LAST UPDATED: 02 December 2025
THIS MASTER SERVICES AGREEMENT GOVERNS CUSTOMER'S ACQUISITION AND USE OF MERITPAY AI SERVICES.
CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF MERITPAY AI SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. MeritPay Al's direct competitors are prohibited from accessing the Services, except with MeritPay Al's prior written consent. This Agreement is effective between Customer and MeritPay Al as of the date of Customer's accepting this Agreement.
1. DEFINITIONS
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this Master Services Agreement.
"Content" means information obtained by MeritPay AI from publicly available sources or its third-party content providers and made available to Customer through the Services or pursuant to an Order Form, as more fully described in the Documentation.
"Customer" means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Order Forms.
"Customer Data" means electronic data and information submitted by or for Customer to the Services, excluding Content.
"Documentation" means the applicable Service's documentation, usage guides and policies, as updated from time to time, accessible via insert URL for website or login to the applicable Service.
"Free Services" means Services that MeritPay Al makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
"Malicious Code" means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Order Form" means an ordering document, statement of work or online order specifying the Services to be provided hereunder that is entered into between Customer and MeritPay Al or any of their Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Purchased Services" means Services that Customer or Customer's Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
"Services" means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by MeritPay AI, including associated MeritPay Al offline or mobile components, as described in the Documentation. "Services" exclude Content.
"MeritPay AI" means MeritPay AI Inc.
"User" means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by MeritPay AI without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, MeritPay AI at Customer's request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
2. MERITPAY AI RESPONSIBILITIES
2.1 Provision of Purchased Services
MeritPay Al will (a) make the Purchased Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable MeritPay AI standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which MeritPay AI shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond MeritPay Al's reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving MeritPay AI employees), Internet service provider failure or delay, or denial of service attack, and (d) provide the Purchased Services in accordance with laws and government regulations applicable to MeritPay Al's provision of its Services to its customers generally (i.e., without regard for Customer's particular use of the Services), and subject to Customer's and Users' use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.
2.2 Protection of Customer Data
MeritPay Al will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). After the effective date of termination or expiration of this Agreement, MeritPay Al will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
2.3 MeritPay Al Personnel
MeritPay AI will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with MeritPay Al's obligations under this Agreement, except as otherwise specified in this Agreement.
3. USE OF SERVICES AND CONTENT
3.1 Subscriptions
Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by MeritPay Al regarding future functionality or features.
3.2 Usage Limits
Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a contractual usage limit, MeritPay AI may work with Customer to seek to reduce Customer's usage so that it conforms to that limit. If, notwithstanding MeritPay Al's efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon MeritPay Al's request, and/or pay any invoice for excess usage in accordance with the "Invoicing and Payment" section below.
3.3 Customer Responsibilities
Customer will (a) be responsible for Users' compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer's use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify MeritPay Al promptly of any such unauthorized access or use, and (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations. Any use of the Services in breach of the foregoing by Customer or Users that in MeritPay Al's judgment threatens the security, integrity or availability of MeritPay Al's services, may result in MeritPay Al's immediate suspension of the Services, however MeritPay Al will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.4 Usage Restrictions
Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of MeritPay Al intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.
3.5 Removal of Content
If Customer receives notice, including from MeritPay AI, that Content may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, or third-party rights, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with the above, or if in MeritPay Al's judgment continued violation is likely to reoccur, MeritPay AI may disable the applicable Content and/or Service. If requested by MeritPay AI, Customer shall confirm deletion and discontinuance of use of such Content in writing and MeritPay AI shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if MeritPay Al is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, MeritPay Al may discontinue Customer's access to Content through the Services.
4. DATA PRIVACY
4.1 Customer Data Shall not Include Personal Information
Customer Data shall not include any personally identifiable information without MeritPay Al's prior written consent. If MeritPay AI discovers and personally identifiable information included in Customer Data it may without prior notice to Customer destroy such personally identifiable information without saving any archival copies. Customer acknowledges that the Services are not designed for use with personally identifiable information or other sensitive data. This Section shall not apply to incidental personal information provided by Customer to MeritPay AI for the purpose of providing contact or billing information. Customer agrees to MeritPay Al's use and disclosure of such personal information in accordance with this Agreement, Order Forms and Documentation.
5. FEES AND PAYMENT
5.1 Fees
Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
5.2 Invoicing and Payment
Customer will provide MeritPay Al with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to MeritPay AI. If Customer provides credit card information to MeritPay AI, Customer authorizes MeritPay Al to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the "Term of Purchased Subscriptions" section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, MeritPay AI will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to MeritPay AI and notifying MeritPay AI of any changes to such information.
5.3 Overdue Charges
If any invoiced amount is not received by MeritPay AI by the due date, then without limiting MeritPay Al's rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) MeritPay AI may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the "Invoicing and Payment" section above.
5.4 Suspension of Service and Acceleration
If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized MeritPay AI to charge to Customer's credit card), MeritPay Al may, without limiting its other rights and remedies, accelerate Customer's unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, MeritPay AI will give Customer at least 10 days' prior notice that its account is overdue, in accordance with the "Manner of Giving Notice" section below for billing notices, before suspending services to Customer.
5.5 Payment Disputes
MeritPay Al will not exercise its rights under the "Overdue Charges" or "Suspension of Service and Acceleration" section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
5.6 Taxes
MeritPay Al's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder. If MeritPay Al has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, MeritPay Al will invoice Customer and Customer will pay that amount unless Customer provides MeritPay Al with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, MeritPay AI is solely responsible for taxes assessable against it based on its income, property and employees.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights
Subject to the limited rights expressly granted hereunder, MeritPay Al, its Affiliates, its licensors and Content providers reserve all of their right, title and interest in and to the Services and Content, including all software, systems and other technology used by MeritPay Al to deliver the Services (the "MeritPay AI Technology"), including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein. For clarity, the MeritPay AI Technology includes all updates, upgrades, modifications or customizations thereto provided by MeritPay AI in the performance of the Services.
6.2 Access to and Use of Content
Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
6.3 License by Customer to MeritPay AI
Customer grants MeritPay AI, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display Customer Data, as appropriate for MeritPay AI to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, MeritPay AI acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.
6.4 License by Customer to Use Feedback
Customer grants to MeritPay AI and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of MeritPay Al's or its Affiliates' services.
7. CONFIDENTIALITY
7.1 Definition of Confidential Information
"Confidential Information" means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of MeritPay Al includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this "Confidentiality" section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional MeritPay AI services.
7.2 Protection of Confidential Information
As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party's prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate's, legal counsel's or accountant's compliance with this "Confidentiality" section. Notwithstanding the foregoing, MeritPay Al may disclose the terms of this Agreement and any applicable Order Form to a contractor to the extent necessary to perform MeritPay Al's obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 Representations
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 MeritPay AI Warranties
MeritPay AI warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) MeritPay AI will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) MeritPay Al will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer's exclusive remedies are those described in the "Termination" and "Refund or Payment upon Termination" sections below.
8.3 Disclaimers
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF ACCURACY, TIMELINESS, ADEQUACY, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, SERVICES AND CONTENT ARE PROVIDED "AS IS" AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
IN PARTICULAR, (I) THE SERVICES PROVIDE ONLY EXECUTIVE COMPENSATION DATA AND OTHER RELATED INFORMATION, AND DO NOT CONSTITUTE LEGAL, ACCOUNTING OR OTHER ADVICE; (II) CUSTOMER SHOULD USE ITS OWN JUDGMENT IN ANALYZING AND USING THE DATA AND ANY RECOMMENDATIONS PROVIDED BY THE SERVICES; (III) MERITPAY AI IS NOT A FIDUCIARY OF THE CUSTOMER IN RELATION TO THE CUSTOMER'S USE OF THE SERVICES, (IV) AI OUTPUTS ARE PROBABILISTIC, MAY NOT BE COMPLETE OR CURRENT, AND ARE PROVIDED FOR INFORMATIONAL BENCHMARKING PURPOSES ONLY, AND (V) MERITPAY AI MAKES NO WARRANTY THAT AI-GENERATED INSIGHTS REFLECT MARKET REALITY OR ARE SUITABLE FOR ANY SPECIFIC DECISION.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by MeritPay AI
MeritPay AI will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party's intellectual property rights (a "Claim Against Customer"), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by MeritPay Al in writing of, a Claim Against Customer, provided Customer (a) promptly gives MeritPay AI written notice of the Claim Against Customer, (b) gives MeritPay Al sole control of the defense and settlement of the Claim Against Customer (except that MeritPay AI may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives MeritPay Al all reasonable assistance, at MeritPay Al's expense. If MeritPay AI receives information about an infringement or misappropriation claim related to a Service, MeritPay Al may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching MeritPay Al's warranties under "MeritPay AI Warranties" above, (ii) obtain a license for Customer's continued use of that Service in accordance with this Agreement, or (iii) terminate Customer's subscriptions for that Service upon 30 days' written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by MeritPay AI, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (IV) a Claim against Customer arises from Content or Customer's breach of this Agreement, the Documentation or applicable Order Forms.
9.2 Indemnification by Customer
Customer will defend MeritPay AI and its Affiliates against any claim, demand, suit or proceeding made or brought against MeritPay Al by a third party arising from (i) Customer's use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, or (ii) any Customer Data or Customer's use of Customer Data with the Services, (each a "Claim Against MeritPay AI"), and will indemnify MeritPay Al from any damages, attorney fees and costs finally awarded against MeritPay AI as a result of, or for any amounts paid by MeritPay AI under a settlement approved by Customer in writing of, a Claim Against MeritPay AI, provided MeritPay AI (A) promptly gives Customer written notice of the Claim Against MeritPay AI, (B) gives Customer sole control of the defense and settlement of the Claim Against MeritPay AI (except that Customer may not settle any Claim Against MeritPay Al unless it unconditionally releases MeritPay AI of all liability), and (C) gives Customer all reasonable assistance, at Customer's expense. The above defense and indemnification obligations do not apply if a Claim Against MeritPay Al arises from MeritPay Al's breach of this Agreement, the Documentation or applicable Order Forms.
9.3 Exclusive Remedy
This "Mutual Indemnification" section states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any third-party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE MONTH PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES' PAYMENT OBLIGATIONS UNDER THE "FEES AND PAYMENT" SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE, OR IN THE EVENT OF FUNDAMENTAL BREACH. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term of Agreement
This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.
11.2 Term of Purchased Subscriptions
The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at MeritPay Al's applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term's per-unit pricing.
11.3 Termination
A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
11.4 Refund or Payment upon Termination
If this Agreement is terminated by Customer in accordance with the "Termination" section above, MeritPay AI will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by MeritPay AI in accordance with the "Termination" section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to MeritPay Al for the period prior to the effective date of termination.
11.5 Surviving Provisions
The sections titled "Fees and Payment, " "Proprietary Rights and Licenses, " "Confidentiality, " "Disclaimers, " "Mutual Indemnification, " "Limitation of Liability, " "Refund or Payment upon Termination, " "Removal of Content, " "Surviving Provisions" and "General Provisions" will survive any termination or expiration of this Agreement, and the section titled "Protection of Customer Data" will survive any termination or expiration of this Agreement for so long as MeritPay AI retains possession of Customer Data.
12. GENERAL PROVISIONS
12.1 Entire Agreement and Order of Precedence
This Agreement is the entire agreement between MeritPay AI and Customer regarding Customer's use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.2 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.3 Third-Party Beneficiaries
There are no third-party beneficiaries under this Agreement.
12.4 Waiver
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
12.5 Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
12.6 Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. This Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7 Governing Law and Venue
This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the Province of Ontario. The parties hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Courts of the Province of Ontario, in the city of Toronto (the “Ontario Court”), and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Ontario Court for purposes of any action or proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the Ontario Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Ontario Court has been brought in an improper or inconvenient forum.
12.8 Manner of Giving Notice
Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing to the addresses set out in the applicable Order Form (or in the case of notice by email, to the email addresses they customarily use in their communications) and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer.
12.9 Amendment
This Agreement may only be amended upon the prior written agreement of both parties.