Last updated March 26, 2025

This Master Services Agreement (this “Agreement”) governs the rights to use the Penrove, Inc. (“Penrove”) software-as-a-service platform (such platform, including the software, and all related updates, upgrades, documentation, related services, related activities, and new service offerings are referred to collectively herein as the “Service”) on a subscription basis. A “Customer” is a person or legal entity that: (a) has executed an Order Form (as defined below), or (b) otherwise gains access to the Service (or any portion thereof). Customer and Penrove are referred to collectively herein as the “parties” and each individually as a “party.” This Agreement is effective as of the earlier of: (i) the effective date set forth in the order form or other similar agreement pursuant to which Customer has agreed to access the Service on a subscription or trial basis (the “Order Form,” and such date, the “Effective Date”), or (ii) Customer’s initial use of the Service.

Capitalized terms defined in any applicable Order Form and used in this Agreement shall have the same meanings ascribed to such terms as in the applicable Order Form. The Service is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. This Agreement is also subject to the provisions of Penrove’s Data Processing Agreement available at www.penrove.com/dpa (the “DPA”), which is incorporated herein by reference.

1. SERVICE ACCESS

1.1 Provision of the Service. Penrove agrees that Customer may access the Service on a subscription or trial basis for the term set forth in the applicable Order Form. Subject to Section 7.1 (Limited Warranty) of this Agreement, Penrove may, from time to time and at its sole discretion, add, modify, replace or delete any component of the Service.  

1.2 Accounts. In order to access and use certain features of the Service, Customer may be required to register for an account or multiple accounts (each, an “Account”). Use of and access to the Service, in whole or in part, is permitted to those persons so designated by Customer pursuant to the terms of this Agreement and/or the applicable Order Form (such persons, “Permitted Users”). If Customer is given Account login information (including user IDs and passwords) to access the Service, Customer shall cause its Permitted Users to keep such Account login information strictly confidential and not share such information with any unauthorized person(s). Customer is solely responsible for maintaining the security and confidentiality of its Account information (including login information) and is fully responsible for any activities of its Permitted Users.

1.3 Account Access. Customer acknowledges that while the security of Customer’s Account may be maintained through the use of passwords, it may be possible for Customer’s Account to be accessed by unauthorized third parties via communication between Customer and Penrove using the internet, other network communications, facilities, telephone, or other electronic means, and Penrove disclaims any and all liability resulting from or related to such events. Customer may permit its Customer Affiliates (as defined below) and independent contractors and consultants, in each case (“Contractors”) to serve as Permitted Users, provided: (a) Customer remains responsible for compliance by each such Contractor or Customer Affiliate with all of the terms and conditions of this Agreement and any Order Form, in each case, that is applicable to Permitted Users, and (b) any such use of the Service by any such Contractor or Customer Affiliate is for the sole benefit of Customer and is otherwise in accordance with the terms of this Agreement and any Order Form. “Customer Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. Notwithstanding anything in this Agreement to the contrary, Penrove may: (i) refuse to register an Account, (ii) refuse to provide access to the Service, or (iii) revoke access to any user at any time in its sole and absolute discretion and for any reason.

1.4 General Restrictions. Customer shall not, and shall not allow, cause, or permit its Permitted Users to, in each case without the express written authorization of Penrove: (a) rent, lease, copy, provide access to, transfer, publish, assign, convey, translate, convert to another programming language, license or sublicense the Service, or access to the Service, or use the Service to provide a service to a third party, (b) reverse engineer, decompile, disassemble, deconstruct or otherwise seek to obtain the source code or application programming interfaces (“APIs”) to the Service, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Penrove), (c) modify the Service, or create any derivative product or service from any of the foregoing, (d) remove or obscure any product or service identification, disclaimer, trademark, watermark, proprietary, copyright or other notices contained in the Service (including any reports or data printed or otherwise obtained from the Service), (e) incorporate the Service into any other offering (whether software as a service or otherwise), or (f) publicly disseminate information or analysis regarding the performance of the Service.

1.5 Export. The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Penrove, or any products utilizing such data, in violation of the United States export laws or regulations and/or in violation of any export or import regulations of any other relevant countries.

1.6 Security and Privacy. Penrove will implement and maintain commercially reasonable administrative, technical and physical safeguards as provided in the DPA.

1.7 Use of Suppliers. Penrove may delegate, subcontract, or otherwise have the Service, or parts thereof including hosting, provided by one or more third parties (each a "Supplier").  Penrove may replace or add Suppliers time to time in its sole discretion, and such addition or replacement may alter the content, functionality and user interface of the Services from time to time in its sole discretion. Customer will be solely responsible for the Customer Data entered in the Service, however entered, including by Penrove on behalf of Customer.  

2. CUSTOMER DATA

2.1 Generally. “Customer Data” means information or other data of any type that is entered into the Services by Customer, by its Permitted Users, or by any other person at the direction, request, invitation or instruction of Customer, or by any other person otherwise acting on behalf of, or for the benefit of, Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data and its use by Customer.

2.2 Customer Representations and Acknowledgments. Customer represents and warrants to Penrove that (a) Customer has sufficient rights in the Customer Data to authorize Penrove and its affiliates and Suppliers to use, process, collect, extract, distribute and display the Customer Data as contemplated or authorized by this Agreement, and (b) that the Customer Data and any use, processing, distribution, display thereof, or creation of derivative works based on such Customer Data, does not infringe the rights of any third party. In connection with Customer’s use of the Service, certain features may permit Customer to interact or share Customer Data with third-party websites or services. If Customer chooses to transmit Customer Data or provide any other information to such third parties, Customer agrees to be bound by any applicable third-party terms of use, and Penrove and its affiliates and Suppliers have no responsibility or liability for any such third-party sites or services, nor the transfer of Customer Data to them. Customer acknowledges that any links to third-party websites or services contained in the Service or on Penrove’s website are provided as a convenience and for informational purposes only, and do not constitute an endorsement or approval by Penrove of any of the products, services or opinions of such third-party entity, organization or individual. Penrove bears no responsibility for the accuracy, legality or content of any external site or for any subsequent links thereon.

2.3 Rights in Customer Data.
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(a) As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to Customer Data provided by Customer to Penrove.
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(b) Customer hereby grants to Penrove and its affiliates a non-exclusive, irrevocable, worldwide, sublicensable and royalty-free right to use, reproduce, copy, store, share, distribute, perform, and modify Customer Data and to display such Customer Data (collectively, “Rights”) to the extent necessary to provide and enhance the Service or any other products or services offered by Penrove or any of its affiliates.
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(c) Notwithstanding the foregoing, nothing in this Agreement shall constrain or otherwise limit Penrove or its affiliates’ or Suppliers’ use or sharing of Customer Data that is or has become public, or publicly available.  

3. OWNERSHIP

3.1 Subscription. This is a subscription agreement for use of the Service and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to access or use the Service as provided in the applicable Order Form and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer, its Contractors or any of its affiliates under this Agreement or otherwise, and Customer agrees that Penrove or its affiliates or Suppliers, as applicable, retain all right, title and interest (including all patent, trademark, copyright, trade secret, moral right and other intellectual property rights (collectively, "IP Rights")) in and to: (a) the Service, (b) any formal written operational documentation specific to the applicable Service, excluding any general descriptive materials, correspondence, etc. (“Documentation”), (c) any deliverables related to the Service; and (d) any and all related and underlying software (including interfaces and APIs) and databases, and (d) all other technology (collectively (a)-(d), the “Penrove Technology”). Further, Customer acknowledges that Customer has no right to obtain a copy of the Service or any portion thereof.

3.2 IP Rights. Customer acknowledges that, as between the Customer and Penrove, all IP Rights, in and to the Service and its content and any other Penrove Technology are owned by Penrove, its affiliates or its Suppliers, as applicable, and Customer hereby assigns any rights in and to any Penrove Technology it may have or obtain to Penrove. Neither this Agreement (nor Customer’s access to the Service) transfers to Customer or any third party any right, title or interest in or to any Penrove Technology, except for the limited access rights set forth in this Agreement.

4. ACCEPTABLE USE POLICY

4.1 Policy Overview. Customer hereby agrees to, and shall ensure that it and its Permitted Users fully comply with, the following (the “Acceptable Use Policy”):

(a) Customer agrees that it will only use, and cause its Permitted Users to only use, the data and information obtained using the Service in a manner consistent with all applicable laws and regulations. Customer further agrees not to use, allow, cause or permit its Permitted Users to use, the Service to collect, upload, transmit, display, perform, reproduce, or distribute any Customer Data, or use Customer Data or other information collected or received through the Service in any way: (i) that violates any third-party right, including any IP Right, privacy right, right of publicity, or other proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; or (iii) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.

(b) In addition, Customer agrees to not, and not to allow, cause or permit its Permitted Users to: (i) upload, transmit, or distribute to or through the Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Service unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Service to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service (or to other computer systems or networks connected to or used together with the Service), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Service; (vii) create any derivative works of the Service or any Penrove Technology therein; or (viii) use software or automated agents or scripts to produce multiple accounts on the Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Service.

4.2 Reservation of Rights. Penrove reserves the right to investigate and/or take appropriate action against Customer or any of Customer’s Permitted Users in Penrove’s sole discretion if Customer or any of Customer’s Permitted Users violates this Acceptable Use Policy or any other terms of this Agreement or otherwise creates potential liability for Penrove or any other person or entity, or to comply with any applicable legal or regulatory requirement, request or instruction. Such action may include, but shall not be limited to, terminating access to Customer’s (or such Permitted Users’) Account(s) and/or reporting Customer or such Permitted User to law enforcement and/or regulatory authorities.

5. FEES AND PAYMENT

5.1 Fees. All fees owing by Customer to Penrove are set forth in the Order Form. Unless otherwise set forth in the Order Form, Penrove may, in its sole discretion, make changes to its pricing structure, including making changes to fees due to Penrove following the end of the then-current service term; provided, that Penrove will notify Customer in writing of any such changes prior to their effectiveness. If Customer objects to the changes, then Customer may terminate this Agreement effective on expiration of the then-current service term, as applicable. Customer acknowledges that the expiration of any discount, trial or incentive programs to which Customer was previously entitled shall not constitute a fee increase or otherwise require notice thereof.  

5.2 No Refund Policy. Except as expressly set forth in Section 7.1 (Limited Warranty) or Section 10.1 (Penrove Indemnification), all fees paid by Customer to Penrove are non-refundable. Penrove’s fees are exclusive of all shipping costs and Customer is required to pay any applicable sales, withholding, or similar taxes or levies, other than taxes based on the income of Penrove.

5.3 Late Payments. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.

6. TERM, TERMINATION AND SUSPENSION

6.1 Term; Penrove Termination. This Agreement is effective as of the Effective Date and will remain effective until the later of: (a) the date of the expiration or termination of the applicable Order Form, or (b) the date on which Customer ceases to make use of or ceases to access any component of the Service. Notwithstanding the foregoing, Penrove shall have the right to terminate this Agreement (and any associated Order Form) at any time and for any reason (including without cause), in writing, with immediate effect. If Penrove terminates this Agreement for convenience, Customer shall be entitled to receive a refund of the portion of the fees paid by Customer for services not provided to Customer during the remainder of its then-current service term.

6.2 Termination for Cause. Customer may terminate this Agreement and any associated Order Form (a) if Penrove (i) fails to cure any material breach of this Agreement or any associated Order Form within 10 days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against Penrove (and not dismissed within 60 days thereafter), or (b) as otherwise provided in Section 12.7 (Amendments; Waivers) below.

6.3 Effect of Termination. Upon any termination of this Agreement and any associated Order Form, Customer shall immediately cease any and all use of and access to the Service (including any and all related Penrove Technology) and delete (or, at Penrove’s request, return) any and all copies of the Documentation, any Penrove passwords or access codes and any other Penrove Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Service, and that Penrove may delete any such data at any time. Termination of this Agreement and any associated Order Form is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

6.4 Suspension. Without limiting any of Penrove’s other rights under this Agreement, Customer's or a Permitted User’s actual or suspected violation of the terms in this Agreement, or a failure to timely pay as provided in Section 5, may result in suspension of Customer or such Permitted User’s access to and use of the Service.

6.5 Survival. All provisions of this Agreement enforceable by Penrove following termination hereof shall survive termination of this Agreement, including: Section 1.4 (General Restrictions), Section 1.5 (Export), Section 2 (Customer Data), Section 3 (Ownership), Section 5 (Fees and Payment),Section 6 (Term and Termination), Section 7.2 (Warranty Disclaimer), Section 9 (Limitation of Remedies and Damages), Section 10  (Indemnification), Section 11 (Confidential Information), and Section 12 (General Terms).

7. LIMITED WARRANTY

7.1 Limited Warranty. Penrove warrants, for Customer’s benefit only, that the Service will operate substantially in conformance with the applicable descriptions provided (or made available) to Customer in the Documentation specific to the applicable element of the Service. NOTWITHSTANDING THE FOREGOING, PENROVE DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ANY WARRANTY, THAT CUSTOMER’S USE OF THE SERVICE WILL BE UNINTERRUPTED, ACCURATE OR ERROR-FREE, NOR DOES PENROVE WARRANT THAT IT WILL PRESERVE OR MAINTAIN CUSTOMER DATA WITHOUT LOSS. Penrove’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Penrove’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Penrove determines such remedies to be impracticable, to allow Customer to terminate the applicable service term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Service or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 7.1 shall not apply: (a) unless Customer makes a claim within 30 days of the date on which the condition giving rise to the claim first appeared; (b) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services; or (c) to use provided on a no-charge or evaluation basis.

7.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1 (LIMITED WARRANTY) ABOVE, THE SERVICE AND ALL OTHER PRODUCTS AND SERVICES PROVIDED OR MADE AVAILABLE BY PENROVE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER PENROVE NOR ANY OF ITS SUPPLIERS OR AFFILIATES MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NEITHER PENROVE NOR ANY OF ITS SUPPLIERS OR AFFILIATES SHALL BE LIABLE FOR ERRORS, DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF THE REASONABLE CONTROL OF PENROVE. NEITHER PENROVE NOR ANY OF ITS SUPPLIERS OR AFFILIATES IS A LAW FIRM AND NO LEGAL, TAX, INSURANCE OR INVESTMENT ADVICE IS BEING PROVIDED THROUGH USE OF THE SERVICE OR ANY RELATED PENROVE SERVICES.  PENROVE DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SERVICES, DESIGNATED HOSTING FACILITY AND/OR OTHER PORTIONS OF THE INTERNET. SUCH FLOWS DEPEND IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT CUSTOMER’S AND/OR ITS PERMITTED USERS’ CONNECTIONS TO THE INTERNET (OR PORTIONS THEREOF) AND PENROVE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.

8. SUPPORT

Penrove will provide email support to Customer from 9AM to 5PM Mountain Standard Time, Monday through to Friday, on business days in Denver, Colorado. Penrove will use commercially reasonable efforts to respond to support requests within one business day and shall address (internally and externally) such support requests in a commercially reasonable manner. Support includes troubleshooting system functionality, providing guidance on usage and workflow, and identifying and escalating issues which Penrove prioritizes, in its sole and absolute discretion, based on severity, scope and impact. Penrove may offer personalized training, implementation, and adoption programs at an additional cost. Penrove shall have no obligation to provide any custom code development, API scripting, or contractual engineering services for Customer. Subject to any limitations set forth in this Agreement, Penrove will use commercially reasonable efforts have the Service available for use and access ("Availability") at least ninety-nine and nine tenths percent (99.9%) of the time each calendar month; provided that the following are excluded from the calculation of Availability:  (a) scheduled maintenance (for which Penrove will use reasonable efforts to provide advance notification to Customer); (b) due to factors outside Penrove's reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure at either Penrove-owned data centers or data centers utilized by Penrove, including at Customer’s site or between Customer’s site and  data centers owned or utilized by Penrove, or other Force Majeure), (c) that result from the use of services, hardware, or software not provided by Penrove, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services, (d) that result from Customer’s unauthorized action or lack of action when required, or from Customer’s employees, agents, contractors, or vendors, or anyone gaining access to the Services by means of Customer passwords or equipment, or otherwise resulting from Customer’s failure to follow appropriate security practices, (e) that result from  Customer’s failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or Customer’s use of the Services in a manner inconsistent with the features and functionality of the Services (for example, attempts to perform operations that are not supported) or inconsistent with the Documentation, or (f) that result from Customer’s actual or attempted performance of excessive operations or that result from steps taken by Penrove to prevent or limit suspected abusive or harmful behavior.

9. LIMITATION OF LIABILITY

9.1 Limitation on Indirect Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PENROVE, ITS SUPPLIERS, NOR ANY OF THEIR RESPECTIVE AFFILIATES, SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  

9.2 General Limitations. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN RESPECT OF ANY CLAIM OTHER THAN ONE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NON-APPEALABLE JUDGMENT TO HAVE PRIMARILY RESULTED FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF PENROVE, PENROVE’S AND ITS AFFILIATES’ AND ITS AND THEIR SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PENROVE FOR THE APPLICABLE SERVICE DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY AND, WITH RESPECT TO ANY FREE TRIAL OF ANY PRODUCTS OR SERVICES, PENROVE’S AND ITS AFFILIATES’ AND ITS SUPPLIERS’ AGGREGATE LIABILITY WILL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS, REGARDLESS OF ANY THEORY OF LIABILITY, AND NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY.

9.3 Survival of Limitations. The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed its essential purpose.

10. INDEMNIFICATION

10.1 Penrove Indemnification. Penrove shall indemnify and hold harmless Customer and Customer’s affiliates, officers, directors, employees, and agents (collectively, “Customer Indemnified Parties”) from and against all costs, damages awarded or agreed to in settlement, losses, liabilities and expenses (including any attorneys’ fees and costs that have been finally awarded by a court of competent jurisdiction) arising out of any third-party claims or causes of action in connection with breach by Penrove of any terms of this Agreement or the DPA, provided that Penrove shall have received from Customer: (a) prompt written notice of such claim (but in any event notice in sufficient time for Penrove to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all reasonably necessary cooperation of the applicable Customer Indemnified Party. If Customer’s use of the Service is, or in Penrove’s opinion is likely to be, enjoined due to a claim of infringement, or if required by settlement, Penrove may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Service; or if (i) and (ii) are commercially impracticable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for any unused portion of the Contract Term which was paid for by Customer. The foregoing indemnification obligations of Penrove shall not apply: (1) if the Service, or any portion thereof, is modified by any party other than Penrove, but solely to the extent the alleged breach is caused by such modification; (2) if the Service, or any portion thereof, is combined with other products or processes not authorized by Penrove, but solely to the extent the alleged breach is caused by such combination; (3) to any unauthorized or unlicensed use of the Service or any portion thereof; (4) if Customer continues to use the Service following a notification by Penrove of an allegedly infringing use or combination by Customer; or (5) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the Service. The foregoing indemnity shall not, as to Customer or any other Customer Indemnified Party, be available to the extent that such amounts are determined by a court of competent jurisdiction by final and non-appealable judgment to have primarily resulted from the gross negligence, willful misconduct or bad faith of such Customer Indemnified Party. THIS SECTION 10.1 SETS FORTH PENROVE’S AND ITS AFFILIATES’ AND SUPPLIERS’ SOLE LIABILITY TO CUSTOMER AND THE OTHER CUSTOMER INDEMNIFIED PARTIES AND CONSTITUTES CUSTOMER’S AND THE OTHER CUSTOMER INDEMNIFIED PARTIES’ SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF A BREACH OF THIS AGREEMENT AND/OR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

10.2 Customer Indemnification. Customer shall indemnify and hold harmless Penrove, Penrove’s affiliates and its and their licensors, officers, directors, employees, and agents (collectively, “Penrove Indemnified Parties”) from and against all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) any action taken (or not taken) by Customer based upon use of the Service; (b) any Customer Data; (c) any service or product offered by Customer in connection with or related to the Service; (d) violation by Customer of Customer’s representations and warranties in this Agreement; or (e) breach by Customer of any terms of this Agreement including the DPA. The foregoing indemnity shall not, as to Penrove or any other Penrove Indemnified Party be available to the extent that such amounts are determined by a court of competent jurisdiction by final and non-appealable judgment to have primarily resulted from the gross negligence, willful misconduct or bad faith of such Penrove Indemnified Party.

11. CONFIDENTIAL INFORMATION

11.1 General. Each party agrees that all Confidential Information such party (the “Receiving Party”) obtains from the other party (the “Disclosing Party”) constitutes the confidential property of the Disclosing Party, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limiting the foregoing all Penrove Technology, performance information relating to the Service, and the terms and conditions of this Agreement shall be deemed Confidential Information of Penrove without any marking or further designation. For the avoidance of doubt, Penrove Technology is not and shall not be deemed to be Confidential Information of Customer, and all Customer Data shall be deemed Confidential Information of Customer without any marking or further designation; provided that the use and ownership of such Customer Data shall be subject to the terms of Section 2 (Customer Data) above. “Confidential Information” shall mean any information, technical data, know-how, and any other information which derives independent economic value from not being generally known to, or ascertainable through proper means by, the public, including any customer lists, business forecasts, pricing information, sales and merchandising information, proprietary information, know-how, inventions, patent applications and trade secrets.

11.2 Confidential Use. Except as expressly authorized herein (including pursuant to Section 2 (Customer Data) above), the Receiving Party will hold in confidence and not use or disclose any such Confidential Information.

11.3 Exceptions. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation to the Disclosing Party or its representatives; or (d) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. In the event of any conflict between the terms of this Section 11 and the confidentiality terms contained in any other agreements between the parties, the terms of this Section 11 shall prevail.

11.4 Exemptions. Nothing in this Agreement shall prohibit Penrove from (a) disclosing or using Customer Data in connection with any suit, action or proceeding for the purpose of defending itself, reducing its liability or protecting or exercising any of its rights, remedies or interests, or (b) disclosing information which is required to be disclosed by Penrove or its affiliates under compulsion of law (whether by oral question, interrogatory, subpoena, civil investigative demand or otherwise) or by order of any court or at the request of any governmental or regulatory body to whose supervisory authority Penrove or any of its affiliates is subject, or to Penrove’s independent auditors or accountants. For avoidance of doubt, nothing in this Agreement shall prohibit any party from disclosing or providing any information to any governmental, regulatory, or self-regulatory organization, voluntarily or otherwise.

12. GENERAL TERMS

12.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except Penrove may assign this Agreement in connection with a merger, reorganization (including internal reorganization), acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section  12.1 will be null and void.

12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

12.3 Governing Law; Jurisdiction and Venue. This Agreement and all claims, disputes or causes of action (whether sounding in tort, contract, or statute) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution or performance thereof, shall be governed by, and enforced in accordance with, the internal laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof. Each party agrees that any action, suit or proceeding that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution or performance thereof, shall be brought in the state or federal courts located in Denver, Colorado.   Each party irrevocably and unconditionally waives any objection to the laying of venue of any such action, suit or proceeding in the state or federal courts located in Denver, Colorado, as applicable, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum.  

12.4 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

12.5 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

12.6 Notice. Subject to Sections 12.7 (Consent to E-Delivery) and 12.8 (Amendments; Waivers) below, any notice or communication required or permitted under this Agreement shall be in writing to the parties at their respective email addresses, addresses of record (as listed in the applicable Order Form)or at such other address as may be given in writing by either party to the other party in accordance with this Section 12.6 and shall be deemed to have been received by the addressee: (a) if given by hand, immediately upon receipt;(b) if given by overnight courier service, the first business day following dispatch (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email, immediately upon delivery to the recipient’s server.

12.7 Amendments; Waivers.

12.7.1. Except as otherwise set forth in the Order Form, and subject to the amendment process set out under Sections  12.7.2 and 12.7.3, no supplement, modification, or amendment of this Agreement (including any terms received through unsolicited electronic communication, click-wrap or click-through terms, or other terms and conditions received by Penrove from a Customer that have not been executed in writing by a duly authorized representative of Penrove) shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

12.7.2. Notwithstanding Section  12.7.1, Penrove may supplement, modify or amend this Agreement or the DPA by providing not less than thirty (30) days’ written notice of such supplement, modification or amendment to the Customer via email (the “Amendment Notice”) and such supplement, modification, or amendment described in such Amendment Notice (the “Amendment”) shall automatically take effect and become binding on the parties upon the date indicated in such Amendment Notice (the “Amendment Effective Date”), unless the Customer exercises its termination rights in accordance with Sections  12.7.3 and 12.7.4.

12.7.3. Upon service of the Amendment Notice on Customer and, provided that the Amendment does not constitute a minor update, including correction of errors, Customer shall been titled to notify Penrove of its determination to terminate this Agreement by providing written notice of termination (a “Termination Notice”), via email to Penrove according to instructions to be contained in the Amendment Notice at least fourteen (14) days prior to the Amendment Effective Date. If Customer provides a Termination Notice in accordance with this Section  12.7.3, this Agreement shall, subject to Section  12.7.4, terminate on the date immediately preceding the Amendment Effective Date and Customer shall been titled to receive a refund of the fees paid by Customer for the portion of the Contract Term which was not rendered by Penrove to Customer. If Customer does not exercise its right to terminate under this Section 12.7.3, Customer’s continued use of the Service after the Amendment Effective Date shall constitute Customer’s acceptance of the Amendment terms.

12.7.4. If Customer provides Penrove with a Termination Notice pursuant to Section 12.7.3, Penrove shall have the option to notify Customer by email of its determination to revoke the Amendment Notice with respect to Customer, following delivery of which notice of revocation Customer shall have no further right to terminate under Section 12.7.3 and this Agreement shall not be supplemented, modified, or amended with respect to Customer, but will continue in full force and effect as though no Amendment Notice shall have been provided by Penrove to Customer.

12.8 Consent to E-Delivery. Notwithstanding anything herein to the contrary, Customer hereby consents to electronic delivery of any required or optional communication or document related to this Agreement or provision of the Service. Communications shall be deemed delivered to Customer when sent or provided, regardless of whether Customer actually access or review them. If signature or acknowledgment is required or requested with respect to any such document, and Customer or any Permitted User “clicks” in an appropriate space, or takes such other action as may be indicated, Customer will be deemed to have signed or acknowledged the document to the same extent and with the same effect (i.e., legally binding) as if Customer had signed the document manually. If Customer signs electronically, Customer represents that it has the ability to access and retain a record of the relevant documents.

12.9 Third-Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended, nor will they be interpreted, to provide for or create any third-party beneficiary rights or any other rights of any kind in any other party. Affiliates and Suppliers of Penrove shall be deemed third-party beneficiaries to this Agreement, unless Penrove determines otherwise in its sole discretion.

12.10 Feedback. If Customer provides Penrove with any feedback or suggestions regarding the Service (“Feedback”), Customer hereby grants to Penrove a nonexclusive, worldwide, perpetual, irrevocable, transferrable and sublicensable (through multiple levels) right and license in and to such Feedback, to use without any restrictions, and Customer agrees that (i) the Feedback is not confidential or proprietary information belonging to Customer or any third party and Customer has all of the necessary rights to disclose and grant the rights the Feedback to Penrove, (ii) Penrove is not subject to any confidentiality obligations in respect of the Feedback, and (iii) Customer is not entitled to receive any compensation of any kind for Feedback.

12.11 Publicity; References. Customer hereby grants Penrove and its affiliates the right to use Customer’s logo in order to refer to Customer (including on its website and in its related marketing materials and communications); provided that Penrove complies with any written trademark usage requirements that have been previously provided to Penrove by Customer. Upon prior written notice to Customer, Penrove and its affiliates may issue a press release announcing the relationship between Penrove and Customer.

12.12 Entire Agreement. This Agreement, together with the Order Form and the DPA, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Service is an on-line, subscription-based service, and that Penrove may make changes to the Service. All exhibits to this Agreement, if any, are a part of this Agreement.

12.13 Construction. Captions or headings, as used in this Agreement, Order Form, or any attached or linked documents, are for the convenience of reference only and shall not be deemed or construed as in any way limiting or expanding the language of the provision to which such captions may refer. The words “include,” “includes” and “including” shall be deemed to be followed by “without limitation.” This Agreement has been negotiated at arms’ length between parties with access to counsel of their choosing and neither this Agreement nor any Order Form or attached or linked document, nor any provision hereof or thereof shall be construed on the basis of its draftsperson.

12.14 Force Majeure. Neither party, nor any of its respective affiliates, shall be liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such person, such as a strike, blockade, war, act of terrorism, riot, pandemics, quarantines, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency ("Force Majeure").

12.15 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

12.16 Counterparts; Electronic Execution. This Agreement may be executed in any number of counterparts which, when so executed, shall constitute an original and all of which together will constitute one and the same instrument. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

12.17 Government Users. If Customer is a U.S. government entity or if this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that elements of the Services constitute software and documentation and are provided as “Commercial Items” as defined at 48 C.F.R. § 2.101 and are being licensed to U.S. government user as commercial computer software subject to the restricted rights described in 48 C.F.R. §§ 2.101 and 12.212.