These Terms and Conditions of Use (this "Agreement") is a binding contract between you ("Customer," "you," or "your") and New Era Titans, LLC ("Company," "we," or "us"). This Agreement governs your access, browsing, and use of the Company's website located at www.neweratitans.com or any affiliated websites owned or operated by the Company; the Company's driver qualification file management software platform; and related services (the "Services"). The Services include any content, tools, software, features, functionality, updates, and new releases provided in the Services. You agree to comply with any policies and guidelines made available in the Services. All such rules and guidelines are hereby incorporated by reference into this Agreement. The Services are intended for users located within the United States. You may not access or use the Services if you are located outside the United States.

THIS AGREEMENT TAKES EFFECT WHEN YOU CHECK THE "I AGREE" BOX, BY ACCESSING OR USING THE SERVICES, OR BY TAKING ANY OTHER ACTION THAT DEMONSTRATES YOUR ASSENT TO ITS TERMS. BY CHECKING THE "I AGREE" BOX, BY ACCESSING OR USING THE SERVICES, OR BY TAKING ANY OTHER SIMILAR ACTION, YOU (A) REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OLD; (B) ACKNOWLEDGE THAT YOU READ AND UNDERSTAND THIS AGREEMENT; (C) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT, OR, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (D) ACCEPT THIS AGREEMENT AND THAT YOU ARE (OR THE ORGANIZATION IS) LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT CHECK THE "I AGREE" BOX AND DO NOT ACCESS OR USE THE SERVICES.

ARBITRATION NOTICE: THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE. EXCEPT FOR CERTAIN TYPES OF DISPUTES, YOU AND THE COMPANY AGREE THAT DISPUTES WILL BE RESOLVED BY BINDING ARBITRATION, AND YOU AND THE COMPANY WAIVE ANY RIGHT TO BRING A LAWSUIT IN COURT, OR PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.

ARTICLE I: DEFINITIONS

Section 1.01 Definitions. The following terms shall have the following definitions for purpose of this Agreement:

1. "Agency" or "Agencies" means one or more United States regulatory or supervisory agencies for which Customer owes reporting or compliance obligations, including, as applicable, the Federal Motor Carrier Safety Administration ("FMCSA").
2. "Applicable Law" means the laws applicable to Customer by virtue of its industry and its employment of Safety-sensitive employees, including but, not limited to, the Code of Federal Regulations (e.g., 49 CFR Part 40, 49 CFR Part 383, etc.), relevant state and federal labor and employment laws, and other relevant state and federal laws, whether enacted prior to or during the term of this Agreement.
3. "DQFM" means driver qualification file management.
4. "DOT" means the U.S. Department of Transportation.
5. "Safety-sensitive" with respect to Customer's employees, means, for purposes of the FMCSA, drivers who operate a commercial motor vehicle in commerce in any state. In each case, a "safety-sensitive" employee shall include all individuals actively performing, ready to perform, and/or immediately available to perform any safety-sensitive duty, as applicable.
"Services" shall mean Company's websites, Company's online DQFM software platform and related services.

ARTICLE II: SERVICES AND FEES

Section 2.01 Service; Access and Use

1. Services; DQFM Portal. During the Term, subject to the terms and conditions of this Agreement, and subject to the individual purchase(s) or subscription package(s) purchased by Customer in the DQFM Portal, Company shall provide Customer and Customer's authorized employees and contractors ("Authorized User(s)"), with access to and use of the Services, including the DQFM Portal. The DQFM Portal will allow Customer and Authorized Users to, among other things, upload, store, download, file, print, review, request, process, transfer, and share, driver and DQFM-related information, documents, and records. Customer may limit Authorized User's access and use of the Services in Customer's account settings.
2. Additional Services. Customer and Authorized Users may also purchase, obtain, and use, either from Company directly or a Third Party Products provider (defined below), DOT driver drug and alcohol testing services, driver vehicle inspection history reports, FMCSA Clearinghouse queries, DOT pre-employment applications and screening, DOT medical and physical examinations, and certain DQFM Portal software tools and plug-ins. Additional Services may change from time to time at Company's discretion.
3. Authorized Users; Passwords and Security. Authorized Users will log in to the DQFM Portal using an assigned username and password. Customer and each Authorized User are responsible for maintaining the confidentiality and security of their assigned username and password. Company shall instruct Authorized Users that they may not share assigned usernames or passwords with anyone else, and that Authorized Users must abide by the terms of this Agreement and the Company's privacy policy (the "Privacy Policy") available here: Privacy Policy. Company and Authorized Users shall be responsible and liable for any unauthorized access or use of the DQFM Portal or any data or documents therein resulting from Customer's or the Authorized User's failure to comply with the security and confidentiality obligations of this Agreement.
4. DQFM Portal, DQFM Portal Materials; Limited Warranty. Company will use commercially reasonable efforts to ensure that the DQFM Portal and DQFM-related forms, templates, documents, and materials provided by Company for use by Customer and Authorized Users in the DQFM Portal (such forms, templates, documents, and materials, individually and collectively, "DQFM Portal Materials") are in compliance with then-current DOT requirements. Notwithstanding the foregoing, Customer shall be solely responsible and liable for (1) any alterations or revisions made by Customer, Authorized Users, or third parties to any DQFM Portal Materials; and (2) any and all data (including but not limited to employee data, driver data, and other personally identifiable information) provided by Customer or Authorized Users in the DQFM Portal, and all other forms, documents, records, and information created, provided, uploaded, stored, or shared by Customer, Authorized Users, or third parties in the DQFM Portal. Additionally, Customer shall be solely responsible and liable to employees, Agencies and third parties for compliance or noncompliance with Applicable Law, including but not limited to DOT and DQFM-specific regulations and any requirement that Customer provide information or certain documents (or copies thereof) to drivers or employees.
5. DQFM Portal Security. Customer acknowledges that although Company shall use commercially reasonable security measures in accordance with industry standards to protect the documents and information in the DQFM Portal from unauthorized access and use, no security measure is infallible.
6. 24/7/365 Access. The Services will be generally available to Customer and Authorized Users on a 24/7/365 basis, excluding Company's scheduled maintenance periods, and subject to maintenance periods or downtime of providers of Third-Party Products.
7. Text Message and Short Message Service (SMS) Communications. The Services may allow text or SMS communications to Customer, Authorized Users, and other individuals who provide prior written consent. Customer and Authorized Users who provide consent hereby agree to receiving text or SMS messages from Company. By sending text or SMS messages via the Services, Customer and Authorized users represent and warrant that they have obtained consent from the recipient to receive text or SMS messages from Customer, and from Company on Customer's behalf. Recipients are responsible for all taxes, fees and costs associated with receiving text and SMS messages. Recipients may “opt out” of receiving text and SMS messages at any time by revoking consent through Company's text or SMS messaging service (e.g. responding with "STOP"), or by contacting Company directly.

Section 2.02 Service Exclusions.

1. Service Fees. Customer shall pay the fees for individual purchases made by Customer or Authorized Users from time to time, the fees for subscriptions purchased by Customer or Authorized Users, or both (the "Service Fee(s)") in accordance with Company's then-current fee schedule at the time of purchase. Company may change its Service Fees at any time with notice (which may be made via email). Fees already paid for subscriptions will not change until the next billing cycle or thirty (30) days after notice, whichever occurs later. Fees determined by state or federal law are subject to change at any time, and Company may change those fees without notice. In response to any change to the Service Fees, Customer's sole remedy shall be to terminate this Agreement.
2. Invoices. Company shall invoice Customer for the Service Fees in advance or in arrears, with or without automatic billing, in its sole discretion as provided in this Section. Company may at its discretion determine estimated Service Fees for invoices to be paid in advance of the Services using any methodology Company desires, including, but not limited to, the number of employees in Customer's DQFM Portal account, and the types of Services requested. Where Customer is invoiced in arrears, all Services Fees are due and payable in full within thirty (30) calendar days of invoice date. Any amount unpaid when due under this Section shall be subject to a late fee of $15.00 per month, or the highest amount permitted by law if lower. Except where prohibited by Applicable Law, Company shall be permitted to immediately suspend Services and access to the DQFM Portal in response to any delinquent payment of the Service Fees and, in its sole discretion, terminate this Agreement under Section 5.
3. Billing Methods. Company shall bill Customer under one or more of the following methods, depending on the specific Services purchased and Company's business policy for such Services:
   1. Pre-Payment. Should Company require prepayment for particular Services, Customer shall submit payment in advance for any and all such Services to be performed by Company under this Agreement. Prior to Company's commencement of any Services, Customer shall remit an initial advance deposit in a sum established by Company from time to time, in its sole discretion, against which the Services shall be debited. Company is under no obligation to perform any Services, or complete Services commenced but not paid for in full, unless and until Customer makes full payment in advance therefor. Company may seek supplemental deposits as deposit funds are exhausted, new Services, employees or Authorized Users are added to Customer's account, or otherwise. Customer authorizes Company to use any prepaid amounts to satisfy any outstanding payments not made when due or outstanding at termination of the Agreement.
   2. Net 30 Payment. Company shall invoice Customer for the Services on a monthly basis, with all payments due in full within thirty (30) calendar days of invoice date.
   3. Auto-Pay. For any Service where auto-pay is available or required, Customer hereby authorizes Company to automatically deduct the relevant Service Fees from Customer's credit card, debit card, or bank account provided by Customer. Company shall invoice Customer for the Services on a monthly basis or as such Services are rendered at Company's sole discretion, with all payments charged against Customer's credit card, debit card, or bank account kept on file with Company. Customer is solely responsible for ensuring the information provided for auto-pay is current, and Customer will promptly update such information as needed. Customer must update the card or bank account information on file at least three (3) business days before an auto-pay payment is deducted in order for Company to deduct the Service Fees using the updated card or bank account information. Customer may cancel auto-pay at any time in Customer's account settings. To stop an auto-pay payment from being deducted, Customer must cancel auto-pay at least three (3) business days prior to the date the auto-pay payment is scheduled to be deducted. If Company is unable to charge Customer's card or bank account on file as agreed, and if Customer does not provide Company with payment, a replacement card or bank account information within five (5) business days of notice, Company shall be entitled to alternatively suspend the Services, bill Customer in arrears, demand immediate payment by other means, or take any other lawful actions it deems appropriate under the circumstances to resolve the outstanding amount. Company's inability to charge Customer's card or bank account when due may result in a late fee of $15.00 per month, or the highest amount permitted by law if lower, and the Services being suspended or terminated for non-payment.
   4. Payment Methods; Credit Card Processing Fees. Customer may pay any invoice when due by credit card, debit card, bank account information, or in any other manner as the parties mutually agree. Company shall be permitted to recoup from Customer reasonable credit card processing fees in addition to the Service Fees, as applicable and as allowed by law.
   5. Billing Information Needed to Purchase Services. There must be at least one (1) billing method (credit/debit card, bank account, etc.) stored in Customer's account at all times in order for Customer to purchase Services. If Customer does not maintain at least one (1) billing method in Customer's account, or Customer cancels auto-pay with no other billing method stored in Customer's account, Customer will not be able to purchase Services

Section 2.05 Credits and Refunds.

Company does not provide credits or refunds for purchased Services, except for prepaid amounts that remain unused at termination of the Agreement after deducting payment for any outstanding invoices or other monies due to Company, which is hereby authorized by Customer.

ARTICLE III: CUSTOMER OBLIGATIONS, REPRESENTATIONS, AND WARRANTIES

Section 3.01 Customer Obligations.Customer acknowledges that it shall be solely responsible for the following during the Term of this Agreement:

1. DQFM Obligations. Customer is solely responsible and liable for ensuring that it is in full compliance with any and all DQFM obligations.
2. Confidentiality of Employee Information. Customer shall take all reasonable steps necessary to maintain the confidentiality of driver and employee information and comply with all Applicable Laws related to the transmission, storage, and maintenance of personally identifiable information.
3. Compliance Program. Customer shall be solely responsible for establishing, updating, maintaining, and adhering to its own compliance program according to Applicable Laws, including, but not limited to 49 C.F.R. Part 40. Customer's adherence to its own compliance program shall include ensuring that none of its employees perform Safety-sensitive functions upon receiving a negative test or refusing to complete a test, until permitted to return to work under Applicable Law. Company is not responsible for reviewing Customer's policies and procedures for compliance with Applicable Law.
4. Employee Lists and Classification. Customer shall be solely responsible for identifying those employees classified as Safety-sensitive or performing Safety-sensitive functions. Company is not responsible for Customer's failure to properly classify its employees or maintain a current and updated list of employees, and Customer shall hold Company harmless from any claims, losses or damages Company may suffer or incur as a result of Customer's own noncompliance with Applicable Law.
5. Employee Testing. Customer is solely responsible for instructing its employees to schedule and keep their test appointments, for incentivizing testing in its sole discretion and subject to Applicable Law, and for taking disciplinary actions when confronted with employee non-compliance. Company is not responsible for facilitating the test appointment scheduling process.
6. Employment Laws. Customer is solely responsible and liable for compliance or noncompliance with federal, state, and local labor and employment laws. Company shall not be deemed an employer or co-employer of Company's employees, and Company shall not be responsible or liable for compliance or noncompliance with any state, federal or local labor or employment laws concerning Customer's employees or contractors.
7. FMCSA Clearinghouse Registration. Beginning January 6, 2020, commercial motor carrier employers are required to register for the FMCSA Commercial Driver's License Drug & Alcohol Clearinghouse (the "Clearinghouse") and comply with all its terms. Customer is solely responsible for registering as an employer with the Clearinghouse, for appointing a representative to serve as administrator, for replacing the Clearinghouse Administrator on a timely basis as necessary, for identifying candidates for employment for which pre-employment queries of the Clearinghouse are required, for ensuring prospective and active employees consent to Clearinghouse queries, for running annual reports to verify whether information about the employee has been reported, and other Clearinghouse-related obligations.
8. Service Terms and Conditions; Privacy Policy. Customer and Authorized Users shall at all times abide by the terms and conditions of and hereby acknowledge, Company's Privacy Policy, available at Privacy Policy and incorporated herein by reference, as amended from time to time. Company's Privacy Policy applies to the Services, including but not limited to the collection, use, storing, sharing, or otherwise processing of personally identifiable information concerning Company's employees and contractors. By accessing, using, and providing information in, to and through the Services, Customer acknowledges that it has reviewed and accepted the Privacy Policy, and consents to all actions taken by Company in connection with the then-current version of the Privacy Policy.
9. Account Use. Customer is responsible and liable for all access and use of the Services by Customer and Authorized Users, whether directly or indirectly, and whether such access or use is permitted by or in violation of this Agreement. Any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall make Authorized Users aware of this Agreement's provisions applicable to Authorized User's access and use of the Services, and shall cause Authorized Users to comply with such provisions.
10. Customer Data. Customer hereby grants Company a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Company to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics, as that term is defined below in Section 4.02. Customer will ensure that Customer Data and any Authorized User's use thereof will not violate any policy or terms referenced in or incorporated into this Agreement or any Applicable Law. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data.
11. Use Restrictions. Customer shall not, and shall not permit any Authorized Users to, use the Services for any purpose beyond the scope of access and use granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (1) copy, modify, or create derivative works of the Services, including but not limited to any software component of the Services, in whole or in part; (2) imitate, mirror, reproduce, display, rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services except as expressly permitted under this Agreement; (3) modify, translate, reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain unauthorized access to any software component of the Services; (4) remove any proprietary notices or legends from the Services; (5) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of Company or any other person, or that violates any Applicable Law; (6) use any meta-tags or other "hidden text" utilizing Company's name or trademarks; (7) resell or make any other commercial use of the Services (or any portion thereof), or any of the content found in the Services; (8) utilize data mining, gathering or extraction methods such as bots, spiders, or other automated tools (whether directly or indirectly) to collect information from the Services or any user of the Services (9) use the Services for any improper, illegal, unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of improper solicitation; (10) use the Services to post or transmit any material that contains any virus, Trojan horse, worms, time bomb, cancelbots, malware, adware, or other computer programming routines that may damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal information; (11) interfere with or inhibit any other user from using or enjoying the Services; (12) use, post, or transmit any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, harassing, or otherwise objectionable information of any kind; or (13) use the Services to post or transmit any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes, or other unsolicited commercial communication.
12. Inform Authorized Users. Customer will inform Authorized Users of these use restrictions and shall be responsible and liable for any violation of these use restrictions by Authorized Users. Additionally, the Services may not be used for unlawful, fraudulent, offensive, or obscene activity. Customer and Authorized Users will comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements that may be posted on Company's from time to time.
13. Customer Intellectual Property. Customer owns or has the right to license and use any trademarks, copyright-protected materials, or other intellectual property or proprietary materials Customer or Authorized Users upload or use in connection with the Services, and Customer's or Authorized Users' use of such materials does not and will not violate the intellectual property or proprietary rights of a third party.

Section 3.02 Customer Representations. Customer represents and warrants the following:

1. Capacity. Customer has the right to enter into this Agreement, to grant the rights granted in this Agreement, and to perform fully all of his/her/its obligations in this Agreement.
2. Authorization. The execution of this Agreement by the Customer's representative, whose signature is set forth at the end of this Agreement or by checking the "I agree" button or such other form of indicating assent to Customer being bound by this Agreement, has been duly authorized by all necessary corporate action.
3. No Breach. Customer's execution of this Agreement and its performance hereunder does not and will not conflict with or result in any breach or default under any other agreement to which Customer is subject.

ARTICLE IV: OWNERSHIP; INTELLECTUAL PROPERTY

Section 4.01 Ownership. Customer acknowledges and agrees that all right, title and interest in and to the DQFM Portal, the DQFM Portal Materials, Aggregated Statistics, Company's trademarks and copyright-protected materials, and all related intellectual property and proprietary rights belong solely and exclusively to Company or Company's licensors, as applicable. Customer owns all rights, title, and interest, including all intellectual property rights, only in and to Customer's data and forms.

Section 4.02 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Company may (but is not required to) monitor Customer's and its Authorized User's use of the Services and collect and compile data and information related to such use of the Services by Company and Authorized Users in an aggregated, anonymized, non-identifiable manner for Company's business purposes, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). All rights, title, and interest in and to the Aggregated Statistics, and all intellectual property and proprietary rights therein, belong to solely and exclusively to Company. Customer acknowledges that Company may, without approval or compensation to Customer, compile Aggregated Statistics based on data input into the Services. Customer agrees that Company may (i) make Aggregated Statistics publicly available in compliance with Applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under Applicable Law; provided that such Aggregated Statistics do not identify Customer, Authorized Users, Customer's employees or contractors, or Customer's Confidential Information.

Section 4.03 Feedback. If Customer or any Authorized Users, employees, contractors, or agents sends or transmits any communications or materials to Company by mail, email, telephone, through the Services or otherwise, suggesting or recommending changes to the Services such as new features or functionality, or any comments, questions, or suggestions ("Feedback"), Company is free to use such Feedback irrespective of any other obligation or limitation between Company and Customer governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to Company and shall its cause its Authorized Users, employees, contractors, and agents to assign, all right, title, and interest in the Feedback, and Company is free (but not required) to use without any attribution or compensation to Customer or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever.

Section 4.04 Reservation of Rights. Company reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights expressly granted hereunder, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party, any intellectual property rights or other right, title, or interest in or to Company's intellectual property.

ARTICLE V: TERM AND TERMINATION

Section 5.01 Term of Agreement. The term of this Agreement (the "Term") shall commence on the date Customer clicks the “I agree” button or accesses or uses the Services, whichever occurs first, and continues until terminated by either party in accordance with this Section.

Section 5.02 Termination. The parties may terminate this Agreement as follows:

1. Termination for Convenience (Customer). Customer may immediately terminate this Agreement for convenience on written or oral notice to the Company.
2. Termination for Convenience (Company). Upon thirty (30) days' prior written notice, which may be by email, Company may terminate this Agreement and suspend all Services provided hereunder.
3. Termination for Cause. Either party may terminate this Agreement at any time for cause if (1) the other party breaches a material term of this Agreement and fails to cure the same within three (3) business days following receipt of written notice from the non-breaching party (unless such party is afforded a shorter cure period under this Agreement). For purposes of this Section, Customer's payment obligations of any kind shall each be construed as a "material term," the breach of which shall entitle Company to immediately terminate this Agreement. Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4. Other Termination; Company. Company may terminate this Agreement if (i) Customer has ceased to continue its business in the ordinary course; (ii) Company reasonably determines that there is a threat or attack on any of the Company's intellectual property; (iii) Customer's or an Authorized User's access to or use of the Services disrupts or poses a security risk to the Company's or any third party's intellectual property or other proprietary right; (iv) Customer or an Authorized User is using the Services for fraudulent or illegal activities; (v) Company's provision of the Services to Customer or any Authorized User is prohibited by Applicable Law; or (vi) any vendor of Company has suspended or terminated Company's access to or use of any third-party services or products required to enable Customer or Authorized Users to access the Services.

Section 5.03 Effects of Termination. Upon termination, Customer and Authorized Users shall no longer have access to or use of the Services, including the DQFM Portal; provided, however, that Company shall reasonably cooperate with Customer in transferring all DQFM Portal documents and records to another location at Customer's sole cost and expense, unless otherwise agreed by the parties in writing. Additionally, any outstanding Service Fees then due and payable shall be paid by Customer within ten (10) days after the termination date. Company shall not be responsible or liable for Customer's DQFM records maintenance obligations after the termination date.

ARTICLE VI: CONFIDENTIALITY

Company will take reasonable steps to maintain the confidentiality of all information, documents, and records in the DQFM Portal, and any other similar Customer nonpublic information (collectively, "Confidential Information"), and shall not disclose Confidential Information to any third party (including any representative of Customer not expressly authorized by Customer to receive such Confidential Information) without Customer's prior approval. Notwithstanding the foregoing, where disclosure of Confidential Information is required under Applicable Law, Company shall timely comply with all such third-party requests. Subject to Applicable Law, Company shall share Confidential Information with Company's contractors and employees with a “need to know” the information who are bound by duties of confidentiality no less stringent than those provided in this Agreement.

ARTICLE VII: DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY; INDEMNIFICATION

Section 7.01 Disclaimer of Warranty. EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE SERVICES ARE PROVIDED "AS IS" AND COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S OR ENTITY'S REQUIREMENTS, WILL OPERATE WITHOUT INTERRUPTION, WILL ACHIEVE ANY INTENDED RESULT, WILL BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER'S OR ANY THIRD PARTY'S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

Section 7.02 Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AGGREGATE AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Section 7.03 Indemnification; Indemnification Procedures. Customer agrees to indemnify, defend, and hold harmless the Company, including its officers, directors, members, shareholders, employees, agents, and other representatives, against all liability, demands, claims, losses, damages, or expenses (including costs of suit and attorneys' fees) that Company may suffer or incur directly or indirectly in connection with or related to Customer's performance or nonperformance of its obligations, a breach of Customer's representations or warranties in this Agreement, or which are caused in whole or in part by the negligence, recklessness, or intentional conduct of the Customer, its Authorized Users, employees, contractors, agents, or other representatives.

As a condition precedent to Customer's obligations under this Section, Company shall give Customer prompt written notice of any facts upon which Company intends to base a request for indemnification, including, but not limited to, a description of any third-party claim and the nature and amount of any damage, costs, or losses (to the extent known or suspected at the time of notice). Company shall promptly furnish to Customer copies of all documents received with respect to any third-party claim. Customer's duty to defend shall commence immediately upon receipt of notice of any applicable claim. Customer may assume, at its sole option, control of the defense, appeal, or settlement of any third-party claim reasonably likely to give rise to an indemnification claim hereunder by sending written notice of the assumption to Company, acknowledging responsibility for the defense of all applicable claims, within ten (10) business days of Customer's receipt of notice of any indemnifiable claim. Company shall fully cooperate with Customer in connection with any such defense, and may employ separate counsel to represent it, at any time, provided that Company is solely responsible for the costs and expenses of such separate counsel. Notwithstanding the foregoing, Company may elect to defend any claim against it with counsel of its own choosing, without Customer's participation, if Customer fails or refuses to properly assume the defense. If Company controls its own defense, Customer shall reimburse Company promptly and periodically for all reasonable legal costs and remain responsible to Company for any losses owing to third party claims. Company shall not settle or compromise any third party claim without the prior written consent of Customer, which consent shall not be unreasonably withheld or delayed.

ARTICLE VIII: MISCELLANEOUS

Section 8.01 Entire Agreement; Electronic Communications. This Agreement is the entire agreement of the parties and supersedes all prior agreements, understandings, and communications relating to the subject matter. To the extent this Agreement conflicts with any other agreements between the parties, this Agreement shall control. Customer consents to receiving electronic communications from Company, which may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. Customer agrees that any notices, agreements, disclosures, or other communications Company sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.

Section 8.02 Change to Terms and Conditions; Waiver; Remedies. Subject to Section 2.04(a), Customer agrees that Company may modify any term or condition of this Agreement or modify any aspect of the Services, including discontinuing any aspect of the Services, upon providing notice to Customer; provided, however, that Company will provide at least thirty (30) days' prior notice before making any modification that, in Company's sole discretion, materially affects Customer's rights under this Agreement or materially affects Customer's use of the Services. By continuing to use the Services after any modified terms become effective, Customer agrees to be bound by the modified terms. Failure to exercise any right under this Agreement shall not constitute a waiver of such right. Any waiver of any breach of this Agreement shall not operate as a waiver of any subsequent breaches. All rights or remedies specified for a party herein shall be cumulative and in addition to all other rights and remedies of the party hereunder or under applicable law.

Section 8.03 No Assignment. Neither Party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Company may assign its rights and obligations under this Agreement to a parent or subsidiary or to a successor, or by way of merger, sale of all or substantially all of its assets or business or otherwise. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void. All of the terms and provisions of this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and permitted assigns.

Section 8.04 Force Majeure. Neither Party shall be responsible for any delay or failure in performance of any non-monetary obligation under this Agreement to the extent that such delay is caused by reason of acts of god, wars, revolution, civil commotion, electrical or Internet outages, acts of public enemy, embargo, acts of government in its sovereign capacity, catastrophic weather events (including without limitation typhoons or earthquakes) or any other circumstances beyond the reasonable control, and not involving any fault or negligence, of the Delayed Party, as defined below (individually, a "Condition"). If any Condition occurs, the Party delayed or unable to perform (the "Delayed Party"), upon giving prompt notice to the other Party, shall be excused from such performance on a day-to-day basis during the continuance of such Condition (and the other Party shall likewise be excused from performance of its obligations on a day-to-day basis during the same period); provided, however, that the Delayed Party so affected shall attempt to avoid or remove such Condition as soon as reasonably possible, and both Parties shall proceed immediately with the performance of their obligations under this Agreement whenever such Condition is removed or ceases.

Section 8.05 Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Agreement and shall be either: (a) delivered personally; (b) sent by email to the email address provided below; (c) sent by registered or certified mail, return receipt requested, postage prepaid; or (d) sent by an express courier, with written confirmation of receipt. All such notices shall be delivered or sent to the address as follows (or to such other address or person as may be designated by a party by giving written notice to the other party pursuant to this Section).

If to Company: New Era Titans, LLC

801 S. Glenoaks Blvd, Suite 200

Burbank, CA 91502

Email: [email protected]

If to Customer: At the address provided in Customer's account information.

Section 8.06 Severability. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect, and shall in no way be affected, impaired or invalidated.

Section 8.07 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the substantive and procedural laws of the State of California, excluding its conflicts of laws principles, the laws of the United States, and the Federal Arbitration Act. Subject to the dispute resolution provisions in Section 8.08, any permitted action or proceeding arising out of or related to this Agreement shall be brought in a court of competent jurisdiction located in the County of Los Angeles, State of California.

Section 8.08 Dispute Resolution. In the event of any dispute arising out of or related to this Agreement, the parties agree to first attempt to resolve the dispute by mediation, which shall be commenced by a party sending a written demand for mediation to the other party. The mediator shall be mutually approved by the parties. The mediation may take place virtually; otherwise, the mediation shall take place at a location in the County of Los Angeles, State of California. The parties will share the mediator's fees equally, but each party shall be responsible for its own transportation, lodging, and attorneys' fees incurred in participating in the mediation. If within thirty (30) days of a demand for mediation by a party, the parties are unable to mutually agree upon a mediator, or if the mediation does not resolve the dispute, the parties shall submit the matter to binding arbitration to be held in Los Angeles County, California. The arbitration shall be administered by any arbitrator or arbitration institution mutually agreed upon by the parties, subject to the arbitrator or arbitration institute's commercial mediation rules. The arbitrator shall have the authority to determine issues of arbitrability. Judgment on the award may be entered in any court having jurisdiction over the subject matter of the controversy. The parties shall preserve the confidentiality of the arbitration award, including the nature and content of the proceedings leading to the arbitration award. Subject to the jurisdiction and venue provisions in Section 8.07, the foregoing dispute resolution obligations shall not apply to a dispute that may be brought within the jurisdiction of small claims court, or solely to the extent a party seeks an injunction with regard to a breach of confidentiality or intellectual property infringement.

Section 8.09 Attorneys' Fees. If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement or because of an alleged dispute, breach, default, or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys' fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.

Section 8.10 Further Assurances. Each party shall execute and deliver to the other (or to any applicable third-party) such instruments as may be reasonably necessary to carry out the purposes and intent of this Agreement. This Section shall not be construed as creating any obligation for Company to complete, submit, or file reports or other documents or instruments to any third party, including any Agency, except where such obligation is provided as part of the Services, or which are required by Applicable Law.

Section 8.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument.

Section 8.12 Survival. Section 2.04 (Service Fees; Billing and Invoice); Section 5.03 (Effects of Termination); Article VI (Confidentiality), Article VII (Disclaimer of Warranty; Limitation of Liability; Indemnification), Article VIII (Miscellaneous) and other provisions of this Agreement that by their nature, and as consistent with the intention of the Parties, ought to remain enforceable beyond the termination date, shall survive the termination of this Agreement.