Terms Of Service

These Paragon Customer Terms govern the provision of software and services by Forge Technology, Inc., a Delaware corporation doing business as Paragon (“Paragon”) to the customer listed on an Order Form executed by Paragon and the customer that incorporates these Paragon Customer Terms (“Customer”). Collectively, these Paragon Customer Terms and any executed Order Form are referred to as the “Agreement.” Capitalized terms not defined in these Paragon Customer Terms have the definitions given in the Order Form. 

1. Background; Order Forms; Changes to these Terms.

   Paragon has developed a technology platform (the “Platform”) that, among other features, helps companies and organizations to perform software and service integrations for their customers using a white-label Paragon SDK (the “SDK”) that Customer integrates with its own software application(s) (each, a “Customer App”). The Platform is available from Paragon as a multi-tenant (one-to-many) cloud service hosted by Paragon (the “Cloud Service”) or as on-premise server software to be installed on servers owned or otherwise controlled by Customer (the “On-Premise Software”). The term Platform includes the Cloud Service and On-Premise Software, as applicable to Customer. Customer wishes to access and use the SDK in conjunction with the Platform via the Cloud Service and/or the On-Premise Software. This Agreement sets forth the terms and conditions pursuant to which Paragon will provide to Customer, and Customer will receive, access to the products and services selected by Customer and specified in one or more ordering documents signed by both parties (each, an “Order Form”). In the event of any conflict between these Paragon Customer Terms and the terms of any Order Form, these Paragon Customer Terms will control except to the extent that the Order Form expresses a specific intent to supersede one or more specific provisions of these Paragon Customer Terms. Paragon expressly reserves the right to modify these Paragon Customer Terms at any time in its sole discretion. Paragon will provide notice of any new version of these Paragon Customer Terms by a reasonable method (for instance, via email to Customer or by posting a notice in the Cloud Service, if applicable). If Customer does not object in writing to the updated Paragon Customer Terms within 15 days of Paragon’s notification, the updated version becomes effective for Customer. If Customer does submit to Paragon a written objection to the updated Terms of Service within 15 days of Paragon’s notification, then the updated version of these Paragon Customer Terms will not apply to Customer or its previously executed Order Form(s) for the remainder of the then-current subscription term of such Order Form(s). If Customer does not opt out of the next renewal of such Order Form(s) and/or if Customer executes any new Order Form(s), then the then-current version of the Paragon Customer Terms apply.
   

2. Platform and SDK.

   1. SDK. Subject to the terms of this Agreement, including the applicable Order Form, Paragon grants to Customer a limited, non-exclusive, non-transferable license during the subscription term specified in the Order Form (the “Subscription Term”) to install and use the SDK, in object code form only, to integrate the SDK with and into one or more Customer Apps and to distribute and sublicense the resulting integrated application(s) (each, an “Integrated App”) to Customer’s customers and end users to enable product integrations implemented by the SDK. Each such customer or end user of Customer with at least one integration via the SDK is a “Connected User.”

   2. Platform.

      1. Cloud Service. If an Order Form specifies that Customer has ordered a subscription to the Cloud Service, then subject to the terms of this Agreement and the applicable Order Form, Paragon grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Subscription Term to access and use the Cloud Service for Customer’s business purposes, including to perform and manage the integrations of Connected Users.

      2. On-Premise Software. If an Order Form specifies that Customer has ordered a subscription to On-Premise Software (sometimes also referred to as “On-Premise Instances”), then subject to the terms of this Agreement and the applicable Order Form, Paragon grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable license during the Subscription Term to install the On-Premise Software on servers owned or otherwise controlled by Customer and use the On-Premise Software for Customer’s business purposes, including to perform and manage the integrations of Connected Users.

   3. Customer Data. If an Order Form specifies that Paragon is to provide services that require Customer to submit data or information to Paragon (including, for example, a Cloud Service or Paragon-managed On-Premise Software that exposes Paragon to the data flowing through the On-Premise Software Paragon), then Customer grants to Paragon a non-exclusive, worldwide, and royalty-free license to use, copy, transmit, modify, and process all data that Customer and/or its Connected Users submit to the services requested by Customer (collectively, the “Customer Data”) as necessary and appropriate to provide those services to Customer during the applicable Subscription Term. Paragon will do so in accordance with Paragon’s Privacy Policy, which is located at https://www.useparagon.com/privacy, and, to the extent applicable, Paragon’s Data Processing Addendum, which is located at https://security.useparagon.com/resources. If Customer is using On-Premise Software, then Customer is solely responsible for the safety, security, and privacy of its Customer Data. Customer understands that Paragon operates the Cloud Service and performs its obligations from within the United States.

   4. Platform Monitoring. Paragon may collect aggregate and anonymous data and statistics relating to Customer’s use of the Cloud Service (specifically excluding any data that identifies Customer or any individual or entity) (“Usage Data”). Paragon may use any such Usage Data for any purpose relating to its business, including to develop and improve the Platform or other Paragon products and to analyze usage and traffic patterns relating to the Cloud Service. In addition, Paragon may monitor Customer’s usage of the Platform (via direct monitoring of the Cloud Service or via API or other mechanism for the On-Premise Software), including to verify Customer’s compliance with this Agreement and to determine whether Customer’s usage has triggered additional fees.

   5. Third Party Content. The Platform may contain links, information, and/or materials provided to Paragon by third parties, and Paragon products and services are intended to enable integrations with third-party products and services (collectively, “Third Party Content”). Paragon does not own or control any Third-Party Content and does not endorse any of it. Third Party Content may be subject to different and/or additional terms, conditions, and/or policies of such third parties, and Customer is responsible for compliance with any such terms, conditions, and/or policies.

   6. Authorized Users. Customer will permit use of the Platform only by those of its employees or contractors that it has expressly authorized to use the Platform on its behalf (each, an “Authorized User”). Customer is responsible for all acts or omissions by its Authorized Users and will not permit any other person or entity to access or use the Platform. Customer will protect any Platform login credentials from unauthorized use or disclosure. Each Authorized User must have its own login credentials (such as username and password). Customer is solely responsible for maintaining the confidentiality of such login credentials and for all activities that occur through such accounts, whether or not authorized by Customer. Customer must immediately notify Paragon of any suspected or actual unauthorized use of any of its or its Authorized User’s login credentials or accounts. Paragon will not under any circumstances be liable for any cost, loss, damages or expenses arising out of a failure by Customer or its Authorized Users to maintain the security of account information or login credentials.

   7. Product Feedback. If Customer provides any ideas, suggestions, and feedback specifically relating to Paragon’s products and services, excluding any Information relating to Customer’s business, products, customers, or plans (“Product Feedback”), Paragon owns all right, title, and interest worldwide in and to such Product Feedback. Paragon may, but is not obligated to, incorporate such Product Feedback into its products and services that it provides to its customer base.

   8. Support. Paragon agrees to provide Customer with commercially reasonable technical support in connection with Customer’s use of the Platform and SDK, including being reasonably available to answer questions or address bugs or other technical issues that prevent the Platform or SDK from operating substantially in compliance with Paragon’s published technical documentation. 

      
      

3. Customer Obligations.

   1. License and Use Restrictions. 

      1. The Platform and SDK are licensed, not sold, to Customer. Paragon reserves all rights not expressly granted in this Agreement or in the applicable Order Form. 

      2. When Customer distributes the SDK, it must conduct such distribution only as part of an Integrated App and not with the SDK as a separate or standalone module or product.

      3. Except as expressly permitted by this Agreement with respect to integration of the SDK with the Customer App(s) to create Integrated App(s), Customer will not and will not permit or encourage any person or entity (including Authorized Users or Connected Users) to do or attempt to do any of the following: (i) copy, modify, or create any derivative work of any portion of the Platform, or SDK; (ii) reverse engineer, decompile, decode, disassemble, or otherwise attempt to derive or gain access to any software component or source code of the Platform or SDK; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease, or loan any portion of the Platform or SDK to any other person or entity, or otherwise allow any person or entity to use the Platform or SDK for any purpose other than for the benefit of Customer and its Connected Users in accordance with this Agreement; (iv) circumvent any security features of the Platform or SDK, or expose the Platform or SDK to any software or programs that contain harmful code, including, but not limited to, viruses, worms, time bombs or Trojan horses; (v) use the Platform or SDK in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law or regulation; (vi) participate in any attacks on the Cloud Service or any Paragon computer systems, including technical attacks, hacking, theft of data or funds, or fraud; (vii) access, search, or scrape data from the Cloud Service through the use of any software, tool, agent, device, or mechanism (e.g., spiders, crawlers or any other data mining tools) other than the Platform features provided by Paragon for use expressly for such purposes; (viii) use the Platform, SDK, or any other Paragon Confidential Information (as defined below) for benchmarking or competitive analysis of software or technology that may be competitive with the Platform or other Paragon products or services, or to develop, market, license, or sell any product, service, or technology that could directly or indirectly compete with the Platform or other Paragon products or services; (ix) remove or alter any copyright, trademark, or other proprietary markings or notices or confidentiality legends on or in the Platform or SDK; or (x) otherwise intentionally or knowingly interfere with the proper functioning of the Platform or SDK.

   2. Cooperation. Paragon is not liable for any failure to perform this Agreement where such failure is the result of a failure by Customer or its customers or vendors to perform obligations or to otherwise provide reasonable cooperation. To facilitate Paragon’s performance of this Agreement, Customer must: (a) promptly communicate all necessary decisions and approvals so as not to delay or impede Paragon’s performance; (b) promptly provide or obtain all reasonable cooperation, assistance, information, data, facilities, equipment, and suitably configured computer products that are necessary for Paragon’s performance; (c) notify Paragon of any issues, concerns or disputes with respect to Paragon’s performance; and (d) undertake any other responsibility described in this Agreement (including any Order Form) as being the responsibility of Customer or its customers or vendors.

   3. Responsibility for Customer Decisions. Customer agrees that Paragon acts only as a platform provider to provide a tool that is intended to help Customer to enable product integrations via the Integrated App(s) and Platform. As between Customer and Paragon, Customer is solely responsible for all decisions relating to its business and any proposed integrations using Paragon products and services. Customer agrees that it will comply with all applicable laws and regulations in connection with such decisions and its use of any products and services provided by Paragon under this Agreement. Customer represents and warrants that: (a) it has the necessary rights to provide the Customer Data to Paragon for the purposes for which such data is provided; and (b) neither Customer nor any Authorized User (i) is on a list of persons barred from receiving products or services under the laws of the United States or any other applicable jurisdiction, (ii) is a resident of Cuba, Iran, North Korea, Sudan, Syria, or any country or jurisdiction that is barred or restricted from receiving products or services under the laws of the United States or any other applicable jurisdiction, or (iii) will use any Paragon products or services (or permit any others to do so) for purposes prohibited by any applicable law. Except as expressly set forth in this Agreement or an Order Form, Customer bears all of its own costs and expenses in connection with its business decisions and its performance of this Agreement.

      
      

4. Fees and Payments.

   1. Fees; Payment Terms. Customer will pay to Paragon the fees and other amounts stated in the applicable Order Form (the “Fees”). Except as expressly set forth in this Agreement, all payments are non-refundable and neither party will have the right to set off, discount, or otherwise reduce any amounts due to the other party under this Agreement. Unless otherwise set forth in an Order Form, Paragon will invoice the initial Platform subscription Fees annually in advance and will invoice Fees for other products and services (including for incremental Connected Users) on a monthly basis. Customer will pay all Fees as set forth in the Order Form.

   2. Invoice Disputes; Late Payments. If Customer reasonably disputes an amount invoiced, it must (a) provide written documentation within 15 days of invoice date identifying and substantiating the disputed amount, and (b) timely pay the undisputed amount. The parties agree to use their best efforts to resolve any reasonable dispute of an invoice within 10 days of submission of the dispute to Paragon. If Customer fails to make any payment when due (other than an amount reasonably disputed as set forth in this Section), late payment interest will accrue at the compound rate of 1.0% per month or, if lower, the highest rate permitted by applicable law, and Paragon may suspend its performance under this Agreement until all payments of undisputed amounts and late-payment interest are made in full. Customer will reimburse Paragon for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

   3. Taxes. The Fees and the payments made by Customer under this Agreement do not include any applicable sales, use, ad valorem, or other taxes imposed by any taxing authority. Paragon has no responsibility for payment of such taxes. If Paragon is required to collect any such taxes in connection with this Agreement, Paragon will invoice and Customer will pay all such taxes. However, neither party has any liability to the other for taxes imposed on its income or property.

      
      

5. Term and Termination.

   1. Term; Renewal. The term of this Agreement begins on the date the parties execute an Order Form and expires when there are no Order Forms still being performed. Each Order Form will specify the term of that Order Form, including the Subscription Term for each Platform subscription. Unless otherwise set forth in the Order Form, at the end of the initial Subscription Term, that Subscription Term renews automatically for additional periods equal to the initial Subscription Term unless either party provides the other with written notice of non-renewal at least 60 days prior to the next renewal.

   2. Termination. Either party may terminate this Agreement (including all Order Forms), effective on written notice to the other party, if:  (a) the other party substantially breaches any material term of this Agreement (including of any Order Form), and, if able to be cured, such breach remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or (b) the other party ceases to do business in the normal course, or has a receiver, administrative receiver, liquidator or similar official appointed to it or over any part of its business or assets, or passes a resolution for its winding up (other than for the purpose of a bona fide scheme of solvent reorganization where the resulting entity assumes all of the liabilities), or is unable to pay its debts as they fall due, or makes an assignment for the benefit of creditors. Paragon may further terminate this Agreement (including all Order Forms) immediately upon written notice to Customer if Customer substantially breaches any of Section 3 or infringes or otherwise violates Paragon’s intellectual property rights in and to the Platform or SDK.

   3. Suspension. Paragon may suspend its performance under this Agreement immediately if it has a reasonable basis to believe that Customer has substantially breached any material provision of this Agreement. Paragon will provide notice of any such suspension and discuss it in good faith with Customer.

   4. Effect of Termination. Upon expiration, non-renewal, or termination of this Agreement: (a) all license rights, including Customer’s and its Authorized Users’ right to access and use the Platform and distribute the SDK, immediately terminate; (b) each party will promptly comply with its obligations with respect to the other’s Confidential Information pursuant to Section 6; (c) Customer will promptly return or permanently delete all copies of the On-Premise Software and SDK in its possession or control (provided, however, that Customer is not obligated to retrieve copies of the SDK that were distributed as part of an Integrated App prior to expiration or termination), (d) all remaining Fees owed by Customer to Paragon pursuant to any terminated Order Form are immediately due, unless otherwise set forth in the applicable Order Form; and (e) the rights and obligations that naturally should survive do survive, including, without limitation, any applicable definitions and the rights and obligations in Sections 3.1, 4 (for any amounts due or payable on or after expiration or termination), 5.4, 6, 7.2, 8, 9, and 10.

      
      

6. Confidentiality.

   1. Confidential Information. “Confidential Information” means all non-public confidential or proprietary information about the business, products, or technology of the disclosing party (as “Discloser”) that is disclosed directly or indirectly by Discloser to the other party (as “Recipient”), whether before, on, or after the date of this Agreement, whether in writing, orally, electronically, visually, by drawings or inspection of equipment or software, or otherwise:  (a) that is marked or designated as confidential, proprietary, or any similar marking, or (b) that reasonably appears to be proprietary or confidential because of a legend or other marking, the circumstances of disclosure, or the nature of the information itself.

   2. Use and Protection. Discloser intends to disclose, or has disclosed, to Recipient certain Confidential Information for the purpose of the parties’ performance of this Agreement. Recipient will keep in strictest confidence all Confidential Information of Discloser, and will not disclose or make use of any such Confidential Information to any third party, and will only permit access only by Recipient employees, contractors, officers, directors, and agents who have a demonstrable need to know and who are bound by obligations of confidentiality at least as restrictive as this Agreement. Recipient is responsible and liable for the acts or omissions of all such employees, contractors, officers, directors, and agents. All Confidential Information remains the property of Discloser and may be used by Recipient solely for the purposes of exercising its rights and performing its obligations under this Agreement.

   3. Exceptions. The obligations of confidentiality contained in this Section 6 do not apply to information that: (a) is or becomes part of the public domain through no act or omission of Recipient; (b) was rightfully in Recipient’s possession prior to the disclosure by Discloser and was not obtained by Recipient either directly or indirectly from Discloser; or (c) is rightfully disclosed to Recipient by a third party without restriction on disclosure.

   4. Compelled Disclosure. If Recipient receives a demand to disclose Confidential Information of Discloser pursuant to law or the lawful order of a court or governmental authority, Recipient agrees to:  (a) give Discloser prompt advance notice of such disclosure requirement (unless prohibited by law from doing so), and (b) cooperate with Discloser, at Discloser’s request and expense, in any effort by Discloser to oppose the disclosure and/or seek a protective order or other protective treatment. If, upon the advice of Recipient’s counsel, Recipient is nevertheless compelled to disclose Confidential Information of Discloser, Recipient may do so, provided that the scope of any such disclosure is limited to the minimum disclosure reasonably necessary to comply with the governmental requirement.

   5. Return; Survival. Upon expiration or termination of this Agreement or upon the earlier written request of Discloser, Recipient will, at Discloser’s direction and Recipient’s expense, either return to Discloser or destroy any electronic or hard-copy materials containing Discloser’s Confidential Information (and all copies, extracts, and summaries) in Recipient’s possession or control. Recipient will provide Discloser with a certification of return or destruction. The provisions of this Section 6 survive the expiration or termination of this Agreement until the applicable Confidential Information falls into one of the exceptions of Section 6.3.

      
      

7. Representations and Warranties; Disclaimer.

   1. Mutual Warranties. Each party represents and warrants to the other party that: (a) it has full power and authority to enter into this Agreement; (b) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents; and (c) it will comply with all laws applicable to it in connection with this Agreement.

   2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (A) NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; AND (B) ALL PARAGON PRODUCTS AND SERVICES ARE PROVIDED “AS-IS” AND WITHOUT ANY OTHER WARRANTY WHATSOEVER, INCLUDING THAT THEY WILL BE ERROR-FRE OR CONTINUOUSLY AVAILABLE, OR THAT ALL DEFECTS WILL BE CORRECTED. PARAGON MAKES NO ASSURANCES OF ANY RESULTS OF CUSTOMER’S USE OF THE PLATFORM OR OTHER PRODUCTS AND SERVICES UNDER THIS AGREEMENT.

      
      

8. Indemnification.

   1. Indemnification by Paragon. Paragon will defend or settle any claims, demands, suits, or proceedings brought by a third-party (“Claims”) against Customer and/or its officers, directors, employees, and agents (collectively, the “Customer Indemnitees”) that allege, arise out of, or result from:

      1. an allegation that the Platform or SDK, as used in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or other proprietary rights;

      2. a failure by Paragon to comply with any applicable laws or regulations; and/or

      3. the gross negligence or intentionally wrongful acts of Paragon personnel during the performance of this Agreement.

      Paragon will indemnify the Customer Indemnitees against, and hold them harmless from, any judgments, settlements, fees, expenses, costs, fines, and other reasonable out-of-pocket expenses incurred in connection with the Claim (including attorneys’ fees, but not including the cost of separate counsel for the Customer Indemnitees). 

   2. Additional Infringement Remedy. In addition to Paragon’s obligations under Section 8.1, if the Platform or SDK becomes the subject of a Claim for which Customer has indemnification rights under Section 8.1(a) and an injunction is issued by a court of competent jurisdiction barring Customer’s exercise of the rights granted under this Agreement, or if Paragon believes such an injunction will be issued, then:  (a) Paragon will either procure for Customer the right to continue using the item as furnished, or replace the infringing item or modify it to make it non-infringing without loss of essential functionality, or (b) if the foregoing options are not available to Paragon on reasonable terms, then Paragon may terminate Customer’s license to the infringing item and provide a pro-rated refund of prepaid Fees received by Paragon for the terminated item for the period that was terminated early.

   3. Exclusions and Limitations. Paragon’s obligations under Sections 8.1(a)  and 8.2 do not apply to the extent that the infringement Claim arises from or relates to: (a) products, services, or other materials not developed and provided by Paragon (including, without limitation, any Customer Data, Customer App, Third-Party Content, or other products and services of Customer or Connected Users); (b) Customer’s failure to use any modification, update, or new version provided by Paragon; (c) the use of any Paragon product or service that has been modified, combined, or merged with other products, services, or materials by anyone other than Paragon, where the alleged infringement relates to such modification, combination, or merger and not the Paragon product or service on its own; (d) any product, service, or material that is made for Customer in accordance with Customer’s written specifications or requirements, where the infringement relates to such specifications or requirements; (e) continued allegedly infringing activity after Customer has been notified of the alleged infringement; or (f) use of any product, service, or material that does not comply with this Agreement. Sections 8.1 through 8.3 state Paragon’s sole and exclusive liability, and Customer’s exclusive remedy, with respect to any claim of infringement of third-party rights.

   4. Indemnification by Customer. Customer will defend or settle any Claims against Paragon and/or its officers, directors, employees, and agents (collectively, the “Paragon Indemnitees”) that allege, arise out of, or result from:

      1. an allegation that any Customer Data or Customer App, as used in accordance with this Agreement: (i) violates any applicable law or regulation; or (ii) infringes, misappropriates, or violates such third party’s intellectual property or other proprietary rights;

      2. a failure by Customer to comply with any applicable laws or regulations; and/or

      3. the gross negligence or intentionally wrongful acts of Customer personnel during the performance of this Agreement.

      Customer will indemnify the Paragon Indemnitees against, and hold them harmless from, any judgments, settlements, fees, expenses, costs, fines, and other reasonable out-of-pocket expenses incurred in connection with the Claim (including attorneys’ fees, but not including the cost of separate counsel for the Paragon Indemnitees).

   5. Process. The party seeking indemnification under this Section (the “Indemnified Party”) must: (a) notify the party from whom indemnification is sought under this Section (the “Indemnifying Party”) promptly in writing upon knowledge of a Claim for which the Indemnified Party seeks indemnification (but in any event notice in sufficient time for the Indemnifying Party to respond without prejudice); (b) permit the Indemnifying Party to have exclusive control of the defense or settlement of the Claim (provided, however, that if the Indemnifying Party does not promptly and diligently assume the defense of the Claim, the Indemnified Party may assume control of the defense or settlement at the Indemnifying Party’s expense); and (c) at the Indemnifying Party’s expense, provide all authority, information, cooperation, or assistance reasonably necessary to permit the Indemnifying Party defend or settle the Claim. The Indemnified Party may participate in the defense of any Claim at its own expense. The Indemnifying Party will not, without the prior written consent of the Indemnified Party, enter into any settlement or compromise of a Claim that includes any admission or stipulation to any guilt, fault, liability, or wrongdoing by the Indemnified Party or that adversely affects the rights or interests of the Indemnified Party.

      
      

9. Limitations of Liability.

   IN NO EVENT WILL PARAGON BE LIABLE TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR: (A) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING ANY DAMAGES FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, LOST BUSINESS OPPORTUNITY, OR LOSS OF GOODWILL OR REPUTATION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, AND/OR (B) ANY DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT IN EXCESS OF THE FEES ACTUALLY PAID TO PARAGON IN THE 6-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION APPLY WHETHER SUCH LIABILITY ARISES FROM A CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT PARAGON WAS ADVISED OR AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

   
   

10. General.

    1. Governing Law and Venue. The laws of the United States of America and the State of California (without regard to its conflict of law provisions) govern this Agreement and all matters arising from or relating to it. The Uniform Computer Information Transactions Act does not apply to this Agreement. The federal or state courts located in Los Angeles County, California are the exclusive venues for resolution of any dispute, controversy, or claim arising out of or relating to this Agreement, whether at law or in equity. The parties hereby irrevocably and unconditionally consent to the exclusive personal jurisdiction and venue of such courts and waive any defense of improper venue or inconvenient forum.

    2. Equitable Relief. Certain breaches of this Agreement including, without limitation, breaches relating to Confidential Information or intellectual property rights, could result in irreparable harm for which money damages would be an inadequate remedy. In the event of such a breach or threatened breach, the non-breaching party is entitled to seek immediate equitable and other provisional relief without posting a bond and without a showing of actual out-of-pocket damages, in addition to any other remedies available at law or in equity and without prejudice to any such other remedies.

    3. Attorneys’ Fees. The non-prevailing party in any proceeding or lawsuit in connection with this Agreement (including any sub-proceeding or motion practice), as determined by the court or other decision maker, must promptly reimburse the prevailing party for its costs, expert witness fees and attorneys’ fees, including costs and fees on appeal.

    4. Notices. Except as otherwise specified in this Agreement, any consents, requests, demands, communications, and other notices permitted or required to be given under this Agreement and/or any Order Form must be in writing and will be deemed validly given upon delivery if:  (a) personally delivered with service fees prepaid, or (b) delivered with fees prepaid by reputable overnight courier that provides proof of delivery (e.g., FedEx or UPS), or (c) delivered via email. Notices to Paragon must be sent to the address set forth below. Notices to Customer must be sent to the address provided in the Order Form. Either party may update such contact information by providing notice under this Section. English is the official language of this Agreement, and all communications and notices must be in the English language.

       Notices to Paragon:
       Forge Technology, Inc. d/b/a Paragon
       10900 Wilshire Blvd Suite 440
       Los Angeles, CA 90024, USA
       Attn: Legal Notices
       Email: contact@useparagon.com 
       

    5. Waiver or Delay. Any waiver of any kind by either party of a breach of this Agreement or any Order Form must be in a signed writing, will be effective only to the extent set forth in such writing, and will not operate or be construed as a waiver of any subsequent breach by the other party. No failure of either party to insist upon strict compliance with any obligation or provision, and no custom or practice of the parties at variance with the terms of this Agreement, will constitute a waiver of any right to demand exact compliance with the terms of this Agreement and each Order Form. Neither party’s delay or omission in exercising any right, power or remedy upon a breach or default by the other party will impair any such right, power, or remedy.

    6. Force Majeure. If either party is unable to perform its obligations under this Agreement, in whole or in part, because of a labor dispute, strike, lockout, riot, war, act of terrorism or vandalism, widespread power outage, malicious acts by a third party, earthquake, flood, fire or other action of the elements, governmental restriction or appropriation, or other cause beyond the reasonable control of a party, then such party may provide the other party prompt written notice of such cause. Upon providing such notice, the party affected is relieved of those obligations to the extent it is unable to perform for as long as such cause continues or for 60 days, whichever is shorter. If after 60 days the party affected by such cause is unable to continue performance, the other party may terminate this Agreement without further liability for the termination. Neither party will be liable for any loss, injury, delay, or damages suffered or incurred by the other due to the above causes or to the termination of the Agreement pursuant to this Section.

    7. Export. The parties agree to comply at all times with the laws and regulations of the United States and any other applicable jurisdiction that relate to the import, export, or re-export of technology. Customer will not export the SDK or the On-Premise Software (and will not permit any Connected User or other third party to do so) to any country to which such activity is prohibited by applicable law.

    8. Severability. If any provision of this Agreement, including any Order Form, is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect if the essential provisions of this Agreement for each party remain valid, legal, and enforceable.

    9. Relationship of the Parties. Nothing contained in this Agreement should be construed as creating any agency, partnership, joint enterprise, or other similar relationship between the parties. The relationship between the parties is that of independent contractors. Neither party has the authority to enter into any other contract for the other party or bind the other party in any manner with any third party. This Agreement confers no rights upon either party except those expressly granted herein or to make any representation or commitment on behalf of the other.

    10. Publicity. Subject to Customer’s prior consent to each proposed use, Customer hereby consents to Paragon’s use of Customer’s name and logo in Paragon’s sales and marketing materials and on Paragon’s website, but only to identify Customer as a customer of Paragon products and services. Customer agrees not to unreasonably withhold, condition, or delay such consent.

    11. Assignment. This Agreement, including each Order Form, and the rights and obligations arising under this Agreement, are binding upon and inure to the benefit of the parties and to their respective permitted successors and assigns. Neither party may transfer or assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, which consent the parties agree not to unreasonably withhold or delay. However, Customer acknowledges and agrees that Paragon may use third-party service providers and subcontractors in connection with its performance; and either party may assign all of its rights and delegate all of its obligations under this Agreement and each Order Form without the other party’s consent, but upon written notice, in connection with a merger, acquisition, corporate reorganization, sale of all or substantially all of its assets, or similar transaction. Any transfer, assignment, or delegation not authorized by this Agreement is null and void.

    12. Headings. The section and subsection headings of this Agreement are included merely for convenience of reference. They are not to be considered a substantive part of this Agreement, or to be used in interpreting this Agreement; and they in no way limit or affect any of the contents of this Agreement or its provisions.

    13. Entire Agreement. This Agreement, including each executed Order Form and any of exhibits or other attachments to an Order Form, constitutes the entire agreement between the parties, including all understandings, representations, conditions, warranties, and covenants, concerning its and their subject matter. This Agreement supersedes any prior or collateral agreements or understandings between the parties, whether written or oral, with respect to the subject matter of this Agreement. If the parties enter into more than one Order Form, a later Order Form does not supersede or replace an earlier Order Form unless it expressly provides that it does.