CANDESCENT DEVELOPER AGREEMENT

READ ALL OF THE FOLLOWING TERMS AND CONDITIONS. YOU WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS BY DOING ONE OR MORE OF THE FOLLOWING (A) CLICKING “I AGREE” OR A SIMILAR AFFIRMATION OR (B) USING THE API. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.

‍This Candescent Developer Portal Agreement (the “Agreement”) is between Digital First Holdings LLC d/b/a Candescent (“Candescent”) with a place of business at 4 Concourse Parkway, Suite 400, Atlanta, GA 30328 and you as of the date you accept these terms (the “Effective Date”).  
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1. Definitions. The following terms have thefollowing meanings:

1.1 “API” means a Candescent application programinterface, including modifications and derivatives.

1.2 “Application” means a software application you develop that makes use of any of the Contents or accesses data made available through an API.

1.3 “Developer Experience” means the Candescent website provided to you to access the API.

1.4 “Contents” means API, Test Data, softwaredevelopment kit (SDK), and any related materials that Candescent makesavailable to you via the Developer Experience or otherwise, includingdocumentation and source code.

1.5 “Purpose” means to access an API or SDK and todevelop an Application strictly for internal, non-commercial uses, whetherdirectly or indirectly, but does not include distribution of Applications toany third parties or any other public use or demonstration. The Purpose alsoincludes accessing Test Data to test and demonstrate Applications in anon-public environment, including demonstration at the Developer Experience.

1.6 “Application Key” means a proprietary data string Candescent provides you for inclusion in an API call to authenticate your credentials and enable Candescent to track your access and use of the Test Data.

1.7 “Test Data” means data and other information Candescent makes available to you through use of an API.

‍2. Registration and Use of API.

‍2.1 Candescent will provide you with userlogin credentials that will provide you with unique access to the DeveloperExperience (your “User Account”). Candescent may deny, restrict, suspend, orterminate your User Account at any time, with or without notice, at its solediscretion. Candescent may send communications relating to the DeveloperExperience or the Contents to you at the e-mail or mailing addresses associatedwith your User Account.

2.2 Candescent is not obligated to provide any support, maintenance, or other professional services, or otherwise assist you, with your use of the Developer Experience or the Contents. Candescent will have no liability for any issues you experience in using the Developer Experience or the Contents.

2.3 Candescent will treat and use the personalinformation you provide in creating your User Account in accordance withthe Candescent Privacy Policy, and by your use of the Developer Experience you consent to that use.

2.4 You are responsible for your conduct, inaction, or negligence with respect to your User Account. If you become aware of any suspicious or unauthorized conduct, immediately contact Candescent at law.notices@candescent.com.

2.5 You agree to not use the Developer Experience, the Contents, or the Application Keys in violation of any applicable local, state, national, or international laws, rules, or regulations, or interfere with or disrupt the Developer Experience, the Contents, or the Application Keys, including any servers or networks supporting it. You further agree to not use the Developer Experience or the Contents for any activity that Candescent deems to be illegal, threatening, libelous, obscene or harassing.  You agree to use the Developer Experience, Contents, and Applications Keys solely as authorized and contemplated by the associated documentation.

2.6 Your use of APIs may be tracked and controlled through Application Keys. Candescent may deny, restrict, suspend, or terminate your Application Keys at any time. You are liable for unauthorizeduse or disclosure of your Application Keys.

‍3. Intellectual Property Matters.

‍3.1 Subject to the terms of this Agreement, Candescent hereby grants you a personal, non-exclusive, non-assignable, non-sublicensable, revocable, limited license to use the Developer Experience and the Contents, solely for the Purpose.

3.2 Except as provided in Section 3.1, you may not: (a) use, copy, modify, distribute, display, or perform the Developer Experience, the Contents, or the Application Keys; (b) disclose, rent, loan, or transfer them to any other party; or (c) combine them with any other materials. You may not use the Developer Experience, the Contents, or the Application Keys, for any commercial purpose, nor may you decompile, reverse assemble, derive a source code equivalent of, or otherwise reverse engineer the Developer Experience, Contents, or Application Keys or use any to create or as a reference in creating any competing commercial offering.

3.3 Candescent reserves all rights not expressly granted. Except as provided in Section 3.1, no license or right of any kind is granted to you or any third party, including by implication,estoppel or otherwise. Candescent does not grant you any right to use anytrademark or trade name of Candescent (including the name “Candescent”) or toimply that your applications have been authorized, approved, or otherwisecertified by Candescent.

3.4 You hereby grant to Candescent anon-exclusive, transferable, sublicensable (including to other users of the Developer Experience), royalty-free, fully-paid up, perpetual, irrevocable, worldwide license under any and all intellectual property (including any patents, copyrights, trade secrets, or trademarks) you own or have the right to license to use any information or materials (including software) posted on the Service or provided to Candescent by or for you (“User Content”) in fulfilling the Purpose.

3.5 Candescent will own any improvements, modifications, enhancements, extensions, or derivatives you may make to, or that are based on, the Developer Experience or the Contents, and all associatedintellectual property rights (“Improvements”). You will own any Applications which you create, except to the extent they incorporate, use, or are based on the Developer Experience, the Contents, or any Improvements.

3.6 You may choose, or Candescent may invite you, to provide comments, suggestions, corrections, modifications, or improvements related to the Developer Experience or the Contents (“Feedback”). You provide Feedback voluntarily and Candescent is free to, and shall have the right to, use your Feedback without restriction including for any commercial purpose, without providing attribution or compensation to you or any third party.

3.7 Candescent respects copyright and other intellectual property rights. Material that infringes the intellectual property rights of any person will not be permitted. If you become aware of any such material, please provide notice consistent with the requirements of the Digital Millennium Copyright Act (17 U.S.C. 512(c)(3) to Candescent at law.notices@candescent.com so that Candescent may take appropriate action. If you knowingly misrepresent that any material is infringing, you may be liable for damages, including costs and attorneys’ fees that Candescent or an alleged infringer incurs in relying on or responding to them is representation.

‍4. Term and Termination.

‍4.1 Your rights under this Agreement will continue so long as you remain an active user of the Developer Experience, unless they are earlier terminated pursuant to this Agreement. Candescent may terminate this Agreement in whole or in part, including any licenses or right sit provides, at any time at its sole discretion, and you must destroy and certify destruction in writing of all materials received within 14 days following Candescent terminating your Agreement.  

4.2 Upon termination, all rights and licenses granted by Candescent to you will cease, and you will stop using the Developer Experience, the Contents, and the Application Keys, and return to Candescent all copies of any of the above that you have accessed or otherwise been provided.

4.3 Your obligations in Sections 2, 3, 5, 6and 7 will survive indefinitely after termination of this Agreement.

4.4 Candescent makes no guarantee that the Developer Experience, the Contents, or the Application Keys will be available for any period of time. Candescent may suspend, delete, modify, or remove APIs and Content at any time, with or without notice, and offers no guarantee of continuing support for current or past versions.

‍5. Confidentiality.

‍5.1 “Confidential Information” means all information and materials that either Party discloses to the other Party which is reasonably related to the Developer Experience (including pricing), Contents, the Application Keys, and information submitted by You that would be considered confidential as part of onboarding, such as SOC-2 compliance reports, penetration testing results, security assessments, and ISO certifications.  Confidential Information also includes information which is either clearly identified as confidential when disclosed or is of a nature such that a reasonable person knows or should know it to be confidential.  

5.2 Confidential Information does not include information that: (a) was possessed or known by you without any confidentiality obligations prior to this Agreement; (b) becomes publicly available or known through no act or omission of you; (c) is furnished to you by a third party where such third party was not subject to disclosure restrictions; or (d) is independently developed by or for you without breach of this Agreement.

5.3 Notwithstanding termination of the Agreement, both Parties will: (a) not use Confidential Information other than for the Purpose; (b) exercise the same degree of care in protecting Confidential Information as you use to protect your own confidential information of a similar nature, but in no event less than reasonable care; (c) not disclose Confidential Information to any person or entity, except to those of your Affiliates (defined below), and your and their employees and contractors, who have a legitimate need to know it for the Purpose, and who are obligated to protect any disclosed Confidential Information under terms no less protective than those contained in this Section; and (d) promptly notify the other Party upon discovery of any unauthorized use or disclosure of Confidential Information and cooperate to mitigate any adverse consequences.

5.4 Your disclosure of Candescent Confidential Information pursuant to subpoena or other legal compulsion will not constitute a breach of this Agreement if you have first given Candescent notice by email to law.notices@candescent.com and opportunity to protect such Confidential Information by protective order or other means, you reasonably cooperate with Candescent’s requests toward that end, and you disclose only that minimal portion which you are legally required to disclose.

5.5 An “Affiliate” is any entity which a party owns and/or controls, is owned and/or controlled by, or is under common ownership and/or control with. An entity is an Affiliate only for so long as such ownership and/or control exists. However, a change in ownership and/or control will not affect a person’s or entity’s obligations with respect to ConfidentialInformation disclosed while it was an Affiliate.

‍6. Warranty, Indemnification and Liability.

‍6.1 Candescent disclaims all responsibility and liability for use of the Developer Experience, Contents and Application Keys AND ANY CLAIMS ARISING OUT OF OR RELATED TO USEOF THE DEVELOPER EXPERIENCE, CONTENTS, AND APPLICATION KEYS TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE DEVELOPER EXPERIENCE, CONTENTS AND APPLICATION KEYS ARE PROVIDED “AS IS” AND PROVIDED WITHOUT ANY GUARANTEE OR REPRESENTATION THAT THE MATERIALS WILL BE FREE FROM ERRORS OR DEFECTS, MEET YOUR NEEDS, OR HAVE ANY GUARANTEED UPTIME. CANDESCENT DISCLAIMS ALL WARRANTIES OF ANY NATURE WHATSOEVER WITH RESPECT TO THE DEVELOPER EXPERIENCE, CONTENTS AND APPLICATION KEYS, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY, PARTICULARLY INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE.  

6.2 You will indemnify and hold harmless Candescent and its officers, directors, shareholders, employees, contractors, agents, and subsidiaries from and against any actual or threatened claims, suits, actions, proceedings, damages, liabilities, litigation and other costs, attorney’s fees, and expenses arising from or related to your use of the Developer Experience, Application Keys or the Contents, or your violation of this Agreement.

6.3 NEITHER PARTY WILL BE LIABLE, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STRICT LIABILITY, STATUTE, LAW, EQUITY, OR OTHERWISE, ARISING UNDER OR RELATED TO THIS AGREEMENT, FOR: (A) INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES; (B) LOSS OFPROFITS OR REVENUE; OR (C) LOSS OF REPUTATION, GOODWILL, TIME, OPPORTUNITY, DATA, OR ACCESS TO DATA, IN ALL INSTANCES WITHOUT REGARD TO WHETHER THE PARTY WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IF CANDESCENT’S LIABLITY FOR ANY CLAIMS RELATING TO USE OF THE DEVELOPER EXPERIENCE, CONTENTS, OR APPLICATION KEYS CANNOT BE DISCLAIMED BY OPERATION OF LAW, CANDESCENT’S MAXIMUM CUMULATIVE AND AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT WILL BE $100 USD.

6.4 EACH CLAUSE AND PHRASE OF THIS SECTION IS SEPARATE FROM EACH OTHER CLAUSE AND PHRASE, AND FROM THE REMEDY LIMITATIONS AND EXCLUSIONS ELSEWHERE IN THIS AGREEMENT AND WILL APPLY NOT WITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF A REMEDY, ANY TERMINATION OF THIS AGREEMENT, ORSEVERABILITY OF ANY CLAUSE OR PHRASE IN THIS AGREEMENT.

‍7. General Matters.

‍7.1 Georgia law governs this Agreement, and the relationships created by it and the transactions occurring under it.  The Federal Arbitration Act will govern all issues of arbitrability. Any claims shall be exclusively brought in the state or federal courts in Fulton County, Georgia and both parties hereby waive any right to request a trial by jury.  You disclaim any ability to bring a claim more than two years after the underlying cause of action first accrues.

7.2 Each party agrees to give the other prompt written notice of any claim, controversy, or dispute arising under or related to this Agreement, and both parties will engage in good faith discussions to resolve the matter. If that fails to resolve the matter promptly, either party may request the other to participate in mediation before a mutually-agreed mediator. Any matter which is not resolved through the procedures set forth above within 60 days (or such longer period as the parties may agree) will be resolved by arbitration before a sole arbitrator who is an attorney, under the then-current Commercial Arbitration Rules of the American Arbitration Association in Fulton County, Georgia. The duty and right to arbitrate will extend to any employee, officer, director, shareholder, agent, or Affiliate, of a party to the extent that right or duty arises through a party or is related to this Agreement, the Developer Experience, or the Contents. The decision and award of the arbitrator will be final and binding and may be entered in a court in Fulton County, Georgia. The arbitrator is directed to ear and decide potentially dispositive motions in advance of a hearing on the merits by applying the applicable law to undisputed facts and documents. This Section, and the obligation to mediate and arbitrate, will not apply to claims for misuse or infringement of a party’s intellectual property or Confidential Information. At any time, a party may seek from a court of competent jurisdiction an injunction or other equitable relief in aid of arbitration, to the extent available under applicable law. The arbitrator will not have authority to award damages that are inconsistent with the limitations and exclusions set forth in this Agreement.

7.3 The parties are independent contractors to one another. Employees or contractors of one will not be deemed to be or act as employees or representatives of the other. Except as expressly stated otherwise, no third party will be a beneficiary of this Agreement.

7.4 If any provision of this Agreement is held to be illegal, invalid, or unenforceable in whole or in part, it will be enforced to the maximum extent permissible to effect the intent of the parties, and the remaining provisions will remain in full force and effect.

7.5 Failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

7.6 All notices required to be given under this Agreement will be given in writing delivered by any means which provides written evidence of receipt (and with respect to notices delivered by Candescent, email or other electronic means) and addressed as provided for in this Agreement.

7.7 This Agreement represents the entire understanding and agreement between you and Candescent with regard to the subject matter and supersedes all prior understandings and agreements, whether oral or written.  By logging in, you agree to the terms of any updated version of this Agreement at the time of logging in, which are posted and updated on the login page.

7.8 You may not assign any of your rights or obligations under this Agreement without the prior written consent of Candescent. Candescent may assign its rights or obligations under this Agreement, in wholein part, to any third party.