END USER TERMS AND CONDITIONS THESE END USER TERMS AND CONDITIONS (this "Agreement") is entered into by and between The Faction Group LLC d/b/a Faction, a Colorado limited liability company, with offices located at 1660 Lincoln Street, Suite 1600, Denver, CO 80264 ("Faction") and the Customer, where “Customer” is defined as the end-user, whether an individual person or a corporate entity, who has purchased the Services; whether directly from Faction or from a reseller, agent, distributor or another intermediary. Faction and Customer are sometimes referred to individually as a “party” and collectively as the “parties”. This Agreement is effective as of the earlier of (a) the date accepted or agreed to online by the Customer or (b) the date on which Faction notifies Customer that the Services are available for commercial use (the “Effective Date”). 1. DESCRIPTION OF THE SERVICES Faction is a provider of cloud data, computing and network infrastructure as a service offerings (collectively, the “Services”) where Faction owns the IT service(s) infrastructure and makes the Services available either directly to end-user customers or through an Approved Entity. An “Approved Entity” is a reseller, distributor, or any other entity which has been approved by Faction to sell or distribute Faction Services to Customer. This Agreement will apply to all Subscriptions to Faction Services, where “Subscription” means an agreement (whether directly or through any Approved Entity) with Faction to use one or more Faction Services. Each Subscription will set forth a specified length of time during which Faction will provide the Services (the “Subscription Term”). Any new or additional Subscriptions agreed upon in writing by the applicable parties, will be subject to the terms and conditions of this Agreement. This Agreement contains the terms and conditions that govern the Services and Customer’s access and use of the Services. Capitalized terms and phrases used in this Agreement will have the meanings set forth in the context in which they are used as applicable. 2. ADDITIONAL AGREEMENTS. The following agreements are incorporated in full as part of this Agreement: Acceptable Use Policy (“AUP”) https://info.factioninc.com/hubfs/Faction%20AUP.pdf Faction Support & Service Level Agreement (“SLA”) https://info.factioninc.com/hubfs/Faction%20SLA.pdf Faction’s Data Processing Addendum (”DPA”) (to be provided) 3. SERVICES/RIGHTS GRANTED 3.1 Right to Use the Services. Faction will provide the Services in accordance with the terms of this Agreement. For the duration of each Subscription Term, Customer will have the non-exclusive, non-assignable, worldwide, limited right to use the Services in connection with its internal business operations subject to the terms of this Agreement. Faction will use its sole discretion to determine the manner or method for completing and providing the Services. 3.2 No Software Delivery Obligation. Unless specifically set forth in a Subscription, Faction has no software delivery obligation and will not ship copies of any of the software programs used to provide the Services to Customer as part of the Services. Upon the termination or expiration of a Subscription, Customer’s right to access or use the software programs and the Services will terminate. 3.3 Service Level. Faction will make the Services available in accordance with the Faction Support and Service Level Agreement. https://info.factioninc.com/hubfs/Faction%20SLA.pdf 3.4 Professional and Managed Services. If Customer elects to engage Faction to provide Professional or Managed Services, the scope of the Professional or Managed Services and any deliverables will be described in a separate written agreement. 3.5 Location of Services. Faction may change the location from which the Services are provided to any Faction facility in the same geographical region as the original facility upon ninety (90) days prior written notice to Customer, provided such relocation does not have a material adverse impact on Faction’s Services. The reference to “the same geographical region” mean in the same State if in the U.S. and in the same country for anywhere outside of the U.S., and where the location is typically within 100 miles or less of the original facility. 3.6 Acceptance. “Acceptance” happens upon the first to occur of the following: (a) the date Customer notifies Faction in writing that the Services ordered in the Subscription meets the agreed upon specifications; (b) the date the ordered Services are first used in commercial production; or (c) seven (7) days after Faction notifies Customer that the ordered Services are available for use, provided Customer has not notified Faction in writing that there is a material deficiency in the Services. To the extent payment obligations have not previously been incurred, all such obligations will be triggered upon Acceptance. 4. INTELLECTUAL PROPERTY/LICENSE TO FACTION IP 4.1 Faction Ownership. Faction owns or has licenses or right, title or interest and all other proprietary or intellectual property rights (“Intellectual Property Rights”) in and to all patents, copyrights, trade secrets for the processes, software, utilities, and methods of operation that Faction will use to perform Faction’s Services under this Agreement, including but not limited to, know-how, templates, project tools, and all licensed software (collectively, “Faction IP”). Faction IP does not include Customer Data. Faction or its licensors reserve all Intellectual Property Rights in the Faction IP. Faction grants Customer a limited license to use the Faction IP for the Subscription Term. Customer represents and warrants that it will not modify, disassemble, decompile, or reverse engineer any software in the Services or Faction IP in any manner whatsoever. Further, Customer will not otherwise use the Faction IP except as expressly permitted pursuant to this Agreement. 4.2 Customer Ownership. Customer retains all ownership and Intellectual Property Rights in and to its confidential information and to any and all data and information (such as electronic files, materials, data, text, audio, video, images, etc.) uploaded, transmitted, stored, retrieved, processed, submitted, or otherwise made available by Customer in connection with the Services (“Customer Data”). Faction may compile non-identifying, aggregate, statistical information related to the performance of the Services, and may make such information publicly available, provided that such information is anonymized or does not contain any personally identifiable or Customer-specific information. 5. LIMITED WARRANTY AND DISCLAIMERS/SUSPENSION OF SERVICES 5.1 Services Warranty. Subject to the limitations described below, Faction warrants that the Services will perform in all material respects in accordance with the Faction Services Guide. 5.2 Disclaimer of Warranties. Faction does not guarantee that the Services will be performed error-free or uninterrupted or that Faction will correct all errors. Customer acknowledges that Faction does not control the transfer of data over communications facilities, including the Internet, and that the Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. Faction is not responsible for any delays, delivery failures or other damage resulting from such problems. Except as specifically provided in this Agreement and to the extent not prohibited by law, Faction disclaims all warranties, including but not limited to the warranties of merchantability, fitness for any particular purpose, and non-infringement. 5.3 Suspension of Services. Faction may suspend Services if: (i) the Services are being used in violation of this Agreement, including the AUP; (ii) Customer fails to cooperate with any investigation of a suspected violation of this Agreement, including the AUP; (iii) the Services have been accessed or manipulated by a third party without Faction’s consent; (iv) Faction does not receive payments owed; or (v) required by law. In addition, if a network or part of a network utilized by Customer undergoes a denial-of-service attack which causes an impact to Faction network services, Faction may, at its sole discretion, utilize scrubbing services to remove denial of service traffic, or temporarily suspend or route advertisement of customer networks during the attack. Faction will use commercially reasonable efforts to provide advance notice of a suspension of Services and opportunity to cure, unless suspension is necessary to protect Services or Customer or other customers from imminent and significant operational or security risk. 5.4 Access to Customer Data. Unless required by law, Customer acknowledges and understands that, it will not have access to any Customer Data during a suspension of the Services. Unless specifically purchased by or assigned to Faction in a Subscription, Customer is responsible for maintaining current and reliable backups of its Customer Data and Faction has no obligation to help recover such Customer Data. 6. INDEMNIFICATION 6.1 Faction’s Obligations. Subject to the limits of liability contained in this Agreement, Faction will indemnify, defend, and hold harmless Customer, and its officers, directors, and employees from and against any losses, claims, penalties, fines, awards, costs, judgments, damages, liabilities, or expenses, including reasonable attorneys’ fees, or the like (“Losses”) incurred by Customer and arising out of or relating to or based upon: a. any claim for bodily injury or death of any individual, or the loss, damage, or destruction of any real or tangible personal property, resulting from willful misconduct, gross negligence, or fraudulent acts or omissions by Faction; or b. any Infringement Claim by a third-party related to the Services or any deliverables provided by Faction. “Infringement Claim” is defined as a claim or action alleging infringement of (i) any patent issued as of the Effective Date of this Agreement, or (ii) any trademark, copyright, or trade secret. Faction will have no indemnity obligation to Customer if an Infringement Claim results from (i) a correction, alteration, or modification of the Services not provided, or approved in writing, by Faction, or (ii) the combination or use of the Services with other services or anything which was not provided, or approved in writing, by Faction. 6.2 Customer’s Obligations. Subject to the limits of liability contained in this Agreement, Customer will indemnify, defend, and hold harmless Faction, its officers, directors, and employees from and against any Losses incurred by Faction and arising out of or relating to or based upon: a. Customer’s use of the Services in violation of any applicable law; or b. any claim for bodily injury or death of any individual, or the loss, damage, or destruction of any real or tangible personal property, resulting from willful misconduct, gross negligence, or fraudulent acts or omissions by Customer; or c. any Infringement Claim, or any other sort of action or cause of action, asserted by a third party relating to any Customer Data. Customer will have no indemnity obligation to Faction if an Infringement Claim or other action results from changes or alterations to the Customer Data or materials which were done by Faction without approval in writing from Customer. 6.3 Procedure. Upon receiving notice of any claim for indemnification set forth in this Section 6, the party entitled to indemnification (the “Indemnified Party”) will promptly notify the other party (the “Indemnifying Party”). The Indemnifying Party, at its sole expense, will assume control of the defense of any such claim; however, the Indemnified Party may, at is sole cost and expense, participate in the defense. The Indemnifying Party will not settle any claim without the Indemnified Party’s prior written consent, where such consent will not be unreasonably withheld, conditioned, or delayed. 6.4 Option. In addition to the foregoing indemnification obligations, if all or any part of a Service or any deliverables is subject to an Infringement Claim, Faction may, at its sole discretion and expense: (a) procure for Customer the right to continue using the Services; or (b) modify or replace the allegedly infringing aspect of the Services, and make them non-infringing, provided, however, that such modification or replacement will not degrade the operation or performance of the Services. If neither of the remedies in this Section 6.4(a) or (b) is commercially reasonable, Faction may terminate any applicable Subscription or this Agreement and Faction will refund Customer any fees pre-paid to Faction for Services not yet provided, unless such fees are refunded by an Approved Entity. For clarity, if the amount of fees pre-paid by Customer to an Approved Entity is greater than the amount received by Faction, Faction will only refund the amount of pre-paid fees that Faction received for the Subscription. 7. CONFIDENTIALITY While performing under this Agreement, each party may disclose to the other confidential information. Each party agrees to maintain the confidential information in confidence in accordance with the terms and conditions of a separately negotiated and executed mutual non-disclosure agreement (“MNDA”) entered between the parties. If the MNDA has a term that expires prior to the expiration of this Agreement, the parties agree to extend the term of the MNDA for the Term of this Agreement. In the event the parties have not negotiated and executed a separate MNDA, the parties agree as follows: During the Term of this Agreement, one Party ("Receiving Party") may have access to confidential information of the other Party ("Disclosing Party"). Confidential Information means all proprietary information disclosed by one Party to the other Party, whether before or after the Effective Date, that the Receiving Party should reasonably understand to be confidential. Information that is developed by one Party on its own, without the use of or reference to the other Party's Confidential Information or that becomes available to one Party other than through violation of this Agreement or applicable law, shall not be deemed Confidential Information of the other Party. The Receiving Party agrees: (a) not to disclose the Disclosing Party's Confidential Information to any third parties other than to its directors, officers, employees, advisors or consultants (collectively, the "Representatives") on a strict "need to know" basis only and provided that such Representatives are bound by written agreements to comply with the confidentiality obligations as protective as those contained herein; (b) not to use or reproduce any of the Disclosing Party's Confidential Information for any purposes except to carry out its rights and responsibilities under this Agreement; (c) to keep the disclosing Party's Confidential Information confidential using at least the same degree of care it uses to protect its own Confidential Information, which shall in any event not be less than a reasonable degree of care. If Receiving Party is required by legal process or any applicable law, rule or regulation, to disclose any of Disclosing Party's Confidential Information, then prior to such disclosure, Receiving Party will give prompt written notice, if legally permitted, to Disclosing Party so that it may seek a protective order or other appropriate relief, at Disclosing Party’s cost. The obligations of each Receiving Party under this Agreement will survive until such time as all Confidential Information of the other Party becomes publicly known and generally made available through no action or inaction of the Receiving Party. 8. TERM/TERMINATION 8.1 Term of Agreement. The term of this Agreement will begin on the Effective Date or upon Acceptance, whichever is earliest, and the Agreement will remain in full force and effect for the last to expire (or terminate) of Customer’s Subscription Terms. This Agreement may be terminated by the parties by mutual written agreement or by a party for cause, as described in Section 8.3, in which case all Subscriptions will also be terminated (unless otherwise agreed by the non-breaching party). 8.2 Subscription Terms. Unless an earlier date is agreed upon in writing by the relevant parties, each Subscription Term will commence upon Acceptance. The Subscription Term will remain in effect until the earlier to occur of the following, and in which case Faction will terminate all Services related to the Subscription being provided to Customer: ● termination of a Subscription(s) by either party for cause as described in Section 8.3 below; ● termination of such Subscription upon mutual written agreement of the parties; or ● expiration of a Subscription Term(s) without renewal (including auto-renewals that are not renewed). 8.3 Termination for Cause. A party may terminate a Subscription and/or this Agreement for cause: a. upon receipt of written notice (specifying the default or breach) from the non-defaulting party when the other party is in default or breach of a material obligation of a Subscription or this Agreement. If such default or breach can be and is cured within thirty (30) days after receipt of written notice, then the Subscription and this Agreement will remain in effect; b. as set forth in Section 12.10; or c. if the non-terminating party enters liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a receiver, administrator or administrative receiver appointed over all or part of its assets or enters an arrangement with its creditors or takes or suffers any similar action. 8.4 Termination for Cause by Faction. In the case where Faction terminates this Agreement for cause as described in Sections 8.3 (a), (b), or (c), then within thirty (30) days of the date of termination, Faction may terminate all Services being provided under all Subscriptions (or Faction may agree to continue to provide certain Services in its sole discretion). If Customer has a direct billing relationship or Subscription with Faction, Customer must pay all amounts due for Services under all outstanding Subscriptions for the entire remaining Subscription(s) Terms, plus related taxes and expenses, and any past due payments. If the Customer does not have a direct billing relationship with Faction, Faction will first seek its remedies from the entity with the direct billing relationship with the Customer; however, the Customer will be ultimately liable for the payment of all amounts owed for the entire remaining Subscription(s) Terms, plus related taxes and expenses, and any past due payments. 8.5 Termination for Cause by Customer. In the case where Customer terminates this Agreement for cause as described in Sections 8.3(a), (b) or (c), then within thirty (30) days of the date of termination, Customer may terminate all Services being provided under all Subscriptions (or Customer may agree to continue subscribe to certain Services in its sole discretion). If Customer has a direct billing relationship or Subscription with Faction, Customer will pay Faction for all Services performed through the date of termination, including any past due payments, and Faction will refund any amounts pre-paid to Faction for Services after the date of termination. Further, if the Customer does not have a direct billing relationship with the Customer, Customer must first seek its remedies from the contracting entity; however, under no circumstances will Faction refund or be liable for an amount greater than the amount actually received by Faction for the Subscription(s), even if the Customer paid a greater amount to another party for the Subscription. 8.6 Retrieval of Customer Data and Removal of Equipment. Customer is responsible for retrieving Customer Data and content upon the termination or expiration of an applicable Subscription. If Customer has not retrieved its Customer Data upon termination or expiration of the applicable Subscription or of this Agreement, Faction may destroy Customer Data that is in the possession or control of Faction. Faction will follow its Data Destruction Policy with respect to the destruction of Customer Data. If Customer has physical equipment located in Faction’s facilities, Customer is required to remove such equipment from Faction’s facilities within thirty (30) days of termination of the applicable Subscription associated with such equipment or of this Agreement. If Customer fails to do so, Customer agrees that Faction may sell or dispose of such equipment, in its discretion, and apply the proceeds, if any, against Customer’s outstanding balance. 9. LIMITATION OF LIABILITY 9.1 Cap on Damages. Except for Losses arising out of or relating to a party’s indemnification obligations under Section 6, or for any other liability which may not be excluded by law, each party’s aggregate liability arising out of or relating to this Agreement will be limited to the amount paid for the Service(s) that are the subject of the claim during the twelve (12) months prior to the occurrence of the events giving rise to the claim. Notwithstanding any language to the contrary in this Agreement, each party’s total, cumulative and aggregate damages for Losses arising out of or relating to this Agreement (including a party’s indemnification obligations under Section 6), will be limited to three million U.S. dollars ($3,000,000.00 USD). Further, notwithstanding any language to the contrary in this Agreement, this Section 9.1 does not apply to Service Availability, where Service Availability is defined and governed by the SLA, and in that case, no claim by Customer related to Service Availability will exceed an amount equal to the Credit Cap set forth in the SLA. 9.2 Limitation on Types of Recoverable Damages. In no event will a party be liable for any of the following types of losses: loss of profits or revenue, loss of business or goodwill, or business interruption, or any punitive or any other type of indirect, special, incidental or consequential damages arising out of this Agreement, or the performance or breach thereof. This limitation of liability will apply regardless of the theory of liability on which such loss is based, such as in contract, tort, or any other theory, and the limitation will apply whether a party has been advised of the possibility of such loss. 9.3 Acknowledgement. Each party acknowledges and agrees that the cap on damages and the limitations of liability and damages contained in this Section 9 are fundamental elements of this Agreement and that the Services would not be provided without such cap and limitations. Without limiting the foregoing, in the event any remedy under this Agreement is determined to have failed of its essential purpose, the parties intend that all limitations of liability and remedies and all exclusions of, and caps on, damages provided for in this Agreement will remain in full force and effect. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in those jurisdictions, the parties agree that the liability of each party will be limited to the fullest extent permitted by such jurisdiction. 10. NOTICES 10.1 Notice Procedure. All notices, demands, authorizations, approvals, or consents required in this Agreement between the parties will be in writing and in the English language and will be deemed effective as follows: (i) if delivered in person, on the date it is delivered; (ii) if sent by certified or registered mail, postage prepaid, return receipt requested, five (5) business days from the date such notice was posted through the U.S. Postal Service (or other applicable postal delivery service), or (iii) if sent by nationally recognized overnight courier, one (1) business day after the sender provides it to the courier for dispatch. Such notices, demands, authorizations, approvals, or consents will be sent to Faction at the address set forth at the beginning of this Agreement, and for Customer to such address provided in writing to Faction or as set forth in Faction’s account information or portal. The parties may change their contact or notice addresses in accordance with this Agreement. 10.2 Updates to Ancillary Agreements and Documents. Faction may update or change its Services Guide, Data Destruction Policy, DPA, AUP or SLA in its sole discretion, and all changes will be effective upon posting online. Customer will be notified by email of any material changes to these agreements if Customer has previously provided Faction with a valid email address. 11. INSURANCE. During the Term of the Agreement, Faction will maintain the following insurance policies and minimum limits (all amounts are in U.S. dollars): • Commercial General Liability insurance in an amount not less than one million dollars ($1,000,000.00) per occurrence and two million dollars ($2,000,000) aggregate covering damage to property or injury to persons arising from the Services provided by Faction under this Agreement. Coverage will include Premises and Operations, Independent Contractors, Products and Completed Operations, Contractual Liability, Personal Injury and Advertising Injury and Property damage coverage. • Professional Liability (Errors and Omissions) and data privacy and cyber risk insurance in the amount of five million dollars ($5,000,000) per occurrence and five million dollars ($5,000,000) aggregate. • Worker’s Compensation insurance and Employer’s Liability insurance of at least: Worker’s compensation - statutory Employer’s Liability - each employee $500,000 Bodily Injury by Accident each employee $500,000 Bodily Injury by Disease policy limit $500,000 Bodily Injury by Disease All insurance policies required shall be issued by companies with a minimum A.M. Best rating of A-(VI). Faction will furnish a certificate of insurance upon Customer’s request. 12. GENERAL 12.1 Assignment. A party may not assign this Agreement, or any of its rights, obligations or privileges under this Agreement, by operation of law or otherwise, without the prior written consent of the other party. A party may, however, without having to obtain the other party’s prior written consent, assign this Agreement, and its rights, obligations and privileges under this Agreement, to any successor by merger, or any purchaser of all or substantially all of the assets or a majority of the stock of such party, provided such successor is not a competitor of the other party. Any attempted assignment, delegation or assumption of this Agreement not in accordance with this Section 12.1 will be null and void and of no force or effect. The terms and conditions of this Agreement will inure to the benefit of and be binding upon the respective successors and permitted assigns of the parties. 12.2 Equitable Relief. Each party is entitled to seek injunctive or other equitable relief whenever the facts or circumstances would permit a party to seek equitable relief in a court of competent jurisdiction. 12.3 Modifications, Amendments, or Waivers. No modification or amendments to this Agreement or any Service Order will be valid unless made in writing and signed by the duly authorized representatives of both parties. No waiver of any provision of this Agreement will be valid unless made in a writing signed by a duly authorized representative of the party waiving such provision. 12.4 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of this Agreement and such other provisions will remain in full force and effect. The parties agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves, to the greatest extent possible, the same effect as would have been achieved by the invalid or unenforceable provision. 12.5 Survival. The terms, conditions or warranties contained in this Agreement that by their sense and context are intended to survive the performance thereof by either party will so survive the completion of the performance or termination of this Agreement, including without limitation, Section 5.2 (Disclaimer of Warranties), Section 6 (Indemnification), Section 7 (Confidentiality), Section 9 (Limitation of Liability), and the relevant sections of this Section 12 (General). 12.6 Compliance with Laws/Export. Each party will comply with all applicable laws, regulations, and codes (including procurement of permits and licenses, when needed) of their respective states, territories, and/or countries in the performance of this Agreement, provided such compliance is not in violation of the U.S. Government’s Export and Anti-boycott Rules and Regulations. The Services and related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and other applicable laws. Customer represents and warrants that it will (a) comply strictly with all legal requirements established under these controls; (b) cooperate fully with Faction in any audit or inspection that relates to these controls; and (c) not export, re-export, divert or transfer, directly or indirectly, any such item to any country or person who or which is embargoed by Executive Order or any applicable law, including any rules, regulations or policies promulgated thereunder, unless Customer has obtained the prior written authorization of Faction and the appropriate governmental authority. 12.7 Limitations on Actions. Each party agrees that no claim (other than Infringement Claims) related to or arising under this Agreement will be brought more than two years after the time that the claim accrued. 12.8 Waiver. Any failure or delay by either party to exercise or partially exercise any right, power or privilege will not be deemed a waiver of any of the rights, power or privileges under this Agreement. A waiver by either party of a breach of any term, condition, or provision of this Agreement will not operate as, or be construed as, a waiver of any subsequent breach. 12.9 Governing Law/Jurisdiction & Venue. This Agreement will not be governed by the United Nations Convention on the International Sale of Goods. For all claims or any actions arising under or related to this Agreement, the governing law and venue will be in a court with competent jurisdiction as follows: ● if Customer is incorporated in a country that is a member of the European Union, the governing law will be the laws of Ireland and the exclusive venue will be in Ireland; ● if Customer is incorporated in the United Kingdom, the governing laws will be the laws of England and Wales and the exclusive venue will be in London, England; and ● If Customer [is incorporated in a country other than a) those countries who are members of the European Union or b) the United Kingdom], the governing law will be the laws of the State of Delaware, USA and the exclusive venue will be in New Castle County, Delaware, USA. Each party agrees not to bring an action in any other venue. Each party agrees to waive all objections to the governing law and venue and agrees not to dispute the personal jurisdiction or venue of these courts. 12.10 Force Majeure. Except for payments amounts owed under this Agreement, a party will not be liable for damages resulting from delay or default (provided that party is without fault in causing such delay or default), if such delay or default is caused by conditions beyond its reasonable control, including without limitation, acts of God; natural disasters; war or other hostilities; labor disputes; civil disturbances; pandemics, disease, or epidemics; governmental acts, orders or regulations; or failures or fluctuations in electrical power, heat, lights, air conditioning or telecommunications equipment (each a “Force Majeure Event”). The party affected by the Force Majeure Event must immediately provide notice to the other party in writing of the reason for the delay or default and the likely duration of the delay or default. Except for payments owed under this Agreement, the performance of the party (or parties) affected by the Force Majeure Event, will be suspended during the Force Majeure Event. If, however, performance is not resumed within sixty (60) days after receiving notice of the Force Majeure Event, the other party may, by notice in writing, immediately terminate this Agreement. 12.11 Media Releases. Each party will treat this Agreement and its terms as confidential and will make no press release or disclosure, whether written, oral or otherwise, regarding the existence of this Agreement or transactions contemplated by this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld or delayed. Notwithstanding any language to the contrary in this Agreement, a party may make any disclosure to the extent required by applicable laws, including securities laws or the rules of any stock exchange where a party’s securities are traded. 12.12 Non-Solicitation of Employees. During the term of this Agreement and for a period of one (1) year after termination or expiration of this Agreement, each party agrees that it will not, directly or indirectly, for itself or on behalf of any person or entity, solicit any employees of the other party who had significant involvement with delivery of Services or Professional Services under this Agreement for the purpose of inducing such employees to terminate their employment to become employees or independent contractors. The foregoing will not apply to nonspecific general solicitations (e.g., Internet or newspaper). 12.13 Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement or in the activities contemplated by the parties under this Agreement will be deemed to create an agency, partnership, employment, or joint venture relationship between the parties. Each party will be deemed to be acting solely on its own behalf and has no authority to bind the other to any third party. 12.14 Order of Precedence. In the event of a conflict between the terms of this Agreement and the terms of any other agreements between the parties, this Agreement will control. Where Customer has a direct billing relationship or Subscription with Faction, then the Faction service order associated with the Subscription will control in the event of a conflict with this Agreement. In the event Customer is required to issue a purchase order, such purchase order may be accepted by Faction for administrative convenience only, but the terms and conditions of any such Customer purchase order will be null and void and will not take precedence over this Agreement or any Faction Subscription. Further, other than providing the Services specified in a Subscription, Faction will not and is not bound by the terms and conditions or any other agreements (including Subscription agreements) between Customer and any other party. 12.15 Use of Subcontractors. Faction may, in its discretion, engage subcontractors to perform Services under this Agreement, provided such subcontractors are required to comply with the confidentiality and other obligations described in this Agreement. Engagement of a subcontractor will not excuse Faction from any of its obligations under this Agreement and Faction will be liable for any breach of this Agreement by its subcontractors. 12.16 Non-Exclusive Agreement. The arrangement set forth in this Agreement is non-exclusive and this Agreement will not prevent or prohibit either party from entering into similar agreements with other providers or purchasers or licensors of products or services like those under this Agreement. 12.17 Government Customers. By accepting this Agreement, Customer represents that it has complied and will continue to comply with all applicable laws and governmental procurement requirements. 12.18 Prevailing Language. This Agreement has been drawn up, negotiated, and executed in the English language. In case of discrepancies, conflict, or inconsistencies between the English text version of this Agreement and any translation, where the translation of this Agreement was prepared for convenience or any other purpose, the English version will prevail. Further, if Customer asserts that any other agreements or documents apply to the parties, the English version will control. 12.19 Entire Agreement. Except for any MNDA between the parties, this Agreement (including the AUP, SLA, and any applicable exhibits or other agreements incorporated by reference) constitutes the entire agreement, understanding and representations, expressed or implied, between Faction and Customer with respect to the subject matters described, and supersede all prior written and oral communications, agreements, letters of intent, representations, warranties, statements, negotiations, understandings and proposals, with respect to such subject matters. Headings used in this Agreement are for ease of reference only and will not affect the construction or interpretation of this Agreement. 12.21 Execution and Counterparts. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity's behalf, whether executing with a “wet” or electronic signature or via click wrap or other acceptable means. If you specify an entity, or you use an email address provided by an entity you are affiliated with (such as an employer) in connection with a Subscription purchase or renewal, that entity will be treated as the owner of the Subscription for purposes of this agreement.