Pineapple Academy Referral Partner Agreement

The following terms and conditions apply to Pineapple Academy Referral Partners:

1. Referral Partner Appointment.

“Addendum” means any addendum provided to Customer containing additional terms governing Customer’s use of the Service.

“Content” means any content, including but not limited to video and audio (including sound or voice recordings and musical recordings embodied in the video or audio), images, data, text, and any other works of authorship or other works Posted to the Service.

“Content Creator” means a Customer who may Post Content on the Service, as further set forth in a Proposal.

“Content Criteria” means the criteria set forth at pineappleacademy.com/content-criteria, as updated from time to time or further set forth in a Proposal.

“Content Reseller” means a Customer who may make Content available to Content Reseller’s customers.

“Hosting Fees” means fees for Posting Content on the Service, in the amounts and frequency set forth on Proposal, as updated from time to time.

“Materials” means the visual interfaces, graphics, design, compilation, information, data, computer code (including source code and object code), products, software, services, and all other elements of the Service provided by PA, including any Content provided by us.

“Off-Platform Hosting” means hosting and distributing Content on one or more third party services.

“Outbound Content Addendum” means the addendum attached hereto containing additional terms for Content Resellers.

“Post”, "Posting", or "Posted" means submit, upload, publish, or otherwise make available.

“Proposal” means PA’s ordering document specifying the level of access to the Service that Customer will receive.

“Service Reseller” means a Customer who may resell the Service to Reseller’s customers.

“Reseller Addendum” means the Addendum containing additional terms for Service Resellers.

“Revenue Share” means a percentage of the total net revenues of the fees paid to PA which are attributable to Viewed Time of a Content Creator’s Content by Third-Party Users.

“Service” means PA’s proprietary hosting platform for e-learning courses.

“Subscription Start Date” means the date Customer receives access to the Service as set forth in the Proposal.

“Third-Party Users” means users of the Service (or in the case of Off-Platform Hosting, a third party service) who are not Customer’s employees, representatives, agents, or contractors.

“Usage Data” means information generated from the use of the Service, such as technical logs, duration of streams and number of impressions generated by the streams of Content, and data and learnings about Customer’s use of the Service, including use of the Service by Customer’s employees, representatives, agents, or contractors.

“Viewed Time” mean the number of times a user, including any Third-Party User, accesses Content either on the Service or via a Content Reseller.

2. SERVICE

2.1. Permitted Use by Customers. During the Term (as defined in Section 7.1), subject to Customer’s complete and ongoing compliance with this Agreement, PA grants Customer a limited, non-exclusive, non-transferable, non-sublicensable license to access and use the Service, including any Materials provided by PA. Customer will be able to share any Content as described in the license restrictions column in the Proposal.

2.2. Content Creators. If Customer is a Content Creator then, in addition to the rights granted in Section 2.1, it may also choose to make Content available on the Service during the Term so long as Customer remains a Content Creator. Subject to Content Creator’s complete and ongoing compliance with this Agreement and the Content Creator Addendum, which is hereby incorporated by reference into this Agreement, PA grants Content Creator a limited, non-exclusive, non-transferable, non-sublicensable license to Post Content during the Term.

2.3. Content Resellers. If Customer is a Content Reseller then, in addition to the rights granted in Section 2.1, it may also choose to make available Content to Content Reseller’s customers solely during the Term so long as Customer remains a Content Reseller. Content Reseller’s use of the Service and ability to make Content available is subject to the terms and conditions of this Agreement and the Outbound Content Addendum, which is hereby incorporated by reference into this Agreement.

2.4. Service Resellers. If Customer is a Service Reseller then, in addition to the rights granted in Section 2.1, it may also choose to make available the Service to Service Reseller’s customers solely during the Term so long as Customer remains a Service Reseller. Service Reseller’s use of the Service and to resell the Service is subject to the terms and conditions of this Agreement and the Reseller Addendum, which is hereby incorporated by reference into this Agreement.

2.5. Professional Services. If Customer requires any additional support or professional onboarding services from PA, PA may, but is not obligated to, provide such support at PA’s then-current rates.

2.6. Customer’s Responsibilities. Only Customer and its employees, contractors, or other representatives that Customer allows to use the Service, using the mechanisms designated by PA (“Log-in Credentials”), may access, and use the Service. Customer must keep all Log-in Credentials confidential and not share them with anyone else. Customer has and will retain sole responsibility for: (i) all information, instructions, and materials provided by or on Customer’s behalf in connection with the Service, including Content; (ii) the security and use of Log-in Credentials; (iii) compliance with this Agreement by its employees, contractors, or other representatives; and (iv) all access to and use of the Service and Materials directly or indirectly by or through Log-in Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. If Customer requests information regarding its employees’, contractors’, or other representatives’ use of the Service from PA (e.g., records of Content viewed on the Service), Customer represents and warrants to PA that it has the legal authority to collect such information and has provided any and all legally required notices to, or obtained any and all legally required consent from, Customer’s employees, contractors, or other representatives regarding such collection.

2.7. Restrictions. Except as permitted in this Agreement or to the extent permitted under applicable law, Customer may not (and will not permit anyone else to): (i) provide access to, sublicense, reproduce, distribute, publicly display, publicly perform, or create derivative works of the Service or Materials; (ii) use the Service or Materials to develop a similar or competing (in whole or in part) product, content or service; (iii) make modifications to the Service; (iv) make any representation or warranty about the Content not expressly authorized in this Agreement or by PA in writing; (v) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to the Service; (vi) remove or obscure any proprietary notices in the Service; (vii) interfere with or circumvent any feature of the Service, including any security or access control mechanism or conduct any security or vulnerability test of the Service; (viii) transmit any viruses or other harmful materials to the Service; (ix) take any action that risks harm to others or to the security, availability, or integrity of the Service; or (x) access or use the Service or Materials in a manner that violates any law.

2.8. Corrective Action. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, Customer will immediately: (i) take all reasonable and lawful measures within its respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Service and destroying any data to which any of them have gained unauthorized access); and (ii) notify PA of any such actual or threatened activity.

3. OWNERSHIP; PROPRIETARY RIGHTS

3.1. PA Materials and the Service. Except for Customer’s use rights in this Agreement, as between the parties, PA and its third-party licensors retain all intellectual property rights and other rights in the Service, Materials, Usage Data, and PA technology, templates, formats, and dashboards, including any modifications or improvements to these items made by PA. If Customer provides PA with feedback or suggestions regarding the Service or other PA offerings, PA may use the feedback or suggestions without restriction or obligation. For the avoidance of doubt, PA’s ownership under this Section 3.1 does not extend to Content Posted by Customer.

3.2. Usage Data. PA may use Usage Data for its own internal business purposes, such as to: (i) track use of Service for billing purposes; (ii) provide support for Service; (iii) monitor the performance and stability of the Service; (iv) prevent or address technical issues with the Service; (v) to improve Service, its other products and services, and to develop new products and services; and (vi) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data. Customer agrees that PA’s processing of any “personal information” or “personal data” (as such or equivalent terms are defined by applicable law) associated with Usage Data will be governed by PA’s published Privacy Policy (available at https://pineappleacademy.com/legal/privacy-policy), which PA may update from time to time.

4. MONITORING AND TAKING DOWN CONTENT

4.1. Monitoring Content. PA does not control and does not have any obligation to monitor or edit: (i) Content made available by you; (ii) any Content made available by third parties; or (iii) the use of the Service by its users. If at any time PA chooses to monitor Content, then PA still assumes no responsibility or liability for such Content or any loss or damage incurred as a result of the foregoing. PA may (at any time and without prior notice): (a) screen, remove, edit, or block any of Content that in PA’s sole judgment violates this Agreement, may violate the rights of third parties, or is otherwise objectionable; and (b) investigate any allegation that Content does not conform to the Content Criteria or this Agreement, and determine in PA’s sole discretion whether to remove such Content. Customer agrees to waive, and hereby does waive, any legal or equitable right or remedy Customer has or may have had against PA with respect to Content.

4.2. Take Down. PA reserves the right to take-down any of Content from the Service and, in the case of Off-Platform Hosting, from any third party service if: (i) it determines Content violates this Agreement, including the representations and warranties contained in 9.2; (ii) this Agreement has been terminated pursuant to Section 7.2; or (iii) PA has suspended Customer’s access to the Service pursuant to Section 7.3. PA may block, filter, mute, remove or disable access to any of Content uploaded to or transmitted through the Service without any liability to Customer or to any other users of the Service.

5. FEES AND PAYMENTS

5.1. Fees. Customer will pay PA all of the amounts set forth in the Proposal, in accordance with this Agreement and any applicable Addendum. PA will invoice Customer for the amounts owed to PA and Customer will make all payments to PA within thirty (30) days. PA may, but is not obligated to, waive the Hosting Fees for so long as Content Creators make Content available to Third-Party Users.

5.2. Taxes. All amounts payable by Customer under this Agreement, including payable pursuant to any Addendum, are exclusive of taxes and similar assessments. PA may invoice Customer for, and Customer will pay, 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 or regulatory authority on any amounts payable by Customer hereunder. Without limiting the foregoing, Customer is 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 or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on PA’s income.

5.3. Fee Increases. PA may increase the Hosting Fees by providing written notice to Customer at least sixty (60) days prior to the effective date of such increase.

5.4. No Deductions or Setoffs. All amounts payable to PA under this Agreement will be paid by Customer to PA in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). If Customer fails to make any payment when due, then, in addition to all other remedies that may be available, PA may set off any Revenue Share payments by the amounts of any then-outstanding Hosting Fees.

5.5. Free Trials. PA may make the Service (or certain features or functions thereof) available to Customer to try at Customer’s option at no additional charge as a free trial, beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar designation (“Free Trial”). Customer acknowledges and agrees that its use of Free Trial is subject to this Agreement, provided that notwithstanding anything to the contrary in this Agreement: (i) PA may terminate Customer’s access to Free Trial in its sole discretion at any time, without liability to Customer; and (ii) the Free Trial is provided “AS-IS” without any warranty and PA shall have no indemnification obligations nor liability of any type with respect to the Free Trial unless such exclusion is not enforceable under applicable law, in which case PA’s liability with respect to the Free Trial will not exceed $100.00.

5.6. Credits. Credits purchased for the Subscription term covered by the Subscription Proposal will not rollover to any subsequent terms. Additional credits purchased within the Subscription term covered by the Subscription Proposal will be priced subject to quantity at the time of purchase.

6. TERM AND TERMINATION

6.1. Term. This Agreement shall commence as of the Subscription Start Date and shall continue for the period specified in the Proposal, or for one (1) year as of the first date Customer accessed the Service if no Subscription Start Date and period was specified in the Proposal (the “Initial Term”) and will automatically renew for terms of the same duration, unless either party provides a written notice of nonrenewal at least (i) ninety (90) days, if the Initial Term was longer than one (1) month, or (ii) thirty (30) days, if the Initial Term was one (1) month, in either case, prior to the end of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated.

6.2. Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party (i) materially breaches this Agreement and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or (ii) either (a) becomes insolvent or admits its inability to pay its debts generally as they become due; (b) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (c) is dissolved or liquidated or takes any corporate action for such purpose; (d) makes a general assignment for the benefit of creditors; or (e) 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.

6.3. Suspension. PA may immediately suspend Customer’s access to any or all of the Service (including access to Materials) and remove any of Content from the Service according Section 4.2 if: (i) Customer breaches Section 2.7; (ii) Customer’s fees are 30 days or more overdue; (iii) changes to laws or new laws require that PA suspend the Service or otherwise may impose additional liability on the part of PA; or (iv) Customer’s actions risk harm to any of PA’s other customers or the security, availability, or integrity of the Service. Where practicable, PA will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, PA will restore Customer’s access to the Service(s).

6.4. Effects of Termination.

6.4.1 Survival. Upon the effective date of expiration or termination of this Agreement, (i) Customer’s license rights will terminate and Customer must immediately cease using the Service; (ii) Customer will no longer be authorized to access the Service or Content; (iii) all amounts owed, including Hosting Fees will become due and payable and (iv) all liabilities incurred prior to termination and Sections 1, 2.7, 3.1, 3.4, 7.4, 8, 9.3, 10, 11, and 12 of this Agreement any sections specified in any applicable Addendum to this Agreement will survive.

7. CONFIDENTIALITY. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business under this Agreement (“Confidential Information”). The Receiving Party will (i) not access or use Confidential Information other than in connection with exercise of its rights or perform its obligations under and in accordance with this Agreement; (ii) hold the Confidential Information in strict confidence and protect it from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (iii) not disclose or permit access to Confidential Information other than to its employees who: (a) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (b) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8; and (c) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8. For the avoidance of doubt, performance data regarding a training gathered during delivery of Content (e.g., number of impressions, interactions, etc.) shared with Customer by PA will be deemed PA’s Confidential Information. The foregoing shall not apply with respect to any information which the Receiving Party can document: (w) was or becomes generally available to the public through no fault of the Receiving Party; (x) was rightfully in the Receiving Party’s possession (or known by the Receiving Party) without any confidentiality obligations prior to receipt from the Disclosing Party; (y) was rightfully disclosed to it without restriction by a third party; or (z) was developed independently by the Receiving Party without reference to Confidential Information of the Disclosing Party. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information in response to a valid order by a court or other governmental body, as otherwise required by law or the rules of any applicable securities exchange, or as necessary to establish the rights of either party under this Agreement; provided, however, that Customer will stipulate to any orders necessary to protect such information from public disclosure.

8. REPRESENTATIONS AND WARRANTIES

8.1. Mutual Warranties. Each party represents and warrants to the other that: (i) this Agreement has been duly accepted and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s acceptance, delivery, or performance of this Agreement; (iii) the acceptance, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound; and (iv) it will at all times comply with all applicable laws, statutes, ordinances, and regulations.

8.2. DISCLAIMER OF WARRANTIES

8.2.1. THE SERVICE AND ANY MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE THAT ARE PROVIDED BY PA ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. PA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, THE CONTENT, AND ANY MATERIALS AVAILABLE THROUGH THE SERVICE, INCLUDING: (i) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. PA DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH (OR POSTED TO) THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND PA DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

8.2.2. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICE, THE CONTENT, ANY MATERIALS AVAILABLE THROUGH THE SERVICE OR FROM ANY PA ENTITIES WILL CREATE ANY WARRANTY REGARDING ANY OF THE PA ENTITIES OR REGARDING THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES ANY PORTION OF THE SERVICE AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT PA IS NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY (INCLUDING CUSTOMER’S COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING CONTENT POSTED TO THE SERVICE.

8.2.3. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 9.3 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. PA does not disclaim any warranty or other right that PA is prohibited from disclaiming under applicable law.

9. INDEMNITY

9.1. Indemnification by Customer. To the fullest extent permitted by law, Customer is responsible for Customer’s use of the Service, and Customer will defend and indemnify PA, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the “PA Entities”) from and against every claim brought by a third party (a “Claim”), and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Losses”), arising out of or connected with: (i) Customer’s unauthorized use of, or misuse of, the Service; (ii) Customer’s breach of its representations or warranties, or any applicable laws or regulations; (iii) any alleged or actual violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, by Customer ; (iv) any alleged or actual violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right caused by Customer’s unauthorized access, use, copying, modification, or other exploitation of the Service, Materials, Content, or trademarks, service marks, names, logos, images, collateral or similar materials of PA that is not permitted under this Agreement; (v) any dispute or issue between Customer and any third party; and (vi) if Customer executes any Addendum to this Agreement, Customer’s material breach of any portion of the applicable Addendum. PA reserves the right, at PA’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer (without limiting Customer’s indemnification obligations with respect to that matter), and in that case, Customer agree to cooperate with PA’s defense of those claims.

9.2. Indemnification by PA. To the fullest extent permitted by law, PA will defend and indemnify Customer, Customer’s affiliates and Customer’s respective shareholders, directors, managers, members, officers, employees, consultants, and agents from and against every Claim, and any Losses, arising out of or connected with: (i) PA’s unauthorized use, or misuse, of Content; (ii) PA’s violation of any applicable laws or regulations; (iii) any violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right from the use of the Service; or (iv) any dispute or issue between PA and any third party. Customer may, at Customer’s expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by PA (without limiting PA’s indemnification obligations with respect to that matter), and in that case, PA agrees to cooperate with Customer’s defense of those claims. PA’s obligations in this Section 10 do not apply: (a) to infringement or misappropriation resulting from Content; (b) to unauthorized use of Service; or (c) if Customer settles or makes any admissions about a claim without PA’s prior consent.

9.3. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as PA determines necessary to avoid material liability, PA may at its option: (i) procure rights for Customer’s continued use of the applicable Service; (ii) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (iii) terminate this Agreement and refund to Customer any pre-paid, unused fees for the terminated portion of the Term.

9.4. Exclusive Remedy. This Section 9 sets out Customer’s exclusive remedy and PA’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.

10. LIMITATION OF LIABILITY

10.1. EXCEPT FOR (i) EITHER PARTY’S BREACH OF SECTION 8, EITHER PARTY’S OBLIGATIONS UNDER SECTION 10 OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (ii) CUSTOMER’S BREACH OF SECTION 2.7 (THE “EXCLUDED CLAIMS”), TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

10.2. EXCEPT FOR THE EXCLUDED CLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED (i) THE TOTAL AMOUNTS PAID OR PAYABLE BY CUSTOMER TO PA IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (ii) $1,000, WHICHEVER IS GREATER. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

11. MISCELLANEOUS

11.1. General Terms. Customer may not assign or transfer this Agreement or Customer’s rights under this Agreement, in whole or in part, by operation of law or otherwise, without PA’s prior written consent. PA may assign this Agreement and all rights granted under this Agreement, including with respect to any Content, at any time without notice or consent. The failure to require performance of any provision will not affect PA’s right to require performance at any other time after that, nor will a waiver by PA of any breach or default of this Agreement, or any provision of this Agreement, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in this Agreement is for convenience only and will not have any impact on the interpretation of any provision. Throughout this Agreement the use of the word “including” means “including but not limited to.” If any part of this Agreement is held to be invalid or unenforceable, then the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

11.2. Relationship. The relationship between the parties hereto shall be that of independent contractors. Neither party is and neither party shall represent itself to be the agent, employee, franchise, joint venturer, officer or partner of the other party. Nothing herein contained shall be construed to place the parties in the relationship of partners or joint venturers, and neither party shall have the power to obligate or bind the other party in any manner whatsoever.

11.3. Force Majeure. Excluding payment obligations, neither party will be liable for delay or default in the performance of its respective obligations under this Agreement if such delay or default is caused by conditions beyond such party’s reasonable control, including, but not limited to, fire, flood, accident, earthquakes, telecommunications line failures, electrical outages, network failures, acts of God, labor disputes, pandemic or public health emergency, or material modification or shutdown of third party services that PA uses to provide the Service through no fault of PA (“Force Majeure Event”). If a Force Majeure Event has continued for more than 60 days, the non-impacted party has the right to terminate this Agreement without penalty upon notice to the impacted party.

11.4. Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means. Notwithstanding the foregoing, upon notice to Customer, PA may modify its policies to reflect new features or changing practices, but the modifications will not materially decrease PA’s overall obligations during the Term. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by PA unless contained in a Proposal; any of these Customer documents are for administrative purposes only and have no legal effect.

11.5. Subcontractors. PA may use subcontractors and permit them to exercise PA’s rights, but PA remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

11.6. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by email, certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Proposal and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given the next business day following the date of email, two business days following the date of mailing, or one business day following delivery to a courier.

11.7. Governing Law. This Agreement is governed by the laws of the State of California without regard to conflict of law principles. Customer agrees any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state and federal courts residing in San Francisco County, California, and Customer hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts over any suit, action, or proceeding arising out of or relating to this Agreement. PA makes no representation that Service are is appropriate or available for use in locations outside of the United States of America.

11.8. Counterparts. The Proposal may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. The Proposal may also be executed and delivered electronically and such execution and delivery will have the same force and effect of an original document with original signatures.

11.9. Entire Agreement. This Agreement, including Proposals, Addendums, attachments and exhibits, is the final and complete expression of the agreement between these parties. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be modified only by a written agreement signed by an authorized agent of the party against whom enforcement is sought.