FACTION 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 ("Faction"), with offices located at 1660 Lincoln Street, Suite 1600, Denver, CO 80264 and the entity or individual procuring Services, as defined below, under this Agreement (the “Customer”). If you are accepting the terms and conditions of this Agreement on behalf of an entity, you represent and warrant that you are duly authorized to bind your company to such terms and conditions. Faction and Customer are sometimes referred to individually as a “party” and collectively as the “parties”. 1. DESCRIPTION OF THE SERVICES Faction is a cloud service provider of a unique infrastructure as a service platform (the “Services”) where Faction owns the IT service(s) infrastructure and makes the Services available either directly to end-user customers, or through resellers (“Resellers”) and to customers who use the Services in connection with their own branded cloud computing offerings, managed services, and other types of information-technology-related services. Faction also provides consulting services relating to its Services (“Professional Services”). This Agreement will apply to all orders for Services (“Service Orders”) that Faction provides to the Customer unless the parties expressly agree otherwise in writing. Upon execution by the parties, any new or additional Service Orders will be subject to the terms and conditions of this Agreement. This Agreement contains the terms and conditions that govern Customer’s access and use of the Services. The parties will enter into a separate agreement or Service Order if Customer wishes to purchase any Professional Services from Faction. Capitalized terms and phrases used in this Agreement and any Service Order will have the meanings set forth in the context in which they are used. 2. EXHIBITS. 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 3. SERVICES/RIGHTS GRANTED 3.1 Right to Use the Services. Faction will provide the Services described in the Service Orders in accordance with the terms of this Agreement and the applicable Service Order. Each Service Order is incorporated into this Agreement as if fully set forth herein. For the duration of the Services term described in a Service Order, 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. The Services are provided as described in, and subject to, the provisions in the Service Order. Faction will use its sole discretion to determine the manner or method for completing the Services. 3.2 No Software Delivery Obligation. Unless specifically set forth in a Service Order, 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 the Service Order, Customer’s right to access or use the software programs and the Services will terminate. If software is delivered in connection with Professional Services, it will be separately identified in the Service Order and licensed to Customer in accordance with the provisions of Section 4 (the “Licensed Software”). All software will be provided in object code only, unless specifically provided otherwise in a Service Order. 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 Services. If Customer elects to engage Faction to provide Professional Services, the scope of the Professional Services and deliverables (“Deliverables”) will be described in a separate Service Order(s). 3.5 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. 3.6 Order of Precedence. In the event of a conflict between the terms of this Agreement and the terms of a Service Order, the Service Order will control. This Agreement and all Service Orders take precedence over any purchase order issued by Customer, which 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 Service Orders. 3.7 Use of Subcontractors/Right to Change Location from which Services are Provided. 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. 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 under a Service Order. 3.8 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 similar to those under this Agreement. 4. INTELLECTUAL PROPERTY/LICENSE TO FACTION IP 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 and Professional Services and to provide Deliverables as applicable 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 or Deliverables, to the extent the Deliverables do not include any underlying Faction IP. Faction or its licensors reserve all Intellectual Property Rights in the Faction IP. Faction grants Customer a limited license to use the Faction IP, and to sublicense the Faction IP as part of Customer’s own branded offering, for the term of the applicable Service Order. Customer 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. If Customer markets and sells the Services or Professional Services under its own brand, it may use the Faction trademarks and brand (for example, Customer’s services may be “Powered by Faction”) as set forth in the Faction Partner Guide, in which case Faction grants to Customer a limited, revocable, non-exclusive, non-transferable, royalty-free, non-sublicensable right to use the Faction brand and trademark solely for such purpose. Customer may engage Faction to develop Deliverables, such as custom interfaces or applications to be used in connection with the Services. The Deliverables will be specifically identified in the Service Order. All Intellectual Property Rights in the Deliverables will be owned by Customer to the extent the Deliverables do not have any underlying Faction IP included. If any Faction IP is included in the Deliverables, Faction will maintain ownership in the Deliverables as Faction IP. Customer also 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. Faction will have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use the Deliverables as required to provide the Services or Professional Services set forth in the applicable Service Order(s) and to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to operation of the Services. 5. LIMITED WARRANTY AND DISCLAIMERS/SUSPENSION OF SERVICES 5.1 Services Warranty. Subject to the limitations described below, Faction warrants that the Services and Deliverables will perform in all material respects in accordance with description of the Services and Professional Services in the Service Order. 5.2 Disclaimer of Warranties. Faction does not guarantee that the Services or Professional 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 any and all warranties, including 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 has not received applicable fees for the Services five (5) days’ after notice has been provided to Customer (and/or Reseller, if applicable) in accordance with Section 11.1; or (v) required by law. For further clarification of Sec. 5.3(iv), a Customer’s Services may be suspended if Customer fails to pay for the Services. Faction (where the parties have a direct relationship), or where Customer’s Reseller fails to pay Faction (even if Customer has paid its Reseller, and in which case Faction may seek direct payment from Customer). 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. If suspension results from Customer’s breach of this Agreement, fees for the Services during the suspension will continue to be charged. A reinstatement fee may be charged upon reinstatement of Services suspended due to a breach of this Agreement. 5.4 Access to Customer Data. Customer acknowledges and agrees that, unless required by law, it will not have access to any Customer Data during a suspension of the Services. Unless specifically assigned to Faction in a Service Order, Customer is responsible for maintaining current and reliable backups of its Customer Data and Faction has no obligation to help recover such Customer Data. 5.5 Customer Data and Equipment. Customer is responsible for retrieving Customer Data and content upon the termination or expiration of an applicable Service Order. If Customer has not retrieved its Customer Data upon termination or expiration of the applicable Service Order, Faction may destroy Customer Data that is in the possession or control of Faction. To the extent Customer’s equipment is located at Faction’s facilities, Customer is required to remove such equipment from Faction’s facilities within thirty (30) days of termination of the applicable Service Order associated with such equipment. 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. 6. FEES, TAXES, INVOICING AND PAYMENT Note: For this Section 6, if Customer is purchasing Services through a Reseller, Customer will be subject to Reseller’s terms of payment and Section 6 will not apply (except for variable charges or if Customer purchases direct from Faction). However, whether through a Reseller or direct relationship with Faction, in no event will Faction be responsible for the payment of any sales, use, VAT, excise or similar taxes levied on the Services (other than Faction’s income taxes). Further, in the event of non-payment by Customer’s Reseller, Faction reserves the right to: (a) invoice and collect directly from Customer, and/or (b) suspend or terminate Customer’s account for non-payment in accordance with Sections 5.3 or 9.3. 6.1 Fees & Taxes. Faction will invoice Customer for the Services and Professional Services as set forth in the applicable Service Order. All fees due are non-cancelable and the sums paid nonrefundable. Unless otherwise indicated in writing, all fees and payments will be in U.S. dollars. Customer is solely responsible for the payment of all sales and use, VAT, duties, tariffs or other similar charges or taxes on the Services, other than taxes based upon Faction’s income. All fees set forth in an applicable Service Order are exclusive of taxes. Applicable taxes payable by Customer will be separately itemized on invoices. Customer may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, Customer will have the right to provide Faction with any such exemption information, and Faction will use reasonable efforts to provide such invoicing documents as may enable Customer to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available. 6.2 Due Date. All undisputed fees are due thirty (30) days from the date of receipt of the invoice (“Due Date”). Customer must provide Faction written notice of any disputed fees within ten (10) days from the date of receipt of the invoice, where such notice should communicate to Faction the reasons for disputing the invoice. All fees that are not disputed by Customer within ten (10) days of receipt of the invoice are conclusively deemed accurate. If Customer desires to dispute an invoice or any portion thereof, Customer will pay the undisputed portion of such invoice by the Due Date, and the parties will work in good faith to resolve any disputed fees; however, if the disputed fees remain unresolved, Faction may terminate for cause pursuant to Section 9.3 of this Agreement. Any undisputed fees not paid by the Due Date will accrue interest on the overdue balance from the Due Date at the rate of one and one-half percent (1.5%) per month, or the maximum lawful rate allowable under applicable law, whichever is lower. If Faction commences legal proceedings to collect any undisputed fees or payments due to it under this Agreement, Customer will be responsible for and will pay all reasonable attorneys’ fees, collection fees, court costs and any other reasonable collection-related expenses incurred by Faction. 6.3 Responsibility for Payment. Customer will be responsible for all fees and amounts due under the applicable Service Order. 6.4 Increases. Notwithstanding any other provision to the contrary, Faction may increase the charges applicable to any Services provided under a Service Order (i) for increases in third party charges, or (ii) not more often than once per calendar year, for an amount not to exceed the latest annual increase in the Consumer Price Index as that Index is defined by the U.S. Department of Labor, Bureau of Labor Statistics “All Consumer Price Index for All Urban Consumers (CPI-U) for the US City Average, All Items 1982-1984=100 Base”. Such increase will be effective upon the date set forth in Faction’s written notice to Customer. 7. INDEMNIFICATION 7.1 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. “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. 7.2 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, Professional Services, or Deliverables 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. 7.3 Procedure. Upon receiving notice of any claim for indemnification set forth in this Section 7, 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. 7.4 Option. In addition to the foregoing indemnification obligations, if all or any part of a Service or the 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, Professional Services, or Deliverables; or (b) modify or replace the allegedly infringing aspect of the Services, Professional Services, or Deliverables and make them non-infringing, provided, however, that such modification or replacement will not degrade the operation or performance of the Services, Professional Services, or Deliverables. If neither of the remedies in Section 7.4(a) or (b) is commercially reasonable, Faction may terminate any applicable Service Orders or this Agreement and refund Customer any pre-paid fees for Services, Professional Services, or Deliverables not yet provided. 8. CONFIDENTIALITY In the course of 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 mutual non-disclosure agreement (“MNDA”) entered into 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. 9. TERM/TERMINATION 9.1 Term of Agreement. The term of this Agreement will begin on the Effective Date or the date on the first Service Order, whichever is earliest, and the Agreement will remain in full force and effect for so long as there is an outstanding Service Order (the “Term”). This Agreement may be terminated by the parties by mutual written agreement or by a party for cause, as described in Section 9.3, in which case all Service Orders will also be terminated. 9.2 Term of Service Orders. Each Service Order will specify an initial defined term (the “SO Initial Term”), commencing on the “Billing Commencement Date.” The Billing Commencement Date is the first to occur of the following: (a) the date Customer notifies Faction in writing that the ordered environment (the “Solution”) meets the agreed upon specifications; (b) the date the Solution is used in commercial production; or (c) thirty (30) days after Faction notifies Customer that the Solution is ready for commercial use, provided Customer has not notified Faction in writing that there is a material deficiency in the Solution. The SO Initial Term will remain in effect until the earlier to occur of the following, and in which case Faction will terminate all Services to Customer: • termination of such Service Order by either party for cause as described in Section 9.3 below; • termination of such Service Order upon mutual written consent of the parties; or • expiration of the SO Initial Term. 9.3 Termination for Cause. A party may terminate a Service Order and/or this Agreement: a. upon receipt of written notice (specifying the default or breach) from the non-defaulting party, if the other party is in default or breach of a material obligation in a Service Order or this Agreement. If such default or breach can be and is cured within thirty (30) days after receipt of written notice, then the Service Order and Agreement will remain in effect; b. as set forth in Section 13.10; or c. if the non-terminating party enters into 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 into an arrangement with its creditors or takes or suffers any similar action. In the case where Faction terminates this Agreement for cause as described in Sections 9.3 (a), (b),or (c), then within thirty (30) days of the date of termination, Customer must pay all amounts due for Services under all outstanding Service Orders for the entire remaining term of the Service Order(s), plus related taxes and expenses, and any past due payments. In the case where Customer terminates this Agreement for cause as described in Sections 9.3(a), (b) or (c), then within thirty (30) days of the date of termination, Customer will pay Faction for all Services performed through the date of termination, including any past due payments, and in the case where Faction has a direct relationship with Customer, Faction will refund any amounts pre-paid for Services after the date of termination. 10. LIMITATION OF LIABILITY 10.1 CAP ON DAMAGES. Except for Losses arising out of or relating to a party’s indemnification obligations under Section 7, 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 or a Service Order 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 or a Service Order, for Losses arising out of or relating to a party’s indemnification obligations under Section 7, each party’s aggregate liability 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 10.1 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. 10.2 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, a Service Order 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. 10.3 Acknowledgement. Each party acknowledges and agrees that the cap on damages and the limitations of liability and damages contained in this Section 10 are fundamental elements of this Agreement and that the Services, Professional Services, and Deliverables 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. 11. NOTICES 11.1 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 each party at the address set forth at the beginning of this Agreement, or to such other address provided in writing to the other party in accordance with this Agreement. 11.2 Updates to AUP and SLA. Faction may update or change its 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. 12. 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, and Faction will provide thirty (30) days prior written notice to Customer in the event any policies are cancelled or changed where such limits are lowered. 13. GENERAL 13.1 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 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. 13.2 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. 13.3 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. 13.4 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. 13.5 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 7 (Indemnification), Section 8 (Confidentiality), Section 10 (Limitation of Liability), and the relevant sections of this Section 13 (General). 13.6 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. 13.7 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. 13.8 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. 13.9 Governing Law/Jurisdiction & Venue. All claims arising under or related to this Agreement will be governed by the laws of the State of Delaware, USA. This Agreement will not be governed by the United Nations Convention on the International Sale of Goods. Exclusive venue for all disputes arising under or related to this Agreement will be in a state or federal court with competent jurisdiction located in New Castle County, Wilmington, Delaware, and each party agrees not to bring an action in any other venue. Each party agrees to waive all objections to this venue and agrees not to dispute the personal jurisdiction or venue of these courts. 13.10 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. 13.11 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. Additionally, Faction may list Customer as a customer on Faction’s website and on publicly available customer lists without obtaining Customer’s prior written consent, provided that Faction does not imply an endorsement of Faction’s products or services by Customer. 13.12 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). 13.13 Entire Agreement. Except for any MNDA between the parties, this Agreement (including the AUP, SLA, and any applicable Exhibits) and the executed Service Orders constitute 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. 13.14 Execution and Counterparts. Faction and Customer each represents and warrants that the individuals signing below are duly authorized to execute this Agreement on behalf of the party for which they are signing. Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format) and electronic signatures will be accepted as original signatures. This Agreement may be executed in multiple counterparts, which, when assembled, will constitute the entire Agreement. For physical or “wet” signatures obtained offline, the “Effective Date” of this Agreement is defined as the date of the last party to sign or the date on which Services are initially provided to Customer, whichever is earliest. For “click wrap” or agreements made online, the “Effective Date” is defined as the date of online acceptance of this Agreement by Customer.