The following terms of service (the “Terms”) govern the access to, and use of, the proprietary Software-as-a-Service platform for content management and back-end website development services (the “Service”) provided by Payload CMS, Inc., a Delaware corporation, (“Payload”) for the entity or person identified in connection with the creation of the Account (as defined below) and signing up for the Service, or agreeing to these Terms (the “Customer”) (Payload and Customer collectively, the “parties” or individually a “party”). By clicking on the “I Accept” button, creating an Account (as defined below) for the Service, and/or purchasing a Subscription (as defined below) to the Service via a webform or webpage setting out the details of the Subscription and referencing these Terms (each an “Order”, and all Orders submitted by or on behalf of Customer, if applicable, and together with these Terms, the “Agreement”), Customer and the individual submitting the Order or accepting the Terms on the Customer’s behalf represent that: (1) Customer agrees to be bound by this Agreement; (2) such individual has the authority to enter into this Agreement on behalf of Customer entity, and to bind Customer to this Agreement. If Customer does not agree to be bound by this Agreement, Customer may not access or use the Service. Payload may reject any Order submitted by Customer and no Order will be considered accepted, and no agreement will exist with respect to such Order until the earlier of: (i) Payload beginning to provide the Service as set forth in the Order; or (ii) Payload providing confirmation of the Order via email.

Please be aware that:

• If Customer purchases access to certain features and functionalities of the Service pursuant to an Order (a “Subscription”), such Subscription is subject to automatic renewals and recurring payments in accordance with Section 3.2; and
• Any capitalized terms not otherwise defined within these Terms will have the meaning prescribed to them in Section 11.

1. Services; API and SDK.

   1. Service. Subject to Customer’s ongoing compliance with the terms of the Agreement, Payload hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right during the Subscription Term (as defined in Section 3.2) to access and use, and allow Employee Users to access and use, the Service and Dashboard solely for Customer’s lawful internal business purposes. The Service can be deployed either on the cloud or on-premises. The Services will be deployed as specified in a Customer’s Order, as applicable.
   2. API and SDK License. Subject to Customer’s ongoing compliance with the terms of the Agreement, to the extent Payload makes available to Customer the API or SDK, and any Documentation, Payload hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Subscription Term, to: (i) integrate and embed the SDK into Customer’s mobile application and web-based platforms, (ii) use the API to submit to and obtain information from the Service in accordance with any associated Documentation solely as necessary in connection with the use of the Service in accordance with this Agreement; (iii) make only those copies of the API and SDK absolutely necessary to exercise Customer’s rights under the foregoing (i) and (ii); and (iv) make only those copies of the Documentation reasonably necessary to exercise Customer’s rights hereunder and use any Documentation in connection with Customer’s use of the Service, SDK, and API.
   3. Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of Payload Technology (except to the extent expressly made available to Customer by Payload or permitted by applicable law notwithstanding this restriction); (ii) write or develop any program based upon Payload Technology or any portion of any of the foregoing, or otherwise use Payload Technology in any manner for the purpose of developing, distributing or making available products or services that compete with Payload Technology; (iii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in Payload Technology or any rights to any of the foregoing; (iv) permit Payload Technology to be accessed or used by any persons other than Employee Users accessing or using Payload Technology in accordance with the Agreement; (v) alter or remove any trademarks or proprietary notices contained in or on Payload Technology; (vi) circumvent or otherwise interfere with any authentication or security measures of Payload Technology, or otherwise interfere with or disrupt the integrity or performance of the foregoing; or (vii) otherwise use Payload Technology except as expressly permitted hereunder. Customer represents and warrants that they have all rights, authorizations, and consents to provide Submitted Data to Payload, and that Customer has all rights, authorizations, and consents to grant Payload the rights and permissions to use, process, and exploit the Submitted Data as contemplated by this Agreement. Customer represents and warrants that it and all Employee Users will, at all times during the Subscription Term, comply with all applicable laws in connection with its use of Payload Technology, Provided Data, or Submitted Data. Customer acknowledges that Payload may, but is under no obligation to monitor Customer’s use of the Service. Payload may suspend Customer’s, or an Employee User’s access to the Service for any period during which Customer or an Employee User is, or Payload has a reasonable basis for alleging Customer or an Employee User is, in noncompliance with the foregoing.
   4. Service Levels and Support. During the Subscription Term, unless under a seperate signed agremeent, Payload will make the Service available in accordance with and provide the support set forth in the Service Level Agreement located at (the “SLA”), as may be updated by Payload from time to time in its sole discretion. Customer acknowledges and agrees that Customer’s sole and exclusive remedy and Payload’s entire liability arising out of any failure to meet any uptime commitments set forth in the SLA are those remedies set forth in the SLA.
   5. Beta Services; Free Trials. From time to time, Payload may, but is not obligated to, offer certain features of the Service on a beta or early access or similar basis (“Beta Services”) to Customer. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that: (a) use of any Beta Services shall be at Customer’s sole discretion; (b) Beta Services may not be supported and may be changed at any time by Payload, including in a manner that reduces functionality of the Beta Services; (c) Beta Services may not be available or reliable; (d) Beta Services may not be subject to the same security or audits as the Service; and (e) Payload provides Beta Services “as-is” and will have no liability arising out of or in connection with Beta Services. In addition, from time to time, Payload may, but is not obligated to, offer access to the Service or certain features thereof free of charge for a limited period of time (“Free Trials”). To the extent any Free Trial is offered, Payload hereby grants Customer, subject to the terms and conditions provided therein and this Agreement, a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the Free Trial period, to access and use the Service as made available as part of the Free Trial for Customer’s internal evaluation purposes only. Free Trials are provided “as-is” without warranty of any kind. Payload will have no liability arising out of or in connection with Free Trials. Any Free Trial that provides access to the Services must be used within the specified time of the Free Trial. At the end of the Free Trial period, Customer’s use of that Service will expire, and any further use of the applicable Service is prohibited unless Customer purchases a Subscription for the applicable features. Customer may be required to enter payment information in order to sign up for a Free Trial, but will not be charged by Payload until the Free Trial has expired.
   6. Modifications. Customer acknowledges that Payload may modify the features and functionality of the Service during the Subscription Term. Payload shall provide Customer with commercially reasonable advance notice of any deprecation of any material feature or functionality.

2. Accounts

   1. Account Information. To access and use the Service, Customer must create an account for accessing the Service, or have a valid Payload permitted, and compatible, Third-Party Account to access the Service through single-sign on capabilities as described in Section 2.3 (an “Account”). When creating an Account, Customer will ensure that the information provided is accurate, complete, and current at all times. Payload shall use and store all information about Customer and Employee Users provided to Payload in connection with the creation and use of Customer’s Accounts on the Services including, without limitation, usernames, email addresses, and other contact information (“Account Information”) in accordance with Payload’s privacy notices and privacy policy located atpayloadcms.com/privacy as may be updated by Payload from time to time in its sole discretion (“Privacy Policy”). The Privacy Policy does not apply to Submitted Data, the treatment of which is governed pursuant to Section 6.1.
   2. Employee User Access. Customer may be able to apportion, or allow access to Customer’s, Accounts to Employee Users. Customer will require that all Employee Users who are provided an Account keep user ID and password information strictly confidential and do not share such information with any unauthorized person. Customer will ensure its Employee Users comply with this Agreement and is responsible for any and all actions taken using Accounts and passwords of Employee Users. Customer shall notify Payload as soon as reasonably practicable of any unauthorized use of any Account or any other known or suspected breach of security.

3. Fees; Payment.

   1. Fees and Payment. Customer will pay Payload all fees of the type and amount set forth in an Order (“Fees”). For a description of Payload’s current standard rates and pricing, please visit https://payloadcms.com/cloud-pricing. Payload offers the Service on a subscription basis with different service tiers to choose. Customer will pay for any excess usage beyond any usage limitations or metrics on which Fees are based at the rates set forth in the Order, or, if no such rates are set forth on the Order, then at Payload’s then-current standard rates for such usage. Unless otherwise set forth in an Order, Fees for access to and use of the Service will be invoiced in advance on a monthly basis for cloud subscription Customers, and on a quarterly basis for enterprise tier Customers. In order to purchase a Subscription, Customer must provide a valid payment method of the type requested or permitted by Payload (the “Payment Method”). Customer agrees that Payload may, or may authorize its third party payment processor to charge the Payment Method for any amounts due and payable by Customer hereunder. Customer agrees to immediately update its Payment Method in the event of a change in Customer’s Payment Method. All Fees are non-cancellable, non-refundable, and non-recoupable; and all Fees are due and payable in United States dollars, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by law. If Customer fails to make any payment hereunder when due: (a) Customer agrees to pay all amounts due upon demand; and/or (b) Payload may either terminate or suspend Customer’s Account or Subscription and continue to attempt to charge the Payment Method until payment is received. Notwithstanding anything to the contrary herein, if Customer fails to pay any amounts owed to Payload within 15 days after written notice of nonpayment of any amounts owed to Payload, which may be provided any time after any amount becomes past due, Payload may immediately terminate this Agreement.
   2. Subscriptions. If Customer purchases a Subscription, the Subscription will continue for the period identified on the Order (the “Initial Subscription Period”) and will then be automatically renewed for additional periods of the same duration as the Initial Subscription Period (each a “Renewal Subscription Period”) at Payload’s then-current fees for such Subscription. For purposes of this Agreement, the Renewal Subscription Periods and the Initial Subscription Period, are referred to individually as a “Subscription Period” and collectively as the “Subscription Term.” Customer may cancel the Subscription prior to the start of a Renewal Subscription Period by deleting the project. To delete a project, log into the Account, click the project to cancel, then click "Settings", then "Plan" and follow instructions to delete the project. Customer agrees that any termination of a Subscription will be effective as of the end of the then-current Subscription Period.
   3. Subscription Upgrades. If Customer chooses to upgrade its Subscription in the middle of a Subscription Period, such upgrade will take effect immediately and any incremental Fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Subscription Period, the Fees will reflect any such upgrades.
   4. Subscription Downgrades. If Customer chooses to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Subscription Period. Downgrading a Subscription may cause loss of content, features, or capacity of the Service as available, and Payload does not accept any liability for such loss.
   5. Taxes. The payments required under this Agreement do not include any sales, use or value added tax and any other equivalent tax (“Sales Tax”) that may be due in connection with the services provided under this Agreement. If Payload determines it has a legal obligation to collect a Sales Tax from Customer in connection with this Agreement, Payload shall collect such Sales Tax in addition to the payments required under this Agreement. If payments for any Payload Technology under the Agreement are subject to any Sales Tax in any jurisdiction and Customer has not remitted the applicable Sales Tax to Payload, Customer will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and Customer will indemnify Payload for any liability or expense Payload may incur in connection with such Sales Taxes. Customer agrees to make all payments of fees to Payload free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Payload will be Customer’s sole responsibility, and Customer will provide Payload with official receipts issued by the appropriate taxing authority, or such other evidence as Payload may reasonably request, to establish that such taxes have been paid.

4. Proprietary Rights

   Customer acknowledges that Payload owns and retains all rights, title, and interest, including all intellectual property rights, in and to the Payload Technology, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible and intangible material and information pertaining thereto or included therein, and nothing in the Agreement shall preclude or restrict Payload from using or exploiting any concepts, ideas, techniques or know-how of or related to the Payload Technology or otherwise arising in connection with Payload’s performance under the Agreement. Other than as expressly set forth in the Agreement, no licenses or other rights in or to the Payload Technology are granted to Customer and all such rights are hereby expressly reserved. Customer retains all right, title and interest to Submitted Data. Customer grants to Payload a non-exclusive, royalty-free, fully paid-up, perpetual license to access, use, and exploit Submitted Data as necessary for Payload to provide the Service, or for Payload to perform under this Agreement. Customer agrees to keep all Payload Technology confidential, and shall not share or disclose Payload Technology to anyone except Payload.

5. Term; Termination

   1. Term. The Agreement will start on the Effective Date and will continue until terminated in accordance with the Agreement.
   2. Termination. This Agreement will automatically terminate in the event that Customer cancels a Subscription and does not enter into another Subscription for a period of 30 days. Payload may terminate this Agreement with Customer at any time, with or without cause. Either party may terminate the Agreement by written notice if Customer does not have an active Subscription. Either party may terminate this Agreement if the other party is in material breach of the Agreement, where such material breach is not cured within 30 days after written notice of such breach (provided that, in the event of Customer’s notice of breach with respect to this Agreement and the services provided hereunder, such notice must: (i) be sufficiently detailed for Payload to verify and remedy the issue; and (ii) expressly state the intent to terminate). Either party may terminate this Agreement if: (a) Customer ceases to carry on its business; (b) a receiver or similar officer is appointed for Customer’s business, property, affairs or revenues and such proceedings continue for 45 days; (c) Customer becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against Customer and are not dismissed within 45 days. For the avoidance of doubt, Customer’s noncompliance with Section 1.3 & 4 shall be deemed a material breach of the Agreement. With respect to Customer’s breach of its payment obligations, or any license or use restrictions, electronic notice to Customer to the contact information provided to Payload is sufficient hereunder. This provision is without prejudice to any additional rights of termination afforded to either party pursuant to applicable law.
   3. Effect of Termination. Upon the effective date of the expiration or termination of the Agreement for any reason: (i) Customer’s access to the Service, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) Customer shall immediately return, or at Payload’s request destroy and certify the destruction of any tangible embodiments of Payload’s confidential information, including all copies of the SDK and API. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1.3, and 3 through 11.

6. Data Use

   1. Submitted Data; Provided Data. Customer agrees that Payload may use Submitted Data as necessary to make available the Service, perform its obligations hereunder, and improve the Service, including, without limitation, performing any required, usual, appropriate, or acceptable activities relating to the Service, such as: (i) providing or supporting the use of the Service, and carrying out the business of which the Service is a part; (ii) carrying out any benefits, rights, and obligations relating to the Service; (iii) maintaining records relating to the Service; and (iv) complying with any legal or self-regulatory obligations relating to the Service. Customer agrees that Payload may also use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free, fully paid-up basis, any: (a) aggregated non-personally identifiable information related to any usage of the Service to operate and improve Payload Technology; and (b) suggestions, requests and feedback provided by or on behalf of Customer regarding the Payload Technology. Customer will: (I) use Provided Data and any Payload Technology solely for the purposes set out in this Agreement; (II) not disclose Provided Data to any third party; and (III) not use any Provided Data in violation of applicable law. Customer acknowledges and agrees that, notwithstanding anything to the contrary herein, Payload may, in its sole discretion, erase or delete from the Service any Submitted Data that it reasonably believes is illegal, harmful, objectionable, lewd, not related to the function of or necessary for the use of the Service, or that Payload determines may, as a result of Payload possessing such data, harm Payload’s business or reputation. Customer acknowledges and agrees that Payload is under no obligation to keep, store, maintain or make available to Customer any Submitted Data that has been processed by Payload Technology.

7. Indemnification

   CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS PAYLOAD FROM AND AGAINST ALL THIRD PARTY AND GOVERNMENTAL ACTIONS, CLAIMS AND ALL RESULTING, TO THE EXTENT PAYABLE OUT-OF-POCKET TO UNAFFILIATED THIRD PARTIES: DAMAGES, LIABILITIES, FINES, PENALTIES, COSTS AND EXPENSES, INCLUDING ALL REASONABLE ATTORNEYS’ FEES AND ANY SETTLEMENT AMOUNT ENTERED INTO OR APPROVED IN WRITING BY CUSTOMER ARISING OUT OF OR RELATING TO: (I) CUSTOMER’S, EMPLOYEE USERS’, OR A THIRD PARTY’S USE OF PAYLOAD TECHNOLOGY; (II) THE USE BY OR ON BEHALF OF PAYLOAD OF THE SUBMITTED DATA IN ACCORDANCE WITH THE AGREEMENT VIOLATING A THIRD PARTY’S RIGHTS; (III) ANY UNAUTHORIZED ACCESS OR USE OF THE SERVICE BY CUSTOMER OR ANY EMPLOYEE USERS OR ANY THIRD PARTY UTILIZING ANY ACCESS CREDENTIALS OF CUSTOMER OR ANY EMPLOYEE USERS; (IV) THE USE OF THE SERVICE IN VIOLATION OR IN CONNECTION WITH A VIOLATION OF APPLICABLE LAW; (V) THE OPERATION OF CUSTOMER’S BUSINESS; OR (VI) CUSTOMER’S OR EMPLOYEE USERS’ USE OF OR RELIANCE ON PROVIDED DATA, INCLUDING ANY ALLEGATIONS THAT ANY USE OF PROVIDED DATA BY CUSTOMER OR EMPLOYEE USERS INFRINGES OR MISAPPROPRIATES ANY THIRD PARTY’S RIGHTS OR VIOLATES ANY LAWS. PAYLOAD SHALL PROVIDE CUSTOMER WITH: (A) PROMPT WRITTEN NOTICE OF; AND (B) ALL INFORMATION AND ASSISTANCE REASONABLY REQUESTED BY CUSTOMER IN CONNECTION WITH THE DEFENSE OR SETTLEMENT OF, ANY SUCH CLAIM; PROVIDED THAT CUSTOMER WILL NOT SETTLE ANY SUCH CLAIM WITHOUT THE PRIOR WRITTEN CONSENT OF PAYLOAD.

8. Disclaimer

   EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, PAYLOAD TECHNOLOGY IS PROVIDED ON AN “AS-IS” BASIS. PAYLOAD HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, LOSS OF DATA, BUSINESS INTERRUPTION, OR ACCURACY OF RESULTS. PAYLOAD DOES NOT WARRANT THAT PAYLOAD TECHNOLOGY WILL BE ERROR-FREE, UNINTERRUPTED, COMPATIBLE WITH ANY PARTICULAR DEVICE, OR THAT ANY DATA PROVIDED BY OR THROUGH THE PAYLOAD TECHNOLOGY, INCLUDING PROVIDED DATA, WILL BE ACCURATE OR COMPLETE, OR, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THAT PAYLOAD’S SECURITY MEASURES WILL BE SUFFICIENT TO PREVENT THIRD PARTY ACCESS TO SUBMITTED DATA. CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) PAYLOAD AND THE SERVICE ONLY PROVIDE DATA AND SOFTWARE TO ASSIST CUSTOMER IN PERFORMING WEBSITE CREATION AND MANAGEMENT; AND (ii) CUSTOMER BEARS ALL RESPONSIBILITY, AND PAYLOAD WILL HAVE NO LIABILITY FOR PROVIDED DATA, OR ANY OTHER INFORMATION PROVIDED TO CUSTOMER VIA PAYLOAD TECHNOLOGY.

9. Limitation of Liability

   YOU UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW: (i) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT (INCLUDING LOST PROFITS, REVENUE, OR DATA), HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE AGREEMENT (EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS) WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. IN ADDITION, PAYLOAD SHALL HAVE NO LIABILITY FOR MATTERS OUTSIDE OF ITS REASONABLE CONTROL.

10. General Provisions

    1. Electronic Communications. The communications between Customer and Payload may take place via electronic means, whether Customer sends Payload e-mails, or whether Payload posts notices within the Service, or communicates with Customer via e-mail. For contractual purposes, Customer: (a) consents to receive communications from Payload in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Payload provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer’s statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
    2. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at: (a) if to Customer, the email address provided by Customer during the Account registration process (or as otherwise later changed by Customer in its Account); and (b) if to Payload, info@payloadcms.com, or to Payload’s physical address located at 624 Stocking Ave. NW. Grand Rapids, Michigan 49504. The written communication shall be deemed to have been received by the addressee; (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the third business day after such notice is deposited in the mail; or (iv) if given by email, upon sending of an email.
    3. Updates to this Agreement; Waivers. Payload may supplement, amend or otherwise modify this Agreement at any time, by providing Customer with at least 30 days’ notice thereof (electronic notice is sufficient) and such changes will go into effect at the beginning of the next Subscription Period, or if Customer has no Subscription then in effect, immediately after such 30 day period. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. To the extent these Terms conflict with any Order, these Terms shall control.
    4. Entire Agreement. This Agreement, together with any Order if applicable, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, provided that if Customer and Payload have executed a separate, negotiated, written agreement with respect to the subject matter hereof, such separate agreement will apply to the exclusion of this Agreement. No terms, provisions or conditions of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, nor have any effect on the rights, duties or obligations other parties hereunder or otherwise modify this Agreement and any such document relating to this Agreement will be for administrative purposes only and will and will have no legal effect, regardless of whether either party executes such document or fails to object to such terms, provisions or conditions. The headings in the Agreement are inserted for convenience and are not intended to affect the interpretation of the Agreement.
    5. Severability. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision.
    6. Relationship of Parties. The relationship between the parties shall be that of independent contractors. Payload may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Payload shall remain responsible hereunder for any such subcontractor’s performance.
    7. Rights of Third Parties. This Agreement is between Payload and Customer. No other person shall have any rights or obligations pursuant to this Agreement, including the right to enforce any of its terms.
    8. Assignment. Customer may not assign, subcontract, delegate, or otherwise transfer the Agreement, or any of its rights or obligations under the Agreement, without the prior written consent of Payload. Payload may freely assign and transfer this Agreement without your consent, including any of Payload’s rights, obligations, or licenses granted under this Agreement. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.
    9. Force Majeure. Payload shall not be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, epidemic, embargo, riot, sabotage, labor or material shortage or dispute, governmental act or failure or degradation of the Internet.
    10. Governing Law. The Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. If a lawsuit or court proceeding is permitted under the Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.
    11. Publicity. Payload may use Customer’s name as a reference for marketing or promotional purposes on Payload’s website and in other communication with existing or potential Payload customers.
    12. Government Rights. Payload provides the Payload Technology, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Service, API, and SDK shall constitute “commercial” computer software. Government technical data and software rights related to the Service, SDK and API include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these Terms, it must negotiate with Payload to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.
    13. Export Compliance and Use Restrictions. Each party represents that it is not named on any U.S. government restricted-party list, and Customer will not permit any Employee User or third-party to access or use any Payload Technology in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Syria or Crimea), or for any prohibited end use (e.g., nuclear, chemical, or biological weapons proliferation, or missile-development purposes). The parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.

11. Definitions

    1. “API” means the application programming interface for sending data to or receiving data from the Service and any software libraries made available to Customer for accessing the foregoing.
    2. “Dashboard” means the web-based or application user interface for Customer to access portions of the Service.
    3. “Documentation” means any user instructions, manuals, on-line help files, or other materials that are provided by Payload in connection with the SDK, API, or the Service.
    4. “Effective Date” means the date the Customer clicks to accept this Agreement, creates an Account, or purchases a Subscription.
    5. “Employee Users” means Customer’s employee or contractor personnel authorized by Customer to access and use the Service.
    6. “Payload Technology” means, collectively, the Service, API, SDK, Dashboard, Documentation, and any other services or materials to be provided pursuant to the Agreement.
    7. “Provided Data” means any data provided by Payload to Customer via the Service.
    8. “SDK” means the software development kit for the Service that is capable of being embedded into and integrated with Customer’s web based platforms and mobile applications.
    9. “Submitted Data” means any data Customer integrates, or uses in connection with, the Service.