Branded Agreement

This BRANDED PLATFORM SERVICES AGREEMENT (this “Agreement”) is entered into by and between Sparrow Labs Inc. (“Sparrow”) and the organization (“Company”) executing a Subscription Agreement (“Subscription Agreement”) or similar form referencing or otherwise incorporating this Agreement.  This Agreement shall be effective as of the “Effective Date” of the first Subscription Agreement between Company and Sparrow.  This Agreement governs the provision and use of the Branded Platform, as defined below. 

DEFINITIONS.

a. “Branded Platform” means Sparrow’s proprietary technology, the Sparrow API, data, Branded Sparrow Applications, Sparrow’s features, products, services, documentation, reporting, Intellectual Property and other related material, each, as applicable, as provided on a “white label” services basis with Company branding.

b. “Branded Sparrow Application” means the Branded loan marketplace and related Services made available through Company Sites as provided on a “white label” services basis with Company branding.

c. “Company Content” means the data, images, or other information Company provides to Sparrow through the Branded Platform, Portal, or Sparrow technology. Company Content may include, but is not limited to, information and metrics concerning marketing campaigns placed by Company on Company Sites and feedback.

d. “Company Sites” means websites, mobile sites, mobile applications, affiliated publisher networks, and other acquisition channels or integration points owned, operated, or managed by Company.

e. “Consumers” means natural persons or individuals who visit the Company Sites and generate a Lead.

f. “Consumer Data” means any data about a Consumer or Lead collected through the Branded Platform.

g. “Financial Institutions” means the financial institutions and agents in Sparrow’s network.

h. “Financial Products” means private student loans and student loan refinancing offered by Financial Institutions.

i. “Intellectual Property” means any works, designs, materials, software, trademarks, trade names, inventions, copyrights, algorithms, know-how, and trade secrets of a Party.

j. “Leads” means Consumers interested in obtaining Financial Products from Financial Institutions through the Branded Platform.

k. “Marks” means the trademarks, service marks, trade names, trade dress, designs, domain names, color combination, insignia, and logos (including graphic and color configurations) of a Party.

l. “Party” means each of Sparrow and Company. Collectively, Sparrow and Company are referred to as “Parties.”

m. “Personally Identifiable Information” means any information relating to an identified or identifiable visitor using the Branded Platform. An identifiable visitor is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, online identifier or to one or more factors specific to the physical, physiological, genetic, mental economic, cultural or societal identity of that person.

n. “Portal” means the Sparrow technology used to access the Branded Platform and Services.

o. “Reports” means any and all reports provided to or accessed by Company through the Branded Platform, Portal or Services.

p. “Services” means Sparrow’s products, Branded Sparrow Applications, Reports, professional services and other services provided by Sparrow through the Branded Platform.

q. “Sparrow Content” means all text, images, graphics, photographs, video clips, designs, icons, sounds, information, data, and other materials displayed on, contained within, or downloadable through the Branded Platform or the Portal. Sparrow Content may include, but is not limited to, Reports, Consumer Data, advertisements published on Company Sites, reports, information and metrics concerning marketing placements or subscriptions accessed through the Portal.

1. LICENSES AND SERVICES DESCRIPTION.

1.1. The Services. Subject to the terms of this Agreement and the applicable Subscription Agreement between the Parties referencing this Agreement, Sparrow will deliver the Services set forth in each Subscription Agreement for use solely in accordance with the Agreement. The Services may be provided by Sparrow through the Branded Platform, including the Portal and the Branded Sparrow Application, or a combination thereof. The Services may, among other things, include identifying and collecting data from Leads for the purpose of providing the Services, for Sparrow’s internal purposes, and for any other lawful purposes by Sparrow. In connection with providing the Services, Sparrow may, in its sole discretion, (i) publish Lead submission forms to allow a Lead to provide their information if they are interested in acquiring a Financial Product, (ii) submit the Lead’s information to a credit reporting agency or similar business to determine if the Lead may be qualified for a Financial Product, and, (iii) if the Lead is so qualified, submit the Lead to a Financial Institution so that the Financial Institution can determine whether to offer the Lead a Financial Product. Company may, in its sole discretion, publish on Company Sites advertising from Sparrow, subject to Section 1.6. Sparrow retains ownership of and does not sell, but licenses to Company, solely to the extent expressly set forth in, and in accordance with the terms of, this Agreement, its Services, the Branded Platform (including the Branded Sparrow Application), the Sparrow Content (including the Consumer Data). Sparrow retains all rights title in interest in all of its Intellectual Property. 

1.2. Platform License. During the Term, Sparrow grants to Company a limited, worldwide, non-exclusive, non-sublicensable (except as set forth in Section 10.3), royalty-free, non-transferable (except as set forth in Section 10.3) and revocable license to display and use (i) the Branded Platform that Sparrow makes available to Company under this Agreement and a related Subscription Agreement and (ii) Sparrow’s Intellectual Property, to the extent part of the Services or the Branded Platform, as permitted by Sparrow in this Agreement, in each case subject to any additional terms set forth in the Subscription Agreement. Company shall not, directly or indirectly: reverse engineer, reverse assemble, decompile or disassemble all or any portion of the Branded Platform or the Services; modify, alter in any fashion, translate or create derivative works or additional products or services based on the Branded Platform or the Services; copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on any of the Branded Platform or the Services; attempt to discover any source code of the Branded Platform or the Services; or (except as provided hereunder) sell, assign, sublicense, or otherwise transfer any right in the Branded Platform or the Services. Notwithstanding the foregoing, nothing in this Agreement shall prevent Company from conducting activities similar to or the same as the Services, or to contract with third parties to obtain services similar to or the same as the Services, nor shall anything in this Agreement prevent Sparrow from providing, services similar to or the same as the Services; provided, for the avoidance of doubt, in each case, neither Party shall use the Confidential Information or Intellectual Property of the other Party.

1.3. License for Company Intellectual Property. During the Term, Company grants to Sparrow a limited, worldwide, non-exclusive, non-sublicensable, royalty-free, fully paid, non-transferable and non-sublicensable (except as set forth in Section 10.3) and revocable license to display and use Company’s Intellectual Property as it appears in the Branded Platform or the Services.

1.4. Financial Institution Offers. Sparrow will, from time to time, contract with Financial Institutions for the Financial Product offers to be provided through the Services. Sparrow will provide Consumer Data to the Financial Institutions who are subject to the Gramm Leach Bliley Act and other Applicable Law (including Applicable Privacy and Data Security Laws, each term as hereinafter defined) and who will use such Consumer Data to make offers of the Financial Products to Leads as provided under the Agreement. Company acknowledges that the foregoing are not part of the Services hereunder. The use of Consumer Data provided as part of the Services is addressed in Section 4.4. Requirements applicable to Reports provided in connection with the Services are addressed in Section 1.5. 

1.5. Reporting. Sparrow may furnish certain Reports to Company under this Agreement, including as it is contemplated by Section 10.4. Company hereby agrees that it (i) shall not use the Sparrow Content contained in Reports for any purpose other than for making offers to Consumers in accordance with this Agreement, including Section 4.4; (ii) shall not use the Sparrow Content contained in Reports for any purpose other than for internal use of Company, and not for resale or provision to any third party, and otherwise in accordance with this Agreement, including Section 4.4; and (iii) will use the Sparrow Content contained in Reports solely for analysis and optimization of marketing of offers of the Financial Products offered under the applicable Subscription Agreement, subject to the terms of this Agreement, including Section 4.4. Without limiting any obligations elsewhere in this Agreement, Company acknowledges that in all cases it shall use any and all Sparrow Content, including Consumer Data, contained in Reports in accordance with any applicable privacy policies, privacy regulations, and other Applicable Law, including all Applicable Privacy and Data Security Laws and in accordance with Section 4.4.

1.6. Marketing and Promotion of Sparrow; Use of Branded Platform and the Services. Company, during the Term, may, in its discretion, publish, stop publishing, and republish Sparrow advertising on Company Sites, the Branded Sparrow Applications and other touchpoints, the content and placement of which shall be as mutually agreed upon by the Parties. Company shall integrate and promote the Branded Platform, and the Services, contextually relevant and other mutually agreed-upon areas of the Company Sites or touchpoints, the content and placement of which shall be as mutually agreed upon by the Parties. In no event shall either Party hold itself out in any marketing or marketing materials, or any other materials, as a loan broker, including that it performs (or is capable of performing) the activities of a loan broker. 

1.7. Consumer Fees. Company shall not charge any Consumer any fee (including any advance fee), whether directly or indirectly, in connection with the Services. 

1.8. Consumer Complaints. Sparrow shall address any Consumer complaints regarding technology issues in connection with the Services, including the inability to access the Services, to the extent caused by Sparrow’s technology. Company shall address all other Consumer complaints in connection with the Services, including complaints regarding technology issues caused by Company’s technology. 

2. REPRESENTATIONS AND WARRANTIES.

2.1. Company Representations and Warranties. Company represents and warrants to Sparrow and covenants during the Term, that (i) Company has all necessary rights and authority to enter into the Agreement, to grant the rights and licenses hereunder, and to carry out its obligations under the Agreement, and entering into this Agreement does not conflict with or otherwise violate its articles of incorporation or bylaws, and, further, assuming Sparrow’s due execution and valid authorization of this Agreement, constitutes a valid and legally binding contract that is enforceable against Company in accordance with its terms, except as may be limited by bankruptcy or insolvency laws or similar laws affecting creditors’ rights generally or by general equitable principles; (ii) performance of its obligations under this Agreement shall not, to Company’s actual knowledge, violate the terms of any agreement, terms of use or privacy policies to which Company is a party or by which it is otherwise bound, nor require any notice or consent or other action by any person or entity under, or give rise to any right of termination, cancellation or acceleration of any right, benefit or obligation of such Party under any agreement or other instrument binding upon such Party or any license, franchise, permit or other similar authorization held by such Party; (iii) for Consumer Data collected under this Agreement, Company shall comply with any and all Applicable Law (including the Applicable Data and Privacy Requirements), applicable privacy policies and terms of use, and required documentation and language for any and all authorizations, consents, disclaimers, and Consumer disclosures or notices provided by Sparrow to Company (including the terms of this Agreement); and (iv) Company is responsible for the development, operation, and maintenance of the Company Sites and for all content and materials that appear on the Company Sites including the technical operation of the Company Sites and all related equipment, text on the Company Sites, including ensuring that content and materials on the Company Sites do not violate or infringe upon the rights of any third party and are not libelous or otherwise violate Applicable Law, provided that the foregoing representation does not apply to Sparrow Content. 

2.2. Sparrow Representations and Warranties. Sparrow represents and warrants to Company, and covenants during the Term, that (i) it has all necessary rights and authority to enter into the Agreement, to grant the rights and licenses hereunder, and to carry out its obligations under the Agreement, and entering into this Agreement does not conflict with or otherwise violate its articles of incorporation or bylaws, and, further, assuming Company’s due execution and valid authorization of this Agreement, constitutes a valid and legally binding contract that is enforceable against Sparrow in accordance with its terms, except as may be limited by bankruptcy or insolvency laws or similar laws affecting creditors’ rights generally or by general equitable principles; (ii) performance of its obligations under this Agreement shall not to Sparrow’s actual knowledge violate the terms of any agreement to which Sparrow is a party or other terms by which Sparrow is bound, nor require any notice or consent or other action by any person or entity under, or give rise to any right of termination, cancellation or acceleration of any right, benefit or obligation of such Party under any agreement or other instrument binding upon such Party or any license, franchise, permit or other similar authorization held by such Party; (iii) for Consumer Data collected under this Agreement, its provision of such Consumer Data as contemplated by this Agreement shall comply with any and all Applicable Law (including the Applicable Data and Privacy Requirements), and Sparrow shall obtain all necessary consents related thereto; and (iv) Sparrow is responsible for the development, operation, and maintenance of the Sparrow Content, including ensuring that the Sparrow Content does not and shall not violate or infringe upon the rights of any third party and are not libelous or otherwise violate Applicable Law, provided that the foregoing representation does not apply to Company Content and Company’s Intellectual Property rights, to the extent incorporated into the Branded Platform and the Services.

3. DISCLAIMER OF WARRANTIES

EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES MADE IN SECTION 2, EACH PARTY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES. THE BRANDED PLATFORM AND ANY OTHER SPARROW SERVICES ARE PROVIDED ON AN “AS IS” “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AND NON-INFRINGEMENT. SPARROW MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, RELIABILITY OR COMPLIANCE STATUS OF THE BRANDED PLATFORM AND ITS SERVICES.

4. CONFIDENTIAL INFORMATION AND CONSUMER DATA

4.1. As used in this Agreement, “Confidential Information” means any information or data, regardless of whether it is in tangible form and whether or not disclosed prior to or during the Term of this Agreement, disclosed or provided by a Party, (“Disclosing Party”) to the other Party (“Receiving Party”), relating to the business of the Disclosing Party or its affiliates, including Consumer Data, information or data related to the terms and conditions of this Agreement, business plans, pricing, metrics, network coverage, marketing plans, products, proprietary business practices, policies, procedures, finances, sales, markets, strategies, technologies, research and development, concepts, methods, customers and employees that is not generally ascertainable from public or published information or sources, and all information, data, analyses, compilations, studies, notes, memoranda, or other documents prepared by the Receiving Party based on the Disclosing Party’s Confidential Information. 

4.2. The Receiving Party and its Representatives (as defined below) will keep confidential, shall not disclose, sell or transfer or otherwise use in any manner other than as necessary to exercise its rights and perform its obligations under this Agreement, and will protect from unauthorized use, disclosure, sale or transfer by its employees, contractors and agents, the Confidential Information and all copies or physical embodiments of the Confidential Information, and will limit access to the Confidential Information to those of its employees, officers, directors, affiliates, representatives, contractors and agents (collectively, the “Representatives”) who require such access in connection with the Receiving Party’s use as permitted by this Agreement. The Receiving Party shall disclose the Confidential Information only to those of its Representatives who need to know the Confidential Information solely in connection with performing its obligations under this Agreement, and who are informed by the Receiving Party of the confidential nature of the Confidential Information. The Receiving Party is responsible for all acts and omissions of its Representatives relating to the Confidential Information of the Disclosing Party as if it acted or omitted from acting itself. The Receiving Party will secure and use reasonable measures to protect the confidentiality and security of the Confidential Information and any and all copies and other physical embodiments of the Confidential Information. Upon termination of this Agreement, upon request of the Disclosing Party, the Receiving Party will promptly return the Confidential Information to the Disclosing Party or, if authorized by the Disclosing Party, destroy the Confidential Information and, upon request of the Disclosing Party, will certify to the Disclosing Party that such return or destruction has taken place; provided, however, that nothing in this Section will require the Receiving Party to delete or purge any records in backup or archival systems kept in the normal course of business. Promptly upon discovery that any person has acquired possession, use or knowledge of any part of the Confidential Information other than as authorized by this Agreement, the Receiving Party shall notify the Disclosing Party of such fact and the surrounding circumstances and follow any instructions of the Disclosing Party to address such unauthorized disclosure or acquisition of Confidential Information. Notwithstanding anything in this Section to the contrary, Consumer Data shall be further subject to subsection 4.4 immediately below.

4.3. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without breach of this Agreement (except for Consumer Data), (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information (as evidenced by contemporaneous documentary evidence). In the event that the Receiving Party is required by law to make any disclosure of any of the Confidential Information of the Disclosing Party, by subpoena, judicial or administrative order or otherwise, the Receiving Party shall, unless prohibited by law or law enforcement, first give written notice of such requirement to the Disclosing Party, and shall permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide cooperation and assistance to the Disclosing Party in seeking to obtain such protection, at Disclosing Party’s expense, and shall only provide Confidential Information to the extent legally required, and shall use reasonable efforts to maintain the confidentiality of any Confidential Information so disclosed.

4.4. Consumer Data. Company shall not copy, store, sell, rent, lease, distribute, display, modify, disclose, or otherwise use or provide access to Consumer Data, except as expressly set forth in this paragraph and in accordance with all Applicable Law, including Applicable Privacy and Data Security Laws, including complying with any opt-outs provided by Consumer under Applicable Privacy and Data Security Laws. In each case subject to the immediately foregoing sentence, Sparrow hereby grants to Company a non-exclusive, worldwide, royalty-free, fully paid up, non-sublicensable (except to the extent permitted by Section 10.3), and non-transferable (except to the extent permitted by Section 10.3) right and license to the Consumer Data to: (i) copy, distribute, display, modify and use the Consumer Data for marketing purposes; (ii) copy, modify and use the Consumer Data in connection with Company’s internal operations, including, but not limited to, operational analytics and reporting, internal analysis, audit functions, and development, diagnostic and corrective purposes; (iii) create anonymized (i.e., no Personally Identifiable Information) and aggregated data from the Consumer Data, and copy, distribute, display, modify and otherwise use such anonymized and aggregated data; and (iv) retain Consumer Data to comply with any legal or regulatory requirements. Company shall not take any action, directly or indirectly, to re-identify any information or re-associate any such information provided to Company in an anonymized format with any Personally Identifiable Information.

4.5. Financial Institution Information. Company acknowledges that Sparrow’s Confidential Information and relationships with consumers and its Financial Institutions are valuable business assets and recognizes that Sparrow has proprietary relationships with its Financial Institutions. Company agrees for itself and its affiliates and each of their owners, directors, managers, officers, employees, agents, contractors and representatives not to use any Sparrow Confidential Information provided hereunder, including Reports, pricing, contact information etc., for any impermissible purposes, including to establish or attempt to establish a direct relationship with Sparrow’s Financial Institutions for the purposes of sourcing leads.

5. SECURITY.

5.1. To the extent that either Party has access to Personally Identifiable Information as part of Consumer Data hereunder, such Party will implement and maintain reasonable security procedures and practices with respect to the Consumer Data in accordance with the terms of this Agreement and any Applicable Privacy and Data Security Laws (as defined below). For purposes of this Agreement, “Applicable Privacy and Data Security Laws” means the following: (i) all privacy, security, and data protection laws, rules and regulations of any applicable jurisdiction, and all then current industry standards, guidelines, and practices with respect to privacy, security, and data protection including the collection, processing, storage, protection, and disclosure of Personally Identifiable Information, and (ii) the privacy policy and terms of use applicable to the Services, the receipt of which Company acknowledges as of the Effective Date, as well as Sparrow’s policies and guidelines applicable to any of the foregoing provided to Company in written form from time to time.

5.2. If any unauthorized access, disclosure, use, possession, alternation, destruction, or other intrusion of Sparrow’s data or Consumer Data occurs (any such occurrence, a “Security Incident”), Company agrees to immediately notify Sparrow, in writing, of such intrusion (stating the nature and scope of the intrusion, identifying the type of information, the information systems and customers impacted, estimating the intrusion’s effect on Sparrow or its customers and consumers, specifying the Company’s plans for corrective actions, and reporting steps taken to respond to the Security Incident and preserve information for any necessary investigation). Without limiting the foregoing, the notification required to be delivered to Sparrow shall be delivered promptly and in no event later than twenty-four (24) hours after Company learns of any such actual, suspected or threatened Security Incident. Company shall not unreasonably delay its notification to Sparrow for any reason, including investigation purposes. Company shall, at its own expense, cooperate fully with Sparrow in investigating and responding to each successful or attempted Security Incident including, in the event that Confidential Information of Sparrow is affected, allowing immediate access to Company’s facilities by Sparrow and Sparrow’s investigators or other representatives, to investigate, and obtain copies of data as provided herein. Company shall also, at its own expense, cooperate with Sparrow in responding to the Security Incident, notifying Customers or other affected individuals as required by law, and seeking injunctive or other equitable relief against any such person or persons who have violated or attempted to violate the security of Confidential Information. In the event that Applicable Laws require that Sparrow’s customers or other affected persons be notified of a Security Incident, and Applicable Law do not establish whether such notice must come from Sparrow or Company, Sparrow shall have the discretion of determining whether such notice shall come from Sparrow or Company. In any event, the content, timing, and other details of such notice shall be subject to Sparrow’s approval, in Sparrow’s sole and reasonable discretion. Company shall be responsible for reimbursing Sparrow for the costs of such notifications and fielding feedback and questions from those notified, and any other associated costs that Sparrow may incur in connection with responding to or managing a Security Incident (for example, costs of credit monitoring services, call center services and forensics services, fines imposed by regulatory agencies resulting from the Security Incident and costs associated with investigating and responding to investigations and inquiries related to a Security Incident from federal and state agencies and others, including legal fees).

6. INTELLECTUAL PROPERTY.

6.1. Unless otherwise specified in this Agreement, Sparrow (or its third party licensors) own exclusively all Intellectual Property that Sparrow supplies or licenses to Company relating to the Services, the Branded Platform, including the Branded Sparrow Application, and Sparrow Content. Company (or its third party licensors) owns all Company Content and all of the Company’s Intellectual Property. 

6.2. Neither Party shall challenge, or assist any third party in challenging, any right, title or interest of the other Party in or to its Marks or other Intellectual Property, nor claim any right, title or interest in or to the other Party’s Marks or other Intellectual Property, nor assert any interest in, or attempt to register or apply for registration of, any of the other Party’s Marks or other Intellectual Property (or any or any confusingly similar variation of such Marks). Except as provided herein, each Party shall not use the other Party’s Marks, or any adaptation or variation of such Marks, in any manner whatsoever without the prior written consent of the other Party. Neither Party will use the other Party’s Marks, or incorporate any such Marks, including any confusingly similar variation of such Marks, into any company or trade names, other marks, email addresses, domain names or URL strings, telephone numbers, Google AdWords (or other online paid search advertising tool), or social networking user names, “handles,” or hashtags. Each Party acknowledges that it is familiar with the high standards, quality, style and image of the other Party’s Marks, and will use such Marks in a manner consistent with such uses. Neither Party will use the other Party’s Marks in any way that causes, or may cause, damage to the reputation, business or goodwill of the other Party. Neither Party will do anything itself, or aid or assist any other person or entity to do anything that would, or could reasonably be expected to infringe, violate, tarnish, dilute, cause a loss of distinctiveness, harm, disparage, misuse or bring into disrepute the other Party’s Marks, or do anything that would, or could reasonably be expected to damage the goodwill associated therewith. Each Party will meet and comply with all of the specifications and standards prescribed by the other Party regarding its Marks. To the extent a Party determines that any use of its Marks by the other Party is inconsistent with the terms and conditions of this Agreement, then such Party may provide written notice of such inconsistency to the other Party and the Parties will work in good faith to address the issue giving rise to such written notice within a commercially reasonable period of time. 

6.3. Intellectual Property Claims. In the event there is a third party claim that the Services or the Branded Platform have infringed a third party’s Intellectual Property rights, then, Sparrow in its sole discretion, may: (i) replace the infringing functionality with comparable, non-infringing functionality; (ii) make modifications to the infringing services or platform so that it becomes non-infringing, or (iii) obtain a license to use the intellectual property that has allegedly been infringed; provided, if options (i)-(iii) are not commercially reasonable, then Sparrow my elect to terminate this Agreement. 

7. INDEMNIFICATION.

Each Party (“Indemnifying Party”) agrees to indemnify and hold harmless the other Party and its affiliates and each of their owners, directors, members, officers, managers, employees, successors and permitted assigns (collectively, “Indemnified Party”) from and against all liabilities, damages, losses, penalties, fines, fees (including attorney’s fees), costs and expenses (collectively “Losses”) incurred by the Indemnified Party resulting from any third-party claims, actions or proceedings alleging (a) that any Intellectual Property provided by the Indemnifying Party infringes a third party’s patent, copyright, trademark, or trade secret; (b) a breach by the Indemnifying Party of any of its representations and warranties in Section 2; (c) a breach by Indemnifying Party of Section 4, or (d) that Indemnifying Party has materially violated any applicable foreign, federal, state or local statute, law, ordinance, regulation, rule or any other applicable requirement or guidance of any government agency or instrumentality, including the Consumer Financial Protection Bureau, as such may be amended, modified or supplemented from time to time, or any applicable judicial or administrative judgment, order, stipulation, award, writ, or injunction (“Applicable Law”). The indemnification obligations of a Party under this Section 7 shall not apply to the extent of any Losses that arise from (i) the direct acts or omissions of the Indemnified Party, including a breach of any of its representations, warranties or covenants under this Agreement, or (ii) the gross negligence, fraud, bad faith or willful misconduct of the Indemnified Party. 

8. LIMITATION OF LIABILITY.

EXCEPT FOR LIABILITY ARISING FROM A BREACH OF CONFIDENTIALITY, BREACH OF REPRESENTATIONS OR WARRANTIES IN SECTION 2 (EXCLUDING, FOR PURPOSES OF SECTION 8(B), SECTIONS 2.1(IV) OR 2.2(IV) TO THE EXTENT OF AN INFRINGEMENT CLAIM) OR A PARTY’S INDEMNIFICATION OBLIGATIONS (EXCLUDING, FOR PURPOSES OF SECTION 8(B), SECTION 7), (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS, BUSINESS OR DATA), WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT WILL THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF NET FEES PAID OR DUE TO OR FROM A PARTY TO THE OTHER PARTY HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS SECTION 8 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

9. FEES & PAYMENT.

9.1. Fees. Sparrow shall pay to Company the fees set forth in the Subscription Agreement(s).  Sparrow shall pay Company within thirty (30) days of receiving the applicable portion of the Revenues (as defined in the Subscription Agreement) from each Financial Institution. Company shall pay to Sparrow the fees set forth in the Subscription Agreement.  Company shall pay Sparrow within thirty (30) days of receiving Sparrow’s invoice.

9.2. Audits. Each Party agrees to submit to any examination that may be required by any regulatory authority with audit and examination authority over one or both Parties and to provide such information that a Party may reasonably require in order to respond to any request from any such regulatory authority. 

9.3. Reporting Clause. Sparrow shall establish an online portal reasonably acceptable in design and usability to Company containing information as may be reasonably requested by Company and agreed upon by Sparrow to be provided. All information provided via such online portal shall be deemed “Reports” for purposes of this Agreement. 

10. TERM AND TERMINATION.

10.1. Term. Unless otherwise specified in the Subscription Agreement, (i) each Subscription Agreement will have a term of 12 months (an “Initial Term”) beginning on the Effective Date of such Subscription Agreement; (ii) after the Initial Term, such Order will automatically renew for one (1) year periods (each a “Renewal Term”) unless either party provides the other party with at least sixty (60) days’ written notice prior to the end of the Initial Term or the Renewal Term; and (iii) Sparrow may revise its rates for the following Renewal Term by providing Company with at least seventy-five (75) days’ written notice prior to the end of the then-current Initial Term or Renewal Term. Termination of this Agreement will terminate any and all Subscription Agreement, but termination of a Subscription Agreement shall not terminate this Agreement.

10.2. Termination for Cause. Either Party may terminate this Agreement or a Subscription Agreement hereunder by written notice to the other Party in the event the other Party breaches this Agreement and does not cure such breach within ten (10) days of receiving notice of such breach.

10.3. Termination for Change in Law or Action from Regulatory Authority. If there is a change in any Applicable Law during the Term that would render continued performance under the Agreement by either Party illegal or a violation of Applicable Law, the Parties shall use commercially reasonable efforts to negotiate in good faith modifications to this Agreement to remediate such noncompliance in a way that preserves the economic benefits contemplated by the Parties. If the Parties cannot, within thirty (30) days after beginning negotiations, agree on modifications to this Agreement to comply with Applicable Law, this Agreement shall immediately terminate and be of no further force or effect except as provided in Section 3.4 below. Furthermore, this Agreement shall terminate immediately upon written notice of any direction from any regulatory authority to cease or materially limit performance of the obligations under this Agreement.

10.4. Effect of Termination. Upon termination or expiration of this Agreement or a Subscription Agreement hereunder, each Party shall pay all amounts owed under Section 9.1, each Party will cease use of the other Party’s Intellectual Property and, upon request, will return or destroy all Confidential Information, and, upon request, confirm to the other Party such return or destruction. The Parties’ obligations under this Agreement which by their nature are intended to continue beyond the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement; in addition, Sections 2, 3, 4, 5, 6, 8, 10, and 11, together with any definitions or other provisions of this Agreement necessary to interpret any of the foregoing, shall expressly survive the Term and any termination or non-renewal of this Agreement and shall continue in force and effect thereafter indefinitely.

11. MISCELLANEOUS.

11.1. Publicity. Neither Party shall use the Marks of the other Party in any press release or similar public communication relating to this Agreement, its subject matter or the transactions covered by it, or the activities of the Parties under or in connection with this Agreement, without the prior written approval of the other Party.

11.2. Governing Law; Venue; No Jury Trial. This Agreement will be governed by New York law (without regard to conflicts of law provisions). Each Party exclusively submits to the jurisdiction of the United States District Court for the Southern District of New York and any New York state court sitting in New York, New York for purposes of all legal proceedings arising out of or relating to this Agreement. Each Party irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any such proceedings brought in such a court and any claim that any such proceedings brought in such a court have been brought in an inconvenient forum. Each Party consents to process being served in any suit, action or proceeding with respect to this Agreement by the mailing of a copy thereof by registered or certified mail, postage prepaid, return receipt requested, to its respective address specified at the time for notices under this Agreement. EACH PARTY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREES THAT ANY SUCH DISPUTE WILL BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.

11.3. Assignment. This Agreement is binding upon, and ensures to the benefit of, the Parties and their respective successors and permitted assigns. Sparrow may assign or sublicense any rights hereunder. Company may not assign this Agreement, or sublicense any of the rights granted therein, in whole or in part, without the prior written consent of Sparrow. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of the Agreement in violation of the foregoing shall be void. 

11.4. Force Majeure. Each Party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)).

11.5. Entire Agreement; Rules of Interpretation. This Agreement contains the Parties’ entire understanding on the subject matters herein, and supersedes all prior discussions, representations and agreements. No rule of strict construction may be applied against any Party on the basis that it was the drafter or creator of this Agreement. No course of dealing or individual waiver by either Party will be deemed to alter the terms of the Agreement. Each Party acknowledges that it received (or had access to) independent legal counsel. The section headings in this Agreement are solely for convenience and may not be used to interpret this Agreement. The Agreement may only be amended by a writing signed by both parties. For purposes of this Agreement, the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation,” the word “or” is not exclusive, and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Words defined in the singular include the plural, and vice versa. 

11.6. Severability and Waiver. If any portion of the Agreement is stricken as invalid, the remaining portions will remain in full force and effect. Failure of either Party to exercise any of its rights in a particular instance shall not be construed as a waiver of those rights or any other rights for any purpose.

11.7. Relationship of Parties; No Third-Party Beneficiaries. Nothing in this Agreement will constitute or create a partnership, joint venture, agency, or other relationship between the Parties. To the extent either Party undertakes or performs any duty for itself or for the other Party as required by the Agreement, the Party will be construed to be acting as an independent contractor. This Agreement is not intended to confer any right or benefit on any third party. No action may be commenced or prosecuted against a Party by any third party claiming as a third-party beneficiary of this Agreement.

11.8. Notices. Notices will be sent to the addresses set forth in the Subscription Agreement. The notices will be deemed to have been given upon: (i) the date actually delivered in person; (ii) the day after the date sent by overnight courier; (iii) three (3) days following the date such notice was mailed by first class mail; or (iv) the date sent by email to Sparrow at support@sparrowfi.com or Company at the Company’s email address specified in the Subscription Agreement. To the extent not prohibited by Applicable Law, a Party may, at its option, use electronic communications to provide the other Party with any notice or consent hereunder.