These Terms of Service (the “Terms”), which incorporate our Privacy Policy (available at https://www.pinch.ai/privacy-policy/ and all applicable Orders, constitute a binding agreement (the “Agreement”) between you, our customer, (“You”, “Customer”) and Pinch AI Corp., a Delaware, United States corporation (“We”, “Us”, “Pinch AI”), with respect to access and use of the Services (as defined below), unless you have entered into a separate written agreement with Pinch AI which governs Your use of the Services.  The effective date of this Agreement (the “Effective Date”) is specified on the Order or is the date on which You accepted the Terms.

PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING, USING, OR INSTALLING THE SERVICE OR ANY PORTION THEREOF IN ANY MANNER (WHETHER AUTOMATED OR OTHERWISE), YOU:

1. ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT AND BY SUCH OTHER TERMS, CONDITIONS, POLICIES, AND DOCUMENTS THAT MAY BE INCORPORATED HEREIN BY REFERENCE;
2. AFFIRM THAT YOU ARE AT LEAST 18 YEARS OF AGE (OR HAVE OTHERWISE REACHED THE AGE OF MAJORITY IN THE JURISDICTION WHERE YOU RESIDE); AND
3. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ORGANIZATION, REPRESENT AND WARRANT THAT YOU HAVE THE ORGANIZATIONAL AND LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON SUCH COMPANY’S OR OTHER ORGANIZATION’S BEHALF AND TO BIND SUCH COMPANY OR ORGANIZATION.

THIS AGREEMENT IS VOID WHERE PROHIBITED BY LAW, AND ANY RIGHTS TO ACCESS OR USE THE SERVICE ARE REVOKED IN SUCH JURISDICTIONS.

IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS, USE, INSTALL, OR ORDER THE SERVICE.

1. Definitions

   A capitalized term not otherwise defined in this Agreement shall have the following meaning:

1. “Affiliate” means any person or entity that controls, is controlled by, or is under common control with the subject person or entity, but only for so long as such control exists, and that is not a competitor of Pinch AI.
2. “Authorized User” means a natural person who is an employee or contractor of Customer or its Affiliates, is authorized by Customer to use the Services, and is not a competitor of Pinch AI.
3. “Customer Data” means any data, insights and information regarding Customer’s customers, orders, returns and related information provided to Pinch AI by Customer in connection with Customer’s use of the Services, or generated by the Services.
4. “Order” means an order form for the Services that specifies the Services and other services to be provided by Pinch AI, and the term, usage, pricing and payment schedule for such services, which are accepted by the parties subject to this Agreement.
5. “Services” mean Pinch AI’s websites, mobile, browser, or desktop applications, APIs, or any content, functionality, or resources used to provide Pinch AI’s SaaS-based services provided through its AI-powered, abuse mitigation platform, including any software development kits and application programming interfaces provided by Pinch AI, as set forth in the applicable Order.
6. “Term” means the initial period beginning from the date when Pinch AI makes the Services available to Customer and continuing until the 12 month anniversary of such date, plus any renewal periods, unless earlier terminated pursuant to this Agreement.  This Agreement shall automatically renew for additional [X] month consecutive renewal periods, unless earlier terminated pursuant to this Agreement.

2. Modifications to this Agreement
   Pinch AI may update this Agreement from time-to-time and may amend it at any time to incorporate additional rules, policies, procedures and other instructions concerning access to, and use of, the Services or additional features, materials, products, opportunities, or services that Pinch AI may make available on or through the Services.  Any modifications or changes will be effective immediately upon posting the modified version of this Agreement on the Services, unless otherwise specified in the updated Agreement. You waive any right You may have to receive specific notice of any modifications or changes, except as otherwise required by law. Your continued access to or use of the Services confirms your acceptance of this Agreement and any changes or modifications made to the Agreement.  You should review this Agreement frequently and ensure You understand all terms, conditions, and policies applicable to your access to and use of the Services.

3. Services  

1. Use.  Subject to Customer’s compliance with this Agreement and the applicable Order, Pinch AI agrees to make available the Services to Customer on a non-exclusive basis as set forth in the applicable Order through the internet only for Customer’s internal business use during the Term.
2. Support.  Pinch AI agrees to provide the support services for the Services as specified in the applicable Order to Customer in accordance with Pinch AI’s then-current published support plan.  The Services are subject to modification from time to time at Pinch AI’s sole discretion.  Pinch AI will use commercially reasonable efforts to give Customer prior written notice of any such modifications.  Customer hereby authorizes Pinch AI to access Customer’s Services in order to provide support.
3. Professional Services.  Pinch AI agrees to provide the integration, onboarding, performance tuning and other professional services in connection with the Services as specified in and in accordance with the applicable Order to Customer.  The professional services shall not include any “work made for hire” or similar intellectual property development services.    

4. Requirements

1. Customer Responsibilities.  Customer agrees to cooperate with Pinch AI in connection with the performance of the Services by (i) integrating Pinch AI’s software development kit into Customer’s online ecommerce store and shopping applications, (ii) integrating Pinch AI’s application programming interface into Customer’s online checkout and returns experience, and (iii) providing or making available the Customer Data to Pinch AI and the Services.  Customer agrees to be responsible for (i) maintaining the confidentiality of the access keys and other access credentials associated with the accounts of Customer and the Authorized Users, which shall not be shared with any third parties or by or between any Authorized Users, and such accounts, (ii) the Authorized Users’ compliance with this Agreement and the Orders, (iii) the conduct of Customer and the Authorized Users in their use of the Services and the Customer Data, (iv) determining the suitability of the Services and the data, insights and information generated by the Services for its business, and (v) complying with all applicable laws, rules or regulations applicable to Customer and its use of the Services and the Customer Data.  Customer agrees to notify Pinch AI promptly if Customer becomes aware of any unauthorized disclosure or use of the access keys or other access credentials, or any activity that is not permitted by this Agreement or any Order.
2. Use.  Customer agrees to use, and to ensure that the Authorized Users use, the Services in accordance with this Agreement and the applicable Order.  Customer agrees not to, and to ensure that the Authorized Users do not (i) use the Services or permit the Services to be used to perform any services for a third party on a service provider, hosted, service bureau, time sharing, outsourcing offering or other basis, (ii) use the Services or permit the Services to be used (1) in violation of any applicable laws, rules or regulations, (2) for any purpose that is illegal, infringing, libelous, tortious, fraudulent or deceptive, or (3) to cause abuse, harm, harassment, distress, torts or violation of any rights of any persons, (iii) upload or permit the Services to be used to upload any viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots, (iv) use or permit the use of any software, hardware, application or process (1) to circumvent mechanisms in the Services intended to limit the scope of use or to try to gain unauthorized access to the Services, (2) that interferes with or disrupts the Services, or any machines or networks connected to the Services, or (3) that violates the regulations, policies or procedures of such machines or networks, (v) intentionally tampers with or breaches the security of the Services or any machines or networks connected to the Services, or (vi) release the results of any evaluation of the Services to any third party without prior written approval of Pinch AI.
3. Restrictions.  Customer and the Authorized Users shall not (i) reverse engineer, decompile, disassemble or otherwise derive or attempt to derive or discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, software development kit, application programming interface, documentation or data related to the Services (the “Software”), except for any non-waivable right to decompile Software expressly permitted by applicable mandatory law, (ii) modify, port, adapt, translate or create any derivative work based upon, the Services or Software, (iii) copy, distribute, publicly display, sublicense, lease, loan, rent, sell, resell or otherwise transfer the Services or Software to any third party, (iv) remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Services or Software, or add any other markings or notices to the Services or Software, or (v) access or use the Services to evaluate its functionality or performance for competitive or benchmarking purposes, including for developing or improving any similar application, product or service, or any similar feature or functionality of the Services.
4. Fair Credit Reporting Act.  Customer agrees that Pinch AI is not a consumer reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C. §1681 et seq., or any equivalent law, rule or regulation (“FCRA”), and that the Services, including any data, insights and information generated by the Services, provided to Customer do not constitute or include “consumer reports,” as defined in the FCRA.  Customer warrants that it shall not use the Services in whole or in part: (i) as a factor in establishing a consumer’s eligibility for any credit, insurance, or product or service to be used by a consumer for personal, family or household purposes, (ii) for employment purposes, (iii) in connection with a determination of an individual’s eligibility for a benefit granted by a government authority, or (iv) in connection with any permissible purpose as defined by the FCRA.
5. Compliance with Laws.  Customer acknowledges that the Services do not guarantee compliance with any specific law, rule or regulation.  Customer acknowledges that the Services may be controlled by the laws of one or more countries governing technology use and transfer, including U.S. Export Administration Regulations, and that diversion contrary to such laws is prohibited. Customer will not use or transfer any technology or data in violation of such laws. Customer represents that it is not, and is not acting on behalf of, (i) any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the United States has prohibited export transactions, or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List; and Customer will not permit the Services to be used for any purposes prohibited by law.
6. Audit.  Pinch AI reserves the right to monitor Customer’s use of the Services as required to ensure that such use is in accordance with this Agreement and the Orders, and for providing support services to Customer.  During the Term and for one year thereafter, upon at least 10 days’ prior written notice, Pinch AI may audit Customer’s use of the Services to confirm compliance on a confidential basis. Any audit will be conducted during regular business hours, will not unreasonably interfere with the business of Customer, and will be in compliance with Customer’s reasonable written security procedures.  Pinch AI may conduct no more than one audit in any 12 month period.  Customer agrees to reasonably cooperate with Pinch AI and any auditor of Pinch AI.  Customer will promptly reimburse Pinch AI for all reasonable costs of the auditor if the audit reveals underpayment of more than 5% of the Fees payable by Customer for the period audited.

5. Customer Data
   Customer hereby grants Pinch AI a non-exclusive, royalty-free, fully paid up, worldwide, revocable license (with the right to sublicense) to access and use the Customer Data for providing the Services to Customer, and for performing this Agreement, including billing and support of the Services.  Pinch AI may aggregate and anonymize usage-related data of Customer and Authorized Users collected or otherwise made available through the Services so that the results are non-personally identifiable with respect to Customer or any Authorized User (the “Aggregated Data”).  Customer hereby agrees that Pinch AI has the right to use, reproduce, display, distribute, transmit, store, create derivative works of, and to otherwise exploit the Aggregated Data, both during and after the Term, (i) for its own internal, statistical analysis, (ii) to develop, evaluate and improve the products and services of Pinch AI, and (iii) to create and distribute reports and other materials regarding use of the Services. Nothing in this Section 5 gives Pinch AI the right or ability to publicly identify Customer or any Authorized User as the source of any Aggregated Data.

6. Ownership
   The Services and Software, including any developments, enhancements, improvements and derivative works therein and thereto, are the intellectual property of and are owned by Pinch AI and its Affiliates.  As between Pinch AI and Customer, Pinch AI retains title to and ownership of all right, title and interest in and to the Services and Software (including any developments, enhancements, improvements and derivative works therein and thereto), including all intellectual property and other proprietary rights therein and thereto.  Subject to the limited rights set forth in Section 3, Customer does not have any right, title or interest in or to the Services and Software.  All rights not expressly granted in this Agreement are reserved by Pinch AI.  Pinch AI’s name and all related names, logos, product and service names, designs, and slogans are trademarks of Pinch AI or its Affiliates or licensors. You must not use such marks without the prior written permission of Pinch AI. All other names, logos, product and service names, designs, and slogans incorporated in the Services are the trademarks of their respective owners.

7. Feedback
   If Pinch AI receives any feedback, suggestions, ideas, reports, or other information relating to the Services from Customer or any Authorized User (the “Feedback”), Customer hereby agrees that Pinch AI may freely use, reproduce, display, distribute, transmit, store, create derivative works of, and otherwise exploit the Feedback.  Further, Customer hereby irrevocably assigns to Pinch AI all right, title and interest in and to the Feedback, including any intellectual property rights therein and thereto, and otherwise agrees not to enforce, and otherwise waives to the fullest extent legally possible, any rights, including moral rights, that Customer or any Authorized User may have now or in the future in respect of the Feedback.  Neither Customer nor any Authorized User will receive any additional consideration or compensation for the Feedback.

8. Confidentiality
   Each party (a “Recipient”) agrees to protect the confidentiality of any Confidential Information (as defined below) of the other party (a “Discloser”) from unauthorized disclosure or use with at least the same degree of care that the Recipient uses for its own Confidential Information, but no less than reasonable care, and not to use or disclose to any person or entity any Confidential Information of the Discloser except in accordance with this Agreement.  The Recipient may disclose Confidential Information of the Discloser to the directors, employees and contractors of the Recipient and its Affiliates who are subject to obligations to maintain the confidentiality of the Confidential Information at least as protective of the Confidential Information as those contained in this Section 8 and who have a bona fide need to know the Confidential Information in order to use the Services or to perform this Agreement.  “Confidential Information” means any data or information that is disclosed by the Discloser to the Recipient and not generally publicly available in whatever form, whenever and however disclosed, including data, code, algorithms, pricing, financials, trade secrets, proprietary information, personal identifiable data or any other data or information that is either identified as confidential at the time of disclosure, or which by its nature and/or the circumstances of disclosure a reasonable business person would consider to be confidential.  Confidential Information shall not include information that: (i) is now or hereafter becomes part of the public domain through no act or failure to act of the Recipient, (ii) is information that the Recipient had rightfully in its possession without restriction as to use or disclosure before receiving such information from the Discloser, (iii) is hereafter rightfully obtained by the Recipient from a third party without restriction as to use or disclosure, provided that such third party is not known by the Recipient to be bound by a confidentiality agreement with respect to such information, or (iv) information independently developed by the Recipient without any reference to, reliance on or use of the Discloser’s Confidential Information.  For clarity, the Services, Software and Aggregated Data are the Confidential Information of Pinch AI.  In addition, the Recipient may disclose Confidential Information of the Discloser to the extent compelled by law or a court or other judicial or administrative body, provided that the Recipient notifies the Discloser of such compelled disclosure promptly and in writing (to the extent legally permitted) and cooperates with the Discloser, at the Discloser’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.  All Confidential Information remains the sole property of the Discloser. Nothing in this Agreement is intended to grant or does grant, either express, implied or otherwise, to a party any rights in or to the other party’s Confidential Information, except as expressly set forth in this Agreement.  All confidentiality obligations created by this Section 8 with respect to Confidential Information that does not constitute a trade secret under applicable law shall survive until the three year anniversary of this Agreement’s termination or expiration, and all confidentiality obligations with respect to Confidential Information that constitutes a trade secret under applicable law shall survive until, if ever, such Confidential Information is no longer a trade secret.  

9. Privacy and Security

1. Sharing.  Customer warrants that it is permitted to provide or make available the Customer Data that it provides or makes available to Pinch AI and for use with the Services in accordance with applicable data protection and privacy laws, and privacy policies, and without violating any third party’s rights.  Each party warrants that it shall collect, store, use and process personal identifiable data or personal information as defined under applicable data protection and privacy laws (“Personal Data”) in accordance with such laws to the extent that such party engages in such activities.  Customer hereby authorizes the exchange, use and processing of Customer Data, which may include Personal Data, for providing and using the Services and for performing this Agreement.  Pinch AI agrees to use any Personal Data in accordance with the terms set forth in its Privacy Policy and applicable laws.  Pinch AI’s Privacy Policy, as may be updated from time to time (the “Privacy Policy”), is hereby incorporated into this Agreement, and Customer hereby agrees to the collection, use and processing practices set forth therein in connection with Customer’s use of the Services.
2. Composition.  Pinch AI does not have any control over the nature, scope or origin of the Customer Data processed by the Services.  Customer acknowledges that the provision of the Services is dependent upon the relevancy, accuracy and quality of the Customer Data that it provides or makes available to Pinch AI and for use with the Services.  Customer shall have sole responsibility for the relevancy, accuracy and quality of the Customer Data.  Customer agrees that the Customer Data will not include any (i) financial account information, including bank account numbers, (ii) payment card data, including credit card or debit card numbers, or (iii) “personal health information” as defined under the U.S. Health Insurance Portability and Accountability Act.
3. Security.  Pinch AI agrees to maintain administrative, physical and technical safeguards and procedures to help protect the Customer Data from accidental loss, and unauthorized access, use or disclosure consistent with generally accepted, published industry standards, and applicable data protection laws.  Customer agrees to maintain administrative, physical and technical safeguards and procedures to protect the Customer Data and any of Pinch AI’s Confidential Information consistent with generally accepted, published industry standards, and applicable data protection laws.  Customer acknowledges that use of the Services involves transmission of Customer Data over networks that are not owned, operated or controlled by Pinch AI.  Pinch AI cannot guarantee that its security safeguards and procedures will be error-free, that transmissions of any Customer Data will always be secure or that unauthorized persons or entities will never be able to defeat Pinch AI’s security measures or those of Pinch AI’s third-party hosting providers.  Customer is solely responsible for maintaining the security of Customer’s owned, operated and managed systems.  Pinch AI is not responsible for any alteration, compromise, degradation, interception, monitoring or any other loss or unauthorized access, use or disclosure of any Customer Data.

10. Payment Terms

1. Fees.  Customer agrees to pay Pinch AI the fees for the Services set forth in the applicable Order (the “Fees”); provided, however, that if Customer’s use of any Services exceeds the usage as mutually agreed in the applicable Order for such Services, Customer agrees to pay the additional fees for such excess usage based on the pricing set forth in such Order.  Fees are in the currency set forth in the applicable Order.  All Fees will be invoiced in accordance with the payment schedule set forth in the applicable Order, provided further that Pinch AI will invoice Customer for any use of the Services that exceeds the usage as mutually agreed in the applicable Order as soon as practicable.  All Fees are due and payable within 30 days following Customer’s receipt of Pinch AI’s invoice, unless otherwise set forth in the applicable Order.  All Fees are non-refundable except as set forth in this Agreement.  
2. Renewals.  Unless otherwise stated in the applicable Order, upon expiration of the initial term or any renewal term within the Term, the Term shall automatically renew at the then current Pinch AI list pricing.  The Services set forth in the applicable Order during any automatic renewal Term shall be the same as the previous Term unless otherwise agreed at the time of renewal.  
3. Taxes.  Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority.  Customer is solely responsible for paying all such taxes, duties, fees and other amounts, other than taxes imposed on Pinch AI’s income.  Customer will pay all such amounts upon demand or provide evidence of payment or exemption.  In case of any withholding requirements, Customer agrees to pay any required withholding itself and will not reduce the Fees payable or paid to Pinch AI on account thereof.
4. Late Fees.  A Fee that is not paid by its respective due date shall be assessed a 10% late payment charge (or, if less, the highest legal rate under applicable law) for each month the Fee is not paid. In addition, Pinch AI may suspend the Services to Customer until all past due Fees are paid in full.  Customer will reimburse Pinch AI for all reasonable costs incurred by Pinch AI for collecting any past due amounts.

11. Warranty Disclaimer
    THE SERVICES, INCLUDING ANY DATA, INSIGHTS AND INFORMATION GENERATED THROUGH THE SERVICES, ARE PROVIDED “AS IS”.  PINCH AI DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  PINCH AI DOES NOT WARRANT THAT THE SERVICES OR USE THEREOF WILL BE ERROR FREE, UNINTERRUPTED OR VIRUS FREE.  PINCH AI DOES NOT WARRANT THAT THE SERVICES, INCLUDING ANY DATA, INSIGHTS AND INFORMATION GENERATED THROUGH THE SERVICES, OR USE THEREOF WILL MEET ANY DESIRED REQUIREMENTS, EXPECTATIONS OR OUTCOMES DESIRED BY CUSTOMER.  NO DATA, INSIGHTS OR INFORMATION GENERATED THROUGH THE SERVICES WILL CREATE ANY WARRANTY REGARDING THE SERVICES.

12. Indemnification

1. Intellectual Property.  Pinch AI, if notified promptly in writing and given authority, control, information and assistance at Pinch AI’s expense for defense and settlement of same, shall defend Customer against any third party action, suit or proceeding brought against Customer so far as it is based on a claim that the use of the Services infringes a United States patent or copyright, and shall indemnify and hold harmless Customer for (i) all attorneys’ fees, and court or tribunal costs incurred by Pinch AI with respect to defense and settlement of such third party claim, (ii) any judgments, fines, costs and penalties awarded by any court or tribunal against Pinch AI and/or its customers, including Customer, for such third party claim and (iii) any amounts paid in settlement of such third party claim as mutually agreed by Pinch AI and the third party in such claim.  If Pinch AI reasonably believes that use of the Services is likely to be enjoined, or if the Services are held to infringe such patent or copyright, Pinch AI shall, at its expense and at its sole option, (i) procure for Customer the right to continue using the Services, (ii) replace the Services with other non-infringing services of substantially equivalent functionality or (iii) modify the Services so that there is no infringement, provided that such modified services provide substantially equivalent functionality.  If, in Pinch AI’s reasonable opinion, the remedies above are infeasible or commercially impracticable, Pinch AI may, in its sole discretion, terminate this Agreement and refund Customer a pro-rated amount of the applicable Fees for the Services pre-paid by Customer covering the whole months following the effective date of such early termination.  Customer shall not settle any matter without the prior written approval of Pinch AI.
2. Exceptions.  The indemnification obligation in this Section 12 will not apply to the extent the infringement is caused by any of the following: (i) the Services are modified in any unauthorized manner by Customer or any Authorized User, or a third party not authorized by Pinch AI, (ii) the Services are combined by Customer or any Authorized User with other software, hardware, application or process not authorized by Pinch AI, (iii) the Services are used by Customer or any Authorized User in violation of this Agreement or the applicable Order, or (iv) any materials, data or information, including the Customer Data, provided by Customer.  
3. Sole Remedy.  THIS SECTION 12 PROVIDES CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, MISAPPROPRIATION OR VIOLATION.

13. Limitation of Liability
    IN NO EVENT SHALL PINCH AI OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES, INCLUDING ANY DATA, INSIGHTS AND INFORMATION GENERATED THROUGH THE SERVICES, OR USE THEREOF OR THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  PINCH AI’S AND ITS LICENSORS TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE SERVICES FOR THE SIX MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.  No claim against Pinch AI may be brought more than one year after the facts giving rise to such claim have arisen.  The limitations of liability and exclusions of damages in this Section 13 form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.

14. Marketing
    Customer hereby grants Pinch AI the right to use Customer’s company name and logo as a reference for marketing purposes on Pinch AI’s website and in other public or private communications with Pinch AI’s existing or prospective customers, subject to Customer’s written trademark usage guidelines as provided to Pinch AI.

15. Termination

1. Suspension.  In the event of any actual or threatened breach of this Agreement by Customer or any Authorized User (including non-payment of Fees), without limiting Pinch AI’s other rights and remedies, Pinch AI may immediately suspend Customer’s use of the Services.
2. Termination.  This Agreement may be terminated (i) by either party at any time for any or no reason after giving the non-terminating party prior written notice of at least 30 days, (ii) by the non-breaching party if the other party breaches a material term of this Agreement that is uncured within 30 days (or, in the case of non-payment, five days) after delivery of notice of such breach, or (iii) if 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 not dismissed within 30 days.  In addition, Pinch AI may immediately terminate this Agreement upon any breach by Customer of Section 4, 6 or 8.
3. Fees.  Upon expiration or termination of this Agreement, Customer will pay Pinch AI any unpaid amounts that are owed to Pinch AI during the Term. Upon termination of this Agreement based on Customer’s breach (following any applicable cure period), or upon termination of this Agreement for Customer’s convenience, Customer will pay Pinch AI any unpaid amounts that would have been owed to Pinch AI for the remainder of the then-current Term if such early termination had not occurred as well as any other amounts owed to Pinch AI under this Agreement, without limiting Pinch AI’s other rights and remedies. Upon termination of this Agreement based on Pinch AI’s breach (following any applicable cure period), Pinch AI will refund Customer any amounts pre-paid for the Services pursuant to this Agreement for the remaining full calendar months in the then-current Term.
5. Effect.  Upon expiration or termination of this Agreement, (i) Pinch AI will immediately terminate the availability of the Services to Customer, (ii) Customer will immediately cease all use of the Services, and delete or destroy (or, at Pinch AI’s request, return) all Pinch AI Confidential Information in its possession or control, and (iii) Pinch AI will have no further obligation to maintain or provide access to the Customer Data in its possession or control and will thereafter delete the Customer Data stored through the Services, unless legally prohibited.
7. Survival.  Section 4 through 8, 10, 11 through 13, 15 and 16 will survive any expiration or termination of this Agreement.

16. General

1. Parties.  Pinch AI and Customer are independent contractors. Nothing in this Agreement shall be deemed to constitute a joint venture or partnership between the parties, nor constitute any party as the agent of the other party for any purpose, or entitle any party to commit or bind the other party in any manner. Except as expressly provided in this Agreement, nothing in this Agreement or under applicable law is intended to confer any rights or obligations upon any person or entity other than the parties hereto, Pinch AI’s licensors and their respective successors and permitted assigns.
2. Governing Law; Arbitration.  This Agreement shall be governed by the laws of California, United States.  This Agreement shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods.  In the event of a dispute regarding this Agreement (a “Dispute”), a party will provide the other party with written notice of the Dispute as soon as practicable, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute amicably through their designated officers.  A Dispute that cannot be resolved within 15 days following the discussions contemplated by the prior sentence will, upon written demand of either party, be resolved exclusively by the Judicial Arbitration and Mediation Service by a single arbitrator pursuant to the arbitrator’s Comprehensive Arbitration Rules and Procedures then in effect in San Jose, California, United States.  The arbitration will be conducted and all evidence will be submitted in the English language. Each party shall bear its own costs and expenses, and the two parties will share equally the fees and costs of the arbitrator. The award rendered in the arbitration may be enforced in any court of competent jurisdiction. Notwithstanding anything in this Agreement to the contrary, Pinch AI shall have the right, at its election, to seek injunctive or other equitable relief in any court of competent jurisdiction in order to protect its intellectual property rights, and to enforce or obtain compliance with this Agreement without first submitting such matter to arbitration, which remedy will be cumulative and not exclusive.  THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING REGARDING THIS AGREEMENT.  CUSTOMER AGREES THAT IT WILL NOT COMMENCE OR PARTICIPATE IN A CLASS ACTION AGAINST PINCH AI.  If any action is pursued to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs, in addition to any other relief to which such party may be entitled.
3. Entire Agreement; Amendments; Waivers; Severability.  This Agreement, together with the Orders, is the parties’ entire agreement with respect to its subject matter, and supersedes any prior communications, discussions, understandings or agreements.  Any use of Customer’s pre-printed forms, such as purchase orders, are for convenience only, and any pre-printed terms and conditions set forth in Customer’s pre-printed forms that are in addition to, inconsistent or in conflict with, or different than, this Agreement shall be given no force or effect. Neither commencement of performance, nor failure to object to any additional or different terms and conditions from Customer, by Pinch AI shall constitute an acceptance of any terms and conditions proposed by Customer that are in addition to, inconsistent or in conflict with, or different than, this Agreement.  Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived with the written consent of duly authorized representatives of the parties.  If any provision of this Agreement is held to be unenforceable, the unenforceable provision shall be replaced by an enforceable provision that comes closest to the parties’ intent underlying the unenforceable provision, and the remaining provisions of this Agreement shall remain in full force and effect.
4. Subcontracts; Assignment.  Pinch AI may subcontract the Services cloud hosting to its authorized subcontractor without Customer’s consent and without providing notice, provided that Pinch AI will remain responsible for its subcontractor’s compliance with this Agreement. Pinch AI may assign or transfer this Agreement, in whole or in part, in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law without Customer’s consent. Customer may assign or transfer this Agreement in whole to an Affiliate or by business combination, operation of law or otherwise without Pinch AI’s prior written consent and with written notice to Pinch AI.  Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.  
5. Force Majeure.  A party shall not be liable for its inadequate performance (other than its payment obligations) caused by any condition beyond such party’s reasonable control, including accidents, acts of God, government acts, civil unrest, acts of war or terrorism, pandemic or epidemic, strikes or other labor problems, failures in telecommunications, internet, internet Pinch AI or hosting facilities, power shortages and denial of service attacks.  If any of such event has occurred, the non-performing party shall (i) immediately notify the other party in writing describing at a reasonable level of detail the circumstances causing such default or delay and (ii) be excused from further performance or observance of its affected obligations (other than its payment obligations) for as long as such circumstances prevail and such party continues to use reasonable commercial efforts to recommence performance or observance as soon as possible and to whatever extent possible without delay.
6. Notices.  All notices shall be in writing and shall be deemed effectively given upon the earlier of actual receipt or: (i) when sent, if sent by email during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (ii) three days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (iii) one business day after deposit with a nationally recognized express courier, freight prepaid, with written verification of receipt.  All notices shall be sent to the parties at their respective address in the applicable Order, or to such other address as subsequently notified in accordance with this Section 16.6.