Master Services Agreement

‍1. Services

Esusu shall provide to Client the services (the “Services”) subscribed to in one or more order forms entered into between Client and Esusu (each, an “Order”). The addendums linked to the left and/or attached hereto (each, an “Addendum”) provide additional terms applicable to the use of, and access to, the applicable Services. Any such applicable Addendum is hereby incorporated into the terms of this MSA. Additional Orders or amendments or other modifications thereto shall be deemed issued and accepted only if signed by the authorized signatories of Esusu and Client. This MSA, including and together with any related Orders, applicable Addendums, exhibits, schedules, attachments, and appendices, shall be referred to herein collectively as the “Agreement”.

2. Esusu Obligations. Esusu Shall:

2.1 Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Esusu Representative”) with such designation to remain in force unless and until a successor Esusu Representative is appointed.

2.2 Maintain complete and accurate records relating to the provision of the Services under this Agreement.

3. Client Obligations. Client Shall:

3.1 Designate one of its employees to serve as its primary contact with respect to this Agreement and to act as its authorized representative with respect to matters pertaining to this Agreement (the “Client Representative”), with such designation to remain in force unless and until a successor Client Representative is appointed.

3.2 Require that the Client Representative respond promptly to any requests from Esusu for instructions, information, data, or approvals reasonably required by Esusu to provide the Services.

3.3 Cooperate with Esusu in its performance of the Services and provide access to Client’s employees, contractors, data and systems as reasonably required by Esusu to provide the Services

3.4 Take all steps reasonably necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Esusu’s provision of the Services.

3.5 Not use the Services (a) for any purpose not specifically authorized under this Agreement, (b) to (i) copy, modify, or create derivative works of the Services, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services; or (c) in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any Applicable Law.

4. Fees and Expenses

4.1 In consideration of the provision of the Services by Esusu and the rights granted to Client under this Agreement, Client shall pay the fees and other charges set out in each applicable Order (“Fees”). Unless otherwise provided in the applicable Order, said Fees shall be payable within 30 days after receipt by the Client of an invoice from Esusu. Client may withhold from payment any and all payments of Fees that Client disputes in good faith, pending resolution of such dispute, provided that Client: (i) timely renders all payments and amounts that are not in dispute; (ii) notifies Esusu of the dispute at billing@esusu.org prior to the due date for payment, specifying in such notice the amount in dispute and the reason for the dispute; (iii) works with Esusu in good faith to promptly resolve the dispute; and (iv) promptly pays any amount determined to be payable by resolution of the dispute.

4.2 Client shall reimburse Esusu for all reasonable and pre-approved expenses incurred in accordance with the Order, within 30 days after receipt by the Client of an invoice from Esusu accompanied by (if requested by Client) receipts and reasonable supporting documentation.

4.3 Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; and to the extent Esusu is required to pay any such sales, use, excise, or other taxes or other duties or charges, Client shall reimburse Esusu in connection with its payment of fees and expenses as set forth in this Section 4. Notwithstanding the previous sentence, in no event shall Client pay or be responsible for any taxes imposed on, or regarding, Esusu’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

4.4 All late payments shall bear interest at the lesser of (a) the rate of 1.5% per month and (b) the highest rate permissible under Applicable Law, calculated daily and compounded monthly. Client shall also reimburse Esusu for all reasonable costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees. As used herein, “Applicable Law” means, with respect to each Party, all federal, state, and local laws, ordinances, regulations, and orders that are applicable to such Party and the operation of such Party’s business and to this Agreement and any related Orders and such Party’s performance hereunder and thereunder, including, as and to the extent applicable, (a) The Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., (b) the Consumer Financial Protection Act of 2010 (“CFPA”), 12 U.S.C. § 5301 et seq., and (c) the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (collectively, “CCPA”).

5. Limited Warranty and Limitation of Liability

5.1 Esusu warrants that it shall perform the Services:(a) In accordance with the terms and subject to the conditions set out in the respective Order and this Agreement.(b) Using personnel of required skill, experience, and qualifications.(c) In a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.

5.2 Esusu’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows:(a) Esusu shall use commercially reasonable efforts to promptly cure any such breach; provided, that if Esusu cannot cure such breach within a reasonable time (but no more than 90 days) after Client’s written notice of such breach, Client may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 8.2.(b) In the event the Agreement is terminated pursuant to Section 5.2(a) above, Esusu shall within 30 days after the effective date of termination, refund to Client the portion of any Fees previously paid by Client as of the date of termination corresponding to the defective Services.(c) The foregoing remedy shall not be available unless Client provides written notice of such breach within 90 days after delivery of such Service to Client.

5.3 EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN SECTION 5.1, ABOVE, THE SERVICES AND ALL DELIVERABLES (AS DEFINED IN SECTION 6.2) ARE PROVIDED “AS IS,” AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED ​​TO THE FULLEST EXTENT PERMITTED BY LAW.

6. Intellectual Property

6.1 Each Party hereby grants the other Party the right to use such Party’s name, primary trademark and logo (“Brand Elements”) as reasonably necessary or required for the other Party to perform its respective obligations under the Agreement. Each Party shall obtain the other Party’s prior written approval of all materials using the Brand Elements. Without limiting the foregoing, Client hereby grants Esusu the right to use Client’s Brand Elements in marketing, sales, and public relations materials and other communications solely to identify Client as a customer of Esusu’s; provided that Client shall have the right to revoke permission of such use at any time, upon reasonable prior notice to Esusu. Neither Party shall depict the Brand Elements of the other Party in any manner or in any materials that would tend to denigrate, disparage, tarnish, present in a false light, or otherwise reflect negatively on the other Party, or any of the other Party’s products or services. Other than as expressly stated herein, neither Esusu nor Client shall use the other Party’s Brand Elements without the prior written permission of the other Party.

6. 2 All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Esusu in the course of performing the Services, including any items identified as such in the Order (collectively, the “Deliverables”), except for any Confidential Information of Client or client materials, shall be owned by Esusu. Esusu hereby grants Client a license to use all Intellectual Property Rights in the Deliverables on a non-exclusive, worldwide, non-transferable, non-sublicensable, and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables.

7. Confidentiality; Data Security

7.1 From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), information of Disclosing Party or its business that is labeled or identified as “confidential,” or which should reasonably be understood as confidential given the nature of the information and the circumstances of its disclosure (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source that, to the Receiving Party’s knowledge, was not legally or contractually restricted from disclosing such information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) the Receiving Party establishes by documentary evidence, was or is independently developed by Receiving Party without using any of the Disclosing Party’s Confidential Information.

7.2 The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information of like importance, but in no event with less than a reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except (i) as contemplated by this Agreement in order to exercise its rights or perform its obligations hereunder, and (ii) to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. For purposes of this Section 7 only, “Receiving Party’s Group” shall mean the Receiving Party’s corporate affiliates and its or their employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, attorneys, accountants, and financial advisors. In any event, the Receiving Party shall be responsible for any violation of this Section 7 caused by any member of the Receiving Party’s Group.

7.3 If the Receiving Party is required by Applicable Law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. In any event, upon the Disclosing Party’s request, the Receiving Party shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.

7.4 To the extent that Esusu is provided with access to the Personal Information of Client’s employees, customers or users in order to provide the Services, where Esusu is acting as a “processor” as such term or similar terms are defined under Privacy Laws, Esusu shall process such personal information in accordance with Esusu’s Data Processing Addendum (the “DPA”). As used herein, “Personal Information” and “Privacy Laws” shall have the meaning set forth in the DPA.

7.5 Each Party shall be responsible for maintaining the confidentiality of any log-in credentials provided or created for it by the other Party to access an account created under this Agreement. In the event a Party intentionally or unintentionally shares log-in credentials with a third party, such Party acknowledges and accepts full responsibility for any acts taken concerning the Services by such third party. Each Party agrees to promptly notify the other Party of any unauthorized use of log-in credentials or other breach of security.

8. Term, Termination, and Survival.

8.1 This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Orders unless sooner terminated pursuant to Sections 8.2 or 8.3. Unless otherwise specified in an Order, upon conclusion of the “Initial Term” set forth therein, such Order shall thereafter automatically renew for additional one year renewal terms (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either Party delivers written notice of non-renewal at least thirty 30 days prior to the end of the then-current Term. Fees charged under a Renewal Term shall be at Esusu’s then current standard fees, unless otherwise specified in the applicable Order. Esusu shall use commercially reasonable efforts to give Client at least 60 days’ prior notice (which may be sent by email) of any proposed changes in the Fees to be payable during the Renewal Term of any Order.

8.2 Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party (a) materially breaches this Agreement, and the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach, or such material breach is incapable of cure; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.3 In addition to all other remedies available under this Agreement or at law (which Esusu does not waive by the exercise of any rights hereunder), Esusu shall be entitled to suspend all or any portion of the Services if (a) Esusu is not paid when due any undisputed Fees or other amounts hereunder (i) and such failure continues for 10 business days after Client’s receipt of written notice of nonpayment; or (ii) more than three times in any six-month period, (b) Esusu believes in good faith that Client has misrepresented, omitted, or falsified any material information or documentation provided to Esusu, (c) Esusu reasonably suspects fraudulent or other suspicious activity related to Client or its use of the Services, (d) Esusu determines, in its reasonable discretion, that suspension is required to comply with Applicable Law, or (e) Client’s use of the Services poses a security risk to the Services or any third party, may adversely impact the Services or the systems or data of Esusu or any third party, or may subject Esusu or any third party to liability. Esusu shall not suspend Services under subsection (a) related to Fees disputed by Client in good faith under Section 4.1, pending the resolution of such dispute. Any suspension under subsections (b), (c), or (e) shall remain in effect until the underlying issue has been resolved to Esusu’s reasonable satisfaction. In any event, Esusu shall not be liable for any damages, losses, or liabilities arising from or related to any suspension of Services pursuant to this Section 8.3.

8.4 The rights and obligations of the Parties set forth in this Section 8.4 and in Sections 7.1 through 7.3, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. Records relating to the Services provided hereunder shall be kept in accordance with generally accepted principles of due diligence and may be retained by Esusu following the transaction as long as necessary for the purpose of audit and compliance with Applicable Law.

9. Limitation of Liability

9.1 EXCEPT FOR THE EXCLUSIONS SET FORTH IN SECTION 9.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY EXTRAORDINARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE. FOR PURPOSES OF THIS AGREEMENT, “EXTRAORDINARY DAMAGES” MEANS ANY AND ALL INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS OPPORTUNITY, BUSINESS INTERRUPTION, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SIMILAR ECONOMIC LOSS, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BOTH PARTIES HEREBY WAIVE ANY CLAIMS FOR EXTRAORDINARY DAMAGES AGAINST THE OTHER PARTY.

9.2 EXCEPT FOR THE EXCLUSIONS SET FORTH IN SECTION 9.3 AND AS OTHERWISE PROVIDED BELOW, EACH PARTY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO ESUSU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN THE EVENT OF A BREACH BY ESUSU OF SECTION 7.4, ESUSU’S MAXIMUM AGGREGATE LIABILITY FOR SUCH BREACH SHALL NOT EXCEED THREE (3) TIMES THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CLIENT TO ESUSU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

9.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE LIMITATIONS AND EXCLUSIONS OF LIABILITY SET FORTH IN SECTIONS 9.1 AND 9.2 SHALL NOT APPLY TO: (A) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; (C) EITHER PARTY’S INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (D) DAMAGES ARISING FROM EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, FRAUD, OR INTENTIONAL WRONGFUL ACTS; (E) DAMAGES ARISING FROM EITHER PARTY’S NEGLIGENT ACTS OR OMISSIONS RESULTING IN BODILY INJURY, DEATH, OR DAMAGE TO TANGIBLE PERSONAL PROPERTY; (F) EITHER PARTY’S VIOLATION OF APPLICABLE LAW; OR (G) EITHER PARTY’S RESPECTIVE PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE FOREGOING EXCEPTIONS ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT IN THEIR ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

10. Indemnification.

10.1 Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold harmless the other Party and its respective officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, (collectively, “Losses”), arising out of or relating to any claim, suit, action, or proceeding of a third-party (each, an “Action”) arising out of or resulting from the Indemnifying Party’s actual or alleged (a) gross negligence or willful misconduct, (b) breach of any representation or warranty set forth in this Agreement, (c) breach of any material covenant or obligation set forth in this Agreement, (d) infringement of any United States patent or any copyright or misappropriation of any trade secret, or (e) violation of Applicable Law.

10.2 The Indemnified Party shall promptly notify the Indemnifying Party in writing of any Action and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense. The Indemnifying Party shall promptly take control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same at its sole cost and expense. The Indemnified Party’s failure to perform any obligations under this Section 10.2 shall not relieve the Indemnifying Party of its obligations under this Section 10.2 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense. The Indemnifying Party shall not settle or compromise any claim for which indemnification is sought under this Agreement without the prior written consent of the Indemnified Party (such consent not to be unreasonably withheld, conditioned, or delayed), unless such settlement or compromise: (i) includes an unconditional release of the Indemnified Party from all liability arising out of such claim; (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party; and (iii) does not contain any equitable order, judgment, or term that in any manner affects, restrains, or interferes with the business of the Indemnified Party or any of the Indemnified Party’s affiliates.

10.3 Notwithstanding anything to the contrary in this Agreement, the Indemnifying Party is not obligated to indemnify, hold harmless, or defend the Indemnified Party against any claim (whether direct or indirect) if such claim or corresponding Losses arise out of or result from, in whole or in part, (a) the Indemnified Party’s own (i) negligence or more culpable act or omission (including recklessness or willful misconduct), or (ii) violation of Applicable Law, or (b) in the case of Section 10.1(d), portions or components of the Services (i) not supplied by the Indemnifying Party, (ii) made in whole or in part in accordance with the Indemnified Party’s specifications, (iii) that are modified after delivery by the Indemnifying Party, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where the Indemnified Party continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the Indemnified Party’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Esusu to be infringing, Esusu may, at its option and expense (a) replace or modify the Services to be non-infringing (provided that such modification or replacement contains substantially similar features and functionality), (b) obtain for Client a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide a refund of any prepaid, unused fees for the Services.

11. Force Majeure

No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any payment obligations for Services already rendered), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control (“Force Majeure Event(s)”), which may include, but not be limited to: (a) acts of God; (b) floods, fires, earthquakes, epidemics, pandemics or explosions; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall use commercially reasonable efforts to (i) give notice within 10 business days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue, and (ii) to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section 11, the other Party may thereafter terminate this Agreement upon 30 days’ written notice.

12. Entire Agreement.

This Agreement, including and together with any related Orders, applicable Addendums, exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this MSA and any applicable Addendums and the terms and conditions of any related Order, the terms and conditions of this MSA and such Addendums shall supersede and control unless the Order expressly identifies both the provision within this MSA or such Addendum that is being overridden by the Order and the provision within the Order that will prevail. No browse-wrap, shrink-wrap, click-wrap or other non-negotiated terms and conditions that are presented to Esusu by any technology platform or system in connection with its provision of the Services will constitute a part of or amendment to this Agreement or binding on Esusu for any purpose. As between the Parties, all such other terms and conditions shall have no force and effect and are deemed rejected by Esusu, even if access to or use of any technology or system requires affirmative acceptance of such terms and conditions.

13. Notices.

Unless otherwise provided herein, all legal notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) (a) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section), and (b) must be delivered by personal delivery (effective when delivered with written confirmation of receipt), nationally recognized overnight courier (effective when received), or certified or registered mail (effective on the third day after the date mailed)).

Notwithstanding the foregoing, Client agrees to receive notices and other communications from Esusu electronically via email to the Client Representative or by posting or delivering notices, updated terms or other notifications through Esusu’s websites, web portals, or mobile applications.

14. Severability.

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to reflect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15. Amendments.

Any amendment or modification to this Agreement or any Addendum requires mutual written consent of both Parties, except that Esusu may amend or modify this Agreement or any Addendum to comply with Applicable Law or to reflect operational changes not specific to Client, provided that if such amendment or modification materially and adversely affects Client’s rights or increases Client’s obligations under this Agreement, Client shall have the right to terminate this Agreement upon written notice to Esusu within 30 days after notice of such amendment or modification is providedin accordance with Section 13 (Notices).

16. Waiver.

No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

17. Assignment.

Neither Party shall assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld, withdrawn, conditioned or delayed; provided, however, that Esusu may transfer and assign its rights and obligations under this Agreement without consent (a) to any corporate affiliate, or (b) in connection with a merger, acquisition, reorganization, or a sale of all or substantially all of its business or assets to which this Agreement relates. No assignment or delegation shall relieve the assigning Party of any of its obligations under this Agreement. Any purported assignment or delegation in violation of this Section 17 shall be null and void.

18. Successors and Assigns.

This Agreement is binding on and shall inure to the benefit of the Parties to this Agreement and their respective successors and permitted assigns.

19. Relationship of the Parties.

The relationship between the Parties is that of independent contractors. The details of the method and manner for performance of the Services by Esusu shall be under its own control, Client being interested only in the results thereof. Esusu shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give the Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

20. No Third-Party Beneficiaries.

This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

21. Choice of Law and Forum.

This Agreement and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, shall be governed by, and construed in accordance with, the laws of the State of New York, United States of America, without giving effect to the conflict of laws provisions thereof to the extent they would require or permit the application of the laws of any other jurisdiction. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising out of or relating to this Agreement, including contract, equity, tort, fraud, and statutory claims, in any forum other than the U.S. District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction, the courts of the State of New York sitting in New York County, New York, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

22. WAIVER OF JURY TRIAL.

EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE OUT OF OR RELATE TO THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

23. Counterparts

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Electronic signatures, including signatures delivered by facsimile, PDF, or any electronic signature complying with the U.S. federal ESIGN Act of 2000 (e.g., DocuSign or Adobe Sign), shall be deemed original signatures for all purposes under this Agreement, and shall have the same legal effect, validity, and enforceability as a manually executed signature.