HOSTED SERVICES AGREEMENT

This Hosted Services Agreement (this “Agreement”) is effective as of the date last set forth on the signature page to the Order Form (defined below), or upon acceptance of the Order Form through the Platform, (“Effective Date”) and is entered into by and between the company set forth on the signature page hereto (“Customer”, “You”), and Parcel Thrive, Inc., a Delaware corporation (“Parcel”). In this Agreement, Customer and Parcel are each sometimes referred to individually as a “Party” and collectively as the “Parties.”

Parcel provides Hosted Services to growers, buyers of agricultural produce, and vendors providing services to growers. The Hosted Services may include specific modules, services, and features (together as configured for Customer, the “Application”) offered through Parcel’s proprietary platform of servers, software, and technology that is hosted, served, or managed by Parcel or its third-party service provider and provided to Customer (the “Platform”).

Customer is a vendor providing services to growers as set forth in the Order Form, Customer desires to engage Parcel to provide the Hosted Services and Application designated in (2) Hosted Services.

Definitions.
1. “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party.
2. “Customer Data” means all Data submitted, collected, received, transmitted, stored, or otherwise provided by Customer or on behalf of Customer (a) through the Hosted Service or Parcel API, (b) to Parcel in connection with Customer’s use of the Hosted Services or Parcel API. Notwithstanding the foregoing, Customer Data does not include Usage Data.
3. “Data” means any data, records, files, content, or information.
4. “End User” means an employee, non-employee worker or other member of Customer’s workforce, contractor of Customer, or other person authorized by Customer to access, operate or use the Hosted Services or Application.
5. “Furnished Materials” means any content, information, materials and items provided or made accessible by one Party to the other Party pursuant to this Agreement, including advertisements, links, text, images, audio, video and other copyright works, and software, tools, technologies and other functional items.
6. “Grower” means an organization utilizing Parcel’s farm management functionality, which may include purchasing goods or services from You.
7. “Hosted Services” means the software-as-a-service, web-based or hosted services that are provided by, or obligated to be provided by, Parcel as specified in (2) Hosted Services
8. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.
9. “Pre-existing Work”means: (a) any inventions or developments made by Parcel prior to the Effective Date (including the Hosted Services, the Platform, and the Application); or (b) any improvements Parcel may make to its own proprietary software or any of its internal processes as a result of this Agreement, provided that such improvements do not infringe Customer’s Intellectual Property Rights.
10. “System” means the software, hardware, and other technology of Parcel that Customer may be required or have the option to use in order to access, use and receive Hosted Services, and any associated documentation made available to Customer hereunder.

Hosted Services.
1. Services Provided. This Agreement covers the Hosted Services Parcel makes available for You to facilitate transactions on the Platform. The Hosted Services Parcel provides to facilitate transactions include workflows that support product listings, quoting, orders, recommendations, records, invoicing and communication with Growers (the “Services”). By agreeing to these terms, you will have the right to utilize any, or all, of the Services. Using a Service does not require utilizing any other Service. Using any of the Services to facilitate a transaction will incur transaction fees as defined in Section 2.2.
  1. Notifications. Parcel will provide You with the ability to receive a notification when an event (quote request, chat message, order, etc.) has been received. These notifications can be in-app, via email, or via text message (SMS), as elected by Customer. Parcel provides the ability for End Users to define the events and channels they will receive notifications for. Utilizing third party communication channels is not required, but if they are used, standard message and data rates may apply from the carrier delivering the messages.
  2. Listings. Parcel will provide You the ability to create product or service listings. Parcel will enable You to include Customer Data such as company or product logos, rich text descriptions and ancillary attachments in listings to best communicate your offering. Parcel will provide You with the ability to publish or delist listings. Published listings will be made available for Growers to find and review through the Parcel Marketplace. Parcel reserves the right to filter some, or all Customer Data defined in a listing and adjust the presentation to be appropriate to the Marketplace. Parcel makes no representation as to the order listings will appear, and may vary depending on external factors, such as grower location or search terms entered.
  3. Quotes / Agreements. Parcel will enable Growers who view Your listings to request a quote from You to provide Products or service described in the product listing. Parcel will provide You with the ability to respond to quote requests. You will have the right to reject any quote request for any reason or respond to the request with a proposal (quote and associated legal terms) to form an agreement with the Grower (collectively, a “Grower Agreement”). Parcel will provide the ability to attach external documents to the proposal, which will be shared with the Grower. The Grower will have the right to approve or reject the proposal. Parcel’s Grower Terms of Service will stipulate that any approval of a Grower Agreement is legally binding on the Grower. If the Grower approves the proposal, You now have an agreement with the Grower and are bound to deliver any valid orders received against that Grower Agreement. Grower Agreements are time bound, based on an end date provided with the quote. Should the Grower reject the proposal, Parcel will provide the ability to renegotiate the proposal between You and the Grower using both the Quote / Grower Agreement workflow, as well as the Communication service. In the event of any dispute between Customer and a Grower pursuant to a Grower Agreement, Parcel will provide all assistance reasonably requested by Customer for purposes of enforcing its rights under such Growers Agreement.
  4. Orders / Reservations. Growers who have a valid Grower Agreement with You can place orders for goods or services against that Grower Agreement. You will be notified when an order is received and provided with the details as specified in the listing to fulfill that order; provided that no such order shall be effective until Customer expressly accepts it. Parcel is not involved in the actual transaction between You and the Grower and is not the agent of and has no authority for either for any purpose. Parcel will enable You to track the status of Grower Agreements and orders in the system and manage their state. Some order types include time sensitive delivery (e.g., hauling reservations) and must be delivered in the timeframe specified on the order. Parcel reserves the right to suspend listings or terminate the account if You fail to deliver the goods or services from valid orders in a timely manner.
  5. Recommendations. You will have the ability to provide recommendations to any Growers with which You have a valid Grower Agreement. Recommendations may include recommended product or service orders and recommended activities to be performed on fields or equipment Growers have shared via the Grower Agreement.
  6. Records. You will have the ability to provide records to any Growers You have a valid Grower Agreement with on any fields or equipment shared with You. Records are facts, based in JavaScript Object Notation (JSON) that Growers retain as proof of work or current conditions that You provide as a part of a service You deliver.
  7. Communication. If a Grower contacts You through the Marketplace, a discussion channel will be created which will enable bi-directional Communication between You and the Grower.
  8. Invoices. You will have the ability to generate invoices in Parcel for any Grower you have a valid agreement with. Invoices are presented to Growers via a third-party payment system (Stripe). As such the third-party payment system shoulders all financial responsibility for facilitating the transaction. Before enabling invoicing, You will be required to establish a Stripe business account and agreeing to the terms therein. Invoicing Growers through Parcel for orders placed in Parcel is not required. Invoicing growers outside of Parcel for orders placed via Parcel does not negate the transaction fees associated with facilitating the transaction. You agree that it is Your and the Grower's responsibility to determine whether sales or use taxes apply to the transactions and to collect, report, and remit the correct tax to the appropriate tax authority. You also agree that Parcel is not obligated to determine whether sales or use taxes apply and is not responsible to collect, report, or remit any sales or use taxes arising from any transaction.
2. Fees. Parcel makes the platform available to growers, vendors and produce buyers at no charge. Parcel charges fees when You facilitate a transaction with a Grower (sells them something). These fees are defined in the Order Form.
3. Ordering Hosted Services. Customer entered into the Agreement on the Effective Date. Commencing on the Effective Date, and continuing while this Agreement is in force, Customer may access and use the Hosted Services described in this Agreement. Customer and Parcel will each comply with the terms of this Agreement and all laws, rules, and regulations applicable to its provision and use of the Hosted Services.
4. Hosted Services. Parcel will provide the Hosted Services to Customer as described in 2.1. Parcel shall provide Customer, at Parcel's sole expense, with bug fixes and code corrections to correct Software malfunctions in order to bring the Services into substantial conformity with the operating specifications, and will (a) provide Customer with all assistance required in connection with the proper use of the Hosted Services, and (b) test and maintain the Platform in an effort to keep it accessible for use by Customer and operating effectively and reliably (collectively, the “Support and Maintenance Services”).

Compensation and Taxes.
1. Fees and Invoicing. Customer will pay to Parcel all fees as set forth in the Order Form and Agreement. Customer will pay all invoiced amounts in US dollars within 30 days following the date of the invoice.
2. General Payment Terms. Customer will compensate Parcel for the Services in accordance with the subscription or commission-based model applicable to Customer’s offerings (“Products”), as set forth below, statements, or confirmations issued by Parcel to Customer with respect to such Products. Where payments are made via bank transfer, Parcel will issue an invoice for the commission due to Parcel with respect to all amounts payable to Parcel by Customer for the previous term. Amounts owed will be based on delivery dates and any reporting generated throughout this Agreement. Where payments are made via credit card, the Customer shall promptly provide payment-card or banking information as requested by Parcel to authorize payment of all commissions and fees due and owing for the Services. Customer authorizes Parcel to charge Customer’s designated payment method, in local currency specified by Parcel, for all amounts owing under this Agreement as each payment becomes due, and all annual subscription renewals, as applicable. Customer will be responsible for any transaction fees incurred from credit card usage. Parcel has the right to immediately remove or suspend the Customer’s account or Products for failure to pay amounts owing on any due date. Removal or suspension of customer’s account or Products attributable to late or missing payments will not relieve customer of any of its obligations under this Agreement.
3. Taxes. Parcel may charge and Customer will pay applicable national, state or local sales or use taxes or value added taxes (“Taxes”) and will state such Taxes on the original invoice that Parcel provides to Customer. Customer may provide Parcel an exemption certificate acceptable to the relevant taxing authority, in which case, Parcel will not collect the Taxes covered by such certificate. The Parties will cooperate with each other in providing any forms, documents, or certifications as may be required for either Party to satisfy any information reporting or withholding tax obligations with respect to any payments under this Agreement.

Customer’s Use of the Hosted Services.
1. License. Parcel hereby grants to Customer (a) a limited, revocable, non-exclusive, non-transferable, right and license to, and allow its End Users to, access, use and operate the Hosted Services; and (b) a limited, revocable, non-exclusive right and license, in each case non-sublicensable except to Customer’s Affiliates, to access, use, and operate any software provided or made accessible by Parcel in connection with the Hosted Services, all solely within the geographic area designated in this Agreement, if applicable.
2. API. Customer may access and use the Parcel APIs (together, the “Parcel API”).The Parcel API, and all Intellectual Property Rights in it (the "Parcel Property"), is owned by Parcel or its licensors. Customer does not acquire any right, title, or interest in or to any of the Parcel Property through Customer’s use of the Parcel API, or through these Terms, except as expressly set forth in the following license grant. For as long as Customer has a current and valid Agreement, Parcel grants Customer a limited, non-exclusive, revocable, non-sublicensable and non-transferable license to access and use the Parcel API, solely as described in this Agreement, and in accordance with the terms of this Agreement. CUSTOMER’S USE OF THE PARCEL API IS AT CUSTOMER’S SOLE RISK. PARCEL PROVIDES THE PARCEL API ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. TO THE EXTENT PERMITTED BY LAW, PARCEL DISCLAIMS ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. PARCEL MAKES NO WARRANTY OR REPRESENTATION THAT ANY SERVICE AVAILABLE THROUGH THE PARCEL API WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT ANY RESULTS AVAILABLE THROUGH THE USE OF THE PARCEL API WILL BE ACCURATE OR RELIABLE.
3. Parcel Furnished Materials. Parcel hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to reproduce, display and use the Furnished Materials that are provided or made accessible by Parcel to Customer (“Parcel Furnished Materials”) for purposes of using and receiving Hosted Services.
4. Account Password and Security; Use of the Hosted Service. Customer and its End Users may access the Hosted Services through accounts with usernames and passwords. Customer will protect its passwords and take full responsibility for Customer's and its End Users’ use of passwords and accounts. Customer is solely responsible for any and all activities that occur under its accounts, except for any activities performed by Parcel as set forth herein, and will be primarily liable to Parcel for any and all third party violations of the terms of this Agreement (as applicable) as if it were the party who had committed any such violations. Customer will notify Parcel immediately upon learning of any unauthorized use of its account(s), any End User account, or any other security compromise. From time to time, Parcel's support staff may log in under an administrator password in order to maintain or improve the Hosted Services, including providing Customer assistance with technical or billing issues. Customer hereby acknowledges and consents to such access. Each login (i.e., username and password) may be used only by a single, individual End User. If Customer exceeds the maximum number of authorized users specified in this Agreement, Customer will pay for additional authorized users at the rate stated in 2.2 Fees. Customer is responsible for all use and misuse that occurs under Customer’s login credentials, and will notify Parcel of any unauthorized access or use of which Customer becomes aware throughout the Agreement Term.
5. Hardware. If the Hosted Services specified in (2) Hosted Services require that Customer procure and maintain certain hardware or other physical equipment in order to receive the Hosted Services, then Customer will procure and install the specified system (“Customer’s System”) at Customer’s location prior to the Effective Date. As between the Parties, Customer will be solely responsible for all service and maintenance to Customer’s System, and Parcel will not be responsible for or have any liability for any damage to Customer’s premises, systems, or data caused by Customer’s System. Customer will at all times ensure that Customer’s System is updated with the latest commercially available updates, and will grant remote access to Customer’s System to Parcel upon request in connection with the Hosted Services.
6. Use Restrictions. Customer will not at any time and will not permit any person (including, without limitation, End Users) to, directly or indirectly: (i) use the Hosted Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Hosted Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Hosted Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Hosted Services to any other person, or otherwise allow any person to use the Hosted Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Hosted Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Hosted Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Hosted Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Hosted Services features provided by Parcel for use expressly for such purposes; or (viii) use the Hosted Services, Documentation or any other Parcel Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Hosted Services.
7. Shared Data. You may receive data shared through the platform from a Grower to enable You to conduct business with that Grower. The data shared will be constrained to an agreement between You and a Grower. You may use the data provided during the term of the agreement solely for purposes of fulfilling the agreement. You are prohibited from deriving independent commercial benefits from such data without express written consent of the grower. Any data shared between a Grower and You is owned by the Grower, and the Grower retains all rights to that data. Any data you share with the Grower, such as records or recommendations, becomes the property of the Grower. Upon termination of the agreement, You are required to certify the deletion of all shared data within 30 days, unless otherwise required by law, and subject to audit by the Parcel or the Grower.

Customer Furnished Materials. If and to the extent necessary for Parcel to provide the Hosted Services, Customer hereby grants to Parcel during the Agreement Term a limited, non-exclusive, non-transferable, non-sublicensable license to reproduce and use the Furnished Materials provided or made accessible by Customer to Parcel (“Customer Furnished Materials”) solely for purposes of providing the Hosted Services.

Customer and Usage Data. Parcel may collect, use, store and retain Customer Data transferred by Customer as necessary for Parcel to provide, operate, or improve the Hosted Services, and may use Customer Data to create de-identified information for research, analytics, and modeling purposes. Parcel will not otherwise collect, monitor, use or retain any Customer Data, except as permitted in this Agreement. Parcel may monitor, collect, use, and store usage and performance data generated by or derived from Customer’s and its End Users’ use of the Application and Hosted Services (“Usage Data”). Parcel will own all Usage Data and may use it without restriction for its purposes in further developing and enhancing the Application, Platform, and Hosted Services, and for any other purpose.

Confidentiality.
1. Confidential Information. As used in this Agreement, the term “Confidential Information” means all non-public information disclosed by one Party or its affiliate or agent (“Disclosing Party”) to the other (“Receiving Party”) that is designated as confidential, or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information includes, without limitation, (i) nonpublic information relating to the Disclosing Party’s strategy, technology, customers, business plans, promotional and marketing activities, finances, and other business affairs, (ii) third-party information that the Disclosing Party is obligated to keep confidential, and (iii) the existence of this Agreement.
2. Prohibition on Use or Disclosure.The Receiving Party may use Confidential Information only in connection with carrying out its obligations or exercising its rights under this Agreement and will not disclose Confidential Information to anyone without the Disclosing Party’s prior written consent. The Receiving Party will restrict the possession, knowledge, and use of Confidential Information to its employees and contractors (collectively, “Representatives”) who need to know such information in connection with Receiving Party’s use and/or disclosure of the Confidential Information pursuant to this Agreement, and will take all reasonable measures to avoid disclosure, dissemination, or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. The Receiving Party will ensure that its Representatives comply with this Agreement. Receiving Party’s obligations of confidentiality and nonuse will not apply to any of the following: (a) information in the public domain or available to the public without any breach of this agreement, (b) information available to the Receiving Party from third parties without any non-disclosure obligation to Disclosing Party, or (c) information that can be shown by documentation to have been independently developed by Receiving Party. Receiving Party will promptly notify Disclosing Party of any unauthorized use or disclosure of Confidential Information of which it is aware. The reporting Party will make the report to the other Party immediately upon discovery of the unauthorized disclosure, but in no event more than three (3) business days after the reporting Party reasonably believes there has been such unauthorized use or disclosure. The reporting Party will include in its report: (i) the nature of the unauthorized use or disclosure, (ii) the specific Confidential Information used or disclosed, (iii) who made the unauthorized use or received the unauthorized disclosure, (iv) what the reporting Party has done or will do to mitigate any deleterious effect of the unauthorized use or disclosure, and (v) what corrective action the reporting Party has taken or will take to prevent future similar unauthorized use or disclosure.
3. Return or Destruction of Confidential Information.Confidential Information is the property of Disclosing Party. Upon the Disclosing Party’s request, the Receiving Party will, as soon as practicable, destroy or deliver to the Disclosing Party all Confidential Information. Notwithstanding the foregoing, the Receiving Party may retain for its sole use an archival copy of the Confidential Information; provided, however, that such archival copy will remain Confidential Information subject to the continuing confidentiality provisions of this Agreement.
4. Disclosures Required by Law.The Receiving Party may disclose Confidential Information as and solely to the extent required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law and will, where legally permissible, promptly notify Disclosing Party in advance of such obligation and allow Disclosing Party to seek an appropriate protective order or other legal recourse, and/or, at Disclosing Party’s sole option, waive compliance with the terms of this Agreement.

Representations and Warranties.
1. Of Parcel. Parcelrepresents and warrants that:(a) the Hosted Services will materially conform to the applicable performance capabilities and other descriptions set forth in any specifications and documentation provided or published by Parcel (collectively “Specifications”); (b) it will perform the Hosted Services in a competent and workmanlike manner; (c) in its provision of the Hosted Services, it will comply with all applicable ordinances, codes, standards, laws, rules, regulations and orders of any governmental authority having jurisdiction over Parcel’s performance of its obligations under this Agreement (“Laws”); and (d) it has all rights necessary for its execution and delivery of this Agreement and performance of its obligations under this Agreement.
2. Of Customer. Customer represents and warrants that: (a) Customer or its licensors own all right, title, and interest in and to Customer Furnished Materials, Customer Data and Feedback; (b) in its use and distribution to End Users of the Application and the Hosted Services, it will comply with all Laws; (c) it has all rights necessary for its execution of, performance of its obligations, and exercise of its rights under this Agreement; and (d) Customer shall not circumvent, or enter into agreements with other Parcel customers using the Platform in an attempt to circumvent, either Customer’s or such other customer’s payment obligations under this Agreement.
3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1 OF THIS AGREEMENT, PARCEL MAKES NO WARRANTIES (EXPRESS OR IMPLIED) WITH RESPECT TO THE PERFORMANCE OF THE APPLICATION AND SERVICES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PARCEL ACTS AS A PLATFORM TO ALLOW CUSTOMERS WHO COMPLY WITH PARCEL’S POLICIES TO CONNECT WITH GROWERS AND BUYERS WHO MAY DESIRE CUSTOMER SERVICES. PARCEL IS NOT DIRECTLY INVOLVED IN ANY TRANSACTIONS BETWEEN USERS OF THE PLATFORM. AS A RESULT, PARCEL HAS NO CONTROL OVER THE QUALITY OF THE SERVICES PROVIDED BY THE CUSTOMERS OR THE TRUTH OR ACCURACY OF THE INFORMATION PROVIDED BY USERS, OR THE ABILITY OF CUSTOMERS TO PROVIDE SERVICES IN A TIMELY MANNER, IF AT ALL. CUSTOMER AGREES THAT PARCEL IS PROVIDING THE PLATFORM AND, AS SUCH, IS NOT RESPONSIBLE OR LIABLE FOR ANY SERVICES OR OTHER CONTENT POSTED BY CUSTOMER, OTHER USERS, OR THIRD PARTIES ON THE PLATFORM. CUSTOMER’S USE OF THE SERVICES IS AT CUSTOMER’S OWN RISK.

Limitations on Damages and Liability.

EXCEPT FOR DAMAGES OR LIABILITIES ARISING UNDER A PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT, A PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 7 (Confidentiality, Privacy and Security), OR TO THE EXTENT ARISING OUT OF A PARTY’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, NEITHER PARTY WILL BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) TO THE OTHER PARTY FOR DAMAGES FOR ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PARCEL’S AGGREGATE LIABILITY ARISING FROM THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE TOTAL AMOUNTS PAID BY CUSTOMER HEREUNDER.

Indemnification.
1. Indemnification.
  1. By Parcel. Subject to Section 10.1.2 and 10.2, Parcel will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Hosted Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Parcel (including reasonable attorneys’ fees) resulting from such Claim.
  2. Exclusions. Parcel’s obligations under this Section 10 will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Furnished Materials or Customer Data; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Hosted Services that have been provided by Parcel; (iv) modifications to the Hosted Services by anyone other than Parcel; or (v) combinations of the Hosted Services with software, data or materials not provided by Parcel.
  3. By Customer. Subject to Section 10.2, Customer will defend Parcel against Claims arising from (i) any Customer Furnished Materials or Customer Data, including, without limitation, (A) any Claim that the Customer Furnished Materials or Customer Data infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Furnished Materials or Customer Data violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) use of the Hosted Services by Customer or its End Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 4.6, and in each case, will indemnify and hold harmless Company against any damages and costs awarded against Company or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
  4. Procedure. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.
  5. Infringement Remedy. If Parcel reasonably believes the Hosted Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Parcel may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Hosted Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue use of the Hosted Services. If Parcel determines that neither alternative is commercially practicable, Parcel may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Parcel will refund to Customer a pro-rata portion of the Hosted Service Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 10.3 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Hosted Services.

Trademark License; Ownership Rights.
1. Trademarks; Marketing. Customer hereby grants to Parcel a non-exclusive, non-transferable (except as permitted in Section 13.1), limited right to use and display the Customer’s trademarks for the limited marketing purposes described in this Section 11.1. Parcel may use these trademarks within the platform when provided by the Customer as Customer Data for the purposes of marketing Customer’s company and products. Parcel will not alter or modify the Customer trademarks except to resize for the purposes of display, keeping relative proportions the same. All Customer trademarks will remain the exclusive property of Customer or its licensors. Apart from the license granted in this Section 11.1, Parcel does not hereby acquire any rights in the Customer trademarks. All use by Parcel of the Customer trademarks will inure to the benefit of Customer. Parcel will, upon the written request of Customer, cooperate with Customer to ensure that the use of the Customer’s trademarks conforms to the Customer’s trademark policies and use guidelines as communicated to Parcel by Customer from time to time.
2. Parcel Ownership. As between the Parties,Parcel or its licensor(s) owns and reserves all right, title and interest in and to the Application, the Platform, Hosted Services, Parcel Furnished Materials, Usage Data and all Intellectual Property Rights in or to any of the foregoing (“Parcel Intellectual Property”). Except as may expressly be set forth in this Agreement, no right, title, or interest to any of the Parcel Intellectual Property Rights is transferred or licensed to Customer. Except as expressly provided in this Agreement, Customer has no right to use or disclose Parcel Intellectual Property Rights. Customer hereby grants to Parcel a perpetual right to use and incorporate into the Application, Platform, or Hosted Services any feedback or suggestions for enhancement that Customer provides to Parcel (“Feedback”), without any obligation of compensation.
3. Customer Ownership. As between the Parties,Customer or its licensor(s) owns and reserves all right, title and interest in and to the Customer Furnished Materials, Customer Data, Customer trademarks, and all Intellectual Property Rights in or to any of the foregoing (“Customer Intellectual Property”). Except as may expressly be set forth in this Agreement, no right, title, or interest to any of the Customer Intellectual Property is transferred or licensed to Parcel.

Term and Termination.
1. Term. This Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement, continues for a period of three years. Thereafter, this Agreement will continue until either Party terminates by providing at least 90 days’ prior written notice; but the terms of this Agreement will continue to applyas of the date of termination.
2. For-Cause Termination. Either Party may terminate this Agreement for the other Party’s material breach of this Agreement that has not been cured after a period of 30 days following written notice of such breach. Either Party may terminate this Agreement upon written notice to the other for any voluntary or involuntary bankruptcy or insolvency of the other Party, or if any action or proceeding is instituted against the other Party relating to any of the foregoing and such action or other proceeding is not dismissed within 60 days after institution thereof. In addition, Parcel may terminate this Agreement upon written notice to Customer if a court of competent jurisdiction or governmental authority, regulatory or administrative agency or commission enacts any law, statute, rule, or regulation or issues any final and non-appealable order or decree that restrains, enjoins, or otherwise prohibits Parcel from performing or substantially performing under this Agreement or makes such performance technically or financially infeasible for Parcel.
3. Survival. This Section 12.3 and Sections 1, 3, 4.6, 6 through 11 and 13 (together with all other provisions hereof that may be reasonably interpreted as surviving termination or expiration of this Agreement) will survive the termination or expiration of this Agreement.

Miscellaneous.
1. Assignment. Neither Party may assign this Agreement or its obligations or rights hereunder, in whole or in part, without the prior written consent of the other Party; provided that Parcel may freely assign, without consent, in whole or in part, any of its rights and interests under this Agreement at any time to any person directly or indirectly controlling, controlled by, or under common control with Parcel; to any person that is, concurrently with such assignment, succeeding to substantially all of the assets of Parcel to which this Agreement relates; or in connection with any merger, consolidation, reorganization, sale of all or substantially all of the assets to which this Agreement pertains or to any Affiliate. All the terms and conditions of this Agreement will be binding upon, will inure to the benefit of, and will be enforceable by the Parties and their respective successors and permitted assigns.
2. Entire Agreement. This Agreement, together with all associated exhibits and schedules, all of which are incorporated by this reference, constitute the complete and final agreement of the Parties pertaining to the Hosted Services and supersede the Parties’ prior agreements, understandings and discussions relating to the Hosted Services. No modification of this Agreement is binding unless it is in writing and signed by Customer and Parcel. This Agreement and amendments may be executed electronically and may be signed in counterparts (which may be scanned or faxed copies), which together will constitute one agreement. The Parties may use standard business forms or other communications, but use of such forms is for convenience only and does not alter the provisions of this Agreement.
3. Governing Law; Venue; Jurisdiction. This Agreement is governed by California law, excluding its conflicts of law rules. The Parties agree to exclusive jurisdiction and venue in the state and federal courts located in Sacramento County, California, for any dispute arising out of this Agreement, and waive all objections to jurisdiction and venue of such courts.
4. Independent Contractor. Parcel will perform under this Agreement as an independent contractor of Customer, and this Agreement will not be construed to create a partnership, joint venture, agency, employment or any other relationship between Parcel and Customer. As between the Parties, Parcel is solely responsible for all salaries and other compensation of its employees who provide Hosted Services to Customer, and for making all deductions and withholdings from its employees’ salaries and other compensation and paying all contributions, taxes, and assessments.
5. Notices. To be effective, all notices given under the Agreement must be in writing to the Party to receive such notice at the addresses listed below and will be deemed to have been duly given if (a) delivered personally, or (b) sent by a nationally recognized courier service or overnight carrier. Either Party may change the address to which notice is to be submitted by notice delivered pursuant to this Section by giving the other Party notice of such change in accordance with this Section 13.5.
6. Severability. If any provision of this Agreement is determined by any court or governmental authority to be unenforceable, the Parties intend that this Agreement be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions be enforced to the extent that they are enforceable.
7. Waivers and Remedies. The failure of either Party to enforce any provision of this Agreement will not constitute a waiver of the Party’s rights to subsequently enforce the provision. Except as expressly specified otherwise herein, the remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
8. Use of Name or Logo; Publicity. Except as expressly stated in Section 11.1, and as Customer Data provided by the Customer for use in the Platform, this Agreement does not grant either Party any right to use the other’s names, titles, words, logos, symbols, trademarks, or service marks, or make any reference to the other Party in any manner, without the prior written approval of the other Party. Apart from the rights expressly granted in this Agreement, this Agreement does not grant either Party any further rights to the other Party’s Intellectual Property Rights, by implication or otherwise.
9. Updates to this Agreement. Parcel may update the terms of this Agreement from time to time. If We do, We will post the updated terms and will notify the Customer in writing via email at least 30 days in advance of the new terms taking effect. If You incur additional Fees, after the updated Agreement takes effect, You agree to the updated terms unless Your existing Agreement with Us expressly prohibits updating the Agreement by this mechanism.

IN WITNESS WHEREOF, the Parties have accepted this Agreement upon execution of the Order Form by their authorized representatives.