Last Modified: June 3, 2021

ATLAS PLATFORM STANDARD TERMS OF SERVICE

These Standard Terms of Service (the “Terms”) between you (“Client”) and StreetShares, Inc. (“StreetShares”) set forth the terms and conditions that govern the Client’s access to and use of the content, features, and functionality of business lending and other financial services applications and products available and accessible on the Atlas platform within StreetShares’ websites (the “Atlas Services”).

  1. Definitions. In addition to those definitions appearing above and elsewhere in this Agreement, the following terms have the following meaning, as used in this Agreement:

 

Agreement” means these Terms together with any Order Form.

 

Applicable Law” means the laws, court opinions, attorney general opinions, rules, and regulations of the United States or of any state or the various agencies, departments, or administrative or governmental bodies thereof, and any regulatory guidance, determinations of (or agreements with) an arbitrator or Regulatory Authority and written direction from (or agreements with) any arbitrator or Regulatory Authority, as the same may be amended and in effect from time to time during the Term of the Agreement, including, without limitation, to the extent applicable to a party: (i) the federal Fair Credit Reporting Act (15 U.S.C. § 1681, et seq.) (the “FCRA”); (ii) the federal Equal Credit Opportunity Act (15 U.S.C. § 1691 et seq.) (“ECOA”); (iii) Title V of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801, et seq.) (“GLBA”); (iv) the federal Bank Secrecy Act (12 U.S.C. § 1951 et seq.), as amended by the USA Patriot Act or otherwise from time to time (“BSA”); (v) any and all sanctions or regulations enforced by the United States Department of Treasury’s Office of Foreign Assets Control (“OFAC”); (vi) state and federal prohibitions against unfair, deceptive, or abusive acts or practices; (vii) state and federal data privacy or security laws; (viii) all federal and state statutes or regulations relating to marketing, including the CAN-SPAM Act (15 U.S.C. §§ 7701–7713); and (ix) all federal and state statutes or regulations relating to financial institutions, banking, or lending. 

 

Business” means any individual, corporation, company, association, partnership, estate, trust, and any other entity or organization that operates for business or commercial purposes and not for personal, family, or household purposes.

 

Business Customer” means any Business that uses or accesses the Atlas Services provided to Client under the Agreement.

 

Business Customer Data” means any information or data related to a Business Customer provided by the Business Customer while using or accessing the Atlas Services provided to Client under the Agreement.

 

Business Customer User” means any individual using or accessing the Atlas Services on behalf of a Business Customer.

 

Business Services” means business lending services and other business financial services offered to Business Customers by Client via the Atlas Services.

 

Client Data” means the data, media, and content provided by Client in connection with its use of the Atlas Services or otherwise in connection with the Agreement (“Client Provided Data”) and Business Customer Data.

 

Client User” means any individual authorized by or with permissions from Client to use Atlas Services pursuant to Client’s rights under the Agreement.  

 

Confidential Information” means any non-public material or information relating to a party which it discloses or makes available to the other party under the Agreement, including, by way of example, research, strategies, inventions, processes, formulas, technologies, designs, drawings, finances, or other non-public information, or trade secrets that such disclosing party treats as proprietary or confidential. 

 

Documentation” means StreetShares’ standard user manual and related materials which describe the use, operation, and functions of the Atlas Services, which are generally made available to users of the Atlas Services, as may be updated and amended by StreetShares from time to time.

 

Intellectual Property Rights” means all patent, copyright, trade secret, trademark, moral rights, mask work rights, and other intellectual property rights.

 

Order Form” means an order form entered into between Client and StreetShares for access to and use of the Atlas Services.

 

Regulatory Authority” means any federal, state, or local governmental, regulatory or self-regulatory authority, agency, court, tribunal, commission, or other entity asserting jurisdiction over either party or the activities under this Agreement. 

 

Service Limits” mean the limitations on the use of the Atlas Services set forth in the Agreement and the Documentation.

 

StreetShares Data” means any and all data, data models, databases, structures, or statistical data created, developed, owned, licensed, or derived by StreetShares (including data from Third-Party Materials and data related to a Business Customer, other than Business Customer Data or Client Provided Data).

 

“StreetShares Security Policy” means StreetShares’ then-current information security policy, as may be updated and amended by StreetShares from time to time.

 

“StreetShares Support Policy” means StreetShares’ then-current support policy and service level agreement, as may be updated and amended by StreetShares from time to time.

 

Third-Party Materials” mean materials and information, in any form or medium, including any software (including open-source software), documents, data, content, specifications, products, equipment or components, that are not proprietary to StreetShares or Client. 

 

  1. General. These Terms, along with the terms set forth in any Order Form, are the terms and conditions governing the legal relationship between StreetShares and Client relating to the mutual covenants and obligations of the parties. StreetShares’ provision of the Atlas Services is subject to the terms and conditions set forth in these Terms and the Order Form. To the extent there is a conflict between the terms of the Agreement, unless the parties expressly agree otherwise, the following order of precedence will apply: (i) Order Form and then (ii) these Terms.

 

  1. Atlas Services—Orders, Access, and Use.

 

(a)  Orders. The Atlas Services to be provided by StreetShares under the Agreement will be set forth in the Order Form executed by the parties. The Order Form includes a description of the applicable Atlas Services, the costs associated with such Atlas Services, the period of time Client will have access to the ordered Atlas Services (the “Access Term”), certain Service Limits for such Atlas Services, and any unique additional terms.

 

(b)  Provision of Access. Subject to the terms and conditions contained in the Agreement, StreetShares hereby grants to Client a non-exclusive, non-transferable right to use and access the Atlas Services ordered pursuant to an Order Form during the Access Term up to the Service Limits. Client will be responsible for the security of all passwords and other access protocols required for Client to access the Atlas Services.

 

(c)  User Access to Atlas Services. Client may permit any Client User or Business Customer User to access and use the Atlas Services in accordance with the Agreement (including the Service Limits). The Atlas Services are only available to Client Users and Business Customer Users; and Client will not allow any other prospective or current customer or member to access or use the Atlas Services. Each Client User and Business Customer User is subject to the usage restrictions herein and any end user license agreement or other terms of service or use applicable to the Atlas Services as posted on any StreetShares’ website from time to time. Client will further ensure that any Client User is bound by a contractual, enforceable agreement, which agreement, will, by its terms, provide substantially the same or greater protections for StreetShares’ Confidential Information, StreetShares’ Data, and Business Customer Data as are provided by the terms of the Agreement. Client will only allow Client Users who have been assigned a unique user identification (“User ID”) to access the Atlas Services. User IDs cannot be shared or used by more than one Client User. Client will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Atlas Services, and will notify StreetShares promptly of any such unauthorized use known to Client. If Client wishes to discontinue a particular Business Customer User’s or Client User’s access to the Atlas Services, Client will notify StreetShares in writing and StreetShares will terminate such user’s access as soon as practicable. Client will perform entitlement reviews for access controls of its Client Users and Business Customer Users and provide StreetShares with reports of such entitlement reviews upon its request.

 

(d)  General Usage Restrictions. Client, each Client User, and each Business Customer User will only access and use the Atlas Services in the United States. Client, each Client User, and each Business Customer User will not (i) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of the Atlas Services are compiled or interpreted, and Client acknowledges that nothing in the Agreement will be construed to grant Client any right to obtain or use such code; (ii) create any derivative product from any of the foregoing; (iii) duplicate the Atlas Services or any software component of the Atlas Services; (iv) license, sublicense, or transfer the Atlas Services to a third party or allow third parties to gain access to the Atlas Services; (v) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (vi) interfere with or disrupt the integrity or performance of the Atlas Services or the data contained therein; (vii) attempt to gain unauthorized access to the Atlas Services, computer systems, or networks related to the Atlas Services; or (viii) interfere with another user’s use and enjoyment of the Atlas Services.

 

(e) Legal and Regulatory Usage Restrictions. Client will ensure that its use of the Atlas Services complies with all Applicable Laws.

 

(i) GLBA Data. Some of the information contained in the Atlas Services may be “nonpublic personal information,” as defined in the GLBA and related state laws and is regulated by the GLBA and related state laws (“GLBA Data”). Client will not obtain and/or use GLBA Data through the Atlas Services in any manner that would violate the GLBA, or any similar state or local laws, regulations and rules. Client acknowledges and agrees that it may be required to certify its permissible use of GLBA Data falling within an exception set forth in the GLBA. Client certifies with respect to GLBA Data processed or received through the Atlas Services that it complies with the Interagency Standards for Safeguarding Customer Information issued pursuant to the GLBA.

 

(ii) Non-FCRA Data. The Atlas Services are not provided by “consumer reporting agencies,” as that term is defined in the FCRA and do not constitute “consumer reports,” as that term is defined in the FCRA. Accordingly, the Atlas Services may not be used in whole or in part as a factor in determining eligibility for credit, insurance, employment or another purpose in connection with which a consumer report may be used under the FCRA. Client certifies that it will not use any of the information it receives through the Atlas Services (A) to determine, in whole or in part an individual’s eligibility for any of the following products, services or transactions: (1) credit or insurance to be used primarily for personal, family or household purposes; (2) employment purposes; (3) a license or other benefit granted by a government agency; or (4) any other product, service or transaction in connection with which a consumer report may be used under the FCRA or any similar state statute, including without limitation apartment rental, check-cashing, or the opening of a deposit or transaction account; or (B) to take any “adverse action,” as that term is defined in the FCRA.   Without limiting the foregoing, Client may use, except as otherwise prohibited or limited by the Terms, information received through the Atlas Services for the following purposes: (1) to verify or authenticate an individual’s identity; (2) to prevent or detect fraud or other unlawful activity; (3) to locate an individual; and (4) to review the status of a legal proceeding.

 

(iii) Economic Sanctions Law and BSA Compliance. Client will comply with all economic sanctions’ laws of the United States. Client will not provide access to the Atlas Services to any individuals identified on OFAC’s list of Specially Designated Nationals (“SDN List”). Client will not take any action which would place StreetShares in a position of non-compliance with any such economic sanctions laws. Client will comply with the BSA and is responsible for all BSA compliance and reporting in connection with its use of the Atlas Services, including with respect to its Client Users and Business Customer Users and their applications for Business Services.

 

(iv) Collection and Transmission of Information. Client is responsible for all marketing communications and will not send marketing communications via the Atlas Services. Client, including any Client User, will not, in connection with the Atlas Services: (i) send any messages in violation of Applicable Law, including the CAN-SPAM Act or the Telephone Consumer Protection Act of 1991; (ii) harvest, collect, gather, or assemble information or data regarding Business Customers or other users without their consent; or (iii) transmit through or post unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors.

 

(f)  Scope of Technical Support. As part of the Atlas Services, StreetShares provides the support services for the Atlas Services as set forth in the StreetShares Support Policy. If Client requests technical support in connection with this Agreement outside of the scope of the StreetShares Support Policy (including technical support related to audits or document destruction), Client will pay StreetShares’ technical support rate of $150 per hour, provided that StreetShares notifies Client in advance that such technical support is outside of the scope of the StreetShares Support Policy and provides the Client with an estimate of the fees to be charged by StreetShares for such technical support requested by Client.

 

(g) Compliance with Documentation & Support Policy. Client may only use the Atlas Services as described in the Documentation and this Agreement and will comply with the terms and conditions of the StreetShares Support Policy.

 

(h) Suspension of Service. If Client fails to pay undisputed amounts owed in accordance with the Agreement, or if any Client User or Business Customer User breaches any of the usage restrictions, or if Client breaches any other provision of the Agreement, StreetShares will have the right, in addition to any of its other rights or remedies, available at law or in equity to: (i) immediately suspend the Atlas Services to Client; and/or (ii) immediately suspend access to the Atlas Services for any Client User or any Business Customer User. StreetShares will incur no liability for taking any action under this Section, until such amounts are paid in full or such breach is cured (in StreetShares’ sole discretion), as applicable. In addition, StreetShares may immediately suspend access to the Atlas Services of Client, any Client User, or any Business Customer User if StreetShares believes that they may be misusing them, or that the use of Client, any Client User, or any Business Customer User may cause StreetShares or Client to be exposed to legal, compliance, or regulatory risk. (For purposes of this subsection, Client may only dispute amounts owed to StreetShares if such amounts are disputed in good faith and Client immediately pays all undisputed amounts. Such dispute will be subject to immediate resolution as provided in these Terms.) 

 

(i) Updates to the Atlas Services.  StreetShares reserves the right to provide updates, corrections, workarounds, or the like to the Atlas Services from time to time, at StreetShares’ sole discretion.  Updates may include enhancements and improvements to the presently existing functionality of the Atlas Services and related updates to associated documents, forms, applications, or documentation associated with the Atlas Services. 

 

(j) Relationship Among the Parties. The relationship between the parties is intended to be that of a technology user (Client) and technology services provider (StreetShares). To the extent that a governmental entity asserts that the arrangement contemplated by this Agreement constitutes a relationship specified in 13 CFR § 120.222, no premiums received from the sale of an SBA guaranteed loan will be shared by Client with StreetShares and any obligations to share such premiums are hereby disclaimed by StreetShares.

 

  1. Business Services.

 

(a) Application Submission.  The Atlas Services allow Client to receive an electronic application for Business Services from a Business Customer of Client. Through the Atlas Services, a Business Customer may submit the application and supporting documentation to Client. Client will at all times be deemed the lender or financial services provider to which a Business Customer is applying for Business Services. StreetShares may, to the extent it deems appropriate, provide statements to Business Customers and Business Customer Users regarding Client’s relationship with StreetShares and disclosing that Client is the lender or financial servicer provider of record and that StreetShares is serving as a technology and service provider to Client.    

 

(b) Business Customer Information.  StreetShares is not responsible for the determination of the accuracy or completeness of the information or documents submitted by Business Customers to Client through the Atlas Services. StreetShares will use commercially reasonable efforts to compile and present information gathered by StreetShares from selected third-party records and sources used in the provision of the Atlas Services; provided, however, that the Client accepts all information “AS IS”. Client acknowledges and agrees that StreetShares obtains its data from third-party sources, which may or may not be completely thorough and accurate, and that Client will not rely on StreetShares for the accuracy or completeness of information supplied through or presented in the Atlas Services.

 

(c) Client Decision.  Client is responsible for underwriting and for any decision regarding whether a Business Customer is eligible for Business Services from Client. Client agrees that any programmed or automated eligibility criteria within the Client’s Atlas Services constitute the Client’s decision with respect to the eligibility of a Business Customer. Client understands that any recommended decision within the Atlas Services does not constitute legal, accounting, or any professional advice from StreetShares and that Client at all times retains the sole responsibility for making any decision to offer or decline any Business Services to a Business Customer.

 

(d) Credit Authorization. Client is responsible for obtaining a Credit History Authorization (defined below) from each applicable Business Customer and/or Business Customer User in compliance with Applicable Law, including ECOA. “Credit History Authorization” means the Business Customer’s and/or Business Customer User’s consent, in compliance with Applicable Law, for Client and StreetShares on behalf of Client, to obtain and use the following consumer and business report information (“Credit History Information”): (i) information about Business Customers, their authorized representatives, and owners from various federal, state, and other agencies; (ii) information about Business Customers, their authorized representatives, and owners maintained in public and private databases; (iii) information about Business Customers, their authorized representatives, and owners maintained by various credit bureaus, ratings agencies, or consumer reporting agencies; (iv) information about Business Customers, their authorized representatives, and owners relating to previous contractual engagements and relationships; (v) and information about Business Customers’, their authorized representatives’, and owners’ criminal history. Client agrees that it will only use Credit History Information in compliance with Applicable Law and the usage restrictions of this Agreement, including when taking any “adverse action” with respect to a Business Customer, as that term is defined in ECOA.

 

(e) Materials Generated by the Atlas Services. If included in the Atlas Services ordered by the Client, the Atlas Services may generate Credit History Authorizations, offer letters, adverse action letters, and other documents related to the Business Services applied for via the Atlas Services (“Atlas Generated Materials”). StreetShares will use commercially reasonable efforts to compile and present the Atlas Generated Materials; provided, however, that the Client accepts all Atlas Generated Materials “AS IS”. Client will not rely on StreetShares for the Atlas Generated Materials to be complete, accurate, or in compliance with Applicable Law. If Client deems any Atlas Generated Materials as insufficient or non-compliant, Client should not use such Atlas Generated Materials. Client should notify StreetShares of any Atlas Generated Materials it believes to be non-compliant with Applicable Law; provided, however, that StreetShares is not required to make any modifications to the Atlas Generated Materials upon such notification or at the request of Client. It is the Client’s responsibility to review, complete, perform quality assurance, obtain signatures upon, save, transfer to a repository, or otherwise take possession and custody of such Atlas Generated Materials in a manner that is consistent with Applicable Law.      

 

(f) Compliance with Applicable Law.  Client is responsible for compliance with Applicable Laws.  The Atlas Services and the Atlas Generated Materials are designed for use only in the United States.  It is incumbent on Client to review the Atlas Services and the Atlas Generated Materials with Client’s legal counsel and compliance personnel.  Although StreetShares strives to achieve compliance with Applicable Law, such compliance is ultimately the responsibility of Client, as lender or financial service provider, and StreetShares assumes no responsibility for providing and makes no representations or warranties, express or implied, that the Atlas Services or the Atlas Generated Materials are in compliance with Applicable Law or Client’s policies and procedures.

 

(g) Client Servicing.  Client will have the sole ultimate responsibility to provide servicing to each Business Customer, including servicing of any Business Services offered by Client to a Business Customer via the Atlas Services.  At its sole expense, Client will, in addition to performing any other lender or financial institution functions, as necessary: (i) directly collect and receive all installments payments of principal and interest made on any loan; (ii) allocate and disburse such principal and interest as required by the documentation of such loan; (iii) receive and review all financial and other reports related to each loan including the complete underwriting file; (iv) have the responsibility for collection and liquidation activity; and (v) provide all regulated communications to Business Customers or Business Customer Users required by Applicable Law.  

 

(h) Role of the Client.  Client understands and agrees that Client will function as lender or financial service provider of record and bear one hundred percent of all losses on Business Services originated by Client using the Atlas Services.   Without limiting any further terms set forth in this Agreement, the Atlas Services do not include the following, which are the sole responsibility of the Client: (i) determining the eligibility of any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services for Business Services; (ii) authenticating the identity of any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services; (iii) verifying the accuracy or completeness of any information submitted by any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services; (iv) underwriting of loans and other Business Services; (v) closing of loans and other Business Services, including closing documents, obtaining signatures on closing documents, or approval or distribution of funds; (vi) sales of loans in the secondary market; (vii) compliance with legal or regulatory requirements by any applicant, borrower, agent, Business Customer, lender, or other user of the Atlas Services; (viii) compliance with any law or regulation applicable to the origination, onboarding, underwriting, funding, servicing, forgiveness, sale, or repayment of any loans or other Business Services; or (ix) document management, retention, or storage beyond the Access Term for the Atlas Services. 

 

(i) Role of StreetShares.  In performing services hereunder, StreetShares agrees that it will act as an independent contractor for all purposes. StreetShares does not have authority to bind Client in any capacity in any transactions with third parties except as otherwise provided in the Agreement.  StreetShares acknowledges that Client retains control over all of Client’s products, and StreetShares will not have authority to issue letters of intent or proposals, accept or reject any offers or counter-offers, make decisions regarding pricing and terms of loans, or make any other decisions regarding the business relationship between Client and a Business Customer or potential Business Customer.  However, Client may authorize StreetShares to perform certain delegable actions as set forth in an Order Form.

 

  1. Business Customer Data Security.

 

(a) Data Security Measures by StreetShares. StreetShares will maintain administrative, physical, and technical safeguards for the security, confidentiality, and integrity of Business Customer Data at a level not materially less protective than as described in the StreetShares Security Policy. Those safeguards will include measures for preventing unauthorized access, use, modification, deletion, and disclosure of Business Customer Data by StreetShares personnel. Before providing access to Business Customer Data to a third party service provider, StreetShares will ensure that the third party (i) obtains only such access as is necessary to provide the third party services and (ii) maintains reasonable data practices for maintaining the confidentiality and security of the Business Customer Data and preventing unauthorized access to or use of the Business Customer Data, with such practices to be not materially less protective than those set forth in the StreetShares Security Policy, as applicable to the services provided by the third party.

 

(b) Data Security Measures by Client. Client bears sole responsibility for adequate security, protection, and backup of Business Customer Data when in Client’s or its representatives’ or agents’ possession or control, including when Client Users access Business Customer Data via the Atlas Services. Client warrants and undertakes that (i) its use of Business Customer Data in connection with the Atlas Services will be for the limited purposes specified in the Agreement and in compliance with Applicable Law; (ii) it maintains reasonable data practices for maintaining the confidentiality and security of the Business Customer Data and preventing unauthorized access to or use of the Business Customer Data; and (iii) if Client receives notice of unauthorized access to or use of Business Customer Data, it will take reasonable and appropriate steps to remediate the unauthorized access and use.

 

  1. Proprietary Rights.

 

(a) Ownership of Atlas Services. Notwithstanding anything to the contrary contained herein or in any Order Form, as between StreetShares and Client, StreetShares and its licensors retain all right, title, and interest (including, without limitation, all Intellectual Property rights) in and to the Atlas Services, the Documentation, and any and all related and underlying software, code, subsets, objects, programs, program listings, application programming interfaces and other interfaces, algorithms, business logic, data (including data models, databases, structures, and statistical data, in each case, which are created or derived by StreetShares or its licensors), modules, components, designs, specifications, tools, models, systems, utilities, technology, inventions, works, know-how, ideas, analysis frameworks, lending practices, reports, training materials, marketing materials, assessments, documentation, as well as any related process or methodology provided or used by StreetShares, and with respect to each of the foregoing, any copies, modifications, improvements, customizations, derivative works or enhancements thereto, however developed or provided (including any which incorporate any of Client’s ideas, feedback, or suggestions) (collectively, the “StreetShares Technology”). Client acknowledges that Client is obtaining only a limited right to access and use the Atlas Services and that, irrespective of any use of the words “purchase”, “sale”, “license,” “sublicense” or like terms hereunder, no ownership rights in the StreetShares Technology are being conveyed to Client under this Agreement or otherwise, and Client further acknowledges that nothing contained in this Agreement will be construed to convey to Client ownership of any Intellectual Property rights in or to any StreetShares Technology.

 

(b) Ownership of StreetShares Data. As between StreetShares and Client, StreetShares has created, acquired, licensed, owns, or otherwise has all right, title, and interest, including all Intellectual Property Rights in and to the StreetShares Data. Except as expressly granted to Client in the Agreement, all right, title, and interest in and to all StreetShares Data by whomsoever made and including all Intellectual Property Rights therein, are and will remain with StreetShares and/or the respective rights holders in the Third-Party Materials, as appropriate. Client will not engage in any act or omission that would impair StreetShares’ and/or its licensors’ Intellectual Property Rights in the StreetShares Data. Client will comply with any and all third-party license agreements and any material breach by Client of such third-party license agreement will be deemed a material breach of the Agreement. StreetShares retains the right to use the StreetShares Data for any purpose in StreetShares’ sole discretion.

 

(c) StreetShares Data License. Subject to and conditioned upon Client’s payment of all fees and compliance with and performance in accordance with all other terms and conditions of the Agreement, StreetShares hereby grants to Client a royalty-free, non-exclusive, non-transferable license to use the StreetShares Data during the Term for the limited purposes of (i) use that is essential to the functionality of the Atlas Services or (ii) use of the StreetShares Data only in connection with the Client’s use of the Atlas Services. All other rights in and to the StreetShares Data are expressly reserved by StreetShares and its respective third-party licensors, as applicable.

 

(d) Ownership of Client Data. Client has created, acquired, licensed, owns, or otherwise has all right, title, and interest, including all Intellectual Property Rights in and to the Client Data. Except as expressly granted to StreetShares in the Agreement, all right, title, and interest in and to all Client Data by whomsoever made and including all Intellectual Property Rights therein, are and will remain with Client and/or the respective rights holders in the Third-Party Materials, as appropriate.  StreetShares will not engage in any act or omission that would impair Client’s and/or its licensors’ Intellectual Property Rights in the Client Data. StreetShares will comply with any and all third-party license agreements and any material breach by StreetShares of such third-party license agreement will be deemed a material breach of the Agreement. Client retains the right to use the Client Data for any purpose in Client’s sole discretion.

 

(e) Client Data License. Client hereby grants to StreetShares a royalty-free, non-exclusive, non-transferable license to use the Client Data during the Term for the limited purposes of performing StreetShares’ obligations under the Agreement or as otherwise authorized by the Agreement. Client additionally grants StreetShares the right to use the Client Data in an aggregate or de-identified format solely in order to improve the Atlas Services or for development of new product and service offerings. Client acknowledges and agrees that StreetShares may separately obtain data rights directly from Business Customers. All other rights in and to the Client Data are expressly reserved by Client and its respective third-party licensors, as applicable.

 

(f) Marks and Publicity. Each party retains the exclusive ownership right to any distinctive trade names, logos, trademarks, service marks, product identifications, artwork, and other symbols and devices  associated with such party or its products or services (“Marks”). To the extent that a party’s Marks are used in connection with the Atlas Services, such party grants the other party a limited, revocable, non-exclusive, non-transferable and non-assignable license to use such Marks solely to perform its obligations under the Agreement or as otherwise authorized by the Agreement. StreetShares may use Client’s name or Marks to identify Client as a client of StreetShares on StreetShares’ website or in other promotional materials. Each Party may reference the other Party in a press release, advertisement, or other promotional material, including website content and mobile applications, if the Party seeking to use said names and Marks, receives advance permission of the other Party in writing and such usage would be made in a commercially reasonable manner and in the normal course of business.

 

  1. Fees and Payments.

 

(a) Fees Payable. All fees payable under the Agreement will be set forth in the Order Form. 

 

(b) Disputed Charges. Client must notify StreetShares in writing of any dispute or disagreement with invoiced fees within thirty (30) days after the date of invoice. Absent such notice, Client will be deemed to have agreed to the fees as invoiced after the expiration of such time period.

 

(c) Late Payments; Interest; Payment in Dollars. StreetShares reserves the right to charge, and Client agrees to pay, a late charge equal to one and one-half percent (1½%) per month or the maximum rate permitted by applicable law, whichever is less, on any amount that is not the subject of a good faith dispute that is unpaid on the due date, and on any other outstanding balance. All payments to be made under the Agreement will be made in US dollars.

 

(d) Taxes. All amounts payable under the Agreement will exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (collectively, “Sales Taxes”). Client will be responsible for payment of all Sales Taxes (other than taxes based on StreetShares’ income), fees, duties, and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of the Atlas Services. Any Sales Taxes imposed on any payments hereunder to StreetShares will be Client’s sole responsibility. StreetShares may, in its discretion, collect Sales Taxes from the Client and remit them to the appropriate taxing authority.  In the event that StreetShares does not collect Sales Taxes from the Client, Client will, upon StreetShares’ request, provide StreetShares with official receipts issued by the appropriate taxing authority, or such other evidence as StreetShares may reasonably request, to establish that such taxes have been paid. Client will make all payments required hereunder to StreetShares free and clear of, and without reduction for, any withholding taxes. 

 

  1. Confidentially.

 

(a) Ownership of Confidential Information. The parties acknowledge that during the performance of the Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party.

 

(b) Mutual Confidentiality Obligations. Each party agrees as follows: (i) to access and use the Confidential Information only as necessary to fulfill its obligations under the Agreement or as otherwise permitted by the Agreement; (ii) that the party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party except as otherwise permitted by the Agreement; (iii) that, except as required in performance of a party’s obligations under the Agreement or otherwise permitted by the Agreement, neither party will create any derivative work from Confidential Information disclosed to such party by the other party; and (iv) to restrict access to the Confidential Information to such of its personnel, agents, consultants, and/or vendors, if any, who have a need to have access it and who have been advised of and have agreed in writing or are otherwise bound to treat such information as confidential in accordance with the terms of the Agreement.

 

(c) Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of subsections 8(a) and 8(b) will not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain without a breach of a confidentiality obligation with respect thereto; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction.

 

(d) Disclosure Exceptions. Notwithstanding anything herein to the contrary, each party may disclose Confidential Information to the limited extent required (i) in order to comply with a subpoena, the order of a court or other governmental body, the request of a licensing, accreditation, or other regulatory body with authority over either of the parties, or as otherwise necessary to comply with Applicable Law, provided that the party making the disclosure will, if permitted by law, first give written notice to the other party to provide the other party with an opportunity make a reasonable effort  to obtain a protective order; or (ii) to establish a party’s rights under the Agreement, including to make such court filings as it may be required to do.

 

  1. Representations and Warranties.

 

(a) Mutual Representations and Warranties. Each party represents and warrants to the other that the execution and performance of the Agreement does not and will not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including terms relating to covenants not to compete and confidentiality obligations.

 

(b) Client Representations and Warranties. 

 

(i) Client represents and warrants that it owns or otherwise has obtained all necessary rights or consents to grant StreetShares access to and use of the Client Data in connection with the Atlas Services (including without limitation obtaining any necessary consents from Business Customers) and that the Client’s provision and use of Client Data in connection with the Atlas Services is in compliance with all Applicable Laws and any privacy notices or privacy disclosures of Client. Client will have the sole responsibility for Client’s use of Client Data and for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data.

 

(ii) Client represents and warrants that it has obtained any rights, consents, or approvals required to give StreetShares the right or license to access, use, modify, and make derivative works of any hardware, software, or other products used or to be used by Client and necessary for StreetShares to perform its obligations under the Agreement without infringement or violation of the ownership or license rights of the providers or owners of such hardware, software, or other products.

 

(iii) Client represents and warrants that it is a chartered financial institution or otherwise licensed to offer and provide the Business Services and, during Term of this Agreement, Client will keep all such charters, licenses, and authorizations current and in-force.

 

(iv) Client represents and warrants that it has the opportunity to review the Atlas Services and any Atlas Generated Materials with its compliance professionals and legal counsel prior to Client’s use of the same and Client acknowledges that all are provided on an as-is basis with no warranty or guarantee.   

 

(c) StreetShares Representations and Warranties.

 

(i)     StreetShares represents and warrants that it will provide the Atlas Services in accordance with the StreetShares Support Policy. Client’s sole and exclusive remedies for breach of this subsection 9(c)(i) are StreetShares’ obligations set forth in the StreetShares Support Policy.

 

(ii)    StreetShares represents and warrants (x) that StreetShares has full and sufficient right to assign or grant the rights and/or licenses granted to Client in the Agreement; and (y) no software/work products produced under the Agreement infringe any U.S. copyright, trademark, or other intellectual property rights (including trade secrets), and no claim (whether or not embodied in an action, past or present) of such infringement has been threatened or asserted, or is pending, against StreetShares or against any entity from which StreetShares has obtained such rights (insofar as StreetShares is aware). Client’s sole and exclusive remedies for breach of this subsection 9(c)(ii) are StreetShares’ indemnification obligations set forth in subsection 11(a).

 

(d) NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY WARRANTED IN THE AGREEMENT, THE  ATLAS SERVICES, THE ATLAS GENERATED MATERIALS, AND ANY   OTHER MATERIALS, SOFTWARE, DATA, PRODUCTS  AND/OR SERVICES PROVIDED BY STREETSHARES ARE PROVIDED “AS IS” AND “WITH ALL  FAULTS,” AND STREETSHARES EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT  LIMITED TO, ANY ADDITIONAL OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, NON-INTERFERENCE, VALUE OR ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, COMPLIANCE WITH APPLICABLE LAWS, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT. NO WARRANTY IS MADE BY STREETSHARES ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. STREETSHARES DOES NOT WARRANT THAT THE ATLAS SERVICES OR ANY OTHER INFORMATION, MATERIALS, TECHNOLOGY OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS, COMPLY WITH APPLICABLE LAW, GENERATE ENFORCEABLE OBLIGATIONS, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CLIENT ACKNOWLEDGES THAT STREETSHARES’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF CLIENT ONLY. THE ATLAS SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.  STREETSHARES IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

 

  1. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. EXCEPT WITH RESPECT TO EACH PARTY’S OBLIGATIONS RELATED TO BUSINESS CUSTOMER DATA SECURITY (SECTION 5), PAYMENT OBLIGATIONS (SECTION 7), CONFIDENTIALITY (SECTION 8), AND INDEMNIFICATION (SECTION 11), THE CUMULATIVE LIABILITY OF EACH PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID TO STREETSHARES BY CLIENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND, ABSENT ANY OF SUCH DISCLAIMERS, EXCLUSIONS OR LIMITATIONS OF LIABILITY, THE PROVISIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT.

 

  1. Indemnification.

 

(a)  Indemnification by StreetShares. If a claim is made or an action brought by a third party asserting that StreetShares did not have the right to assign or sublicense the rights and/or licenses granted or sublicensed to Client in the Agreement, or that the Atlas Services, infringes any U.S. patent, copyright, trademark or other intellectual property rights (including trade secrets), StreetShares will defend Client against such claim and will pay resulting costs and damages finally awarded or agreed to in settlement, subject to the terms of this Section 11. StreetShares’ obligations under this Section are conditioned on Client’s agreement that if any of the Atlas Services, the Atlas Generated Materials, or the use or operation thereof, becomes, or in StreetShares’ opinion is likely to become, the subject of such a claim, StreetShares may at its expense, either procure the right for Client to continue using the Atlas Services, or, at its option, replace or modify the same so that it becomes non-infringing (provided such replacement or modification does not materially adversely affect Client’s intended use of the Atlas Services as contemplated hereunder). If neither of the foregoing alternatives is available to StreetShares on commercially reasonable terms, StreetShares may disable Client’s access to the Atlas Services and StreetShares will credit or refund (at Client’s option) to Client the price paid for such Atlas Services. Notwithstanding the foregoing, StreetShares will have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Atlas Services with products, services, information, materials, technologies, methods or processes not furnished by or reasonably contemplated by StreetShares; (2) modifications to the Atlas Services, which modifications are not made by StreetShares; (3) failure to use updates to the Atlas Services provided by StreetShares; or (4) use of Atlas Services except in accordance with the Documentation or  specifications (circumstances under the foregoing clauses (1), (2), (3) and (4), collectively, “Client’s Indemnity Responsibilities”). This subsection 11(a) sets forth Client’s sole and exclusive remedies, and StreetShares’ sole and exclusive liabilities, for any claims covered by this subsection.

 

(b) Indemnification by Client. Client will indemnify, hold harmless, and, at StreetShares’ option, defend StreetShares from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with (i) Client’s Indemnity Responsibilities; (ii) Client’s use of the StreetShares Data, the Client Data, the Business Customer Data, the Atlas Services, or the Atlas Generated Materials in breach of the Agreement; and (iii) Client’s communications or agreements with Business Customers.

 

(c) Indemnification Procedures. The party required to provide indemnification (the “Indemnitor”) and the party requesting indemnification (the “Indemnitee”) pursuant to subsection 11(a) or 11(b) above, will follow the following indemnification procedures: (i) Indemnitee agrees to give Indemnitor prompt notice of any written threat, warning, or notice of any claim for which Indemnitee intends to seek indemnification and copies of all papers served upon or received by it relating to the same, however, no delay on the part of Indemnitee in notifying Indemnitor will relieve Indemnitor from any obligations hereunder unless, and then solely to the extent that, Indemnitor is materially prejudiced thereby in the defense of settlement of the claim; (ii) Indemnitee agrees to provide reasonable assistance and information to Indemnitor (at Indemnitor’s expense) regarding the defense of any claim; (iii) Indemnitee will have the right to participate in, but not control, any litigation for which indemnification is sought with counsel of its own choosing, at its own expense; and (iv) Indemnitor will assume and have the right to conduct the defense of any claim and all negotiations for settlement or compromise, provided that Indemnitor will not have the right to: (a) execute any agreement, document or pleading that names an Indemnitee as a party; (b) make any admissions, concessions, or statements of wrongdoing regarding Indemnitee without Indemnitee’s prior written consent; (c) settle any claim in any way that assesses blame against Indemnitee or that provides a remedy other than the payment of money without Indemnitee’s prior written consent; or (d) settle any claim unless such settlement completely and forever releases Indemnitee with respect thereto or unless Indemnitee provides its prior written consent to such settlement.

 

  1. Audit.  Either party may, at its own expense, audit the records of the other party at such other party’s main offices, to the extent necessary to verify the other party’s compliance with the terms of the Agreement. Any such audit will be conducted during reasonable business hours and in such a manner as not to interfere with normal business activities, and on not less than thirty (30) days’ written notice to the party to be audited prior to commencement of the audit. In no event, will an audit be conducted more than once per every twelve (12) months, nor will any audit continue for longer than four (4) business days; provided, however, that the foregoing limitation will not apply to any audits required by Applicable Law or required to be conducted by the auditing party’s Regulatory Authority. StreetShares will reasonably cooperate with Client’s request for an audit under this Section, provided that Client agrees to pay or reimburse StreetShares for any costs incurred by StreetShares in connection with the audit, including technical support (provided by StreetShares or external resources), fees of external attorneys or advisors, or other out-of-pocket expenses incurred by StreetShares. Notwithstanding the foregoing or anything in the Agreement to the contrary, each party’s inspection and audit rights will specifically exclude the right to inspect, review, copy, or audit any information the disclosure of which is prohibited by privacy laws or other confidentiality obligations. If a third-party auditor is engaged, the auditing party will require such auditors to agree in writing to confidentiality provisions equivalent to those set forth in the Agreement.

 

  1. Term and Termination.

 

(a) Term. Unless earlier terminated in accordance with the Agreement, the term of the Agreement will commence on the day that an Order Form is executed by all parties and will continue until the expiration of the Access Term for all outstanding Order Forms. If an Access Term is not otherwise stated in an Order Form, it will be three (3) years from the date the Order Form is fully executed. Upon the expiration of an Access Term, such Access Term, the corresponding Order Form, and this Agreement will automatically renew for successive one (1) year terms at StreetShares’ then-current, standard subscription, usage, and other fee amounts for the Atlas Services, unless either party provides written notice of its desire not to renew at least thirty (30) days  prior to the expiration of the then-current term (the initial term, together with any renewal terms, collectively, the “Term”).

 

(b) Termination for Breach. Either party may terminate the Agreement upon written notice in the event that the other party materially breaches the Agreement, as follows (i) in the case of material breach resulting from non-payment of amounts due hereunder, if the breaching party has failed to pay such amounts within ten (10) days after receiving written notice thereof from the non-breaching party; or (ii) in the case of any other material breach, if the breaching party has failed to cure such material breach (or has failed to commence diligent efforts to cure such breach that are reasonably acceptable to the non-breaching party) within sixty (60) days after receiving written notice thereof from the non-breaching party.

 

(c) Termination Upon Bankruptcy, Insolvency, etc. Either party may, at its option, terminate the Agreement immediately upon written notice to the other party, in the event (i) that the other party becomes insolvent or unable to pay its debts when due; (ii) the other party files a petition in bankruptcy, reorganization or similar proceeding, or, if filed against it, such petition is not removed within ninety (90) days after such filing; (iii) the other party discontinues it business; or (iv) a receiver is appointed or there is an assignment for the benefit of such other party’s creditors.

 

(d) Termination for Convenience. StreetShares may terminate any Order Form or this Agreement for convenience upon sixty (60) days written notice to Client.

 

(e) Accrued Obligations. Termination of the Agreement will not release the parties from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission arising before termination, or from any obligation which is expressly stated in the Agreement to survive termination. Notwithstanding the foregoing, the party terminating the Agreement as permitted by any provision in this Section will incur no additional liability merely by virtue of such termination.

 

(f) Cumulative Remedies. Termination of the Agreement, regardless of cause or nature, will be without prejudice to any other rights or remedies of the parties and will be without liability for any loss or damage occasioned thereby.

 

(g) Effect of Termination. Upon any termination of the Agreement, Client will immediately discontinue all use of the Atlas Services and promptly pay all amounts due and remaining payable hereunder. Further, upon any termination of the Agreement, each party will (i) immediately discontinue all use of the other party’s Confidential Information; and (ii) upon the request of the other party, return or destroy all copies of such other party’s Confidential Information and Business Customer Data then in its possession. Notwithstanding the foregoing or anything herein to the contrary, each party may retain copies of the other party’s Confidential Information and Business Customer Data as necessary for the party’s legal, compliance, or archival purposes, provided that the party continues to treat such retained Confidential Information and Business Customer Data of the other party in accordance with the Agreement even after termination or expiration of the Agreement.

 

(h) Survival of Obligations. The provisions of Sections 1, 5, 6, 7, 8, 9, 10, 11, 13(e), 13(f), 13(g), 13(h) and 14, as well as a party’s obligations to pay any amounts due and outstanding under the Agreement, will survive termination or expiration of the Agreement.

 

  1. General Provisions.

 

(a) Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL BE CONSTRUED IN ACCORDANCE WITH, AND WILL BE GOVERNED BY, THE LAWS OF THE COMMONWEALTH OF VIRGINIA, WITHOUT GIVING EFFECT TO ITS RULES REGARDING CONFLICTS OF LAWS. CLIENT AGREES THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT WILL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN FAIRFAX COUNTY, VIRGINIA.

 

(b) Force Majeure. StreetShares will be excused from performance of its obligations under the Agreement if such a failure to perform results from compliance with any requirement of Applicable Law, acts of god, fire, pandemic, strike, embargo, terrorist attack, war, insurrection or riot or other causes beyond the reasonable control of StreetShares. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.

(c) Notices.

 

(i)  Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by the Agreement will give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of the Agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), or email.

 

(ii) Addresses. A party will address notices under the Agreement to a party at the following addresses: 

 

If to StreetShares:

 

StreetShares, Inc.

1900 Campus Commons Dr

Suite 200

Reston, VA 20191

Attention: StreetShares Legal

legal@streetshares.com

 

If to the Client: 

 

To the mail or email addresses provided on the Order Form.

 

(iii) Effectiveness. A notice is effective only if the party giving notice complies with subsections (i) and (ii) and if the recipient receives the notice.

 

(d)  Assignment. Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign the Agreement in its entirety (including all Order Forms), without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any permitted assignment pursuant to this Section will not relieve the assigning party from its obligations under this Agreement. Subject to the foregoing, the Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

 

(e) Independent Contractors. Client and StreetShares acknowledge and agree that the relationship arising from the Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the parties are acting as independent contractors in making and performing the Agreement.

 

(f)  Non-solicitation. Client acknowledges and agrees that the employees and consultants of StreetShares who perform and provide the Atlas Services or otherwise operate under the Agreement are valuable and indispensable assets of StreetShares. StreetShares acknowledges that Client’s employees who are involved in projects governed by the Agreement are valuable and indispensable assets of Client. Accordingly, Client and StreetShares agree that, for a period of one (1) year after the termination or expiration of the Agreement, neither party will offer employment or engagement (whether as an employee or independent contractor), directly or indirectly, to any employee or contractor of the other involved in the projects governed by the Agreement. Both parties further acknowledge that the damages to either party resulting from a breach of this provision are irreparable and immeasurable and that the only effective remedy for such a breach is injunctive relief. This clause does not apply where an employee or contractor of either party seeks employment with the other party in response to an advertisement placed into the public domain for that position unless the other party has solicited the application from that employee or contractor for that position.

 

(g) Amendment. No amendment to the Agreement will be valid unless such amendment is made in writing and is signed by the authorized representatives of the parties; provided, however, both parties agree to cooperate in good faith to amend or reform the Agreement should either party reasonably conclude that such amendment or reformation is required to comply with Applicable Law or regulation and that such amendment or reformation can be accomplished without defeating the essential purpose of the Agreement or relevant document.

 

(h) Waiver. No waiver under the Agreement will be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the party granting such waiver in any other respect or at any other time. Any delay or forbearance by either party in exercising any right under the Agreement will not be deemed a waiver of that right.

 

(i) Severability. If any provision of the Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in the Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of the Agreement invalid or unenforceable whatsoever.

 

(j) Dispute Resolution and Causes of Action. The parties will first attempt through earnest discussion to resolve their differences, including providing notice of the dispute, involving appropriate levels of management of both parties. No action arising from or related to the Agreement may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for  non-payment may be brought within two (2) years after the date such amount was due.

 

(k) Attorneys’ Fees.  In the event of any dispute or action to enforce this Agreement or on account of any breach or default under this Agreement, each party will bear its own attorneys’ fees and costs related thereto.

 

(l) No Third-Party Beneficiaries. The parties acknowledge that the covenants set forth in the Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of the Agreement.

 

(m) U.S. Government End-Users. Each of the components that constitute the Atlas Services is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Atlas Services with only those rights set forth herein.

 

(n) Headings. The headings in the Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of the Agreement.

 

(o) Entire Agreement. The Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.