Master Services Agreement

This Leapfin Master Services Agreement (“Agreement”) is made between Leap Technologies, Inc. d/b/a Leapfin, a Delaware corporation having its principal place of business at 205 De Anza Blvd #146, San Mateo, CA 94402 (“Leapfin”) and Customer (defined below) and governs the Customer’s use of the Leapfin Assets (as defined below). 

“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Start Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses a Leapfin Asset. Leapfin reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of the Leapfin Asset(s).

IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE LEAPFIN ASSETS. THE LEAPFIN ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.

If Customer and Leapfin have executed a written agreement governing Customer’s access to and use of the Leapfin Assets as a Leapfin customer, then the terms of such signed agreement will govern and will supersede this Agreement.

1. DEFINITIONS. The definitions of certain capitalized terms used in this Agreement are set forth below. Others are defined in the body of the Agreement, an Order Form or in Leapfin’s DPA.
   1. "Affiliate(s)" means any entity that now or hereafter Controls, is Controlled by, or is under common Control with, a specified entity. Such entity shall be deemed to be an Affiliate only so long as such Control exists.
   2. “API(s)” means any application programming interface.
   3. "Authorized User" means one individual (no concurrent usage with other users is permitted), whether for themself or on behalf of their entity, comprised of Customer’s employees and contractors authorized by Customer to use the Service.
   4. "Beta Features" means any Leapfin Asset features, functionality or services which Leapfin may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
   5. "Confidential Information" means any information of a confidential or proprietary nature provided by a party to the other party, which includes any information that should be reasonably understood as confidential under the circumstances, including the terms of this Agreement and each Order Form, and: (i) with respect to Leapfin, the Service and Usage Data; and (ii) with respect to Customer, the Customer Data and Reports. Confidential Information does not include information that: (A) is or becomes public knowledge without any action by, or involvement of, the party to which the Confidential Information is disclosed; (B) is documented as being known to the Receiving Party prior to its disclosure by the Disclosing Party; (C) is independently developed by Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (D) is obtained by Receiving Party without restrictions on use or disclosure from a third party.
   6. "Control" means: (i) direct or indirect ownership or control (now or hereafter) of more than fifty percent (50%) of the outstanding shares or securities (representing the right to vote for the election of directors or other managing authority); or (ii) in the case of a company or other entity which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, direct or indirect ownership or control of more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such corporation, company or other entity.
   7. "Customer Data" means all data (e.g., information, reports, Personal Data) and other content provided by Customer to Leapfin in connection with Customer’s or any Authorized User’s use of the Service.
   8. "Documentation" means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Service, as may be provided or made available by Leapfin to Customer, whether in written or electronic form, including all modifications, updates, upgrades thereto and derivative works thereof.
   9. "DPA" means Leapfin’s Data Processing Agreement available at: https://www.leapfin.com/dpa.
   10. "Leapfin Assets" means the Software, Leapfin Integrations, Service and Documentation.
   11. “Leapfin Integration(s)” means any Leapfin API integration that integrates the Service with a Third-Party Application, which is made available by Leapfin during the Term, as further specified in an Order Form.
   12. "Malicious Code" means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Service to cease functioning; (ii) damage or corrupt any Leapfin owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Service (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
   13. "Order Form" means each order document executed in writing between the parties for the purchase of a subscription to the Service.
   14. "Prohibited Content" means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; or (iv) contains Malicious Code.
   15. "Report(s)” means a report created by Customer, via the Service functionality and available Leapfin templates, with respect to various data and information regarding Leapfin Integrations.
   16. “Security Protocols” means Leapfin’s standard physical, technical, and administrative safeguards for the protection of Customer Data as set forth in Annex II to the DPA.
   17. "Service" means Leapfin’s proprietary solution offered as a software-as-a-service for revenue accounting automation which includes the Leapfin Assets.
   18. "Software" means software that Leapfin develops and maintains in order to provide the Service, including the Beta Features, and all modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works thereof.
   19. “Statement of Work” or “SOW” means a statement of work executed in writing between the parties setting forth specific terms and conditions for the performance of certain services by Leapfin to be delivered to Customer. 
   20. "Subscription Term" is the length of the subscription specified in the applicable Order Form.
   21. "Support" means the support terms for the Service set forth in Section 3(b) below. 
   22. "Taxes" means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.
   23. “Third-Party Application” means any third-party products, services, tools or applications that are not owned or controlled by Leapfin.
   24. "Quantity(ies)" means a number of Leapfin Integrations, and other such purchased quantities, specified in an Order Form.
   25. "Usage Data" means data collected by Leapfin pertaining to Customer's interaction with the Service which includes, but is not limited to, performance of the Service, metrics and other measures of Customer's use of the Service and its operation. Usage Data are not Customer Data and do not consist of Customer Personal Data (as defined in the DPA).
2. GRANT OF LICENSE TO THE SERVICE; RESTRICTIONS
   1. Grant of License to the Service. Subject to the terms of this Agreement and the applicable Order Form, Leapfin grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Term, solely for Customer's internal business operations for the Quantities specified on the Order Form, to use the Service solely in accordance with the Documentation, this Agreement and the applicable Order Form. Customer may permit its Affiliates’ employees and authorized contractors to serve as Authorized Users, subject to the terms of this Agreement and the applicable Order Forms, and provided any use of the Service by such individuals will be for the sole benefit of Customer.
   2. Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Leapfin Assets; (ii) share any Leapfin issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Service; (iv) use the Leapfin Assets for benchmarking or to develop a product or service which is competitive with any Leapfin product or service offering; (v) modify, adapt, or translate the Leapfin Assets or remove or modify any proprietary markings or restrictive legends placed on or within the Leapfin Assets; (vi) make copies, store, or archive, any portion of the Leapfin Assets without the prior written permission of Leapfin; (vii) use the Leapfin Assets in violation of any applicable law; (viii) introduce, any Malicious Code into the Leapfin Assets; or (ix) exploit the Leapfin Assets in any unauthorized manner including by circumventing any process Leapfin has put in place to safeguard the Service or by using flood pings, denial-of-service attacks, or by deploying spiders, web-bots, screen-scrapers, or web crawlers, that may damage or adversely affect server or network capacity or Service infrastructure (together, (i) through (ix) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
   3. Trial Period. Subject to the terms of the Agreement and Order Form, including payment of all Trial Period fees (if any), commencing on the Effective Date and for the period set forth on the Order Form, Customer will have the right to use the Leapfin Assets for evaluation purposes ("Trial Period"). Prior to the end of the Trial Period, Customer may terminate this Agreement without further obligation upon written notice to Leapfin ("Trial Termination Notice"). If Leapfin does not receive a Trial Termination Notice prior to the end of the Trial Period, the Subscription Term commences upon the expiration of the Trial Period, and Leapfin will invoice Customer in accordance with Section 6.
   4. Beta Features. Beta Features made available by Leapfin are provided to Customer for testing purposes only. Leapfin makes no commitments to provide Beta Features in any future versions of the Leapfin Assets. Customer is not obligated to use Beta Features. Leapfin may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Leapfin does not provide Support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.
   5. Third-Party Applications. The Service integrates with Third-Party Application(s) specified in the Order Form. Leapfin neither licenses Third Party Applications for Customer’s benefit nor endorses any Third-Party Applications. This Agreement does not apply to such Third-Party Applications including Customer’s use thereof. LEAPFIN HAS NO LIABILITY OR OBLIGATION OF ANY KIND RELATED TO ANY THIRD-PARTY APPLICATIONS.
3. LEAPFIN OBLIGATIONS
   1. Service. Leapfin will provide the Service in conformance with this Agreement, the Order Form(s) and applicable Documentation. Leapfin will be responsible for hosting the Service as necessary for the subscription to the Service specified in the Order Form.
   2. Support. Unless stated otherwise in the applicable Order Form, if Customer experiences any errors, bugs, or other issues in its use of the Service, Leapfin will use commercially reasonable efforts to respond as soon as possible ("Support") in order to resolve the issue or provide a suitable workaround. The fee for Support is included in the cost of the subscription set forth on the Order Form.
   3. Service Changes. Customer acknowledges that the Service is an on-line, subscription-based service, and that in order to provide improved experience, Leapfin may make changes to the Service provided Leapfin will not materially decrease the overall functionality of the Service.
   4. Professional Services. The parties may execute a Statement of Work for “Professional Services.” Unless stated otherwise in the Statement of Work, Leapfin will own any and all improvements to the Service made by Leapfin that arise out of the Statement of Work. Any conflict between the terms of this Agreement and a Statement of Work will be resolved in favor of the Statement of Work but only with respect to the subject matter thereof.
4. CUSTOMER OBLIGATIONS
   1. Internet Connections. Customer is responsible for obtaining Internet connections necessary for Customer to access the Leapfin Assets.
   2. Export. The Leapfin Assets are subject to export control laws and regulations. Customer may not access or use the Leapfin Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Leapfin Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department's list of specially designated nationals or the U.S. Commerce Department's list of prohibited countries or debarred or denied persons or entities.
5. DATA LICENSE & PROTECTIONS
   1. Data License. In connection with its use of the Service, Customer (including its Authorized Users) may transfer Customer Data to Leapfin. Leapfin uses Customer Data to provide the Service and to create and develop Usage Data. Customer grants Leapfin a limited license during each Subscription Term to use Customer Data as provided for in this Section 5(a) and in accordance with this Agreement and the DPA.
   2. Usage Data. While Customer uses the Service, Leapfin will generate Usage Data. Leapfin may use Usage Data, including to aggregate such data with similar data from other Leapfin customers, for testing, development, and operation of the Service, and to further improve and develop products and services for Leapfin customers. For clarity, nothing in this Section 5 gives Leapfin the right to publicly identify Customer or any individual user as the source of any Usage Data.
   3. DPA. Leapfin will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.
   4. Security & Privacy. Leapfin maintains industry-standard physical, technical, and administrative safeguards in order to protect Customer Data in accordance with the Security Protocols. 
6. FEES
   1. Fees. Customer will pay all fees set forth in the applicable Order Form. Unless otherwise provided for in an Order Form: (i) all amounts are due and payable to Leapfin within thirty (30) days from the date of the Order Form; and (ii) all payments are non-cancellable and non-refundable.
   2. Taxes. Customer will pay all applicable Taxes excluding only those based on Leapfin’s net income. If Customer is compelled to make a deduction or set-off for any such Taxes, Customer will pay Leapfin such additional amounts as necessary to ensure receipt by Leapfin of the full amount Leapfin would have received but for the deduction. Any applicable direct pay permits or valid Tax-exempt certificates must be provided to Leapfin prior to the execution of this Agreement. If Leapfin is required to collect and remit Taxes on Customer’s behalf, Leapfin will invoice Customer for such Taxes, and Customer will pay Leapfin for such Taxes in accordance with Section 6(a).
   3. Late Payments. In the event that Leapfin does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, Leapfin may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.0%) per month or the maximum rate permitted by law); (ii) condition future Service renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend access to and terminate for failure to pay (if applicable) the Service pursuant to Section 7(b).
7. TERM & TERMINATION
   1. Term. The "Term" of the Agreement commences on the Effective Date and will continue in effect thereafter so long as there is an active Subscription Term under and Order Form, or until terminated earlier in accordance with Section 7(b). For clarity, each Subscription Term will be set forth in the applicable Order Form.
   2. Suspension Rights & Termination. 
      1. Leapfin may suspend Customer's access to, or use of, the Service if: (i) any amount due to Leapfin under any invoice is past due and such amount is not paid within 10 days of written notice from Leapfin; and (ii) any use of the Service by Customer or Authorized Users that in Leapfin’s reasonable judgment threatens the security, integrity or availability of the Service. Leapfin will: (A) provide Customer with written notice and an opportunity to remedy such violation or threat prior to any such suspension; (B) where practicable limit the suspension based on the circumstances leading to the suspension; and (C) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
      2. In the event a Third-Party Application provider, or if Customer, prevents or ceases access to or means necessary to accomplish the Leapfin Integrations set forth in an Order Form, Leapfin may suspend or cease providing such Quantities and in such case Customer will receive no refund, credit, or other compensation.
   3. Termination. Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days' notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
   4. Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), Leapfin will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Term as of the date of such termination. Upon termination or expiration of this Agreement for any reason: (i) all rights and licenses granted to Customer under this Agreement will immediately cease to exist and Customer shall immediately stop accessing and using the Service; and (ii) Leapfin will, upon written request and for 30 days after such request, make Customer Data available for download, or export all Customer Data processed on behalf of Customer during the Subscription Term as further specified in the DPA.
   5. Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 14 (Miscellaneous, as applicable).
8. CONFIDENTIALITY
   1. Each party that receives ("Receiving Party") Confidential Information of the other party ("Disclosing Party") will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.
   2. Receiving Party may disclose, distribute, or disseminate Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, including to the same with respect to its Affiliates, contractors, or agents (its "Representatives"), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
   3. A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party's Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
   4. Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
9. OWNERSHIP
   1. Leapfin Property. The Service is licensed, not sold. Customer acknowledges that it is obtaining only a limited right to use and access the Service on a hosted basis. As between the parties, Leapfin owns and retains all right, title, and interest in and to the Leapfin Assets and Usage Data. Except for the limited license granted to Customer in Sections 2(a), Leapfin does not by means of this Agreement or otherwise transfer any other rights to Customer.
   2. Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data and Reports. Except for the licenses granted to Leapfin in Section 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to Leapfin.
   3. Feedback. Customer (including its Authorized Users) may provide comments, suggestions and recommendations to Leapfin with respect to the Leapfin Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Leapfin may freely use and exploit any such Feedback without any obligation to Customer, provided Customer shall not be identified as the source of any such Feedback without Customer's consent in its sole discretion unless otherwise agreed upon by the parties in writing.
10. REPRESENTATIONS & WARRANTIES; DISCLAIMER
    1. Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
    2. Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to Leapfin; (ii) has all licenses, permissions, consents and rights necessary to grant Leapfin the licenses set forth in this Agreement and enable the Leapfin Integrations; and (iii) will not transmit any Prohibited Content to Leapfin by means of the Service or as required for Leapfin to provide Support hereunder.
    3. Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE LEAPFIN ASSETS AND BETA FEATURES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. LEAPFIN AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. LEAPFIN DOES NOT WARRANT THAT THE LEAPFIN ASSETS OR BETA FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER'S REQUIREMENTS.
11. INDEMNIFICATION
    1. By Leapfin.
       1. Leapfin will defend Customer, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Customer Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Leapfin will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, reasonable attorneys' fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Leapfin Assets, including Customer's permitted use thereof, infringes any registered patent, trademark or copyright or misappropriates a trade secret of such third party.
       2. If Leapfin becomes, or in Leapfin’s opinion is likely to become, the subject of an infringement or misappropriation claim, Leapfin may, at its option and expense: (A) procure for Customer the right to continue using the Leapfin Assets; (B) replace the Leapfin Assets (including any component part) with a non-infringing substitute subject to Customer's prior written approval; or (C) modify the Leapfin Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, Leapfin shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).
       3. Leapfin will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (A) any unauthorized use, reproduction, or distribution of the Leapfin Assets or Leapfin’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; (B) any unauthorized combination of, or modification to, the Leapfin Assets or Leapfin’s intellectual property rights, other than as expressly approved by Leapfin that causes the underlying claim where such claim would have not occurred but for such unauthorized act; or (C) any combination of, or modification to, the Leapfin Assets or Leapfin’s intellectual property rights, with a Third Party Application where such claim would have not occurred but for such combination or to the extent attributable to the Third Party Application.
       4. THIS SECTION 11(A) STATES LEAPFIN’S ENTIRE RESPONSIBILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY CLAIMS RELATED TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
    2. By Customer. Customer will defend Leapfin, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, " Leapfin Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the Leapfin Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Leapfin Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer's breach of Section 10(b) (Customer Representations & Warranties); and (iii) any allegation by a governmental body that use of Customer Data, as permitted by Leapfin under this Agreement or at Customer's request or direction, has violated any applicable law.
    3. Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties' prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties' expense, in connection with the defense and settlement of the claim.
12. LIMITATION ON LIABILITY
    1. NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
    2. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (BUT AS FURTHER LIMITED BY SECTION 12(D) BELOW) AND UNCAPPED CLAIMS, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE LEAPFIN ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
    3. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT'S SOLE AND EXCLUSIVE REMEDY.
    4. "Excluded Claims" means any claim and/or liability associated with any breach by Leapfin of Sections 5(c) (DPA), including for clarity with respect to any claim of liability associated with the DPA, and 5(d) (Security & Privacy). Leapfin’s total, cumulative liability for all Excluded Claims will not exceed the greater of (i) $500,000 or (ii) three (3) times the total amount of fees paid by Customer for use of the Leapfin Assets under this Agreement.
    5. "Uncapped Claims" means any claim or liability associated with: (i) either party's breach of Section 8 (Confidentiality) but not relating to any liability associated with Leapfin’s privacy and/or security obligations with respect to Customer Data which remains subject to the Excluded Claims cap; (ii) either party's respective indemnification obligations under Section 11; or (iii) any liability of a party which cannot be limited under applicable law, including death or personal injury, fraud, gross negligence, recklessness, or intentional misconduct.
13. INSURANCE. Leapfin will maintain in full force and effect during the Term:
    1. Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury and property damage; 
    2. Worker's compensation insurance as required by applicable law; and
    3. Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $2,000,000 per claim covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Leapfin Assets, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Service. 
    4. Insurance carriers will be rated A-VII or better by A.M. Best Provider. Leapfin's coverage will be considered primary without right of contribution of Customer's insurance policies. In no event will the foregoing coverage limits affect or limit in any manner Leapfin's contractual liability for indemnification or any other liability of Leapfin under this Agreement.
14. GENERAL. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by both parties. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. This Agreement is governed by the laws of California without reference to conflicts of law rules. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in San Francisco County, California. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. To the extent there is an inconsistency between the terms of the Agreement, an Order Form and the DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay Fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, which may include a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. The Leapfin Assets are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Service and Documentation with only those rights provided in this Agreement. If the user or licensee of the Service is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Service, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes; the Service was developed fully at private expense and all other use is prohibited.