Agora Data, Inc. (“Agora”, “us”, “we”, or “our”) operates https://www.agoradata.com, https://app.agoradata.com and https://support.agoradata.com (all such websites, individually and collectively, the “Site”).

We have established and are operating the Site to facilitate the analysis, monitoring, valuation, purchase, sale and financing of various consumer, commercial and specialty finance asset portfolios. Please read these Terms of Use (“Terms”) before using the Site, as they create a legally binding agreement between Agora and You. A copy of these Terms may be downloaded, saved, and printed for Your reference. To the extent of any express inconsistency between these Terms and any other agreement You may have with Agora, that other agreement shall prevail unless otherwise explicitly stated therein.

These Terms may be updated by Agora from time to time, in its sole discretion, and posted here. It is your obligation to review these Terms periodically for any changes. Your continued use of the Site after a change to the Terms constitutes your consent to the amended Terms.

1. ACCEPTANCE OF AGREEMENT.
These Terms govern Your use of the Site. By accessing the Site, You agree that (1) You have read these Terms; (2) You understand these Terms; and (3) You are bound by these Terms in Your use of the Site. If you use the Site on behalf of a business, You represent and warrant that you have the authority to bind such business to these Terms. If you do not agree to these Terms, do not access or use the Site. You must complete and submit certain registration information and other materials before Agora may grant You access to the Site. Agora reserves the right to deny use of, or access to, the Site to any person for any or no reason. You understand and agree that Agora may revoke Your user privileges at any time without notice or cause and for any reason whatsoever. These Terms may be amended from time to time by Agora Data and You will be required to accept Terms every ninety (90) days before use of the Site. Unless explicitly stated otherwise, any new features that augment or enhance the Site shall be subject to the Terms. 

2. DEFINITIONS.
The following capitalized terms shall have the following meanings whenever used in these Terms.

2.1. “Agreement” refers to any legal agreement executed between Agora or Member, in either paper or electronic format.

2.2. “Confidential Information” means confidential or proprietary data or information of either Agora or Member which is disclosed to the other party in oral, written, graphic, machine recognizable, sample or any other form and which is clearly designated or marked as confidential or proprietary or which is disclosed under such circumstances as the receiving party should reasonably understand that the information is intended to be treated as confidential. Confidential Information includes, but is not limited to, (a) business and financial information, including but not limited to customer and supplier lists, licensing and purchasing agreements, costs, margins, pricing, business plans and practices, marketing plans, financial analysis, financial data, market data, competitive analysis, business strategy, employment and consulting agreements, and other organizational information; (b) information and designs relating to existing and future Agora services and products and the development of such services and products, including but not limited to equipment lists, systems architecture, diagrams, flowcharts, software, firmware, lines of code, documentation, algorithms, and models; (c) intellectual property, including but not limited to third-party licenses, trade secrets, know-how, show-how, negative know-how, technical data, inventions, processes, research, development data, engineering data, and test data; and (d) Member Data and other third-party confidential information, including but not limited to information disclosed to Agora by or about Member and/or its Users, Customers, vendors, suppliers, and consultants under an obligation of confidentiality and information that includes any personally-identifiable information of any person. Confidential Information includes any information that may be derived from or developed as a result of access to all notes, reports, evaluative materials, analyses or studies regarding or relating to the Confidential Information. Notwithstanding anything to the contrary herein, a party shall have no obligation to preserve the confidentiality of any information which (i) is or becomes publicly available, by other than unauthorized disclosure by the recipient; (ii) is distributed to third parties by the discloser without restriction; (iii) is received rightfully and without confidential limitation by the recipient from a third party; or (iv) is disclosed to a governmental authority lawfully demanding Confidential Information, provided that the recipient promptly provides prior written notice to the discloser and confidentiality is otherwise maintained by the parties after such disclosure.

2.3. “Customer” means individuals, families, households, businesses, governmental entities and others who purchase goods and services from and/or apply for a vehicle loan through Member.

2.4. “Member” means any business that uses the Site as defined under section 2.7 below.                           

2.5. “Member Asset” means a vehicle loan and all information relating thereto transmitted by Member or its Users to Agora via the Site.

2.6. “Member Data” means all data electronically transmitted to Agora via the Site for any purpose, including but not limited to (a) the names, Site account IDs and passwords, email addresses, mailing addresses, and telephone number(s) of Member and each of its Users; (b) all information regarding Member’s vehicle inventory, including but not limited to VIN, dealer cost, MSRP, sale price, detailed descriptions, age, and other identifying information; (c) all information regarding Member’s outstanding vehicle loans, including but not limited to the name(s) and personally-identifiable information of Customers, the vehicles purchased by them, and the amount, terms, payment history, and underwriter of their loans; and (d) Users’ interaction with the Site, including but not limited to a User’s IP address, web host, and activity on the browser-based interface.

2.7. “Site” means Agora’s online technology for the analysis, monitoring, valuation, financing, modeling, validation, benchmarking, peer analysis and exchange of Member Assets, including user interface, menu layouts, report formats, supporting materials, documentation and any related updated program or program portion furnished by Agora. For clarity, third-party dealership management software licensed by Member and integrated with the Site is expressly included from this definition of “Site.”                                         

2.8. “Privacy Policy” means Agora’s privacy policy, as may be amended from time to time in Agora’s sole discretion, currently posted at www.agoradata.com.                      

2.9. “Terms” means this policy document governing Site use, as may be amended from time to time in Agora’s sole discretion.

2.10. “User” means any individual who uses the Site on Member’s behalf, including but not limited to employees, independent contractors, and agents of such Member.

3. THE SITE.

3.1. Use of the Site. Subject to Member’s compliance with these Terms, Agora grants Member and its Users a non-exclusive, non-transferable, non-sublicensable license to access and use the Site solely for Member’s business use as contemplated herein.

3.2. Availability of the Site. Member hereby acknowledges and agrees that Agora does not and cannot control the flow of data to or from the Site and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, action or inaction of such third parties can impair or disrupt Member’s connections to the Internet (or portions thereof). Although Agora will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, Agora cannot guarantee that such events will not occur. Accordingly, Agora disclaims all liability resulting from or related to such events.

3.3. Authorized Access. In order to use the Site, each User must create a password-protected account and will be required to provide certain personal information in order to identify the User and allow them to enter, use, and access Member’s account and Member Data.  Such information may include, but is not limited to, the User’s name, email address and mobile phone number.  Each User shall complete and accurate information when registering for the Site.  A User may not impersonate someone else, create an account for anyone else, provide an email address other than the User’s own, or create multiple accounts. Member assumes full responsibility for the protection of usernames and passwords assigned to Member’s Users. Member represents that all registration information and background information provided to Agora relating to Member or its Users is accurate and current to the best of Member’s knowledge, information and belief. Member agrees to promptly provide Agora with any changes or additions to the information provided to Agora during the Member’s registration process. Member acknowledges it may request from Agora the current information on file. Member acknowledges that Agora may, in its sole discretion, terminate, suspend or condition Member’s Agora account in, Agora’s sole discretion, due to material changes to the Member’s registration information.

3.4. Member Control of User Accounts. Member shall not allow access to or use of the Site by anyone other than a User who has been registered to access and use the Site on such Member’s behalf and assigned a unique username-password combination or who has express permission to use the Site on behalf of the Member. Member shall not provide persons who are not employees, independent contractors, or agents of Member any information that would allow such persons to access the Site, including usernames or passwords. Member agrees to restrict access of this information to those individuals supervised by Member who have a bona fide need to know this information to perform the duties of their role or function within the Member’s organization or who have been expressly authorized by such Member to use the Site on behalf of such Member. Agora reserves the right to request each Member to supply evidence to Agora of such Member’s authorizing or permitting anyone to use the Site on Member’s behalf.                                     

3.5. Unauthorized Uses Prohibited. Except as set forth in these Terms of Use, Member will not, nor will Member knowingly suffer or permit, any Unauthorized Use of the Site. If Member learns or has reason to believe that any User has committed or attempted to commit any of the restricted activities specified herein, then such Member shall immediately notify Agora and assist Agora in preventing any such further action. Agora may suspend any User’s account at any time if, in Agora’s sole discretion, a User has made an Unauthorized Use of the Site. As used in these Terms of Use, each of the following actions is an “Unauthorized Use” of the Site:

• impersonate any person or entity or falsely state or otherwise misrepresent Member’s affiliation with Agora or any other person or entity;
• access or attempt to access another Member’s or another User’s account without his or her consent;
• access or use Member Data without the Member’s consent and/or for any purposes not specifically permitted under these Terms;
• solicit, collect or post personal data or attempt to solicit, collect or post personal data from third parties who have not given their consent;
• submit Member Data that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, motivated by animosity toward another person’s race, ethnicity, gender identity, sexuality, religion or other personal characteristic, or is otherwise objectionable (in Agora’s sole discretion);
• submit Member Data that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and
• submit Member Data that Member or a User does not have authority to disclose or that would constitute infringement of any patent, trademark, copyright, trade secret or other legal rights of any party, including but not limited to the privacy rights of Users or Customers;
• interfere with, disrupt, or adversely impact the availability, quality, or stability of the Site or attempt to gain access to any systems or networks that connect to the Site (except as required to access and use the Site and then only in accordance with Agora’s policies posted on the Site or otherwise communicated to such Member);
• copy, modify, adapt, create derivative works of or otherwise alter the Site, attempt to do any of the foregoing, and/or assist another party to do any of the foregoing;
• reproduce, distribute, display, sell, lease or otherwise make available the Site or any portion thereof (including, without limitation, any documentation, training materials or screenshots) to any person other than Users and Agora’s employees without Agora’s prior written consent;
• decompile, reverse engineer, data mine, record, “scrape,” link to, collect information or otherwise attempt to access or manipulate content from any portion of the Site, including but not limited to the source code or object code of the Site or any portion thereof (including, without limitation, any documentation, training materials or screenshots) and/or any systems or networks that connect to the Site;
• use or authorize use of the Site or any information, analyses, reports, forecasts, or other data received via the Site for the purpose of creating and/or offering products or services that compete with the products and services offered by Agora from time to time;
• solicit the business of another Member for products or services that compete with the products and services offered by Agora from time to time and/or persuade another Member to terminate, limit, or otherwise diminish its business with Agora;
• use or authorize use of the Site for any purpose not specified in these Terms of Use; and
• attempt to do, or assist any other person in doing or attempting to do, any of the foregoing.

3.6. Restriction on Use & Non-Circumvention. Member shall not collect or save information obtained from or through the Site related to other Members, Users or any Member Asset for the purpose of conducting, attempting to conduct or the solicitation or attempted solicitation of business in any manner outside the Site such that the intent or result is to reduce fees payable to Agora or otherwise act in any manner adverse to the interest of Agora or any other Member. Any attempt by Member to circumvent the Site and/or any applicable fee or restriction, may result, at Agora’s sole discretion and without limitation or in lieu of any other rights and remedies available to Agora at law or equity, in immediate termination of Member’s access to the Site. Moreover, and without limitation or in lieu of any other rights and remedies available to Agora at law or equity, in the event Member trades Assets outside of the Site that have been loaded on the Site, or otherwise conducts activity outside of the Site on such Assets where it is reasonably likely in the sole opinion of Agora that such activity could have been facilitated in the Site and would have resulted in fees coming due to Agora, any and all Members involved in any such transaction or activity shall owe amounts to Agora equivalent to the applicable fees that otherwise would have come due had such activity been conducted on or through the use of the Site. Member expressly agrees that if Member learns or has reason to believe that any User (whether such Member’s User or User of another Member) has committed or attempted to commit any of the restricted activities specified herein, then such Member shall immediately notify Agora and assist Agora in preventing any such further action.                        

3.7. Enforcement. Member is solely responsible for ensuring compliance with these Terms and any relevant terms of use or end-user license agreements by all Users. Member will use reasonable efforts to monitor and/or supervise Users, prevent Unauthorized Use of the Site by Users, terminate any Unauthorized Use by Users, and report to Agora any such Unauthorized Use. Member shall immediately notify Agora in writing of any unauthorized use of Member’s password or account, a Member User’s password or account, or any other breach of security. Member shall ensure that each Member User exits from their account at the end of each session. Agora is not liable for any loss or damage arising from your failure to comply with this section. Agora may suspend or terminate Member’s or any Member User’s access to the Site upon notice to Member if Agora determines in its sole discretion that any Member User has violated the terms and conditions of these Terms of Use. Member shall be liable for any violation of the terms and conditions of these Terms of Use by any Member User.               

4. CHANGES TO THE SITE.

4.1. Software Revisions. Agora may revise Site features or functions at any time, including without limitation, by removing such features and functions or reducing service levels.  Agora also reserves the right at any time, in its sole discretion, to modify or discontinue, temporarily or permanently, the Site (or any part thereof) and/or any related products or services, with or without notice, without liability to You or to any third party.                     

4.2. Pricing. Agora reserves the right, it its sole discretion, to charge a fee for access (on a periodic basis) to the Site and related services (including transactions) and products (collectively, “Fees”), in Agora’s sole discretion. Such Fees may be based, measured and calculated on a variety of methods including, without limitation, a subscription basis for access to the Site, a “per transaction” basis, a volume or size basis, and other methodologies. Agora further reserves the right to offer varied pricing and rates to Members on a case-by-case basis. Agora will communicate pricing for Fees (including any changes to such Fees) and payment terms to Members in writing no less than 90 days prior to the implementation of Fees.

4.3. Taxes. In the event Agora elects to collect Fees for access to and use of the Site, Member will be responsible for and will pay when due all sales, use and other taxes and similar charges based on or arising from use of the Agora service, these Terms or Member’s performance, other than taxes based on Agora’s net income. Agora will charge and collect taxes (including without limitation sales tax) when required to do so.                                                         

5. MEMBER DATA AND MEMBER ASSETS.

5.1. License to Use Member Data. Member grants to Agora a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy and distribute the Member Data and Member Assets that Member uploads, communicates or otherwise delivers to the Site. Member authorizes Agora to store the Member Data in any form or manner, in Agora’s sole discretion in the manner and for the purposes set forth herein. Member is solely responsible for the completeness and accuracy of the Member Data and Member Assets that it uploads, communicates or otherwise delivers to the Site. Member represents and warrants that the provision of the Member Data and Member Assets to Agora will not violate any applicable law or regulation, including but not limited to rights of privacy, financial disclosure obligations, and rights to opt-out of commercial communications.                                             

5.2. Limitations on Use of Member Data. Unless it receives Member’s prior written consent, Agora: (a) shall not access, process, or otherwise use Member Data other than as necessary to provide and/or facilitate or improve the Site; and (b) except through the Site, shall not intentionally grant any third-party access to Member Data, including without limitation, Agora’s other Members, except subcontractors who are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Agora may disclose Member Data as required by applicable law or by proper legal or governmental authority, and may disclose and use aggregated, de-identified data extracted from Member Data. Agora shall give Member prompt notice of any legal or governmental demand for disclosure and reasonably cooperate with Member in any effort to seek a protective order or otherwise to contest such required disclosure, at Member’s sole expense.                                                              

5.3. Information Accurate. By entering Member Data into the Site, Member you represents and warrants that (A) Member has the Customer’s permission to disclose the Member Data; and (B)  that all portfolio information and data, Member Asset information data, and any other information, data, descriptions or material related thereto, including without limitation information and any data, documentation or other files related to the Member, Member’s operations, or the underlying obligors on any receivables, were accurately delivered or communicated to Agora by the respective owner of the corresponding Member Asset. Member acknowledges that Agora has relied on such descriptions, representations and data and that Agora has no actual knowledge that any such data or information are accurate or inaccurate. Agora shall have no responsibility or liability for the accuracy of data uploaded to the Site by Users, including without limitation Member Data or Member Assets loaded onto the Site.                                                                        

5.4. False Asset Data. Member shall not use falsified Member Assets or misrepresent itself or its credentials in any capacity for any reason whatsoever. If Agora determines, at its sole discretion, that Member has provided false Member Asset data on the Site or that such Member has misrepresented itself, its credentials or its intentions, Agora may immediately terminate Member’s access to the Site. In the event Member’s access to the Site has been terminated, Member’s obligations under these Terms shall survive.        

5.5. Member Data Deletion Requests. In the event that Member receives a request from a Customer to delete such Customer’s personally-identifiable information under any applicable law or regulation (e.g., the California Consumer Privacy Act of 2018), Member shall promptly notify Agora of and provide Agora with a copy of such request for Agora’s action.

6. DATA SECURITY & RETENTION.

6.1.  Privacy Policy. The Privacy Policy, found at (https://www.agoradata.com/privacy-policy), applies to Member’s and its Users’ use of the Site. The Privacy Policy does not apply to any third-party website or service linked to the Site or referred to through the Site or by Agora’s staff, or any third-party website or service used by Member or its Users in conjunction with their use of the Site.                                                                                         

6.2. Risk of Exposure. Member understands, recognizes and agrees that hosting data online involves inherent risks of unauthorized disclosure or exposure and that, in accessing and using the Site, Member assumes all such risks and losses associated therewith. Agora makes no representation, warranty, or guarantee of any kind whatsoever that Member Data will not be exposed or disclosed through errors or the actions or inactions of Member, Member’s Users, or third parties. Member acknowledges and agrees that, except for Agora’s obligations regarding proper operation of the Site as expressly set out herein, Member is solely responsible for safeguarding Member Data and data related to Member Assets. Member is solely responsible for backup and restoration of Member Data and data related to Member Assets.

6.3. Data Deletion. Agora may permanently erase Member Data if Member’s account is delinquent, suspended, or terminated; provided, however, that Member shall have a 90-day period to request that Agora transfer Member Data to Member.

6.4. Aggregate & Anonymized Data. Notwithstanding anything to the contrary set forth herein, Agora may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. As used herein, “Aggregate Data” means Member Data with personally-identifiable information removed, including but not limited to personal names, street addresses, telephone numbers, social security and/or taxpayer identification numbers, financial account numbers, vehicle VINs, and any other information that, alone or in combination, would enable a third party to identify the subject of the data. Agora owns all right, title, and interest in and to the Aggregate Data.

7. INTEGRATION WITH MEMBER SYSTEMS.

7.1. Authorized Integration.  Member hereby expressly agrees and grants permission to Agora to complete an integration (whether in the form of an application programming interface or otherwise) in the form of a specific set and collection of computer programming code, software, protocols, tools, data and information (“Integration”) between the Site and such Member’s dealer management system, loan servicing system or other software application comprising analytic tools for the auto finance market or the general consumer finance market including, without limitation, tools for origination, underwriting, customer services, collections, reporting and accounting (the “Member’s System”).  Such Integration shall include a full set of new loan-level data files transferred from such Member’s System to the Site on a once-daily minimum basis, with no further input from such Member.

8. INTELLECTUAL PROPERTY.                                                           

8.1. IP Rights to the Site. Agora owns all right, title and interest in and to the Site and all computer systems, software, correspondence, reports, processes, data, methodologies, images, graphics and trademarks embodied therein and all improvements, modifications, translations and derivative works of the same, however conceived or developed (“Agora Intellectual Property”), including, but not limited to the right to own, file applications for and/or register all inventions, patents, trade secrets, computer software, copyright, trademark and trade dress throughout the world. Except as expressly granted herein, nothing in these Terms grants to Member any rights in the Agora Intellectual Property.     

8.2. Trademarks. Member agrees that all of Agora’s trademarks, trade names, service marks, logos, brand features, and product and service names (the “Agora Marks”) are inherently distinctive and the property of Agora. Member will not display or use any of the Agora Marks without Agora’s prior written approval in each instance.

8.3. Feedback. Agora has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Member or Users provide to Agora, and nothing in these Terms or in the parties’ dealings arising out of or related to these Terms will restrict Agora’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Member or the User in question. As used herein, “Feedback” means any question, complaint, suggestion, idea or comment communicated by Member or a User to Agora that teaches, implies, suggests or otherwise inspires Agora to modify any of Agora’s products or services, including but not limited to the Site.

9. CONFIDENTIAL INFORMATION.
Agora and Member acknowledge that, in connection with Member’s use of the Site, either Agora or Member may provide (the “Disclosing Party”), and the other party may acquire and make use of (the “Receiving Party”), certain Confidential information of the Disclosing Party.

9.1. For so long as Member and/or any of its Users utilize the Site (the “Contract Term”), the Receiving Party shall restrict access to the Disclosing Party’s Confidential Information to those officers, directors, managers, shareholders, employees, agents and independent contractors of the Receiving Party that have a need to know such Confidential Information.

9.2. During the Contract Term and for a period of three (3) years thereafter, the Receiving Party shall not use for its own benefit or disclose, divulge, disseminate or otherwise transmit to a third party the Disclosing Party’s Confidential Information except in connection with the use of the Site, or divulge the Confidential Information to any third party, unless the Disclosing Party consents in writing to such use or divulgence or such disclosure is required by law. Notwithstanding the foregoing, the Receiving Party shall not at any time during or after the Contract Term use or divulge any Confidential Information that constitutes a trade secret of the Disclosing Party.

9.3. In the event that the Receiving Party is requested pursuant to, or required by, applicable law or by legal process to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party agrees that it will provide the Disclosing Party with prompt notice of such request or requirement in order to enable the Disclosing Party to seek an appropriate protective order or other remedy, to consult with the Receiving Party with respect to the Receiving Party’s taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with these Terms. In the event that no such protective order or other remedy is obtained, or that the Disclosing Party waives compliance with these Terms, the Receiving Party will use its reasonable efforts to disclose only that portion of any the Disclosing Party’s Confidential Information which the Receiving Party is advised by counsel is legally required and will exercise reasonable efforts to ensure that all such Confidential Information so disclosed will be accorded confidential treatment.

9.4. The Receiving Party shall be liable for breach of this Section 9 by any officer, director, manager, shareholders, employee, agent, independent contractor or designee of the Receiving Party.

9.5. The parties represent and warrant that each is aware of the rules and regulations promulgated under the Gramm-Leach-Bliley Act (“GLBA”), and the parties will maintain Member Data in accordance with GLBA. The parties acknowledge and agree that Member Data will be deemed and treated as Confidential Information.

9.6. Remedies. Each party acknowledges that the unauthorized use, transfer or disclosure of the Confidential Information of the Disclosing Party will: (a) substantially diminish the value to the Disclosing Party of such Confidential Information; (b) render the Disclosing Party’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If a Receiving Party breaches any of its obligations with respect to the use or confidentiality of the Disclosing Party’s Confidential Information, the Disclosing Party shall be entitled to seek equitable relief, including, but not limited to, preliminary and permanent injunctive relief; monetary damages, including but not limited to indirect, incidental, consequential, exemplary, punitive or special damages; and an award of its attorneys’ fees.

9.7.  Retention of Rights. Except as expressly set forth herein, these Terms do not transfer ownership of Confidential Information or grant a license thereto. Each party will retain all right, title, and interest in and to its own Confidential Information unless and until the Member Assets to which such Confidential Information relates is sold or otherwise transferred to another party.                       

10. NON-COMPETITION/NON-SOLICITATION.
For so long as Member and/or any of its Users utilize the Site and for one year thereafter, Member shall not (A) create or attempt to create a substitute or similar service through use of or access to the Site; or (B) solicit for employment or hire any Agora employee while they are employed at Agora or for a period of one year after their voluntary or involuntary termination of employment at Agora without written approval by Agora; provided, however, that this Section 10 does not prohibit the hiring of an Agora employee who independently submits an application in response to a general advertisement for employment.

11. ASSUMPTION OF THE RISK.

11.1. Member acknowledges and agrees that Agora merely provides technological tools that may be used to facilitate the transaction of business, to perform analysis or to conduct other general business activities on the Site. Agora does not approve, endorse or select, is not the agent of, nor has any authority on behalf of, any of the parties or any other third party, for any purpose whatsoever. Agora cannot guarantee that any transactions through the Site will be completed. 

11.2. Member agrees and acknowledges that all risks associated with interacting with Agora (including any of Agora’s agents, representatives or sub-contractors) or other Users or legal entities participating on or through the use of the Site (commonly known as “Counterparty Risk”) is assumed by Member, and Member agrees to hold Agora harmless from any costs, expenses, attorneys’ fees and/or damages incurred by Agora arising out of any disputes between Member and other Site Users and/or Members or any other third parties.

11.3. AGORA DOES NOT PROVIDE TAX, LEGAL OR ACCOUNTING ADVICE. The Site is not intended to provide, and should not be relied on for, tax, legal or accounting advice. You should consult your own tax, legal and accounting advisors before engaging in any transaction.  In addition, information available on or through the Site may contain forward-looking statements Any statements about expectations, beliefs, plans, predictions, forecasts, objectives, assumptions, or future events or performance are not historical facts and may be forward-looking. These statements are often, but not always, made through the use of words or phrases such as “anticipates,” “believes,” “can,” “could,” “may,” “predicts,” “potential,” “should,” “will,” “estimates,” “plans,” “projects,” “forecasts,” “continuing,” “ongoing,” “expects,” “intends,” and similar words or phrases. These statements are not guarantees of future performance and involve risks and uncertainties that are subject to change based on various important factors. If one or more of the factors affecting forward-looking information and statements renders forward-looking information or statements incorrect, then actual results, performance or achievements could differ materially from those expressed in, or implied by, forward-looking information and statements. Therefore, Agora cautions You not to place undue reliance on any forward-looking information or statements. The effect of these factors is difficult to predict. Factors other than these also could adversely affect the performance of assets acquired, reviewed or financed, and You should not consider these factors to be a complete set of all potential risks or uncertainties as new factors emerge from time to time.

12. INDEMNIFICATION.

12.1. By Agora. Agora will, at its own expense, indemnify, defend and hold harmless Member and its directors, officers, employees, independent contractors, and agents and its and their respective heirs, successors, and permitted assigns (“Member Indemnitees”) from and against any damages, claims, offers of license, suits, actions, proceedings, arbitrations, judgments, awards, settlements, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys’ fees and expenses) (each a “Claim”), arising out of a third-party allegation that the Site and Member’s and/or its Users’ proper and authorized use thereof infringes a United States patent, copyright or any other intellectual property right of a third party, provided that (A) Member notifies Agora promptly in writing of the claim, (B) Agora has sole control of the defense and all negotiations for its settlement or compromise, and (C) Member cooperates in the defense and/or settlement of such claim at Agora’s request and expense.

12.2. By Member. Member shall indemnify, defend and hold harmless Agora and its directors, officers, employees and agents and its and their respective successors, heirs and permitted assigns (collectively, the “Agora Indemnitees”) shall indemnify, defend or hold harmless Agora for or against any Claim based on (A) Member’s access to or use of the Site (excluding Claims indemnifiable under Section 12.1); (B) Member’s violation of these Terms; (C) the use, failure to use, or inability to use Site or any related products or services caused directly or indirectly by Member or its Users; (D) the infringement by Member, its Users, or any third party using Member’s account, of any intellectual property or other right of any person or entity as a result of (i) use of other than a current, unaltered release of the Site as provided by Agora, if such infringement would have been avoided by the use of such current, unaltered release; (ii) use or combination of the Site with programs or data not supplied by Agora; or (iii) use of the Site other than the ordinary, intended use as authorized hereunder; (E) the unauthorized use or disclosure of Member Data accessible due to your failure to protect your account credentials; and/or (F) violations of any local, state or federal law.                 

12.3. Claims of Intellectual Property Infringement. In the event the Site or any portion there becomes, or in Agora’s opinion is likely to become, the subject of a claim of intellectual property infringement, Agora may, in its sole discretion and at its sole expense and without limiting any of its obligations under Section 12.1: (a) obtain the right for Member to continue to use the Site; (b) render the Site non-infringing; (c) provide a non-infringing substitute with substantially the same features, functions and performance; or (d) if (a)-(c) are not reasonably obtainable in the exercise of commercially reasonable efforts, Agora may terminate these Terms upon notice to Member without further liability or obligation hereunder.

13. IMITATION OF LIABILITY; DISCLAIMER.

13.1. Dollar Cap. EXCEPT IN THE CASE OF INDEMNIFICATION, BREACH OF CONFIDENTIALITY, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OF USE WILL EXCEED THE LESSER OF: THE AMOUNTS PAID TO AGORA BY MEMBER IN THE SIX MONTHS IMMEDIATELY PRIOR TO THE DATE THE LIABILITY FIRST AROSE; OR FIFTY THOUSAND DOLLARS ($50,000).      

13.2. Exclusion of Consequential Damages. EXCEPT IN THE CASE OF INDEMNIFICATION, BREACH OF CONFIDENTIALITY, WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE TO ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING OUT OF OR RELATED TO THE USE OF THE SITE.                                                                                       

13.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY AGORA IN THESE TERMS OF USE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGORA DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SITE IS MADE AVAILABLE TO MEMBER “AS-IS, WHERE-IS.” AGORA DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE AND/OR AGORA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE SITE IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, THAT MEMBER DATA WILL REMAIN PRIVATE OR SECURE, OR THAT THE SITE AND AGORA SERVICES OR THE SERVER THAT MAKES THE SITE AND AGORA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ADDITIONALLY, AGORA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY USER AND/OR THIRD PARTY ON OR THROUGH THE SITE OR ANY WEB SITE LINKED TO OR FROM THE SITE. WITHOUT LIMITING THE FOREGOING, AGORA WILL HAVE NO LIABILITY FOR: (A) ANY ERRORS, MISTAKES, OR INACCURACIES OF ANY MEMBER DATA; (B) THE APPLICATION OF ANY MEMBER BUSINESS RULE, PROCESS, INSTRUCTION OR SPECIFICATION; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITE; (D) ANY ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTY MEMBER IN THE SITE; (E) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE; (F) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE BY ANY USER AND/OR THIRD PARTY; OR (G) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA OR INFORMATION POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SITE. TO THE EXTENT THAT AGORA CANNOT DISCLAIM ANY SUCH WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM REQUIRED UNDER SUCH LAW.  

14. ARBITRATION AGREEMENT AND WAIVER OF RIGHT TO BRING COLLECTIVE ACTION.
Except as expressly set forth herein, You and Agora agree to final and binding arbitration of all Claims (as defined in the Arbitration Agreement) before the American Arbitration Association pursuant to the written Arbitration Agreement (the “Arbitration Agreement”). Such arbitration shall be conducted in English and held in Dallas, Texas. If you would like to access the Arbitration Agreement, please visit (https://agoradata.com/arbitration-agreement). PLEASE READ THE ARBITRATION AGREEMENT CAREFULLY. IT AFFECTS YOUR RIGHTS, AND THOSE TO WHOM YOU PROVIDE ACCESS TO YOUR ACCOUNT. THE AGREEMENT TO ARBITRATE ALL CLAIMS IS A CONDITION OF YOUR USE OF THE AGORA WEBSITE AND/OR ANY OF THE SERVICES REFERENCED HEREIN.

15. RIGHT TO SEEK INJUNCTIVE RELIEF.
Without limiting the generality of the foregoing, nothing shall limit Agora’s right to seek equitable relief in a court of competent jurisdiction for a breach of Sections 3, 5, 9, and 10 herein.

16. CHOICE OF LAW.
This Agreement shall be governed by the federal laws of the United States and the laws of the State of Texas without regard to its conflict/choice of law provision. Any non-arbitral proceeding brought to enforce any provision of these Terms shall be brought in a state or federal court sitting in Dallas, Texas, and both parties expressly consent to jurisdiction and venue in Dallas, Texas.

17. MISCELLANEOUS.

17.1. Independent Contractors. The parties are independent contractors and will represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. Each party agrees that none of its employees or contractors will be an employee or contractor of the other party.

17.2 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of these Terms to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.  

17.3 Assignment & Successors. These Terms of Use shall be binding on the parties and their respective successors and assigns. These Terms of Use and the rights and obligations hereunder may not be assigned by either party without the prior written consent of the other party, except that such consent shall not be required in the event of (a) a recapitalization, reorganization, reincorporation or similar corporate event by Agora, or (b) a merger or acquisition of either party pursuant to which all of the stock or all or substantially all of the assets of such party is acquired by another party, which party agrees to assume the rights and obligations of the acquired party under these Terms of Use. Any assignment in violation of the foregoing will be null and void.

17.4 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of these Terms invalid or otherwise unenforceable in any respect. If a provision of these Terms is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of these Terms will continue in full force and effect.

17.5 No Waiver. Neither party will be deemed to have waived any of its rights under these Terms by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of these Terms will constitute a waiver of any other breach of these Terms.

17.6 Construction. These Terms will not be construed in favor of or against either party because of authorship.

17.7 Conflicts. In the event of any conflict between these Terms and any Agora policy posted online, such policies shall be interpreted in the following order of priority: the Privacy Policy, these Terms, the Arbitration Agreement, any supplemental terms of use for portions or features of the Site, all other policies.

17.8 Headings; Counterparts; Digital Image. Headings are for convenience only and do not have any legal or contractual effect. These Terms may be entered in separate counterparts, each of which when so executed will be deemed an original and taken together will constitute one fully executed Agreement. The parties agree that the following methods of agreement shall be accepted as a true and correct original and admissible as best evidence to the extent permitted by a court with proper jurisdiction, including arbitration proceedings: a certified digital signature such as Docusign or Adobe Sign; a digital image of a handwritten signature in commonly readable file format, such as .pdf or .jpg; and click-through acceptance by a logged-in User of the Site.