APM Help & Bookkeeping

Master Services Agreement

IMPORTANT! THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) IS BY ANDBETWEEN SYNDI CO, INC. DBA APM HELP (“APM HELP”) AND YOU AS CUSTOMER (“CUSTOMER” OR “YOU”) IN CONNECTION WITH THE SERVICES TO BE PROVIDED BY APM HELP AS CONTEMPLATED HEREIN AND, WHERE APPLICABLE, UNDER THE ORDER FORM WHICH IS INCORPORATED INTO THIS AGREEMENT BY REFERENCE (THE “ORDER”). BY EXECUTING THE ORDER, CLICKING “I AGREE”, ACCESSING OR USING THE SERVICE, OR OTHERWISE SIGNIFYING YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, YOU REPRESENT AND WARRANT THAT (A) YOU ARE AUTHORIZED TO ENTER THIS AGREEMENT FOR AND ON BEHALF OF CUSTOMER, AND ARE DOING SO, (B) YOU AS THE CUSTOMER CAN LEGALLY ENTER INTO THIS AGREEMENT, AND (C) YOU HAVE READ AND UNDERSTAND AND AGREE THAT YOU AND CUSTOMER SHALL BE BOUND BY THE TERMS OF THIS AGREEMENT AND ALL MODIFICATIONS AND ADDITIONS PROVIDED FOR. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.

APM Help provides support in connection with certain property management software suites, including access to application programming interface materials (the “API Products”), a web application portal located at portal.apmhelp.com, consulting services, bank reconciliations, financial diagnostics, training, migration and audits (the API Products and the foregoing services, together, the “Services”).

Customer wishes to engage APM Help as an independent contractor for the purpose of providing the services (collectively, the “Services”) set forth in the applicable Order on the terms and conditions set forth in this Agreement; and

APM Help wishes to provide the Services in accordance with the terms of this Agreement and the applicable Order,

NOW THEREFORE, in consideration of the above recitals and the mutual promises and benefits contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

01. ENGAGEMENT

1.1. Customer hereby engages APM Help as an independent contractor, and APM Help accepts such engagement, to provide the Services and all Work Product (as defined below) (if any) in accordance with the applicable Order and the terms and conditions set forth herein. It is understood, however, that neither party is obligated to retain the services of, or furnish services to, the other until, unless, and only to the extent that an Order is signed by both parties. Any such Services may be provided by employees or contractors of APM Help.

1.2. Unless otherwise set forth in the applicable Order, APM Help shall be solely responsible at its cost for providing all equipment and other materials as necessary to provide the Services and deliver the Work Product in accordance with the terms of this Agreement.

1.3. In the event of a conflict between this Agreement and any Order, the terms of the Order shall govern and control.

1.4 Customer acknowledges and agrees that APM Help shall be free to provide Services to any other company without restriction, including competitors and potential competitors of Customer.

1.5 This Agreement is not applicable to the relationship APM Help has with certain entities who provide or offer applications and services to APM Help Customers through the APM Help Portal (such businesses, the “Portal Integration Partners”).  The relationship between APM Help and Portal Integration Partners is governed by this PLATFORM INTEGRATION AGREEMENT.  This Agreement also does not apply to the relationship between you and the provider of any property management software (“PM Software Provider”).  For those terms, consult any agreements between you and the PM Software Provider.

02. APM HELP SERVICES AND THIRD-PARTY SERVICES

The scope of Services shall be as described in the applicable Order and shall include all Work Product and all materials and other deliverables to be provided by APM Help. Changes to the scope of Services under any Order shall not be effective unless and until agreed upon in writing by both parties.

APM Help may classify certain services, including a particular release or feature, as “beta,” “trial” or “proof of concept” (any of the foregoing, a “Beta Service”). A particular service may be generally available in some circumstances (e.g., in some countries or regions) while still classified as a Beta Service in other circumstances.

By their nature, Beta Services may be feature-incomplete or contain bugs. APM Help may describe limitations that exist within a Beta Service; however, your reliance on the accuracy or completeness of these descriptions is at your own risk. You should not use Beta Services in a production environment until and unless you understand and accept the limitations and flaws that may be present in the Beta Services.

APM Help may suspend or terminate access to any Beta Services at any time or adjust fees for such Beta Services (if any) in its sole discretion.

APM Help hereby grants you a license to use the Services for the Term set forth herein or as otherwise stated in an applicable Order.  We may also reference, enable you to access, or promote (including via the APM Help Services) certain third-party services (“Third-Party Services”). These Third-Party Services are provided for your convenience only and APM Help does not necessarily approve, endorse, or recommend any Third-Party Services to you. Your access and use of any Third-Party Service is at your own risk and APM Help disclaims all responsibility and liability for your use of any Third-Party Service with or without the APM Help integration which may be available. Third-Party Services are not Services of APM Help and are not governed by this Agreement or APM Help’s Privacy Policy. Your use of any Third-Party Service, including those linked from the APM Help Services, is subject to that Third-Party Service’s own terms of use and privacy policies (if any).

Information Collected or Received by APM Help.

You authorize APM Help to retrieve information about you and your business from APM Help’s service providers and other third parties, including credit reporting agencies, banking partners and information bureaus, and you authorize and direct those third parties to compile and provide that information to APM Help. This information may include your, or your representatives’, name, addresses, credit history, banking relationships, and financial history.

Feedback.

During the Term, you and your affiliates may provide ideas, comments, or suggestions (“Feedback”) to APM Help or its affiliates. You grant, on behalf of yourself and your affiliates, to APM Help and its affiliates a perpetual, worldwide, non-exclusive, irrevocable, royalty-free license to exploit that Feedback for any purpose, including developing, improving, manufacturing, promoting, selling, and maintaining the APM Help services. All Feedback is APM Help’s confidential information.

Services Restrictions and Customer Obligations.

Customer may only use the Services for business purposes. Customer must not, and must not enable or allow any third party to:

(a) use the Services for personal, family, or household purposes;

(b) act as service bureau or pass-through agent for the Services with no added value to Customers.

(c) work around any of the technical limitations of the Services or enable functionality that is disabled or prohibited, or access or attempt to access non-public APM Help systems, programs, data, or services.

(d) except as Law permits, reverse engineer or attempt to reverse engineer the Services or APM Help technology.

(e) use the Services to engage in any activity that is illegal, fraudulent, deceptive or harmful.

(f) perform or attempt to perform any action that interferes with the normal operation of the Services or affects other APM Help users’ use of our services; or

(g) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way, any part of the Services or the Work Product except as permitted by Law.

(h) submit any information to APM Help pertaining to Customer unless such information is accurate and complete.

(i) submit any Personal Data to APM Help (via any method), or cause or authorize another to cause the submission of, “Personal Data” (as such term or analogous term is defined under applicable data privacy or data breach Law) to the Services without having first obtained all required consents or authorization to do so or without having first provided individuals notice of sharing with APM Help if notice is required by Law;

In addition to the foregoing, Customers may use the Services only as this Agreement and other agreements between APM Help and Customer (or their affiliates) expressly permit.

3. FEES AND PAYMENTS

Customer shall pay APM Help for the Services in accordance with the applicable Order or pursuant to terms set forth by any Portal Integration Partner.

At the Portal Integration Partner’s request, APM Help may charge both our fees and the fees for Portal Integration Partner’s services as we are instructed by the Portal Integration Partner.  In the event of any concerns over the amounts of fees charged by the Portal Integration Partner, please reach out to the Portal Integration Partner using the contact information provided in the Services.

Unless otherwise set forth in an Order or provided by law, Customer shall be solely responsible for any sales or use taxes directly arising in connection with the Services. APM Help shall be solely responsible and liable for all other compensation, taxes, benefits, charges, license fees, expenses and any other costs arising from or relating to the Services, any Order, and/or this Agreement.

04. INTELLECTUAL PROPERTY

4.1. Unless otherwise specifically set forth in the applicable Order, Customer acknowledges that all ideas and creative and other work product of whatever type or nature conceived, produced, or developed prior to the Effective Date or under or directly in connection with this Agreement or any Order by APM Help and materials of any nature furnished by APM Help to Customer (collectively “Work Product”) shall be and remain the property of APM Help. Notwithstanding the foregoing, APM Help shall not have any ownership in any ideas and other work and materials provided by Customer to APM Help (“Customer Materials”); provided that, subject to Section 5, Customer grants to APM Help anon-exclusive, worldwide, royalty-free, fully paid-up right and license to use any Customer Materials in connection with the Services and the Work Product.

4.2. Unless otherwise specifically set forth in the applicable Order, Customer specifically agrees that all copyrightable Work Product generated or developed under this Agreement (“Material”) shall, upon creation, be owned exclusively by APM Help.

4.3. To the extent necessary or desirable to give effect to APM Help’s ownership interests in the Work Product as described in Section 4.1, Customer hereby transfers, grants, conveys, assigns, and relinquishes exclusively to APM Help all of Customer’s right, title, and interest in and to any such Work Product, under patent, copyright, trade secret, and trademark law, in perpetuity or for the longest period otherwise permitted by law.

4.4. Customer shall perform any acts that may be deemed necessary or desirable by APM Help to evidence more fully the transfer of ownership of all Work Product to APM Help.

4.5. To the extent that any work product or intellectual property provided by Customer(“Customer Provided IP”) is embodied or reflected in the Work Product, Customer hereby grants to APM Help a non-exclusive, world-wide, fully paid-up and royalty-free right and license to use such Customer Provided IP in connection with the Services and the Work Product.

4.6. Subject to payment of all fees and other amounts due to APM Help under this Agreement and the applicable Order, APM Help grants to Customer a perpetual, irrevocable, non-exclusive, worldwide, royalty-free, fully paid-up right and license to use any Work Product or Materials exclusively for internal business purposes. Customer shall not resell or otherwise transfer any such Work Product or Materials.

4.7.  Subject to the terms of this Agreement, each party grants to the other party and its affiliates a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free license during the Term to use the logo, trademarks, and service marks (“Marks”) of the Customer or its affiliate solely to identify APM Help as your service provider. Accordingly, APM Help and its affiliates may use those Marks (a) on APM Help webpages and apps that identify APM Help’s customers and (b) in APM Help sales/marketing materials and communications. All goodwill generated from the use of the Mark will inure to the sole benefit of the owner.

05. BUSINESS SERVICES AND DATA USE

5.1 Business Services.

APM Help provides services to business which in turn provide services to businesses and to individuals.  We generally use and share Personal Data provided by our customers to provide Services as described herein, and for our own purposes to secure, improve, and provide our Services. “Personal Data” means any information relating to an identifiable natural person that is maintained, used, or processed in connection with the Services, as well as “personal information” as defined under the California Consumer Privacy Act of 2018, Cal. Civ. Code Sections 1798.100-1798.199.

5.2 Customer Data.

For the purposes of this Agreement, “Law” means all applicable laws, rules, regulations, and other binding requirements of any local, state, or federal governmental authority.

For the purposes of this Agreement, “Customer Data” means all data (a) provided by Customer to APM Help or collected, received, stored or maintained by APM Help in connection with APM Help’s performance of its obligations under this Agreement, (b) provided by a Portal Integration Partner in the provision of any services by Portal Integration Partners, or (c) derived from (a) or (b).  To the extent Law permits, APM Help will use Customer Data to (a) secure, provide, provide access to, and update the APM Help services; (b) fulfill its obligations under Law, and comply with partner and governmental authority requirements and requests. APM Help is not obligated to retain Customer Data after the Term, except as (w) required by Law; (x) required for APM Help to perform any post-termination obligations; (y) this Agreement otherwise states; or (z) the parties otherwise agree in writing. Customer is responsible for being aware of and complying with Law governing the use, storage, and disclosure of Personal Data pertaining to clients and customers.

5.3 Personal Data.

When you as the Customer provide Personal Data to APM Help or authorize APM Help to collect or receive Personal Data, you represent and warrant that you have provided all necessary notices to and obtain all necessary rights and consents from the applicable individuals (including your tenants) sufficient to enable APM Help to lawfully collect, use, retain and disclose the Personal Data in the ways this Agreement describes. APM Help will not sell or lease Personal Data that APM Help receives from you to any third party, but we may share Personal Data provided by you with other APM Help customers to enable them to provide or offer services to you.

To the extent APM Help processes Personal Data of its Customers, it does so as a data processor acting on behalf of its customers; or when it controls Personal Data as a data controller, it has the sole and exclusive authority to determine the purposes and means of processing Personal Data it receives from its customers.

APM Help may process the Personal Data of (i) your customers/tenants provided by you to us, (ii) your representatives, and/or (iii) any natural persons who access or use the Services.  Personal Data may include demographic and contact information as well as financial information and identity information including government-issued documents (e.g., national IDs, driver’s licenses and passports). Some types of data may be considered “sensitive” under the Law of certain jurisdictions.

APM Help shares Personal Data provided by our customers with their respective Representatives. Customer consents to such sharing and, by receiving Services via APM Help, Customer also consents to sharing such data with APM Help’s other Portal Integration Partners (and their authorized users) who exist currently or who may exist in the future). This includes sharing Personal Data of any natural person with whom Customer transacts or have a business relationship, including residents (such persons, “End Users”).  You agree that Portal Integration Partners may access and also send and receive your Platform data and Personal Data using the API Products. For example, when you sign up for our services, we may share with Portal Integration Partners all Platform Data provided by you through our Services, including information about your End Users, to enable those Portal Integration Partners to market to or provide appropriate business services to you and your End Users.  For purposes of this Agreement, “Platform Data” means the property management data maintained by APM Help, including Customer Data provided by or pertaining to APM Help Customers (including Personal Data, in some instances).

The Portal Integration Partners you choose to do business with may further share Personal Data to third parties. Please review the specific privacy policy of each Portal Integration Partner to learn more, including your rights to stop their use of Personal Data for marketing purposes.

We share End User Personal Data provided by you for our marketing or advertising and for marketing and advertising by third parties including Portal Integration Partners.   Because we may receive compensation in connection with any services you purchase from our Portal Integration Partners, we may be considered to “sell” such data within the meaning of applicable Law.

Upon request, Customer will make available to APM Help a privacy notice (or “policy”) that Customer shall certify complies with Law, including with respect to the disclosure of data to third parties and also providing End Users the option to limit processing of or opt out of sharing of their Personal Data in accordance with applicable Law (as such terms are defined herein).

06. REPRESENTATONS AND WARRANTIES

6.1. Customer hereby represents and warrants to APM Help as of the Effective Date and at all times during the Term as follows:

6.1.1. Customer, including the Representative signing or agreeing on behalf of Customer, has the power and authority to enter into and perform under this Agreement and that this Agreement constitutes its legal, valid, binding and enforceable agreement.

6.1.2. Customer is a business (including a sole proprietor) or a non-profit organization located in the United States or Canada.

6.1.3. Execution and performance of this Agreement by Customer do not (a) breach any agreement of Customer with any third party, (b) violate any duty of Customer arising in law or equity, and (c) do not violate any Law, rule, or regulation applicable to it.

6.1.4. There are no legal actions pending or threatened against it that could interfere with the performance of its obligations under this Agreement.

6.1.5. Customer has complied with, all necessary rights, consents, licenses, and approvals for the operation of your business and to allow the lawful sharing of Platform Data, and to access and use the Services in compliance with this Agreement and Law; and

6.1.6. Customer shall use commercially reasonable efforts to notify APM Help of any changes to its procedures affecting APM Help’s obligations under this Agreement at least 30 days prior to implementing such changes.

6.2. THE SERVICES AND WORK PRODUCT ARE PROVIDED “AS IS” AND APM HELP EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES, WORK PRODUCT AND MATERIALS PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING AND EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH HEREIN, ANY WARRANTIES, SPECIFICATIONS OR REQUIREMENTS AS SET FORTH ON ANY APPLICABLE ORDER, APM HELP PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SERVICES AND WORK PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.

07. INDEMNIFICATON

7.1 Customer hereby indemnifies and holds harmless APM Help, and each of its officers, directors, agents, contractors, subcontractors, licensees and employees (collectively referred to as the “APM Help Indemnitees”), and each of them, against and from any and all allegations, demands, claims, liabilities, damages, fines, penalties or costs of whatever nature (including reasonable attorneys’ fees) brought by any third party (collectively, “APM Help Claims”), arising out of or in any way connected with:

(a) any actual or alleged violation or breach by Customer (including its employees and contractors) of any representations or warranties or of the terms and conditions of this Agreement.

(b) the negligence or willful misconduct of Customer (including its employees and contractors).

(c) Customer’s breach of any laws or regulations (including with respect to data security or privacy), including the failure of your terms of service or privacy policy to comply with applicable Law.

(d) Customer’s or any of its Representatives’ use of the Services or the services of any Portal Integration Partner; or

(e) Customer’s violation of any agreements it has with any End Users.

If any APM Help Claim is made or any action or proceeding is brought against APM Help Indemnitees, or any of them, any such APM Help Indemnitee may, by notice to Customer, require Customer, at Customer’s expense, to defend APM Help against such APM Help Claim or take over the defense of any such action or proceeding and employ counsel for such purpose, such counsel to be subject to the prior approval of such APM Help Indemnitee.

7.2 IP Infringement.

(a) Indemnification. For the purposes of this Agreement, an “IP Claim” means any demand, demand, investigation, or legal proceeding brought by a third party alleging that the Services, Work Product, or a Mark provided by us and used by you in accordance with this Agreement infringes or misappropriates the intellectual property rights of the third party.  “IP Claim Losses” means (a) all amounts finally awarded to the third party making the IP Claim, and (b) all amounts paid to a third party to settle an IP Claim under an agreement approved by APM Help.  APM Help will indemnify you against all IP Claim Losses.

(b) Limitations. APM Help’s obligations in this Section 7.2 do not apply to the extent the IP Claim or IP Claim Losses arise out of:

(i) Customer’s (or its agents’ or employees’) failure to implement, maintain and use the Services in accordance with this Agreement.

(ii) Customer’s (or its agents’ or employees’) breach of this Agreement; or

(iii) Customer’s (or its agents’ or employees’) negligence, fraud, or willful misconduct.

(c) Process.  Customer must promptly notify us of the IP Claim for which you seek indemnification.  We will not indemnify you to the extent that we have been prejudiced by a delay or failure to notify on the part of the Customer.

(d) Other Actions. APM Help may in its discretion and at no additional expense to you:

(i) modify the Services or Work Product so that they are no longer claimed to infringe or misappropriate intellectual property rights of a third party.

(ii) replace the affected Services with a non-infringing alternative.

(iii) obtain a license for you to continue to use the affected Services, Work Product, or Mark; or

(iv) terminate your use of the affected Services, Work Product, or Mark upon 30 days’ notice.

(e) Exclusive Remedy. This Section 7.2 states APM Help’s sole liability, and your sole and exclusive right and remedy, for infringement by APM Help, including any IP Claim.

08. DISCLAIMER OF LIABILITY

APM Help is not responsible for, and disclaims all liability arising from or relating to:

(a) your compliance with Laws and obligations related to your provision of goods or services to your End Users, even if connected to any Service we provide.

(b) any Portal Integration Partner’s acts or omissions in providing services to you or your End Users, or for any Portal Integration Partner’s failure to comply with the terms of the agreement between you and the Portal Integration Partner.

(c) any other actions not related to the Services we provide.

09. LIMITATION OF LIABILITY

Indirect and Consequential Damages.  IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES

Limitation of Damages Generally.  IN NO EVENT SHALL APM HELP’S AGGREGATE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ORDER, THE SERVICES OR ANY WORK PRODUCT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE GREATER OF (I) THE TOTAL AMOUNT PAID TO APM HELP UNDER ANY APPLICABLE ORDER PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, AND (II) $500.00. The essential purpose of this provision is to limit the potential liability of the parties arising out of this Agreement whether for breach of contract, negligence, or otherwise. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

10. TERM AND TERMINATION

10.1. This Agreement shall become effective upon the first use of the Services, including Beta Services (if any) (such date, the “Effective Date”) and shall, unless terminated earlier pursuant to any of its express provisions or in any applicable Order, continue thereafter for a period of twelve (12) months (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive twelve (12) month terms, or for such shorter period as may result from termination pursuant to an express provision hereof, unless either party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term (together with the Initial Term, the “Term”).

10.2. Customer or APM Help may terminate this Agreement in full if the other party breaches the terms this Agreement and the breaching party fails to cure any such breach within thirty (30) days of notice of such breach by the non-breaching party.

10.3. APM Help may suspend or terminate any Services and this Agreement by providing prior written notice to Customer if it believes that Customer (a) is acting or operating dishonestly or unethically or in a way that could harm APM Help or its business; or (b) has committed any crime involving fraud or embezzlement.

10.4. Upon any termination of this Agreement, Customer shall promptly pay all amounts due and payable to APM Help hereunder. APM Help is under no obligation to provide any data export or transition services to Customer unless otherwise agreed by the parties and priced according to terms set forth in an Order.

10.5. In addition to all other remedies available under this the Agreement, the applicable Order or at law, APM Help shall be entitled to suspend the provision of any Services if Customer fails to pay any undisputed amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.

10.6. In addition to those Sections of this Agreement which by their nature are intended to survive any expiration or termination of this Agreement, Sections and this Section 10.6 shall specifically survive any expiration or termination of this Agreement.

11. INDEPENDENT CONTRACTOR

The parties agree that nothing in this Agreement shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. APM Help is and will remain an independent contractor in its relationship to Customer. Customer shall not be responsible for withholding taxes with respect to APM Help’s compensation hereunder. APM Help shall have no claim against Customer hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, or employee or other benefits of any kind. Nothing in this Agreement shall create any obligation between either party and a third party.

12. DISPUTE RESOLUTION

12.1. If any controversy, claim, or dispute arising out of or relating to this Agreement, including the breach or interpretation of this Agreement or any Order (collectively, a “Dispute”) is not resolved within thirty (30) days from the date that either party provides the other party with written notice of the existence thereof, then each party shall designate an executive who is authorized to investigate, negotiate and settle the Dispute. The executives shall exercise good faith efforts to settle the Dispute. If the executives do not resolve the Dispute within thirty (30) days (or such longer period as mutually agreed), then the parties shall resolve the Dispute in accordance with Section 12.2. No court or other action pertaining to a Dispute shall be pursued unless this dispute resolution procedure has been exhausted. Nonetheless, party at any time may pursue equitable relief before any court of competent jurisdiction in order to protect its intellectual property rights.

12.2. Any Dispute that is not resolved in accordance with Section 12.1 shall be determined by, and subject to the exclusive jurisdiction of, the federal and state courts in Texas that include Houston, Texas, and the parties agree to the personal and exclusive jurisdiction of these courts. The parties hereby agree that any such court shall be a proper forum for the determination of any dispute arising hereunder and waive any defenses based upon inconvenient forum or jurisdiction. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CLAIM OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER.

12.3. In the event that either party institutes any legal suit, action or proceeding against the other party arising out of or relating to any Dispute, then the prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.

13.  NOTICES AND COMMUNICATIONS.

(a) Notices to APM Help. Unless this Agreement states otherwise, for notices to APM Help, you must ensure it is delivered to us.  A notice you send to us is deemed to be received when we receive it.

(b) Communications to you. By accepting this Agreement or using any Service, you consent to electronic communications and to the use of electronic signatures as evidence of consent and for other purposes. APM Help may send you communications by physical mail or delivery service to the postal address listed in our records. A communication we send to you is deemed received by you on the earliest of (i) when posted to the APM Help Services accessible via portal.apmhelp.com or website; (ii) when sent by text message or email; and (iii) three business days after being sent by physical mail or when delivered, if sent by delivery service.  A notification sent to you via the APM Help Services is a communication and also a notice for purposes of this Agreement.

14. MISCELLANEOUS

Governing Law

This Agreement shall be governed and construed in accordance with the laws of the State of Texas without regard to its conflict-of-law principles. The parties disclaim the United Nations Convention on Contracts for the International Sale of Goods, which shall not apply to this Agreement, any Order, or the parties’ performance hereunder.

Severability.

In the event that any provision of this Agreement shall be adjudged illegal or otherwise unenforceable, such provision shall be severed and the balance of this Agreement shall continue in full force and effect.

Modifications

APM Help may modify all or any part of this Agreement at any time by posting a revised version of the modified Agreement or by notifying you. The modified Agreement is effective upon posting or, if APM Help notifies you, as stated in the notice. By continuing to use Services after the effective date of any modification to this Agreement, you agree to be bound by the modified Agreement. It is your responsibility to check the APM Help terms page regularly for modifications to this Agreement. APM Help last modified this Agreement on the date listed above. Except as this Agreement (including in this Section 15) otherwise allows, this Agreement may not be modified except in a writing signed by the parties.

In the event that any provision of this Agreement shall be adjudged illegal or otherwise unenforceable, such provision shall be severed and the balance of this Agreement shall continue in full force and effect.

Interpretation.

(a) No provision of this Agreement will be construed against any party on the basis of that party being the drafter.

(b) References to “includes” or “including” not followed by “only” or a similar word mean “includes, without limitation” and “including, without limitation,” respectively.

(c) Except where expressly stated otherwise in a writing executed between you and APM Help, this Agreement will prevail over any conflicting policy or agreement for the provision or use of the Services.

(d) All references in this Agreement to any terms, documents, Law are to those items as they may be amended, supplemented or replaced from time to time. All references to APIs and URLs are references to those APIs and URLs as they may be updated or replaced.

(e) The section headings of this Agreement are for convenience only and have no interpretive value.

(f) Unless expressly stated otherwise, any consent or approval that may be given by a party (i) is only effective if given in writing and in advance; and (ii) may be given or withheld in the party’s sole and absolute discretion.

(g) References to “business days” means weekdays on which banks are generally open for business. Unless specified as business days, all references in this Agreement to days, months or years mean calendar days, calendar months or calendar years.

(h) Unless expressly stated to the contrary, when a party makes a decision or determination under this Agreement, that party has the right to use its sole discretion in making that decision or determination.

Waivers.

To be effective, a waiver must be in a writing signed by the waiving party. The failure of either party to enforce any provision of this Agreement will not constitute a waiver of that party’s rights to subsequently enforce the provision.

Assignment.

Customer may not assign or transfer any obligation or benefit under this Agreement without APM Help’s written consent, except that Customer may assign this Agreement pursuant to a merger, acquisition, or sale of all or substantially all of Customer’s assets except in the event that the proposed assignee is a competitor of APM Help.  Any attempt to assign or transfer in violation of the previous sentence will be void in each instance. If you wish to assign this Agreement, please contact us. APM Help may, without your consent, freely assign and transfer this Agreement, including any of its rights or obligations under this Agreement. This Agreement will be binding on, inure to the benefit of, and be enforceable by the parties and their permitted assigns.

Cumulative Rights; Injunctions.

The rights and remedies of the parties under this Agreement are cumulative, and each party may exercise any of its rights and enforce any of its remedies under this Agreement, along with all other rights and remedies available to it at law, in equity or under any other agreement between the parties. Any material breach by a party of Section 4 could cause the non-breaching party irreparable harm for which the non-breaching party has no adequate remedies at law. Accordingly, the non-breaching party is entitled to seek specific performance or injunctive relief for the breach.

Entire Agreement.

This Agreement constitutes the entire agreement and understanding of the parties with respect to the Services and supersedes all prior and contemporaneous agreements and understandings.