These Terms of Service are incorporated by reference and made a part of the Software-as-a-Service Subscription (the “SaaS Subscription”) between Agency (as defined in the SaaS Subscription) and Wunderite, Inc.

1. Scope. These Terms of Service together with the SaaS Subscription (collectively referred to as the “Agreement”) represent the Parties’ entire understanding regarding the Platform. Except as provided otherwise in this Agreement, this Agreement supersedes all prior discussions and agreements between and among the Parties with respect to the matters contained herein.
2. Wunderite License. By posting, uploading, or transmitting content or information such as logos, related intellectual property, messages, videos and other materials (“Agency Assets”), Agency hereby grants to Wunderite a limited, royalty free and non-exclusive license to store, copy, transmit, publish, and otherwise use Agency Assets on the Platform.
3. Term and Termination. Unless terminated sooner as provided below or otherwise specified in the SaaS Subscription, this Agreement shall become effective as of the Effective Date and shall remain in effect for the Initial Term, after which this Agreement shall automatically renew and continue to remain in effect for successive one-year renewal terms (“Terms”). Agency may terminate its Agreement with written notice to Wunderite at any time during the Initial Term or at least thirty (30) days prior to the end of a subsequent Term, with such termination applicable to the upcoming period. Wunderite may terminate this Agreement, for any reason or no reason, with or without cause, upon written notice to Agency at any time. Either Party may terminate this Agreement in the event that the other Party is in breach of this Agreement and such breach has not been cured within sixty (60) days after receipt by the breaching Party of written notice of such breach. In the event of any termination, all outstanding obligations and responsibilities of the Parties shall remain in force and effect until fully performed.
4. End User Privacy and Data. As end users engage with Agency’s activities through the Platform, Wunderite may collect and share user data as explained by Wunderite’s Privacy Policy as in effect and amended from time to time. Any additional data originated by Agency that Agency submits to Wunderite shall be owned by Agency and deemed Confidential Information pursuant to Section 9 below.
5. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Wunderite may monitor Agency's use of the Platform and collect and compile aggregated statistics. Aggregated statistics means data and information related to Customer's use of the Platform that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform (“Aggregated Statistics”). As between Wunderite and Agency, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Wunderite. Agency acknowledges that Wunderite may compile Aggregated Statistics based on Agency Data input into the Services. Agency agrees that Wunderite may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
6. Representations, Warranties and Covenants of Agency. As of the Effective Date and at all times during this Agreement, Agency hereby represents, warrants and covenants to Wunderite as follows:
   (a) Agency is a validly existing business in its state of formation and where operating, has the full power and authority to enter into and perform this Agreement and has authorized the execution, delivery and performance of this Agreement by all requisite corporate or other actions.
   (b) Agency is registered and in compliance with all applicable laws governing its activities.
   (c) Agency shall indemnify, hold harmless and defend each of Wunderite, its independent contractors, and their respective owners, affiliates, directors, officers, employees, agents, contractors and advisors (each, an “Indemnitee”), from and against any and all damages, awards, losses, fines, penalties, costs or expenses (including reasonable attorneys’ fees) relating to, or arising out of, any breach by Agency of this Agreement, including the provisions of any of the preceding representations, covenants, and warranties.
7. Representations, Warranties and Covenants of Wunderite. As of the Effective Date and at all times during the Agreement, Wunderite, hereby represents, warrants and covenants to Agency as follows:
   (a) Wunderite is a validly existing corporation under the laws of Delaware, has the full power and authority to enter into and perform this Agreement and to participate in the activities described in this Agreement, and has authorized the execution, delivery and performance of this Agreement by all requisite corporate or other actions.
   (b) Wunderite is registered and in compliance with all applicable laws governing its activities.
   (c) Wunderite shall indemnify, hold harmless and defend each of Agency, its independent contractors, and their respective owners, affiliates, directors, officers, employees, agents, contractors and advisors (each, an “Indemnitee”), from and against any and all damages, awards, losses, fines, penalties, costs or expenses (including reasonable attorneys’ fees) relating to, or arising out of, any breach by Wunderite of this Agreement, including the provisions of any of the preceding representations, covenants, and warranties.
8. Ownership. Agency acknowledges and agrees that, as between Agency and Wunderite, Wunderite owns and retains all right, title and interest in and to the intellectual property it has developed and owned in connection with providing its services under this Agreement, including without limitation the Platform (collectively, the “Wunderite IP”), and that Wunderite is not, under this Agreement, granting Agency any ownership, right, title or interest (including any license) in or to any of the Wunderite IP.
9. Confidentiality. Each of Wunderite and Agency shall hold all Confidential Information (as defined below) of the other Party in confidence, shall not disclose such Confidential Information to third parties unless third parties are under a similar confidentiality agreement, and shall use such Confidential Information solely for the purpose of performing its obligations under this Agreement. “Confidential Information” means any proprietary, business, financial, respective customer, vendor or technical information, data or technology, including trade secrets, software (including source and object code, and any data or files resulting from installation of such software) or other intellectual property (or rights therein), including the IP of Wunderite or the Agency, personal information, any independent contractors, any publishers or user of the Wunderite Platform, or any third party (including each of the affiliates, clients, suppliers or vendors of Wunderite or the Agency) that is, directly or indirectly, disclosed to the other Party or which either Party otherwise comes into possession of, or learns, in connection with this Agreement, whether in writing, orally, or otherwise, including the terms of this Agreement. Confidential Information does not include information that is or becomes generally known to the public through no wrongful action by Agency or Wunderite. The obligations set forth in this Section 9 shall not apply solely to the extent that any Confidential Information is required to be disclosed by law.
10. Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) THE PLATFORM AND SERVICES PROVIDED BY WUNDERITE UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” AND AS AVAILABLE BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING OF OR RELATING TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, TITLE, CONDITION, OR NON-INFRINGEMENT (AND ALL SUCH REPRESENTATIONS, WARRANTIES OR GUARANTIES ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED FROM THIS AGREEMENT), AND (B) IN NO EVENT (AND WHETHER ARISING IN CONTRACT, WARRANTY, TORT OR OTHER LEGAL THEORY) SHALL (I) WUNDERITE’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE GREATER OF (X) $1,000 OR (Y) TEN PERCENT OF THE TOTAL FEES PAID BY AGENCY TO WUNDERITE UNDER THIS AGREEMENT DURING THE FULL CALENDAR YEAR (OR PORTION THEREOF) IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY, OR (II) WUNDERITE BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE OR PROFIT, EVEN IF WUNDERITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE FOREGOING LIMITATIONS OF THIS SECTION 10 SHALL APPLY EVEN IF AGENCY'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 10, WUNDERITE’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
11. No Provision of Insurance Services. The Parties agree and understand that Wunderite is solely providing a software platform for use by Agency. Nothing contained herein shall be deemed the provision of, and Wunderite does not provide, insurance services.
12. Software Use and Support Services. The Agency agrees and acknowledges that the Platform is in the early stages of testing and as a result the Agency may encounter errors. Wunderite will continue to deploy bug fixes, modifications, and enhancements to the Platform as part of standard support.Wunderite makes no assurance that any specific errors or discrepancies in the Platform will be corrected. Wunderite makes the following disclosures to Agency about the use of the Platform:
    (a) The Platform is intended to be compatible with mobile devices.
    (b) The Platform is currently best suited for Google Chrome, although it is intended to be compatible with other up to date internet browsers.
13. Feedback. Agency may elect to provide any suggestions, comments, improvements, ideas or other feedback related materials to Wunderite. Agency hereby grants Wunderite a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. Wunderite will not identify Agency as the source of the feedback.
14. Severability. Any provision in this Agreement that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, (a) be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Agreement are declared to be severable, and (b) be operative, enforceable or valid to the maximum extent possible in such jurisdiction, rather than being declared totally inoperative, unenforceable, or invalid.
15. Governing Law; Arbitration. This Agreement shall be governed by and interpreted under the substantive laws of the State of Delaware, without regard to its conflict of laws principles and the laws of the United States of America, where applicable. Each Party hereby expressly consents that any dispute, claim, action or disagreement (a “Dispute”) relating to this Agreement shall be resolved exclusively by arbitration. The arbitration, including the selecting of an arbitrator, will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction therefore. EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
16. Force Majeure. If and to the extent that a Party’s (in such capacity, the “Affected Party”) performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed directly or indirectly by flood, earthquake, riots, acts of terrorism, acts of war, pandemic illness, embargoes, strikes and labor shortage, utility outages, outage or malfunction of telecommunication lines, elements of nature or acts of God or any other cause beyond the reasonable control of the Affected Party (each, a “Force Majeure Event”), then the Affected Party shall be excused for such hindrance, delay or non-performance, as applicable, of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues, provided that the Affected Party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent reasonably possible. Notwithstanding any other provision hereof, strikes by and labor disputes involving any Party’s or any permitted subcontractor’s own employees, and any labor shortage affecting a Party or any permitted subcontractor, shall not constitute a Force Majeure Event.
17. Updates and Amendments. This Agreement may be updated from time to time by Wunderite. The Parties hereby acknowledge and agree to electronic delivery of updates and amendments to the email addresses provided upon initial use of the Platform.
18. Relationship of the Parties. The Parties agree that each Party is acting as an independent contractor in performing their respective obligations and for all other purposes under this Agreement and that the relationship between the Parties shall not constitute a partnership, joint venture or agency.
19. No Waiver. No delay or omission by any Party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving its rights.
20. Counterparts. This Agreement may be executed by facsimile or other electronic transmission signature and in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute but one and the same instrument.
21. Parties; Assignment. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns. Agency may not assign this Agreement without the prior written consent of Wunderite. Wunderite may freely assign this Agreement, and its rights and obligations under this Agreement, to any person or entity that acquires all or substantially of the business or assets of Wunderite to which this Agreement relates (whether by way of asset sale, merger, consolidation, stock sale or otherwise).
22. Further Assurances. Each Party (at its own expense) shall execute and deliver such further and other documents, instruments, information and items, and take such other actions, as the other Party may reasonably request, or as may be reasonably necessary to effectuate the transactions contemplated by this Agreement or the services provided under this Agreement.