Neighborly Franchise Terms of Use

Dwyer Franchising LLC, a Delaware LLC, with offices at 1010 N. University Parks Dr. Waco, Texas 76707 (“Neighborly”) and Paradox, Inc., a Delaware corporation, with offices at 6330 E. Thomas Road, Scottsdale, Arizona 85251 (“Paradox”) have entered into a certain agreement (the “Neighborly Agreement”), pursuant to which Paradox shall make specific recruiting SaaS available to certain Neighborly franchisees that have accepted the terms and conditions of these Neighborly Franchise Terms of Use (the “Terms”). The Terms are incorporated into the applicable Subscription Signup (as defined below), which together constitute a single agreement (the “Agreement”). Client and Paradox are each a “Party” under the Agreement and together are the “Parties”.

a) "Affiliate" means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by or is under common control with such Party, where “control” is defined as the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity.

b) "Client" the legal entity that has entered into the applicable Subscription Signup.

c) “Client Data” means the electronic data or information submitted, provided, uploaded, transmitted, imported, displayed, or otherwise made available by Client or on behalf of Client to Paradox through the Services, except as otherwise expressly set forth in these Terms, including Personal Information.

d) “Cloud Software” means all Paradox software programs provided to Client pursuant to the Agreement, including any related improvements, modifications, updates, and associated documentation.

e) “Subscription Signup” means any ordering document, sign-up page, or agreement that references or incorporates by reference these Terms, pursuant to which Services are made available to a Neighborly franchisee.

f) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or in the future in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

g) “Personal Information” means Client Data that can be used to identify a specific natural person, such as name, address, phone number, email address and government issued identification number.

h) “Professional Services” means the professional services to be provided by Paradox to Client pursuant to a Subscription Signup, which may include, without limitation, integration, configuration and implementation services.

i) “Services” means all products and services provided by Paradox pursuant to the Agreement, including, without limitation, Cloud Software and Professional Services.

j) Sub-Processor” means any entity which is engaged by Paradox or any other sub-processor of Paradox who receives Client Personal Information for processing activities to be carried out on behalf of Client.

k) “Supplier” means a third party that supports Paradox in delivering the Cloud Software to Client, including, without limitation, Sub-Processors.

l) “User” means any individual who is authorized to use the Services pursuant to the Agreement. A User may include employees of Client or its Affiliates or other third parties, so long as such third party is not a direct competitor of Paradox.

a) Provision of Cloud Software. During the Subscription Term, Paradox will provide or make available to Client the Cloud Software for use in the ordinary course of its business by its Users, subject to the terms and conditions of the Agreement.

b) Service Requirements. Paradox may make commercially reasonable changes to the Cloud Software without notification or consent, as long as the changes do not materially decrease the features or functionality of the Cloud Software. Paradox will comply with all laws and regulations applicable to Paradox in the performance of its obligations under the Agreement. Client’s purchase of I-9 Services shall be governed by the terms and conditions available at https://www.paradox.ai/legal/i9-services.

c) Data Security. The security of Client data is important to Paradox. Paradox has implemented and will maintain administrative, technical, and physical safeguards designed to protect the Cloud Software and Client Data against accidental, unauthorized, or unlawful access, disclosure, destruction, loss, or misappropriation, consistent with Paradox’s ISO 27001 certification and SOC 2 Type II audit compliance standards.

d) Client Involvement in Services. Paradox’s ability to perform certain Services, including Professional Services, depends on information and responses that must be provided by Client. As a result, Client will: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably requested by Paradox, to allow Paradox to perform the Services; (ii) carry out reviews and respond to requests for approval and information on a timely basis; (iii) ensure that Paradox has sufficient access to personnel familiar with Client’s requirements and with the expertise necessary to permit Paradox to undertake and complete the Services; (iv) make available to Paradox all equipment, material, information, data, network access and/or facilities that Paradox may reasonably require to carry out its Services; and (v) designate a project management contact for the purposes of communication with Paradox, who will be the primary point of contact for Client for matters relating to Paradox’s provision of Services. Client acknowledges that any delay in the performance of its obligations may impact Paradox’s ability to perform the Services, and Paradox will not be liable for any delay to the extent caused by Client’s failure to meet its obligations under the Agreement.  

a) General. All Professional Services to be performed by Paradox will be described in the Neighborly Agreement.

b) Paradox’s Obligations. Paradox will perform Professional Services in a professional and workmanlike manner in accordance with customary industry standards using reasonable care and skill, but Paradox will determine the method and means for performing the Professional Services.

c) Deliverables. Paradox does not provide any custom deliverables, products or services under the Agreement which would qualify as work-made-for-hire. Professional Services will be performed remotely unless otherwise specified in the Neighborly Agreement. Professional Services are provided for the purposes of implementing and configuring Client’s instance of the Cloud Software in accordance with Client’s instructions and requirements and such Services are not intended as, and shall not constitute, legal advice.  Client shall at all times be responsible for ensuring Client’s and its Users’ compliance with all laws, rules and regulations applicable to Client’s and its Users’ use of the Services.

a) Use of Services.

i. Client will use the Services in accordance with the terms of the Agreement. In addition, Client will: (A) use the Services solely for its internal business purposes and not for the benefit of any third parties; (B) comply, and cause its Users to comply, with the Agreement; (C) obtain all consents from third parties that Client has a business relationship with (e.g. network providers or outsourced IT resource providers) that are required in order for Paradox to provide the Services; (D) prior to providing, making available or permitting Paradox to collect any Personal Information or other content or information in connection with the Services, provide or obtain, as the case may be, to or from applicable third parties (including, without limitation, Client’s contacts, Users, agents, administrators, candidates, and employees), all notices and consents required for Paradox to process such Personal Information, content and information under applicable law and ensure that all notices and consents are maintained as required by applicable law; (E) promptly notify Paradox of any unauthorized access or use of the Services, passwords, authentication credentials, or any unauthorized use, access, or disclosure of Client Data; and (F) comply with all laws applicable to Client and Client’s use of the Services.

ii. Client will not: (A) modify, copy, duplicate, download, reverse engineer, disable, decompile, translate, disassemble, create any derivative work of, or otherwise attempt to extract any or all of the source code, algorithms, proprietary technology, or analytics from the Services; (B) license, sublicense, sell,  resell, rent, lease, lend, transfer, assign, distribute, time share, offer in a service bureau, or commercially exploit the Services, use the Services to provide hosting services to third parties, or otherwise make the Services available to any third party, except as expressly permitted by the Agreement; (C) disable, interfere with or circumvent any aspect of the Services; (D) interfere with other users’ use of the Services; (E) engage in, promote or encourage illegal activity or the violation of the legal rights of third parties; (F) generate, distribute, publish, facilitate or send marketing or otherwise commercial messages; (G) send any messages through the Service that are not directly related to recruitment, hiring, human capital management or candidate/employee engagement; (H) copy any features, functions, integrations, interfaces or graphics of the Services; (I) send or store known viruses, worms, time bombs, Trojan horses, and other harmful, destructive, deceptive or malicious code, files, scripts, agents or programs; (J) send or store infringing, obscene, threatening, defamatory, obscene, racially or ethically offensive, libelous, fraudulent or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party rights, including privacy rights; (K) interfere with or disrupt the integrity or performance of the Services or the data contained in the Services; (L) gain or attempt to gain, or fail to use commercially reasonable efforts to protect against, unauthorized access to the Services or its related systems or networks or to the data of another Paradox client; or (M) perform any technical, application, or infrastructure security integrity review, penetration test, or vulnerability scan without the prior written consent of Paradox.

b) Users. Where the Services are provided on a per User basis, User accounts cannot be shared or used by more than one User, except that Client may reassign access to new Users to replace former Users who no longer use the Services. Client will not create multiple Users to simulate or act as a single User or otherwise use the Services in a manner intended to avoid incurring fees. Client and Users will keep passwords for their use of the Services confidential and secure. Client will ensure that its Users adhere to the terms of the Agreement. Any act or omission by a User will be treated as if it is an act or omission by Client under the Agreement, and Client is responsible for all acts and omissions of its Users.

c) Equipment. Client is responsible for obtaining and maintaining all equipment and ancillary services needed to connect to, access, and use the Services, including without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively “Equipment”). Client is also responsible for maintaining the security of Equipment, Client accounts, Client passwords (including administrative and User passwords and PINs) and Client files.  Paradox will have no liability for Client’s inability to use or access the Services due to Client’s failure to obtain, or due to any failure of, the proper Equipment.

d) Suspension. Notwithstanding anything to the contrary in the Agreement, Paradox may temporarily suspend Client’s and any User’s access to any portion or all of the Services if (i) Paradox reasonably believes that (A) there is a threat or attack on any of the Services; (B) Client’s or any User’s use of the Services disrupts or poses a security risk to the Services or any other customer or vendor of Paradox; (C) Client or any User is using the Services for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; or (E) Paradox’s provision of the Services to Client or any User is prohibited by applicable law; or (ii) any vendor of Paradox has suspended or terminated Paradox’s access to or use of any Third-Party Services or products required to provide Client access to the Services (each, a “Service Suspension”). Paradox will make commercially reasonable efforts to provide written notice of any Service Suspension to Client (including notices sent to Client’s registered email address) and updates regarding resumption of access to the Services following any Service Suspension. Paradox will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably practicable after the event giving rise to the Service Suspension is cured.  Paradox will have no liability for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Client or any User may incur as a result of a Service Suspension.

e) Client Third-Party Providers. In connection with its use of the Services, Client may, and may request that Paradox, import data from and export data to third-party service providers used by Client (with whom Client has entered into a separate agreement) (“Client Third-Party Providers”). In such an instance, Client authorizes Paradox to transfer (import and export), store, and process such data on Client’s behalf. Paradox will not be responsible for any act or omission of Client Third-Party Providers, including Client Third-Party Provider’s access to, use, provision, modification, or deletion of Client Data. Paradox does not warrant or support any Client Third-Party Service.

a) Third-Party Services. Paradox will make Client Data available to Suppliers as needed for Suppliers to provide any third-party services that enable Paradox to deliver the Cloud Software (“Third-Party Services”). The providers of Third-Party Services have reserved the right to apply updates and to make such other changes to the Third-Party Services that they deem necessary or appropriate. Any changes to the Third-Party Services may have a material impact on the provision of the Cloud Software, so, as a result of such changes, Paradox may need to make changes to the Cloud Software and will have no liability for any Third-Party Services. However, Paradox will use reasonable efforts to notify the Client in advance of any planned changes that may adversely impact Client’s access to or use of the Cloud Software.

b) Messaging Terms and Conditions. Paradox may provide Client and Client’s Users with access to Short Message Service (SMS), Multimedia Messaging Service (MMS) or other messaging services in connection with the Services. Client will ensure its and its Users’ full compliance with applicable law and the requirements of any and all regulatory agencies with respect to such services, including but not limited to the Telephone Consumer Protection Act (“TCPA”). For example, Client may be subject to the restrictions of the TCPA when Client messages any person for the purposes of marketing services to them through automated systems. As such, Client agrees to comply with all requirements of the TCPA in connection with any messages it sends using the Services. For additional information, Client may review the practices contained in the latest version of CTIA’s Short Code Monitoring Handbook and Messaging Principles and Best Practices Guide. The practices contained in these documents are designed to protect consumers in a manner approved by wireless carriers.

c) Short and Long Code Registration Requirements. Client agrees to cooperate fully with Paradox, and Client authorizes Paradox to take any and all action needed for Paradox to deliver SMS and MMS services to Client, including, as applicable, Paradox providing “know your customer” information to messaging and telecom providers, so that Paradox may deliver the Services. Know your customer information may include, without limitation, Client’s address, business type, entity type, registration or EIN number, industry, website, and region of operations, and will be used to develop a trust score, so that message throughput may be optimized. Client understands and agrees that Paradox does not control SMS or MMS message throughput and that failure or refusal to comply with the requirements of this Section 5(c) will materially affect Paradox’s ability to deliver the Services. Accordingly, notwithstanding anything in the Agreement, Paradox will have no liability for any damage, liabilities, losses or any other consequences that Client may incur as a result of any failure to comply with this Section 5(c).

d) Carrier Restrictions. Client acknowledges that all phone numbers used in connection with the Services are subject to rules and restrictions imposed by telecommunications and messaging providers (“Messaging Service Providers”). In order to comply with such rules and restrictions, Paradox and/or Client may be required to discontinue use of a number or short code. In such an instance, Paradox will use commercially reasonable efforts to obtain additional numbers or short codes and work with the applicable Messaging Service Providers to minimize any disruption in the Services. If Paradox is unable to prevent discontinuance of its or a Client’s use of a number or short code, Paradox may cease provision of the applicable portion of the affected Services.

a) Definition of Confidential Information. As used in these Terms, “Confidential Information” means all confidential or proprietary information belonging to a Party (the “Disclosing Party”) and disclosed, made available to or learned by the other Party (the “Receiving Party”) during the Subscription Term, including, without limitation, technical, business, financial, marketing or other information of every kind or nature (including, without limitation, trade secrets, know-how and information relating to the technology, Services, Cloud Software, designs, specifications and prototypes, clients, business plans, promotional and marketing activities, finances and other business affairs of such Party), third-party confidential information, and the terms and conditions of the Agreement. Client Data will be considered Confidential Information.

b) Exclusions. Confidential Information does not include any information that: (i) is or becomes generally available to the public through no improper action or inaction by the Receiving Party or any Representative of the Receiving Party; (ii) was properly in the Receiving Party’s possession or properly known by it, without restriction, prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to the Receiving Party by a third party without restriction; (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (v) Disclosing Party has agreed in writing that Receiving Party may disclose, including without limitation, as set forth in Section 6(c) below.

c) Confidentiality Obligations. Except as otherwise set forth in the Agreement, each Party will: (i) hold in strict confidence all Confidential Information of the other Party, (ii) use the Confidential Information solely to perform its obligations or exercise its rights under the Agreement, and (iii) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to its directors, officers, employees, consultants, subcontractors, auditors, Affiliates, Suppliers, Sub-Processors, legal and financial advisors or other representatives (collectively, “Representatives”) who need to know such Confidential Information and who are under confidentiality obligations at least as protective of Disclosing Party’s Confidential Information as these Terms. Any action or inaction by a Representative of the Receiving Party that, if taken or failed to be taken by the Receiving Party, would constitute a breach of these Terms, will constitute a breach of the Agreement by the Receiving Party, and each Party will be responsible for any breaches of the Agreement by its Representatives. Each Party will use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own Confidential Information, but not less than reasonable care. The Parties agree that the Confidential Information of the other Party is, and will remain, the property of such other Party. The Receiving Party obtains no right, title, interest, or license in or to any of the Confidential Information of the Disclosing Party except for the rights expressly set forth in the Agreement.

d) Permitted Disclosures. Notwithstanding Section 6(c) above, the Receiving Party may disclose the Confidential Information of the Disclosing Party in response to a valid court order, subpoena, civil investigative demand, law, rule, regulation (including, without limitation, any securities exchange regulation), or other governmental action, provided that, to the extent permitted by law: (i) the Disclosing Party is notified in writing prior to disclosure of the information, (ii) the Receiving Party uses reasonable efforts to allow the Disclosing Party to obtain a protective order or, in the absence of a protective order, to limit the disclosure of, and obtain confidential treatment for, the Disclosing Party’s Confidential Information, in each case, at the Disclosing Party’s expense, and (iii) the Receiving Party has allowed the Disclosing Party to participate in the proceeding that requires the disclosure at the Disclosing Party’s expense.

e) Remedies. Each Party agrees that the other Party may have no adequate remedy at law if there is a breach or threatened breach of this Section 6 and, accordingly, that either Party is entitled (in addition to any legal or equitable remedies available to such Party) to seek injunctive or other equitable relief without the necessity of proof of actual damages to prevent or remedy such breach. The obligations set forth in this Section 6 will survive any expiration or termination of the Agreement.

a) Reservation of Rights. Paradox is and will remain the exclusive owner of all right, title and interest in and to the Services, including any Intellectual Property Rights relating to the Services. All Intellectual Property Rights in any work arising from or created, produced or developed by Paradox, whether alone or jointly with others, under or in the course of the Agreement, will immediately upon creation or performance vest absolutely in, and will be and remain the property of, Paradox. Client will not acquire any right, title or interest in and to the Services or any related Intellectual Property Rights.

b) Ownership of Client Data. Client is and will remain the exclusive owner of all right, title and interest in and to Client Data, including, without limitation, any Intellectual Property Rights relating thereto. Paradox will not acquire any rights in Client Data or any related Intellectual Property Rights, except for those rights expressly set forth in the Agreement.

c) Personal Information. If Paradox receives Personal Information from or on behalf of Client in connection with Paradox’s provision of Services under the Agreement, then, except as otherwise permitted by law or the Agreement: (i) Paradox will only process such Personal Information for the purpose of providing the Services; (ii) Paradox will not retain, use, or disclose such Personal Information for any purpose other than to perform the Services; and (iii) Paradox will not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate such Personal Information to any third party for monetary or other valuable consideration. Notwithstanding the foregoing, Client acknowledges that Paradox may process certain Personal Information about the Client and/or its agents, representatives, employees, candidates, or other related third parties for Client support and reporting purposes, including, without limitation: (i) supporting Client, managing Client’s account, and fulfilling Paradox’s obligations under the Agreement; and (ii) compiling aggregate statistics of the distribution and use of the Services. Client may request access to and correction of applicable Personal Information or exercise any other rights it may have with respect to such Personal Information by law or the Agreement.

d) Enhancements to the Services; Improvement Data. Paradox will own and retain all right, title and interest in and to (i) all improvements, enhancements or modifications to the Services, (ii) any software, applications, inventions or other technology developed in connection with delivering the Services to Client, and (iii) all related Intellectual Property Rights. In addition, and notwithstanding any other provision of the Agreement, Paradox may use data that it collects and processes in connection with the Services, including Client Data, and other information related to the provision, use and performance of various aspects of the Services and related systems and technologies (i) to detect security incidents and protect against fraudulent and illegal activity; (ii) to build, improve and enhance the quality or performance of the Services  (“Improvement Data”), (iii) for other development, diagnostic and corrective purposes in connection with Paradox offerings, and (iv) to produce analyses, data and/or reports relating to the Services that derive from and/or relate to the data processed through the Services that is aggregated and/or deidentified (together with the Improvement Data, “Output Data”). Paradox will not use Output Data to re-identify a person. Except for Client Data, which is owned by Client, Paradox owns all right, title, and interest, including all Intellectual Property Rights, in and to the Output Data, which is the Confidential Information of Paradox. No licenses to such data are granted to Client, whether express, implied, by estoppel or otherwise.

e) Feedback. If Client sends or transmits any communications, comments, questions, suggestions, or related materials to Paradox, whether by e-mail, telephone, or otherwise (“Feedback”), suggesting or recommending changes to the Services, including, without limitation, new features or functionality, all such Feedback is, and will be exclusively owned by Paradox. Client hereby assigns all right, title, and interest in, and Paradox is free to use, without any attribution or compensation to Client, any ideas, know-how, concepts, techniques, and all applicable Intellectual Property Rights relating to the Feedback, whether or not patentable, for any purpose whatsoever, including but not limited to, developing, manufacturing, having manufactured, licensing, marketing, and selling, directly or indirectly, products and services using such Feedback. Paradox is not obligated to use, display, reproduce, or distribute any such ideas, know-how, concepts, or techniques contained in the Feedback, and Client has no right to compel such use, display, reproduction, or distribution.

a) Term. The term of Client’s subscription to the Services shall begin on the date Client completes and executes a Subscription Signup and shall expire or terminate concurrent with the Neighborly Agreement (the “Subscription Term”).

b) Termination for Cause. Either Party may terminate a Subscription Signup if the other Party: (i) ceases doing business for a period greater than ninety (90) days, makes an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding, which is not dismissed within ninety (90) days; or (ii) materially breaches any of its obligations under the Agreement and fails to cure such breach within thirty (30) days following written notice to the breaching Party.

c) Consequences of Termination. Upon the expiration or termination of the Subscription Term, (i) Client will immediately cease accessing or using the Services; (ii) all rights granted with respect to the Services will immediately terminate; (iii) Paradox will cease collecting or processing Client Data; (iv) Paradox will delete Client Data within thirty (30) days of the applicable expiration or termination; and (v) Paradox will make available to Client the Client Data in a .csv file.

d) Survival. Sections concerning the Parties’ rights and obligations that are designed to operate after termination or that are necessary to enforce any right will survive termination of the Agreement.

a) Warranties.  Paradox will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Paradox or by third-party providers, or because of other causes beyond Paradox’s reasonable control, but Paradox will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Paradox does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services.

b) Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE SERVICES ARE PROVIDED “AS IS” AND PARADOX, ON BEHALF OF ITSELF AND ITS REPRESENTATIVES, DISCLAIMS ALL WARRANTIES AND MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ACCURACY. CLIENT ACKNOWLEDGES THAT (A) NEITHER PARADOX NOR ITS REPRESENTATIVES CONTROL CLIENT EQUIPMENT, NETWORKS OR SYSTEMS OR THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES (INCLUDING THE INTERNET); (B) THE SERVICES MAY BE SUBJECT TO LIMITATIONS, INTERRUPTIONS, DELAYS, CANCELLATIONS, AND OTHER PROBLEMS INHERENT IN THE USE OF COMMUNICATIONS FACILITIES; AND (C) IT IS FULLY RESPONSIBLE TO INSTALL APPROPRIATE SECURITY UPDATES AND PATCHES. NEITHER PARADOX NOR ITS REPRESENTATIVES ARE RESPONSIBLE FOR ANY INTERRUPTIONS, DELAYS, CANCELLATIONS, DELIVERY FAILURES, DATA LOSS, CONTENT CORRUPTION, PACKET LOSS, OR OTHER DAMAGE RESULTING FROM THESE PROBLEMS.

a) Indemnification by Paradox. Paradox will defend, indemnify and hold Client and its trustees, officers, employees, agents, harmless from any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in connection with claims, demands, suits or proceedings made or brought against Client by a third party alleging that the Cloud Software infringes any third party’s Intellectual Property Rights (each, an “IP Claim”); provided, that Client: (i) promptly gives written notice of the IP Claim to Paradox; (ii) gives Paradox sole control of the defense and settlement of the IP Claim; and (iii) provides to Paradox, at Paradox’s cost, all reasonable assistance requested by Paradox. If Client is enjoined from using the Services or Paradox reasonably believes it will be enjoined, Paradox will have the right, at its sole option, to obtain for Client the right to continue use of the Services or to replace or modify the Services so that they are no longer infringing. If neither of those options is reasonably available to Paradox, the use of the Services may be terminated at either Party’s option. In event of such a termination, Paradox will continue to indemnify, defend, and hold Client and its trustees, officers, employees, agents, and volunteers harmless, and will refund to Client any prepaid fees for the Services that were to be provided after the effective date of termination. This provision will survive the termination or expiration of the Agreement.

b) Exceptions. Paradox will not have any obligation under Section 10(a) to the extent any alleged infringement arises from: (i) use or modification of the Cloud Software by Client, its Representatives, or Users in conflict with Client’s obligations or as a result of any prohibited activity as set forth under the Agreement; (ii) use of the Cloud Software in a manner inconsistent with any applicable documentation; (iii) use of the Cloud Software in combination with any other product or service not provided by Paradox; (iv) use of the Cloud Software in a manner not otherwise contemplated by the Agreement; or (v) Third-Party Services.

c) Exclusive Remedies. CLIENT AGREES THAT SECTIONS 10(a) and 10(b) TOGETHER SET FORTH PARADOX’S SOLE AND EXCLUSIVE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY IP CLAIM.

d) Indemnification by Client. Client will defend, indemnify and hold Paradox and its trustees, officers, employees, consultants, directors and agents, harmless from any and all liabilities, claims, damages, obligations, actions, lawsuits, losses, judgements, fines, penalties, costs or expenses (including reasonable attorney’s fees) in connection with claims, demands, suits or proceedings made or brought against Paradox based on: (i) Client’s breach of Section 4 of these Terms; (ii) Client’s use of the Services in violation of any applicable law to Client or Client’s use of the Services, or in a way that damages a third party; or (iii) Client’s Data actually or allegedly infringing a third party’s Intellectual Property Rights.

e) Indemnification Procedure. If either Party becomes aware of a claim for which it is entitled to indemnification pursuant to the Agreement (a “Claim”), such Party shall promptly provide the other Party with notice regarding the Claim; provided that the failure of a Party entitled to indemnification under this ‎Agreement (the “Indemnified Party”) to promptly provide such notice shall not relieve the Party obligated to indemnify the Indemnified Party (the “Indemnifying Party”) of any obligation it may have to indemnify, except and only to the extent that the Indemnifying Party’s ability to fulfill such obligation has been actually and materially prejudiced thereby. The Indemnifying Party shall control the defense of the Claim, but the Indemnified Party may participate in the defense of the Claim with its own counsel at its expense. The Indemnified Party shall, at the Indemnifying Party’s expense, cooperate fully with counsel selected by the Indemnifying Party in the defense of such Claim. The Indemnifying Party may not, without the Indemnified Party’s prior written consent, settle, compromise or consent to the entry of any judgment in any such commenced or threatened Claim, unless such settlement, compromise or consent: (i) includes an unconditional release of the Indemnified Party from all liability arising out of such commenced or threatened Claim and (ii) is solely monetary in nature and does not include a statement as to, or an admission of fault, culpability or failure to act by or on behalf of, the Indemnified Party.

a) Liability Cap and Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR (i) NONPAYMENT OF FEES DUE AND PAYABLE BY CLIENT UNDER THE AGREEMENT, (ii) DAMAGES ARISING OUT OF OR RELATING TO CLIENT’S VIOLATION OF PARADOX’S OR ITS SUPPLIERS’ INTELLECTUAL PROPERTY RIGHTS, (iii) DAMAGES ARISING OUT OF, OR RELATING TO, A PARTY’S BREACH OF SECTION 6 OF THE AGREEMENT THAT DOES NOT ARISE OUT OF OR RELATE TO THE PROCESSING OF CLIENT DATA HEREUNDER, AND (iv) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10: (A) THE CUMULATIVE, AGGREGATE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AFFILIATES TO THE OTHER PARTY FOR ALL CLAIMS RELATED TO THE SERVICES AND/OR THE AGREEMENT (INCLUDING ALL ANY SUBSCRIPTION SIGNUP) WILL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO PARADOX FOR THE SERVICES GIVING RISE TO THE CLAIM IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; AND (B) NEITHER PARTY (NOR THEIR RESPECTIVE AFFILIATES OR SUPPLIERS) WILL BE LIABLE FOR ANY LOST PROFITS, LOST REVENUE, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS INFORMATION, LOSS OF USE, DELETION OR LOSS OF DATA OR FAILURE TO STORE DATA, COSTS OF RECREATING DATA, OR THE COST OF ANY SUBSTITUTE EQUIPMENT SOFTWARE OR SERVICES (IN EACH CASE WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY WAY OUT OF THE USE OF THE SERVICES OR THE AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF A PARTY IS INFORMED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES IN ADVANCE.

b) BOTH CLIENT AND PARADOX AGREE THAT THE LIMITATIONS AND WAIVERS SET FORTH IN THIS SECTION 11 APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE AND BUT FOR THOSE LIMITATIONS, PARADOX WOULD NOT HAVE ENTERED INTO THE AGREEMENT. Any right of action, proceeding or claim permitted under or in connection with the Agreement must be brought within twenty-four (24) months after the occurrence of the act, omission or event first giving rise to the liability or is irrevocably waived.