauthorized disclosure of such login information and/or credentials of which Customer becomes aware. LeapXpert and its Affiliates will not be liable for any damage or loss that may result from Customer’s breach of the foregoing obligations.
4. Prohibited Use. Except as may be expressly permitted in the Documentation, Customer agrees that it will not, and will not permit any User or End User to: (i) reproduce, license, resell, transfer, modify, customize, disassemble, decompile, prepare derivative works of, create improvements, derive innovations from, reverse engineer or attempt to gain access to any underlying technology of the Services (e.g., any source code, process, data set or database, management tool, development tool, server or hosting site, etc); (ii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (iii) knowingly or negligently use the Services in a way that abuses, interferes with, or disrupts LeapXpert’s networks or the Services; (iv) transmit through the Services any Customer Data that may infringe the intellectual property or other rights of third parties; (v) remove, alter or obscure any proprietary notices on the Product or Deliverables; (vi) build or benchmark a competitive product or service, or copy any features, functions or graphics of the Services; (vii) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Services; (viii) take any action that imposes an unreasonable or inappropriately large load on the Services, including by obtaining multiple application programming interface keys; and (ix) Use the Services in violation of any LeapXpert policy or in a manner that violates Applicable Law, including but not limited to anti-spam, export control, privacy, and anti-terrorism laws and regulations and laws requiring the consent of subjects of audio and video recordings, and Customer agrees that it and its Users are solely responsible for compliance with all such laws and regulations.
5. Compliance with License. Customer hereby grants LeapXpert the right to periodically audit and review Customer’s Use of the Services, via remote connection or on-site inspection, to ensure compliance with the terms of this Agreement. Customer shall at all times cooperate in good faith with such reviews and shall promptly remedy any acts of non-compliance with such License and/or this Agreement as a material term hereof. Such audit shall be conducted (a) during the Customer’s normal business hours, (b) at LeapXpert’s expense, and (c) shall be done in a manner so as not to materially interfere with the Customer’s business. If the audit reveals any overuse of the software licenses granted to the Customer, LeapXpert will provide immediate notice to the Customer of the alleged deficiency and may invoice the Customer for the number of licenses required to bring it into compliance under this Agreement.
6. True-Up Users. If Customer exceeds the number of Users permitted on the applicable Order Form (such additional users referred to as “True-Up Users”), Customer must notify LeapXpert of the maximum number of True-Up Users during the applicable calendar quarter within ten (10) days following the end of each quarter in which Customer has True-Up Users. LeapXpert will then invoice Customer for such True-Up Users at the rate stated in the applicable Order Form. The effective date of the True-Up Users shall be the first day of the subsequent calendar quarter. Upon payment, True-Up Users shall be deemed Users under this Agreement and for any renewals.
CUSTOMER DATA
1. Use of Customer Data. As between the parties, Customer and its licensors retain all right, title, and interest (including any and all intellectual property rights) in and to the Customer Data and any modifications made thereto in the course of the operation of the Services. Subject to the terms of this Agreement, Customer hereby grants to LeapXpert and its Affiliates a non-exclusive, worldwide, royalty-free right to process the Customer Data solely to the extent necessary to provide, maintain, and improve the Services and perform all related obligations owed to Customer under this Agreement, or as may be required by law. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer warrants that Customer has and will have sufficient rights in the Customer Data to grant the rights to LeapXpert under this Agreement.
2. Data Protection. The parties will comply with the terms of the DPA, as posted at https://www.leapxpert.com/terms-of-service/
  , which is incorporated into this Agreement by this reference, with respect to the provision and processing of Personal Data as defined in the DPA. LeapXpert will use commercially reasonable and appropriate technical and organizational
  measures in the Services to protect the Customer Data from unauthorized access, processing, loss, or disclosure. LeapXpert measures are designed to provide a level of security appropriate to the risk of processing the Customer Data
  within the Services. Customer understands that LeapXpert and its Affiliates will process Customer Data in accordance with applicable data protection laws, this Agreement, including the DPA, and the Privacy Policy.
INTELLECTUAL PROPERTY
1. Ownership Rights. Customer Data is Customer’s Confidential Information under this Agreement. Customer and its licensors retain all right, title and interest in and to the Customer Data and all of Customer’s Confidential Information provided under this Agreement, and LeapXpert obtains no rights in the foregoing except for the express rights granted in this Agreement. LeapXpert and its licensors retain all right, title, and interest in and to Services and Usage Data (as defined below). Customer acknowledges that the Services are offered as online, hosted solutions, and that Customer has no right to obtain a copy of the underlying computer code for any Services, except (if applicable) for any downloadable Software, in object code format. LeapXpert may freely use and incorporate into LeapXpert’s products and services any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or by any Users or End Users relating to LeapXpert’s products or services. Feedback and any other suggestions are provided by Customer exclusively “AS IS,” in Customer’s sole discretion, and will not be used by LeapXpert in any way that identifies or permits identification of Customer, its Affiliates, Users, or End Users.
2. Usage Data. Notwithstanding anything to the contrary in this Agreement, LeapXpert may collect and use any data that is derived from the use of the Services or characteristics such as country of domicile, company size, or industry, in each case that is anonymized and aggregated such that such data could no longer directly or indirectly identify Customer, Customer’s Users or End Users, or any natural person (“Usage Data
  ”).
3. Updates. LeapXpert may update the Services from time to time and Customer may receive notifications of Updates. Any Updates to the Services are subject to this Agreement. Customer agrees that its purchase of licenses to the Services is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written comments made by LeapXpert with respect to future functionality or features.
4. Third-Party Services. LeapXpert or other third parties may make available third-party products or services (“Third-Party Services”). These Third-Party Services may integrate with the Services and are not licensed by LeapXpert pursuant to this Agreement, but are governed by the third party provider’s terms and conditions and privacy policies that accompany them, which Customer may be required to separately accept. LeapXpert does not warrant or support Third-Party Services, unless expressly provided otherwise in an Order Form. LeapXpert is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such third party. The Services may contain features designed to interoperate with Third-Party Services. LeapXpert cannot guarantee the continued availability of such Third-Party Services and may cease supporting them if, for example and without limitation, the Third-Party Service provider ceases to make the Third-Party Service available for interoperation with the corresponding Service features in a manner acceptable to LeapXpert. Customer understands that LeapXpert is not responsible for providing technical support for the Third-Party Services and that LeapXpert is not responsible for the data hosting and data transfer practices followed by the providers of such Third-Party Services.
FEES AND PAYMENT
1. Fees and Payment. In consideration for the provision of Services, Customer agrees to pay to LeapXpert the fees and charges set out in each Order Form (the “Fees”). LeapXpert shall invoice the Customer for the Fees according to the payment terms specified in the Order Form. Invoices will be delivered to the Customer by email and are due and payable in full within thirty (30) days from receipt of the invoice or as stated in the applicable Order Form. Payment obligations are non-cancellable, regardless of utilization by the Customer and, except as expressly permitted in this Agreement, Fees paid are non-refundable. Customer will pay the Fees through an accepted payment method as specified in the applicable Order Form. Unless otherwise set forth in the Order Form, Customer’s subscription to the Services will renew automatically in accordance with the renewal terms and conditions set forth in Section 6.3 below. During the Term, the Customer shall not be entitled to reduce their Services or User count.
2. Late Payments. Any undisputed amounts not paid when due will be subject to interest from and including the date payment is due through and including the date that LeapXpert receives payment at a simple rate of one and one-half (1.5%) percent per month. If undisputed Fees are more than thirty (30) days overdue, then, following written notification from LeapXpert, LeapXpert may suspend Customer’s access to all or part of the Services until such unpaid Fees are paid in full.
3. Payment Disputes. LeapXpert will not exercise its rights under Section 5.2 (Late Payments), 6.5 (Termination for Cause) or Section 6.4(i) (Suspension of Service) with respect to non-payment by Customer if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute. If the parties are unable to resolve such a dispute within thirty (30) days, each party will have the right to seek any remedies it may have under this Agreement, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.
4. Taxes. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes
  ”). Customer will be responsible for paying all Taxes associated with the Fees, except for those taxes based on our net income. Should any Fees be subject to withholding tax by any government, Customer will reimburse LeapXpert for such
  withholding tax.
5. Orders by Affiliates. Customer’s Affiliates may purchase Services directly from LeapXpert by executing an Order Form which is governed by the terms of this Agreement. Such Order Form will establish a new and separate agreement between the Customer’s Affiliate and the LeapXpert entity signing such Order Form. If the Affiliate resides in a different country than Customer, then the Order Form may include modifications to terms applicable to the transaction(s) (including but not limited to tax terms and governing law).
6. Purchases from LeapXpert Partners. Customer may procure use of the Services from a third-party authorized reseller of LeapXpert, including third party marketplaces (“LeapXpert Partner
  ”) pursuant to a separate agreement with the LeapXpert Partner. Customer’s use of any Services procured through a LeapXpert Partner will be subject to the terms of this Agreement, and all fees payable (including all applicable taxes) for
  such use will be payable to the LeapXpert Partner pursuant to the terms agreed to between Customer and LeapXpert Partner. Customer understands and agrees that, if Customer purchased the Services subscriptions via a LeapXpert Partner,
  service credits and refunds payable under this Agreement may be payable or applied by LeapXpert Partner acting on behalf of LeapXpert in proportion to the fees paid by Customer to the LeapXpert Partner, and the discharge by the LeapXpert
  Partner of such obligations will relieve LeapXpert of the same under this Agreement.
TERM, TERMINATION, AND SUSPENSION
1. Agreement Term. This Agreement is effective as of the Effective Date and will remain effective until all Services ordered under the Agreement have expired or been terminated or the Agreement terminates in accordance with this Section 6. Access to the Services commences on the start date specified in the relevant Order Form and continue for the Subscription Term (as defined below) specified therein.
2. Subscription Term. Unless otherwise set forth on the applicable Order Form, the initial subscription term for the Services commences on the start date specified in the relevant Order Form and continues for a period of three (3) years (“Subscription Term
  ”).
3. Renewal. Unless a party gives written notice of non-renewal at least sixty (60) days prior to the expiration of the relevant Subscription Term, the Subscription Term will automatically renew for additional one (1) year periods. LeapXpert reserves the right to increase the Fees at the beginning of each Subscription Term, including any automatically renewed term. Any Fees for a renewed Subscription Term are due upon the date of renewal.
4. Suspension. LeapXpert may suspend Customer’s access to the Services on the following grounds: (i) late payment/non-payment of undisputed Fees, per the process noted in Section 5.2 above; (ii) non-renewal of the Services by Customer; (iii) Customer’s or its Users’ breach of Section 2 (Prohibited Use); or (iv) in the event suspension is deemed necessary by LeapXpert to prevent or address the introduction of Malicious Software (as defined in Section 8.2 below), a security incident, or other harm to Customer, LeapXpert, or LeapXpert’s other customers. LeapXpert will notify Customer of any such suspension, use diligent efforts to attempt to limit, where commercially feasible, the suspension to affected Users or Services, and will immediately restore the availability of the same as soon as the issues leading to the suspension are resolved. Such suspension will in no way affect Customer’s other obligations under this Agreement.
5. Termination for Cause. Either party may terminate this Agreement by written notice to the other party in the event that (i) such other party materially breaches this Agreement and does not cure such breach within thirty (30) days of such notice, or (ii) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6. Pilot Trial Customers. LeapXpert may offer a pilot trial to Customer at no cost to trial certain Services. Upon the expiration of a Customer’s pilot trial, if Customer does not wish to proceed with a subscription to the Services, LeapXpert may immediately suspend Customer’s access to the Services. Notwithstanding anything to the contrary in this Agreement, LeapXpert will have no obligation to process, maintain, store, or otherwise retain Customer Data beyond the end of the pilot trial period.
CONFIDENTIALITY
1. Each party will protect the other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as it protects its own Confidential Information of similar nature or importance, and in any event, using no less than reasonable care. Except as otherwise permitted by this Agreement, the receiving party may use the disclosing party’s Confidential Information solely to exercise its rights and perform its obligations under this Agreement, and will disclose such Confidential Information solely (i) to those of its respective employees, representatives, and agents who are bound by obligations to maintain the confidentiality of, and not misuse, such Confidential Information; (ii) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (iii) as reasonably necessary to comply with any applicable law or regulation. The provisions of this section will supersede any non-disclosure agreement by and between the parties entered into prior to this Agreement that would purport to address the confidentiality of any information shared by the parties, including Customer Data, and such agreement will have no further force or effect with respect to the foregoing. The receiving party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
WARRANTIES; DISCLAIMER OF WARRANTIES
1. Service Warranty. LeapXpert warrants that the Services will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, LeapXpert will use diligent efforts to correct the Services so the foregoing warranty is met, and if LeapXpert is unable to make such corrections in a timely manner, either party may terminate the applicable Order Form, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its End Users’ misuse of the Services, modifications to the Services by anyone other than LeapXpert or its representatives, or third-party hardware, software, or services used in connection with the Services.
2. Service Warranty. LeapXpert warrants that the Services will perform in all material respects in accordance with the Documentation. Provided that Customer provides written notice of a claim within thirty (30) days after first becoming aware of a breach of the foregoing warranty, LeapXpert will use diligent efforts to correct the Services so the foregoing warranty is met, and if LeapXpert is unable to make such corrections in a timely manner, either party may terminate the applicable Order Form, and Customer, as its sole and exclusive remedy, will be entitled to receive a refund of any unused Fees that Customer has pre-paid for the applicable Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by Customer’s breach of this Agreement or Customer’s or its End Users’ misuse of the Services, modifications to the Services by anyone other than LeapXpert or its representatives, or third-party hardware, software, or services used in connection with the Services.
3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
LIMITATION OF LIABILITY
1. SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY.
2. EXCEPT FOR AN ACTION BROUGHT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, EACH PARTY’S AGGREGATE LIABILITY AND THAT OF ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS AND LICENSORS, UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES RECEIVED BY OR PAYABLE TO LEAPXPERT IN THE TWELVE MONTHS PRECEDING THE CLAIM.
3. THE PARTIES AGREE THAT THIS SECTION 9 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE MONETARY CAP SET FORTH IN THIS SECTION WILL APPLY ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) ON AN AGGREGATED BASIS, WITHOUT REGARD TO WHETHER ANY INDIVIDUAL CUSTOMER AFFILIATES HAVE EXECUTED A SEPARATE ORDER FORM.
INDEMNIFICATION
1. Indemnification by LeapXpert. LeapXpert will defend Customer and its Affiliates, from any third party claim alleging that Customer’s use of the Services as contemplated hereunder infringes such third party’s patent, copyright and/or trademark intellectual property rights (an “IP Claim
  ”), and will indemnify and hold harmless Customer and its Affiliates from and against any damages and costs awarded against Customer or its Affiliates, or agreed in settlement by LeapXpert (including reasonable attorneys’ fees) resulting
  from such IP Claim. LeapXpert will have no liability or obligation with respect to any IP Claim if such claim is caused in whole or in part by (i) unauthorized use of the Services by Customer, its Affiliates or Users; (ii) modification
  of the Services by anyone other than LeapXpert or its representatives; (iii) or the combination, operation or use of the Services with other data, hardware or software not provided by LeapXpert. If Customer’s use of the Services results
  (or in LeapXpert’s opinion is likely to result) in an IP Claim, LeapXpert may at its own option and expense (a) procure for Customer the right to continue using the foregoing items as set forth hereunder; (b) replace or modify them
  to make them non-infringing; or (c) if options (a) or (b) are not commercially reasonably as determined by LeapXpert, then either Customer or LeapXpert may terminate Customer’s subscription to the Services, whereupon LeapXpert will
  refund Customer, on a pro-rated basis, any Fees Customer has previously paid LeapXpert for the corresponding unused portion. The sections above state LeapXpert’s entire liability and Customer’s exclusive remedy with respect to an IP
  Claim.
2. Indemnification by Customer. Customer will defend LeapXpert and its Affiliates from any third party claim (“Claim”), and will indemnify and hold harmless LeapXpert and its Affiliates from and against any damages and costs awarded against LeapXpert and its Affiliates, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim, to the extent caused by: (i) Customer’s or its Affiliate’s unauthorized supply, disclosure, or processing of Customer Data, including Personal Data therein, (ii) Customer’s or its Affiliate’s violation of laws applicable to Customer’s or its Affiliate’s business.
3. Indemnification Procedures. In the event of a potential indemnity obligation under this Section 10, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defence, and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. Failure by the indemnified party to notify the indemnifying party of a claim under this section will not relieve the indemnifying party of its obligations under this Section, however, the indemnifying party will not be liable for any litigation expenses that the indemnified party incurred prior to the time when notice is given or for any damages and/or costs resulting from any material prejudice caused by the delay or failure to provide notice to the indemnifying party in accordance with this section. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party, without the indemnified party’s prior written consent, such consent not to be unreasonably withheld, conditioned or delayed. Any indemnification obligation under this Section 10 will not apply if the indemnified party settles or makes any admission with respect to a claim without the indemnifying party’s prior written consent.
MISCELLANEOUS
1. Export Compliance. The Services, Products, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. LeapXpert and Customer each represents that it is not on any U.S. government denied-party list. Customer will not permit any User or End User to access or use any Service or Product in a U.S.-embargoed country or region (currently the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria) or in violation of any U.S. export law or regulation.
2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
3. Federal Government End Use Restrictions. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Services are a “commercial item” as that term is defined at 48 C.F.R. §2.101. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment in violation of this section will be null and void.
5. Entire Agreement. This Agreement, together with any Order Form, the Privacy Policy, and the DPA, constitutes the entire agreement and supersedes any and all prior agreements or communications between Customer and LeapXpert, including but not limited to Customer proposal documents and purchase orders, regarding the subject matter hereof. In the event of a conflict between the Privacy Policy, any Order Form, and this Agreement, the order of precedence will be, first, the Privacy Policy, second, the Order Form, third, the DPA, and fourth, this Agreement. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision, and the remaining provisions of this Agreement will remain in effect.
6. Publicity Rights. LeapXpert may identify Customer as a LeapXpert customer in its promotional materials. Customer may request that LeapXpert stop doing so by submitting an email to legal@leapxpert.com at any time. Please note that it may take us up to thirty (30) days to process a request.
7. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
8. Survival. Sections 1 (Definitions), 2 (Prohibited Use), 4 (Intellectual Property), 5 (Fees and Payment), 6 (Term, Termination and Suspension), 7 (Confidentiality), 8.3 (Warranty Disclaimer), 9 (Limitation of Liability), 10 (Indemnification), 11.3 (Entire Agreement), 11.8 (Survival), 11.9 (Notices), 11.13 (Governing Law) and 11.14 (Dispute Resolution) will survive any termination of the Agreement. Termination of this Agreement will not limit either party’s liability for obligations accrued as of or prior to such termination or for any breach of this Agreement.
9. Notices. All notices to be provided by one party to the other under this Agreement may be delivered in writing by (i) nationally recognized overnight delivery service or US mail to the mailing address provided on the Order Form; or (ii) electronic mail to the e-mail address provided for Customer. The address for a notice to LeapXpert is: LeapXpert, Inc., 230 Park Avenue, Fl 3, New York, NY 10169 with a copy to legal@leapxpert.com by electronic mail. All notices will be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, five (5) business days after being deposited in the mail or with a courier as permitted above.
10. iOS Terms. The following terms apply regarding the use of any iOS-compatible version of the Products:
  - Apple Inc. (“Apple”) is not a party to this Agreement, does not own the Products, and is not responsible for the Products. Apple is not providing any warranty for the Products.
  - Apple is not responsible for maintenance or other support services for the Products and will not be responsible for any other claims, liabilities, damages, or other expenses regarding the Products and Services. Any inquiries or complaints relating to the Products, including those pertaining to intellectual property rights, must be directed to LeapXpert in accordance with Section 11.9.
  - Customer is granted a non-transferable license to use the Products on an Apple-branded product owned or controlled by Customer or its Users, or as otherwise permitted by Apple’s App Store Terms of Service. However, the Products may also be accessed and used by other accounts associated with a User via Apple’s Family Sharing or volume purchasing programs. In addition, Customer must comply with the terms of any applicable third-party agreement when using the Products, such as your wireless data service agreement.
  - Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement and, upon Customer’s acceptance of this Agreement, will have the right to enforce it against Customer.
  - Regardless of the above, LeapXpert’s right to enter, rescind, or terminate any variation, waiver or settlement under this Agreement is not subject to the consent of any third party.
11. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure results from any cause beyond such party’s reasonable control, including but not limited , acts of God, acts of government, acts of terror or civil unrest, Internet failures, or acts undertaken by third parties not under the performing party’s control, including, without limitation, denial of service attacks (“Force Majeure Event
  ”). In the event that a Force Majeure Event continues for a period of thirty (30) consecutive days, the other party may terminate this Agreement and all Order Forms on written notice to the non-performing party. If LeapXpert is the party
  experiencing the Force Majeure Event and as a result thereof is unable to provide the Services or Products for the period noted herein, and Customer terminates this Agreement and all Order Forms, then LeapXpert will provide Customer
  a refund of fees paid by Customer pro-rated as of the date the Force Majeure Event commenced.
12. Governing Law. This Agreement is governed by the laws of the State of New York without regard to conflict of laws principles. The parties hereby submit to the exclusive personal jurisdiction of the federal and state courts of the State of New York, New York County for any claims or dispute relating to this Agreement.
13. Dispute Resolution. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be determined by arbitration in New York, New York. The arbitration will be administered by JAMS pursuant to its arbitration rules and procedures. Judgment on the Award may be entered in any court having jurisdiction. This section will not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.