Terms of Service

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE PLATFORM LICENSE AGREEMENT TERMS AND CONDITIONS (THIS “AGREEMENT”) OR BY AGREEING TO AN ORDERING DOCUMENT THAT REFERENCES THIS AGREEMENT (AN “ORDERING DOCUMENT”) OR BY OTHERWISE USING OR ACCESSING THE BADGE PLATFORM (AS DEFINED BELOW) (THE “ACCEPTANCE”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE BADGE PLATFORM.

This Agreement, by and between Customer and Badge Group, Inc., (“Badge”), is effective as of the date of Acceptance (the “Effective Date”), and governs Customer’s use of Badge’s software-as-a-service platform that permits Customer to create mobile wallet passes for Customer’s end users, including any software, documentation or data related thereto (the “Badge Platform”).  Each of Badge and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.

1. Definitions. The following terms, when used in this Agreement will have the following meanings:

“Customer Content” means (a) all information, data, content, photographs, graphs, videos, typefaces, graphics, music, sounds and other materials provided by or on behalf of Customer to Badge with respect to Customer, the Customer Marks and the mobile wallet passes created on or through the Badge Platform, (b) all transaction information, including product types, names, images, descriptions, sizes, inventory, current retail prices, artwork, text, logos, graphics and other relevant transaction information reasonably requested by Badge, (c) all Customer content that Customer adds to any mobile wallet pass created on or through the Badge Platform, and (d) any other content related to the mobile wallet passes created by Customer on or through the Badge Platform that Customer determinates in its sole discretion to make available to Badge.

“Customer Data” means all information and other data of Customer, Authorized Users and/or End Users collected, added to and/or managed via the Badge Platform pursuant to, and as contemplated by, this Agreement, including any information and other data submitted by Customer, Authorized Users and/or End Users in connection with such users’ use of, or mobile wallets created on or through, the Badge Platform hereunder (e.g., name, address, phone number, email address, shipping address, order details, payment information, activity and behavior on the Badge Platform).

“Confidential Information” means, subject to the exceptions set forth in the following sentence, any information, knowledge or data, regardless of whether it is in tangible form, disclosed by or on behalf of either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”). Badge’s Confidential Information includes the Badge Platform and the terms of this Agreement. Customer’s Confidential Information includes the Customer Data, but not the Anonymous Data or Aggregate Data. Information will not be deemed “Confidential Information” if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party.

“Proprietary Rights” means any and all right title and interest in or to copyrights, mask works, moral rights, industrial designs, trademarks, service marks, trade names, trade secrets, patents, publicity, and any other rights to intellectual property, recognized in any jurisdiction or country of the world, whether or not registered or perfected.

“Badge Technology” means the Badge Platform, Badge Certificate of Ownership and all Proprietary Rights and goodwill therein or arising therefrom, as they may exist now and/or hereafter come into existence, and all renewals and extensions thereof.  The Badge Technology includes Badge’s knowledge of business principles, and those analytical concepts, methodologies, algorithms, processes, software, software applications, code, platforms, discoveries and ideas.

2. Access to Badge Platform.

1. Access Grant. Subject to the terms and conditions of this Agreement, Badge hereby grants to Customer, a non-exclusive, non-transferable, non-sublicensable right to access and use the Badge Platform, solely for the creation and management of mobile wallet passes, and related push notifications, for End Users.  

2. Authorized Users. With respect to Customer, the Badge Platform will be accessed or used only by employees or contractors of Customer who are authorized to access the Badge Platform using credentials provided to Customer by Badge or setup by Customer (“Authorized Users”). Customer will be responsible for Authorized Users’ compliance with this Agreement and for maintaining the confidentiality of all credentials, including any login information, passwords and other information related to its and its Authorized Users’ respective accounts at all times, and may not transfer any such credentials.  Customer may add or remove Authorized Users at its discretion from time to time.

3. End Users. Customer may permit its customers and end users (“End Users”) to use the Badge Platform solely for purposes of using mobile wallet passes created by Customer on or through the Badge Platform.  In order to use the Badge Platform or any mobile wallet passes created by Customer on or through the Badge Platform, End Users will be required to enter into or agree to Badge’s end user agreement (which Badge may amend, alter or update from time to time in Badge’s sole discretion).  Customer shall be solely responsible and liable for any interaction with an End User through or in connection with the Badge Platform (through a push-notification or otherwise).  Customer shall acquire (and be solely responsible for acquiring) all rights to contact and/or interact with the End Users on or through the Badge Platform.

4. Certificate of Ownership.  In connection with Customer’s use of the Badge Platform, Badge will manage a pass-signing certificate or create an issuing account for Customer (each, a “Badge Certificate of Ownership”).  The Parties acknowledge and agree that (i) Badge will own all right, title and interest in and to the Badge Certificate of Ownership and (ii) Badge will not, and will not have any obligation to, transfer to Customer any right, title and interest in and to the Badge Certificate of Ownership.  Badge may, in its sole discretion, allow Customer to provide Customer’s own pass-signing certificate or issuing account in connection with Customer’s use of the Badge Platform (a “Customer Certificate of Ownership”).  In the event that Badge permits Customer to provide a Customer Certificate of Ownership, Customer shall own all right, title and interest in and to such Customer Certificate of Ownership. 

5. License Restrictions. Customer will (i) not make available the Badge Platform to any third party, other than Authorized Users and End Users, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Badge Platform and, (iii) notify Badge promptly of any such unauthorized access or use. Except as expressly permitted hereunder, Customer will not and Customer will not permit or authorize Authorized Users, End Users, or any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of any of the Badge Technology; (b) modify, translate or create derivative works of the Badge Platform and all intellectual property rights therein and thereto; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Badge Technology; (d) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to any of the Badge Technology or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (e) remove or obscure any proprietary notices or labels of Badge; (f) use the Badge Technology or any information contained therein or otherwise provided by Badge or its licensors for the purposes of developing, or having developed, any products or services competitive with the Badge Technology; or (g) otherwise access or use the Badge Technology in a manner inconsistent with this Agreement or applicable law.

6. API License.  Subject to the terms and conditions of this Agreement, Customer hereby grants to Badge, during the Term, a worldwide, non-exclusive, royalty-free, non-transferrable (except as expressly provided herein), non-sublicensable (except as necessary to provide Third-Party Applications, as defined below) right and license to access and use Customer’s application programming interface and all Customer Data and/or Customer Content data feeds and related materials to enable the Customer Content and Customer Data to interoperate with, and be displayed on, the Badge Platform.

7. Feedback.  Customer may elect from time to time to provide suggestions or comments regarding enhancements or functionality or other feedback (“Feedback”) to Badge with respect to the Badge Technology. Badge will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Badge a royalty-free, fully paid-up, worldwide, transferable, sublicensable (directly and indirectly through multiple tiers of distribution), perpetual, irrevocable license to (a) copy, distribute, transmit, display, perform, and modify and create derivative works of the Feedback, in whole or in part; and (b) use the Feedback and/or any subject matter thereof, in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which incorporate, practice or embody, or are configured for use in practicing, the Feedback, in whole or in part.  For clarity, the foregoing does not grant Badge a license to any patents, trademarks or copyrights owned by Customer.

8. Trial Period.  Unless Badge determines otherwise (in its sole discretion), Badge will provide Customer with access or partial access to the Badge Platform on a trial or evaluation basis for a period of fourteen (14) days (the “Trial Period”).  NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, WITH RESPECT TO THE TRIAL PERIOD, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE Badge PLATFORM IS PROVIDED TO THE CUSTOMER AS-IS WITHOUT ANY WARRANTIES OR GUARANTEES, WHETHER EXPRESS OR IMPLIED. ACCORDINGLY, ANY USE OF THE Badge PLATFORM DURING THE TRIAL PERIOD IS AT CUSTOMER’S SOLE RISK NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN.

9. Third-Party Applications.  The Badge Platform and any services provided in connection therewith may include or integrate with select third-party services, applications and/or software (collectively, “Third-Party Applications”).  Customer may also integrate other Third-Party Applications with the Badge Platform (subject to Badge’s prior written approval).  Badge MAKES NO WARRANTIES REGARDING ANY THIRD-PARTY APPLICATIONS, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT ANY THIRD-PARTY APPLICATION WILL (I) REMAIN AVAILABLE THROUGHOUT THE TERM; (II) BE ERROR FREE OR RUN INTERRUPTED; (III) OFFER ANY PARTICULAR FEATURES OR PERFORMANCE; OR (IV) MEET THE CUSTOMER’S NEEDS.  ALL THIRD-PARTY APPLICATIONS ARE PROVIDED AS-IS AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY APPLICATION IS STRICTLY BETWEEN THE CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH THIRD-PARTY APPLICATION.  Customer acknowledges and agrees that (1) Customer is responsible for complying with any and all third-party terms that apply to the Third-Party Applications and (2) Badge shall have no responsibility or liability with respect to the Customer’s use of the Third-Party Applications.  

10. Apple Wallet and Google Wallet Terms.  In connection with Badge’s provision of the Badge Platform, Badge entered into agreements Apple Inc. (with respect to Apple Wallet) and Google (with respect to Google Wallet).  Such agreements require Customer to agree to certain terms and conditions in connection with Customer’s use of the Badge Platform (the “Wallet Terms”).  Such Wallet Terms include, without limitation, the following terms and conditions: https://trybadge.com/apple_dpla and https://trybadge.com/google_wallet_tos.  Badge may update the Wallet Terms from time to time in its sole discretion.  The Parties agree that the Wallet Terms are incorporated herein by reference.  Customer (i) has read and fully understands the Wallet Terms and (ii) hereby agrees to the Wallet Terms.  In the event that Customer (or any End User) fails to comply with any applicable Wallet Terms, Badge may, in its sole discretion, immediately terminate this Agreement or limit, suspend, or terminate Customer’s (or such End User’s) access to and use of the Badge Platform.

3. Ownership; Reservation of Rights.

1. Customer Data.  As between Customer and Badge, Customer owns the Customer Data.  Customer hereby grants to Badge a non-exclusive, worldwide, royalty-free, fully paid-up, non-sublicensable (except to Badge’s contractors, consultants and service providers as reasonably necessary to provide the Badge Platform), right and license to copy, distribute, display and create derivative works of and use the Customer Data and Customer Certificate of Ownership (if any) to perform Badge’s obligations under this Agreement.  Customer shall acquire (and be solely responsible for acquiring) all rights to (i) use the Customer Data (including, without limitation, the right to add or use such Customer Data on or through the Badge Platform) and Customer Certificate of Ownership (if any) and (ii) grant to Badge the right and license to use such Customer Data and Customer Certificate of Ownership (if any) as set forth in this Agreement.  Customer also hereby grants to Badge a non-exclusive, worldwide, perpetual, royalty-free, fully paid-up, and irrevocable license to copy, anonymize, process and create derivative works of Customer Data, in whole or in part, for the purpose of deriving anonymous statistical and usage data, and other similar data related to the functionality and performance of Badge’s products and services, provided such data cannot be used to identify Customer, its Authorized Users or its End Users (“Anonymous Data”) and combine or incorporate such Anonymous Data with or into other similar data and information available, derived or obtained from other customers, licensees, users, or other sources (when so combined or incorporated, referred to as “Aggregate Data”), in each case, solely for purposes of improving Badge’s existing products and services, developing new Badge products and services and for marketing purposes (e.g., indicating the number of customers using Badge products and services). For clarity, Anonymous Data and Aggregate Data is not Customer Data.

2. Customer Marks and Customer Content. Subject to the terms and conditions of this Agreement, Customer hereby grants to Badge, during the Term, a worldwide, non-exclusive, royalty-free, non-transferrable (except as expressly provided herein) right and license to (a) copy, use, display, distribute, modify and create derivative works of the  trademarks, service marks, logos and other distinctive brand features of Customer or its products and services as designated by Customer (the “Customer Marks”) on the Badge Platform; (b) identify, feature, market, promote, advertise and sell the Customer’s products and services on the Badge Platform; and (c) use, copy, modify the weight, size, shape and color of, display, reproduce, translate, distribute, and make available, the Customer Marks, Customer Content (and links thereto) in order to identify, feature, market, promote, advertise and sell the Customer Content and otherwise perform its obligations under this Agreement (including, without limitation, as required to facilitate Third-Party Applications).

3. Reservation of Rights. Customer acknowledges and agrees that, as between the Parties, Badge retains all right, title and interest in and to the Badge Technology.  Badge grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Badge Platform.  Customer will acquire no right, title, or interest in and to the Badge Technology other than the limited licensed rights to the Badge Platform expressly granted under this Agreement.  Other than the rights and licenses granted under this Agreement, Customer reserves any and all right, title and interest in and to the Customer Marks, Customer Content and all Proprietary Rights and goodwill therein or arising therefrom (collectively, “Customer Intellectual Property”), and Customer Data.

4. Customer Obligations.

1. Customer Content. Customer will provide Badge with (or provide Badge with access to) the Customer Content and any changes or updates thereto. Customer will have the right to remove the Customer Content from the Badge Platform at any time in Customer’s sole discretion.  Customer shall be responsible for ensuring that all Customer Content provided to Badge for use in connection with the Badge Platform (and provided to any End User through the Badge Platform) is complete, accurate and up to date. 

2. End User Disputes.  Customer will be solely responsible and liable for any transaction by an End User using a mobile pass wallet created on or through the Badge Platform, including any disputes with End Users regarding any such transaction. 

5. Badge Obligations.

1. Badge Platform. Badge will use commercially reasonable efforts to provide the Badge Platform in a manner that minimizes errors and interruptions in accessing the Badge Platform. Badge will be solely responsible for operating, updating and maintaining the Badge Platform. Badge will have sole and absolute control over the Badge Platform and any content displayed thereon. Badge will have no obligation to feature, market, advertise or sell any Customer products and services, or display any Customer Content, on the Badge Platform. 

2. Third Party Content.  Badge will not have any responsibility or liability to Customer for the conduct or content of any Authorized User or End User on the Badge Platform or otherwise, including any defamatory, offensive or negative content or reviews regarding or related to Customer.  If reasonably requested by Customer, Badge shall remove any third party content from the Badge Platform.

6. Payment Terms. 

1. Fees.  Customer will pay to Badge any fees set forth in the Ordering Document (“Fees”) in accordance with the terms and conditions set forth herein.  Unless otherwise stated in the Ordering Document, payment obligations are non-cancelable and Fees paid are non-refundable.

2. Payment Terms.  Customer will be required to provide Badge (or its payment processor) with information regarding Customer’s ACH, credit card or other payment instrument.  Customer represents and warrants to Badge that such information is true and that Customer is authorized to use the payment instrument.  Customer will promptly update Customer’s account information with any changes (for example, a change in billing address or credit card expiration date) that may occur.  Customer hereby authorizes Badge (and its payment processor) to bill Customer’s payment instrument in accordance with the terms of this Agreement and the Ordering Document, and Customer further agrees to pay any charges so incurred.  Customer will promptly update Customer’s account information with any changes (for example, a change in billing address or credit card expiration date) that may occur.  If Badge chooses to bill any Fees through an invoice, full payment for invoices issued in any given month must be received by Badge within thirty (30) days after the Customer’s receipt of such invoice.  If payment of any Fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection.  In addition, if any past due payment has not been received by Badge within thirty (30) days from the time such payment is due, Badge may suspend access to the Badge Platform until such payment is made.

3. Taxes. All amounts payable by Customer to Badge hereunder are exclusive of any sales, use and other taxes or duties, however designated (“Taxes”).  Customer will be solely and exclusively responsible for timely filing tax returns and paying all Taxes, including any that may be owed by Customer to any governmental taxing authority arising out of this Agreement, except for those Taxes based solely on the income of Badge. Customer will not withhold any Taxes from any amounts due Badge.

4. Fee Increase.  Badge may increase the Fee for an upcoming Renewal Term (defined below) so long as Badge gives Customer written notice of such increase at least thirty (30) days before the expiration of the Initial Term (defined below) or then current Renewal Term, as applicable.  Any such increase will become effective upon the commencement of such upcoming Renewal Term.

7. Confidentiality; Data Security. 

1. Confidentiality.  The Receiving Party hereby acknowledges and agrees that all the Disclosing Party’s Confidential Information will be the sole and exclusive property of the Disclosing Party. Each Receiving Party will use reasonable measures to protect the confidentiality of the Disclosing Party’s Confidential Information. During the Term and thereafter, the Receiving Party will: (a) not use the Confidential Information of the Disclosing Party except as permitted under this Agreement and (b) not disclose or otherwise make available such Confidential Information, directly or indirectly, to any third party, except as authorized herein and other than to such Party’s employees, independent contractors or professional advisers (e.g., attorneys and accountants) (collectively, “Representatives”) who (i) have a need to know such Confidential Information and (ii) are subject to written agreements containing (or, in the case of professional advisers, ethical obligations imposing) obligations of confidentiality and nonuse with respect to such information as stringent as those set forth herein. The Receiving Party will be responsible for any breach of the terms hereof by any of its Representatives. In the event that Receiving Party or any of its Representatives is requested or required by legal process to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will give prompt written notice to the Disclosing Party and the Disclosing Party may seek a protective order or other appropriate relief. In the event that such protective order is not obtained, the Receiving Party will disclose only that portion of such Confidential Information that its counsel advises that it is legally required to disclose. The Receiving Party acknowledges that any unauthorized disclosure or use of the Disclosing Party’s Confidential Information will constitute a material breach of this Agreement and cause substantial harm to the Disclosing Party for which damages would not be a fully adequate remedy, and, therefore, in the event of any such breach (or threatened breach), in addition to other available remedies, the Disclosing Party will have the right to obtain injunctive relief in any court of competent jurisdiction without the necessity of posting a bond.

2. Data Security.  Badge will, and will cause any of its subcontractors with access to Customer Data to, use commercially reasonable efforts to establish and maintain safeguards reasonably sufficient to prevent and guard against the unauthorized disclosure, destruction, loss, theft or alteration of Customer Data in the possession or control of Badge or a subcontractor that are no less rigorous than (i) standards maintained by Badge for its own information of a similar nature and (ii) accepted industry security standards. 

3. Personal Information.  In order for Badge to fulfill its obligations under this Agreement, it may be necessary for Badge and its personnel to receive Personal Information (as defined below).  Badge will comply with all applicable laws (including data privacy laws) in its handling of Personal Information, and, at Customer’s request, will take all actions reasonably necessary to enable Customer to comply with is obligations under applicable law, rule or regulation relating to rights requests made by individuals relating to Personal Information processed by Badge in accordance with applicable laws, including, but not limited to, the California Consumer Privacy Act (the “CCPA”).  To the extent not prohibited by applicable law, Badge will use commercially reasonable efforts to comply with Customer’s instructions pertaining to the collection, use, disclosure and deletion of Personal Information and shall not use, store, process or disclose any Personal Information except (i) as instructed by Customer, (ii) as provided for in this Agreement, (iii) to perform Badge’s obligations under this Agreement, (iv) as required to facilitate Third-Party Applications, (v) as required by law or legal process or (vi) to establish, exercise and defend any legal claims.  As used in this Agreement, “Personal Information” means and includes any information that, alone or in combination with other information, can identify or be uniquely associated with a specific individual or household and is subject to applicable data privacy laws.

8. Representations and Warranties; Disclaimer.

1. Mutual. Each Party hereby represents, warrants and covenants to the other Party that (i) it has full right, power and authority to enter into this Agreement and to perform its obligations, and grant the rights and licenses granted, hereunder, (ii) the execution or performance of this Agreement will not conflict with any provision of any other agreement to which it is a party or by which it or any of its properties may be bound, and (iii) it will comply with all applicable laws, rules and regulations in the performance of its obligations under this Agreement.

2. By Customer. Customer hereby represents and warrants to Badge that (i) the Customer Intellectual Property (and Badge’s permitted use thereof) does not infringe or misappropriate any third party’s rights (including any Proprietary Rights); and (ii) Customer has the legal authority and all rights necessary (A) to provide the Customer Content to Badge and the End Users, (B) to provide the Customer Data to Badge and (C) for Badge to fulfill its obligations and exercise its rights with respect to the Customer Content and Customer Data as set forth this Agreement.

3. Disclaimer. THE Badge PLATFORM IS PROVIDED ON AN “AS-IS” BASIS, AND Badge DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. Badge EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. Badge DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED ARE ERROR-FREE OR THAT OPERATION OF Badge’S PRODUCTS OR SERVICES WILL BE SECURE OR UNINTERRUPTED. 

9. Indemnification.

1. Customer Indemnification. Customer will indemnify, defend and hold harmless Badge and its affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns from and against any and all losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of, or in any way related to, a third party claim, suit or proceeding (each, a “Claim”) arising from or relating to (i) Customer’s breach of any of its representations, warranties, covenants or obligations contained herein or contained in any policy or agreement governing any Third-Party Application, and/or (ii) the Customer Content and Customer Data (and any use of the Customer Content or the Customer Data on or through the Badge Platform). 

2. Badge Indemnification.  Badge will indemnify, defend and hold harmless Customer and its affiliates and each of their respective officers, directors, managers, members, stockholders, employees, contractors, agents, successors and assigns from and against any and all Claims arising from or relating to a claim that the Badge Platform (or Customer’s permitted use thereof) infringes or misappropriates any third party’s rights (including any Proprietary Rights). Badge will have no liability or obligation under this Section with respect to any Claim to the extent such Claim arises from (i) modification of the Badge Platform in accordance with Customer’s specifications or instructions or by any party other than Badge; (ii) the combination, operation, or use of the Badge Platform with other product(s), data or services where the Badge Platform would not by itself be infringing; (iii) unauthorized or improper use of the Badge Platform; or (iv) use during the Trial Period. If the use of the Badge Platform by Customer has become, or in Badge’s opinion is likely to become, the subject of any claim of infringement, Badge may at its option and expense (1) procure for Customer the right to continue using the Badge Platform as set forth hereunder; (2) replace or modify the Badge Platform to make it non-infringing so long as the Badge Platform has at least equivalent functionality; (3) substitute an equivalent for the Badge Platform; or (4) if options (1)–(3) are not reasonably practicable, terminate this Agreement. This Section states Badge’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

3. Procedure. If a indemnified Party becomes aware of any Claim for which it believes it should be indemnified under this Section, such indemnified Party will (i) promptly notify the indemnifying Party in writing of such Claim; (ii) promptly give the indemnifying Party the sole and exclusive right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of the indemnifying Party’s own choosing; provided that the indemnified Party entitled to indemnification under this Section will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim; and (iii) gives assistance and full cooperation for the defense of same.  The indemnifying Party may not settle or compromise any Claim against an indemnified Party without the indemnified Party’s prior written consent.

10. Limitation of Liability. 

1. Consequential Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND INCLUDING LOST BUSINESS OPPORTUNITY OR PROFITS, EVEN IF SUCH PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. 

2. Limitation of Liability.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL Badge’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID AND PAYABLE BY CUSTOMER TO Badge UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE DATE OF THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.  NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THE PRECEDING SENTENCE EXCLUDES EITHER PARTY’S INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, BREACH OF THE LICENSE RESTRICTIONS, CONFIDENTIALITY OBLIGATIONS, OR INDEMNIFICATION OBLIGATIONS.

3. Exclusions.  THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

11. Term and Termination.

1. Term. Subject to earlier termination as set forth below, the term of this Agreement will commence on the Effective Date and continue for one (1) year (the “Initial Term”), and shall automatically renew for additional one (1) year periods (each a “Renewal Term” and together with the Initial Term, collectively, the “Term”).  

2. Termination for Convenience. After the Trial Period, each Party may terminate this Agreement at any time and for any or no reason upon thirty (30) days’ prior written notice to the other Party. 

3. Termination for Cause.  Either Party may terminate this Agreement immediately upon written notice to the other Party in the event of any of the following: (i) the other Party is in material breach of this Agreement and such breach is not cured within thirty (30) days following the non-breaching Party’s written notice thereof; or (ii) the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust, deed, creditor’s arrangement, or comparable proceeding, or if any such proceeding is instituted against such other Party and not dismissed within one hundred eighty (180) days.  Additionally, Badge may immediately limit, suspend, or terminate Customer’s or any End User’s access to and use of the Badge Platform or this Agreement: (1) if Customer or such End User fails to comply with the Wallet Terms or the terms and conditions of any policy or terms governing a Third-Party Application (or the use thereof) or (2) if Badge is investigating suspected misconduct by Customer or an End User.  

4. Effects of Termination. Upon the expiration or termination of this Agreement, (i) all licenses granted hereunder will immediately terminate and each Party will promptly return or destroy all of the other Party’s Confidential Information in its possession and (ii) any outstanding Fees or any other fees owed by Customer to Badge will immediately become due and payable.

5. Survival. Sections 1, 2(d), 2(f), 2(g), 3(a), 3(c), 4, 6, 7, 8, 9, 10, 11(d), 11(e) and 12 will survive any expiration or termination of this Agreement.

12. Miscellaneous.

1. Assignment. This Agreement may not be assigned by either Party to any other party without the express written consent of the other Party, and any assignment in violation of this Section will be null and void. Notwithstanding the foregoing, either Party may assign this Agreement without such consent to any third party that acquires all or substantially all of such Party’s equity interests or assets to which this Agreement relates, whether by way of purchase, merger, exchange or similar transaction; provided, that such assignee assumes the assigning Party’s obligations and liabilities hereunder.

2. Remedies; No Waiver. All rights, remedies, obligations, covenants, conditions and agreements contained in this Agreement or provided by law will be cumulative and no one of them will be exclusive of any other. No waiver by any Party, whether express or implied, of any provision of this Agreement, or of any breach or default thereof, will constitute a continuing waiver of that provision or of any other provision.

3. Entire Agreement; Amendment. This Agreement and the Ordering Document contain the entire understanding and agreement between the Parties with respect to its subject matter and supersede all prior and contemporaneous oral or written understandings and agreements relating thereto. Except as otherwise expressly set forth herein, no modification, amendment or waiver of any of the terms of this Agreement will be valid unless in writing and signed by an authorized representative of each Party.

4. Governing Law, Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions.  For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of  the state and federal courts located in San Francisco, California, and waives any jurisdictional, venue, or inconvenient forum objections to such courts.   .

5. Notices.  All notices, requests, demands, claims and other communications hereunder shall be in writing and shall be deemed duly given (i) when personally delivered, (ii) two business days after being sent by reputable overnight courier service (charges prepaid), or (iii) on the date of transmission, if sent by email during the normal business hours of the recipient (on the next business day if sent after the normal business hours of the recipient), to the intended recipient at the address set forth in the Ordering Document.

6. Relationship of the Parties. Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither Party will represent to the contrary, either expressly, implicitly or otherwise.

7. Severability. In the event any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the other provisions of this Agreement will remain in full force and effect.

8. Third-Party Beneficiaries. This Agreement does not confer any third-party beneficiary rights upon any third party, except as expressly set forth herein.

9. Force Majeure. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party will give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.

10. Headings; Interpretation. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All uses in this Agreement of “including” and similar terms will be interpreted to mean “including without limitation.”

11. Public Announcement. Neither Party will make any separate public announcement regarding this Agreement or any of the contents contained herein without the prior written consent of the other Party.

12. Compliance with Laws. Customer will not transfer, either directly or indirectly, the Badge Platform, either in whole or in part, to any destination subject to export restrictions under United States law, unless prior written authorization is obtained from the appropriate United States agency and will otherwise comply with all other applicable import and export laws, rules and regulations.

13. Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same instrument. Delivery of this Agreement bearing a signature by electronic means (including DocuSign) will have the same effect as physical delivery of the paper document bearing the original signature.