Software As A Service (SAAS) Agreement Standard Terms Of Service

Balto Software Inc

Notice: We updated our Terms of Service in October 2021. Notwithstanding section 11.3 below, if your company has an executed agreement with Balto, then the terms and conditions of such executed agreement shall prevail over the online Balto Terms of Service displayed below.
For all other customers, your use of the Service will be governed by the Balto Terms of Service displayed below.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS OF SERVICE, TOGETHER WITH THE ORDER, IS A BINDING CONTRACT FOR THE USE OF THE BALTO SOFTWARE, INC. SERVICE. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS OF SERVICE THEN DO NOT ACCESS OR USE THE BALTO SOFTWARE, INC. SERVICE.

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AGREEMENT:

These Software as a Service (SAAS) Terms of Service are entered into as of the date of last signature below (the “Effective Date”) between the client identified in the Order Form (“Client”) and Balto Software, Inc., a Delaware corporation with a principal place of business at 1227 Washington Ave., Ste. 200, St. Louis, MO 63103 (“Balto”). The “Agreement” means these Software as a Service (SAAS) Terms of Service together with the Order Form. Client and Balto Software may each be known as the “Party” or collectively as the “Parties.

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SECTION 1. DEFINITIONS


  1. Affiliate” means any parent, subsidiary, or other company or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, or which operates, or is operated by, Client. The term "control" means the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. 


  1. “Agent Seat” means a license that is provided to an Authorized User who is making telesales or service calls processed by the Service.


  1. Authorized Users” shall include: (a) all directors, officers, and employees of Client and any Affiliate; and (b) any other person making telesales or service calls using the Service on behalf of Client and any Affiliate.


  1. Client Data” means any and all: (a) data input into the Service by Client, its Affiliate or Authorized Users, including any audio streams of telesales agent phone calls processed by the Service and photos, graphics, text, music and other audio and sounds and (b) reports that are specific to Client provided to Client through the Service’s dashboard.

 

  1. De-Identified Data” means data that is derived from Client Data by Balto and that has been de-identified from Client and any individual using industry standard methods such as deleting or masking personal identifiers (for example, by deleting a name and a social security number), and suppressing or generalizing quasi-identifiers (for example, suppressing a date of birth and a zip code). 


  1. “Documentation” means the documentation for the Service provided in writing or in online documentation, as well as training and tutorial videos and materials, and telesales agent playbook materials which Balto makes generally commercially available to its customers.


  1. Fees” means those Service subscription fees and other fees set forth on the Order Form.


  1. Intellectual Property Rights” means all intangible legal rights or interests evidenced by or embodied in (a) any idea, design, concept, technique, invention, discovery or improvement, regardless of patentability, but including patents, patent applications, trade secrets, and know-how; (b) any work of authorship, regardless of copyright-ability, but including copyrights and any moral rights recognized by law; (c) any trademark, trade name or service mark; and (d) any other intellectual property, proprietary or similar rights, in each case, including all goodwill pertaining thereto and on a worldwide basis.


  1. “Manager Seat” means a license that is provided to an Authorized User who does not make telesales or service calls processed by the Service and has access to the reporting dashboard for the Service.
  2. “PCI DSS” means the Payment Card Industry Data Security Standard.


  1. “Order Form” means an order form provided by Balto and executed by the Parties which references these Software as a Service (SAAS) Terms of Service.


  1. Service” means Balto’s hosted, proprietary software as a service described on the Order Form and the related Documentation.

 

SECTION 2. LICENSE TERMS


  1. Grant of Access. Subject to the terms and conditions of this Agreement, Balto hereby grants to Client a limited, non-transferable, non-exclusive and non-sublicensable license to, and to permit its Affiliates and Authorized Users to, access and use the Service during the Term (defined below) for the internal business purposes of Client and its Affiliates, up to the maximum number of Agent Seats and Manager Seats identified in the Order Form. Client will remain liable for the actions and inactions of its Affiliates under this Agreement. This Agreement does not permit access by persons who are not Authorized Users. 


  1. Changes. Balto continually strives to improve its products and services, and reserves the right to improve or modify the Service in any manner and at any time, including during the Term, at its sole discretion; provided however that such modifications will not materially reduce the functionality of the Service. 


  1. Feedback. Balto shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Client, solely as such information relates to the Service and expressly excluding any Client Data or other Client Confidential Information.


  1. Suspension. Balto may suspend access to the Service, in whole or in part, if (i) Client or its Authorized Users are using the Service in violation of this Agreement or applicable law, (ii) Client’s systems or account has been compromised or unlawfully accessed, (iii) required under the law, or (iv) Client fails to pay the applicable fees within twenty (20) days of when due.


  1. Prohibitions. Use of and access to the Service is permitted only by Authorized Users. Client shall not allow any third party to use or view the Service without Balto’s prior written consent. Under no circumstances may Client modify, decompile, reverse compile, disassemble, reverse engineer, decrypt, or otherwise seek to recreate the source code of the Service, adapt the Service in any way, use the Service to create a derivative work, or grant any other person or entity the right or access to do so, without the advance written consent of Balto. Except as expressly authorized by this Agreement, Client shall not modify, copy, duplicate, reproduce, unbundle, sublicense, hypothecate, sell, assign, transfer, display, distribute, lend, rent, or lease the Service or any portion thereof to any third party. All proprietary and/or other notices of Balto or its licensors, if any, shall be provided and maintained on the Service at all times. 


  1. Ownership. 


2.6.1 Ownership. Balto owns all Intellectual Property Rights and all right, title, and interest in the Service, including any modifications or enhancements made thereto and the De-Identified Data. Access to the Service is licensed and not sold. Except as otherwise provided herein, Client shall not, by virtue of this Agreement or otherwise, acquire any ownership rights in the Service aside from the limited licenses granted in this Agreement. 


2.6.2 Reservation of Rights. No rights are granted to either Party except as expressly set forth in this Agreement. Except as expressly set forth in this Agreement, nothing in this Agreement grants any license to, or transfers any right, title or interest in or to, the Service, De-Identified Data, Client Data, the Confidential Information of either Party, or any patents, copyrights, trade secrets, logos, trademarks, trade names or service marks of either Party, whether by implication, estoppel, or otherwise.


  1. Notification. If Client becomes aware of any determination, discovery, or notification that any person or entity is or may be misusing or infringing any Service, Client shall notify Balto. 


  1. Order Forms and Special Terms. Client shall order the Service pursuant to an Order Form. Each Order Form shall include at a minimum a listing of the Service, any Professional Services, the number of Agent Seats and Manager Seats (if limited) and the subscription period start and end date. Except as otherwise provided on the Order Form, each Order Form shall be subject to the terms and conditions of these Software as a Service (SAAS) Terms of Service. To the extent these Software as a Service (SAAS) Terms of Service conflict with the express terms of an Order Form, the terms of the Order Form will prevail.



SECTION 3. SUPPORT SERVICES; PROFESSIONAL SERVICES


Subject to Client’s payment of the Fees, during the Term, Balto shall provide Client, at no additional charge, with the Support Services described at Exhibit A. The Service will be available according to the service levels described in the Balto Software Service Level Agreement. In the event that Client requests software consulting and management services, information technology services, installation services, training services, or other professional services acceptable to Balto (“Professional Services”) then the Parties shall execute an Order Form or statement of work covering such Professional Services.

SECTION 4. FEES


4.1 Fees.  Client shall pay to Balto the Fees in the amount, at the times, and in the manner set forth in the Order Form . If Balto has not received payment within fifteen (15) days after the due date, interest shall accrue on past due amounts at the rate of one and one-half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Balto. Fees do not include any applicable taxes or duties, including, without limitation, state and local use, sales and property taxes and duties. Client is responsible for all taxes and duties incurred as a result of its purchase, license, use of, or access to the Service.


4.2 Forgiveness Days.  Pricing for the Service is based on the permitted maximum number of Agent Seats entitled to access the Service stated on the Order Form. In the event of a random spike in the number of Agent Seats above the permitted maximum Balto may, in its sole discretion, choose not to count this spike towards Client’s permitted maximum, for up to 14 consecutive forgiveness days. Balto will notify Client by email if Balto detects a random spike above the permitted maximum.


4.3 Overages. If Client’s number of Agent Seats exceeds the permitted maximum in any given month, not including forgiveness days described in Section 4.2, then Client shall agree to upgrade its permitted maximum number of Agent Seats to account for the overage in the prior month, and pay the related additional Fees on a prorated basis for the remainder of the Order Form term. Additional Fees will be calculated using the Monthly per User Fee listed on the Order Form.


SECTION 5. CLIENT OBLIGATIONS 


  1. Credential Security. Client shall be solely responsible for the security and confidentiality of any usernames or passwords granted to Client or its Authorized Users to access the Service, and shall limit disclosure of such usernames and passwords to its Authorized Users. Client shall be solely responsible for any authorized or unauthorized access to the Service using such usernames and passwords, and any actions taken thereunder. 


  1. Compliance with Laws. Client shall ensure that it and its Affiliates and Authorized Users use the Service only in accordance with applicable laws, including but not limited to all data privacy laws.


  1. Client Security Obligations. Client  shall comply with and shall cause its Affiliates and Authorized Users to comply with any applicable data and cybersecurity laws and regulations and use only secure methods, according to accepted industry standards, when transferring or otherwise making available Client Data to Balto, including compliance with PCI DSS if applicable and the implementation of complementary user entity controls (as described by Balto in written documentation provided to Client, available here). Client and its Affiliates and Authorized Users shall treat Balto’s information security policy and SOC 2 reports as Confidential Information under this Agreement.


  1. Prohibited Content. Client shall ensure that Client and all Authorized Users shall not, and shall not permit any third party to, distribute, upload, transmit, store, make available or otherwise publish or process through the Service any Client Data that: (a) is unlawful or encourages another to engage in anything unlawful; (b) is untrue, inaccurate, outdated or not current, (c) contains a virus or any other similar programs or software which may damage the operation of Balto’s or another’s computer; (d) violates the rights of any third party or infringes upon the patent, trademark, trade secret, copyright, or other intellectual property right of any third party; or, (e) is libelous, defamatory, obscene, invasive of privacy or publicity rights, abusing, harassing, fraudulent, misleading, or illegal. Client understands and agrees that Balto reserves the right to edit, modify or remove content being hosted by Balto, including for violations of the above standards. Client shall ensure that all Client Data is true and accurate at all times, and shall promptly update any such Client Data accordingly.


  1. Prohibited Use. Client shall ensure that Client and its Authorized Users shall not (a) use the Service for any conduct or activity that violates applicable law or for any illegal or unlawful purpose; (b) resell, distribute, or sublicense the Service or use any of the foregoing for the benefit of anyone other than Client or the Authorized Users; (c) use the Service to build or research a competing product or service; (d) interfere with, impair or disrupt the Service and related Balto systems; (e) introduce any virus or programming routine which is intended to or does disrupt or interrupt the use of the Service or Balto’s systems; or (f) reverse engineer or otherwise conduct research into the internal operations of the Service.



SECTION 6. TERM & TERMINATION


  1. Term. The initial term (the “Initial Term”) of this Agreement shall be as specified in the initial Order Form, unless terminated earlier pursuant to Section 6.2. Unless either Party provides notice in writing at least thirty (30) days before the last day of the Initial Term or then-current Renewal Term, as appropriate, that such Party does not wish to renew this Agreement, this Agreement will automatically renew for successive additional terms equal in length to the Initial Term or one year, whichever is greater (each, a “Renewal Term”) at Balto’s then-current pricing. The Initial Term and Renewal Term are referred to as the “Term.


  1. Termination . This Agreement may be terminated by either Party as provided in the Order Form. In addition, if a Party materially breaches this Agreement, the other Party may terminate this Agreement by giving thirty (30) days prior written notice, provided that the material breach set forth in such notice is not cured to the reasonable satisfaction of the nonbreaching Party within such thirty (30) day period.  


  1. Effect of  Termination. 


  1. Upon the termination or expiration of this Agreement for any reason: (i) Client’s license to use the Service shall terminate, (ii) Client shall cease, and shall cause its Affiliates and Authorized Users to cease, all access and use of the Service and any Balto Intellectual Property related thereto; and (iii) Client shall immediately return to Balto any Documentation and other Balto Intellectual Property in Client’s possession. 


  1. At any time following the termination or expiration of this Agreement, Balto may irrevocably delete any and all information associated with Client’s account, including Client Data. In addition, within ninety (90) days following the termination or expiration of this Agreement, Balto shall irrevocably delete Client Data to the extent required by applicable data protection laws.


  1. If this Agreement is terminated by Client due to an alleged breach by Balto pursuant to Section 6.2 (Termination) which Balto does not either contest or cure, then Balto shall refund the prepaid, unused Fees for the remainder of the Term.  


SECTION 7. LIMITED WARRANTY, DISCLAIMER, LIMITATION OF LIABILITY


  1. Limited Warranties. (a) Each Party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.  (b) Balto represents and warrants that when used in accordance with the Documentation the Service will perform substantially in accordance with the Documentation. Client’s sole and exclusive remedy for breach of this warranty in Subsection 7.1(b) shall be for Balto to correct the Service at its own expense so that it conforms to the warranty.


  1. Disclaimer. EXCEPT AS EXPLICITLY PROVIDED IN THE AGREEMENT, THE SERVICE AND ANY PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND. BALTO EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SUITABILITY OR NON-INFRINGEMENT. EXCEPT AS EXPLICITLY PROVIDED IN THE AGREEMENT, BALTO DOES NOT WARRANT AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS THAT THE SERVICE WILL MEET CLIENT’S REQUIREMENTS, THAT ACCESS TO OR OPERATION OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT RESULTS WILL BE TIMELY, ACCURATE, ADEQUATE OR COMPLETE. BALTO MAKES NO WARRANTY AND ASSUMES NO RESPONSIBILITY OR LIABILITY REGARDING ANY RELATIONAL DATABASE SERVICE OR SERVERS, OR ANY OTHER THIRD PARTY HARDWARE OR SOFTWARE WITH WHICH THE SERVICE COMMUNICATES OR OPERATES.


  1. Limitation of Liability. 


  1. Disclaimer of Indirect Damages. Except as stated in Section 7.3.3, neither Party shall be liable for any indirect, incidental, consequential, special, exemplary or punitive damages (including loss of use, data, business or profits) regardless of the theory of liability.


  1. Cap on Liability. Except as stated in Section 7.3.3 and except for each Party’s liability for damages related to claims that are the subject of indemnification under this Agreement, neither Party shall be liable for aggregate damages in excess of the fees paid or payable by Client under this Agreement during the twelve months prior to the event giving rise to liability, regardless of the theory of liability. Each Party’s total liability for damages related to claims that are the subject of indemnification under Section 8 (Indemnification) shall not exceed three times the fees paid or payable by Client under this Agreement during the twelve months prior to the event giving rise to liability.


  1. Exclusions. The limitations of liability set forth in Sections 7.3.1 and 7.3.2 do not apply to either Party’s gross negligence, intentional misconduct, or where not permitted by law. The limitations of liability set forth in Section 7.3.2 do not apply to either Party’s liability for misappropriation of the other Party’s intellectual property.


  1. Independent Allocation of Risk. The limitations and exclusions of this Section apply even if the liable Party has been advised of the possibility of such damages, even if the damages were foreseeable and even if a limited remedy fails of its essential purpose. Each provision of this Agreement that provides for a disclaimer of warranties, exclusion of damages or limitation of liability is to allocate the risks of this Agreement between the parties. This allocation of risk is reflected in the pricing offered by Balto to Client and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. If applicable law limits the application of the provisions of this Section, then the limitations will apply to the maximum extent permissible. 

 

SECTION 8. INDEMNIFICATION


  1. By Balto


  1. Defense. Balto will, at its expense, either defend Client from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Client alleging that Client’s use of the Service infringes or misappropriates such party’s valid U.S. copyright or U.S. patent issued as of the date of an applicable Order Form, if: (a) Client gives Balto prompt written notice of the Claim; (b) Client grants Balto full and complete control over the defense and settlement of the Claim; (c) Client provides assistance in connection with the defense and settlement of the Claim as Balto may reasonably request; and (d) Client complies with any settlement or court order made in connection with the Claim (for example, relating to the future use of any infringing Service). Client will not defend or settle any Claim without Balto’s prior written consent. Client will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Balto will have sole control over the defense and settlement of the Claim; provided that Balto may not agree without Client’s prior consent (not to be unreasonably withheld) to any settlement that imposes any obligations upon or admits any wrongdoing on the part of Client. 


  1. Indemnification. Balto will indemnify Client from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Client in any Claim under Section 8.1.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Client in connection with the defense of a Claim under Section 8.1.1 (other than attorneys’ fees and costs incurred without Balto’s consent after Balto has accepted defense of the Claim); and (c) all amounts that Balto agrees to pay to any third party to settle any Claim under Section 8.1.1. In addition to its indemnity obligations described in this Subsection, in the event of any Claim of infringement or misappropriation, Balto may, at its option: (i) obtain a license to permit Client the ability to continue using the Service; (ii) modify or replace the relevant portion(s) of the Service with a non-infringing alternative; or (iii) terminate this Agreement by providing notice to Client.


  1. Exclusions from Obligations. Balto’s indemnity obligation does not extend to any claims arising out of or related to: (i) a combination of the Service with products or services not provided by Balto, (ii) Client’s (including its officers, directors, employees, and agents) use of the Service in breach of this Agreement or (iii) Client Data or De-Identified Data. 


  1. Limited Remedy. The provisions of this Section set forth Balto’s sole and exclusive obligations and Client’s sole and exclusive remedy with respect to actual or alleged infringement of third-party Intellectual Property rights by the Service.


  1. By Client


  1. Defense. Client will, at its expense, either defend Balto (and its officers, directors, employees and agents) from or settle any claim, suit, or proceeding brought by a third party (a) alleging that the Client Data infringes the intellectual property rights or other rights of a third party or has caused harm to a third party; or (b) arising out of Client or Authorized Users’ violation of Section 5 (Client Obligations), if: (i) Balto gives Client prompt written notice of the Claim; (ii) Balto grants Client full and complete control over the defense and settlement of the Claim; (iii) Balto provides assistance in connection with the defense and settlement of the Claim as Client may reasonably request; and (iv) Balto complies with any settlement or court order made in connection with the Claim. Balto will not defend or settle any Claim without Client’s prior written consent. Balto will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Client will have sole control over the defense and settlement of the Claim; provided that Client may not agree without Balto’s prior consent (not to be unreasonably withheld) to any settlement that imposes any obligations upon or admits any wrongdoing on the part of Balto. 


8.2.2 Indemnification. Client will indemnify Balto from and pay: (a) all damages, costs, and attorneys’ fees finally awarded against Balto in any Claim under Section 8.2.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Balto in connection with the defense of a Claim under Section 8.2.1 (other than attorneys’ fees and costs incurred without Client’s consent after Client has accepted defense of the Claim); and (c) all amounts that Client agrees to pay to any third party to settle any Claim under Section 8.2.1. 


SECTION 9. CONFIDENTIALITY


  1. Definition. “Confidential Information” means: (a) in the case of Client, all Client Data, and (b) in the case of Balto, trade secrets, know-how, any and all non-public features of the Service including, without limitation, the pricing plans and features, the Order Form, and all pages and materials on the Balto website that are accessible only after logging in. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in receiving Party’s possession at the time of disclosure without an obligation of confidentiality; (ii) is independently developed by receiving Party without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of wrongdoing by receiving Party; or (iv) is approved for release in writing by disclosing Party.


  1. Confidentiality Restrictions. Receiving Party shall not use Confidential Information for any purpose other than to provide, facilitate, access or use the Service as allowed under this Agreement. Receiving Party shall not disclose Confidential Information: (a) to any employee or contractor of receiving Party unless such person needs access in order to provide, facilitate the access or use the Service and is subject to a nondisclosure agreement with receiving Party; or (b) to any other third party without disclosing Party’s prior written consent, or as expressly permitted under this Agreement.  Receiving Party shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care.  With respect to each item of Confidential Information, the obligations of this Subsection will continue for five years after the date of disclosure, except that confidentiality obligations related to trade secrets shall continue in perpetuity.


  1. Exceptions. Notwithstanding the provisions of Subsection 9.2, receiving Party may disclose Confidential Information to the extent required by applicable law or by proper legal or governmental authority, provided that receiving Party shall, to the extent allowed by law, give disclosing Party prompt notice of any such legal or governmental demand and reasonably cooperate with disclosing Party in any effort to seek a protective order or otherwise to contest such required disclosure by lawful means, at disclosing Party’s expense.


SECTION 10. CLIENT DATA


  1. Ownership; License. The Service involves the receipt, processing, hosting and storage of Client Data. Client retains all Intellectual Property Rights and all right, title and interest in the Client Data. Client grants to Balto a revocable, limited, non-exclusive, non-transferable (subject to Section 11.2), right and license to host, copy, transmit, display and otherwise use the Client Data solely as necessary: (a) for Balto to perform its obligations under this Agreement, and (b) to derive De-Identified Data for the improvement of the Service and Balto’s other products and services (as may exist now or in the future). 


  1. Client Warranty. Client represents and warrants that Client owns or has the necessary licenses, rights, consents, and permissions to use and to authorize Balto to use, host, copy, transmit and display Client Data in the manner contemplated under this Agreement.


  1. Accuracy. All Client Data originates from Client and its Affiliates and Authorized Users, and as such, is not in the control of Balto. Balto does not initiate the uploading or input of Client Data to the Service and does not monitor the content or accuracy of the Client Data. Without limiting the generality of any other provision of this Agreement, Balto shall have no responsibility or liability related to the accuracy, content, currency, completeness or delivery of the Client Data. Client is responsible for the accuracy, content, currency, completeness, and delivery of the Client Data. 


  1. Backup. The Service is a productivity tool, not a backup system. Client understands that it is Client’s responsibility to backup its Client Data in the manner and at intervals of its choosing, and that Balto does not have the obligation to maintain copies or backups of Client Data.


  1. Balto Security Obligations. Balto will employ reasonable security measures to protect Client Data in accordance with accepted industry standards and Balto’s applicable information security policy as amended from time to time, which will be provided to Client upon written request.  If, in the course of its performance under this Agreement, Balto possesses or otherwise stores, processes, or transmits credit, debit, or other payment cardholder information on Client’s behalf, Balto will comply with PCI-DSS requirements, as applicable.


SECTION 11. GENERAL PROVISIONS


  1. Relationship of the Parties. The relationship of Balto and Client established by this Agreement shall be solely that of independent contractors, and nothing herein shall create or imply any other relationship. Balto does not grant Client or any of Client’s representatives the power or authority to make or give any agreement, statement, representation, warranty or other commitment on behalf of Balto, or to enter into any contract or otherwise incur any liability or obligation, express or implied, on behalf of Balto, or to transfer, release or waive any right, title or interest of Balto. Balto shall have the right to determine the method, details, and means of performing any services pursuant to this Agreement. 


  1. Assignment. Except for an assignment to an Affiliate, this Agreement and any Order Form may not be assigned by either Party without the prior written approval of the non-assigning Party, provided that Balto may assign this Agreement along with any Order Forms to (a) an acquirer of all or substantially all of Balto’s assets involved in the operations relevant to this Agreement; or (b) a successor by sale, merger, acquisition, recapitalization, reorganization or other combination. Any purported assignment in violation of this Section will be void. This Agreement and applicable or any Order Forms may be enforced by and are binding on permitted successors and assigns.


  1. Entire Agreement; Modification. This Agreement, including any Order Form, exhibits and schedules hereto and any separate support and maintenance agreement between the Parties, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, both oral and written, with respect to the subject matter hereof. Except as otherwise provided herein, no amendment or modification of this Agreement or any exhibit or schedule shall be effective unless in writing and signed by the Parties to be bound. In the event any provisions contained in a separate support and maintenance agreement, exhibit, or schedule hereto expressly conflict with any terms, conditions or clauses contained in this Agreement, the provisions of such separate agreement, exhibit, or schedule shall govern to the extent such provisions expressly conflict. No use of trade or other regular practice or method of dealing between the Parties shall be used to modify, interpret, supplement or alter in any manner the terms of this Agreement.


  1. Attorneys’ Fees. In the event of a breach of this Agreement, the breaching Party will reimburse the non-breaching Party for all costs and expenses reasonably incurred by the non-breaching Party in connection with the breach, including, without limitation, attorneys’ fees. Additionally, in the event any suit or action is brought to enforce or interpret any of the terms of this Agreement, the prevailing Party will be entitled to recover from the other Party all reasonable attorneys’ fees incurred at trial, on appeal, and on any petition for review, together with such other expenses, costs, and disbursements as may be allowed by law.


  1. Governing Law; Venue. This Agreement shall be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Missouri, without reference to its conflicts or choice of law principles. The Parties agree that the sole and exclusive jurisdiction and venue for any and all disputes arising under this Agreement shall be in any court located in or having jurisdiction over St. Louis City, Missouri. Each of the Parties hereby irrevocably submits and consents to the personal jurisdiction of such courts.


  1. Force Majeure. Neither Party will be liable for any delay in performing its obligations (other than payment of money) if the delay is caused by any event beyond the reasonable control of the Party, including, without limitation, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, material or products shortages, labor disturbances, epidemic, disruption or slow speed of the Internet, breakdowns of security or introduction of computer viruses (and the like) by third parties, any manufacturer or supplier delay in delivery or non-delivery, governmental action, terrorist attack or other similar event. 


  1. Compliance with Export Laws. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Service. Without limiting the foregoing, Client warrants and represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and Client shall not use, export or re-export the Service in violation of any U.S. export embargo, prohibition or restriction. Client shall promptly provide notice to Balto if this warranty and representation is no longer accurate.


  1. Severability. If any term or provision of this Agreement shall be held to be invalid, illegal or unenforceable, the remaining terms and provisions of this Agreement shall remain in full force and effect, and such invalid, illegal or unenforceable term or provision shall be deemed not to be part of this Agreement.


  1. Publicity. Client grants Balto the right to refer to the name of Client in Balto’s customer listings, on its websites, and in marketing brochures, and press releases.


  1. Notice and Communications. Each party will send notices made pursuant to this Agreement in writing by postal delivery or a reputable international courier service, in either case with all postage and delivery fees pre-paid and a delivery confirmation required, to the address provided for such party on an applicable Order Form, or to such updated address as the party provides by notice in accordance with this Subsection.  Notice will be deemed given when actually received by the other party, or when delivery is refused.  Client questions or communications regarding Balto, the Service, or this Agreement can be sent to support@balto.ai but will not serve as notice under this Agreement.


  1. Survival. Provisions of this Agreement that by their nature are intended to survive will continue to apply in accordance with their terms, including, without limitation, the terms and provisions of Sections 1, 2.3, 4 and 6 - 11.


  1. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

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