ETHENA

SERVICES AGREEMENT

Last Modified: 09/09/2022

This Ethena Services Agreement ("Agreement") is entered into by and between Ethena, Inc., a Delaware corporation ("Ethena") and the entity accessing any Services, as defined below ("Customer"). The Agreement sets forth the terms and conditions that govern use of the Services under this Agreement.

The "Effective Date" of this Agreement is the earlier of the (a) Customer's initial access to or use of any Service (as defined below) or (b) the effective date of the first ordering document (e.g., Order Form) that incorporates this Agreement. Capitalized terms used in this Agreement that are not defined inline are defined in the Definitions.

BY ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT OR OTHERWISE INDICATING ACCEPTANCE OF THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY ALL TERMS, CONDITIONS, AND NOTICES CONTAINED OR REFERENCED IN THIS AGREEMENT. IF CUSTOMER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, CUSTOMER MAY NOT USE THE SERVICES.

1. DEFINITIONS.

1. "Admin User" means an employee, contractor or consultant of Customer or its Affiliate who may access and administer the Services but who is not necessarily a Training Recipient.
2. “Affiliate” means a legal entity that controls, is controlled by, or is under common control with a party, where “control” is defined as owning more than 50% of the voting shares of such entity.
3. “Agreement” means this Master Services Agreement, any Exhibits, and each Order Forms, as applicable.
4. “Authorized User” means and Admin User and/or a Training Recipient, as applicable.
5. “Confidential Information” means any business or technical information disclosed by one party to the other party, including Customer Data, provided that it is identified as confidential at the time of disclosure or that under the circumstances, a person exercising reasonable business judgment would understand it to be confidential or proprietary.
6. “Customer Data” means any data that is submitted to the Services by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Services by Customer (including from third party services), (b) data provided by or about Customer’s Training Recipients, and (c) any Response Data.
7. “Documentation” means any documentation provided by Ethena to Customer in connection with the Services.
8. “Feedback” means comments, questions, suggestions, evaluations, or any other feedback relating to any Ethena product or service.
9. Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
10. “Order Form” means the document that Customer may use to order the Services that is signed by both Customer and Ethena.
11. “Response Data” means all information, data and responses submitted to the Service by Customer’s Training Recipients
12. “Sensitive Personal Information” means any information that if disclosed could result in substantial harm, embarrassment, inconvenience or unfairness, including but not limited to any of the following: (i) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA”); (iii) any other sensitive personal data of an EU or UK citizen deemed to be in a “special category” (as identified in General Data Protection Regulation or any successor directive or regulation); or (iv) any other sensitive personal data as defined under the California Consumer Privacy Act (or any successor statute or regulation) and any other applicable data privacy and data protection laws in the United States.
13. “Services “ mean the Ethena compliance training services delivered by Ethena via the Ethena online platform and email and browser based applications (the “Content”), related training reports (the “Reports”), and any other services performed by Ethena as described in any applicable Order Form.  
14. “Subscription Term” means the period of time that Customer may use and access the Services beginning on the Effective Date and continuing for the period set forth in the applicable Order Form (if any), or until Customer or Ethena terminates the Agreement in accordance with Section 10 (Term and Termination).
15. “Training Recipients” mean Customer’s or its Affiliate’s employees, contractors, consultants, agents, directors, officers or other personnel who Customer wishes to receive training through the Services.

2. SERVICES.

1. Services. Subject to the terms of this Agreement, the Documentation and the applicable Order Form (if any), Ethena agrees to provide the Services to Customer’s Training Recipients, solely for Customer’s own business purposes. Use of and access to the Services is permitted only by Admin Users and Training Recipients. Customer will upload information regarding Training Recipients, and Customer is responsible for keeping this list up to date.
2. Cooperation and Assistance. Customer will cooperate with Ethena in good faith and provide to Ethena the information and personnel that Ethena reasonably requests and requires to provide the Services. Customer, at its option, may utilize certain third-party software and services with the Services and is responsible for acquiring and maintaining all such third-party software and services required to access, use, or integrate with the Services, including all costs related to the foregoing.
3. Restrictions. Customer will not allow anyone other than Authorized Users to access or use the Services from Customer’s accounts. Customer will not and will ensure that its Authorized Users do not: (i) attempt to interfere with or disrupt the Services (or any related systems or networks) or use the Services other than directly for Customer’s benefit; (ii) copy, modify or distribute any portion of the Services; (iii) rent, lease, or resell the Services; (iv) transfer any of its rights hereunder; or (v) reverse-engineer or access the Services in order to build a competitive product or service.
4. Compliance with Applicable Laws. Customer is responsible for compliance with applicable laws related to the provision of the Services to Training Recipients,  whether such Services meet the applicable legal requirements, and for any changes to the Content made at Customer’s request. Except as otherwise agreed in writing with Ethena, Customer acknowledges that the Training is being provided in English only and that Customer may be required to have the Training provided in a Training Recipient’s primary language if that language is not English
5. API Keys; Passwords. If Customer is given API keys or passwords to access the Services on Ethena's systems, Customer will require that all Admin Users keep API keys, user ID and password information strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer's accounts and passwords. If any Admin User who has access to a user ID is no longer an employee, contractor or consultant of Customer, then Customer will promptly delete such user ID and otherwise terminate such Admin User's access to the Service.
6. Configured Content. This Section 2(f) applies only if Customer chooses to configure the Content as stated below.

1. Customer may choose to configure certain parts of the core curriculum of the Content made available by Ethena as part of the Services (“Configured Content”). Customer and Ethena will mutually agree on a written plan to implement the Configured Content (“Implementation Plan”), which will include each party's responsibilities and timeframes.  Any additional fees related to Configured Content will be stated in an Order Form.  
2. Each party is responsible for promptly providing the information and assistance stated in the Implementation Plan. If Customer does not respond promptly or does not provide timely information, then the launch of the Configured Content may be delayed. Ethena will not speed up Implementation Plan timelines as a result of Customer-caused delays. If Customer changes or adds language translation requests to the Implementation Plan, the launch may be delayed.  

3. DATA

1. Customer Data. Customer is responsible for obtaining any necessary right and licenses for use of the Customer Data by Customer and Ethena as contemplated in this Agreement. Customer agrees that it has the legal right and authority to access, use and disclose to Ethena any Customer Data. Customer authorizes Ethena to access, process, and use the Customer Data as necessary to perform and fulfill its obligations hereunder. Ethena will process and maintain Customer Data consistent with the Data Privacy Addendum located at https://app.goethena.com/documents/EthenaDataPrivacyAddendum.html on the Effective Date and hereby incorporated by reference.
2. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Ethena may collect, generate, use, and maintain data about Customer's use of the Services in an aggregate, anonymized form that can in no way be linked to any specific Customer or Authorized User ("Aggregated Anonymous Data'') for any lawful purpose, including to operate, improve, and support the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Ethena customers. This Section 3(b) does not give Ethena the right to identify any Customer or Authorized User as the source of any Aggregated Anonymous Data.
3. No Sensitive Personal Information. Neither party will intentionally use the Services to collect, store, process or transmit any Sensitive Personal Information, and if any Sensitive Personal Information is found, each party agrees to promptly delete it. Customer acknowledges that Ethena is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Services are neither HIPAA nor PCI DSS compliant.  If either party becomes aware of Sensitive Personal Information submitted as part of Customer Data, it will notify the other party and such Sensitive Personal Information will be removed from Customer Data.
4. Information Security. Ethena agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Services or Customer Data. However, Ethena will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond Ethena's control.
5. Reports. Customer will be entitled to obtain Reports of various Response Data, provided, however, that Ethena will not provide Customer with any Response Data that may contain Sensitive Personal Information.
6. Storage of Customer Data. Ethena does not provide an archiving service. Ethena agrees only that it will not intentionally delete any Customer Data from any Service prior to termination of Customer's applicable Subscription Term. Ethena expressly disclaims all other obligations with respect to storage.

4. TARGET AVAILABILITY.  

1. Target Availability. Ethena will use commercially reasonable efforts to make each Service available with an uptime of 99.9% of each calendar month ("Target Availability").
2. Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Ethena's reasonable control; (c) Customer's equipment, software, network connections or other infrastructure; (d) third party systems, acts or omissions; or (e) Scheduled Maintenance or reasonable emergency maintenance. "Scheduled Maintenance" means Ethena's scheduled routine maintenance of the Services for which Ethena notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed eight (8) hours per month. Ethena typically performs Scheduled Maintenance once per month.
3. Sole Remedy for Failure to Meet Target Availability. If there is a verified failure of a Service to meet Target Availability in two (2) consecutive months, then Customer may terminate the applicable Subscription Term by sending written notice of termination within thirty (30) days after the end of the second such month, in which case Ethena will refund to Customer any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. This termination and refund right is Customer's sole and exclusive remedy, and Ethena's sole and exclusive liability, for Ethena's failure to meet the Target Availability.

5. SUPPORT.

1. Maintenance. Ethena will make available to Customer all generally available updates and bug fixes to the Services. Ethena will take commercially reasonable efforts to perform Scheduled Maintenance during off-peak hours.
2. Support. Ethena is available to receive Services support inquiries via email (support@goethena.com). Ethena’s support hours are 09:00 AM to 5:00 PM Eastern Time Monday through Friday (excluding standard U.S. holidays) for technical information, technical advice, and technical consultation regarding Customer’s use of the Services.

6. FEES; EXPENSES; TAXES.

1. Fees. Customer will pay to Ethena the fees in accordance with the terms set forth in the applicable Order Form(s), if any, and this Section 6.
2. Invoices; Payment. Except as expressly set forth in Section 9(a) (Limited Warranty) and Section 11 (Indemnification), all fees are non-refundable. Customer will reimburse Ethena for all reasonable costs and expenses incident to the collection of overdue amounts hereunder, including but not limited to reasonable attorneys’ fees. If Customer disputes any Fees, it must provide written notice to the Ethena of such dispute within ten (10) days after the date of the invoice.
3. Credit Card Payments. This Section 6(c) applies only if Customer uses a credit card, debit card or other payment card ("Credit Card") as its payment method.

3. Payment Via Credit Card. If Customer is eligible to purchase the Services via Credit Card, Customer represents and warrants to Ethena that it is authorized to use the Credit Card. Customer agrees to provide accurate and complete account information, and agrees to promptly update its account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. If any payment due via Credit Card from Customer under this Agreement becomes past due, Ethena may charge Customer a late payment charge equal to the lesser of (a) one and one-half percent (1.5%) per month, compounded monthly, or (b) the maximum rate permitted under applicable law on the past due balance. Customer will reimburse Ethena for all reasonable costs and expenses related to the collection of overdue amounts hereunder, including but not limited to reasonable attorneys’ fees.

4. Stripe Processing. Payment processing services are provided by Stripe, Inc. and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By providing Credit Card information and agreeing to purchase the Services via Credit Card, Customer agrees to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time. As a condition of Ethena’s enabling payment processing services through Stripe, Customer agrees to provide Stripe and, if necessary, Ethena, accurate and complete information about Customer and its business, and you authorize Ethena to share it and transaction information relating to your use of the payment processing services provided by Stripe.

5. Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services via Credit Card, Customer hereby authorizes Ethena (or its designee) to automatically charge Customer's Credit Card on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month) during the Subscription Term for all Fees accrued as of that date (if any) in accordance with the applicable Order. Customer acknowledges and agrees that the amount billed and charged each month may vary depending on Customer's use of the Services and may include subscription Fees for the remainder of Customer's applicable billing period and overage Fees for the prior month.

6. Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Ethena and Ethena may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.

7. Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending Ethena notice in accordance with Section 10 (Term and Termination) or, if Customer's Subscription Term is on a monthly basis (or if otherwise permitted by Ethena), by terminating via the "Settings" page on the Dashboard, with termination effective at the end of the current Subscription Term.

8. Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Ethena will charge Customer's Credit Card (or invoice Customer directly) for any outstanding fees for Customer's use of the Services during the Subscription Term, after which Ethena will not charge Customer's Credit Card for any additional fees.

4. Taxes. Customer agrees to pay all taxes which Ethena is obligated by law to collect from its customers in connection with the Services.

7. PROPRIETARY RIGHTS.

1. Customer owns and retains: (i) the Customer Data; (ii) Customer’s name, logo and other trademarks; and (iii) all Intellectual Property Rights in and to any of the foregoing.
2. Ethena owns and retains: (i) the Services, and all improvements, enhancements or modifications made by any party; (ii) the Aggregate Anonymous Data; (iii) the Content (including any Configured Content); (iv) the Documentation; (v) any software, applications, inventions or other technology developed by Ethena in connection with providing the Services; (vi) Ethena’s name, logo, and other trademarks; and (v) all Intellectual Property Rights in and to any of the foregoing.
3. Feedback. Customer may, from time to time, provide Ethena with Feedback. Customer grants Ethena a non-exclusive, perpetual, irrevocable, royalty-free license to use all Feedback for any purpose. Feedback is provided to Ethena on an “as-is” basis without warranties of any kind.
4. Publicity.  Customer hereby grants Ethena a limited revocable license to use Customer’s name and logo solely for the purpose of identifying Customer as a user of the Service and attributing any Feedback provided by Customer, in accordance with Customer’s logo and usage guidelines. Customer may revoke this license grant at any time upon written notice to Ethena.

8. CONFIDENTIALITY

1. Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary under this Agreement and will not disclose Confidential Information to any third party except: (a) to those of its employees and contractors who have a business need to know such Confidential Information; provided that each such employee and contractor is bound to confidentiality restrictions at least as restrictive as the terms set forth in this Agreement or (b) as further described in the Data PrivacyAddendum. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 8(a) will remain in effect during the Term and for a period of five (5) years after the expiration or termination thereof, except with regard to trade secrets of the disclosing party, which will be held in confidence for as long as such information remains a trade secret.
2. Exclusions. The obligations and restrictions set forth in Section 8(a) will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
3. Permitted Disclosures. The provisions of this Section 8 will not restrict either party from disclosing the other party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that to the extent legally permitted, the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations.
4. Injunctive Relief. The receiving party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

9. WARRANTY

1. Limited Warranty. Ethena warrants, for Customer's benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Ethena's sole liability (and Customer's sole and exclusive remedy) for any breach of this warranty will be for Ethena to use commercially reasonable efforts to correct the reported non-conformity at no additional charge to Customer, or if Ethena determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for use of such Service for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9(a) will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services, or (iii) to use provided on a no-charge, trial or evaluation basis.
2. Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9(a), ALL SERVICES, DOCUMENTATION  AND ANY AND ALL OTHER MATERIAL PROVIDED BY COMPANY TO CUSTOMER UNDER THIS AGREEMENT ARE PROVIDED “AS IS''. NEITHER ETHENA NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ETHENA DOES NOT WARRANT THAT CUSTOMER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES ETHENA WARRANT THAT IT WILL REVIEW THE CUSTOMER DATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. ETHENA WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF ETHENA. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.  COMPANY MAKES NO GUARANTEE AS TO THE RESULTS OR OUTCOMES OF USING THE SERVICE.  CUSTOMER AGREES THAT ETHENA DOES NOT PROVIDE LEGAL ADVICE OR ENGAGE IN THE PRACTICE OF LAW AND CUSTOMER IS RESPONSIBLE FOR ENSURING THAT: (i) THE SERVICE MEETS THE REQUIREMENTS OF ANY APPLICABLE FEDERAL, STATE OR LOCAL LAWS REGARDING THE SUBJECT MATTER OF THE SERVICES; and (ii) ITS TRAINING RECIPIENTS ARE ACCURATELY IDENTIFIED AND THEIR TRAINING IS ACCURATELY TRACKED.

10. TERM AND TERMINATION

1. Term. This Agreement will commence on the Effective Date and continue for the period specified in the Order Form (if any) or, if Customer's Subscription Term is on a monthly basis, until the the end of the Subscription Term during which Customer or Ethena terminated the Agreement (the “Term”), unless terminated earlier as provided in this Agreement. Unless Customer terminates the Agreement for cause as stated in Section 10(b), any prepaid fees paid by Customer will not be refunded, but Customer will receive the Service until the end of the Term that Customer paid for.
2. Termination for Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material terms of this Agreement and fails to correct the breach within thirty (30) days following written notice from the non-breaching party specifying the breach.
3. Suspension of Services. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Ethena reserves the right to suspend Customer's access to the applicable Service (and any related services) without liability to Customer until such amounts are paid in full.  Further, Ethena may immediately suspend access to the Service if Customer materially breaches this Agreement (except for Customer’s non-payment of fees) until such breach is cured.  Such a suspension of Service will not relieve Customer from its obligations to pay all amounts due under this Agreement.  
4. Rights and Obligations Upon Expiration or Termination. Upon expiration or termination of this Agreement, Customer’s and Authorized Users’ right to access and use the Services will immediately terminate and each will immediately cease all use of the Services. Upon expiration or termination of this Agreement, Ethena will deliver a then-current export of the Customer Data to Customer. Customer acknowledges that following termination it will have no further access to any Customer Data input into the Services, and that Ethena may delete any such data as may have been stored by Ethena at any time.
5. Survival. The rights and obligations of Ethena and Customer contained in Sections 3(b) (Aggregate Anonymous Data), 6 (Fees; Expenses; Taxes), 7 (Proprietary Rights), 8 (Confidentiality), 10(d) (Rights and Obligations Upon Expiration or Termination), 10(e) (Survival), 11 (Indemnification),  12 (Limitation of Liability), and 13 (General) will survive any expiration or termination of this Agreement.

11. INDEMNIFICATION

1. Indemnification by Ethena. Ethena will defend Customer, its officers, directors and employees, from and against any suit or action brought by a third-party against Customer: (i) alleging that the Services, as provided by Ethena and when used by Customer pursuant to this Agreement, infringes any Intellectual Property Right of a third party (the “IP Indemnity”); or (ii) resulting from unauthorized disclosure and misuse of Customer Data directly resulting from Ethena’s breach of its obligations under Section 3(a) (Customer Data) or Section 3(d) (Information Security) (the “Data Indemnity”). Ethena shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Ethena (including reasonable attorneys’ fees) resulting from such claim, provided that: (x) Customer provides Ethena with prompt written notice of such claim; (y) Customer provides reasonable cooperation to Ethena, at Ethena’s expense, in the defense and settlement of such claim; and (z) Ethena has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Customer or requires Customer to admit wrongdoing.
2. Injunctions. If Customer’s use of the Services is, or in Ethena’s opinion is likely to be, enjoined due to the type of claim in the IP Indemnity specified in Section 11(a)(i) , then Ethena may at its sole option and expense: (i) replace or modify the Services to make them non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Services under the terms of this Agreement; or (iii) if Ethena is unable to accomplish either (i) or (ii) despite using its commercially reasonable efforts, terminate Customer’s rights and Ethena’s obligation under this Agreement with respect to such Services and refund to Customer a pro-rata portion of the fees paid for the remaining portion of the Term during which Customer would have had access to the Services.
3. Exclusions. Notwithstanding the terms of Section 11(a), Ethena will have no liability for any claim of any kind to the extent that it results from: (i) the combination, operation or use of the Services with equipment, devices, or software not supplied by Ethena, if a claim would not have occurred but for such combination, operation or use; or (ii) Customer’s or an Authorized User’s use of the Services other than in accordance with this Agreement.
4. Sole Remedy. THE FOREGOING STATES ETHENA’S AND ITS LICENSORS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.
5. Indemnification by Customer. Customer will defend Ethena, its officers, directors and employees, from and against any action or suit brought against Ethena by a third party based on a claim that (i) the Customer Data infringes or violates the rights of a third party, (ii) Customer’s failure to comply with applicable law, or (iii) claims brought by Customer’s Training Recipients. Customer will indemnify and hold harmless Ethena from and against any damages and costs awarded against Ethena or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim, provided that (x) Ethena provides Customer with prompt written notice of such claim; (y) Ethena provides reasonable cooperation to Customer, at Customer’s expense, in the defense and settlement of such claim; and (z) Customer has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Ethena or requires Ethena to admit wrongdoing.

12. LIMITATION OF LIABILITY.

1. Exclusion of Damages. To the fullest extent permitted by law, except for Excluded Claims (as defined below in Section 12(c) and for which there will be no cap on liability), neither Customer nor Ethena, and its Affiliates and suppliers, will be liable under this Agreement for (i) indirect, special, incidental, consequential, exemplary, or punitive damages; or (ii) loss of use, data, business, revenues, or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible, even if a remedy fails of its essential purpose, and regardless of the type of action or theory of liability.
2. Total Liability. To the fullest extent permitted by law, except for Excluded Claims (for which there shall be no cap on liability) or Special Claims (which are subject to the Enhanced Liability Cap set forth in Section 12(d)), neither party’s aggregate liability under this Agreement will exceed the amount paid or payable by Customer to Ethena during the twelve months prior to the event giving rise to liability.
3. Excluded Claims. “Excluded Claims” means: (i) any intentional misconduct or gross negligence by either party; (ii) any amounts payable to third parties pursuant to Ethena’s IP Indemnity obligations under Section 11(a)(i); or (iii) any amounts payable to third parties pursuant to Customer’s indemnification obligations under Section 11(e) (Indemnification by Customer).
4. Special Claims. “Special Claims” means (i) any breach by Ethena of Section 3(a) (Customer Data), Section 3(d) (Information Security), or Section 8 (Confidentiality) resulting in unauthorized disclosure and misuse of Customer Data; or (ii) any amounts payable to third parties pursuant to Ethena’s Data Indemnity obligations under Section 11(a)(ii). For any and all Special Claims, Ethena’s aggregate liability shall be subject to an enhanced liability cap not to exceed three times (3x) the amount paid by Customer to Ethena during the twelve months prior to the event giving rise to liability (the “Enhanced Liability Cap”).

13. GENERAL

1. Informal Dispute Resolution.  In the event of any dispute, claim, or disagreement arising from or relating to this Agreement ("Dispute"), the parties will first use good faith efforts to resolve the Dispute. If a Dispute arises, the complaining party will provide written notice to the other party in a document specifically entitled "Initial Notice of Dispute," specifically setting forth the precise nature of the dispute ("Initial Notice of Dispute"). Following receipt of the Initial Notice of Dispute, the parties will consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties ("Dispute Resolution"). If the parties are unable to reach a resolution of the Dispute through Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute may be resolved as stated in Section 13(b) (Governing Law).
2. Governing Law. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in New York, NY. Ethena and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
3. Subcontractors. Ethena may use the services of subcontractors and permit them to exercise the rights granted to Ethena in order to provide the Services under this Agreement, provided that Ethena (i) will use reasonable skill and care in selecting and appointing each subcontractor, and (ii) remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) for the overall performance of the Services as required under this Agreement
4. Order of Precedence. In the event of a conflict between the Master Services Agreement and Order Form (if any), the terms of the applicable Order Form will take precedence and prevail, provided, however, that the Data Privacy Addendum will take precedence over any inconsistent terms in the applicable Order Form unless the applicable Order Form clearly specifies that it modifies the Data Privacy Addendum.
5. Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
6. Notices. Notices will be sent to the addresses set forth in the Order Form (if any). In the event there is no Order Form (i.e.,  if Customer's Subscription Term is on a monthly basis) Customer will provide written notice to Ethena at 33 Nassau Ave., Second Floor, Brooklyn, NY 11222 or at Ethena’s email address below, and Ethena will provide written notice to Customer at the mailing address or email address on record in Customer’s account. 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 Ethena at legal@goethena.com or Customer at the Customer’s email address on record in Customer’s account or as specified in the Order Form (if any).
7. Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
8. Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money owed) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, pandemics, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, rolling blackouts, and internet connectivity disruptions.
9. Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.
10. Assignment. Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either party to transfer its rights or obligations under this Agreement will be void.
11. Entire Agreement. This Agreement (including any Exhibits hereto) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
12. Modifications to this Agreement. Ethena may modify all or any part of this Agreement at any time by posting a revised version of the Agreement on Ethena’s website at https://app.goethena.com/documents/EthenaServicesAgreement.html. If Ethena deems any modifications to this Agreement to be material, Ethena will make a reasonable effort to inform Customer of such modifications. By continuing to use the Services after the effective date of any modification to this Agreement, Customer agrees to be bound by the modified Agreement. Except as this Agreement (Including in this Section 13(l)) otherwise allows, this Agreement may not be modified except in writing signed by a duly authorized representative of each party.
13. No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.