MASTER SERVICES AGREEMENT

Last updated: March 17, 2025

This Master Services Agreement (“Agreement”) is made between Ventus, Inc., a Delaware corporation having its principal place of business at 1900 S Norfolk Street, #350, San Mateo, CA 94403 (“Ventus”) and Customer (defined below) and governs the Customer’s use of the Ventus Assets (as defined below).

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Effective Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses a Ventus Asset. Ventus reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Ventus Asset(s).

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IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE VENTUS ASSETS. THE VENTUS ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

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If Customer and Ventus have executed a written agreement governing Customer’s access to and use of the Ventus Assets as a Ventus customer, then the terms of such signed agreement will govern and will supersede this Agreement. The parties agree as follows:

1. Definitions.

   1. “Affiliate(s)” means any entity that now or hereafter controls, is controlled by, or is under common control with, a specified entity. Such entity shall be deemed to be an Affiliate only so long as such control exists.

   2. "AI Output" means output generated by the Software in combination with any Third Party Generative AI Service by processing Customer Data.

   3. "Authorized User" means one individual whether for themself or on behalf of their entity, that are authorized by Customer to use the Software.

   4. "Beta Features" means any Software and/or Service feature, functionality or service which Ventus may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.

   5. “Confidential Information" means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and: (i) with respect to Ventus the Ventus Assets and Usage Data; and (ii) with respect to Customer, the Customer Data and AI Output. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.

   6. "Customer Data" means all data provided by, or on behalf of, Customer in connection with or by means of the Software, including Customer Workflows and any Personal Data as that term is defined under the DPA or as otherwise set under applicable laws. Notwithstanding anything to the contrary in this Agreement, Customer Data does not include Usage Data.

   7. “Customer Environment” means equipment, systems, servers, and workstations, and including each of the foregoing’s operating systems and software contained therein including for clarity web-browsers, owned or managed solely by Customer.

   8. “Customer Workflow” means a demonstration of Customer’s workflow within a Third Party Application.

   9. "Data Processing Agreement" or "DPA" means Ventus’s Data Processing Agreement executed in writing between the parties.

   10. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Service and/or Software, as may be provided or made available by Ventus to Customer, whether in written or electronic form, including all modifications, updates, upgrades thereto and derivative works thereof.

   11. "Malicious Code" means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Service and/or Software to cease functioning; (ii) damage or corrupt any Ventus owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Service and/or Software (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).

   12. "Order Form" means each order document executed in writing between the parties for the purchase of a subscription to the Service and Software.

   13. "Prohibited Content" means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to Ventus in its sole, but reasonable, discretion.

   14. "Prompt" means an aspect of the Software that includes instructions (e.g., workflow, summarization, classification, output formatting, etc.) to a Third Party Generative AI Service.

   15. “Report(s)” means a report generated upon Customer’s request within the Service and displayed within the Service detailing aspects of the Software including the Agents, or such other reports as otherwise provided by Ventus in accordance with the Documentation or in the Agreement.

   16. “Service” means Ventus’ proprietary solution offered as a Software-as-a-service which enables Customer to view Reports that details performance of the Software and Agents.

   17. "Software" means software that Ventus develops and maintains, that uses machine learning technology as well as Third Party Generative AI Services, that automates Customer’s workflows (e.g., data entry, scheduling, compliance paperwork associated with Logistics), which includes the Prompt, Agent(s), Beta Features, and all modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works thereof to each of the foregoing.

   18. “Statement of Work” or “SOW” means a statement of work signed in writing between the parties that sets forth terms with respect to its applicable Professional Services.

   19. "Subscription Period" is the length of the subscription specified in the Order Form.

   20. "Support" means the support terms for the Software set forth in Section 3(b) below.

   21. “Taxes” means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.

   22. “Third Party Generative AI Service(s)” means a third party generative artificial intelligence service such as OpenAI, Anthropic, or any other similar application or service.

   23. “Unit(s)” means a number of units specified in an Order Form and/or SOW.

   24. “Usage Data” means data collected by Ventus pertaining to Customer’s interaction with, and use of, the Software and/or Service which includes, but is not limited to, performance of the Software and/or Service, metrics, and other measures of Customer’s use of each of the foregoing. Usage Data are not Customer Data and do not consist of Customer Personal Data (as defined in the DPA).

   25. “Ventus Agent” or “Agent(s)” means a part of the Software that Ventus makes available via supported browsers (as set forth in the Documentation) that when implemented by Customer will send Customer Data to Ventus for processing (as specified in the Documentation and the DPA) and perform certain functions upon Customer Data within a Third Party Application based upon a corresponding Customer Workflow.

   26. “Ventus Assets” means the Service, Software and Documentation.

2. Grant of License to the Software; Restrictions.

   1. Grant of License to the Service and Software. Subject to the terms of this Agreement and the applicable Order Form, Ventus grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Period, solely for Customer's internal business operations up to the number of Units specified on the Order Form and/or applicable SOW, to use the Ventus Assets solely in accordance with the Documentation, this Agreement and the applicable Order Form and/or SOW. Customer may permit its Affiliates’ employees and authorized contractors to serve as Authorized Users, subject to the terms of this Agreement and the applicable Order Forms, and provided any use of the Ventus Assets by such individuals will be for the sole benefit of Customer.

   2. Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Ventus Assets; (ii) share any Ventus issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Service or Software; (iv) modify, adapt, or translate the Ventus Assets or remove or modify any proprietary markings or restrictive legends placed on or within the Ventus Assets; (v) make copies, store, or archive, any portion of the Ventus Assets without the prior written permission of Ventus; (vi) use the Ventus Assets in violation of any applicable law; or (vii) introduce, any Malicious Code into the Service or Software (together, (i) through (vii) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.

   3. Trial Period. Subject to the terms of the Agreement and Order Form, including payment of all Trial Period fees (if any), commencing on the Effective Date and for the period set forth on the Order Form, Customer will have the right to use the Ventus Assets for evaluation purposes ("Trial Period"). Prior to the end of the Trial Period, Customer may terminate this Agreement without further obligation upon written notice to Ventus ("Trial Termination Notice"). If Ventus does not receive a Trial Termination Notice prior to the end of the Trial Period, the Subscription Period commences upon the expiration of the Trial Period, and Ventus will invoice Customer in accordance with Section 6.

   4. Beta Features. Beta Features made available by Ventus are provided to Customer for testing purposes only. Ventus makes no commitments to provide Beta Features in any future versions of the Ventus Assets. Customer is not obligated to use Beta Features. Ventus may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Ventus does not provide Support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.

   5. Third-Party Applications. The Software integrates with third party products, services, systems, browsers, tools or applications that are not owned or controlled by Ventus ("Third-Party Application(s)"). Ventus neither licenses Third Party Applications for Customer’s benefit nor endorses any Third-Party Applications. This Agreement does not apply to such Third-Party Applications including Customer’s use thereof. VENTUS HAS NO LIABILITY OR OBLIGATION OF ANY KIND RELATED TO ANY THIRD-PARTY APPLICATIONS USED BY CUSTOMER. Customer is required to maintain and comply with any applicable agreements with respect to Third-Party Applications necessary for the interaction of such Third Party Applications with the Software under this Agreement.

3. Ventus Obligations.

   1. Software. Ventus will provide the Service and Software in conformance with this Agreement, Order Form(s), SOW(s) and the Documentation. Ventus will make the Agents available via webstores for supported web browsers as a browser plug-in and as set forth in the Documentation.

   2. Customer Workflow Mapping. Customer will generate Customer Workflows by using the Agent which interacts with Third Party Applications chosen by Customer. Agents will send Customer Workflows to Ventus for Ventus to update Agents based on  such Customer Workflows and as specified further in the Documentation or applicable SOW.

   3. Support. Unless stated otherwise in the applicable Order Form and/or SOW, if Customer experiences any errors, bugs, or other issues in its use of the Service or Software, Ventus will use commercially reasonable efforts to respond as soon as possible (“Support”) in order to resolve the issue or provide a suitable workaround. The fee for standard Support is included in the cost of the subscription set forth on the Order Form and/or SOW.

   4. Software and Service Changes. Customer acknowledges that the Service is an on-line, subscription-based service, and that in order to provide improved experience, Ventus may make changes to the Service as well as the Software provided Ventus will not materially decrease the overall functionality of the Service and/or Software.

   5. Professional Services. The parties may execute a Statement of Work for "Professional Services." Unless stated otherwise in the Statement of Work, Ventus will own any and all improvements to the Ventus Assets made by Ventus that arise out of the Statement of Work and/or Professional Services. Any conflict between the terms of this Agreement and a Statement of Work will be resolved in favor of the Statement of Work but only with respect to the subject matter thereof.

4. Customer Obligations.

   1. Internet Connections. Customer will be responsible for obtaining Internet connections necessary for Customer to access the Ventus Assets.

   2. Customer Implementation & Updates. Promptly following the Effective Date and during the Term: (i) Ventus will make available the Software as an Agent as specified herein and in the Documentation; and (ii) Customer is responsible for installing the Agent, including all updates thereto, within the Customer Environment and supported browser(s). Customer will install all Agents and updates in a timely fashion. If Customer fails to do so, performance of the Software may be impacted.

   3. Export. The Ventus Assets are subject to export control laws and regulations. Customer may not access or use the Ventus Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Ventus Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.

5. Customer Data License & Protections.

   1. Customer Data License. In connection with its use of the Software, Customer (including its Authorized Users) will transfer Customer Data to Ventus. Ventus: (i) uses Customer Workflows to update Agents; (ii) uses Customer Data to provide the Service and Software; and (iii) uses Customer Data in combination with the Prompt and a Third Party Generative AI Service to generate AI Output for Customer. Customer grants Ventus a limited license during each Subscription Period to use Customer Data as provided for in this Section 5(a) and in accordance with this Agreement and the DPA. Customer Data is not used to train Third Party Generative AI Services.

   2. Usage Data. While Customer uses the Service and Software, Ventus will generate Usage Data. Ventus will use Usage Data to debug the Service and Software. Ventus will aggregate and anonymize all Usage Data when Ventus uses Usage Data to develop and improve the Service and Software.

   3. Security. Ventus maintains industry-standard physical, technical, and administrative safeguards in order to protect Customer Data in accordance with Ventus’s “Security Protocols” set forth in Annex II to the DPA.

   4. DPA. Ventus will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.

6. Fees.

   1. Fees. Customer will pay all fees set forth in the applicable Order Form. Unless otherwise provided for in an Order Form: (i) all amounts are due and payable to Ventus within thirty (30) days from the date of the Order Form; and (ii) all payments are non-cancellable and non-refundable.

   2. Taxes. Customer will pay all applicable Taxes excluding only those based on Ventus’s net income. If Customer is compelled to make a deduction or set-off for any such Taxes, Customer will pay Ventus such additional amounts as necessary to ensure receipt by Ventus of the full amount Ventus would have received but for the deduction. Any applicable direct pay permits or valid Tax-exempt certificates must be provided to Ventus prior to the execution of this Agreement. If Ventus is required to collect and remit Taxes on Customer’s behalf, Ventus will invoice Customer for such Taxes, and Customer will pay Ventus for such Taxes in accordance with Section 6(a).

   3. Late Payments. In the event that Ventus does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, Ventus may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); (ii) condition future Software renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend access to and terminate for failure to pay (if applicable) the Software pursuant to Section 7(b).

7. Term & Termination.

   1. Term. The “Term” of the Agreement commences on the Effective Date and will continue in effect thereafter so long as there is an active Subscription Period under and Order Form, or until terminated earlier in accordance with Section 7(b). For clarity, each Subscription Period will be set forth in the applicable Order Form.

   2. Suspension Rights & Termination. Ventus may suspend Customer’s access to, or use of, the Service and Software if: (i) any amount due to Ventus under any invoice is past due and such amount is not paid within 10 days of written notice from Ventus; and (ii) any use of the Service and/or Software by Customer or Authorized Users that in Ventus's reasonable judgment threatens the security, integrity or availability of the Service and/or Software. Ventus will: (x) provide Customer with written notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension; and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.

   3. Termination.  Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days' notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.

   4. Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), Ventus will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Period as of the date of such termination. Upon termination or expiration of this Agreement for any reason, Ventus will, upon written request and within 30 days of such request, delete all Customer Data processed on behalf of Customer during the Subscription Period as specified in the DPA.

   5. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 14 (Miscellaneous, as applicable).

8. Confidentiality.

   1. Each party that receives ("Receiving Party") Confidential Information of the other party ("Disclosing Party") will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms. 

   2. Receiving Party may disclose, distribute, or disseminate Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, including to the same with respect to its Affiliates, contractors, or agents (its "Representatives"), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.

   3. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party's Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.

   4. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.

9. Ownership.

   1. Ventus Property. As between the parties, Ventus owns and retains all right, title, and interest in and to the Ventus Assets, the Prompt and Usage Data. Except for the limited license granted to Customer in Sections 2(a), Ventus does not by means of this Agreement or otherwise transfer any other rights to Customer.

   2. Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data and AI Output. Except for the licenses granted to Ventus in Section 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to Ventus.

   3. Feedback. Customer may provide comments, suggestions and recommendations to Ventus with respect to the Ventus Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Ventus may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing.

10. Representations & Warranties; Disclaimer.

    1. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.

    2. Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to Ventus; (ii) has all licenses, permissions, consents and rights necessary to grant Ventus the licenses and rights set forth in this Agreement including with respect to any Third-Party Applications necessary to enable the Ventus Agents to interact with the Third Party Application; and (iii) will not transmit any Prohibited Content to Ventus by means of the Service or Software or as required for Ventus’s provision of Support hereunder.

    3. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE VENTUS ASSETS AND BETA FEATURES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. VENTUS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. VENTUS DOES NOT WARRANT THAT THE VENTUS ASSETS OR BETA FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER'S REQUIREMENTS.

    4. AI Disclaimer. AI OUTPUT IS GENERATED BY MACHINE LEARNING CAPABILITIES OF THE SOFTWARE. ALL AI OUTPUT IS PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS OTHERWISE STATED IN A SOW, VENTUS MAKES NO WARRANTY OR GUARANTEE AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF AI OUTPUT. Customer acknowledges that due to the nature of the Software and artificial intelligence generally, AI Output may result in different AI Output from one use to the next. AI Output does not represent Ventus’ views. AI Output may contain errors and misstatements and may be incomplete or inaccurate. Customer is solely responsible for evaluating all AI Output for accuracy and appropriateness for Customer's use case, including by utilizing human review as appropriate, and Customer is solely responsible for all use of the AI Output, including any reliance on the accuracy, completeness, or usefulness of any AI Output.

11. Indemnification.

    1. By Ventus.

       1. Ventus will defend Customer, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Customer Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Ventus will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Ventus Assets, including Customer's permitted use thereof, infringes or misappropriates any patent, trademark or copyright of such third party.

       2. If Ventus becomes, or in Ventus’s opinion is likely to become, the subject of an infringement or misappropriation claim, Ventus may, at its option and expense: (a) procure for Customer the right to continue using the Ventus Assets; (b) replace the Ventus Assets (including any component part) with a non-infringing substitute subject to Customer's prior written approval; or (c) modify the Ventus Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, Ventus shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).

       3. Ventus will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (a) any unauthorized use, reproduction, or distribution of the Ventus Assets or Ventus’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (b) any unauthorized combination of, or modification to, the Ventus Assets or Ventus’s intellectual property rights, other than as expressly approved by Ventus that causes the underlying claim where such claim would have not occurred but for such unauthorized act.

       4. THIS SECTION 11(A) STATES VENTUS’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.

    2.  By Customer. Customer will defend Ventus, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Ventus Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the Ventus Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Ventus Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer's breach of Section 10(b) (Customer Representations & Warranties); and (iii) any allegation by a governmental body that use of Customer Data, as permitted by Ventus under this Agreement or at Customer's request or direction, has violated any applicable law.

    3. Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties' prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties' expense, in connection with the defense and settlement of the claim.

12. Limitation on Liability.

    1. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.

    2. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (BUT AS FURTHER LIMITED BELOW) AND UNCAPPED CLAIMS, EACH AS DEFINED BELOW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE VENTUS ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT'S SOLE AND EXCLUSIVE REMEDY.

    3. "Excluded Claims" means any claim and/or liability associated with any breach by Ventus of Sections 5(d) (Security) and 5(e) (DPA), including for clarity with respect to any claim of liability associated with the DPA and Security Controls. Ventus’s total, cumulative liability for all Excluded Claims will not exceed the greater of (i) $500,000 or (ii) three (3) times the total amount of fees paid by Customer for use of the Ventus Assets under this Agreement.

    4. "Uncapped Claims" means any claim or liability associated with: (i) either party's breach of Section 8 (Confidentiality) but not relating to any liability associated with Ventus’s privacy and/or security obligations with respect to Customer Data which remains subject to the Excluded Claims cap; (ii) either party's respective indemnification obligations under Section 11; or (iii) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, intentional misconduct, or violation of the other party’s intellectual property rights.

13. Force Majeure. Except for Customer's payment obligations hereunder, neither Ventus nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action (each, a "Force Majeure Event"). For clarification, events caused by a party's own action are not Force Majeure Events. If a Force Majeure Event prevents Ventus from providing the Software for at least thirty (30) consecutive days, either of the parties may immediately terminate this Agreement and any Order Forms, by providing written notice to the other.

14. Miscellaneous. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in San Francisco County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. To the extent there is an inconsistency between the terms of the Agreement, an Order Form and the DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA.