These terms of service (“Terms”), together with any Service Order and exhibits (if any), form a legal agreement (“Agreement”) between you (including, if applicable, any legal entity that you represent or act for) (“Customer”) and Tumodo, Inc. (“Tumodo”) and sets forth the terms and conditions governing Customer’s access to and use of the Services (as defined below). Tumodo may amend these Terms from time to time with notice to Customer.

1.1. “Active User” means a User that has commenced a Trip (not including personal Trips) or submitted an Expense Services transaction within a calendar month.
1.2. “Affiliate” means with respect to a party, any entity that is controlled by, controls, or is under common control with such party, where the term “control” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.
1.3. “App” means the mobile applications owned by Tumodo through which a User (as defined below) may access the Services.
1.4. “Booking Services” means the online and hosted services provided by Tumodo through the App or Site which includes, at a minimum, the functionality for Users to search for and book travel and to access 24/7/365 support, as well as administrative functionality including real-time reporting, traveler tracking, and (if applicable) corporate customer support.
1.5. “Confidential Information” means any written, machine-reproducible, and/or visual materials that: (i) are clearly labeled as proprietary or confidential; (ii) are identified as proprietary or confidential at the time of their disclosure or in a writing provided within thirty (30) days after disclosure; or (iii) should reasonably be understood to be confidential given the nature and circumstances of its disclosure; provided, however, that Confidential Information shall not include information that: (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.
1.6. “Customer Data” means any personal data or payment information input by the Customer or its Users into the Services and includes Shared Information (defined in Section 5.2). Customer Data shall be deemed to be Confidential Information of Customer.
1.7. “Expense Services” means the online and hosted services provided by Tumodo through the App or Site that include, at a minimum, the functionality for Users to use commercial payment cards and the ability to submit expenses for reimbursement, as well as administrative functionality including real-time reporting and (if applicable) corporate customer support.
1.8. “Fees” means any fees paid by Customer for the Services, including Platform Fees, fees for Implementation Services, Trip Fees, and/or other applicable usage-based fees, as stated in the applicable Service Order, as well as any applicable Management Fee (defined in Section 7.3). “Fees” do not include any monies paid by Customer for Travel Services (defined in Section 5.2), Reward Program Funds (defined in Section 5.4.1), or Charges (defined in Section 6.5).
1.9. “Implementation Services” means the services performed by Tumodo to configure and launch the Services for use by Customer and its Users, as further described in the Service Order.
1.10. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.11. “Payment Services” means the online and hosted services provided by Tumodo through the App or Site that include, at a minimum, the functionality for Users to use virtual commercial payment cards for business expenses, as well as administrative functionality including real-time reporting and (if applicable) corporate customer support.
1.12. “Request” is a single support request, whether addressed across one or multiple interactions (e.g., email messages, calls). For clarity, a single Trip may have more than one Request.
1.13. “Service Order” means an order for Services mutually agreed between the parties, whether agreed in writing or by clicking to agree online.
1.14. “Service(s)” means the online and hosted services provided by Tumodo through the App or Site (which may include a combination of Booking Services, Expense Services, Payment Services), as well as any separate professional services, such as Implementation Services and/or Success Services. The scope of the Services purchased by the Customer may be further described in the applicable Service Order.
1.15. “Site” means the Tumodo website located at https://tumodo.io/.
1.16. “Software” means any Tumodo or third-party software used by Tumodo to provide the Services.
1.17. “Trip” means the full set of travel reservations – including but not limited to air tickets, hotel rooms, car rentals, and other ancillary services, in any combination – that are purchased to enable one (1) personal or business trip.
1.18. “User” means an employee, advisor, contractor, or agent of Customer, or other individual authorized by Customer, that has: (i) been assigned a unique username-password combination by Customer to access and use the Services, or (ii) downloaded and registered through the App or the Site to access and use the Services.

2.1. Employer Account. To access the features of the Services, Customer must register for an account (the “Employer Account”) on the Tumodo Site or App. Customer is responsible for maintaining the confidentiality of its account access credentials, the credentials of Users, and the security of Customer’s systems and networks that it uses to access the Services. If Customer has reason to believe that its Employer Account is no longer secure, then it shall notify Tumodo as soon as possible.
2.2. Implementation Services. Tumodo will provide the applicable Implementation Services, as described in the Service Order, to enable Customer to use the Services. Customer will provide cooperation and assistance as described in Section 3.1.

4.1. Services. Tumodo will provide the Services in accordance with the Agreement, commencing on the date set forth in the Service Order (or, if no Service Order is in place, then on the date Customer begins using the Services) and continuing until such time as Customer cancels the Employer Account, or the Agreement expires or is otherwise terminated hereunder. Customer may access and use the Services solely for its internal business purposes, and such access and use is expressly limited to the Users of Customer.
4.2. Access to Services. Access to the Services is provided on a per User basis and is subject to the usage limitations set forth in the Service Order. If Customer’s use of the Services exceeds such usage rights, Customer will be subject to applicable additional Fees. Tumodo may place reasonable restrictions on the Employer Account, such as restricting or limiting Customer’s ability to add new Users, until Customer has adequately addressed any use in excess of the rights granted hereunder.
4.3. Changes. Tumodo reserves the right to, without materially affecting the functionality of the Services: (1) discontinue, impose limits on, or restrict access to any aspect of the Services at any time, with or without cause or notice, including the availability of any of the features, databases, or content, or (2) edit or delete any documents, information, or other content appearing in the Services. If changes permitted by this Section 4.3 have a negative material impact on the features available to Customer and its Users, Customer may terminate the Agreement without penalty (and shall be entitled to receive a prorated refund of any unused prepaid Fees) after providing thirty (30) days’ prior notice to Tumodo.
4.4. Restrictions. Customer shall not attempt to interfere with or disrupt the Services, Site, App, or Software or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Customer shall not allow access to or use of the Services by anyone other than Users. Customer shall not: (a) copy, modify or distribute any portion of the Services, Site, App, or Software; (b) rent, lease, or provide access to the Services on a time-share or service bureau basis; (c) modify, data scrape, reverse engineer, disassemble, or decompile any portion of the Services, Site, App, or Software; (d) use the Services in order to (i) build a competitive product or services, or (ii) copy any ideas, features, functions, or graphics of the Services; (e) remove or modify any title, trademark, or copyright from the Services; (f) create derivative works based on the Services or otherwise violate Tumodo’ Intellectual Property Rights; or (g) transfer any of its rights hereunder (except as specified in Section 15.7).
4.5. Acceptable Use Policies. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations, and the rights of others. Customer may not use the Services in any manner that would violate the rights of any third party, including but not limited to storing or processing any third party confidential, personal, or payment information into the Services without proper lawful license or permission to do so. Customer shall not use the Services to transmit any bulk unsolicited commercial communications. Customer shall keep confidential and shall not disclose to any third parties any user identifications, account numbers, or account profiles. Customer shall be responsible for the compliance of its Users with Customer’s travel expense and payment policies, including but not limited to in-policy selection of travel options by Users, proper use of Customer’s corporate credit card(s) by Users, and proper submission and substantiation of expenses by Users for reimbursement by Customer. Customer acknowledges that the Services are not designed, intended, or authorized for use in hazardous or mission-critical circumstances or for uses requiring fail-safe performance or where failure could lead to death, personal injury, or environmental damage, and Customer shall not use the Services for such purposes or under such circumstances.
4.6. Illegal Use of Services. Customer shall not use the Services in any manner that would violate applicable laws. Tumodo may immediately terminate Customer, suspend Customer’s access to the Services and/or suspend or cancel any booking if (i) Tumodo determines in its sole discretion that the Services are being used fraudulently, for criminal purposes, or in violation of any applicable law or regulation, or (ii) a governmental, legal, or other law enforcement authority requires or instructs Tumodo to do so.
4.7. Data Maintenance and Backup. The Tumodo Services are not intended to be a data warehouse or data back-up solution for Customer. In the event of any loss or corruption of Customer Data, Tumodo shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by Tumodo; Customer acknowledges that full restoration of Customer Data may not be possible under all circumstances.

5.1. Algorithm. The Booking Services make use of certain proprietary algorithms (collectively, the “Algorithm”) that take into account factors such as Customer policy, User profiles and behavior, current market conditions, and other relevant factors to determine dynamic travel policy limits, market price, Price to Beat, Rewards availability and amounts, sorting of Travel Services results, availability of special products and discounts, or other features. The Algorithm does not determine or affect the price of any Travel Services. Customer acknowledges that the Algorithm is a dynamic feature of the Booking Services and may display different results in connection with different Users, locations, travel dates, and other search and profile elements.
5.2. Travel Services. Through the Booking Services, Customer and its Users may receive services (“Travel Services”) from third-party providers of travel and related services, such as airlines, hotel operators, rail companies, travel inventory aggregators, travel networks and agencies, and car rental agencies (“Travel Provider(s)”). In order to facilitate the purchase of Travel Services by a User, Customer and the User authorize Tumodo to submit certain information, including the name and other personal information of the User and the applicable payment information (collectively, the “Shared Information”), to the Travel Provider to the extent required by the Travel Provider. As an example and by way of illustration only: to facilitate a User’s purchase of an airline ticket, Tumodo may provide the User’s name, other identifying information, and payment information to the Travel Provider (the airline).
5.2.1. Tumodo is not responsible for the provision of Travel Services and does not guarantee the correctness of any material, information, or results made available to Customer by or from Travel Providers, and the presentation of travel inventory through the Booking Services does not constitute a binding contract offer by Tumodo or the respective Travel Provider. Customer acknowledges and agrees that (i) the purchase of Travel Services may be subject to the terms and conditions, agreements (such as contract of carriage), and privacy and security policies of the specific Travel Provider selected by the User, and (ii) the use of Travel Services will be subject to Customer’s and Users’ compliance with applicable law. Customer and its Users shall be solely responsible for, and assume all risk arising from, the selection, use, and receipt of any Travel Service. Customer shall be responsible for the accuracy of all Shared Information it provides to Tumodo, provided that Tumodo takes reasonable measures to ensure the accuracy of information and data it transmits between the User and the Travel Provider in a booking transaction.
5.2.2. Tumodo takes commercially reasonable measures to check the accuracy of the information and description of the Travel Services displayed on the Booking Services (including, without limitation, the pricing, photographs, list of hotel amenities, general product descriptions, etc.); however, Tumodo does not guarantee the accuracy or completeness of such information, as provided by Travel Providers. Tumodo disclaims any and all liability for any errors or other inaccuracies relating to the Travel Services except to the extent such errors are caused by or introduced by an act or omission of Tumodo. Tumodo expressly reserves the right to correct any pricing errors on the Booking Services and/or pending reservations made under an incorrect price.
5.2.3. Tumodo shall not be liable for the performance of any Travel Service, any loss or injury to any User resulting from a Travel Service, or any unauthorized use, disclosure, or misuse of any Shared Information by a Travel Provider.
5.3. Travel Risk. By offering reservations for Travel Services via the Booking Services, Tumodo does not represent or warrant that travel to such areas is advisable or without risk, and is not liable for damages or losses that may result from travel to such destinations. The Travel Providers are not agents, subcontractors, or employees of Tumodo. Tumodo disclaims all liability relating to the actions or inactions of Travel Providers or to any Travel Services, including any actions or inactions that result in any personal injuries, death, property damage, or other damages to Customer or a User. Tumodo has no liability to Customer or its Users and will make no refund in the event that any delay, cancellation, overbooking, strike, Force Majeure Event, or other cause impacts any Travel Services.

If Customer elects to purchase any Tumodo, the terms in this Section 6 will apply (except as noted below).
6.1. Credit Limit(s) and Adjustments. Customer’s account for Tumodo will be subject to a Credit Limit, which Tumodo will set in its sole discretion. Tumodo may adjust any Customer Credit Limit in its sole and absolute discretion, with written notice to Customer. If Customer reaches 75% of any Credit Limit, Tumodo will notify Customer. If Customer reaches 80% of any Credit Limit, Tumodo will again notify Customer and may require Customer to pay down a portion of the balance, calculated based on Customer’s projected spending for the remainder of the current spend period. Customer may request, in writing, an increase in any Credit Limit, which Tumodo may accept or decline in its sole and reasonable discretion.
6.2. Deposit Amount. Tumodo may require Customer to provide a designated sum to Tumodo as a cash-secured deposit (the “Deposit Amount”) before the full Credit Limit is available to Customer. Charges are not debited against the Deposit Amount unless Customer becomes delinquent in its payments to Tumodo. Upon written instruction by Tumodo, Customer shall send the Deposit Amount to a Tumodo account used for customer deposits.
6.3. Customer Charges. Customer shall pay Tumodo for all goods and services purchased using the Tumodo Services and all other payments made via the Tumodo Services (the “Charges”). As part of onboarding, Customer will provide its bank account information to Tumodo for purposes of payment. Customer agrees that Tumodo may save such bank account information and that payments for Charges shall be made in accordance with the payment method indicated on the applicable Service Order and with this Section 6.
6.4. Invoicing and Payment. Each payment period, agreed upon by Customer and Tumodo and defined in cooperation agreement, Tumodo shall provide a statement to Customer listing the Charges incurred during the prior. Customer consents to electronic notification and distribution of statements, and Tumodo shall send Customer an email notification that provides Customer with access to each statement. Payment terms for all Charges are set forth in the applicable Service Order. All Charges will be paid by bank transfer, in the currency indicated in the applicable Service Order.
6.5. Suspension of Tumodo Services. Tumodo may suspend or terminate Customer’s access to Tumodo Services at any time and for any reason without prior notice. Any Charges or other Customer payment obligations that precede termination of Tumodo Services for any reason will survive such termination. If Tumodo suspends the Tumodo Services and Customer subsequently cures, to Tumodo’ reasonable satisfaction, the reason for the suspension (or the cause of the suspension is otherwise resolved), Tumodo will promptly restore Customer’s access to the Tumodo Services.

7.1. Payment of Fees. Customer shall pay the Fees as set forth and defined in the applicable Service Order, using the method described therein or as selected by Customer on the Tumodo Site (if applicable). Customer is responsible for maintaining complete and accurate billing and contact information and notifying Tumodo of any changes to such information.
7.2. Payment by Bank Transfer. Where Customer makes any payment by bank transfer (as will be indicated in the Service Order), Customer shall maintain sufficient funds or credit in its designated account(s) to cover and timely make such payments, and shall direct its financial institution to authorize such payments. Customer shall reimburse Tumodo for any bank charges incurred by Tumodo if a payment is denied due to insufficient funds. The parties shall follow the process required for each payment method.

8.1. Tumodo Property. As between Tumodo and Customer, the Services, Site, App, and Software (and all copies of the Software), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Tumodo or its third-party licensors, including visual interfaces, graphics, design, compilations, computer code (both source code and object code), and all other elements of the Services, Site, App, and Software. Tumodo reserves all rights to the foregoing not expressly granted in the Agreement.
8.2. Customer Feedback. If Customer or its Users submit suggestions, ideas, comments, or questions containing product feedback about or posted through the Services (“Feedback”), Customer grants Tumodo and its Affiliates a worldwide, non-exclusive, royalty-free, perpetual, and irrevocable right to use (and full right to sublicense), reproduce, modify, adapt, publish, translate, create derivative works from, distribute, transmit, and display such Feedback in any form. For clarity, Feedback shall not contain Customer Confidential Information, including Customer Data, and shall not reference or identify Customer or its Users. Customer shall have no intellectual property right in the Services as a result of Tumodo’s incorporation of Feedback into the Services.

9.1. Confidentiality Obligations. During the Term of the Agreement, neither party shall make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purposes other than exercising its rights and performing its obligations under the Agreement. Neither party shall disclose Confidential Information except to such party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers that have a reasonable need to know such information, provided that any such third parties shall, before they may access such information, either (a) execute a binding agreement to keep such information confidential or (b) be subject to a professional obligation to maintain the confidentiality of such information. Each party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement, but in no event will either party use less effort to protect the Confidential Information of the other party than it uses to protect its own Confidential Information of like importance. Each party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the receiving party must provide (to the extent permitted by applicable law) the disclosing party with sufficient advance notice of the agency’s request for the information to provide the disclosing party an opportunity to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.
9.2. Post-Termination Obligations. The receiving party’s obligations to guard the disclosing party’s Confidential Information will survive for a period of five (5) years after expiration or termination of the Agreement, except that personal information within a party’s reasonable control shall be kept confidential in perpetuity until such personal information is returned or deleted. Personal information may be deleted through obfuscation. The receiving party may retain an archival copy of the Confidential Information to the extent necessary to comply with applicable law or archival policies, provided that such retained Confidential Information shall remain subject to all confidentiality obligations under the Agreement.
9.3. Security Obligations. Tumodo shall (i) maintain appropriate information security practices for Tumodo's systems used to provide Services, including reasonable security procedures and practices appropriate to the nature of the information, to prevent unauthorized access to, or use or disclosure of, any Customer Data (a “Security Incident”), and (ii) comply with all privacy and data security laws and regulations applicable to Tumodo. Tumodo shall promptly notify Customer of any confirmed Security Incident that has impacted Customer Data, investigate, and remediate any such Security Incident. For Security Incidents arising out of Tumodo's negligence or failure to apply commercially reasonable security practices, Tumodo shall be responsible for (i) costs of government or regulatory fines, and (ii) if Customer reasonably determines that it is required by applicable law to provide notice and/or credit monitoring or identity protection to any User and/or to provide notice to any governmental entity, costs associated with any such notices or identity protection (collectively, “Breach Costs”). Tumodo shall have no responsibility to pay Breach Costs related to a Security Incident to the extent such costs are due to the negligence, willful misconduct, or fraud by Customer or its Users.

10.1. Warranty for Services. Tumodo warrants that it shall provide the Services in a professional and workmanlike manner, in material compliance with the terms of this Agreement, applicable industry standards, and all applicable laws.
10.2. Customer Use and Data. Tumodo shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Tumodo by Customer or by any User in connection with the Services. Tumodo is under no obligation to edit or control Customer Data that Customer imports to the Services. Tumodo may, at any time without prior notice, remove any Customer Data that violates the Agreement or applicable law, or which violates the rights of a third party or Tumodo. Tumodo shall have no liability for any acts taken by Customer or a User in violation of the Acceptable Use Policies described in Section 4.5, including but not limited to a User’s misuse of Customer’s corporate credit card or violation of Customer’s travel and expense policies.
10.3. General Disclaimer. Except as expressly provided in Section 10.1, Tumodo makes no representations or warranties of any kind whatsoever, express or implied, in connection with the Agreement or the Services. Without limiting the foregoing, except as expressly provided in Section 10.1, Tumodo disclaims any warranty that the Services will be error free or uninterrupted or that all errors will be corrected. Tumodo further disclaims any and all warranties with respect to the Services as to merchantability, accuracy of any information provided, fitness for a particular purpose, or non-infringement. Tumodo further disclaims any and all warranties arising from course of dealing or usage of trade. No advice or information, including but not limited to tax advice and reporting responsibilities, whether oral or written, obtained from Tumodo or elsewhere shall create any warranty not expressly stated in the Agreement. In jurisdictions that by law do not allow the exclusion of certain warranties in certain circumstances, the disclaimers in this Section 10.3 and elsewhere in the Agreement shall be construed to comply with such applicable law.

11.1. Term. The term of the Agreement shall be as set forth in the applicable Service Order (“Term”). The Agreement shall commence on the date set forth in the Service Order (or, if no Service Order is in place, then on the date that Tumodo notifies Customer that it has approved Customer to begin using the Services) and shall continue until it expires or is earlier termination as provided in the Agreement. Commencement of the Services shall be determined by the Parties and included in the applicable Service Order. Except as otherwise specified in the applicable Service Order, the Term shall automatically renew for additional periods equal to the expiring Term unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the expiring Term. Tumodo reserves the right to increase any Fees upon automatic renewal, provided the increase is not more than five percent (5%) per annum. Unless otherwise stated in the applicable Service Order, Customer shall not be entitled to a refund of any prepaid Fees as a result of Customer’s notice of non-renewal.
11.2. Termination for Breach. If either party commits a material breach of its obligations in the Agreement or any Service Order (including payment obligations), the non-defaulting party may give written notice to the defaulting party specifying the nature of the default, and if such default is not remedied, or substantial efforts are not made to remedy such default, within thirty (30) days from the receipt of such notice, then the non-defaulting party shall have the right to immediately terminate the Agreement or the Service Order by written notice. If the breach relates solely to one Service Order or Service, then only such Service Order or Service may be terminated in accordance with the terms herein and the other Service Orders, Services, and the Agreement shall continue in full force and effect. In the event that Customer terminates due to breach by Tumodo, Customer shall be entitled to a pro-rated refund of unused, prepaid Fees as of the date of termination.
11.3. Termination for Insolvency. Notwithstanding anything set forth above, either party may terminate the Agreement immediately by providing written notice to the other party in the event the other party becomes insolvent, makes an assignment for the benefit of creditors, ceases to do business, or if any bankruptcy, reorganization, arrangement, insolvency, liquidation proceeding, or other proceeding under any bankruptcy or other law for the relief of debtors is instituted by or against such party.
11.4. Rights and Obligations Upon Expiration or Termination. In no event shall any termination or expiration relieve Customer of the obligation to pay any undisputed Fees or Charges payable to Tumodo for the period prior to the effective date of termination or expiration. Provided Tumodo is not terminating for cause under Section 11.2 and upon Customer’s request, Tumodo will reasonably cooperate with Customer in a wind-down of Services prior to termination of a Service or of the Agreement. Customer shall be responsible for downloading any Customer Data and/or reporting available within the Services prior to the date of expiration or termination. Upon expiration or termination of the Agreement, (i) Customer’s and Users’ right to access and use the Services shall immediately terminate, (ii) Customer and its Users shall immediately cease all use of the Services, (iii) Tumodo shall cease use of the Customer Marks within a reasonable time, and (iv) each party shall delete or return, and make no further use of, any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party, in accordance with Section 9.
11.5. Survival. Upon termination, any provision which, by its nature or express terms should survive, will survive, including, specifically, Sections 8 (Ownership), 9 (Confidentiality and Security), 12 (Indemnification), 13 (Limitation of Liability), 14 (Governing Law; Disputes), 15 (General).

12.1 Indemnification by Customer. Customer shall indemnify Tumodo, its officers, directors and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any claim by a third party: (i) to the extent arising out of Customer’s or any User’s use of the Services in a manner that violates Sections 4.4, 4.5, or 4.6; (ii) alleging that any Customer Data, as used in the Services, violates a third party’s privacy rights (except to the extent such damages are caused by Tumodo’s failure to guard the privacy and security of Customer Data); (iii) arising out of Customer’s gross negligence, willful misconduct, or fraud; or (iv) arising out of Customer’s breach of PSP Agreement, if applicable. Customer’s obligations under this Section 12.1 are contingent upon Tumodo providing Customer with prompt written notice of such claim. Tumodo may not settle any claim to which it is seeking or is entitled to indemnification in a manner that would result in an admission of any wrongdoing by Customer, without Customer’s prior written approval.
12.2 Indemnification by Tumodo. Tumodo shall indemnify Customer, its officers, directors, and employees, from and against any liabilities, losses, damages and expenses, including court costs and reasonable attorneys’ fees, associated with any third party’s claim that: (i) the Services or Customer’s authorized use of Services infringes or misappropriates the Intellectual Property Rights of any third party; (ii) arises out of Tumodo’s gross negligence, willful misconduct, or fraud; or (iii) arises out of Tumodo's breach of its agreements with a PSP, if applicable. Tumodo’s obligations under this Section 12.2 are contingent upon: (a) Customer providing Tumodo with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Tumodo, at Tumodo’s expense, in the defense and settlement of such claim; and (c) with respect to a claim described in Section 12.2(i) above, Tumodo having sole authority to defend or settle such claim. Tumodo shall have no liability under this Section 12.2 to the extent that any claims described herein are based on use of the Services in a manner that violates: (1) the Agreement; or (2) instructions provided to Customer by Tumodo, so long as they are reasonable and consistent with the terms of the Agreement.
12.3 Infringement Claim Remedies. With respect to claims described in subsection 12.2(i), in the event that Tumodo’s right to provide the Services is enjoined or in Tumodo's reasonable opinion is likely to be enjoined, Tumodo may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate the Agreement without liability to Customer and provide a pro rata refund of any Fees prepaid and unused upon such termination. The foregoing states the entire obligation of Tumodo and its licensors with respect to any alleged or actual infringement or misappropriation of third-party Intellectual Property Rights by the Services.

13.1 Consequential Damages Waiver. In no event shall either party be liable to the other party for any incidental, special, exemplary or consequential damages, including loss of income, data, profits, revenue or business interruption, or cost of substitute services, or other economic loss, whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability) or otherwise.
13.2 Liability Cap. Except for (i) Customer’s obligation to pay Fees and Charges, and (ii) as provided in Section 13.3, each party’s aggregate liability to the other party in connection with the Agreement shall not exceed the total Fees paid or payable by Customer in the twelve-month period preceding the claim or action, regardless of the form or theory of the claim or action. If the Agreement has been in effect for less than 12 months, the actual total Fees paid or payable shall be annualized.
13.3 Exceptions. The Liability Cap in Section 13.2 shall not apply to (i) Tumodo’s obligation to pay Breach Costs (as defined in Section 9.3); (ii) either party’s indemnification obligations as provided in Section 12; or (iii) either party’s breach of confidentiality obligations under Sections 9.1 and 9.2 (collectively, “Excluded Damages”). With respect to Excluded Damages, in no event shall either party’s aggregate liability to the other party exceed five (5) times the total Fees paid or payable in the twelve-month period preceding the claim or action, regardless of the form or theory of the claim or action. If the Agreement has been in effect for less than 12 months, the actual total Fees paid or payable shall be annualized.

14.1 Waiver. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach.
14.2 Notices. Any notices provided by Tumodo under the Agreement will be given: (i) via email; or (ii) by posting to the Services. For notices by e-mail, the recipient shall be the e-mail address provided by Customer in the applicable Service Order, and the date of receipt will be the date on which such notice is transmitted.
14.3 Severability. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
14.4 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes (except by its own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations affected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
14.5 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder.
14.6 Relationship Between the Parties; No Third Parties. Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. The Agreement is for the sole benefit of the signatories and is not intended to benefit any third party. Only the parties may enforce the Agreement.