“Aggregate Data” means any de-identified or aggregate data that is derived or aggregated from (i) any Customer Materials; or (ii) Customer's and/or its Authorized Users' Use of the Services.

“Customer Materials” means (i) all information, data, content, records, and other items, in any form or medium, that is entered, transmitted, imported or otherwise provided by or on behalf of Customer through the Services or to Sellfire in connection with Customer's access and use of the Services or these Terms, but excluding, for clarity, any Sellfire IP, and (ii) recordings and transcripts of audio calls made through the Services relating to Customer.

“Documentation” means the operator and user manuals, training materials, coaching materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Sellfire to Customer (including any revised versions thereof) relating to the Services, all of which may be updated from time to time by Sellfire.

“Editions” means the specific edition of the Subscription Services that each Authorized User is authorized to Use, as may be described on an Order Form or applicable invoice.

“Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as and if set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services and the types of Editions that such Authorized Users are authorized to Use based on Customer's subscription tier.

“Order Form” means a (i) mutually executed order form, statement of work, or other mutually agreed upon ordering document or online registration information; (ii) purchase order issued by Customer and accepted by a Sellfire authorized representative in writing; or (iii) a quote issued by Sellfire that is fully and timely accepted and signed by both Customer and Sellfire, in each case which references these Terms and sets forth the applicable Services to be provided by Sellfire.

“Services” means the products and services made available or provided by Sellfire to Customer, as may be outlined within an associated Order Form.

“Subscription Services” means access to or use of Sellfire's proprietary sales product platform known as “Sellfire”, as and if described or identified in the applicable Order Form.

“Sellfire IP” means the Services, the underlying software, algorithms, interfaces, technology, data, databases, tools, know-how, processes and methods used to provide or deliver the Services (including the platform relating to the Subscription Services), the Documentation, the Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all intellectual property rights in and to any of the foregoing.

“Use” means to use and access the Services in accordance with these Terms and the Documentation.

(a) Services. Sellfire will provide or make available for Use, as applicable, the Services as set forth in the applicable Order Form, subject to these Terms.

(b) Right to Use the Services. Subject to Customer's compliance with these Terms, Sellfire hereby grants to Customer a limited, non-exclusive, non-transferable (except pursuant to Section 14) right to Use the Services in accordance with, and subject to, the Licensed Volume (if any) during the applicable term solely for Customer's internal business purposes.

(c) Use Restrictions. Customer will not and will not permit any person or entity (including, without limitation, Authorized Users) to, directly or indirectly: (i) copy, modify or create any derivative work of any portion of the Services or the Documentation; (ii) reverse engineer, decompile, decode, or disassemble or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iii) frame, mirror, sell, resell, market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan any portion of the Services to any other person or entity, or otherwise allow any person or entity to access or use the Services for any purpose other than for the benefit of Customer in accordance with these Terms; (iv) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person or entity, or that violates any applicable law (including applicable privacy, marketing, anti-spam, and data security laws); (v) use the Services to call any residential telephone line; (vi) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Sellfire for use expressly for such purposes; (vii) use the Services, Documentation or any other Sellfire Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services; (viii) submit, upload, provide, or make available to Sellfire any protected health information, payment card data, financial account data, Social Security numbers, government identification numbers, children's data, biometric data, special category data, or other sensitive or regulated data unless expressly authorized in an Order Form or other written agreement signed by Sellfire; or (ix) order or use the Services, for any unlawful, deceptive, abusive, harassing, discriminatory, infringing, fraudulent, or misleading purpose, or in connection with any campaign, product, service, content, or activity that violates applicable law, third-party rights, carrier or platform requirements, or Sellfire's policies.

(d) Authorized Users. Customer will not allow any person or entity other than its employees or contractors that it authorizes to Use the Services on its behalf (“Authorized Users”). Customer may permit Authorized Users to Use the Services, provided that (i) the Use, including the number of Authorized Users, does not exceed any applicable Licensed Volume; and (ii) Customer ensures that all Authorized Users comply with these Terms, including, without limitation, with Customer's obligations and the restrictions set forth in Section 2(c). Sellfire may suspend or terminate any Authorized User's access to the Services upon notice to Customer in the event that Sellfire reasonably determines that such Authorized User violated these Terms. Customer is responsible for all acts or omissions by its Authorized Users. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Services in accordance with customary security protocols, and will promptly notify Sellfire if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Services may only be accessed and used by the specific Authorized User for whom such account is created.

(e) Updates. As and if applicable to the Services under an Order Form, Customer will receive updates to the base Services that Sellfire makes generally available to its other similarly situated customers for no additional charge. From time-to-time, Sellfire may develop and release additional modules and features that would be optional and not required for Customer's use of the base Services (“Optional Modules”). Sellfire may impose additional charges and fees for the use of such Optional Modules as would be agreed upon by the Parties in an Order Form or other writing.

(f) Consents and Compliance. Except as otherwise provided below, each Party is responsible for obtaining and maintaining any required consents, permissions, opt-ins, notices, and authorizations relating to contacts or leads it provides the other Party in connection with the Services. Customer is responsible for the foregoing in connection with Customer Materials, including any contacts, leads, prospects, or similar information it provides Sellfire, and the accuracy, legality, and lawful sourcing of Customer Materials. Customer is also responsible for providing accurate and complete information relating to the Services, including suppression lists, campaign instructions, scripts, offers, claims, disclosures, and other campaign content provided or approved by Customer or reasonably requested by Sellfire. As part of the Services, Sellfire will monitor generally available do-not-call lists, and comply with its legal obligations relating thereto. Sellfire is responsible for the leads it sources or uses that are not Customer Materials, and Sellfire will be responsible for its compliance with telemarketing, anti-spam, do-not-call, caller ID, text messaging, email marketing, and call-recording laws applicable to outreach activities initiated or performed by Sellfire as part of the Services, except to the extent any non-compliance arises from Customer Materials, Customer's instructions, Customer-approved campaign content, Customer's failure to obtain or maintain required consents or permissions, inaccurate or incomplete Customer information, or Customer's breach of these Terms. Sellfire may suspend, reject, or modify any campaign or outreach activity that Sellfire reasonably believes may violate applicable law, third-party rights, carrier or platform requirements, these Terms, or Sellfire's policies. Customer consents, on behalf of itself and its Authorized Users, to Sellfire's recording, transcription, monitoring, and analysis of calls and other communications made through or in connection with the Services.

(g) Customer Instructions and Authorizations. Customer authorizes Sellfire to use Customer Materials and to perform calls, messages, emails, lead processing, campaign activities, and other outreach activities on Customer's behalf as contemplated by the applicable Order Form and Customer's instructions. Sellfire may rely on Customer's instructions, approvals, and Customer Materials in performing the Services, but may reject, suspend, or modify any instruction, campaign, content, or activity that Sellfire reasonably believes may violate applicable law, third-party rights, carrier or platform requirements, these Terms, or Sellfire's policies.

(h) Customer Cooperation. Customer will timely provide all information, materials, access, approvals, personnel availability, feedback, and cooperation reasonably requested by Sellfire to provide the Services. Sellfire will not be responsible for delays, deficiencies, non-compliance, failures, or liabilities to the extent caused by Customer, including Customer's delay, inaction, failure to provide required materials or approvals, or failure to reasonably cooperate.

(i) Order Forms. Order Forms may include provisions for adjusting Services or Licensed Volumes (e.g., the number of sales development resources (“SDRs”) or Authorized Users) and other service related metrics specific to that Order Form. Any dates set forth in an Order Form are estimates unless expressly provided otherwise.

(a) In consideration for Sellfire providing the Services, Customer will pay Sellfire the non-refundable fees set forth in the applicable Order Form (“Fees”) in accordance with the payment terms set forth therein and without offset or deduction. Except as otherwise provided in the relevant Order Form or agreed by the Parties, Sellfire will issue annual invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than fifteen (15) days after the date of such invoice.

(b) Customer agrees that Sellfire may pass-through to Customer, without markup or margin, all costs and expenses incurred by Sellfire and payable to third-party vendors such as AWS, OpenAI, Anthropic, or Twilio (including costs for messaging, phone numbers and calls, call recording, and AI analysis) in connection with the provision of the Services to Customer (“Pass Through Costs”), unless expressly included in the Fees or otherwise stated in the Order Form. Sellfire will invoice Customer for Pass Through Costs after it receives each applicable invoice from any such vendor, and Customer will pay the invoiced amounts within fifteen (15) days after receipt of each such invoice.

(c) Customer will be responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Sellfire hereunder, other than any taxes imposed on Sellfire income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Sellfire hereunder, Customer shall pay an additional amount, so that Sellfire receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

(d) Customer will maintain complete and accurate books, records, data, and supporting documentation sufficient to verify: (i) all Fees and other amounts payable under these Terms and any Order Form; (ii) Customer's usage of the Services and any volumes, performance results, revenue amounts, transaction values, customer-value metrics, pricing inputs, or other information used to calculate Fees, establish pricing, or determine the commercial terms of an Order Form; and (iii) Customer's compliance with its obligations under these Terms and any Order Form, including its obligations concerning Customer Materials, use restrictions, required consents and permissions, lawful sourcing of data, data protection, and applicable laws relating to Customer's use of the Services. Such records will include, as applicable, CRM records, reports, invoices, credits, refunds, sales and revenue reports, calendar and meeting records, system and platform data, and contracts, statements of work, order forms, amendments, and other agreements between Customer and its customers that are relevant to any revenue, customer-value, pricing, or Fee calculation under an Order Form. Upon at least ten (10) business days' prior written notice, Sellfire may, itself or through an independent auditor subject to confidentiality obligations, review and audit such records. Sellfire may exercise its audit rights no more than twice during any calendar year in the aggregate. An audit may include reasonable follow-up requests relating to the period and subject matter under review, and such follow-up requests will be considered part of the same audit.

(a) Rights Reserved. Subject to the limited rights expressly granted hereunder, Sellfire reserves and, as between the Parties will solely own, all rights, title and interest in and to the Sellfire IP. To the extent that any rights in Sellfire IP vest in Customer, such rights are hereby automatically assigned to Sellfire. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(b) Customer Materials. Sellfire acknowledges that, as between Customer and Sellfire, Customer owns and retains all right, title and interest in and to all Customer Materials. Sellfire may use, display and modify the Customer Materials to (i) provide, maintain, develop and improve the Services, and Sellfire's other related products, services and technologies, and (ii) comply with applicable law. In addition, Sellfire may use and modify Customer Materials for purposes of developing and deriving Aggregate Data.

(c) Input and Output Specific Terms. Certain features of the Services may generate automated suggestions for live sales representatives or agents (each, an “Output”) in response to: (i) an Authorized User interaction with the Services; and (ii) Customer Materials uploaded to influence the Output (collectively, “Input”). As between the Parties, to the extent permitted by applicable law and subject to Section 4(a): (1) Customer owns all Input provided by Customer; and (2) subject to Customer's compliance with these Terms, Sellfire assigns to Customer its right, title and interest in and to the Output generated by Customer's Input. Sellfire may use, display and modify Input and Output to provide, maintain, develop and improve the Services, and Sellfire's other related products, services and technologies, and comply with applicable law.

(d) Feedback. From time to time Customer or its employees, contractors, or representatives may provide Sellfire with suggestions, comments, feedback or the like with regard to the Services, and Sellfire's business (collectively, “Feedback”). Customer hereby grants Sellfire a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Sellfire's business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.

(a) To the extent Sellfire processes personal data disclosed by, and on behalf of, Customer (“Customer Personal Data”) in connection with the Services, Sellfire will process such Customer Personal Data solely to provide the Services and otherwise in accordance with Customer's documented instructions and applicable data protection laws. Sellfire will not sell, disclose to third parties for targeted advertising, or otherwise use Customer Personal Data for its own independent commercial purposes, except as permitted by applicable law. Sellfire will maintain reasonable administrative, technical, and physical safeguards designed to protect Customer Personal Data and will reasonably assist Customer in meeting its obligations under applicable data protection laws, including with respect to consumer or data subject requests, security incidents, and required deletion or return of Customer Personal Data. Sellfire may use subcontractors to support the Services, provided Sellfire remains responsible for their performance and imposes data protection obligations on them that are no less protective than those set forth in these Terms. Sellfire will notify Customer if it determines it can no longer comply with its obligations under this Section and will take reasonable steps to remediate any unauthorized processing of Customer Personal Data. Sellfire may create and use de-identified, anonymized, or aggregated data derived from Customer Personal Data, whether or not considered Aggregate Data, provided that Sellfire does not attempt to re-identify such data except as permitted by applicable law. For the avoidance of doubt, Customer Personal Data does not include personal data or other data that Sellfire: (i) independently creates or develops; or (ii) obtains from or processes on behalf of any third party. Prior to executing an Order Form and not more than twice per year thereafter, upon Sellfire's request, Customer will complete a written questionnaire provided by Sellfire regarding Customer's compliance with applicable laws and business practices in relation to Customer's use of the Services and the processing of Customer Personal Data as contemplated under the Agreement. Customer will reasonably cooperate with such inquiries, including by providing evidence of its compliance with these Terms and answering follow-up questions as Sellfire may have in relation to Customer's responses.

(b) Upon Sellfire's request, Customer will provide all cooperation and assistance to Sellfire as may be required by Sellfire for Sellfire to ensure compliance with applicable laws and/or industry standards.

(a) Upon expiration or termination of an Order Form (other than termination pursuant to Section 8 for all Order Forms), each other Order Form that is then-in effect will remain in effect for the duration of the then-current term of such Order Form.

(b) Upon expiration or termination of an Order Form or Service: (i) each Party will make no further use of any Confidential Information belonging to the other Party that it does not otherwise have a continuing right to use hereunder, and will promptly return to the other Party (or destroy) all Confidential Information of the other Party in its possession or control that it does not otherwise have a continuing right to use hereunder, except for any archived electronic communications which may be stored confidentially, (ii) Customer's and its Authorized Users' right to Use the applicable Services will immediately terminate; and (iii) all Fees owed by Customer to Sellfire pursuant to the expiring or terminating Services or Order Form will be immediately due; provided that if Customer terminates for cause in accordance with Section 8 and has pre-paid Fees for Services not provided, Sellfire will refund as Customer's sole remedy to Customer a pro rata amount of any unused pre-paid Fees based on the remainder of the applicable term.

(c) The rights and obligations of Sellfire and Customer contained in Sections 2(c), 3, 4, 6(a), 9, 10, 11, 12 and 14 will survive any expiration or termination of these Terms and Order Forms.

(a) Confidentiality. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with these Terms, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Sellfire IP will be deemed Confidential Information of Sellfire. The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under these Terms; provided that Sellfire may use and modify Confidential Information of Customer for purposes of developing and deriving Aggregate Data and improving the Services. The Receiving Party may disclose Confidential Information of the Disclosing Party only: (i) to those of its employees, contractors, agents and advisors who have a bona fide need to know such Confidential Information to perform under these Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective of the Confidential Information as those set forth in these Terms, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The terms and conditions of these Terms (including the Fees) will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party's advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

(b) Exclusions. Confidential Information will not include any information that: (i) is or becomes generally known to the public through no fault or breach of these Terms by the Receiving Party; (ii) is rightfully known by the Receiving Party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the Receiving Party without access to or use of any Confidential Information of the Disclosing Party that can be evidenced in writing; or (iv) is rightfully obtained by the Receiving Party from a third-party without restriction on use or disclosure.

(a) Disclaimer. THE SERVICES AND OTHER SELLFIRE IP ARE PROVIDED ON AN “AS IS” BASIS, AND SELLFIRE MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE SELLFIRE IP, THE SERVICES, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLFIRE HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, SELLFIRE HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED, OR THAT THE SERVICES WILL GENERATE ANY SALES FOR CUSTOMER. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER ANY SUGGESTIONS OR RECOMMENDATIONS MADE IN CONNECTION WITH THE SERVICES ARE APPROPRIATE FOR CUSTOMER BASED ON CUSTOMER'S OBJECTIVES AND CIRCUMSTANCES AND CUSTOMER'S OBLIGATIONS UNDER APPLICABLE LAW. CUSTOMER ACKNOWLEDGES THAT CERTAIN SERVICES MAY RELY ON THIRD-PARTIES (E.G., CARRIERS, COMMUNICATIONS PLATFORMS, DATA), ARTIFICIAL INTELLIGENCE MODELS OR TECHNOLOGY, OR OTHER TECHNOLOGY WHICH MAY CONTAIN ERRORS OR OMISSIONS OR BE SUBJECT TO LIMITATIONS OR OUTAGES, AND SELLFIRE WILL BE EXCUSED FROM ANY LIABILITY RELATING THERETO, UNLESS ARISING FROM SELLFIRE'S WILLFUL MISCONDUCT.

(b) Similarity, Accuracy and Appropriateness of Output. Due to the nature of machine learning, Output may not be unique and the Services may generate the same or similar output for Customer or a third party. GIVEN THE PROBABILISTIC NATURE OF ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING, THE SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER'S COMPLIANCE WITH THESE TERMS, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, SELLFIRE WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM INPUT, THE OUTPUT OR THEIR USE, UNLESS ARISING FROM SELLFIRE'S WILLFUL MISCONDUCT. Customer shall evaluate the content, nature, tone and accuracy of any Output as appropriate for the applicable use case, including by using human review of the Output.

(c) Exclusion of Damages. EXCEPT FOR (I) BREACH OF CONFIDENTIALITY, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF CUSTOMER'S PAYMENT OBLIGATIONS, (IV) INDEMNIFICATION OBLIGATIONS, AND (V) INFRINGEMENT OR VIOLATION OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE SELLFIRE IP OR THE PROVISION OF THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(d) Total Liability for Sellfire. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 12(A) OR AS PROVIDED BELOW IN THIS SECTION, IN NO EVENT WILL SELLFIRE'S TOTAL AGGREGATE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THESE TERMS, THE SELLFIRE IP OR THE SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SELLFIRE IN THE SIX (6) MONTH PERIOD PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT SELLFIRE WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. HOWEVER, WITH RESPECT TO SELLFIRE'S OBLIGATIONS RELATING TO COMPLIANCE WITH LAWS AND REGULATIONS OR CUSTOMER PERSONAL DATA, SELLFIRE'S TOTAL LIABILITY SHALL NOT EXCEED THE GREATER OF THE FEES PAID TO SELLFIRE IN THE TWELVE MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY OR $100,000. THE LIMITS ABOVE ARE AGGREGATE LIMITS FOR ALL LIABILITY AND NOT PER CLAIM OR EVENT.

(e) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 11 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN SELLFIRE AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

(a) Sellfire Indemnification. Subject to Section 12(b) and 12(e), Sellfire will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer's Use of the Services infringes or misappropriates such third party's intellectual property rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Sellfire (including reasonable attorneys' fees) resulting from such Claim.

(b) Exclusions. Sellfire's obligations under Section 12(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer's breach of these Terms, negligence, willful misconduct or fraud; (ii) any Customer Materials, Input or Output; (iii) Customer's failure to use any enhancements, modifications, or updates to the Services that have been provided by Sellfire; (iv) modifications to the Services by anyone other than Sellfire; or (v) combinations of the Services with software, data or materials not provided by Sellfire.

(c) IP Remedies. If Sellfire reasonably believes the Services (or any component thereof) could infringe any third party's intellectual property rights, Sellfire may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Sellfire determines that neither alternative is commercially practicable, Sellfire may terminate these Terms, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Sellfire will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 12 will constitute Customer's sole and exclusive remedy for any infringement or misappropriation of intellectual property rights in connection with the Services.

(d) Customer Indemnification. Subject to Section 12(e), Customer will defend Sellfire against Claims arising from (i) any Customer Materials or Input, including, without limitation, (A) any Claim that the Customer Materials or Input infringe, misappropriate or otherwise violate any third party's intellectual property rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials or Input violates any applicable law, rule or regulation; (ii) any use of the Services by Customer or its Authorized Users in a manner that is not in accordance with these Terms or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(c); (iii) any instructions, directions, approvals, requests, campaign parameters, scripts, offers, claims, disclosures, or other materials provided or approved by Customer that violate applicable law or cause Sellfire's performance of the Services to violate applicable law; or (iv) Customer's breach of, or failure to comply with, its obligations under Section 2(f); and in each case, will indemnify and hold harmless Sellfire against any damages and costs awarded against Sellfire or agreed in settlement by Customer (including reasonable attorneys' fees) resulting from such Claim.

(e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party's prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party's business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.