These Terms and Conditions (“Terms”) are entered into by and between Mobile Hawk, Inc., with its principal place of business at 5 Murphy Ct, Blauvelt NY, 10913, and the entity agreeing to these Terms or any Order Form or Statement of Work (“Client”). The parties agree as follows:

1. SERVICES

1.1 Provision of Services. Mobile Hawk will provide its subscription service through the BirdEye Customer Experience & Reputation Marketing platform (the “Subscription Service”), and any professional services in relation to the implementation of the Subscription Service (the “Professional Services”; the Subscription Services and Professional Services may hereinafter be generally referred to as the “Services”) in accordance with these Terms and any terms and conditions provided for in a customer agreement or order form for the Subscription Service (all such documents maybe be referred to as an “Order Form”) or a statement of work for the delivery of Professional Services (“Statement of Work”).

1.2 Third Party Sites. To the extent that Client requests or otherwise cause the Subscription Service to be integrated with, or make use of data from, other websites or services (e.g., Facebook, Google+, Twitter and Yelp) (“Third Party Sites”), Client agrees that Mobile Hawk does not have control over the terms of use, privacy policies, operation, intellectual property rights, performance or content of any Third Party Sites; and Mobile Hawk disclaims all responsibility and liability for any use of Third Party Sites.

The Services incorporate or make the use of certain third party software (“Third Party Software”), which is licensed subject to the terms and conditions of the third party licensing such Third Party Software. Nothing in these Terms limits Client’s rights under, or grants Client rights that supersede, the terms and conditions of any applicable license for such Third Party Software. Such Third Party Software includes but is not limited to the following software and services and by use of the Services, Client agrees to be bound by the terms of said Third Party Software: Birdeye (https://birdeye.com/terms), Google (https://policies.google.com/terms?hl=en-US), Facebook (https://www.facebook.com/legal/terms), Twitter (https://www.twitter.com/tos), Youtube (https://www.youtube.com/t/terms), Twilio (https://www.twilio.com/legal/tos), LinkedIn (https://www.linkedin.com/legal/user-agreement).

1.3 Subscription Service Content. During Client’s use of the Subscription Service, Client may receive data generated by the Subscription Service. Client may display such generated data on Client’s website but may not modify the data or otherwise use it for any other purposes, including without limitation analytics purposes, without Mobile Hawk’s prior express written approval. For purposes of clarification, data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and Client’s use of such third party data and content is limited further by such third party’s applicable license terms and web site terms of use. Mobile Hawk hereby disclaims responsibility and/or liability in full for Client’s use of any such third party data and content under these Terms.

1.4 Obligations With Respect to Third Party Sites. When using the Services, Client agrees to adhere to the Terms of Service of all major review sites. This includes but not limited to Google, Facebook, Yelp, and other review sites.

• Review gating: Client’s use of the Services cannot implement any form of review gating. Review gating is a process where companies send a message to customers asking if their experience was positive or negative. Those who had a positive experience are directed to leave an online review. Those who had a negative experience are typically sent to a form to leave comments that are not made public.
• When soliciting reviews using the Services, Client must provide all recipients the same options to provide feedback, regardless of their sentiment. This applies to review requests sent via standard review templates, custom email templates, and surveys.
• Sites prohibiting solicitation of reviews: Client’s use of the Services will fully comply with sites such as Yelp that prohibit review solicitation, and Client will not misuse the Services to bypass review sites’ policies.
• Failure to comply with 3rd Party Review site policies: If Client attempts to circumvent the Terms of Service of 3rd party review sites, Client will be notified and be allowed 30 days to take corrective action. Should Client fail to comply within the 30-day notice period, Client’s account will be suspended from Services.

1.5 TCPA Compliance. Client’s compliance: To the extent required by law and as applicable to the parties, the parties shall comply with the Telephone Consumer Protection Act, 47 U.S.C. § 227 (the “TCPA”). Client will be solely responsible for complying with any messaging consent obligations under the TCPA and TSR in the course of accessing and using the Services. Client are responsible for obtaining explicit consent(s) from any and all third parties (including Client’s customers) to send and receive SMS and/or emails using the Services. Mobile Hawk shall have the same obligation to obtain third party consent for all parties from which it is directly obtaining their phone number(s). Each party is liable for, and shall indemnify, defend and hold harmless the other party from and against any and all damages, liabilities, judgments, fees, fines, costs and expenses (including reasonable attorneys’ fees) incurred by the non-breaching party arising from any claims, demands or legal actions made against it resulting from Client’s breach of this Section 1.5.

1.6 Account Protection. In the event that Client become aware that the security of Client’s login information has been compromised or breached, Client must immediately deactivate such account or change the account’s login credentials. Additionally, Client shall promptly deactivate the account or change the login credentials for any individual (e.g., former employee) that no longer is authorized by Client to access the Subscription Service.

1.7 Fair Use. Mobile Hawk’s priority to its customers is to keep the Services available and running at optimal speed, which requires each customer to use the Services fairly and reasonably so as to not affect the access or use by other customers. The Services include broad access to a variety of resources such as bandwidth, API requests, and storage which are not unlimited (unless expressly stated as such in a Customer Agreement, Order Form or other agreement) or the overuse of which would affect the stability of the Services, which is why we have this fair use clause (“Fair Use Policy” or “FUP”). Fair use will be considered the processing of 3 times the average number of requests or processed transactions per Location (as that term is defined in a Customer Agreement, Order Form or other written agreement) for other Service customers in the same or similar industry. If it’s determined that the Client’s use of the Services is in violation of this Fair Use Policy, in its reasonable discretion, Mobile Hawk may take unilateral action regarding Client’s use of the Services including, but not limited to, limiting the frequency of access to the Services or limiting the number of processed requests through the Services in order to bring usage in line with this FUP. Mobile Hawk also reserves the right to invoice Client for use of the Services in violation of the FUP. Client understands, acknowledge and agree that Mobile Hawk will have no liability to Client or any of Client’s users for enforcing this FUP and enforcement will not affect Client’s obligations under these terms which includes the payment of fees for the Services.

1.8 Client’s Restrictions on Use of Services.

Client agrees not to do any of the following while using the Site, Services or Content:

• Access, post, submit or transmit any text, graphics, images, software, music, audio, video, information or other material that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, vulgar or offensive; (v) constitutes child pornography or child erotica; (vi) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vii) is violent or threatening or promotes violence or actions that are threatening to any other person; or (viii) promotes illegal or harmful activities or substances (including, but not limited to activities that promote or provide instructional information regarding the manufacture or purchase of illegal weapons or illegal substances).
• Use, display, mirror, frame or utilize framing techniques to enclose the Site or Services, or any individual element or materials within the Site or Services, Mobile Hawk’s name, any Mobile Hawk trademark, logo or other proprietary information, the content of any text or the layout and design of any page or form contained on a page, without Mobile Hawk’s express written consent;
• Access, tamper with, or use non-public areas of the Site or Services, Mobile Hawk’s computer systems, or the technical delivery systems of Mobile Hawk’s providers;
• Attempt to probe, scan, or test the vulnerability of any Mobile Hawk system or network or breach any security or authentication measures;
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Mobile Hawk or any of Mobile Hawk’s providers or any other third party (including another user) to protect the Site, Services or Mobile Hawk Content;
• Attempt to access or search the Site, Services or Mobile Hawk Content or download Mobile Hawk Content from the Site or Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Mobile Hawk or other generally available third party web browsers (such as Microsoft Internet Explorer, Mozilla Firefox, Safari or Opera);
• Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
• Use or access the Services for the purpose of, or resulting in, the posting, publication, distribution or transmission of defamatory material or content;
• Send any emails or text communications for purposes of marketing or promoting non-federally legalized products or services or if such communications are barred by relevant industry associations. For example, Client will not send text messages through the Services if Client is in the cannabis industry, the firearms business or any other illegal or association-prohibited industry;
• Use any meta tags or other hidden text or metadata utilizing an Mobile Hawk trademark, logo URL or product name without Mobile Hawk’s express written consent;
• Use the Site, Services or Mobile Hawk Content for the purpose of bringing an intellectual property infringement claim against Mobile Hawk or for the purpose of creating a product or service competitive with the Services;
• Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, Services or Mobile Hawk Content to send altered, deceptive or false source- identifying information;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services or Mobile Hawk Content;
• Interfere with, or attempt to interfere with, the access of any user, host or network connected to the Site or Services, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
• Collect or store any personally identifiable information from the Site or Services from other users of the Site or Services without their express permission;
• Impersonate or misrepresent Client’s affiliation with any person or entity;
• Violate any applicable law or regulation;
• Develop or build products which perform substantially similar to the Services for the Term of this Agreement and the 12 month period thereafter; or
• Encourage or enable any other individual to do any of the foregoing.

Mobile Hawk will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site and Services security issues, to the fullest extent of the law. Mobile Hawk may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. Client acknowledges that Mobile Hawk has no obligation to monitor Client’s access to or use of the Site, Services or Mobile Hawk Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Services, to ensure Client’s compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Mobile Hawk reserves the right, at any time and without prior notice, to remove or disable access to any Mobile Hawk Content and any User Content, that Mobile Hawk , in its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Services.

2. FEES AND PAYMENT

2.1 Fees. Client shall pay Mobile Hawk the undisputed fees in the currency and as of the date set forth in each Order Form or Statement of Work. Client’s payments under these Terms are due net thirty (30) days from Client’s receipt of Mobile Hawk’s invoice unless agreed otherwise by the Parties in the applicable Order Form or Statement of Work. All fees are exclusive of applicable sales, excise, value-added or use taxes. Except for income taxes levied on Mobile Hawk’s net income, Client shall pay or reimburse Mobile Hawk for all national, federal, provincial, state, local or other taxes and assessments of any jurisdiction, which are legally payable by Client for charges set, services performed or to be performed, or payments made or to be made hereunder. Client shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to Mobile Hawk under these Terms. This provision shall survive the termination of these Terms and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted (e.g. a deficiency assessment by a taxing authority as a result of an audit after the termination of these Terms). Client will notify Mobile Hawk of any invoice dispute within thirty (30) days of receipt of invoice, at which time the parties will engage in good faith efforts to resolve the dispute.

2.2 Late Payments. Client’s failure to pay undisputed fees when due constitutes a material breach of these Terms. If payment is not made within thirty (30) days of when it is due, Mobile Hawk may, in its sole discretion, choose to do any or all of the following: (i) charge Client a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law, rounded to the next highest whole month and compounded monthly; and/or (ii) suspend Client’s access to the Subscription Service and/or the delivery of the Professional Services. Mobile Hawk’s suspension or resumption of the Subscription Service or Professional Services does not limit or prevent Mobile Hawk from pursuing all other remedies available.

3.PROPRIETARY RIGHTS

3.1 Ownership; License; Retained Rights. BirdEye owns all right, title, and interest in and to the Subscription Service, including, without limitation, all modifications, improvements, enhancements, integrations, upgrades, derivative works, and feedback related thereto and all intellectual property rights therein (“Rights”), and any and all Rights developed as part of the delivery and receipt of the Professional Services. Mobile Hawk grants Client a limited, revocable, royalty-free, non-exclusive, non-transferable license to use the Subscription Service, and any deliverables developed pursuant to the delivery of Professional Services hereunder in relation to Client’s use of the Service, for the term of the applicable Order Form or Statement of Work. All rights not expressly granted to Client hereunder are reserved by Mobile Hawk.

3.2 Restrictions. Unless otherwise permitted in writing by Mobile Hawk, Client may not, and may not permit any third party to, (i) copy, reproduce, modify, translate, prepare derivative works of, de-compile, reverse engineer, disassemble or otherwise attempt to derive source code from the Subscription Service; (ii) use, evaluate or view the Subscription Service for the purpose of designing or creating a product or service competitive to Mobile Hawk’s products or services; and/or (iii) resell or use the Subscription Service in a service bureau.

3.3 Data Collection, Ownership, and Use.

3.3.1 Client Data. During the term of this Agreement or any Order Form or Statement of Work, Client grants Mobile Hawk and its partners, a limited, non-exclusive, royalty-free, revocable, world-wide license to use and disclose, as necessary to provide the Subscription Service and Professional Services, all information submitted by Client and Client’s end users in connection with Client’s use of the Subscription Service (e.g., Personal Data, submitted content, product information included in feeds, transaction detail information such as unit prices and cart values, and survey data) (“Client Data”). Client owns all Client Data. Nothing contained herein shall be construed as granting Mobile Hawk ownership in any Client Data. Client hereby gives Mobile Hawk a non-revocable, worldwide, royalty right to use aggregated or anonymized Client Data for internal evaluation purposes only; Mobile Hawk will never market or sell Client Data to any third party.

3.3.2 Mobile Hawk Data. All data generated, stored or collected by Mobile Hawk and its partner technologies which is not Client Data is owned by Mobile Hawk (“Mobile Hawk Data”). Mobile Hawk Data includes, but is not limited to, all review data posted to a Mobile Hawk microsite. Client shall have a limited, perpetual license to use such Mobile Hawk Data generated by the Subscription Service, subject to Section 3.3.3 of these Terms.

3.3.3 Third Party Data. Data generated by the Subscription Service may include data and content that is owned or licensed by a third party, and Client’s use of such third party data and content is limited by such third party’s applicable license terms and web site terms of use. Mobile Hawk hereby disclaims responsibility and/or liability in full for Client’s use of any such third party data and content under this Terms. Such third party data and content will be promptly destroyed, and Client shall otherwise no longer have access to such third party data and content, upon termination of these Terms or termination of the applicable Order Form or Statement of Work.

3.4 Privacy Policy; Personal Data; Security.The collection, use and storage of Personal Data (as defined in the DPA) through Mobile Hawk’s website is governed by Mobile Hawk’s privacy policy located at Privacy Policy, (“Privacy Policy”). If Client’s use of the Subscription Service requires Mobile Hawk to process Personal Data, Mobile Hawk will process Personal Data subject to Birdeye’s Data Processing Addendum located at https://cdn2.birdeye.com/version2/pages/terms/BirdeyeDPA.pdf (“DPA”). The Privacy Policy and DPA, are incorporated into these Terms in their entirety.

During the term of this Agreement, Mobile Hawk shall maintain a security program materially in accordance with industry standards that is designed to: (i) ensure the security of Client Data; (ii) protect against threats or hazards to the security or integrity of Client Data; and (iii) prevent unauthorized access to Client Data. If either party believes that there has been a security breach involving Client Data, such party must promptly notify the other party, unless legally prohibited from doing so.  Additionally, each party will reasonably assist the other party in mitigating any potential damage arising from any such security breach. As soon as reasonably practicable after any such security breach, Mobile Hawk shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Client.

3.5 Confidential Information. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, or by inspection of tangible objects (i) that the disclosing party identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of the information itself (for avoidance of doubt, neither party shall be required to identify information as confidential in order to avail itself of the protections set forth in this Section 3.5). The parties acknowledge that the Subscription Service and Professional Services, the terms of these Terms and any Order Form or Statement of Work, and any other proprietary or confidential information provided to the other party constitute valuable proprietary information and trade secrets of Mobile Hawk and the Client, respectfully. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its use as permitted and in connection with these Terms, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party will have the right to seek an injunction to prevent any breach or continued breach of this section. The receiving party agrees to promptly report any breaches of this section to the disclosing party. Notwithstanding the foregoing, Confidential Information does not include any information which (i) is now, or becomes, through no act or failure to act on the part of the receiving party, generally known or available to the public without breach of these Terms by the receiving party; (ii) was independently developed, or otherwise acquired, by the receiving party without restriction as to use or disclosure before receiving such information from the disclosing party, as shown by the receiving party’s files and records immediately prior to the time of disclosure; or (iii) is obtained by the receiving party without restriction as to use or disclosure by a third party authorized to make such disclosure.

4. WARRANTY; LIMITATIONS OF LIABILITY; INDEMNITY

4.1 Mobile Hawk Warranty. Mobile Hawk represents and warrants that (i) it has all right, title, and interest necessary to provide the Subscription Service and Professional Services to Client under the terms set forth in these Terms and each Order Form or Statement of Work; (ii) the Subscription Service will perform materially in accordance with the terms of this Agreement; (iii) the functionality of the Subscription Service will not be materially decreased during the term of this Agreement; (iv) Mobile Hawk shall use industry standard virus protection designed to prevent any viruses, time bombs or other disabling code from the Subscription Service; and (v) it shall comply with all laws applicable to it in its provision of the Subscription Service. Additionally, Mobile Hawk shall perform the Professional Services in a professional and workmanlike manner in accordance with applicable industry standards.

4.2 Client’s Warranty. Client represents and warrant that (i) Client has any and all consents and authorizations as may be necessary for the Client to receive the Subscription Service and/or Professional Services; (ii) each of the sites where the Subscription Service is deployed contains a privacy policy that discloses the usage of third-party technology and the data collection and usage resulting from the Subscription Service (it being understood that this clause will not be deemed to require those privacy policies to expressly identify Mobile Hawk or any Subscription Service, unless otherwise required by law, rule or regulation) and complies with all applicable privacy laws, rules and regulations; (iii) Client’s websites upon which the Subscription Service is deployed do not contain any material which is defamatory, promotes illegal activity, or contains hate speech; and (iv) Client has legally obtained necessary ownership or license rights to any Client Data, including Personal Data, and that Client has any waivers and/or opt-in agreements in place with authorized users and Client customers that are required by applicable law in relation to the communications to be sent to such users and customers by Mobile Hawk and the Subscription Service under this Terms.

4.3 Warranty Disclaimer. EXCEPT AS SET FORTH HEREIN, EACH PARTY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS, IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES OR ANY SUPPORT RELATED THERETO, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, NON-INTERFERENCE, ACCURACY OF DATA, AND WARRANTIES ARISING FROM A COURSE OF DEALING.

4.4 Limitations of Liability. EXCEPT AS SET FORTH BELOW, THE LIMITATIONS OF LIABILITY IN SECTIONS 4.4.1 AND 4.4.2 WILL APPLY IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND ALSO APPLY REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT. IN NO EVENT WILL THE LIMITATIONS APPLY TO THE AMOUNTS DUE FOR SERVICES UNDER THE TERMS. BOTH PARTIES SHALL USE REASONABLE EFFORTS TO MITIGATE THE DAMAGES FOR WHICH THE OTHER PARTY IS RESPONSIBLE. HOWEVER, IN NO EVENT WILL THE LIMITATIONS APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

4.4.1 No Special Damages. EXCEPT FOR CLAIMS ARISING OUT OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION, OF ANY PARTY, INCLUDING THIRD PARTIES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF THE FOREGOING.

4.4.2 Liability Cap. EXCEPT FOR CLAIMS ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, INDEMNITY OBLIGATIONS OF THESE TERMS WITH RESPECT TO CLIENT’S OBLIGATION TO PAY UNDISPUTED FEES UNDER THESE TERMS, IN NO EVENT WILL THE TOTAL COLLECTIVE LIABILITY OF EITHER PARTY UNDER THIS Terms EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY EITHER PARTY UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

4.5 Client’s Indemnity. Client shall indemnify, defend, and hold harmless Mobile Hawk, its officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement Terms, from a third party’s claim that arises out of a third party’s claim that Client’s website on which the Subscription Service is provided or any application Client develop infringes any intellectual property rights.

4.6 Mobile Hawk Indemnity. Mobile Hawk shall indemnify, defend, and hold harmless Client, Client’s officers, agents, and employees against all losses, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees), resulting from any judgment or proceeding, or any settlement Terms, from a third party’s claim that the Subscription Service, as provided by Mobile Hawk to Client within the scope of this Terms, infringe any intellectual property rights. Mobile Hawk has no obligation to indemnify Client for a claim of infringement to the extent it arises from: (i) infringing matter supplied or developed solely by Client; (ii) unauthorized modifications or uses of the Subscription Service; or (iii) Client’s acts or omissions not in accordance with the terms of this Agreement. If Client’s use of the Subscription Service is enjoined or is likely to be enjoined due to a third party claim of infringement for which Mobile Hawk is required to indemnify Client under these Terms then Mobile Hawk may, at its sole cost and expense and within its sole discretion, do one of the following: (x) procure for Client the right to continue using the Subscription Service; (y) replace or modify the enjoined Subscription Service to make it non-infringing but functionally equivalent; or (z) terminate the enjoined Subscription Service and return any fees paid for enjoined Subscription Service not yet rendered.

4.6.1 The indemnification obligations set forth in this Section 4.6 are Mobile Hawk sole and exclusive obligations with respect to any infringement claims.

4.7 Indemnification Conditions. The indemnification obligations contained in these Terms are conditioned upon: (a) prompt notice by the indemnitee to the indemnitor of any claim, action or demand for which indemnity is claimed (failure to meet this condition does not exempt the indemnitor of its indemnification obligation, except to the extent that failure has materially prejudiced the indemnitor’s ability to defend the claim); (b) sole control of the defense and settlement by the indemnitor; and (c) reasonable cooperation by the indemnitee in the defense as the indemnitor may request. The indemnitee has the right to participate in the defense against the indemnified claims with counsel of its choice and at its own expense but may not confess judgment, admit liability or take any other actions prejudicial to the defense. Further, the indemnitee may not settle an indemnified claim unless the indemnitor has declined to defend.

4.8 Proportional Liability. Each indemnitor’s liability to pay or reimburse any indemnified claim is limited to the extent of the indemnitor’s proportional contribution. Neither party has any liability to the extent that any losses in conjunction with indemnified claims are attributable to acts or omissions of the other party or its indemnities.

5.TERM AND TERMINATION

5.1 Term. These Terms commence on the Effective Date of the first Order Form and shall remain effective as long as any Order Form referring to this Terms remains in effect. Except as specifically set forth to the contrary in these Terms, all payment obligations under any and all Order Forms or Statements of Work are non-cancelable and all payments made are non-refundable.

5.2 Termination for Breach. In addition to any other remedies it may have, if either party breaches any of the material terms or conditions of these Terms and fails to cure such breach within thirty (30) days after written notice from the non-breaching party, the non-breaching party may terminate these Terms or a specific Order Form or Statement of Work upon written notice. Upon termination of these Terms or a Order Form or Statement of Work due to Client’s material breach, Client will pay for the Subscription Service and Professional Services that have been rendered through the termination date plus all other charges that would have been due under the remaining term of each affected Order Form or Statement of Work. Upon termination of these Terms or an Order Form or Statement of Work due solely to a breach by Mobile Hawk, Mobile Hawk shall refund a pro rata portion of any fees paid for services not yet rendered as of the date of termination.

6. INNOVATION FEE

At the time of annual renewal, Mobile Hawk will apply a 5% fee on all recurring Services fees to cover product innovations, enhanced services and inflation (“Innovation Fee“). The Innovation Fee shall apply automatically upon any renewal of this Agreement and apply to all Services covered by this Agreement at the time of the renewal. The Innovation Fee will be applied to the Services fees including any additional fees incurred during the term. The Innovation Fee will be included in the annual invoice to Client due according to the payment terms set forth above.

7. MISCELLANEOUS

7.1 Independent Contractors. In performing under these Terms, each party is acting as independent contractor, and in no way are the parties to be construed as partners, joint ventures, or agents of one another in any respect.

7.2 Subcontractors. If Mobile Hawk  subcontracts any portion of the Professional Services to a third party, Mobile Hawk (i) shall require such subcontractor to comply with the material terms and conditions of these Terms and (ii) remains responsible for any acts or omissions of its subcontractors as if such acts or omissions were performed by Mobile Hawk.

7.3 Export. Client may not export or re-export any software included within the Subscription Service, either directly or indirectly, without receiving Mobile Hawk’s written consent and any required license from the applicable governmental agency.

7.4 Force Majeure. Neither party will be in default for failing to perform any obligation hereunder, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, civil commotion, Third Party Sites, strikes, terrorism, failure of third party networks or the public Internet, power outages, industry-wide labor disputes or governmental demands or restrictions.

7.5 Assignment. Either party may assign these Terms in connection with (i) a merger where the contracting entity does not survive such merger, or (ii) the sale of all or substantially all of the contracting entity’s assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under the Terms without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection is void.

7.6 Travel & Expense Reimbursement. Each applicable Order Form or Statement of Work will set forth any reasonable and necessary travel expenses that will need to be incurred in performance of the Professional Services under these Terms.

7.7 Notice and Delivery. Except as otherwise provided herein, all notices, statements and other documents, and all approvals or consents that any party is required or desires to give to any other party will be given in writing and will be served in person, by express mail, by certified mail, by overnight delivery, by facsimile, or by electronic mail at the respective addresses set forth below, or at such other addresses as may be designated by such party.

Mobile Hawk, Inc.
5 Murphy Ct
Blauvelt, NY 10913
ATTN: Mobile Hawk Customer Care
Email: legal@gomobilehawk.com

Notices to Client will be addressed to the contact designated in writing by Client to Mobile Hawk for Client’s relevant account, and in the case of billing-related notices, to the relevant contact designated by Client.

7.8 Compliance with Laws and Regulations. Each party shall in good faith perform its obligations hereunder in a manner that complies with all applicable laws, regulations, ordinances and codes, including identifying and procuring required permits, certificates, approvals and inspections. If either party receives any notice, summons, or complaint regarding its non-compliance with any such laws, regulations, ordinances, or codes, it shall promptly notify the other party of such matter

7.9 Governing Law and Jurisdiction. These Terms and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed by the laws of the State of New York, without giving effect of principles of conflicts of law. The Uniform Computer Information Transactions Act, the United Nations Convention on the International Sale of Goods, and choice of law rules of any jurisdiction, will not apply to the Terms. Any disputes, actions, claims or causes of action arising out of or in connection with the Terms shall be subject to the exclusive jurisdiction of the state or federal courts in Rockland County New York.

7.10 Entire Understanding; Order of Precedence. These Terms represent the parties’ entire understanding relating to the Subscription Services and Professional Services, and supersedes any prior or contemporaneous, conflicting or additional, communications. Any conflict between these Terms, any addendum or attachment and any Order Form or Statement of Work shall be resolved in favor of the Order Form or Statement of Work followed by the addendum or attachment over the Terms. These Terms or an Order Form may be executed by electronic signature. Except as provided herein regarding changes to these Terms that may be amended by notice to Client, the terms and conditions of the Terms may be amended only by written Terms of the parties. If any provision of the Terms is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

7.11 Severability; Waiver. The failure of either party to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.

7.12 Survival. All sections of this Terms that by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.