SMARTPREDICT – TERMS AND CONDITIONS

This Software as a Service Agreement (“Agreement”) is effective as of the effective date specified in the Order Form (the “Effective Date”) and is entered into by and between SMARTPREDICT and the Customer identified in the Order Form. SMARTPREDICT and Customer are referred to herein each individually as a “Party” and collectively the “Parties.” In consideration of the mutual covenants contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1) Scope. SMARTPREDICT will provide Customer with online access to and use of the SMARTPREDICT platform and Solutions identified in the Order Form (the “SaaS Services”) during the Term via the internet by use of a Customer-provided browser or the SMARTPREDICT’ mobile application and platform, which may be used by guests of Customer pursuant to terms of use currently found at https://www.SMARTPREDICTplatform.com/terms-of-use. SMARTPREDICT may also provide Professional Services to Customer in connection with its use of the SaaS Services (such SaaS Services and Professional Services are referred to herein collectively as the “Services”).

2) Access and Use of SaaS Service. Subject to the terms and conditions of this Agreement and the payment of the Fees specified in the Order Form, SMARTPREDICT grants Customer a limited, non-exclusive, non-transferable right to allow Customer’s Authorized Users (as defined below) to access and use the SaaS Services during the Term solely for Customer’s internal business purposes.

“Authorized Users” means those employees, agents and independent contractors of Customer who are authorized by Customer to use the SaaS Services. This Agreement grants Customer only the right to use the SaaS Services as set forth herein, and does not convey or transfer title or ownership of the SaaS Services, any underlying technology or software, or any intellectual property rights in any of the foregoing to Customer. Customer is responsible and liable for its Authorized Users’ compliance with and/or breach of the terms of the Agreement. All rights not expressly granted herein are reserved by SMARTPREDICT, and no other licenses are granted herein by SMARTPREDICT by implication, estoppel or otherwise.

“Fees” means the “Solutions Fees” and the “Professional Services Fees”.

2.2) Documentation. Customer may print, copy and internally distribute program documentation, user manuals, product technical manuals and other information (either provided by SMARTPREDICT or made available by SMARTPREDICT online) describing the operation and use of the SaaS Services if and as available (the “Documentation”), for its internal business purposes only; provided, that Customer replicates all copyright and other proprietary rights notices contained in the original copy of the Documentation. Any Documentation and any copies made are the property and Confidential Information of SMARTPREDICT.

2.3) Restrictions. The SaaS Services constitute protected copyrighted material and valuable trade secrets of SMARTPREDICT. Accordingly, Customer will not: (i) authorize or permit use of the SaaS Services or Documentation by persons other than its Authorized Users; (ii) sublicense, lease, rent, loan or otherwise transfer to any third party the right to access and use the SaaS Services; (iii) use or access the SaaS Services for the purpose of building a competitive product; (iv) copy, frame, modify or create any derivative works of the SaaS Services (or any component, part, feature, function, user interface, or graphic thereof) or Documentation, except with the prior written consent of SMARTPREDICT; (v) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the SaaS Services is compiled or interpreted; (vi) use the SaaS Services as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or SAAS offerings; (vii) perform or disclose any benchmark or performance tests of the SaaS Services without SMARTPREDICT’ prior written consent; (viii) perform or disclose any security testing of the SaaS Services or associated infrastructure without SMARTPREDICT’ prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (ix) remove or modify any program markings or any notice of SMARTPREDICT’ or its licensors’ proprietary rights; (x) use the SaaS Services in violation of applicable laws; (xi) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (xii) send or store malicious code in connection with the SaaS Services; (xiii) interfere with or disrupt performance of the SaaS Services or the data contained therein; (xiv) attempt to gain access to the SaaS Services or its related systems or networks in a manner not set forth in the applicable Documentation; or (xv) cause or permit any Authorized Users or any other party to do any of the foregoing.

2.4) Passwords. SMARTPREDICT will provide Customer with passwords and other credentials required to enable Customer’s Authorized Users with access to the SaaS Services. Customer is solely responsible for maintaining the security and confidentiality of its Authorized User’s login information and credentials for its subscription to the SaaS Services, and is responsible for any use of the SaaS Services utilizing such information and credentials. Login credentials and passwords are assigned on a named user basis and may not be shared by multiple individuals, provided that, upon written notification to SMARTPREDICT, Customer may reassign credentials to new named Authorized Users. Customer may not (i) permit login password codes to be cached in proxy servers and accessed by individuals who are not Authorized Users, or (ii) permit access to the SaaS Services through a single identification or password code being made available to multiple users on a network.

2.5) Customer Responsible for Providing Connectivity and Equipment. Customer is responsible for providing its Authorized Users with an internet connection as well as currently-supported browsers and any necessary equipment or hardware needed to access the SaaS Services.

2.6) Maintenance and Support. SMARTPREDICT will provide telephone support to Customer between the hours of 8:00 a.m. and 8:00 p.m., Madagascar Time, Monday through Friday, except nationally recognized holidays. SMARTPREDICT will use commercially reasonable efforts to correct reported errors or failures that impair Authorized Users’ access to the SaaS Services.

3) Professional Services. SMARTPREDICT will provide the Professional Services as set forth in the Order Form. SMARTPREDICT is not obligated to provide any Professional Services or to render any maintenance or support services that are not expressly provided for in an Order Form, including but not limited to, training, data conversion, program modification or enhancements.

4) Data; Results; Use of Marks and Name.  

4.1) Customer Data. As between Customer and SMARTPREDICT, Customer owns all right, title, and interest to the specific data and information about the Customer, it’s units, and its employees submitted, processed, or stored by Customer and Authorized Users using the SaaS Services (the “Customer Data”). Customer is solely responsible for the accuracy and quality of the Customer Data. The Parties agree that under no circumstances will SMARTPREDICT be responsible or have any liability for Customer’s or an Authorized User’s use of the Customer Data. Customer and each Authorized User are responsible for updating its own Customer Data. Customer hereby grants to SMARTPREDICT a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable license to use, copy, reproduce, adapt, combine with other data, edit and re-format, generate, store, disclose, distribute, maintain a database of, and make derivative works based upon, any and all Customer Data exchanged under this Agreement to improve the Services.

4.2) Results. SMARTPREDICT owns all the information, data, documents and any other output results generated by queries, data feeds, and any use of and access to the SaaS Services by Customer (collectively “Results”) to provide and improve the SaaS Services, and owns all de-identified, aggregated forms of Customer Data and/or Results as part of SMARTPREDICT’ services offerings to Customer and other customers. SMARTPREDICT will have no responsibility for any decisions made on the basis of Results or for completeness or accuracy of the Results or for their usefulness for Customer’s purposes.

5) Security. Each Party will maintain commercially reasonable administrative, physical and technical safeguards designed to help protect the security of its internal networks from malicious activity and to provide for the privacy, confidentiality and integrity thereof. Neither Party is liable for breaches of security caused by the other Party’s (or in the case of Customer, an Authorized User’s) failure to secure its networks or any access information, including login credentials and passwords. Customer will ensure that Customer will not introduce any malicious software into the SaaS Services or which, upon the occurrence of a certain event, the passage of time, or the taking of or failure to take any action, would cause SaaS Services to be destroyed, damaged, or rendered inoperable.

6) Data Protection; Compliance with Privacy Policy; Required Consents.

6.1) Compliance with Laws and SMARTPREDICT Privacy Policy. Customer will ensure that its use of the SaaS Services will be consistent with the SMARTPREDICT privacy policy, which is available at https://www.SMARTPREDICTplatform.com/privacy-policy and is incorporated herein by reference.

6.2) Required Consents. In order to carry out its responsibilities under this Agreement, SMARTPREDICT may need access to, or Customer may provide access to, software, databases, materials, products, hardware, Customer Data and Customer trademarks, trade names, service marks, logos and other similar indicia of origin (collectively “Customer-Provided Materials”). Customer represents and warrants to SMARTPREDICT that is has obtained all consents, authorizations or permissions necessary for SMARTPREDICT to access each item of Customer-Provided Materials (including without limitation any consumer consent required to provide the SaaS Services specified herein) as well as any consent required for communications with individuals (collectively “Required Consents”). Customer is responsible for determining the appropriate disclosures and level of consent required under the law as it is related to its business. Any costs to Customer that are associated with its carrying out these responsibilities are not included in the fees and will be the responsibility of Customer. Customer hereby grants SMARTPREDICT a non-exclusive, worldwide, royalty-free, paid-up, transferable and sub-licensable license in and to the Customer-Provided Materials for purposes of providing the Services hereunder.

6.3) Laws.To the extent applicable to a Party, each Party represents and warrants that it complies and will continue to comply in all respects with the Malagasy Privacy Act of 2015, as amended and all regulations and judicial opinions issued related thereto. With regard to Personal Information, SMARTPREDICT possesses or controls in connection with the SaaS Services provided by it to Customer, SMARTPREDICT understands and agrees that it will not (i) sell (as defined under the CCPA) such Personal Information or (ii) retain, use, or disclose such Personal Information except as permitted under the terms and conditions of this Agreement by and between Customer and SMARTPREDICT.

7) Term and Termination. 

7.1) Term of Agreement. This Agreement will begin on the Effective Date and then continue for the Implementation Period (as applicable) plus the period set forth in the Order Form (the “Initial Term”). The “Implementation Period” means the period of time between the Effective Date and the earlier of (i) 60 days from the Effective Date or (ii) Service Start Date of the last Hotel implemented on the SMARTPREDICT platform. Following the Initial Term, this Agreement will automatically renew for successive one-year terms (each, a “Renewal Term” and together with the Initial Term, collectively, the “Term”), unless one Party provides written notice to the other at least 90 days prior to the expiration of the Initial Term or Renewal Term (as applicable) of its intention not to renew this Agreement.

7.2) Termination. 

7.2.1) Termination for Breach. This Agreement may be terminated by either Party, subject to the Dispute Resolution procedures in Section 15.8: (i) for the other Party’s material breach of its obligations under this Agreement, but only if such breach is not cured within 30 days of the breaching Party’s receipt of written notice of the breach that described the breach in reasonably sufficient detail; (ii) delay in payment or nonpayment of fees that lasts more than 30 days from the date such payment was due; or (iii) actions or omissions of a Party that subject the other Party to actual or potential civil or criminal liability. Additionally, SMARTPREDICT may terminate this Agreement for any misuse of the Services by Customer, including unlawful use, or any violations of SMARTPREDICT’ privacy policy or of the restrictions set forth in Section 2.3.

7.2.2) Termination for Insolvency. A Party may terminate the Agreement without prior notice to the other if: (i) the other Party commences a voluntary case or the corresponding provisions of any successor laws; (ii) anyone commences an involuntary case against the other Party or the corresponding provisions of any successor laws and either (A) the case is not dismissed by midnight at the end of the 60th day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case; (iii) the other Party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy law; (iv) the other Party discontinues its business; (v) a receiver is appointed for the other Party or its business; or (vi) the other Party fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.

7.2.3) Effect of Termination. Upon the termination or expiration of this Agreement (the “Termination Date”), the rights and licenses, except where otherwise provided (e.g., Section 15.2 below), that were granted to each Party under this Agreement will cease. Except for a termination of this Agreement for SMARTPREDICT’ uncured breach, Customer will make payment to SMARTPREDICT for all unpaid Services up to the Termination Date, within 30 days of Customer’s receipt of SMARTPREDICT’ invoice. Upon written request following a termination, each Party will return to the other all originals and copies of all Confidential Information that has been exchanged hereunder, except as specifically provided herein, provided that SMARTPREDICT’ may retain copies of Confidential Information as required by its document retention policy, provided that the terms of this Agreement will continue to apply to such Confidential Information until it is returned or destroyed. Following termination of this Agreement, and except as provided herein, SMARTPREDICT will remove, delete and/or destroy any Customer Data remaining on the SaaS Services or on SMARTPREDICT’ servers. If Customer wishes to receive any other termination or transition services from SMARTPREDICT after the Termination Date, the parties may enter into a Statement of Work for such services at SMARTPREDICT’ then-current rates.

7.3) Suspension of Service. SMARTPREDICT reserves the right, in its reasonable discretion, to suspend or terminate access to the SaaS Services by Customer if SMARTPREDICT reasonably believes that Customer’s use of the SaaS Services may violate or infringe any law or third party rights or which otherwise exposes or potentially exposes SMARTPREDICT to civil or criminal liability, or otherwise threatens the SaaS Services, or data therein provided that such right will not obligate SMARTPREDICT to monitor or exert editorial control over Customer’s use of the SaaS Service. SMARTPREDICT and Customer will cooperate to expeditiously determine the solution to the issue causing SMARTPREDICT’ suspension of SaaS Service. In order for SMARTPREDICT to exercise its rights pursuant to this Section 7.3, SMARTPREDICT must deliver to Customer written notice promptly after the allegedly violating representation or use is brought first to its attention and Customer must be given a reasonable period in which to remedy the alleged violation. Once the violation is remedied, SMARTPREDICT will restore access to the SaaS Service.

8) Fees. 

8.1) Fees; Payment Terms. Customer will pay to SMARTPREDICT the Professional Fees and the first quarter’s Solutions Fees as of the Effective Date and thereafter will pay to SMARTPREDICT the fees set forth in the Order Form within 30 days from date of receipt of invoice. Past due balances are subject to interest equal to the lower of 1 ½% per month or the maximum rate allowed by law. SMARTPREDICT may, at its discretion, engage third parties to assist in the collection of past due accounts. Customer will be liable to SMARTPREDICT for all reasonable costs of third party collection activity, including attorneys’ fees, resulting from Customer’s past due account. In addition, SMARTPREDICT may restrict or remove access to the Solutions until such invoices are paid in full if Customer has not paid invoices within 60 days.

8.2) Expenses and Other Charges. Customer will reimburse SMARTPREDICT for all pre-approved expenses incurred in the performance of the Professional Services (“Expenses”). Upon request, SMARTPREDICT will provide reasonable back-up documenting the Expenses. Expenses will be invoiced by SMARTPREDICT and such invoices will be payable in accordance with Section 8.1.

8.3) Taxes. Customer will be responsible for any taxes, including but not limited to state and local sales, use, excise, ad valorem, value-added, taxes on royalties, withholding taxes, and/or any other taxes and duties (“Taxes”) imposed on the purchases, use, license, and/or provision of Services (including implementation services where applicable). SMARTPREDICT will use commercially reasonable efforts to include any applicable Taxes on invoices. If Taxes are not included on invoices, Customer has a duty to self-report and will indemnify SMARTPREDICT should any Taxes go unreported or unpaid to a taxing jurisdiction. If Customer produces supporting documentation certified by state authority authorizing Customer to pay such Taxes directly, then SMARTPREDICT will gross up and add such amounts to the fees and withhold from including such Taxes on invoices. It is agreed that each Party will be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its income and receipts.

9) SMARTPREDICT Property. 

9.1) Generally. SMARTPREDICT owns all right, title and interest in and to (i) the SaaS Services (and any and all developments, modifications, and derivative works of the SaaS Services), (ii) any improvements, modifications, suggestions, work product, concepts, inventions, information, drawings, designs, programs, or software (whether developed by SMARTPREDICT, Customer, either alone or with others, and whether completed or in-progress) created as part of the Professional Services and/or to any extent related to the SaaS Services, (iii) any materials provided by SMARTPREDICT to Customer or a User with respect to the SaaS Services, including but not limited to any Documentation, software (whether in object code or source code form), proprietary data, or other proprietary information developed or provided by SMARTPREDICT or its suppliers, such as text, graphics (including the underlying web-presentation code of the SaaS Services), logos, button icons, images and any non-public know-how, methodologies, equipment, or processes used by SMARTPREDICT to provide the SaaS Services to Customer, and (iv) all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively “SMARTPREDICT Property”). This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any SMARTPREDICT Property are transferred to Customer under this Agreement. SMARTPREDICT reserves all rights not expressly granted by this Agreement and no licenses are granted by SMARTPREDICT to any party, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

9.2) Grant of License. SMARTPREDICT hereby grants to Customer a limited, non-exclusive, non-transferable license to use SMARTPREDICT Property developed as part of the Professional Services for that entity’s use of the SaaS Services and solely for purposes of the using of the SaaS Services in accordance with the terms of this Agreement during the Term. Any SMARTPREDICT Property related to SaaS Services will be deemed to constitute part of the SaaS Services and will be subject to all terms and provisions set forth in this Agreement or otherwise applicable to the SaaS Services, including terms and provisions related to use rights and restrictions, ownership and distribution of the SaaS Services.

9.3) Assignment. To the extent that Customer or any User owns any copyright, patent, trade secret, or any proprietary rights in and to the SMARTPREDICT Property, Customer hereby assigns to SMARTPREDICT, its successors and assigns, and Customer will cause all Authorized Users to assign to SMARTPREDICT, its successors and assigns, all right, title and interest in and to the SMARTPREDICT Property, including, but not limited to, all rights in and to any inventions, designs and intellectual property rights embodied in the SMARTPREDICT Property. Customer will execute, and cause any User to execute, any documents in connection with such assignment that SMARTPREDICT may reasonably request. Customer appoints SMARTPREDICT as its attorney-in-fact to execute assignments of, and register all rights to, the SMARTPREDICT Property and the intellectual property rights in the SMARTPREDICT Property. This appointment is coupled with an interest. Customer will enter into agreements with its Authorized Users or any other party as necessary to establish SMARTPREDICT’ sole ownership in SMARTPREDICT Property, and upon SMARTPREDICT’ request, Customer will provide SMARTPREDICT with copies of such agreements.

10) Confidentiality. A party receiving Confidential Information (“Recipient”) may not disclose Confidential Information except to its employees and agents with a need to know and who are bound by confidentiality agreements as restrictive as this Section 10. “Confidential Information” (a) means all information disclosed during the Term to Recipient by the party disclosing Confidential Information (“Discloser”) in any manner, whether orally or in tangible form or whether created by Discloser or Recipient, but if in tangible form it is marked as “confidential information” or would be considered to be confidential by a reasonable person and, if it is disclosed orally, it is written within 2 days of disclosure and declared as confidential under this provision, (b) but does not mean information that (i) was in Recipient’s possession prior to disclosure by Discloser prior to the Effective Date, (ii) is in the public domain and is generally known, (iii) has come into possession of Recipient by a third party that is not under any confidentiality obligation with Discloser, or (iv) was developed by Recipient independently and without reference to the Confidential Information. This Agreement and SMARTPREDICT Property are Confidential Information.

11) Additional Representations and Warranties. Customer represents and warrants that: (i) it has the power and authority to enter into and perform its obligations under this Agreement; (ii) the Customer Data and Customer-Provided Materials (a) do not and will not infringe or misappropriate the intellectual property rights of any third party, (b) do not and will not violate any applicable law, statute, ordinance, regulation or treaty, (c) will not be defamatory, libelous, unlawfully threatening or harassing, (d) will not be obscene or indecent, and (e) will not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information of any person or entity, and (iii) that it will comply with all applicable laws, regulations, policies, and rules including those relating to data privacy, consumer protection, marketing, promotion, text messaging, chat bot, email, direct mail, and other communications or otherwise applicable to its use of the SaaS Services.

12) Disclaimer of Warranties EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND SMARTPREDICT SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, CUSTOMER SPECIFICALLY ACKNOWLEDGES THAT SMARTPREDICT, ITS LICENSORS AND THEIR SUPPLIERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION; THAT ALL ERRORS WILL BE CORRECTED; THAT THE SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK; OR THAT CUSTOMER SPECIFIC REQUIREMENTS WILL BE SATISFIED. CUSTOMER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES.

13) Indemnification. Customer will indemnify, defend and hold SMARTPREDICT, its owners, officers, employees, agents, successors and assigns harmless from and against any and all third-party claims, actions, proceedings, judgments, losses, liabilities, costs and expenses (including attorneys’ fees) arising from claims by a User or any third party that (i) relate to a use of the Results; (ii) are based on or caused by unauthorized access to the SaaS Services using a Customer password or account obtained from Customer or a User; (iii) result from any failure to obtain any Required Consent; (iv) the Customer Data, Customer-Provided Materials or other materials provided Customer or a User, or SMARTPREDICT’ use thereof in connection with this Agreement, infringes or misappropriates the intellectual property rights of such third party; (v) are caused by Customer’s or an Authorized User’s gross negligence or willful misconduct.

Customer (the “Indemnifying Party”) will be notified in writing by SMARTPREDICT (the “Indemnified Party”) of any such claim or demand (provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the Indemnified Party’s failure to give notice as required); (ii) the Indemnifying Party will have sole control of the defense of any action or such claim or demand and of all negotiations for its settlement or compromise provided that any settlement or compromise which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be expressly approved in advance in writing by the Indemnified Party; and (iii) the Indemnified Party will use all commercially reasonable efforts to cooperate with the Indemnifying Party in a reasonable way and at the Indemnifying Party’s expense to facilitate the settlement or defense of such claim or demand. The Indemnified Party may, at its expense and option, use counsel of its choosing in connection with the defense of any such claim.

14) Limitations on Damages. 

14.1) DISCLAIMER OF CERTAIN DAMAGES. Except for amounts payable by customer, the indemnification obligations in section 13 or customer’s breach of section 2.3 or misappropriation of SMARTPREDICT intellectual property rights, neither SMARTPREDICT nor customer will have any liability under this agreement for consequential, exemplary, indirect, special, incidental, or punitive damages, including for any lost data, regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if the party has been advised of the possibility of such damages and whether or not any remedy provided should fail of its essential purposes, or for any claim by any third party. These limitations will survive the expiration or termination of this agreement.

14.2) LIMITATION OF LIABILITY. Except for amounts payable by customer, the indemnification obligations in section 13, or customer’s breach of section 2.3 or misappropriation of SMARTPREDICT’ intellectual property rights, the total aggregate liability of either party for any reason and upon any cause of action brought under or associated with this agreement, will be limited to the amount paid by customer to SMARTPREDICT for the most recent one year period of the agreement up to the date such liability arose. This limitation applies to all causes of action, including without limitation, those based on breach of contract, breach of warranty, tort (including negligence), and strict liability. These limitations will survive the expiration or termination of this agreement.

14.3) Applicability of Disclaimers and Limitations. The Parties agree that SMARTPREDICT has set the fees and entered into this Agreement in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.

15) General. 

15.1) Non-Exclusive. The relationship created by this Agreement is non-exclusive in all respects.

15.2) Rights and Survival. Except where specifically provided, termination of this Agreement will be without prejudice to any other rights that either Party may have at law or in equity. The following Sections of this Agreement will survive its expiration or termination: 2.3, 4, 6, 7.2.3, 7.3, 8.1, 8.2, 8.3, 9.1, 9.3, 10, 12, and 13 through 15.

15.3) Notices. Notices will be given in writing and may be delivered by mail delivery service, overnight delivery service, or personal delivery to the intended recipient of the notice at the address noted in the recitals. Notice will be deemed delivered when received or one business day after deposit with an overnight delivery service for next day delivery, whichever is earlier. A Party may change a contact upon 10 days’ written notice to the other Party, which notice will contain the new contact information as set forth above.

15.4) Force Majeure. If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of such events as, but not limited to, flood or other natural disaster, riot, fire, judicial or governmental action, labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from SMARTPREDICT’ server, sabotage or criminal interference with the server or SaaS Services or any other causes beyond the control of either Party (a “Force Majeure Event”), the Party experiencing the Force Majeure Event will be excused from performance to the extent that it is prevented, hindered or delayed by such causes, except with respect to Customer’s obligations to pay the fees. Each Party agrees to give the other notice as soon as possible of the existence of a Force Majeure Event affecting the Party’s performance and to give notice of the termination of the Force Majeure Event and the ability to continue performance under the Agreement.

15.5) Separate Parties; No Third-Party Beneficiaries. The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among SMARTPREDICT, Customer or any User. SMARTPREDICT will perform the Services as an independent contractor. Neither SMARTPREDICT nor Customer is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.

15.6) Right to Update. SMARTPREDICT reserves the right to make visual or functional modifications to the SaaS Services from time to time for the purpose of maintaining or improving security, ensuring optimal performance, meeting standard industry business requirements, and adding or improving functionality. SMARTPREDICT reserves the right to make such changes without prior notification to Customer. No such change will materially reduce the functionality of the SaaS Service.

15.7) Entire Agreement. This Agreement, including the Exhibits and any document incorporated herein by reference, states the entire agreement between the Parties with respect to the subject matter hereof and supersedes all previous proposals, negotiations and other written or oral communications between the Parties with respect thereto. Terms in Customer’s pre-printed purchase orders or order forms will have no force or effect.

15.8) Dispute Resolution. The Parties agree that if one of them believes that the other has breached or is about to breach this Agreement or Customer disputes an SMARTPREDICT charge appearing on a bill, the complaining Party will give immediate written notice to the other of the complaint. The Parties will enter into good faith negotiations for a reasonable resolution of the complaint within 10 business days of the Party’s receipt of the complaining Party’s notice. If the alleged breaching Party is unable to cure the alleged breach or billing dispute to the complaining Party’s reasonable satisfaction, the complaining Party will give the alleged breaching Party a clear and complete written statement of the reasons for such lack of satisfaction, and will provide such Party with 15 days to cure such issue. After such cure period, either Party may then resort to whatever remedy is available at law or equity, subject to the limitations on remedy provided for in this Agreement. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY RISING OUT OF, OR RELATED TO, THIS AGREEMENT.

15.9) Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to any applicable law or regulation, the Parties agree that such provision will be construed so that it can be found lawful to the fullest extent possible and the remaining provisions of this Agreement will remain in full force and effect. If such provision cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of this Agreement will continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the intent of the Parties, including the economics of the Agreement.

15.10) Assignment. Neither Party may assign its rights and obligations under this Agreement without the prior written permission of the other Party. This Agreement will be binding on each Party’s permitted successors and permitted assigns.

15.11) Governing Law and Venue. This Agreement will be governed by, and construed and enforced in accordance with, the laws of Madagascar without regard to any principle that would require the application of the laws of another jurisdiction. Each Party hereby irrevocably waives, to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such dispute brought in such court, and any defense or right to move to dismiss or transfer any action brought in such courts on the basis of any objection to personal jurisdiction, venue or inconvenient forum for the maintenance of such dispute. Each of the Parties agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

15.12) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Electronic signatures or signature in the form of handwritten signatures in a facsimile transmittal or scanned and digitized images of a handwritten signature (e.g., scanned document in PDF format) will have the same force and effect as original manual signatures.

15.13) Headings. The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of this Agreement.