Coperniq SaaS Services Agreement

1. DEFINITIONS

“Affiliate” means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).

“Applicable Laws” means, collectively, all applicable local, state, federal, national, or international laws, rules, and regulations, including without limitation, applicable Data Protection Laws and Telemarketing Laws.

“Applications” means Coperniq’s proprietary iOS and Android mobile software applications made available by Coperniq to Customer hereunder for installation on Authorized Devices as part of the Subscription, and any and all modified, updated, or enhanced versions thereof.

“Authorized Devices” means the computer devices owned or controlled by Customer on which the Applications are authorized to be installed.

“Authorized Users” means employees, contractors, or agents of Customer or its Affiliates who are authorized by Customer to use the Platform, including, Administrators (as defined in Section 3.2), subject to the terms of this Agreement and any applicable Usage Parameters.

“Client Communication Feature” means those features of the Platform that enable Customer to send email and/or SMS communications directly to its Clients.

“Client Portal” means the portal through which Clients may access the Platform via the Portal Link.

“Clients” means Customer’s solar customers and clients who are authorized by Customer to access and use the Platform via the Client Portal. 

“Coperniq Materials” means any template documents, product templates, invoices, forms, and/or other materials made available by Coperniq to Customer and Authorized Users through the Platform and/or Applications.

“Coperniq Service” means, as applicable, the Platform, Applications, Documentation, Coperniq Materials, Implementation Services, and/or Support, made available and/or provided by Coperniq to Customer under this Agreement.

“Customer Content” means any and all text, images, graphics, videos, documents, and all other content and/or materials, uploaded or submitted by Customer and/or any User, in connection with the use of the Coperniq Service, but excluding Coperniq Materials.

“Customer Data” means all data and other information transmitted, uploaded and/or submitted by Customer and/or Users through the Platform and/or Applications or otherwise provided or made available by Customer and/or its Users to Coperniq in connection with the use of the Coperniq Service. “Customer Data” does not include Usage Data.

“Customer Website” means the company website identified by Customer.

“Data Protection Laws” has the meaning given to such term in Section 3.4.

“Documentation” means Coperniq’s then-current user manuals and/or documentation for the Platform and/or Software, as applicable, made available to Customer hereunder by Coperniq.

“Implementation Services” has the meaning given to such term in Section 2.4.

“Order Form” means a written and/or electronic order form mutually agreed upon and executed by the parties for Customer’s purchase of a Subscription.  

“Platform” means Coperniq’s proprietary hosted platform for solar, battery, and other energy contractors to manage their Client relationships and projects.

“Portal Link” means the link that Coperniq provides to Customer that enables Clients to access the Platform through the Client Portal, which Customer makes available to each Client.

“Software” means individually and collectively (a) the Applications, and (b) the software used to operate the Platform and any and all modified, updated, or enhanced versions thereof.

“Subscription” means the subscription plan purchased by Customer hereunder, as further specified on the applicable Order Form, to access the Platform and Applications and to receive Support during the applicable Subscription Term.

“Subscription Term” means the subscription term specified on the applicable Order Form.

“Support” has the meaning given to such term in Section 2.4.

“Telemarketing Laws” means collectively, (a) the CAN-SPAM Act, 15 U.S.C. §§7701-7713, (b) the Telephone Consumer Protection Act (the “TCPA”), 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, (c) the Do-Not-Call Implementation Act and the Do-Not-Call list registry rules (http://www.donotcall.gov), and (d) all other applicable local, state, national, or international laws, rules, regulations, registries, and guidelines relating to calling, texting, telemarketing and telephonic solicitation.

“Usage Data” means Coperniq’s technical logs, metrics, and analytics regarding the performance, use, and operation of the Coperniq Service, but excluding Customer Content.

“Usage Parameters” means the maximum number of active projects permitted at a given time for Customer’s project pipeline, as specified on the applicable Order Form(s), and any other parameters applicable to the Subscription purchased by Customer and/or otherwise specified in the Documentation, Order Form, or in writing by Coperniq regarding the scope of use of the Coperniq Service by Customer and/or its Users.

“Users” means Authorized Users and Clients, collectively.

2. ACCESS AND USE OF THE COPERNIQ SERVICE
   
   1. Rights and License.  Subject to Customer’s compliance with the terms and conditions of this Agreement, including payment of all applicable fees, Coperniq grants Customer a personal, non-sublicensable, non-exclusive, non-transferable, limited subscription license, during the Subscription Term, and subject to applicable Usage Parameters: (a) to permit its Authorized Users to access and use the Platform and download, install, execute, and use, in object code form only, the Applications on Authorized Devices, and; (b) to permit Clients to access and use the Platform via the Client Portal and Portal Link.  The licenses granted to Customer under this Section 2.1 are limited to Customer’s use solely for Customer’s internal business purposes and in accordance with this Agreement and the applicable Documentation.
   2. Restrictions and Prohibited Uses. Customer shall not, and shall not permit any third party (including, without limitation, any Users) to: (a) use or allow access to the Software in a manner that circumvents the restrictions herein or exceeds any applicable Usage Parameters; (b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Coperniq Service available for access by third parties except as otherwise expressly provided in this Agreement; (c) access or use the Coperniq Service for the purpose of developing competitive products or services; (d) reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the Software; (e) use the Coperniq Service in a way that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; (f) use any aspect of the Software, or any components or functionality thereof, other than those specifically identified in the applicable Order Form; (g) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Coperniq or its suppliers on or within the Platform, Software, Documentation and/or Coperniq Materials; (h) interfere with or disrupt the integrity or performance of the Software (or any part therefor), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Software and/or Platform; (i) attempt to gain unauthorized access to the Coperniq Service (or any part thereof), or its related systems or networks; (j) frame or utilize framing techniques to enclose the Coperniq Service or any portion thereof; (k) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license, harvest, or download the Coperniq Service (or any part thereof), content, or the personal information of others without Coperniq’s prior written permission or authorization; (l) use the Coperniq Service and/or any Client Communication Feature to defame, abuse, extort, harass, stalk, and/or threaten others, or to store or transmit any malicious or unsolicited code or software, or store, transmit or upload any material and/or content that is false, inaccurate, illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, infringing, libelous, tortious, or otherwise objectionable in Coperniq’s reasonable opinion, or to store, transmit or upload any material or content that violates any third party’s intellectual property rights and/or privacy rights; (m) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity; (n) use the Coperniq Service (including through the Client Communication Feature) to engage in, promote, or encourage the sending of messages to numbers generated by harvesting, number generation, or obtained through purchased lists, in connection with the use of the Coperniq Service, or otherwise use the Coperniq Service to engage in spamming or other unsolicited advertising, marketing, or other commercial or non-commercial activities; (o) violate any contract, rules, or policies of any Third Party Integrations (as defined below) and/or applicable wireless carriers used in connection with the Client Communication Feature, including, without limitation, transmitting any prohibited messaging content through wireless and/or networks carriers; or (p) use the Coperniq Service (or any part thereof), or transmit Customer Data or Customer Content through or in connection with the use of the Coperniq Service and/or any Client Communication Feature, in any manner that violates any Applicable Laws, including, without limitation, Data Protection Laws, Telemarketing Laws, and any and all applicable export laws.  Coperniq reserves all rights and licenses not expressly granted to Customer in Section 2.1 and no implied license or right is granted by Coperniq.
   3. Additional Terms for the Applications.
      
      1. Authorized Devices.  Customer acknowledges and agrees that: (a) the Applications may only be installed, executed, and used (in accordance with the license grant set forth in Section 2.1 above) on the Authorized Devices; and (b) in order to use the Applications, Customer and its Authorized Users must have a compatible Authorized Device.  Customer further acknowledges and agrees that Customer and its Authorized Users are solely responsible for any fees or charges incurred from use of the Applications by Customer and/or its Authorized Users through Authorized Devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.
      2. Application Software Updates. Coperniq may, from time to time, develop patches, bug fixes, updates, upgrades, and other modifications to improve the performance of the Applications (“Updates”). Customer acknowledges that Customer and its Authorized Users may be required to install Updates to use the Applications, and Customer agrees to, and shall require its Authorized Users to, promptly install any Updates that Coperniq provides. 
      3. Geolocation. The Applications may include and make use of certain functionality and services that include maps, geocoding, places, and other content provided by Google, Inc. (“Google”) and/or Apple, Inc. (“Apple”) and may collect device location data and information (such functionality and services, the “Geo-Location Services” and such data and information, “Geo-Location Data”).  Use of the Geo-Location Services is subject to Google’s then current Terms of Use for Google Maps/Google Earth (http://www.google.com/intl/en_us/help/terms_maps.html) and/or Apple’s then current Terms of Use for Apple Maps (https://www.apple.com/legal/internet-services/maps/terms-en.html), as applicable. By using the Geo-Location Services, Customer acknowledges and agrees to be bound by, and ensure that its Authorized Users comply with, Google’s and/or Apple’s, as applicable, Terms of Use.
   4. Support and Implementation Services.  During the Subscription Term (subject to Customer’s payment of applicable fees), Coperniq will use commercially reasonable efforts to provide Customer remote technical support services by email or phone during Coperniq’s normal business hours (9am-5pm Pacific, Monday through Friday, excluding holidays) for Customer’s use of the Applications and/or Platform (“Support”) in accordance with Coperniq’s then current Support terms and conditions. Coperniq may also provide Customer with certain implementation, integration, and/or other professional services as specified on the applicable Order Form (the “Implementation Services”). The fees, scope, timeline, and tasks of the parties with respect to such Implementation Services shall be as specified in an Order Form or as otherwise mutually agreed upon by the parties in writing. Customer understands and agrees that (i) Coperniq is relying on Customer’s cooperation for Implementation Services to be successful and complete, (ii) Customer shall use best efforts in cooperating with Coperniq to enable successful completion of Implementation Services, and (iii) Coperniq shall not be responsible for incomplete Implementation Services as a result of incomplete or inadequate information or cooperation from Customer.  
   5. Open Source Components.  The Software may contain third party open source software components (“Open Source Components”).  Such Open Source Components are not licensed under this Agreement, but are instead licensed under the terms of the applicable open source license, which are available to Customer on request.
   6. Suspension or Termination. Coperniq may suspend, terminate, or otherwise deny Customer’s or any User’s access to or use of all or any part of the Coperniq Service, without incurring any resulting obligation or liability, if: (a) Coperniq receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Coperniq to do so; (b) Coperniq believes, in its good faith and reasonable discretion, that (i) Customer or any User has accessed or used the Coperniq Service beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Coperniq Service; or (iii) such access and use poses an imminent security risk or an imminent risk to Coperniq Property (as defined in Section 6.1) or will interfere materially with the proper continued operation of the Coperniq Service or the infrastructure used by or on behalf of Coperniq in hosting and providing the Platform and/or Applications; or (c) this Agreement, or any applicable Subscription Term, expires or is terminated. This Section 2.6 does not limit any of Coperniq’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. CUSTOMER OBLIGATIONS
   
   1. Accounts.  In order to use the Coperniq Service, Customer and each User must register an account (“Account”).  In registering an Account, Customer agrees to, and shall ensure that its Users, provide and maintain account registration information, which may include, name, location, e-mail address or other contact information, and billing information, relating to Customer and any Users, that is true, accurate, current, up to date, and complete.  Customer is solely responsible for any activity originating from the Account, including, without limitation, any access of the Account by Users and/or sub-accounts created by Users under the Account, regardless of whether such activity is authorized by Customer.  Customer agrees to notify Coperniq immediately of any unauthorized use of or access to Customer’s or any User’s Account.
   2. Administrators; Permissions.  Customer may designate an administrator or administrators (each, an “Administrator”) to administer and manage Customer’s Account, which includes, without limitation, the right to: (a) invite Authorized Users to access and use the Coperniq Service on behalf of Customer, and to assign certain permissions and access rights to each Authorized User (“Permissions”), and (ii) invite or enable Clients to access the Platform.  Customer acknowledges and agrees that depending on the Permissions granted to an Authorized User, such Authorized User may subsequently invite or enable other Authorized Users with the same access and ability to access and use the Coperniq Service.  Customer acknowledges and agrees that Customer is solely responsible and liable for its Administrator(s)’ administration and management of the Account, including, but not limited to, the inviting and granting of access to the Account and Coperniq Service to Authorized Users, the inviting or enabling of access to the Platform to Clients, and the assignment of Permissions to Authorized Users.  Customer agrees that it shall not permit any person other than Users to access and use the Coperniq Service, and shall ensure that Users use the Coperniq Service solely in accordance with this Agreement and the applicable Usage Parameters.  Customer shall be responsible for its Users’ compliance with the terms and conditions of this Agreement, and any noncompliance of any User shall be deemed a breach of this Agreement by Customer.
   3. Customer Data & Content Licenses.  Customer hereby grants to Coperniq a non-exclusive, royalty-free, worldwide license to use (including through the use of subcontractors) the Customer Data and Customer Content solely to the extent reasonably necessary for Coperniq to provide Customer the Coperniq Service and other services hereunder.  Customer acknowledges and agrees that Customer is solely responsible for Customer Content, including its legality, reliability, accuracy and appropriateness, and determining who will receive access or copies to Customer Content.  Customer represents and warrants that (a) Customer or its licensors own all right, title, and interest in and to Customer Content and Customer Data; and (b) Customer has all necessary rights and/or authorizations to grant the license to Coperniq to Customer Content and Customer Data contemplated by this Agreement.
   4. Personal Data.  Customer acknowledges and agrees that, as between the parties, with respect to the collection, transmission, disclosure, processing and/or use of any personally identifiable data and/or information through or in connection with the use of the Coperniq Service (“Personal Data”), that is subject to any applicable laws, rules, or regulations pertaining to data privacy or data security (“Data Protection Laws”), Customer is the “data controller” and/or “business” and Coperniq is a “data processor” and/or “service provider” as such terms are defined pursuant to Data Protection Laws.  Personal Data provided or collected through or in connection with the use of the Coperniq Service shall only be used in accordance with this Agreement and Coperniq’s Privacy Policy.  In addition, the parties agree to enter into any agreements necessary to comply with Data Protection Laws with respect to any Personal Data processed hereunder.
   5. Prohibited Data. Customer will not provide (or cause or permit to be provided) any Sensitive Data to Coperniq for processing under the Agreement, and Coperniq will have no liability whatsoever for Sensitive Data, whether in connection with a Security Incident (as defined below) or otherwise. “Sensitive Data” means (a) social security number, tax file number, passport number, driver's license number, or similar identifier (or any portion thereof); (b) credit or debit card number (other than the truncated (last four digits) of a credit or debit card); (c) employment, financial, credit, genetic, biometric or health information; (d) racial, ethnic, political or religious affiliation, trade union membership, information about sexual life or sexual orientation, or criminal record; (e) account passwords; (f) other information that falls within the definition of "special categories of data" under applicable Data Protection Laws; and/or (g) and any other data Customer does not have the right to process.
   6. Client User Terms. As a condition of each Client’s access to the Platform and the Client Portal, Coperniq will require each Client of Customer to enter into minimum end user terms and conditions, which include without limitation, Coperniq’s Privacy Notice available at https://www.coperniq.io/privacy-policy, governing consent for data collection practices. 
   7. Disclosures and Consents. Customer acknowledges and agrees that Customer is responsible for making all appropriate disclosures and for obtaining all necessary consents  as required by any Applicable Laws from all Users, including, without limitation, any Data Protection Laws and any Telemarketing Laws, and any such consents and disclosures required for: (i) the Geo-Location Services, collection of Geo-Location Data by the Applications, and the Authorized Users’ use of the Applications, and/or (ii) the use of any Client Communication Features, including, but not limited to, any contact information or contact data obtained for such use. Customer shall retain documentary proof of such consents for at least five (5) years from the termination of this Agreement. Customer represents and warrants that: (1) Customer has provided all appropriate disclosures and obtained all necessary acknowledgments, consents, and approvals from its Users required for (x) the Geo-Location Services, Customer’s Authorized Users’ use of the Applications, and the collection of Geo-Location Data by such Applications; and (y) the transmission of email and SMS communications and/or notifications to Clients through the Client Communication Feature, as described in Section 3.8; (2) Customer has implemented and will maintain internal and external privacy policies that comply with all Data Protection Laws; and (3) Customer has complied with all Applicable Laws in collecting, transmitting, hosting, storing, or processing Personal Data (including, but not limited to, Geo-Location Data and any Client contact information obtained for use with the Client Communication Feature or otherwise), in connection with the use of the Coperniq Service and to transmit messages through the Client Communication Feature.
   8. Client Communication Feature. 
      
      1. Policies. Without limiting Customer’s obligations or responsibilities under this Agreement, Customer acknowledges and agrees to comply with the Business to Consumer Email and SMS Policies set forth in Coperniq’s Privacy Policy available at https://www.coperniq.io/privacy-policy#b2c-emailnbspconsent-policy.
      2. Telemarketing Laws.  Customer acknowledges and agrees that Customer is the initiator and sender of all messages or other communications (including without limitation, emails and SMS text messages) transmitted or sent through the Client Communication Feature and is obligated to follow all legal requirements and industry standard and best practices applicable to the sending of messages and communications in compliance with (i) the Cellular Telecommunications Industry Association (CTIA) Messaging Principles and Best Practices Guidelines; (ii) the CTIA Short Code Monitoring Handbook, and (iii) all Applicable Laws.  Without limiting the foregoing, Customer acknowledges and agrees that Customer is solely responsible and liable for ensuring that all phone numbers and other personal information used in connection with the Client Communication Feature have been collected in accordance with the TCPA, including, without limitation, ensuring that sufficient notice and consent has been received and maintained by Customer in connection with its correspondence with Clients using the Client Communication Feature. Customer represents and warrants that: (1) Customer is authorized to enroll any and all phone numbers and/or emails transmitted, uploaded, submitted, and/or provided by or on behalf of Clients to receive emails and/or messages (including without limitation, SMS text messages) through the Client Communication Feature, in accordance with all Applicable Laws; and (2) Customer will not upload, submit, or provide any contact information of any individual through the Client Communication Feature, or otherwise contact any individual through the Client Communication Feature, who has registered their telephone number on the national Do-Not-Call Registry, any similar state registries or has otherwise indicated that such individual does not wish to be contacted by Customer.
      3. Opt-Out Obligations.  Customer is responsible for complying with consumer opt-outs immediately and in compliance with all Applicable Laws.  Customer shall not transmit or cause to be transmitted any messages and/or communications to any recipient who has opted-out, withdrawn consent, or for whom Customer does not otherwise have all necessary consents and permissions to communicate with through the Client Communication Feature. Customer will provide a reasonable means for Client to rescind consent to receive any messages and/or communications and will not send any messages and/or communications to Clients who have opted out.  Customer is the sole owner of any and all Client phone numbers and email addresses that are acquired for or on behalf of Customer in connection with the Client Communication Feature.
   9. Third Party Integrations.  The Platform may offer integrations that enable Customer the ability to connect with or use certain third party products, applications, services or software (including, without limitation, the Client Communication Feature and other data products and services) that are owned and operated by the applicable third party provider (collectively, “Third Party Integrations”). If Customer decides to access and use such Third Party Integrations, such use is governed solely by third party terms and conditions and any other applicable policies governing such use.  Coperniq does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle Customer’s and/or its Users’ data, including, any Customer Data or Customer Content that Customer or its Users transmit through the Third Party Integrations.  Coperniq is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s and/or any Users’ access or use of any such Third Party Integrations, or Customer’s reliance on the privacy practices or other policies of such Third Party Integrations.  COPERNIQ DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY PRODUCTS OR SERVICES ADVERTISED OR OFFERED THROUGH, OR IN CONNECTION WITH, THE COPERNIQ SERVICE (INCLUDING, BUT NOT LIMITED TO, THIRD-PARTY INTEGRATIONS), AND COPERNIQ WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND ANY THIRD-PARTY PROVIDERS OF SUCH THIRD PARTY PRODUCTS OR SERVICES AND/OR THIRD PARTY INTEGRATIONS.
4. SECURITY MEASURES
   
   1. Security Measures.  Coperniq shall implement and maintain industry-standard technical and organizational security measures that are reasonably designed to prevent unauthorized access to and disclosure of Customer Data and Customer Content hosted in the Platform or otherwise in Coperniq’s possession or control.  Coperniq shall inform Customer without unreasonable delay (but in no event, less than 72 hours), as soon as it has become aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to unencrypted Customer Data (“Security Incident”).  Coperniq shall provide all reasonable information in Coperniq’s possession concerning such Security Incident insofar as it affects Customer, including the following, to the extent then known: (a) the possible cause and consequences for any data subjects whose Personal Data was involved in the Security Incident; (b) a summary of the Customer Data affected, and the categories of Personal Data involved, if applicable; (c) a summary of the unauthorized recipients of the Customer Data; and (d) the measures taken by Coperniq to mitigate any damage.  Coperniq shall use reasonable efforts to provide Customer updates of further developments concerning a Security Incident.
   2. Customer Responsibility.  Customer has and shall retain sole responsibility for: (a) maintaining the confidentiality of and protecting the passwords, license keys, and/or other access credentials for the Account; (b) the security and use of Customer’s and its Users’ access credentials; (c) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Data and Customer Content in a timely manner in the event of a physical or technical incident; and (d) taking any appropriate steps to securely encrypt or pseudonymize any Customer Data.
5. FEES & PAYMENT TERMS
   
   1. Fees.  Customer shall pay the applicable fees for the Subscription Term, if any, for the Subscription tier obtained by Customer, as set forth in the applicable Order Form (the “Subscription Fees”).  Except as otherwise set forth in the Order Form, the Subscription Fees will remain fixed during the Subscription Term unless Customer (a) exceeds the Usage Parameters, and/or (b) upgrades the Subscription tier, increases the Usage Parameters, and/or subscribes to additional features or products.  Upon any increase in fees pursuant to clause (a) or (b) above, Customer shall pay the fees for such increase in advance, pro-rated for the remainder of Customer’s then-current Subscription Term.
   2. Support and Implementation Services Fees.  Coperniq’s standard Support offering is included in the Subscription Fees.  If Customer requests any additional or enhanced Support beyond the standard offering, such Support may be subject to additional fees, which shall be set forth in the applicable Order Form.  If Customer purchases Implementation Services, Customer shall pay the applicable fees as set forth in the Order Form.
   3. Payment Terms.  Unless otherwise set forth on the applicable Order Form, the fees are due and payable by Customer in advance of each Subscription Term and within thirty (30) days after Customer’s receipt of the applicable invoice.  All payments hereunder shall be made in USD and are non-refundable and non-cancellable.  Customer agrees to pay interest at the rate of 1.5% per month (or the maximum rate allowed by applicable law, whichever is lower) on amounts more than thirty (30) days past due.  In addition, if payment is not received or cannot be charged to Customer for any reason in advance, Coperniq reserves the right to suspend or terminate Customer’s and its Users’ access to the Coperniq Service, downgrade the Subscription, and/or terminate this Agreement and/or the applicable Order Form.
   4. Taxes.  The fees are 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”), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on Coperniq’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Coperniq Service, or performance of any services by Coperniq hereunder.
6. PROPRIETARY RIGHTS
   
   1. Proprietary Rights.  As between the parties, Customer shall retain all right, title, and interest in and to the Customer Data.  As between Coperniq and Customer, Coperniq or its licensors retain all right, title and interest in and to any and all intellectual property and proprietary rights in and to the Platform, Software, Documentation, Usage Data, and Coperniq Materials, and any and all modifications, enhancements and/or improvements thereto (collectively, “Coperniq Property”).
   2. Usage Data.  Coperniq may collect Usage Data and use it to operate, improve, and support the Coperniq Service and for other lawful business practices.  However, Coperniq will not disclose Usage Data externally unless it is (a) de-identified so that it does not identify Customer, its Users, or any other person; and (b) aggregated with data across other customers.
   3. Feedback.  To the extent Customer and/or any User provides any suggestions and/or feedback to Coperniq regarding the functioning, features, and other characteristics of the Coperniq Service, including any documentation or other materials furnished by Coperniq (“Feedback”), Customer hereby grants Coperniq a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s and its licensors’ intellectual property and proprietary rights to use and exploit such Feedback in any manner and for any purpose.
7. TERM; TERMINATION
   
   1. Term. Unless earlier terminated in accordance with the terms of this Agreement, the term of this Agreement will commence on the Subscription Start Date as set forth in the Order Form will continue for the Subscription Term, until the Subscription End Date.
   2. Termination.  Either party may terminate this Agreement immediately upon written notice if the other party (a) materially breaches its obligations under this Agreement and does not remedy such breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non-breaching party; and/or (b) becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or makes an assignment for the benefit of creditors.
   3. Effect of Termination.  
      
      1. Upon termination or expiration of this Agreement, (i) if termination is due to Customer’s material breach, Customer will pay to Coperniq any amounts due and payable by Customer for the Coperniq Service, including all Subscription Fees for the remainder of the Subscription Term, that remain unpaid as of the effective date of termination and/or expiration; (ii) Customer shall remove the Portal Link from the Customer Website; (iii) Customer’s right to access and use the Coperniq Service shall immediately terminate and Customer shall immediately cease, and ensure its Users’ cease any and all use of the Coperniq Service, and delete and permanently erase, and ensure each Authorized User deletes and permanently erases, all copies of the Applications from Authorized Devices in Customer’s or any Authorized User’s possession or control; and (iv) Customer shall destroy or return to Coperniq all copies of Coperniq Materials in its possession or control.
      2. For a period of fourteen (14) days following the expiration or termination of this Agreement, Coperniq will provide Customer limited access to the Platform for the purpose of exporting one (1) copy of the Customer Content and Customer Data stored and available in the Platform.  After such fourteen (14) day period Coperniq will have no further obligation with respect to any Customer Content or Customer Data.
      3. The following Sections shall survive any termination or expiration of this Agreement: 1, 2.2, 2.5, 2.6, 3.7, 3.8, 5 (only as to outstanding fees for services rendered but not yet paid), 6, 7.3, and 8 through 12.
8. CONFIDENTIALITY
   
   1. Confidentiality.  “Confidential Information” means any proprietary information received by the other party during, or prior to entering into, this Agreement that is marked as “Confidential” or that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure. Confidential Information with respect to: (a) Coperniq, shall include the fees payable hereunder, Software, Documentation, Feedback, and any non-public technical and business information regarding the Coperniq Service (or any part thereof), and (b) Customer, shall include Customer Data and Customer Content. Confidential Information does not include information that (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure.  
   2. Use and Protection.  The receiving party of any Confidential Information of the disclosing party will maintain the confidentiality of Confidential Information and will not use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party's Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care.  The receiving party may disclose Confidential Information of the disclosing party to its employees, agents, contractors, and other representatives (collectively, “Representatives”) having a legitimate need to know, provided that, the receiving party remains responsible for its Representatives’ compliance with this Section 8, and such Representatives are bound to confidentiality obligations no less protective than obligations set forth in this Section 8.
   3. Required Disclosures; Return.  The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order.  Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except: (a) as required by applicable law, or (b) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality).  Upon termination or expiration of this Agreement, the receiving party will promptly return or destroy Confidential Information of the other party in its possession or control, and will provide written certification of its compliance with the foregoing at the disclosing party’s written request.
9. DISCLAIMERS.  THE COPERNIQ SERVICE AND ANY OTHER MATERIALS, CONTENT, OR SERVICES PROVIDED OR MADE AVAILABLE BY COPERNIQ, ARE PROVIDED “AS IS” AND “AS AVAILABLE”. COPERNIQ AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT.  COPERNIQ AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE COPERNIQ SERVICE, OR ANY OTHER MATERIALS, CONTENT, AND/OR SERVICES PROVIDED BY COPERNIQ OR MADE AVAILABLE THROUGH COPERNIQ SERVICE: (A) WILL MEET CUSTOMER’S OR ANY USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ITS USERS’ NETWORK, COMPUTER, OR MOBILE DEVICE (AS APPLICABLE), OR ANY THIRD PARTY INTEGRATIONS; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.  CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE COPERNIQ SERVICE, AND ALL RESULTS OF SUCH USE IS SOLELY AT CUSTOMER’S OWN RISK.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER AND/OR ANY USER FROM COPERNIQ OR ANY THIRD PARTY, SHALL CREATE ANY WARRANTY.
10. LIMITATION OF LIABILITY
    
    1. Disclaimer of Consequential Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE OTHER PARTY, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION, FOR ANY (A) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES, OR RIGHTS; (B) INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; OR (C) INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA.
    2. Liability Cap.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER OR RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO COPERNIQ FOR THE COPERNIQ SERVICE DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE CAUSE OF ACTION, OR, WITH RESPECT TO ANY FREE, PROMOTIONAL, OR BETA VERSION, $200.00.
    3. Basis of the Bargain.  THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THE PARTIES AGREE THAT THIS SECTION 10 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  COPERNIQ DISCLAIMS ALL LIABILITY OF ANY KIND WITH RESPECT TO COPERNIQ’S LICENSORS AND SUPPLIERS.  THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF COPERNIQ’S SUPPLIERS.
11. INDEMNIFICATION
    
    1. Coperniq Indemnity.  Coperniq will defend, indemnify, and hold harmless Customer and its Affiliates, employees, officers, directors, and representatives from any and all claims, actions, suits, administrative, or judicial proceedings brought by a third party (each, a “Claim”) against Customer, to the extent that the Claim alleges that the Customer’s use of the Platform and/or Applications as authorized herein infringes or misappropriates any third party intellectual property right, and Coperniq will pay those costs (including reasonable attorneys’ fees) and damages awarded against Customer under a final court decision in relation with such Claim or agreed to in settlement.  If the Platform and/or Applications becomes, or in Coperniq’s opinion is likely to become, the subject of an infringement claim, Coperniq may, at its option and expense: (a) procure for Customer the right to continue exercising the rights licensed hereunder; or (b) replace or modify the Platform and/or Applications, as applicable, so that it becomes non-infringing.  
    2. Exclusions from Coperniq Indemnity. Notwithstanding the foregoing, Coperniq will have no obligation under this Section for any infringement or misappropriation claim that arises out of or is based on: (i) Customer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (ii) any modifications to the Platform and/or Applications by any person other than Coperniq, (iii) Customer’s use, operation, or combination of the Platform and/or Applications with software programs, data, equipment, materials, or business processes not provided by Coperniq, (iv) any Third Party Integrations, Customer Content, and/or Customer Data, (v) Customer’s or any User’s use of the Coperniq Service other than in accordance with this Agreement or the applicable Documentation, or (vi) any Coperniq products and/or services provided on a “free” or “beta” basis (including, without limitation, the Coperniq Service offered under a “free” subscription plan).   Coperniq will have no responsibility or liability of any kind under this Agreement, arising or resulting from: (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by Coperniq; (b) nonconformities resulting from Customer’s, any Users’, or any third party’s misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Coperniq Service; (c) modification, amendment, revision, or change to the Coperniq Service (or any part thereof) by any person other than Coperniq; or (d) any other factor outside of Coperniq’s reasonable control. THIS SECTION STATES COPERNIQ’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS AND ACTIONS.
    3. Customer Indemnity.  Customer shall defend, indemnify, and hold harmless Coperniq, its Affiliates, and licensors, and each of their respective employees, officers, directors, and representatives from and against any Claims, damages, losses, liabilities, costs, and expenses (including reasonable legal fees) arising from: (i) Customer’s and/or any User’s material breach of any of the obligations in this Agreement; (ii) allegations of infringement or misappropriation of a third party’s intellectual property rights resulting from Customer’s use of its Customer Content and Customer Data with the Software; (iii) Customer’s or any Users’ breach of any Data Protection Laws or violation of a third-party’s right of publicity, confidentiality, property, or privacy; (iv) any Claims made by Clients; or (v) breach or violation of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any Third Party Integrations, wireless carriers, and/or the Geo-Location Services.
    4. Procedure.  The indemnified party shall (a) promptly notify the indemnifying party in writing of the claim (a delay in providing notice does not excuse these indemnity obligations unless the indemnifying party is prejudiced by such delay), (b) give the indemnifying party sole control of the defense of the claim (and in any related settlement negotiations), and (c) cooperate and, at the indemnifying party’s request and expense, assist in such defense.  The indemnified party may participate in the defense of the claim using its own counsel (at its own expense).  The indemnifying party may not settle the claim without the indemnified party’s consent if such settlement imposes a payment or other obligation on the indemnified party.
12. GENERAL
    
    1. Miscellaneous. Coperniq and Customer are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent, except that either party may assign this Agreement in its entirety to an Affiliate or in connection with the sale, acquisition, merger, or transfer of all or substantially all of such party’s business, voting stock, or assets to which this Agreement relates.  Coperniq may utilize, or delegate the performance of any services hereunder to, its Affiliates, employees, contractors, and subcontractors; provided that, Coperniq shall remain responsible and liable for their performance and compliance with this Agreement. Any attempted assignment or transfer of this Agreement in contravention of the foregoing shall be null and void.  This Agreement shall be binding on the parties and their respective successors and permitted assigns.  Coperniq’s failure to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit Coperniq’s right to enforce such provision at a later time. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.
    2. Publicity.  During the term of this Agreement, Coperniq may include Customer’s name and logo as a customer who uses the Coperniq Service on Coperniq’s websites and in other marketing materials promoting the Coperniq Service.
    3. Entire Agreement. This Agreement and the applicable Order Form, which is hereby incorporated by reference, constitutes the entire agreement between Customer and Coperniq regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Customer and Coperniq, whether written or verbal, regarding the subject matter of this Agreement. In the event of conflicting language between the Order Form and this Agreement, the terms of the Order Form will control.
    4. Notice. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (a) when delivered personally; (b) 1 business day after deposit with a nationally or internationally (as applicable) recognized express courier, with written confirmation of receipt; (c) upon confirmation of receipt if sent by email; or (d) 3 business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.  All such notices to Coperniq will be sent to 548 Market St, PMB 826300, San Francisco, CA 94104-5401 or support@coperniq.io, and all such notices to Customer will be sent to the addresses set forth  in the applicable Order Form.  Each party may update its address by providing written notice to the other party in accordance with this Section.
    5. Choice of Law; Jurisdiction.This Agreement is governed by the laws of the State of California, without giving effect to provisions relating to conflict of laws. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in San Francisco County, California. Coperniq may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of Coperniq’s, Coperniq’s affiliates, or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
    6. Force Majeure. Coperniq is not liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Coperniq’s reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, war, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine, shelter in place, or other orders and/or restrictions.
    7. Amendments.  Coperniq may materially modify this Agreement upon thirty (30) days prior notice to Customer by email and/or an in-product notification. Customer’s continued use of the Platform following receipt of notice constitutes consent to these material changes. All other changes will be effective when posted on the Coperniq Website. If Customer does not agree to the modifications to this Agreement, then, prior to the end of the thirty (30) day notice period, Customer may either, as Customer’s sole and exclusive remedy, terminate this Agreement by providing written notice to Coperniq by email at support@coperniq.io, provided that, all fees shall become immediately due and payable for the remainder of Customer’s then-current Subscription Term.  
    8. Export. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Software.  Customer agrees that Customer will not export or re-export the Software without the appropriate United States or foreign government licenses or permits.
13. QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact us at support@coperniq.io with any questions about this Agreement.