April Software License Agreement

This Master Services Agreement (“Agreement”) is made and entered between April Tax Solutions Inc., a Delaware corporation with an address at 12 W 27th Street Floor 7, New York, NY 10001 (“April”), and Customer (as defined below). April and Customer are each a “Party” and collectively, the “Parties” to this Agreement.

1. Definitions.

1.1. “Affiliate” means, with respect to a Party, any entity which owns or controls, is under common ownership or control with, or is owned or controlled by, that Party.

1.2. “Agreement” means this Master Services Agreement, including any attachments, exhibits, addenda, and other terms incorporated by reference herein.

1.3. “Applicable Laws” means all laws, regulations, rules, codes, statutes, ordinances, and orders, that apply to April, the Offering, the Application, or Customer or its End Users’ use of the foregoing, including but not limited to Section 7216, those governing the use of Tax Return Information, and those regarding the export of data or software to and from the United States or other relevant countries.

1.4. “Application” means only the user interface to the Customer’s interactive, financial technology and/or services application created by Customer using the April Software and/or April Platform, if any. Applications may include April’s runtime components.

1.5. “April Marks” means April’s trade name and logos.

1.6. “April Platform” means April’s the cloud-based infrastructure, tax product software, systems, networks, and associated services provided and managed by April to enable Customer to develop, deploy, host, and manage Applications, including, without limitation, the SDK and all Software, APIs, tools, databases, storage, virtual machines, and other resources made available by April at www.getapril.com.

1.7. “Confidential Information” means all information disclosed or made available by a Discloser to a Recipient in connection with this Agreement that is marked or identified as confidential at the time of disclosure or shortly thereafter, or which a reasonable person receiving such information would know or suspect may by sensitive, confidential, or proprietary based on its nature, content, or the circumstances of disclosure. Confidential Information includes but is not limited to trade secrets, know-how, methods, software, specs, coding, and other financial, business, customer/user, strategic, regulatory or technical information, and Tax Return Information.

1.8. “Customer Data” means all information, data, materials, and documents, directly or indirectly provided by Customer to April to enable Customer’s use of the Offering, including but not limited to End User information.

1.9. “Customer Marks” means the Customer’s name, trade and service names, trademarks, logos, and other distinctive brand features protected by intellectual property laws (if any).

1.10. “DPA” means the Data Processing Agreement available at https://www.getapril.com/data-processing-agreement.

1.11. “Fees” means the consideration payable by Customer to April in accordance with the terms of each Order Form.

1.12. “End Users” means the persons that access or use the April Offering by, for, on behalf of, or through Customer, including but not limited to Customer’s officers, employees, and third-party customers.

1.13. “Notices/Consents” means the portions of the Software that provide legal or regulatory notices to, or request waivers or consents from, End-Users.

1.14. “Offering” means the April Platform and Services made available to Customer by April as outlined in each Order Form.

1.15. “Order Form” means each individual order entered by April and Customer for access to and use of the April Platform and/or Services pursuant to the terms of this Master Services Agreement.

1.16. “Privacy Policy” means the Privacy Policy available at https://www.getapril.com/privacy-policy.

1.17. “Section 7216” means Section 7216 of the Internal Revenue Code of 1986, as amended.

1.18. “SDK” means the software development kit (including without limitation, the April SDK software library, binary executables, packaged APIs and code samples, but not including April Platform source code), in solely the form and format provided by April.

1.19. “Services” means the services provided by April to Customer as outlined in each Order Form.

1.20. “Software” means any computer program, application, or executable code (excluding source code) provided by April to Customer, including, but not limited to, the SDK, embedded links, and any updates, modifications, or enhancements thereof, in the form provided by April.

1.21. “Tax Return Information” has the same meaning as that term is defined in 26 C.F.R. § 301.7216-1(b)(3).

1.22. “Territory” means the location(s) identified in each Order Form.

1.23. “Customer” means the legal entity that is bound to this Agreement by a person of legal age and having legal authority to bind the legal entity.

2. Performance.

2.1. Offering. April provides access to its proprietary tax services Platform and Services on the terms and conditions set forth in the Agreement and on the condition that Customer accepts and complies with them.

2.2. Access and Use. Subject to and conditioned on Customer’s payment of Fees and strict compliance with the terms and conditions in this Agreement and the applicable Order Form, April grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the components of the April Platform outlined in, and during the term of, each applicable Order Form in the form in which it is made available by April from time to time. The right to access and use the April Platform as described in this Section is exercisable solely by and through Customer’s End Users. No rights or licenses are granted to Customer or its End Users except as expressly set forth in the Order Form and the Agreement.

2.3. Platform Use Restrictions. Customer shall not, and shall require its End Users not to, at any time, directly or indirectly, do any of the following:

2.3.1. use the April Offering in violation of any Applicable Laws, including, but not limited to, any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any person;
2.3.2. use the April Offering or any Software component thereof for any use or purposes beyond the scope of access and use granted in the Order Form;
2.3.3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code or Software component of the April Platform or any part thereof;
2.3.4. remove, delete, alter, or obscure any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the April Platform;
2.3.5. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the April Offering, or any features or functionality thereof, to any third party for any reason except its authorized End Users, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
2.3.6. modify, copy, disclose, adapt, or make derivative works of the April Platform or any Software component of the April Platform, or any part thereof; or
2.3.7. upload or submit to the April Platform or otherwise provide April with any information, data, or materials that includes any personal or other information that relates, describes, identifies or is reasonably capable of being associated with or could reasonably be linked, directly or indirectly, to a particular individual, or any Tax Return Information, unless Customer has received written permission from such related parties to disclose such information, data, or materials, to April, whether directly or through use of the April Platform.

2.4. Compliance.

2.4.1. Consents and Other Limitations. Customer acknowledges that: (i) certain functionality or processes in the Software, as well as the provision of certain End User information by Customer to April, may only be executed, allowed, or provided, as applicable, if the End User receives and agrees to certain Notices/Consents, including without limitation Notices/Consents related to Section 7216; (ii) End Users may refuse to accept or to agree to at least certain such Notices/Consents; and (iii) certain functionality or processes in the Software, such as the ability to process End User tax returns for a given state or jurisdiction, may otherwise be generally limited or unavailable due to circumstances outside of April’s control (including but not limited to End Users’ refusal to agree to certain Notices/Consents).

2.4.2. Dependencies. Customer acknowledges and agrees that April also may decline to allow any and all functionality or processes for given End Users. In addition, Customer acknowledges and agrees that any and all functionality or processes for given End Users may otherwise be unavailable for reasons beyond April’s control (for example, if a given state or jurisdiction declines to accept the filing of tax returns for given End Users). In such cases, April will promptly notify Customer of any such unavailability to the extent permitted by law Customer further agrees that April may stop (permanently or temporarily) providing the Software (or any features within the Software) to Customer or to its End Users generally at April’s sole discretion, without prior notice, for security, reputational, legal, or regulatory reasons, or as otherwise agreed with Customer.

2.4.3. Use of Applications. Customer agrees to use the Software and write Applications only for purposes that are expressly authorized by (i) the Agreement and (ii) Applicable Laws and generally accepted practices or guidelines in relevant jurisdictions. Customer warrants and represents throughout the Term of the Agreement that its use of the Software and its Application(s) will comply with all Applicable Laws.

2.4.4. Modifications. Customer agrees that the form, functions, and nature of the Software may change without prior notice and that future versions of the Software may be incompatible with Applications developed on previous versions of the Software. Notwithstanding the foregoing, April will not make any modifications that materially diminish the functions of the Software without advance written notice to Customer.

2.5. Services. Subject to and conditioned on Customer’s payment of Fees and strict compliance with the terms and conditions in the applicable Order Form, April will provide the Services to Customer in a good professional and workmanlike manner in accordance with Applicable Laws. Customer will promptly provide all information, feedback, and cooperation reasonably necessary for April to perform the Services, or otherwise requested by April. April shall not be liable for any delay or failure in performance resulting from Customer’s failure to provide timely information, feedback, or cooperation. In its performance of the Services, April may rely on any information, representations, data, or materials provided by Customer, and shall not be required to make any inquiries or other efforts to verify the accuracy, truthfulness, or lawfulness thereof.

2.6. Fees and Payment. Customer shall pay April the Fees set forth in each Order Form. Unless otherwise stated in the applicable Order Form:

2.6.1. Payment of all Fees is due within thirty (30) days of the date of each invoice.
2.6.2. Fees are stated and will be paid in U.S. dollars, and are non-refundable.
2.6.3. Overdue and undisputed invoices will be subject to a late payment fee of the lesser of 2.00% per month or the maximum allowed by applicable law.
2.6.4. April may update its fees no more than once per calendar year upon at least thirty (30) days advance written notice to Customer.
2.6.5. If any amount owed by Customer to April is thirty (30) or more days overdue, April may, without limiting April’s other rights and remedies, (a) accelerate Customer’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable; and (b) Upon fifteen (15) days’ advance written notice to Customer, suspend access to and use of the Offering by Customer and its End Users until such amounts are paid in full.
2.6.6. To the extent Customer participates in the direct billing model, pursuant to which April invoices End Users directly, then Customer acknowledges that April will invoice Customer for any additional payment processing fees or costs (e.g., merchant, credit card, ACH, gateway or interchange fees), it incurs as a result of such billing model.”

2.7. Taxes. If Applicable Law requires any taxes to be collected or remitted in connection with the Offering or Customer’s use thereof, such taxes will be added to applicable Fees, and Customer will be responsible for the payment thereof unless Customer provides April with an applicable and valid exemption certificate. To avoid doubt, April will be responsible for the reporting and payment of all taxes on its net revenue.

2.8. Third Party Services. Customer acknowledges and agrees that April may delegate performance of the Services, in whole or in part, to its Affiliates. April shall have no responsibility or liability for any acts or omissions of such Affiliates. To the extent that any claim, loss, damage, or liability arises from the acts or omissions of an April Affiliate, (i) Customer’s sole recourse for any loss, damage, or liability arising from Services performed by an Affiliate shall be against such responsible Affiliate(s); and (ii) Customer will indemnify and hold harmless April from such claim, loss, damage, or liability.

3. Term and Termination.

3.1. Term. The Agreement shall become effective on the Effective Date and shall remain in effect until terminated in accordance with its terms. Each Order Form shall begin and end on the terms outlined in the Order Form. Unless otherwise specified in the applicable Order Form, each Order Form shall automatically renew for successive periods of twelve (12) months from the date of expiration thereof unless either Party provides notice of non-renewal to the other Party at least thirty (30) days prior to the expiration date of the Order Form.

3.2. Termination

3.2.1. Either party may terminate this Agreement (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of such breach from the non-breaching party (ten (10) days in the case of non-payment of Fees); or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party’s property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
3.2.2. Either party may terminate an Order Form (a) for the reasons outlined in Section 3.3; or (b) as otherwise outlined in the applicable Order Form.

3.3. Effects of Termination. Termination of this Agreement will automatically terminate any Order Forms then in effect between the Parties provided, however, that the expiration or termination of any Order Form will not terminate this Agreement. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except that (i) Customer shall stop using the Software, return or destroy all copies of the April Platform (and all records, materials and information developed therefrom) and permanently erase the Software from all storage media, (ii) provided that the Agreement is not terminated due to breach by Customer, Customer may continue to use and sublicense any Application developed prior to termination in accordance with the term and conditions of the Agreement, (iii) all Fees that accrued prior to the effective date of termination shall remain due and payable; and (iv) the provisions of Sections 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranty Disclaimer), 8 (Limitation of Liability), 9 (Indemnification), 10 (Miscellaneous) and this Section 3.3 shall also survive.

4. Data.

4.1. Data Processing. The Parties agree to April’s DPA, which is incorporated herein by reference. Customer acknowledges and agrees that it has reviewed the DPA, which may be updated from time to time in accordance with its terms. Customer will review the DPA from time to time and promptly notify April if Customer is not able to access or otherwise review the DPA at the relevant URL or link.

4.2. Customer Data. Customer may provide Customer Data to April in connection with its use of the Offering, and/or April’s provision of the Offering or performance of the Services. Customer represents and warrants to April that it owns or licenses, and is solely responsible for, the Customer Data, and that April’s possession or use of the Customer Data in accordance with this Agreement and any Order Form will not infringe any third-party intellectual property, privacy, or statutory rights, breach any term of this Agreement, or violate Applicable Laws. Subject to the April’s Privacy Policy, Customer hereby grants April and its Affiliates a perpetual, revocable, worldwide, royalty-free, and sublicensable, license to use, access, copy, download, reproduce, modify, disseminate, create derivative works from, Process (within the meaning of the DPA), and otherwise use and display, Customer Data, in each case as necessary to develop, improve, provide, commercialize, and support, the Offering and/or Application. Customer further represents and warrants that it has the right and authority to grant Customer the rights to Customer Data as set forth in this Section 4.2.

4.3. Authorization and Data Compliance. Customer represents and warrants that: (i) Customer has the necessary authority, consents, licenses, or other permissions necessary to provide any and all End User information to April, including but not limited to End User information provided to April directly or indirectly through the Application or April Platform, in accordance with all Applicable Laws, and (ii) to the extent that Customer receives any Tax Return Information with respect to an End User directly or indirectly through the Application or the Offering, Customer (A) shall maintain an “adequate data protection safeguard” as defined in Section 5.07 of Revenue Procedure 2013-14, 2013-3 I.R.B. 283 with respect to such Tax Return Information, and (B) shall only disclose and use such Tax Return Information as permitted by Section 7216 and the Treasury Regulations thereunder.

5. Proprietary Rights.

5.1 Intellectual Property Ownership. The April Platform is licensed, not sold. The April Platform is protected by the copyright laws of the United States and international copyright treaties. Except for the limited rights and licenses expressly granted hereunder and in any Order Form, no other license is granted (by implication, estoppel or otherwise), no other use is permitted, and April (and third-party licensors) shall own and retain all rights, title and interests (including intellectual property rights) in and to the Offering and the April branding. As between April and Customer, April owns all owns information, data, materials, and know-how, used in or produced by its performance of the Offering. Any information, data, materials, and know-how, used by April in or produced by its performance of the Services which are not completely original works created exclusively for Customer are the sole property of April. Subject to the terms of the Agreement and during the term of the Order Form applicable to the relevant Services, April grants to Customer a limited, revocable, worldwide, non-exclusive, non-assignable, non-sublicensable, royalty-free right to use information, data, and materials provided to Customer by April in the performance of the Services solely in connection with Customer’s use of the Services; provided the forgoing license may be revoked immediately upon written notice if Customer or its End-User(s) breach this Agreement or Order Form.

5.2 Non-Assertion by Customers. Customer agrees that it will not, and shall ensure that its End User do not, do anything that is inconsistent with, or which may prejudice, April’s intellectual property rights and interests in the April Platform, including but not limited to asserting any copyright or patent rights related to the Software or any Applications against April, April’s Affiliates, or each of the foregoing’s officers, employees, distributors, or customers, or other licensees of the April Platform. Customer agrees that Customer will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the April Platform.

5.3 April Marks. Subject to the terms and conditions of the Agreement, April hereby grants Customer an irrevocable, non-exclusive, non-transferable, royalty-free license during the term of the Agreement to use the April Marks solely for the purpose of marketing and providing the Application and April Platform to its End Users. Prior to launch or allowing for public access, Customer shall provide April with a reasonable opportunity to review, comment on, and approve Customer’s proposed use of the April Marks in any Application, marketing materials, and any other materials. At any time, April may inspect any materials that contain any April Marks, and upon the request of April, Customer shall promptly remove all such materials that are unacceptable to April (including but not limited to materials which make misrepresentations about the April Platform as determined in April’s sole discretion) or modify all such materials to become acceptable to April. Nothing contained in the Agreement shall be construed to vest in Customer any right, title or interest in or to the April Marks or in the goodwill now or hereafter associated therewith, and all goodwill generated from Customer’s use of the April Marks shall inure to the sole and exclusive benefit of April. Except for the limited rights and licenses expressly granted hereunder, no other rights or licenses are granted, and no other use is permitted. Customer will immediately cease all use of the April Marks upon termination of this Agreement. Nothing in the Agreement gives Customer the right to use the April’s trade names, trademarks, service marks, logos, domain names, or other distinctive brand features, except as expressly set forth in this Section.

5.4. Customer Marks. Subject to the terms and conditions of this Agreement, Customer grants April a non-exclusive, royalty-free, worldwide, and irrevocable license during the term of this Agreement to use the Customer Marks to provide and promote the Offering, including but not limited to on April’s website. April shall promptly remove the Customer marks from any promotional materials following the earlier of written notice from Customer or termination of this Agreement.

5.5 Feedback. During its use of the Offering, Customer and/or End Users may (but is not required to) provide feedback to April (“Feedback”). Feedback includes but is not limited to modifications, corrections, improvements, and extensions to the Software or April Platform that Customer or any of its End Users may suggest to April, and information about the Customer’s and/or End Users’ experience with respect to the implementation, interoperability, use, and commercialization of the Software, April Platform, and, to the extent involving the foregoing, the Application. Customer hereby assigns all of its rights, title, and interest in and to any intellectual property in any Feedback provided to April. April is free to use such Feedback irrespective of any other obligation or limitation between April and Customer governing such Feedback. Customer will do and sign all things necessary to evidence or perfect April’s rights, title and interest in the Feedback as may be requested by April from time to time.

6. Confidentiality.

As used herein Each Party (each a “Discloser”) may disclose Confidential Information to the other Party (the “Recipient”) in connection with this Agreement. A Recipient may not use any Confidential Information of the Discloser except for the purpose(s) for which it was disclosed. A Recipient shall hold, protect, and keep confident the Discloser’s Confidential Information and use the same measures used to protect its own Confidential Information of similar sensitivity and import to protect the confidentiality of the Confidential Information (but in no event less than reasonable measures), and must not disclose Confidential Information of the Discloser to any third party without the advance written consent of the Discloser except to its and its Affiliates’ employees, contractors, legal and accounting representatives, and agents, (collectively, “Representatives”) that (i) have a “need to know” in connection with the Recipient’s permitted use of the Confidential Information; (ii) are informed of the confidential nature of the Confidential Information; and (iii) are bound by legal or contractual obligations of confidentiality at least as protective of the Discloser’s Confidential Information as the terms of this Agreement. The foregoing obligations shall not apply to any Confidential Information that Recipient can demonstrate is (a) already known by it without restriction at the time of Disclosure, (b) rightfully furnished to it without restriction by a third party not in breach of any obligation to Discloser, (c) generally available to the public without breach of the Agreement or (d) independently developed by it without reference to or use of any of Discloser’s Confidential Information. Each party shall be responsible for any breach of confidentiality by its Representatives. Promptly upon Discloser’s request at any time, Recipient shall, and shall procure that its Representatives shall, in accordance with the Discloser’s instructions, return or destroy all of Discloser’s Confidential Information in its possession or control, including but not limited to all information, records, copies, summaries, analyses and materials developed therefrom. In the event actual or suspected unauthorized use or disclosure of Confidential Information, the Recipient shall immediately notify Discloser. Notwithstanding the foregoing, Recipient may disclose Confidential Information to the extent required to comply with Applicable Laws or orders of courts or administrative authorities, provided that Recipient gives Discloser prompt written notice of such requirement and cooperates with Discloser in any lawful effort to resist, limit or protect such disclosure.

7. WARRANTY DISCLAIMER

USE OF THE OFFERING IS AT CUSTOMER’S SOLE RISK. THE APRIL PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. USE OF THE SOFTWARE, APRIL PLATFORM, THE SERVICES, AND ANY MATERIAL OTHERWISE OBTAINED THROUGH OR DERIVED THEREFROM IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPUTER SYSTEMS OR OTHER DEVICES, LOSS OR CORRUPTION OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS, OR SERVICES, THE RESULTS FROM OR IN CONNECTION WITH ITS USE OF THE OFFERING. APRIL DOES NOT WARRANT THAT THE APRIL PLATFORM WILL BE COMPATIBLE WITH ANY APPLICATIONS OR ENVIRONMENTS OR OTHERWISE MEET CUSTOMER’S REQUIREMENTS, OR THAT OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. APRIL FURTHER EXPRESSLY DISCLAIMS (FOR ITSELF, ITS AFFILIATES, AND ITS LICENSORS) ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, INTEGRATION, QUIET ENJOYMENT, NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE IN TRADE.

8. LIMITATION OF LIABILITY

EXCEPT IN CONNECTION WITH CUSTOMER’S INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS, OR GOODWILL, OR (II) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE FEES PAID BY CUSTOMER TO APRIL IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LOSS OR LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

9. Indemnification

9.1. Customer Obligations. To the maximum extent permitted by law, Customer shall defend, indemnify and hold harmless April, its Affiliates and each of their respective directors, officers, employees, and agents, from and against any and all claims, demands, actions, suits, or proceedings, (collectively, “Claims”) as well as any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees, court costs, and the costs of any investigations) (collectively, “Losses”) arising from or in connection with (i) Customer’s or its End Users’ use of the Offering except as expressly authorized by the Agreement; (ii) any Applications (including without limitation, any claim that any Application infringes any third party intellectual property, privacy, or statutory rights); (iii) any violation of Applicable Laws by Customer or its End Users; (iv) third party claims alleging that April’s use of Customer Data infringes or violates their rights under Applicable Laws; or (v) Customer’s or its End Users’ negligence or willful misconduct. April may, at its own cost and expense, mount an independent defense for any claim for which Customer indemnifies April under this Section 9. Customer shall not settle any claim against April or make an admission of wrongdoing without April’s prior written consent.

9.2. April Obligations. April shall defend, indemnify and hold harmless Customer from and against any and all Losses arising from third-party Claims against Customer that the unmodified April Platform as provided by April and used strictly in accordance with the Agreement infringes the intellectual property rights of such third party; provided, however, that April will have no obligation to indemnify, defend, or hold harmless Customer for any Claims or Losses to the extent they arise from or in connection with Customer’s use of the April Platform in combination with any information, data, materials, or intellectual property, not provided by April if the infringement would have been avoided if not for such combination. Notwithstanding the foregoing, if the April Platform becomes or, in April’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, April may, at its option (i) obtain for Customer the right to continue using the April Platform; or (ii) replace or modify the April Platform so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not commercially reasonable for April, then it may terminate the Agreement upon written notice to Customer and refund to Customer any prepaid fees, pro-rated for the remainder of the prepaid period. Notwithstanding the foregoing, April will have no liability or obligation to Customer with respect to any Claim involving allegations concerning (i) any use of the Offering not strictly in accordance with the Agreement, (ii) modifications of the April Platform or combinations thereof with components not provided by April, (iii) Customer’s continuing allegedly infringing activity after being notified thereof; (iv) Customer’s continuing use of any version of the April Platform after being provided modifications that would have avoided the alleged infringement; or (v) April’s performance of the Services if the basis of the Claim would not have arisen but for Customer’s instructions. The foregoing states the entire liability of April, and Customer’s exclusive remedy, with respect to any actual or alleged violation of third party rights by the Offering or any part thereof or by its use or operation.

10. Miscellaneous

10.1. Entire Agreement. The Agreement, together with each Order Form, the DPA, and Privacy Policy, constitutes the entire legal agreement between Customer and April and governs use of the Offering, and completely replaces any prior agreements between Customer and April in relation to the Offering, whether oral or written. The Agreement is in English only. No version of the Agreement in another language shall be binding or of any effect. Any conflict or inconsistency between this Agreement, an Order Form, DPA, Privacy Policy, or other order, exhibit, addendum, or other agreement between the Parties shall be resolved in the following order of precedence: (1) This Agreement; (2) The DPA; (3) An Order Form (including any attachments or exhibits thereto); (4) and other agreements between the Parties.

10.2. Changes. April may update this Agreement from time to time. Updated versions of the Agreement will be effective upon written notification by April or by becoming available at the webpage presently visited. Customer must review the online Agreement from time to time and notify April if Customer is not able to access or otherwise review it at the relevant URL or link. No other changes to the Agreement are valid and binding unless agreed to and accepted by the parties in writing.

10.3. Relationship of the Parties. The Parties are independent contractors under this Agreement. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind April in any respect whatsoever.

10.4. Waiver. No provision of right, power or privilege under the Agreement shall be deemed to have been waived by any act, delay, omission or acquiescence on the part of any Party, its agents or employees, but only by an instrument in writing signed by an authorized representative of each Party. No waiver by any Party of any breach or default of by the other Party shall be effective as to any other breach or default, whether of the same or any other provision and whether occurring prior to, concurrent with, or subsequent to the date of such waiver.

10.5. Severability. If any provision of the Agreement is held to be invalid, illegal or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that the Agreement otherwise remains in full force and effect and enforceable.

10.6. Assignment. The Agreement and the rights granted hereunder may not be assigned or transferred, by operation of law or otherwise, by Customer, in whole or in part, without the prior written consent of April. The Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties. Notwithstanding the foregoing, April may assign or transfer this Agreement and any Order Form(s) to a successor in interest upon at least thirty (30) days advance written notice to Customer in connection with any merger, acquisition, consolidation, divestiture, change of control, or sale of all or substantially all of April’s business or assets.

10.7. Jurisdiction; Venue. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America, without regard to its conflicts of law provisions. The sole jurisdiction and venue for actions related to the Agreement will be the state or federal courts located in New York, New York USA and both parties’ consent to the jurisdiction of such courts with respect to any such action. If any Party bring any suit or action against the other for relief, declaratory, or otherwise, arising out of this Agreement, the prevailing Party shall have and recover against the other Party, in addition to all court costs and disbursement, such sum as the Court may adjudge to be reasonable attorneys’ fees.

10.8. Export Control. Notwithstanding anything herein to the contrary, Customer may not provide to any person or export or re-export or allow the export or re-export any portion of the April Platform, Application, or Offering, or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders.

10.9 Notices. Any notices must be sent to the address in the first paragraph of this Agreement, and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and shall be deemed received upon the earlier of three (3) business days following mailing, or notice of actual delivery.

10.10. Force Majeure. April is not responsible for delays, losses, outages, errors or other performance problems that Customer may experience: (i) that are caused by or result from any acts or omissions of Customer; (ii) that are caused by or result from any defects with Customer equipment or facilities or the inaccuracy, illegality, or incompleteness of Customer Data; (iii) caused by the actions or inactions of third parties that impair or disrupt Customer’s access to the internet; (iv) during an event of force majeure; (v) during emergency maintenance for which April has provided Customer with prior notice of and is required to perform emergency corrective actions, or (vi) during scheduled downtime.

10.11. No Construction Against Drafter. The Parties represent that they have read and understand the terms and conditions of this Agreement and acknowledge and agree that any construction of this Agreement shall not be made against the drafter of the Agreement.