AGORA Data, Inc. including any affiliated entities (“AGORA”, “us”, “we”, or “our”) welcomes you (“User” or “You” or “Your”) to the AGORA websites located at 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 and sale of various consumer and commercial financial asset portfolios. Please read these Terms before using the Site. 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.
1. ACCEPTANCE OF AGREEMENT.
3. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in these TOU.
3.1. “Agreement” refers to any legal agreement executed between AGORA or Member, in either paper or electronic format.
3.2. “Documentation” means any user guides, supplements and other materials that AGORA has made or may make available in the future, as posted at www.agoradata.com or otherwise distributed to You.
3.3. “Member” means any user of the Platform as defined under section 3.8 below.
3.4. “Member Data” means data in electronic form inputted into or collected through the Platform by or from Member, including without limitation by Member’s Users.
3.5. “Member Asset” means all information relating to an asset uploaded by any User to the Platform.
3.6. “Membership Agreement” refers to an agreement as executed between Member and AGORA.
3.8. “Platform” means AGORA’s online technology for the analysis, monitoring, valuation and exchange of assets.
3.10. “User” means any individual who uses the Platform on Member’s behalf, and any individual who uses the Platform on behalf of other AGORA Members.
4. THE PLATFORM.
4.1. Use of the Platform. AGORA grants Member a non-exclusive, non-transferable, non-sublicensable license to access and use the Platform pursuant to this TOU and to any other Agreement.
4.2. Authorized Access. Member shall not allow access to or use of the Platform by anyone other than an employee of Member who has been registered to access and use the Platform on such Member’s behalf and assigned a unique username-password combination or who has express permission to use the Platform on behalf of the Member. At no time, will Member provide persons who are not employees of Member any information regarding access to the Platform, including usernames or passwords. Member assumes full responsibility for the protection of usernames and passwords assigned to Member’s Users, and agrees to restrict access of this information to those individuals employed 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 Platform 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 Platform on Member’s behalf.
4.3. Restrictions. Except as set forth in these TOU, Member will not: (a)interfere with or disrupt the Platform or attempt to gain access to any systems or networks that connect to the Platform (except as required to access and use the Platform and then only in accordance with AGORA’s policies posted on the Site or otherwise communicated to such Member); (b)reproduce or distribute the Platform or any portion thereof (including, without limitation, any documentation, training materials or screenshots); (c)use or authorize use of the Platform for any purpose not specified in these TOU; (d)copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Platform or access thereto; (e)modify, prepare derivative works of, translate, reverse engineer, reverse compile or disassemble the Platform or any portion thereof (including, without limitation, any documentation, training materials or screenshots); and (f) attempt to do any of the foregoing.
4.4. Enforcement. AGORA may suspend or terminate Member’s or any Member User’s access to the Platform upon notice to Member if AGORA determines in its sole discretion that any Member User has violated the terms and conditions of these TOU. Member shall be liable for any violation of the terms and conditions of these TOU by any Member User.
4.5. Documentation. Member may reproduce and use the Documentation solely as permitted by the terms and conditions of these TOU and as necessary to use the Platform.
4.6. Platform Revisions. AGORA may revise Platform features or functions at any time, including without limitation, by removing such features and functions or reducing service levels.
5. PLATFORM FEES AND PAYMENT TERMS.
5.1. Pricing. AGORA reserves the right, it its sole discretion, to offer access (on a periodic basis) to the Platform and of the services (including transactions) and product at costs and pricing (collectively, “Fees”) as AGORA and its management deem to be in the best interests of AGORA. Such Fees may be based measured and calculated on a variety of methods including, without limitation, a subscription basis for access to the Platform, a “per transaction” basis, a volume 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) to Members through one or more forms of communication, including, without limitation, email and postings on the AGORA website.
5.2. Payment Terms. All fees charged to Member are due and payable within 30 days from the date of the invoice, and AGORA shall have the right to limit and/or terminate service to Member for unpaid invoices and/or chronic late or short payment. Any amounts not paid within such 30 days shall be subject to a late penalty fee of 1.5% interest per month or, if lower, the highest rate permitted by applicable law, from the applicable due date until the overdue amount is paid. Member expressly understands and agrees that it shall be responsible for any and all costs of collection incurred following any late payment, including legal fees and related expenses.
5.3. Taxes. Member will be responsible for and will pay when due all sales, use and other taxes and similar charges based on or arising from these TOU or its performance, other than taxes based on AGORA’s net income.
6. ANTI-PHISHING PROVISIONS.
6.1. Sophisticated Member. Member is knowledgeable and experienced in the origination, collections, managing, servicing, sale and purchase of performing and non-performing or distressed consumer or commercial assets of the type potentially available through the Site, as well as other financial and business matters related thereto, and Member (and its Users) can evaluate the merits and risks of the prospective acquisition and ownership of such assets, including the risk that Member may not be able to collect such asset. Member (and its Users) has the expertise and capability to service the assets of the type available on the Platform or will hire a qualified third party to do so on its behalf, based upon the Member’s knowledge of such servicer’s capabilities and expertise. Member acknowledges and agrees that any proposed sale of the Member Assets facilitated by the Site does not involve, nor is intended to in any way constitute, the sale of a “security” within the meaning of any applicable federal or state securities law.
6.2. Restriction on Use. Member shall not collect or save information related to other Members, Users or any Member Asset for the purpose of conducting, attempting to conduct or the soliciting or attempting to solicit business in any manner outside the Platform 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. Any attempt by Member to circumvent the Platform 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 Platform. 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 Platform that have been loaded to the Platform, or otherwise conducts activity outside of the Platform on such Assets where it is reasonably likely in the opinion of AGORA that such activity could have been facilitated in the Platform and would result in fees coming due to AGORA, Member 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 Platform.
6.3. False Asset Data. To the Member’s knowledge, all data associated with Member Assets and all information and credentials concerning Member are factually correct. Member shall not use falsified Member Assets or misrepresent itself or its credentials in any capacity for the purposes of attracting or soliciting business from other User or Members. If AGORA determines, at its sole discretion, that Member has provided false Asset data on the Platform or that such member has misrepresented itself, its credentials or its intentions, AGORA may immediately terminate these TOU and Member’s access to the Platform.
7. OTHER MEMBERS & INFORMATION.
7.1. AGORA Hold Harmless. Member agrees and acknowledges that all risk associated with interacting with other Users or legal entities participating on the Platform (commonly known as “Counterparty Risk”) is assumed by Member, and Member agrees to hold AGORA harmless from any disputes between Member and other Platform Users and/or Members.
7.2. Information Accurate. Member acknowledges and agrees that all portfolio and asset information, including without limitation information any data, documentation and other files, were communicated to AGORA by the respective owner of the corresponding Asset, and AGORA has relied on such owner’s descriptions, representations and data. AGORA has no actual knowledge that any such data or information are accurate or inaccurate. Member represents that all registration information and background information provided to AGORA is accurate and current to the best of Member’s knowledge, information and belief. Member agrees to 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.
8. MEMBER DATA & PRIVACY.
8.1. Member Data. Member grants to AGORA a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free license to use, copy and distribute the Member Data and Member Assets that Member uploads to the Platform. Member is solely responsible for the Member Data and Member Assets that it uploads to the Platform. Member represents and warrants that it owns or has all rights that are necessary to upload the Member Data and Member Assets, and that the provision of the Member Data and Member Assets will not infringe, misappropriate or violate a third party’s intellectual property rights or result in the violation of any applicable law or regulation.
8.2. 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 the Platform; and (b) except through the Platform, shall not intentionally grant any third-party access to Member Data, including without limitation, AGORA’s other Members, except subcontractors that 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. AGORA shall give Member prompt notice of any such legal or governmental demand 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.
8.4. Risk of Exposure. Member recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Platform, Member assumes such risks. AGORA offers no representation, warranty, or guarantee that Member Data will not be exposed or disclosed through errors or the actions of Member or third parties.
8.5. Data Accuracy. AGORA shall have no responsibility or liability for the accuracy of data uploaded to the Platform by Users, including without limitation Member Data or Member Assets loaded onto the Platform. THE MEMBER DATA AND MEMBER ASSETS PROVIDED ON THE PLATFORM ARE PROVIDED “AS-IS,” WITHOUT WARRANTY OF ANY KIND.
8.6. Data Deletion. AGORA may permanently erase Member Data if Member’s account is delinquent, suspended, or terminated.
8.7. 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 (“Aggregate Data” refers to Member Data with the following removed: personally, identifiable information including the names and street addresses of Member and any of its Users or Members). AGORA owns all right, title, and interest in and to the Aggregate Data.
9. RESPONSIBILITIES & RESTRICTIONS.
9.1. Acceptable Use. Member shall comply with the TOU, and Member shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform. If it suspects any breach of the requirements of this Section 9.1, including without limitation by Users, AGORA may suspend Member’s access to the Platform without advanced notice, in addition to such other remedies as AGORA may have. These TOU do not require that AGORA take any action against Member or any User or other third party for violating this Section 9.1, or these TOU, but AGORA is free to take any such action it deems appropriate.
9.2. Unauthorized Access. Each party shall take commercially reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its respective passwords and other log-in information. Member shall notify AGORA immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach, including fully cooperating with AGORA if requested. AGORA shall notify Member of any known or suspected unauthorized use of the Platform or breach of its security that may reasonably impact Member and/or Member Data and shall use reasonable best efforts to stop said breach, including reasonably cooperating with Member if requested.
9.3. Technology Export. Member shall not: (a) permit any third party to access or use the Platform in violation of any law or regulation; or (b) export any software provided by AGORA or otherwise remove it from the United States except in compliance with all applicable laws and regulations. Without limiting the generality of the foregoing, Member shall not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo.
9.4. Compliance with Laws. In connection with these TOU, both parties shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Member Data.
9.5. Users & Platform Access. Member shall be responsible and liable for: (a) the actions of any Member User on the Platform, including without limitation unauthorized User conduct and any User conduct that would violate the TOU or the requirements of these TOU applicable to Member; and (b) any use of the Platform through Member’s account, whether authorized or unauthorized.
10. IP, FEEDBACK, COOKIES & USE OF DATA
10.1. IP Rights to the Platform. AGORA retains all right, title, and interest in and to the Platform, and all intellectual property rights therein or relating thereto, including without limitation all software used to provide the Platform and all graphics, user interfaces, logos, and trademarks reproduced through the Platform. These Terms do not grant Member any intellectual property license or rights in or to the Platform or any of its components. Member recognizes that the Platform and its components are protected by copyright and other laws.
10.2. 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 TOU or in the parties’ dealings arising out of or related to these TOU 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 (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of AGORA’s products or services, including but not limited to the Platform).
10.4. Use of Data. The data collected by AGORA may be used for the following purposes: (a) research for service improvements by AGORA, (b) facilitate marketing AGORA services and other business development efforts for AGORA, (c) produce statistical data that may be used by present and potential advertisers as well as entities affiliated with AGORA, (d) provide the service for which the Site was created, (e) bill You for items for which You have entered a contract via this Site, (f) communicate with the User regarding both communications that You have sent to us and items of potential interest to You.
11. CONFIDENTIAL INFORMATION.
Each Member party (a “Member Receiving Party”) understands that the other Member party (the “Member Disclosing Party”) may disclose information of a confidential nature including, without limitation, the Platform, product information, data, pricing, financial information, end user information including, without limitation, certain confidential, proprietary and/or non-public information relating to such individual end users (“Consumer Information”), software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Member Disclosing Party reasonably communicated, or the Member Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of these TOU also constitute the Confidential Information of each party. The Member Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose or otherwise divulge or use for its own purposes, other than the use (by Member) or provision (by AGORA) of the Platform and/or the services contemplated by these TOU, any Confidential Information of the Member Disclosing Party furnished to it by such Member Disclosing Party without the prior written approval of the Member Disclosing Party in each instance. Each party will use at least the same level of care to maintain the Confidential Information of the other party as it uses to maintain the confidentiality of its own non-public information, and in no event, less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that the Member Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that such information thereafter becomes through no fault of the Member Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Member Receiving Party’s possession at the time it was received by the Member Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Member Receiving Party from a third party who was under no obligation of confidentiality to the Member Disclosing Party with respect thereto, or (iv) is independently developed by the Member Receiving Party or its independent contractors who did not have access to the Member Disclosing Party’s Confidential Information. If the Member Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Member Receiving Party shall promptly notify the Member Disclosing Party to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of these TOU, upon the request of a Member Disclosing Party, the Member Receiving Party agrees to return to the Member Disclosing Party all such other party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk or other form of documentation, or to certify to the Member Disclosing Party in writing that all such material has been destroyed. The parties represent and warrant that each is aware of the rules and regulations promulgated under the Gramm-Leach-Bliley Act (“GLBA”), and, about GLBA, the parties will maintain Consumer Information in accordance with GLBA. The parties acknowledge and agree that Consumer Information will be deemed and treated as Confidential Information hereunder.
11.1. Remedies. The parties acknowledge, understand and agree that money damages would not be a sufficient or adequate remedy for breach of hereunder and that the Member Disclosing Party shall be entitled to specific performance and injunctive relief for any such breach or threatened breach. Such remedy shall not be deemed to be the exclusive remedy for breach or threatened breach hereunder, but shall be in addition to all other remedies, in law or at equity, available to the Member Disclosing Party
11.2. Termination & Return. With respect to each item of Confidential Information, the obligations of this Section 11 will terminate 2 years after the date of disclosure. Upon termination of these TOU, each party shall return all copies of Confidential Information to the other party or certify, in writing, the destruction thereof.
11.3. Retention of Rights. These TOU 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 Assets to which such Confidential Information relates is sold or otherwise transferred to another party.
12. REPRESENTATIONS & WARRANTIES.
12.1. From AGORA. AGORA represents and warrants that it is the owner of the Platform and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in these TOU without the further consent of any third party. AGORA’s representations and warranties in the preceding sentence do not apply to use of the Platform in combination with hardware or software not provided by AGORA. In the event of a breach of the warranty in this Section 12.1, AGORA, at its own expense, will promptly take the following actions: (a) secure for Member the right to continue using the Platform; (b) replace or modify the Platform to make it non-infringing; or (c) terminate the infringing features of the Service and refund to Member any prepaid fees for such features, in proportion to the portion of the Term left after such termination.
12.2. From Member.
(a) Member represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under these TOU and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by these TOU; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Platform; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
(b) Member acknowledges and agrees that except for AGORA’s obligations regarding proper operation of the Platform 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. AGORA is not responsible for the accuracy and/or completion of Member Data and data related to Member Assets.
(c) Member acknowledges and agrees that AGORA merely provides technological tools that may be used to transact business, perform analysis or conduct other general corporate activities on the Platform. AGORA is not involved in the actual transaction between Members, and 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 Platform will be completed. AGORA further makes no representations or guaranties regarding any services offered through the Platform.
(d) Member acknowledges and agrees that AGORA does not and cannot control the flow of data to or from the Platform 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, actions 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.
12.3. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY AGORA IN THESE TOU AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AGORA MAKES NO REPRESENTATIONS OR WARRANTIES. AGORA EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND 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 PLATFORM IS MADE AVAILABLE TO MEMBER “AS IS.” AGORA DOES NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM AND/OR AGORA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, THAT MEMBER DATA WILL REMAIN PRIVATE OR SECURE, OR THAT THE PLATFORM AND AGORA SERVICES OR THE SERVER THAT MAKES THE PLATFORM 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 PLATFORM OR ANY WEB SITE LINKED TO FROM THE PLATFORM. WITHOUT LIMITATION OF THE FOREGOING, AGORA WILL HAVE NO LIABILITY FOR: (A) ANY ERRORS, MISTAKES, OR INACCURACIES OF ANY DATA; (B) THE APPLICATION OF ANY MEMBER BUSINESS RULE, PROCESS, INSTRUCTION OR SPECIFICATION; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE PLATFORM; (D) ANY ACT OR OMISSION OF ANY USER OR OTHER THIRD PARTY MEMBER IN THE PLATFORM; (E) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE PLATFORM; (F) INDEMNIFICATION OR DEFENSE OF MEMBER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL; (G) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE PLATFORM BY ANY USER AND/OR THIRD PARTY; OR (H) 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 PLATFORM. 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.
13.1. By AGORA. AGORA shall indemnify, defend and hold harmless Member and its directors, officers, employees and agents and its and their respective successors, heirs and assigns (collectively, the “Member Parties”) against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by or imposed upon the Member Parties in connection with any 3rd party claim, suit, action, demand or judgment (each, a “3rd Party Claim”) (a) that the Platform, as made available by AGORA and to the extent used in accordance with these TOU and all applicable AGORA policies posted on its Website, infringes or violates a third-party’s intellectual property right in the United States or (b) alleging any fact that, if true, would constitute a breach by AGORA of any representation, warranty or covenant made by it under Section 12.1. Notwithstanding the foregoing, AGORA will have no obligation to indemnify Member under subsection (a) to the extent that the 3rd Party Claim arises from (i) any aspect of the Platform, including any customization, that was developed by, for the benefit or at the request of Member or to implement a Member business process, requirement or specification, or (ii) any use of the Platform in combination with any software, hardware or other component not provided to Member by AGORA hereunder (each, an “Excluded Claim”). Member will (x) provide AGORA with prompt notice of any indemnifiable 3rd Party Claim; (y) permit AGORA to assume and control the defense of such action upon AGORA’s written notice to Member of AGORA’s intention to indemnify; and (z) upon AGORA’s written request, provide to AGORA all available information and assistance reasonably necessary for AGORA to defend such claim. AGORA will not enter any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any Member Party, without Member’s prior written consent.
13.1.1. Right to Ameliorate Damages. If a Member Party seeks indemnity under Section 13.1 for a 3rd Party Claim for infringement of intellectual property rights, or if, in AGORA’s reasonable opinion, such a 3rd Party Claim is likely to be asserted against Member or AGORA, AGORA may, in its sole discretion and at its sole expense and without limiting any of its obligations under Section 13.1: (a) obtain the right for Member to continue to use the Platform; (b) render the Platform 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 TOU upon notice to Member without further liability or obligation hereunder.
13.2. 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 assigns (collectively, the “AGORA Parties”) against any Losses incurred by or imposed upon the AGORA Parties or any of them about any 3rd Party Claim (a) arising from or relating to Member’s or Member’s contractors use of the Platform (excluding indemnifiable 3rd Party Claims under Section13.1); (b) that would be an Excluded Claim under Section 13.1 had it been asserted against a Member Party; or (c) alleging any fact, which, if true, would constitute a breach by Member of any representation, warranty or covenant made by it under Section 12.2. AGORA will (x) provide Member with prompt notice of any such 3rd Party Claim (provided that the failure to provide prompt notice shall only relieve Member of its obligation to the extent it is materially prejudiced by such failure and can demonstrate such prejudice); (y) permit Member to assume and control the defense of such action upon Member’s written notice to AGORA of Member’s intention to indemnify; and (z) upon Member’s written request, and at no expense to AGORA, provide to Member all available information and assistance reasonably necessary for Member to defend such claim. Member will not enter any settlement or compromise of any such claim, which settlement or compromise would result in any liability to any AGORA Party, without AGORA’s prior written consent.
14. LIMITATIONS & LIABILITIES.
14.1. Dollar Cap. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TOU WILL NOT EXCEED THE LESSER OF (I) THE AMOUNTS PAID TO AGORA BY MEMBER IN THE SIX MONTHS PRIOR TO THE DATE THE LIABILITY FIRST AROSE; OR (ii) $100,000.00.
14.2. Exclusion of Consequential Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THESE TOU.
14.3. Exceptions from Exclusions and Limitations. Nothing in these TOU shall exclude or limit either party’s liability for: (a) breaches of Section 11 (Confidential Information); (b) breaches of a party’s indemnification obligations under Section 13 (Indemnification) or any amounts paid or payable to third parties about such obligations; or (c) such party’s gross negligence, willful misconduct or abandonment of these TOU. Nothing in these TOU shall exclude or limit Member’s liability for a breach of Section 9 (Responsibility & Restrictions).
15.1. Independent Contractors. The parties are independent contractors and will so 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.
15.2 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of these TOU 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.
15.3 Assignment & Successors. These TOU shall be binding on the parties and their respective successors and assigns. These TOU 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 either party, 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 TOU. Any assignment in violation of the foregoing will be null and void.
15.4 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of these TOU invalid or otherwise unenforceable in any respect. If a provision of these TOU 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 TOU will continue in full force and effect.
15.5 No Waiver. Neither party will be deemed to have waived any of its rights under these TOU 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 TOU will constitute a waiver of any other breach of these TOU.
15.6 Choice of Law & Jurisdiction. These TOU will be governed solely by the internal laws of the State of Texas, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ANY RIGHT WHICH EITHER OR BOTH MAY must A TRIAL BY JURY WITH RESPECT TO ALL CLAIMS, CONTROVERSIES OR DISPUTES ARISING OUT OF OR RELATING TO THESE TOU OR THE SUBJECT MATTER HEREOF.
15.7 Construction. These TOU will not be construed in favor of or against either party because of authorship.
15.9 Headings; Counterparts. Headings are for convenience only and are not deemed to be part of these TOU. These TOU 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 to accept a digital image of these TOU, as executed, as a true and correct original and admissible as best evidence to the extent permitted by a court with proper jurisdiction.