Terms & Conditions

This Northpass Software as a Service Agreement (together with the Order Form, this “Agreement”) by and between Northpass, Inc., a Delaware corporation, with its principal place of business at 6 Upper Pond Road, Parsippany, New Jersey 07054 (“Northpass”) and the customer identified on the Northpass order form into which this Agreement is incorporated (the “Order Form”) executed by such customer (the “Customer”, together with Northpass, the “Parties”, and each a “Party”), is entered into as of the date that the Customer executes the Order Form (“Effective Date”). The Parties agree as follows:

1. SERVICES.

a. SaaS Solution. Subject to the terms and conditions of this Agreement, Northpass hereby grants Customer a limited, nonexclusive, nonsublicensable, nontransferable right to access and use Northpass’ software-as-a-service platform known as “Northpass” (“SaaS Solution”) during the Term solely for Customer’s own business operations by the number of Users specified in the Order Form. Subject to the preceding sentence, Customer may permit Users to access and use the SaaS Solution through the Customer Site and may use the SaaS Solution to provide Customer Content to Users and administer and moderate Users’ submissions and postings. “Users“ means the end-users of the Customer Site who access the SaaS Solution. “Customer Site” means the website owned or operated by or on behalf of Customer that is used by Users to access the SaaS Solution. “Customer Content” means all content owned by, created by or supplied by or on behalf of Customer or its Users for use on or distribution through the Customer Site or SaaS Solution. Northpass will use commercially reasonable efforts to provide Customer with access to the SaaS Solution for use by Customer and its Users, subject to the terms and conditions of this Agreement. Northpass will provide access to the SaaS Solution via the Internet or one or more of Northpass’ application programming interfaces (collectively, “API”). If Customer has access to the API, the terms and conditions of Section 2 apply.

b. Professional Services. If the Order Form includes the provision of professional services, Northpass will use commercially reasonable efforts to provide the professional services set forth in the Order Form (“Professional Services”).

c. Customer Responsibilities. Customer is responsible for access to the SaaS Solution, Customer Content, Customer Data and API by other persons as a result of Customer’s failure to comply with the terms of this Agreement or use reasonable precautions to secure its own systems or credentials for access to the SaaS Solution. Customer will: (i) use its best efforts to prevent unauthorized access to or use of the SaaS Solution and API, and notify Northpass immediately of any such unauthorized access or use; and (ii) promptly deactivate the SaaS Solution User account of any individual no longer tasked with the use of the SaaS Solution. Customer will be solely responsible to obtain the authorizations, licenses and consents, if and as required by any applicable law, to make the SaaS Solution available to Users and for the collection, storage and processing of information and/or sensitive information by Northpass according to Customer’s instructions.

d. Use Restrictions. Customer will not, directly or indirectly through any third party: (i) use the SaaS Solution or API for any purpose other than its own business purposes; (ii) use or access the SaaS Solution or API in violation of any applicable law, rule or regulation, including any data privacy law or regulation; (iii) sell, resell, license, lease, transfer, distribute, redistribute, assign, transmit, publish, display or otherwise commercially exploit or make available (collectively, “Distribute”) the SaaS Solution or API to any third party, other than to Users; (iv) Distribute libelous, defamatory, pornographic, obscene, invasive of privacy or publicity rights, abusing, inciting, harassing, threatening, unlawful, tortious, misleading, false or fraudulent Customer Content or Customer Data on, to or through the SaaS Solution or API; (v) Distribute Customer Content or Customer Data on, to or through the SaaS Solution or API that violates the rights of any party or infringes upon or misappropriates the patent, trademark, trade secret, copyright, or other intellectual property right of any party; (vi) Distribute malicious or harmful computer code on, to or through the SaaS Solution or API; or (vii) duplicate or reverse engineer the SaaS Solution or API, in whole or in part. “Customer Data” means the electronic information or data submitted or made available by or on behalf of Customer or Users that is received, processed or stored by Northpass or the SaaS Solution as part of the Services.

e. Upgrades and Modifications. Customer agrees that Northpass may update, upgrade, enhance or modify the SaaS Solution or any functionality thereof, at any time, including the removal or modification of previously available functionality. All updates, upgrades, enhancements or modifications to the SaaS Solution made available to Customer or Users by Northpass will automatically be considered part of the SaaS Solution and will be subject to the terms and conditions of this Agreement.

f. Suspension. Northpass may suspend or interrupt the provision of the SaaS Solution or Professional Services (collectively, “Services”) or API, in whole or in part, at any time immediately upon notice to Customer if Northpass determines that: (i) Customer or Users are using or intend to use the Services in violation of this Agreement or in violation of any applicable law, rule or regulation; (ii) any computer system of Customer has been compromised or unlawfully accessed; (iii) suspension of the Services is necessary to protect the infrastructure of Northpass or its affiliates, the environment in which the SaaS Solution is deployed, or Northpass’ other customers; (iv) suspension is required under law, rule or regulation; or (v) Customer has failed to pay Fees when due. All remedies in this Section 1(f) are in addition to, and not in lieu of, other remedies available to Northpass.

g. Users. Customer will cause all Users to comply at all times with all representations, warranties, restrictions, obligations and covenants of Customer in this Agreement. Customer will be directly liable to Northpass for any breach of this Agreement by, or caused by, Users.

2. API.

a. Use. Northpass hereby grants Customer a limited, revocable, nonexclusive, nontransferable, nonsublicensable right to access the API during the Term for the sole purpose of accessing the SaaS Solution in accordance with the terms and conditions of this Agreement. Except for the limited right to access the API set forth in the preceding sentence, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or any other right, title, or interest in or to the API. Northpass reserves all intellectual property rights and any other rights and licenses in and to the API and any derivative works thereof, including all changes, modifications, or improvements made or developed with regard to the API, whether or not made or developed at Customer’s request. In any event, Customer hereby assigns all right, title and interest in and to the API and any and all enhancements, modifications, improvements or derivative works thereof (including without limitation all intellectual property rights) to Northpass. Customer will ensure that passwords associated with the API remain confidential and secure and to not allow multiple users to utilize the same user account associated with the API. Customer must not provide, or provide access to, a user account associated with the API to any third party without prior written consent of Northpass. Northpass may suspend or terminate Customer’s access to the API if Northpass determines that Customer breaches any term of this Agreement.

b. No Warranty. THE API IS PROVIDED “AS IS”, WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION WARRANTIES WITH RESPECT TO MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR COMPLIANCE WITH LAW. NORTHPASS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO THE API.

3. PAYMENT.

a. Terms of Payment; Method. Customer shall pay to Northpass all fees set forth in the Order Form for the provision of Services (“Fees”) at the times identified in the Order Form (or if none, within thirty (30) days of the date of the applicable invoice issued by Northpass to Customer), without deduction or set-off. All payments of Fees shall be made in U.S. Dollars. Payment can be made by sending a good business check or by electronic funds transfer to the address and/or account referenced on the Order Form. Customer will ensure the Northpass invoice number must be referenced on all payments. Customer agrees that all payments of Fees are nonrefundable, except as expressly set forth in this Agreement.

b. Late Payments. All late payments will bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.

c. Taxes. Fees are exclusive of Taxes, and Customer will be solely responsible for the payment of all such Taxes (other than Taxes computed on the basis of the net income of Northpass).“Taxes” means all of the following: sales, use or privilege taxes, excise or similar taxes, value added taxes, import and export taxes, duties or assessments, shipping, handling, insurance, brokerage, and other related charges levied by any jurisdiction (including penalties and interest) and any costs associated with the collection and withholding of any of the foregoing items.

4. TERM AND TERMINATION.

a. Term; Renewal. This Agreement shall commence on the Effective Date and remain in full force and effect for the term set forth on the Order Form (the “Initial Term”), unless and until earlier terminated in accordance with this Agreement. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive periods of time equal to the Initial Term (each a “Renewal Term”, together with the Initial Term, the “Term”), unless either Party provides the other Party written notice of nonrenewal no less than sixty (60) days prior to the expiration of the then-current term or earlier terminated in accordance with this Agreement.

b. Termination for Breach. Either Party may terminate this Agreement if the other Party fails to cure any material breach of this Agreement within ten (10) days (or one (1) day if such breach is a breach by Customer of any payment obligation under this Agreement) after written notice of such breach.

c. Immediate Termination. Either Party may terminate this Agreement immediately upon notice to the other Party if: (a) the other Party (i) is adjudged insolvent or bankrupt, (ii) institutes or has instituted against it any proceeding seeking relief, reorganization or arrangement under any laws relating to insolvency (and, in the case of any such proceeding instituted against it, the proceeding is not dismissed within thirty (30) days after the filing), (iii) makes any assignment for the benefit of creditors, (iv) appoints a receiver, liquidator or trustee of any of its property assets, or (v) liquidates, dissolves or winds up its business; or (b) if any change occurs in any applicable laws or regulations that would, in that Party’s reasonable opinion, render the Party’s performance hereunder illegal. Northpass may terminate this Agreement immediately upon notice to Customer if Customer breaches any provision of Section 1.

d. Effect of Termination. Upon expiration or termination of this Agreement: (i) all rights granted to Customer and Users to access and use the SaaS Solution and API shall terminate immediately; (ii) Northpass’ obligation to provide Services shall terminate immediately; (iii) Customer shall promptly remove, or ensure removal of, the SaaS Solution from the Customer Site; (iv) each Party shall destroy all copies of the Confidential Information of the other Party on tangible media in such Party’s possession or control or return such copies to the other Party; (v) Customer shall certify in writing to Northpass that it has satisfied all obligations in this Section 4(d), and (vi) Customer shall pay all Fees incurred as of the date of termination or expiration. Customer acknowledges and agrees that Northpass has no obligation to retain Customer Data or Customer Content after termination or expiration of this Agreement, and may delete such Customer Data and Customer Content thirty (30) days after termination or expiration of this Agreement. If Customer wishes for Northpass to preserve a copy of its Customer Data or Customer Content for longer than such thirty (30) day period, Customer shall enter into a separate Order Form for the preservation of such Customer Data and Customer Content.

5. OWNERSHIP.

a. Northpass Materials. Except for the limited rights expressly granted to Customer in this Agreement, Northpass retains all right, title and interest (including all intellectual property rights) in and to the SaaS Solution (including all updates, upgrades, enhancements or modifications to or of the SaaS Solution), the solutions provided thereby, all software and technology underlying the SaaS Solution, all Northpass documentation relating to the SaaS Solution, the Northpass Trademarks and all content or works of authorship created, licensed or provided by Northpass (collectively, “Northpass Materials”). Title to and ownership of any Northpass Materials created by Northpass in the course of providing Services shall be held exclusively by Northpass, whether such Northpass Materials were requested by or on behalf of Customer or incorporate ideas, feedback or comments provided by or on behalf of Customer. Customer will not acquire any rights in or to the Northpass Materials by implication, estoppel or otherwise. Customer hereby assigns all rights, title and interest in and to the Northpass Materials to Northpass.

b. Customer Content and Customer Data. As between the Parties,  Customer Content and Customer Data shall remain the property of Customer. Customer hereby grants to Northpass a nonexclusive, worldwide, royalty-free right and license during the Term and any post-Term data retention period in accordance with Section 4(d) to use, reproduce, distribute, modify, display and prepare derivative works of the Customer Content and Customer Data solely for purposes of providing the Services to Customer.

6. CONFIDENTIALITY.

a. Confidential Information. From time to time during the Term, either Party (as the “Discloser”) may disclose or make available to the other Party (as the “Recipient”), non-public, proprietary, or confidential information of Discloser (“Confidential Information”). Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Recipient’s breach of this Section 6; (ii) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Recipient’s possession prior to Discloser’s disclosure hereunder; or (iv) was or is independently developed by Recipient without using any Confidential Information of the Discloser. The Recipient shall: (1) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would use to protect its own Confidential Information, but in no event with less than a reasonable degree of care; (2) not use the Discloser’s Confidential Information, or authorize it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (3) not disclose Discloser’s Confidential Information to any person or entity, except to the Recipient’s Group who need to know the Discloser’s Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement and who have agreed to confidentiality terms at least as restrictive as those set forth in this Section 6. If the Recipient is required by applicable law or legal process to disclose any Confidential Information of the Discloser, Recipient may disclose such portion of the Confidential Information required to be disclosed by applicable law or legal process if Recipient, prior to making such disclosure, uses reasonable efforts to notify Discloser of such requirements to afford Discloser the opportunity to seek, at Discloser’s sole cost and expense, a protective order or other remedy. “Recipient’s Group” means the Recipient’s employees, officers, directors, agents, independent contractors, subcontractors, attorneys, accountants, and financial advisors. Recipient will cause all members of its Recipient’s Group to comply with Recipient’s obligations under this Section 6. Recipient shall be responsible and liable for any and all breaches of this Section 6 by, or caused by, its Recipient’s Group.

b. Data Collection. In addition to the rights and licenses granted in Section 5(b), Customer hereby grants to Northpass a nonexclusive, worldwide, royalty-free, irrevocable, perpetual right and license to (i) aggregate Customer Data and information or data that is derived by or through Customer’s or Users’ use of the SaaS Solution with other data to create Anonymous Aggregated Data; and (ii) use, reproduce, modify, distribute, display and create derivative works of Anonymous Aggregated Data. Northpass may use Anonymous Aggregated Data to benchmark, operate and improve the SaaS Solution and other Northpass goods and services, and market Northpass products and services. “Anonymous Aggregated Data” means data that has been aggregated with other data and anonymized to exclude data that identifies any individual, company, or organization.

c. Data Protection Addendum. Customer will provide Northpass written notice before uploading, transmitting, making available or otherwise publishing on, to or through the SaaS Solution any Customer Content or Customer Data that is subject to the General Data Protection Regulation (EU 2016/679). Upon Northpass’ request, Customer will enter into Northpass’ then standard GDPR Data Protection Addendum.

7. CUSTOMER SITE.

a. Customer’s Terms of Use. Customer shall not identify Northpass as the owner or operator of the Customer Site, including in any “terms of use” or other website terms and conditions. Customer agrees to include and maintain at all times on the Customer Site terms of use regarding the use of the SaaS Solution that are at least as restrictive and protective as those set forth in this Agreement. Customer agrees to enforce all such provisions and cause all Users to comply with all such provisions. Customer will ensure that Northpass is an irrevocable, intended third party beneficiary to all such Customer Site terms of use.

b. Northpass’ Terms of Use; Privacy Policy. Customer understands and agrees that Northpass may require Users of the SaaS Solution, as accessed through Customer Site, to agree to Northpass’ standard Terms of Service and Privacy Policy relating to the SaaS Solution, as may be amended from time to time by Northpass in Northpass’ sole discretion. Customer shall reasonably cooperate with Northpass in connection with Northpass posting or making available said standard Terms of Service and Privacy Policy via the Customer Site or SaaS Solution. Customer will cause all Users to comply with said standard Terms of Service and Privacy Policy.

c. Northpass Trademark License. For purposes of identifying that the Customer Site incorporates, or is otherwise “powered by,” the SaaS Solution, Northpass grants to Customer during the Term and solely on the Customer Site, the limited, revocable, nonexclusive, nontransferable, nonsublicensable right and license to use the “Northpass” or other logos and trademarks owned or licensed by Northpass and specifically provided to Customer by Northpass for use on the Customer Site (“Northpass Trademarks”). Customer will ensure that (i) Northpass Trademarks are included in the Customer Site at all times during the Term to conspicuously identify Northpass as the provider of the SaaS Solution; and (ii) all Northpass Trademarks on the Customer Site are at all times configured on the Customer Site as an active link back to the url www.Northpass.com. Customer’s use of the Northpass Trademarks is subject to Northpass' approval, and such use inures solely to the benefit of Northpass. Northpass retains the sole discretion to revoke this license for any reason whatsoever or for no specified reason.

8. INDEMNIFICATION.

a. Northpass Indemnification of Customer. Northpass will indemnify, defend and hold Customer and its directors, officers, employees, agents, successors and permitted assigns harmless from and against all claims, actions, causes of action, investigations, lawsuits, litigation and proceedings initiated by a third party (“Claims”), and all awards, damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments) and expenses (including interest, court costs, reasonable fees and expenses of attorneys, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any claim, default or assessment) (“Losses”) resulting from Claims, to the extent the Claims arise out of or relate to a claim that the SaaS Solution infringes a third party’s U.S. intellectual property rights.

  i. Northpass Options. If an action or claim is brought that is subject to indemnification under this Section 8(a), or if Northpass reasonably determines in its discretion that such an action or claim is likely to be made, Northpass may, at its option, (a) replace or modify the SaaS Solution so it is no longer infringing but is functionally equivalent without material adverse impact on Customer, or (b) obtain for Customer the right to continue using the SaaS Solution. If Northpass determines that neither (a) nor (b) is commercially practicable, then Northpass may terminate Customer's right to use the infringing SaaS Solution, in which event Customer shall receive, as its sole and exclusive remedy, a pro-rata refund of amounts paid for the SaaS Solution based upon the term of the Order Form.

  ii. Exclusions. The indemnification obligation under this Section 8(a) will not apply to any Claims and Losses subject to indemnification under Section 8(b) or arising from or related to: (i) modification of the SaaS Solution by, or at the request of, any party other than Northpass; (ii) Customer Content, Customer Data, Customer Site or Third-Party Materials; (iii) the combination of the SaaS Solution with any item, technology, SaaS offering, data, website, content or material not supplied by Northpass; (iv) the use of the SaaS Solution in violation of this Agreement; or (v) use of the SaaS Solution where such infringement or misappropriation could have been avoided by use of subsequent SaaS Solution provided by Northpass and Northpass has notified Customer in writing of a need to update the SaaS Solution.

  iii. Sole Remedy. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, THE INDEMNIFICATION OBLIGATION UNDER THIS SECTION 8(a) STATES NORTHPASS’ ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

b. Customer indemnification of Northpass.  Customer will indemnify, defend and hold Northpass and its directors, officers, employees, agents, successors and permitted assigns harmless from and against all Claims, and all Losses resulting from Claims, to the extent the Claims arise out of or relate to: (i) Customer’s or any User’s actual or alleged breach of this Agreement; (ii) Customer Content, Customer Data, or Customer Site; or (iii) Customer’s or any User’s actual or alleged gross negligence or more culpable conduct. Customer shall not enter into any settlement or compromise in connection with any claim subject to indemnification under this Section 8(b) that requires Northpass or any other indemnified party under this Section 8(b) to admit wrongdoing or liability, make any payments, comply with any ongoing affirmative obligations or comply with any restrictive covenants.

9. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY.

1. Customer. Customer represents and warrants that: (i) it is permitted to provide to Northpass the Customer Content and Customer Data for all purposes related to this Agreement; and (ii) Northpass’ possession, reproduction, use or disclosure (separately and together) of the Customer Content or Customer Data in accordance with this Agreement will not infringe upon, misappropriate or violate any right of any third party or any federal, state, local or foreign law, rule, regulation, or statute.
2. Northpass. Northpass warrants that the SaaS Solution will function substantially in accordance with the online "help" documentation provided by Northpass.
3. Warranty Disclaimer. EXCEPT AS MAY BE EXPRESSLY SET FORTH IN THIS SECTION 9, THE SAAS SOLUTION AND ALL SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, AND NORTHPASS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ELSEWHERE, ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS (IF ANY) IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDER, OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. NORTHPASS HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THIRD-PARTY MATERIALS. “Third-Party Materials” means all goods, services, technology, materials or information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components, of or relating to the Services or SaaS Solution that are not proprietary to Northpass.
4. Consequential Damages Disclaimer. IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY, ITS AFFILIATES OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL (INCLUDING LOST PROFITS), EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF, OR INABILITY TO USE, THE SERVICES, OR IN CONNECTION WITH ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT (INCLUDING BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE) AND WHETHER OR NOT SUCH PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
5. Liability Cap. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY AND ITS AFFILIATES FOR ALL DAMAGES AND LIABILITIES ARISING UNDER ALL CLAIMS IN CONNECTION WITH OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION (INCLUDING ACTIONS FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, RESCISSION, MISREPRESENTATION AND BREACH OF WARRANTY) SHALL NOT IN THE AGGREGATE EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO NORTHPASS UNDER THIS AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH CAUSED THE DAMAGE OR CLAIM. THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 9(e) SHALL APPLY EVEN IF AN EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.
6. Exceptions. The provisions of Section 9(d) and Section 9(e) shall not apply to damages and liabilities that arise from: (i) breach of Section 1(c), (ii) breach of Section 1(d), (iii) breach of Section 6; (iv) breach of Section 7(c); (v) breach of or performance under Section 8; (vi) Customer’s obligation to pay Fees; or (vii) a Party’s gross negligence, fraud or willful misconduct.

10. MISCELLANEOUS. This Agreement: (a) is governed by, and will be interpreted, construed and enforced in accordance with, the laws of the State of New Jersey, without giving effect to the State of New Jersey’s conflict of laws rules; (b) is binding upon, and will inure to the benefit of, the Parties and their respective successors and permitted assigns; and (c) constitutes the sole and entire agreement of the Parties with respect to the subject matter herein, and supersedes all prior and contemporaneous written or oral negotiations, understandings, agreements, representations, and warranties, with respect to the subject matter herein. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion. This Agreement may be amended only by a written document signed by duly authorized representatives of each Party. Notwithstanding the preceding sentence, (i) Northpass may modify this Northpass Software as a Service Agreement (including any referenced policies and other documents) at Northpass’ sole discretion; and (ii) the modified version of this Northpass Software as a Service Agreement will be effective as to Customer upon the commencement of the Renewal Term immediately following the term during which Northpass modifies this Northpass Software as a Service Agreement. Customer may not, directly or indirectly, assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, without the prior written consent of Northpass. Any purported assignment or delegation in violation of this Section 10 shall be null and void. Each Party expressly consents to the exclusive jurisdiction of the federal, state and local courts serving Morris County, New Jersey, to govern all disputes arising out of or relating to this Agreement. Notwithstanding the foregoing, either Party may seek injunctive relief against the other Party from any other judicial or administrative authority pending the resolution of such dispute. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, CONTROVERSY, CLAIM OR LEGAL ACTION ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. If any legal action is brought to enforce this Agreement, the prevailing Party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses. There are no third-party beneficiaries to this Agreement. All references to and mentions of the words “including”, “include” or “includes” shall be deemed to be followed by “without limitation.” “Or” is not exclusive. The following Sections shall survive termination or expiration of this Agreement (where reference is to a Section, all subsections are deemed to be included): 1(c), 1(d), 1(g), 2, 3, 4(d), 5, 6, 8, 9(c), 9(d), 9(e), 9(f) and 10, and any other provisions which by their nature should survive such termination or expiration. Northpass shall not be liable for failure or delay in performing its obligations under this Agreement if such failure is a result of any event outside of the reasonable control of Northpass.