1. DEFINITIONS “Documentation” means the documentation provided by or on behalf of Arkose Labs in connection with the Services. “End Users” means the individuals who use the Services on any of the Publisher Websites. “End User Information” means the information supplied by the End User when they use the Services on the Publisher Websites and may include, without limitation, geolocation, device or browser identifiers (e.g. cookies and IP addresses) and any other demographic information. End User Information may or may not include Personally Identifiable Information. “Feedback” means any and all suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Publisher or any third party relating to any Arkose Labs Technology. “Arkose Labs API” means the Arkose Labs application programming interface and any related scripts, widgets, embeddable snippets, and other tools provided in connection therewith. “Arkose Labs Data” means any information, materials or content provided or generated by or on behalf of Arkose Labs in the provision or operation of the Services including without limitation any data or content provided by Arkose Labs through or in connection with the Arkose Labs API. "Arkose Labs Technology” means the Services, including without limitation the Arkose Labs API, all Arkose Labs Data all Documentation, and all ideas, concepts, inventions, systems, platforms, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know-how, trade secrets and other technologies, implementations and information that are used by Arkose Labs in providing the Services and the Arkose Labs API. “Named Users” means any employee, officer, agent, contractor, or professional adviser of Publisher that is designated by Publisher as having the right to access Publisher’s Account (defined below) and to use the Services on behalf of Publisher. “Personally Identifiable Information” means information that can be used to identify, or may reasonably identify, a specific individual and includes, for the purposes of this Agreement, but is not limited to, such things as name, address, phone number, and email address. “Publisher Content” means all materials displayed or performed on or accessible through the Publisher Websites, including, but not limited to text, graphics, articles, photographs, images, illustrations, audio clips, video clips excluding any Arkose Labs Technology. “Publisher Data” means information will be provided by or on behalf of Publisher to or through the Services, or otherwise to Arkose Labs in connection with Publisher’s use of the Services. “Publisher Marks” means Publisher’s name, logo, trademarks and other identifiers. “Publisher Technology” means intellectual property rights of Publisher created independently of this Agreement. “Publisher Websites” are the websites or other online services (including any internet-enabled mobile applications) owned or operated by Publisher for which Publisher uses the Services pursuant to this Agreement. 2. SERVICES. 2.1 Order Forms. This Agreement will be implemented through one or more written orders that reference this Agreement and contain such information as generally illustrated and attached hereto (each, an “Order Form”). An Order Form will generally include an itemized list of the Services, as well as the Subscription Term for each of the Services. Any change to the terms of this Agreement within an Order Form will apply only to the Services described therein. 2.2 Arkose Labs Services. Subject to the terms and conditions of this Agreement, Arkose Labs will use commercially reasonable efforts to provide the Services described in an applicable Order Form pursuant to the service level and support description on the Service Level Agreements set forth at https://arkoselabs.com/legal/uptime-sla and https://arkoselabs.com/legal/attack-sla. As part of the registration process, Publisher will identify an administrative user name and password for Publisher’s Arkose Labs account (“Account”) as well as the public and private keys used to authenticate the Arkose Labs API. Publisher may request additional sub-accounts to be created for Named Users. Publisher may only use the Services in accordance with the quantities and limits set forth in this Agreement and the applicable Order Form; any excess usage shall be subject to Arkose Labs' then-current fees for the applicable services or portions thereof.. Arkose Labs may deliver the Services directly, or indirectly using contractors or other third party vendors or service providers (collectively, “Third Party Providers”). 2.3 Modifications. Arkose Labs reserves the right to modify the Services (in whole or in part) at any time, provided that Arkose Labs will not materially reduce the functionality of the Services without providing Publisher of at least thirty (30) days’ notice thereof (unless such modification is required for Arkose Labs to comply with applicable law, rule or regulation). 2.4 Limitations. Arkose Labs will not be responsible or liable for any failure in the Services resulting from or attributable to (a) usage in excess of the Services or limits for which Publisher has ordered pursuant to an applicable Order Form, (b) Publisher’s modification of Publisher’s systems in a manner that changes the integration of the Services, (c) Publisher’s products, services, negligence, acts or omissions, (d) scheduled maintenance, (e) Publisher Data, Publisher Websites or Publisher Content, (e) unauthorized access, breach of firewalls, or other hacking by third parties or (f) Publisher’s delay in or failure to provide Publisher Data or Publisher Technology required hereunder. 3. PUBLISHER DATA AND PUBLISHER TECHNOLOGY. 3.1 Publisher Data License. Publisher grants Arkose Labs a world-wide, non-exclusive, royalty-free, non-transferable (except in accordance with Section 14) license during the term of this Agreement to use, access, reproduce, copy and distribute Publisher Data in connection with the Services (e.g. to analyze and draw conclusions about the data and applicable services, and to produce reports to provide to Publisher related to the Services). Publisher represents and warrants that it owns all right, title and interest in and to the Publisher Data or otherwise has sufficient rights to the Publisher Data to permit its use as contemplated hereunder. Furthermore, Publisher grants Arkose Labs a non-exclusive, non-transferable, worldwide, royalty free license to use Publisher Technology to the extent necessary to provide the Service to Publisher and its End Users. 3.2 Publisher Websites. In order to receive the Services, Publisher must make the Publisher Websites available to receive and display the Services and to receive cookies from Arkose Labs and its Third Party Providers. Publisher grants Arkose Labs and such Third Party Providers the right during the Term (defined below) to place such cookies on the Publisher Websites and to access, index and cache requests made from the Publisher Websites to the Services, including by automated means in connection with Arkose Labs' provision of Services. On termination or expiration of this Agreement or the applicable Order Form, the right of access granted to Arkose Labs, in accordance with this Section 3.2 shall cease. 4. OTHER PUBLISHER OBLIGATIONS 4.1 Cooperation. Publisher will cooperate with Arkose Labs in connection with the performance of this Agreement by making available such personnel, information and materials as may be reasonably required and taking such other actions as Arkose Labs may reasonably request. Publisher will also cooperate with Arkose Labs in establishing a password or other procedures for verifying that only designated personnel of Publisher have access to any administrative functions of the Services and shall ensure that any Publisher identification details used to access the Account and the Services are kept secure and are not disclosed or transferred to any other person. Publisher will take reasonable steps to (a) ensure that Named Users are suitably trained on how to use the Services, (b) employ and implement the correct use and application of the Services in accordance with any manuals, Documentation or instructions supplied by Arkose Labs and (c) comply with any other reasonable directions of Arkose Labs in relation to the use of the Services. Publisher agrees to install, incorporate and maintain the technology and software codes provided by Arkose Labs, including any updates, fixes or patches provided by Arkose Labs from time to time, on the Publisher Websites as reasonably necessary for Arkose Labs to provide the Services. 4.2 End Users. Publisher represents and warrants that it shall comply with all applicable laws, rules and regulations, including without limitation all applicable privacy laws, in relation to any and all Personally Identifiable Information that it collects from its End Users or which it otherwise collects in connection with its use of the Services. Publisher shall be solely responsible for all notice and consents to End Users with respect to any cookies or tracking technology used in connection with the Services. Publisher acknowledges and agrees that as a result of Publisher and End Users accessing and using the Services, Arkose Labs will receive End User Information via the Services on the Publisher Website. Once the End User Information is received by Arkose Labs, it becomes Arkose Labs Data, which shall be owned by Arkose Labs and will not be returned to Publisher on termination or expiration of this Agreement. To the extent Personally Identifiable Information is included in such Arkose Labs Data, Arkose Labs will use and process such Personally Identifiable Information (in its personally identifiable form) solely to perform the Services for Publisher. Publisher is responsible for informing End Users that Arkose Labs and its Third Party Providers will receive the Personally Identifiable Information for use as contemplated hereunder. 4.3 Restrictions. Publisher shall not directly or indirectly (a) use any of Arkose Labs' Confidential Information (defined below) to create any service, software, documentation or data that is similar to or competes with any aspect of the Services, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or object code of the Services or any software, documentation or data related to the Services, or the underlying structure, ideas, algorithms or trade secrets therein (provided that reverse engineering is prohibited only to the extent such prohibition is not expressly prohibited by applicable statutory law), (c) use the Documentation for any reason other than in connection with the Services, (d) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party, (e) copy, modify, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction, (g) use the Services other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation law), (h) remove or modify any proprietary marking or restrictive legends placed on the Services or otherwise fail to attribute Arkose Labs as the operator and provider of the Services, including without limitation in any marketing or promotional materials or efforts, (i) introduce into the Services any software, virus, worm, “back door”, Trojan horse or similar harmful code, (j) merge or interface any third party software (including source code or open source software) with the Services, (k) communicate directly with any Third Party Provider regarding Publisher’s use of the Services, (l) proxy, modify, obscure, hire or circumvent the identity, location or other identifiable information about any End User, (m) initiate any communication of any kind that encourages, solicits, induces, diverts, entices, or otherwise diminishes Arkose Labs' business or relationship with any Third Party Provider or publisher or (o) permit any third party to engage in any of the foregoing proscribed acts. 4.4 Account Security. Publisher will be responsible for maintaining the security of Publisher’s Account and Account passwords (including but not limited to administrative and user passwords), and for all uses of Publisher Account with or without Publisher’s knowledge or consent, including the use of the Publisher’s Account by any Named Users, personnel or other third parties who have accessed Publisher’s Account. Publisher agrees to promptly notify Arkose Labs if any username or password needs to be changed or deactivated. Arkose Labs is not responsible and will not be liable for any losses, damages, liabilities or expenses caused by any unauthorized use of Publisher’s Account. 4.5 API Usage. It is Publisher’s responsibility to ensure it does not exceed its API rate usage. Publisher’s API rate usage is limited to 1,000 API requests per minute unless otherwise expressly agreed to by Arkose Labs in writing. Any use in excess of the API rate limit may be subject to Arkose Labs' then-current rates therefor. Exceeding the applicable API limit repeatedly may result in throttling or termination of the Agreement by Arkose Labs. 4.6 API Key Restrictions. Publisher will restrict usage of each API Key to one path, domain or sub-domain in the aggregate. If Publisher wishes to use the Services across more than one domain or sub-domain in the aggregate, Publisher is required to purchase further API Keys. 5. CONFIDENTIALITY 5.1 Confidentiality. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, (b) not to use such Confidential Information except as necessary to perform its obligations or exercise its rights hereunder and (c) not to divulge to any third person any such Confidential Information except to its employees, contractors and professional advisors (collectively, “Representatives”) who (i) need to know such information for the Disclosing Party to perform its obligations or exercise its rights hereunder and (ii) are informed of the confidential nature of the information and are bound by confidentiality obligations consistent with those contained herein. The Receiving Party shall be responsible for any breaches of confidentiality by its Representatives. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (1) is or becomes generally available to the public without fault of the Receiving Party or its Representatives, (2) was rightfully in its possession or known by it without restriction on disclosure prior to receipt from the Disclosing Party, (3) was rightfully disclosed to it without restriction on disclosure by a third party who does not have any confidentiality obligations or (4) was independently developed without use of or reference to any Confidential Information of the Disclosing Party. In any event, Arkose Labs may use any data and information it collects relating to the Services for development, diagnostic and corrective purposes related to the services. 5.2 Permitted Disclosures. If required by applicable law, rule or regulation, the Receiving Party may disclose Confidential Information of the Disclosing Party, but will give adequate prior notice of such disclosure to the Disclosing Party (to the extent legally permitted) and reasonably cooperate with the Disclosing Party to permit the Disclosing Party to intervene and to request protective orders or other confidential treatment therefor. Both parties will have the right to disclose a copy of this Agreement to its legal, profession and financial advisors and potential investors or acquirers, subject to confidentiality obligations consistent with those herein, in connection with a bona fide due diligence inquiry for a potential financing, acquisition or similar transaction. 6. PROPRIETARY RIGHTS. 6.1 Publisher. Except for the limited rights and licenses expressly granted to Arkose Labs hereunder, no other license is granted, no other use is permitted and Publisher (and its licensors, where applicable) will retain all intellectual property rights in and to the Publisher Data, Publisher Content and Publisher Websites. 6.2 Arkose Labs. Except for the limited rights and licenses expressly granted to Publisher hereunder, no other license is granted, no other use is permitted and Arkose Labs (and its licensors) shall retain all rights, title and interests (including all intellectual property and proprietary rights) in and to the Arkose Labs Technology. Publisher will not copy, distribute, reproduce or use any Arkose Labs Technology except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Publisher any rights of ownership in or related to any Arkose Labs Technology. Publisher agrees that Arkose Labs has no obligation to provide to Publisher any Arkose Labs Technology that is not specifically set forth on an applicable Order Form. Arkose Labs may, from time to time, provide Publisher with updates and improvements of the Services provided hereunder that Arkose Labs makes generally available to Arkose Labs' similar customers, in which case such updates and improvements shall also be referred to as the “Services”. 6.3 Reports. Subject to the terms and conditions of this Agreement, all Reports based specifically on Publisher Data shall be owned by Publisher, provided that Publisher shall only use such Reports for Publisher’s internal business use and shall not share any such Reports with any other party without Arkose Labs' prior written consent. Furthermore, to the extent the Reports contain any third party log data, subject to the terms and conditions of this Agreement, Arkose Labs hereby grants to Publisher a non-exclusive, worldwide, nontransferable, nonsublicensable license, during the term of this Agreement, to use the “Third Party Log” feature included in the Services to ingest and use such data for Publisher’s internal business purposes in understanding nature and frequency of attacks. Such third party log data shall be considered Arkose Labs Data as used herein. 6.4 Feedback. All Feedback shall be owned by Arkose Labs and Publisher hereby assigns all right, title and interest in and to such Feedback to Arkose Labs. 6.5 General Knowledge. Notwithstanding anything herein to the contrary, Publisher agrees that Arkose Labs may calculate aggregate statistics about the Publisher Data and use Publisher Data and information and materials derived therefrom, in connection with Arkose Labs' business and the operation, improvement and maintenance of the Services, including without limitation for sales, marketing, business development, product enhancement, and the provision of Services to Publisher, provided that Arkose Labs does not use such Publisher Data in any manner that discloses the identity of Publisher or its End Users. Furthermore, Publisher agrees that Arkose Labsis free to use (including for research purposes) and disclose aggregate measures of Arkose Labs Data, the Services, and all Arkose Labs Technology, and all usage and performance thereof, and to reuse all generalized knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to or acquired during provision of the Services under this Agreement (including without limitation, that which it could have acquired performing the same or similar services for another customer), provided that Arkose Labs may not use such data and information in a way that discloses the identity of Publisher or its End Users. 7. PAYMENT OF FEES 7.1 Fees. Publisher will pay Arkose Labs the Fees for the Services as set forth in the applicable Order Form, provided that Arkose Labs reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Subscription Term or then current renewal term, upon thirty (30) days prior notice to Publisher (which may be sent by email). 7.2 Payment Terms. Unless otherwise set forth in an applicable Order Form, (a) Publisher will pay all applicable Subscription Fees in advance, prior to the beginning of each Subscription Term and (b) Arkose Labs will bill all other Fees through an invoice, and full payment for invoices must be received by Arkose Labs thirty (30) days after the mailing date of the invoice. The Subscription Fees, Implementation Fees and all additional fees related to the Services shall be the “Fees”. In the event Publisher fails to pay any Fees when due, Arkose Labs may do one or more of the following: (i) after a four (4) business day grace period, charge interest on the amount owing at 2% above the then-current unsecured commercial lending rate of the Commonwealth Bank of Australia, calculated daily until the date payment is made; (ii) restrict or suspend the Services in accordance with Section 8.4 below or (iii) terminate this Agreement, in accordance with its terms. 7.3 Disputes. If Publisher believes that Arkose Labs has billed Publisher incorrectly, Publisher must contact Arkose Labs no later than sixty (60) days after the date on the first invoice in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Arkose Labs' Accounting department (accounting@arkoselabs.com). 7.4 No Refunds. Except as expressly set forth in Sections 8.2, 9.2 and 10.3, or a termination of this Agreement by Publisher for Arkose Labs' uncured material breach in accordance with Section 8.2 herein, there shall be no refunds of any Fees paid hereunder. 8. TERMINATION 8.1 Term. Subject to earlier termination as provided below, this Agreement shall commence on the Start Date of the first Order Form issued hereunder and shall continue in effect until terminated in accordance with this Agreement (the “Term”). 8.2 Termination. Either party may terminate this Agreement (a) upon written notice to the other party if there are no more outstanding Order Forms, (b) upon thirty (30) days’ notice (or ten (10) days in the case of nonpayment), if the other party breaches any of the terms or conditions of this Agreement or (c) immediately upon written notice upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, the other party's making an assignment for the benefit of creditors, or the other party's dissolution or ceasing to do business. Arkose Labs may also terminate this Agreement immediately upon notice to Publisher if Arkose Labs reasonably believes doing so is necessary to comply with its legal obligations or otherwise protect Arkose Labs' customers, users, partners or business. Upon such termination, unless due to Publisher’s material breach of this Agreement, Arkose Labs shall provide Publisher with a pro-rated refund of Fees for Services not yet provided by the termination effective date. 8.3 Effect of Termination. Publisher will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination or expiration of this Agreement, (a) all Publisher’s Rights to use the services shall immediately terminate. (b) Arkose Labs may, but is not obligated to, delete archived data and (c) each party will return to the other party, or if return is impracticable destroy, the other party’s Confidential Information, and copies thereof, in the receiving party’s possession or control. All sections of this Agreement which by their nature should survive termination or expiration will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. 8.4 Suspension. Arkose Labs may temporarily suspend (in part or in whole) the provision of the Services to Publisher if (a) Arkose Labs is required by applicable law, rule or regulation to do so, (b) Publisher has failed to pay any Fees when due as set forth in Section 7.2, (c) a force majeure or other event outside of Arkose Labs' reasonable control occurs which affects or may affect Arkose Labs' ability to provide the Services or (d) Publisher is in material breach of the Agreement. 9. WARRANTY AND DISCLAIMER 9.1 General. Each party represents and warrants that (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized, (b) it has full power and authority to enter into this Agreement and to perform its obligations hereunder, (c) this Agreement is legally binding upon it and enforceable in accordance with its terms and (d) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound. 9.2 Arkose Labs. Arkose Labswarrants to Publisher that the Services will be provided in a professional and workmanlike manner and in material conformance with the applicable Documentation. Arkose Labs' sole obligation and Publisher’s exclusive remedy in respect of any breach of this warranty is to, at Arkose Labs' discretion, replace or repair the nonconforming portion of the Service to bring it into conformance, or, if in Arkose Labs' sole discretion it determines that repair or replacement is impracticable, terminate this Agreement or the applicable Order Form, and provide Publisher with a pro-rated refund of any fees prepaid for use of the Services not completed by the termination effective date. 9.3 Publisher. Publisher represents and warrants that (a) it is the owner of each Publisher Website (or is legally authorized to act on behalf of the owner of each Publisher Website for the purposes of this Agreement) and that is has all rights necessary to grant the rights set forth in this Agreement, including without limitation to place the Services on each Publisher Website and to permit Arkose Labs and its Third Party Providers to collect and use End User Information, (b) it will comply with all applicable laws, rules and regulations, including without limitation by ensuring that any Personally Identifiable Information collected via the Services or otherwise provided to Arkose Labs hereunder is collected lawfully, (c) it is the owner of, or otherwise has sufficient rights to, the Publisher Content on each Publisher Website and (d) the Publisher Websites, Publisher Data, Publisher Content and its use of the Services do not violate the privacy rights, publicity rights, copyright rights, contract rights, intellectual property rights, or any other rights of any person. 9.4 DISCLAIMERS. THE SERVICES AND ALL ARKOSE LABS TECHNOLOGY ARE PROVIDED “AS IS”. ARKOSE LABS DOES NOT WARRANT THAT THE SERVICES OR ARKOSE LABS TECHNOLOGY WILL MEET PUBLISHER'S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY LAW, ARKOSE LABS HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES OR THE ARKOSE LABS TECHNOLOGY INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. 10. INDEMNIFICATION 10.1 Arkose Labs. Subject to Section 10.5, Arkose Labs shall indemnify, defend and hold Publisher and its officers, directors, employees and agents harmless from all third damages, losses, liabilities or expenses (including without limitation reasonable attorneys’ fees) arising from a third party claim that the Services infringe any United States intellectual property right. 10.2 Publisher. Subject to Section 10.5, Publisher shall indemnify, defend, and hold Arkose Labs and its officers, directors, employees and agents harmless from any third party damages, losses, liabilities or expenses (including without limitation reasonable attorneys’ fees) arising from (a) a third party claim arising from the gross negligence or willful misconduct of the Publisher or anyone who accesses the Publisher’s Account on behalf of the Publisher, (b) the Publisher Data, Publisher Content or Publisher Website, or (c) any breach of its representation, warranties or obligations set forth herein. 10.3 Infringement. If the Services or any Arkose Labs Technology becomes or, in Arkose Labs' opinion, is likely to become, the subject of any infringement claim or injunction preventing its use as contemplated herein, Arkose Labs may, at its option (a) obtain for Publisher the right to continue using the Services or (b) replace or modify the infringing portions of the Service so that it becomes non-infringing without substantially compromising its principal functions. If (a) and (b) are not reasonably available to Arkose Labs, then it may (c) terminate this Agreement upon written notice to Publisher and refund to Publisher any Fees for the Services that were prepaid for the then current term, pro-rated for the remainder thereof. 10.4 Exclusions. Arkose Labs shall have no liability or obligation hereunder with respect to any claim based upon (a) Publisher Content, Publisher Data or Publisher Websites, (b) use of the Services in an application or environment, or with products, processes or materials, for which it they were not designed or contemplated, (c) modifications, alterations, combinations or enhancements not created by or for Arkose Labs (d) any portion of the Services that implements Publisher's requirements, (e) Publisher's continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement, (f) use of the Services not strictly in accordance with this Agreement or (g) any intellectual property right in which Publisher or any of its affiliates has an interest. 10.5 Procedure. Any claim for indemnification hereunder requires that (a) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith (provided that a failure or delay in providing such notice shall not relieve the indemnifying party of its obligations hereunder except to the extent it is materially prejudiced thereby), and (b) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party without the indemnified party's written consent (such consent not to be unreasonably delayed, conditioned or withheld). 10.6 Entire Liability. This Section 10 states the entire liability of Arkose Labs, and Publisher's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Services, any part thereof or its use or operation. 11. PUBLICITY 11.1 Publisher agrees that we may make reference to Publisher in marketing and public relations materials, including a press release announcing Publisher as a customer. Publisher hereby grants us a perpetual, nonexclusive, worldwide license to use and display Publisher's trademarks, trade names and logos in connection with the foregoing. This clause 11.1 will survive the termination or expiry of this Agreement. 12. LIMITATION OF LIABILITY IN NO EVENT WILL ARKOSE LABS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF ARKOSE LABS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF ARKOSE LABS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO ARKOSE LABS HEREUNDER IN THE TWELVE (12) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 13. U.S. GOVERNMENT MATTERS The Services are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Publisher will not import, export, re-export, transfer or otherwise use the Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (a) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (b) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (c) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Services, Publisher represents and warrants that Publisher is not located in any such country or on any such list. Publisher will not engage in activity that would cause Arkose Labs to be violation of these laws and regulations, and will indemnify Arkose Labs for any fines, penalties or other liabilities incurred by Arkose Labs for Publisher’s failure to comply with this provision. 14. MISCELLANEOUS If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Publisher except with Arkose Labs' prior written consent. Arkose Labs may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Publisher does not have any authority of any kind to bind Arkose Labs in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Exclusive jurisdiction and venue for any action arising under this Agreement shall be in the federal and state courts located in San Francisco, and both parties hereby consent to such jurisdiction and venue for this purpose.