Terms and Conditions of Use

THESE TERMS OF USE GOVERN THE SERVICES (INCLUDING DATA, INFORMATION AND OTHER RESULTS OF THE SERVICES) (THE “SERVICES”) PROVIDED BY KOUNT INC. (“KOUNT”) AN AFFILIATE OF EQUIFAX ENTERPRISE SERVICES LLC (“EQUIFAX”), TO THE ENTITY ORDERING THE SERVICES (“CLIENT”). THIS “AGREEMENT” MEANS THESE TERMS AND CONDITIONS OF USE.

BY ACCEPTING THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND THE ENTITY ORDERING THE SERVICES. YOU, AS AN AUTHORIZED AGENT OF THE ENTITY ORDERING THE SERVICES, MUST ACCEPT THE TERMS OF THIS AGREEMENT, INCLUDING THE WAIVER TO A JURY TRIAL CONTAINED IN SECTION 15 BELOW, BEFORE YOU WILL BE PERMITTED TO REGISTER FOR AND PURCHASE ANY SERVICES. BY CLICKING ‘APPROVE’ YOU ARE SUBMITTING YOUR ORDER FOR THE SERVICES AND ARE ACKNOWLEDGING ELECTRONIC RECEIPT OF, AND YOUR AGREEMENT TO BE BOUND BY, THIS AGREEMENT. YOU ALSO AGREE TO BE BOUND BY THIS AGREEMENT BY USING OR PAYING FOR OUR PRODUCTS OR TAKING OTHER ACTIONS THAT INDICATE ACCEPTANCE OF THIS AGREEMENT.

By approving your subscription to Kount 360 you are agreeing to:

Scope.

The “Services” consist of the payments fraud service(s) provided by Kount to Client and includes: (a) all output returned from use of the Services, including the scores, flags, reason codes, reports, risk control opinions, authorization codes, outcome information, and similar results (each an “Indication”); (b) summary, statistical or other reports such as those generated by Kount (each a “Report”); (c) the most current technical manuals, instructions, user guides and other written materials, whether in printed or electronic form, generally made available to customers to facilitate proper use of the Services (“Documentation”); and (d) any support, professional services, training or other Services listed on an applicable Ordering Document.

License.

Subject to Client’s compliance with the terms of this Agreement, Kount grants to Client and Client receives a limited, non-transferrable, non-exclusive, revocable license to access and use the Services within the Permitted Territory (defined below) for the sole purpose of fraud prevention and not for any other purpose.

Configuration.

Upon Client’s approval and acceptance of this Agreement, Client will be provided with the standard configuration of the Services. Each party will be responsible for all configuration, hosting and other costs associated with the pages residing on their respective servers. Kount shall have no responsibility or liability for the performance of the Services in the event that the Services are not used in accordance with this Agreement or the Documentation or are modified or interfaced with hardware, software or data not provided by Kount.

Access.

The Services will be installed and operated on equipment and locations approved by Kount. The methods of access to the Services are subject to change from time to time. Client is be solely responsible for, and Kount will have no liability in connection with, the security of any equipment or software of Client or Client’s Authorized Users. Client is responsible for identifying and authenticating its Authorized Users, approving access to the Services by such Authorized Users, controlling against unauthorized access, maintaining the confidentiality of all login IDs, passwords and other access codes, and for all activities that occur under its and its Authorized Users’ all login IDs, passwords and other access codes or as a result of Client’s or its Authorized Users’ access to the Services. If Client learns of an unauthorized third party having obtained knowledge of a password for or accessing the Services, Client shall inform Kount thereof immediately and promptly change applicable passwords. The term “Authorized User” means a Client employee that Client has authorized to order or access the Services and who is trained on Client’s obligations under this Agreement with respect to the ordering and use of the Services.

Fees, Payment, and Taxes.

The rates, surcharges, expenses, and other fees (collectively, the “Fees”) for the Services are as follows:

Changes to Products, Pricing and Terms; Termination.

  1. Kount reserves the right from time to time to (and Client acknowledges and agrees that Kount may): (i) modify or release subsequent versions of the Services, may discontinue the Services, or provide substitute Services; (ii) modify or discontinue the features and functionality of the Services; and (iii) add or modify license keys, authorizations or other means of controlling access to or use of the Services. Kount will endeavor to inform Client of major changes to the Services. Client is responsible for migrating to such new Services prior to communicated deadlines.
  2. Kount may change the prices for the Services at any time. Kount will provide Client with at least 15 days’ notice of any price increase and Client will be charged the new price beginning on the date indicated by Kount. If Client does not accept the price increase, Client must cancel the Services within 15 days of when Kount provided notice.
  3. Kount may amend this Agreement at any time. When Kount amends this Agreement, Kount will send notice altering Client that the Agreement has been amended. Client’s continued use of the Services or payment for the Services constitutes Client’s acceptance of the amended Agreement. If Client does not accept the amended Agreement, Client must cancel the Services within 15 days of when Kount provided notice.
  4. This Agreement shall remain in effect as long as Client is using the Services.
  5. Kount may immediately terminate this Agreement or suspend provision of any Services at any time and for any reason. Kount will provide written notice of such termination or suspension as far in advance of the effective date as is reasonably practicable under the circumstances.
  6. Client may terminate this Agreement at any time by uninstalling the Kount 360 App from its Shopify dashboard.
  7. Upon termination of this Agreement for any reason, Client shall pay Kount the Fees for all Services rendered. If Client desires to reinstate its account, Client may be charged a reactivation fee. Additionally, accounts terminated for non-payment will be reactivated only on receipt of the full amount past due and Client’s written request to reinstate the account. When a terminated account is reinstated, the new term begins on the date of reinstatement.
  8. Upon termination of this Agreement or any licenses granted thereunder, a party shall, upon a written request by the other party, destroy the other party’s Confidential Information (as defined below).

No Guarantee.

Client acknowledges and agrees that the Services do not guarantee the identity of any individual or customer (each an “ID Subject”). Rather the Indications represent a combination of factors that refer to an individual’s possible identity that is derived, in part, from information collected by Kount through deployment and/or integration of the Services on and/or into Client’s website(s) and the input information submitted to the Services by Client or on its behalf (collectively, an “Inquiry”). Client agrees that Indications are only one factor the Client may consider and that the Indications are intended to enhance, not replace, Client’s risk control procedures. Client agrees that it will not rely solely on the Indications to control fraud and that it will validate Indications as required by applicable law.

Risk Decisioning.

In connection with certain Services, Client may establish a threshold above which the ID Subject is verified / authenticated, and/or below which the ID Subject is not verified / authenticated (“Risk Decision Threshold”). Kount may act as a consultant to review Client’s risk strategies, however, Client in its sole discretion, will set its Risk Decision Threshold(s); and depending upon its Risk Decision Threshold, an ID Subject may be able to successfully pass verification / authentication even though the individual about whom the Inquiry relates is not the actual individual to whom the Inquiry pertains. Client is solely liable and responsible for setting the Risk Decision Threshold and Kount will have no liability in any manner or amount for any damages of any kind that result from the setting of the Risk Decision Threshold.

Processing Locations.

For the purposes of this section, “Processing” means accessing (including access to view), transmitting, using, or storing the Services. Client may Process the Services from the United States, United Kingdom, European Union, Latin America (with the exception of Venezuela and Cuba), Canada, and the United States territories of American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands (collectively, the “ Permitted Territory”). Client must notify Kount thirty (30) days prior to Processing the Services from a location outside of the Permitted Territory. Kount reserves the right to deny any such request for any reason including, without limitation, regulatory requirements, security concerns, or existing contractual obligations. Notwithstanding the foregoing, Client is prohibited from Processing the Services from an Embargoed Country. “Embargoed Country” means any country or geographic region subject to comprehensive economic sanctions or embargoes administered by OFAC or the European Union.

Client Representations.

Client represents and warrants that at all times that it accesses or uses the Services that:

  1. Client shall use the Services exclusively within Client’s own organization for the purpose of fraud prevention and for no other purpose and that it shall use and ensure that its Authorized Agents and authorized Service Providers access the Services in accordance with the terms of the Master Agreement and not for personal purposes.
  2. Client shall use the Services, including the transmission of Inquiries to Kount, in a manner that: (i) complies with all applicable federal, state and local laws, rules, regulations and ordinances, including those governing privacy, data protection, fair information practices, public records, marketing to consumers and consumers’ rights to privacy; (ii) does not, in any way or for any purpose, infringe or violate any intellectual or proprietary rights, publicity, privacy, confidentiality, contractual or other rights; (iii) is not defamatory, libelous, harmful to minors, obscene, pornographic, unlawfully threatening or unlawfully harassing.
  3. Client shall not use or take into consideration the Services, Indications or Reports, including any part of information or data provided therewith, as a factor in establishing, determining or in connection with, an individual’s eligibility for personal credit, insurance, employment or any other permissible purpose for which a consumer report may be used under the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.), as amended, and all regulations promulgated thereunder (“FCRA”) or use the Services in any way for the purpose of taking “adverse action” against a consumer, as defined in the Equal Credit Opportunity Act and Regulation B. Client shall not provide Kount with any Protected Health Information (as that term is defined in 45 C.F.R. Sec. 160.103) or with Electronic Health Records or Patient Health Records (as those terms are defined in 42 U.S.C. Sec. 17921(5), and 42 U.S.C. Sec. 17921(11), respectively) (collectively, “HIPAA”) or with information from such records. Client acknowledges and stipulates that neither any Indication nor any Report constitutes, includes, reflects, or incorporates any “consumer report” (as defined in FCRA), any credit reference, or any “individually identifiable healthcare information” or “protected healthcare information” (as defined in HIPAA).
  4. Client shall not share or permit the use of the Services, in whole or in part, with any party other than Client’s Authorized Users and authorized Service providers, including, but not limited to, Client’s parent, affiliates, subsidiaries, contractors, service providers, joint marketing partners, without the prior written consent of Kount. In the event Kount provides such consent, Client shall remain responsible to Kount for the actions of such parties and shall be fully liability for any expenses or damage resulting from publishing or disclosing Kount Information.
  5. Client shall not (i) access or use or allow the access or use of the Services from Internet Protocol addresses located outside of the Permitted Territory regardless of whether such use or access is by off-shore Authorized Agents or authorized Service Providers of Client or an off-shore department or division of Client, or (ii) export or permit the export of the Services or Documentation outside of the Permitted Territory except as may be allowed by Kount in writing and then only in compliance with applicable law.
  6. Client shall ensure that its connection or transmission to the Services is free of bugs, viruses, “time-bombs” or other functions, routines, devices or instructions that may create or allow unauthorized access to or interruption of the Services.
  7. Client shall not (i) sell, convey, license, sublicense, copy, commingle, archive, reproduce, display, publish, disclose, distribute, disseminate, transfer, use or otherwise make available the Services or Documentation, or any portion thereof, in any manner or by any means other than as expressly permitted in this IFS Schedule and applicable Ordering Document; (ii) reverse engineer, decompile, modify in any manner or create derivative works from the Services or Documentation, except to the extent expressly permitted by applicable law, notwithstanding a contractual obligation to the contrary; (iii) interface or connect the Services with any other computer software or system without the prior written approval of Kount; (iv) remove or alter any copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in the Services or (v) use the Services for marketing purposes or resell, license or broker the Services to any third party.

Service Providers.

Kount consents to Client’s use of third party web hosts or web integrators, so long as Client remains fully responsible for such third party as if it were performing the work itself. Kount reserves the right to deny Client’s use of a third party, including a cloud service provider, to process, transmit, or store the Services (each, a “ Service Provider”) for any reason including, without limitation, regulatory requirements, security concerns, existing contractual obligations or failure of such Service Provider to execute such agreements with Kount as Kount may require. Client will monitor Service Providers to ensure compliance with the security requirements of this Agreement. Notwithstanding anything to the contrary herein, Client will at all times be responsible for and remain liable to Kount for any and all damages of any kind or nature whatsoever that may arise from or relate to the acts or omissions of Service Provider. Client acknowledges and agrees that Client is solely responsible for compensating Service Provider for the services Client engages such Service Provider to provide.

Intellectual Property Ownership.

  1. Kount and its data providers and suppliers retain all ownership rights in the Services and their offerings, technology, methods, processes, software, know-how, data, and all rights therein (collectively, the “Kount Property”). Kount Property includes, and Kount and its data providers and suppliers own all rights, title, and interest in, and to, any and all: (a) derivatives and customizations of, and improvements and extensions to, the Kount Property; and (b) deliverables that are based on, relate to, or include any Kount Property or Kount Confidential Information. In relation to the Services, Kount Property also includes: without limitation, any and all: (a) Indications, Reports, and any transaction number generated by the Services with each transaction; and (b) data and information regarding access to and use of the Services including access to and usage of features, functions, storage and indexes and information regarding usage, volume, type, storage and processing of an Inquiry, but not Inquiry itself (“Metrics”). Further, Kount and its data providers and suppliers retain the right to use Residuals in their business, but such right does not include a license to disclose Client Confidential Information in violation of the Agreement. “Residuals” mean general ideas, concepts, knowledge, skills, expertise, know-how and techniques relating to data processing, software, computer and other services related to the Services, including the software and attendant documentation, that are retained in the minds of personnel. Client has only the rights expressly granted to Client under the Agreement. All rights not expressly granted are reserved by Kount.
  2. Client hereby grants to Kount (and its designees) the perpetual right to use, reproduce, modify, store, disclose and make derivatives of the Inquiries for any lawful purpose including, without limitation: (i) in connection with the operation of the Services and improvements thereto, (ii) for analytic, statistical, security, quality control, research and development, and similar purposes associated with the Services, fraud prevention efforts, and any other lawful purpose, including marketing; (iii) the development of other products and services and (iv) in connection with legal-related obligations, enforcement actions and proceedings, investigations and fraud prevention efforts.
  3. Kount may convert Personal Data to Digest Form and Kount shall retain all ownership, interest, and title in and to the Digest Form. “Digest Form” means any hashed or encoded representations of Personal Data that have been aggregated and/or anonymized so that the individual to which it relates can no longer be identified and that cannot be reversed or otherwise manipulated to become Personal Data.

Data Protection and Compliance with Regulations.

If and to the extent that the Services require Kount to process Personal Data on behalf of Client, the K360 Shopify Data Protection Addendum (“DPA”) is hereby incorporated into and made a part of this Agreement.

Confidentiality.

Except as set forth in a Schedule or Ordering Document, each party acknowledges and agrees that all materials and information disclosed by a party (“Discloser”) to the other party ("Recipient") in connection with the performance of this Agreement including, but not limited to, the terms of this Agreement, discussions relating to potential or future business opportunities, pricing terms, service descriptions, and marketing materials, consist of confidential and proprietary data (collectively, the “Confidential Information”). Transactional information and information reported to Kount to be included in Kount’s credit reporting systems or databases shall be considered Confidential Information of Kount. Recipient will hold the Confidential Information in strict confidence and will restrict its use of Confidential Information to the purposes set forth in this Agreement. Recipient will not be obligated to hold confidential any information from Discloser which: (a) is or becomes publicly known; (b) is rightfully received by Recipient from a third party without a duty of confidentiality; (c) was already known to Recipient prior to the disclosure and that knowledge was evidenced in writing prior to the date of Discloser’s disclosure; or (d) is developed by Recipient without using any of Discloser’s information. If the law, legal process, federal or state regulators, or government administrative agencies requires Recipient to disclose Confidential Information, Recipient will notify Discloser of the request unless prohibited from providing such notification. The rights and obligations of this section: (i) with respect to confidential and proprietary data that includes a “trade secret” (as defined by applicable law), will survive termination of this Agreement for so long as such Confidential Information remains a trade secret under applicable law; and (ii) with respect to all other Confidential Information, will survive the termination of this Agreement for the longer of two (2) years from termination of this Agreement or the confidentiality period required by applicable law. Each party acknowledges that any unauthorized disclosure or use of the Confidential Information by a party may irreparably damage the other party in such a way that adequate compensation could not be obtained from damages in an action at law. Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give Discloser the right to seek injunctive relief restraining such unauthorized disclosure or use, in addition to any other remedy otherwise available (including reasonable attorneys’ fees). Each party hereby waives the posting of a bond with respect to any action for injunctive relief.

Client Security.

Client maintains an information security program ("Program") that includes appropriate administrative, technical and physical safeguards (collectively, "Controls") reasonably designed to: (i) ensure the security and confidentiality of the Services; (ii) protect against any anticipated threats or hazards to the security or integrity of such information; (iii) protect against unauthorized access to or use of such information; and (iv) dispose of the information from the Services in a secure manner. Client's Program has been developed in alignment with commercially recognized frameworks. Client agrees that it will maintain the Program throughout the term of the Agreement, and that the Program includes written documentation of the Controls. Client will monitor compliance with the obligations of this Section, and will immediately notify Kount if Client suspects or knows of any unauthorized access or attempt to access the Services.

Reviews.

Kount may review Client's practices and procedures including, without limitation, any relevant documentation, to determine Client's compliance with this Agreement. Client shall promptly provide Kount with copies of all requested documents and records. If Kount reasonably believes a compliance issue exists, Kount or its designated representative may enter Client’s facilities, upon at least five (5) business days prior written notice and at a mutually agreed upon time, to conduct an on-site assessment of Client’s practices and procedures relating to Client’s request for, and use of, the Services and Client’s security practices with respect thereto.

Disclaimer.

Client shall employ decision-making processes appropriate to the nature of the transaction and in accordance with industry standards, and Client will use the Services only for the purposes set forth in this Agreement. Client is solely responsible for all results of its use of the Services. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, ALL SERVICES ARE PROVIDED BY EQUIFAX ON AN “AS-IS,” AS-AVAILABLE BASIS, AND EQUIFAX AND ITS DATA PROVIDERS AND SUPPLIERS HEREBY DISCLAIM ANY AND ALL PROMISES, REPRESENTATIONS, GUARANTEES, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITH RESPECT TO THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OF THE SERVICES. IN NO EVENT WILL EQUIFAX OR ITS DATA PROVIDERS AND SUPPLIERS BE LIABLE TO CLIENT FOR ANY LOSS OR INJURY RELATING TO, ARISING OUT OF, OR CAUSED IN WHOLE OR IN PART BY, ITS ACTS OR OMISSIONS, EVEN IF NEGLIGENT, RELATING TO THE ACCURACY, CORRECTNESS, COMPLETENESS, OR CURRENTNESS OF THE SERVICES. EQUIFAX’S SOLE OBLIGATION AND CLIENT’S SOLE REMEDY UNDER THIS AGREEMENT IS THE CORRECTION OF ANY ERRORS IN THE EQUIFAX SERVICES THAT ARE MADE KNOWN TO EQUIFAX BY WRITTEN NOTICE FROM CLIENT DESCRIBING SUCH ERRORS IN DETAIL; PROVIDED, HOWEVER, CLIENT ACKNOWLEDGES THAT SOME CORRECTIONS OF ERRORS SHALL BE DEPENDENT ON THE AVAILABILITY OF THE SAME FROM THE SOURCE OF THE APPLICABLE DATA

Indemnification.

  1. Client will indemnify, defend, and hold harmless Kount and its Affiliates and their respective directors, officers, and employees from, and against, any loss, damage, cost, liability, and expense (including reasonable attorneys’ fees) (collectively, “Losses”), arising from or relating to the investigation, defense, settlement, or satisfaction of claims or causes of action alleged, or asserted by, a third party to the extent arising out of or relating to: (i) the use of the Services by Client in any manner other than as expressly permitted in this Agreement; (ii) the use, operation, or combination of the Services with software, data, equipment, specifications, or materials not provided by Kount; (iii) any breach by Client of the sections of this Agreement relating to confidentiality, data security, or compliance with laws; (iv) any personal injury or death, or damage to, or loss of, tangible property to the extent caused by Client’s wrongful acts; and (v) Client’s willful misconduct.
  2. Kount shall indemnify, defend, and hold harmless Client and its Affiliates, and their respective directors, officers, and employees from, and against, any Losses arising from or relating to the investigation, defense, settlement, or satisfaction of claims or causes of action alleged, or asserted by, a third party to the extent arising out of or relating to: (i) any breach by Kount of the sections of this Agreement relating to confidentiality or compliance with laws; (ii) any personal injury or death, or damage to, or loss of, tangible property to the extent caused by Kount’s wrongful acts; (iii) Kount’s willful misconduct; and (iv) subject to the requirements of subsection(c) below, any claim that the Services, when used for their intended purposes, infringe any United States patent or copyright in effect as of the date of this Agreement (an “Infringement Claim”).
  3. Should all or any part of the Services become, or in Kount’s opinion be likely to become, the subject of an Infringement Claim, then Client will permit Kount, at Kount’s option and expense, to either: (i) procure for Client the right to continue using the Services; (ii) replace or modify the Services so that Client’s use becomes non-infringing, without materially impairing the functionality of the Services; or (iii) terminate Client’s use of the Services. Upon any such termination, Kount shall return to Client a prorated amount of any Fees prepaid by Client with respect to the affected Services for the period after such termination takes effect. Kount’s obligations shall not apply with respect to an Infringement Claim which arises from any of the following: (1) the use of the Services in a manner other than as permitted in this Agreement or as otherwise designed or intended; (2) use of the Services in a manner other than as specified in the product guidelines or specifications, installation instructions, operating instructions, on-line help, or other similar items describing the capabilities of, or instructions for, the Services that Kount generally makes available to Client; (3) any modification of, or connection to, the Services not authorized by Kount; (4) the use, operation, or combination of the Services with software, data, equipment, or materials not provided by Kount; (5) Client’s continuance of allegedly infringing activity after being informed of the infringement and provided with modifications that would avoid the alleged infringement; or (6) materials, data, information, directions, or specifications provided by, or on behalf of, Client to Kount.
  4. An indemnifying party will provide indemnification only if: (i) the indemnified party notifies the indemnifying party promptly upon learning that the claim might be asserted, provided that failure to timely provide such notice shall not diminish the indemnifying party’s indemnification obligations except to the extent the indemnifying party’s ability to defend such claim is materially prejudiced by such failure or delay; (ii) the indemnifying party has sole control over the defense of the claim; and (iii) the indemnified party provides the indemnifying party with all reasonable assistance, information, and authority necessary for the indemnifying party to fulfill its obligations pursuant to this section. The indemnifying party will have the right to consent to the entry of judgment with respect to, or otherwise settle, an indemnified claim without the prior written consent of the indemnified party so long as the judgment or settlement does not impose any unreimbursed monetary or continuing non-monetary obligation on the indemnified party, does not contain an admission of guilt or liability, and includes an unconditional release of the indemnified party.

Damages Exclusions and Limitation of Liability.

IN NO EVENT WILL EQUIFAX BE LIABLE TO CLIENT UNDER ANY THEORY OR CIRCUMSTANCE FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, NOR SHALL EQUIFAX’S AGGREGATE LIABILITY UNDER THIS AGREEMENT DURING ANY TWELVE (12) MONTH PERIOD, FOR ANY AND ALL CLAIMS ARISING OUT OF, OR RELATED TO, THE SERVICES, EXCEED THE AMOUNT ACTUALLY RECEIVED BY EQUIFAX FROM CLIENT FOR THE SERVICE CONNECTED WITH THE EVENT WHICH GAVE RISE TO LIABILITY DURING SUCH TWELVE (12) MONTH PERIOD.

Compliance with Laws.

Each party will comply with applicable federal and state laws, rules, and regulations relating to such party’s performance of its obligations under this Agreement including, but not limited to, those applicable to consumer financial protection and fair lending. In addition, neither party shall engage in any unfair, deceptive, or abusive acts or practices.

Assignment.

Kount may assign this Agreement or any rights or obligations under this Agreement. Otherwise, neither this Agreement, nor any rights or obligations under it, may be assigned by Client without the written consent of Kount. Any merger, acquisition, or other reorganization of Client shall constitute an assignment for the purposes of this section.

Notices.

Notices required to be in writing pursuant to this Agreement must be delivered to Kount at 1550 Peachtree Street N.W., Atlanta, Georgia 30309; Attention: Legal Department, and to Client via invoice or at the address specified in writing by Client. All notices pursuant to this Agreement will be deemed given on the date of delivery if by a nationally recognized overnight courier or by certified mail, return receipt requested, or on the third (3rd) business day following the date on which such notice is mailed if by registered mail. Notice to a party to this Agreement will serve as sufficient notice to all of such party’s Affiliates.

Waiver of Jury Trial.

EACH PARTY AGREES TO WAIVE AND HEREBY WAIVES THE RIGHT TO TRIAL BY JURY OF ANY ACTION, SUIT, PROCEEDING, DISPUTE, CLAIM, OR CONTROVERSY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES.

Miscellaneous.

Kount may use Client’s name and logo in its marketing materials and case studies and may identify Client as a customer. This Agreement will be governed by the internal laws (but not the conflicts laws) of the State of Georgia. This Agreement sets forth the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements and understandings whether written or oral with respect to the Services provided pursuant to this Agreement. This Agreement may only be modified as set forth herein or by a written document executed by both parties. In the event any provision of this Agreement is found by an authorized authority to be unenforceable, the remaining provisions of this Agreement shall survive and remain in full force and effect, and any unenforceable provision shall, to the extent legally permitted, be replaced by an enforceable provision that comes closest to the parties’ intent underlying the unenforceable provision. Neither party will be liable to the other party by reason of any failure or delay of performance, whether foreseen or unforeseen, hereunder (except failure to pay any amount when due) if such failure arises out of causes beyond the non-performing party’s reasonable control including, but not limited to, governmental emergency orders, judicial or governmental action, emergency regulations, sabotage, riots, vandalism, labor strikes or disputes, acts of God (e.g. fire, flood, inclement weather, epidemic or earthquake), war or act of terrorism, electrical failure, mechanical failure, major computer hardware or software failures, equipment delivery delays, or acts of third parties. The relationship of the parties established by this Agreement is solely that of independent contractors. Neither party is the representative or agent of the other party for any purpose, and neither party has power or authority to act as agent for or to represent, act for, bind, or otherwise create or assume, any obligation on behalf of the other party. The obligations and rights under this Agreement, which by their nature would reasonably continue beyond the termination of this Agreement, will survive the termination of this Agreement.