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Microblink Activation Platform Trial Agreement

Effective 28 January 2026

The customer signing an Order Form (“Customer”) agrees that the terms of this Trial Agreement (“Agreement”), and the Order Form, govern such Customer’s access to and use of the Microblink Activation Platform (as defined below). BY ACCESSING, DOWNLOADING OR USING ANY PORTION OF THE MICROBLINK ACTIVATION PLATFORM, CUSTOMER (A) ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT; AND (B) ACCEPTS THIS AGREEMENT AND ACKNOWLEDGES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS.

1. DEFINITIONS

All capitalized terms used herein shall have the meanings set forth below:

“Access Credentials” means any credentials or API keys issued by Microblink (including any credentials issued via any functionality of the Microblink Activation Platform) with respect to the Microblink Activation Platform or any portion thereof.

“Activation Content” means online advertisements in any form (including display or video), coupons, rebates, survey requests and other promotional content sourced from third-party supply-side providers and delivered to Application users through the Microblink Activation Platform.

“Activation Platform Services” means:

  • Procuring Activation Content for the Application(s) based upon Receipt Data and Resultant Data
  • Serving Activation Content to Application users via the Microblink Network Product
  • Optimizing the value of each ad impression on the Application using Microblink’s expertise and proprietary technology
  • Granting Customer access to retrieve the Resultant Data via the Resultant Data API
  • Tracking and reporting Net Ad Revenue

“Application” means any computer application or application for mobile devices owned or controlled by the Customer in which the Microblink Network Product, or any portion thereof, is embedded.

“API” means application programming interface.

“Authorized User” means a user of Customer’s Application(s) who receives Activation Content in connection with the Microblink Activation Platform.

“Data Protection Agreement” or “DPA” means the Data Protection Agreement available at [insert url].

“Data Protection Laws” has the meaning set forth in the DPA.

“Documentation” means all end user documentation for the Microblink Network Product made available by Microblink to Customer.

“Go Live Date” means the date that the Application, with the Microblink Network Product embedded therein, becomes generally available in one or both of the Apple App Store and Google Play Store in the United States for download by end users of compatible mobile devices.

“Gross Ad Revenues” means all revenues received by Microblink from third parties in connection with the sale and placement of Activation Content, and qualifying redemption reward amounts for offers presented via the Activation Content, on the Applications.

“Integration Period” means the integration period set forth in the Order Form.

“Internal Business Purposes” means use solely for Customer’s own internal operational support of the Application, including to operate, maintain, and improve the Application in accordance with this Agreement, and not for the benefit of any third party, and subject always to the following exclusions which constitute prohibited activities:

  1. use for advertising, monetization, or providing, serving or enabling advertising or promotional content not delivered through the Microblink Network Product;
  2. building, enhancing, or commercializing any data products, datasets, profiles, scoring systems, analytical tools, models, inferences or other derivative works based on, derived from, trained on, or incorporating the Resultant Data, whether for internal or for external use, except that Customer may use the Resultant Data solely in connection with Customer’s own consumer loyalty or rewards program offered within the Application, provided that such use:
    1. is limited to awarding, tracking, or redeeming loyalty points, rewards, or benefits for Customer’s Application end users;
    2. does not support targeted advertising, offer delivery, attribution, or campaign measurement for third parties;
    3. does not involve the creation of standalone or reusable datasets, profiles, models, scoring systems or analytical tools; and
    4. does not compete with or substitute for Microblink’s products or services (collectively, clauses (i) through (iv) are the “Loyalty Program Guidelines”).

“IP Rights” means all (i) patents, patent disclosures, and inventions (whether patentable or not), (ii) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, (iii) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (iv) trade secrets and know how, and (v) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law in any jurisdiction throughout the world.

“Microblink” means BlinkReceipt, LLC d/b/a Microblink.

“Microblink Data” means data owned by Microblink or licensed by Microblink from third parties and used in the delivery of the Microblink Activation Platform.

“Microblink Network Product” means a software development kit that effectuates the Activation Platform Services and other aspects of the Microblink Activation Platform, including any new releases thereof provided by Microblink to Customer.

“Microblink Activation Platform” means the Microblink Network Product and the Activation Platform Services.

“Net Ad Revenues” means Gross Ad Revenues net of (i) any sums due to enabling partners or other third parties, (ii) returns, refunds, allowances, make goods, or discounts granted to advertisers, (iii) commissions and fees due to ad networks, (iv) any deductions made by ad networks due to invalid activity, and (v) bad debt.

“OCR” means optical character recognition.

“Order Form” means the Microblink Activation Platform Trial Order Form signed by Customer.

“Parties” means, collectively, Customer and Microblink.

“Personal Data” shall have the meaning assigned to that term in the DPA.

“Process” (and all corollary terms) shall have the meaning assigned to that term in the DPA.

“Promotional Offer” means any promotion, offer, incentive, reward, rebate, discount, cash-back offer, coupon, loyalty benefit, points-based reward, gift, or other consideration or benefit, whether monetary or non-monetary, made available to an Authorized User through, enabled by, referenced in, or otherwise associated with the Activation Content.

“Receipt Data” means (i) the raw receipt image, and all data contained in or derived from a receipt image, processed by the Microblink Network Product, including OCR output, (ii) all normalized, extracted, aggregated, or derivative data relating to any of the foregoing, and (iii) any inferred or enhanced data relating to any of the foregoing.

“Restricted Information” means the following categories of Personal Data: (i) patient, medical, or other protected health information regulated by the U.S. Health Insurance Portability and Accountability Act (HIPAA); (ii) credit, debit, bank account, or other financial account numbers or other protected financial information regulated by the Graham-Leach-Bliley Act (GLB); (iii) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (iv) biometric information, including as defined by the Illinois Biometric Information Privacy Act of 2008; (v) any information relating to children or otherwise covered by the Children’s Online Privacy Protection Act of 1998, and (vi) other similar categories of sensitive information as set forth in the Data Protection Laws.

“Resultant Data” means the data extracted by the Microblink Network Product after processing a receipt image submitted by an Application user, which may include brand/item name, merchant name, merchant address, merchant phone, total items purchased, total dollars spent, quantity of each item, price of each item, discounts, and other similar data points, including any standardization by Microblink of such extracted data and any product intelligence data added by Microblink. For the avoidance of doubt, “Resultant Data” does not include the raw receipt image or any Personal Data.

“Resultant Data API” means Microblink’s application programming interface, as hosted by Microblink, that enables Customer to retrieve the Resultant Data during the Trial Term.

“Territory” means the territory set forth in the Order Form.

“Trial Term” means the term set forth in the Order Form.

2. MICROBLINK ACTIVATION PLATFORM

2.1. Grant of Rights; Restrictions; Reservation.

    1. Subject to the terms of this Agreement, Microblink hereby grants to Customer a limited, royalty-free, revocable, non-exclusive, non-transferable, non-sublicensable license, solely in the Territory, to (i) download and embed the Microblink Network Product into the Application and test and debug such integration, and (ii) during the Trial Term, distribute the Microblink Network Product as part of the compiled Application and display the Activation Content to Authorized Users in the Application; in each case, for the sole purpose of evaluating the Microblink Activation Platform’s ability to provide revenue generation opportunities with respect to in-app user activity. The Microblink Network Product and Activation Content is licensed, not sold, to Customer, and Customer receives no title to or ownership of the Microblink Network Product or Activation Content or any copy thereof.
    2. Subject to the terms of this Agreement, at no charge, Microblink agrees to provide the Activation Platform Services to Customer, on a non-exclusive basis, during the Trial Term, solely for use by Customer in the Territory.
    3. The rights granted in Sections 2.1(a) and 2.1(b) are conditioned upon Customer’s compliance with the following:
      1. Customer shall use the Microblink Activation Platform in accordance with applicable law and the Documentation;
      2. Customer shall be responsible for keeping the Access Credentials confidential and secure and for all use of the Microblink Activation Platform through its login credentials;
      3. Customer shall not, and shall not allow any third party to:
        1. copy, rent, resell, lease, sublicense, transfer, distribute, publicly display or otherwise make available any portion of the Microblink Activation Platform or Activation Content to any third party, except for the display of Activation Content to Authorized Users permitted under Section 2.1(a);
        2. circumvent, disable, interfere with, or disrupt the security, authentication, access or usage controls, or the technical limitations, of the Microblink Activation Platform;
        3. attempt to gain or permit unauthorized access to the Microblink Activation Platform, including conducting penetration testing or denial of service attacks;
        4. remove, obscure or modify any copyright, trademark or other proprietary rights notices in the Microblink Activation Platform, or any portion thereof;
        5. input, upload or otherwise provide to or through the Microblink Activation Platform any information or materials that: (A) contain or transmit any software code that is intentionally designed to disrupt the normal operation of, or disable, or provide unauthorized access to, a computer or other device on which such code is installed or that communicates with the computer or device on which such code is installed, or to compromise the security or integrity of data processed by a computer or device on which such software code is installed without the user’s authorization; or (B) are unlawful, abusive, violent, malicious, harassing, tortious, defamatory, discriminatory, vulgar, obscene, libelous, that violate another’s privacy right or right of publicity, or that infringe upon or violate the IP Rights or other rights of any third party;
        6. access or using the Microblink Activation Platform or any portion thereof for benchmarking purposes or in connection with developing or supporting a similar or competitive product or service;
        7. use the Microblink Network Product, or any portion thereof, with any other software or copyrighted work in such a way that would require: (A) any portion or version of the Microblink Network Product to be made available in source code form, made available without charge or at minimal charge, or licensed for the creation of derivative works; or (B) Microblink or its licensors to grant any third party any rights or immunities under any intellectual property owned by or licensed to Microblink;
        8. modify, adapt, translate, or prepare derivative works of the Microblink Network Product, in whole or in part; provided that the foregoing shall not be construed to limit Customer’s right to embed the Microblink Network Product into the Application in accordance with Section 2.1(a);
        9. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, underlying ideas, algorithms, structure, or organization of the Microblink Activation Platform, in whole or in part, except only to the limited extent that the foregoing restriction is unenforceable as a matter of applicable law; or
        10. use the Microblink Activation Platform, or any portion thereof, in a service bureau or outsourcing arrangement.
    4. Microblink shall have the right to take technical and other measures, including the use of the license keys, remote access and similar tools to track usage and prevent the use of the Microblink Activation Platform in any way that is not within the scope of the rights granted under this Agreement.
    5. No license rights with respect to any of Microblink’s intellectual property shall be deemed created by implication or estoppel, and Microblink reserves all right, title, and interest in and to the Microblink Activation Platform not expressly to Customer in this Agreement.
    6. As a condition of receiving the Microblink Activation Platform, Customer agrees that, during the Trial Term, Microblink will be the exclusive source of all online advertisements in any form (including display or video), coupons, rebates, survey requests and other promotional content delivered to Application users that relates to the Resultant Data in whole or in part.

3. DATA

3.1. Personal Data. With respect to any Personal Data that is Processed in connection with this Agreement, the Parties agree (a) to comply with the DPA and (b) that the applicable natural person to which the particular Personal Data relates is the owner of such Personal Data.

3.2. Receipt Data.  Subject to Section 3.1 above, Customer acknowledges and agrees that, as between the Parties, all right, title, and interest in and to the Receipt Data is owned solely by Microblink.

3.3. Other Data. Customer acknowledges and agrees that, as between the Parties, all right, title, and interest in and to the Activation Content, Microblink Data and the Resultant Data is owned solely by Microblink, subject to Customer’s license rights set forth in Section 2.1(a) (as to Activation Content) and Section 3.4 (as to Resultant Data).

3.4. Resultant Data License.

  1. Subject to the terms of this Agreement, Microblink hereby grants Customer a limited, non-exclusive, royalty-free, revocable, non-transferable, non-sublicensable right, solely during the Trial Term, to use the Resultant Data made available to Customer via the Resultant Data API solely for Customer’s Internal Business Purposes and solely in the Territory.
  2. Upon the expiration or termination of this Agreement, Customer shall cease all use of the Resultant Data and shall destroy the Resultant Data (including the deletion of all electronic copies of any Resultant Data), except (i) as required to comply with applicable law, and (ii) for any Resultant Data previously incorporated into Customer’s own consumer loyalty or rewards program so long as the Customer continues to comply with the Loyalty Program Guidelines. Upon Microblink’s request, Customer’s Chief Information Security Officer (or other appropriate person approved by Microblink in writing) shall certify to Microblink that such destruction has been made in compliance with this Section 3.4(b).

3.5. Representations and Warranties of Customer. Customer represents and warrants that:

  1. it has obtained, and will maintain, all lawful bases required under applicable Data Protection Laws to collect, use, disclose, and otherwise Process any Personal Data in connection with its use of the Microblink Activation Platform, including the disclosure of such Personal Data to Microblink;
  2. any Personal Data provided to or Processed by Microblink in connection with this Agreement has been collected and is shared with Microblink in compliance with all applicable laws;
  3. it shall not send to Microblink or use the Microblink Activation Platform for Processing any Restricted Information;
  4. prior to Microblink’s receipt of any Personal Data, including by virtue of the operation of the Microblink Network Product, Customer will have made all required disclosures to the end users (natural persons) to which the applicable Personal Data relates, and will have obtained all rights necessary (including all necessary consents), so that the exercise by Microblink of the rights granted to it under the DPA does not and will not violate any privacy rights, IP Rights, or other rights of a third party or violate applicable law;
  5. with respect to any Promotional Offer, Customer shall timely, accurately, and fully honor and fulfill such Promotional Offer strictly in accordance with its stated terms and conditions, including by providing to the applicable Authorized User any reward, benefit, rebate, discount, credit, cash payment, points, loyalty consideration, or other incentive associated with such Promotional Offer; and
  6. Customer’s provision of the Application to Customer’s customers and users, and Customer’s fulfillment of Promotional Offers, shall comply with the provisions of the DPA and applicable law.

4. OTHER CUSTOMER OBLIGATIONS

4.1. Technical Requirements. Customer agrees to comply with any technical requirements for the use of the Microblink Activation Platform as set forth in any documentation for the Microblink Activation Platform made available by Microblink or communicated to Customer in writing from time to time. Without limiting the generality of the foregoing, Customer agrees to: (i) promptly install any link shared with Customer that will enable calls to ad networks (the “Link”); (ii) not modify, alter, or disturb the functionality of the Link or circumvent, impair, disable, restrict, or other interfere with any tracking technologies employed thereby, provided that Customer may make non-substantive, non-material changes to its ad modal such as color or style so that it integrates with the look and feel of Customer’s Application, provided further that such changes do not materially impact the display of the advertisements (including, without limitation, any applicable disclaimers or disclosures) and subject to Microblink’s ongoing review and approval; (iii) not interfere with, modify, alter, or obstruct any Activation Content or Authorized User’s interaction therewith.

4.2. Third-Party Terms. Customer agrees to comply with any third-party terms and conditions required to receive the Microblink Activation Platform, which may include terms for ad networks, affiliate networks, survey providers, agencies, or brands used by or contracted with by Microblink on behalf of Customer (for example, Google Ad Exchange) and/or third-party software or technology implemented on behalf of Customer as part of the Microblink Activation Platform (such as a video player) (any such platform or services, the “Third-Party Services”, and any provider of same, a “Third-Party Provider”). Microblink will make any applicable Third-Party Provider terms or agreements available to Customer via the Microblink Network Product or otherwise in writing, as may be required.

4.3. Application Content Restrictions. Customer agrees that the Application may not contain any content that: is obscene, offensive, indecent, unlawful, vulgar, pornographic, sexually explicit or suggestive, false, deceptive or fraudulent; contains nudity, profanity, racially- or ethnically-based speech or hate speech; is being used to harass, stalk or otherwise threaten a person; is libelous, defamatory or slanderous; violates any privacy, publicity or other rights of any third party; infringes or misappropriates any third party’s intellectual property rights; violates any applicable law, rule, regulation, ordinance or order; with respect to advertising, is misleading or is discriminatory as to race, sex, creed, national origin, religious affiliation, physical disability, sexual orientation or language; promotes or contains viruses, worms, corrupted files, cracks or other materials that are intended to or may damage or render inoperable software, hardware or security measures of any user; includes or promotes products that have been rated NC-17, Mature, Adult, Adults Only, or a similar rating recommending or requiring an adult audience only; facilitates or promotes software pirating, gambling, ammunition and/or firearms, tobacco products or illegal drugs or any other illegal activity; depicts violence or illegal drug or alcohol use; facilitates, promotes or forwards illegal games, contests, pyramid schemes or chain letters; or may expose Microblink, its partners, or any advertisers to negative publicity.

5. NET AD REVENUE

5.1. Net Ad Revenue. Microblink shall remit the Net Ad Revenue to Customer within forty-five (45) days after the end of each month in which such Net Ad Revenue is received by Microblink, and Microblink will provide a report showing the calculations of such Net Ad Revenue contemporaneously with such remittance. For the avoidance of doubt, any Net Ad Revenue received by Microblink after the Trial Term with respect to the sale and placement of Activation Content, and qualifying redemption reward amounts for offers presented via the Activation Content, on the Application during the Trial Term shall be paid to Customer in accordance with this Section 5.1 even if such Net Ad Revenue is collected by Microblink after the Trial Term. Customer agrees to cooperate with Microblink to provide Microblink, upon request, with all information and back-up documentation required by third parties in order for Microblink to obtain payment of the Gross Ad Revenues and/or resolve any disputes relating to Gross Ad Revenues (“Ad Revenue Payment Purpose”). Customer agrees that such information and back-up documentation may be disclosed by Microblink to third parties in furtherance of the Ad Revenue Payment Purpose.

6. DISCLAIMER OF WARRANTIES

6.1. Disclaimer of Warranties; No Liability for Errors. THE MICROBLINK ACTIVATION PLATFORM, ACTIVATION CONTENT AND RESULTANT DATA ARE PROVIDED “AS IS” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO UNINTERRUPTED OR ERROR-FREE OPERATION, MERCHANTABILITY, QUALITY, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE OR USE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE, FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Microblink does not exclude the possibility that the Microblink Network Product contains certain errors in code, which can be irreparable. The Parties agree that as a consequence of such errors, Microblink shall not be liable for the costs, damages or liabilities and Customer’s sole remedy shall be to terminate this Agreement for convenience upon written notice to Microblink.

7. LIMITATIONS OF LIABILITY

7.1. Exclusion of Certain Damages. EXCEPT WITH RESPECT TO (I) DAMAGES ARISING FROM CUSTOMER’S INFRINGEMENT OR MISAPPROPRIATION OF MICROBLINK’S IP RIGHTS IN AND TO THE MICROBLINK ACTIVATION PLATFORM (INCLUDING BREACH OF ANY LICENSE OR USAGE RESTRICTIONS WITH RESPECT TO THE MICROBLINK ACTIVATION PLATFORM SET FORTH IN THIS AGREEMENT), AND (II) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (A) UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL EXEMPLARY OR PUNITIVE DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE, AND (B) NEITHER PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL NET AD REVENUE PAID BY MICROBLINK TO CUSTOMER DURING THE TRIAL TERM. FOR THE AVOIDANCE OF DOUBT, ANY CAP ON LIABILITY UNDER THIS SECTION 7 IS CUMULATIVE AND NOT PER CLAIM.

7.2. General.  THE EXCLUSION OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 7 SHALL (I) APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE BASIS OF THE LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), STATUTE, OR ANY OTHER LEGAL THEORY, (II) BE INDEPENDENT OF, AND SHALL SURVIVE, ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY WARRANTY OR LIMITED REMEDY STATED HEREIN, AND (III) SHALL APPLY EVEN IF A REMEDY DOES NOT FULLY COMPENSATE A PARTY FOR ANY LOSSES OR IF EITHER PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF DAMAGES, EXCEPT IN EACH CASE AS MAY BE LIMITED OR PROHIBITED BY APPLICABLE LAW.

8. INDEMNITY

8.1. Microblink Indemnity. If any claim, action, suit, investigation or proceeding (“Claim”) is brought by a third party against Customer on the basis of an allegation that the Microblink Activation Platform infringes upon or misappropriates a third party’s United States patent or other IP Right that is protected under U.S. law, then Microblink shall: (i) at its expense, defend or, at its option, settle such Claim, and (ii) pay all losses, damages (including any award of reasonable attorneys’ fees and costs) and other liabilities (“Liabilities”) awarded in any final court judgment against Customer arising out of such Claim or agreed upon in a settlement of such claim that is approved by Microblink in writing. Notwithstanding the foregoing, Microblink will have no obligation or liability hereunder with respect to any Claims described above to the extent that they arise out of or relate to: (a) access to or use of the Microblink Activation Platform in combination with any hardware, systems, software or other materials or services not provided by Microblink; (b) a modification of the Microblink Activation Platform by any person or entity other than Microblink or its subcontractors; (c) Customer’s (or any end user’s) use of any older version of the Microblink Network Product when use of an update or other new release thereof by Microblink would have avoided the infringement; (d) Microblink’s compliance with any specifications or requirements provided by or on behalf of Customer; (e) use of the Microblink Activation Platform for a purpose not authorized under this Agreement or otherwise in violation of this Agreement; or (f) any Claims related to any IP Right owned by Customer, any of its affiliates or any end user or licensed by any of the foregoing from a third party.

8.2. Infringement Mitigation. If the Microblink Activation Platform, or any portion thereof, is, or in Microblink’s opinion is likely to become, the subject of a third-party claim described in Section 8.1, Microblink may, at its option and sole expense, use its commercially reasonable efforts to (i) obtain for Customer the right to continue to use the Microblink Activation Platform in accordance with this Agreement, or (ii) replace or modify the Microblink Activation Platform, in whole or in part, so that it is no longer subject to, or likely to become subject to such claim. If neither of the foregoing options are commercially reasonable, as determined by Microblink in its sole discretion, then Microblink may terminate this Agreement, in whole or in part, upon written notice to Customer.

8.3. Customer Indemnity. If any Claim is brought against Microblink arising from or in connection with: (i)) an allegation of facts that, if true, would constitute a breach by Customer of applicable law or this Agreement; (ii) the Application (apart from the Microblink Network Product embedded therein) or the use thereof; or (iii) a claim by a Third-Party Provider arising out of or relating to the use by Customer of the Third-Party Services or the breach by Customer of any Third-Party Provider terms and conditions, agreements, or policies; then, in each case, Customer shall: (a) at its expense, defend or settle such Claims, and (b) pay all Liabilities awarded in any final court judgment, or ordered or otherwise determined in any governmental action, against Microblink arising out of such Claims or agreed upon in a settlement of such Claims that is approved by Customer in writing.

8.4. Sole and Exclusive Remedy for Infringement. The foregoing states the sole and exclusive obligations and remedies of the Parties with respect to any third-party Claims of intellectual property infringement.

8.5. Indemnification Procedures. The indemnifying Party’s obligations under this Section 8 are conditioned on the indemnified Party (i) notifying the indemnifying Party promptly in writing as to any such Claim, (ii) granting the indemnifying Party sole control over the defense and settlement thereof; except that the indemnifying Party shall not settle any such Claim without first obtaining the indemnified Party’s prior written consent where the settlement of such Claim: (a) results in any admission of wrongdoing or liability on the part of the indemnified Party; (b) fails to grant the indemnified Party a release of all claims in the suit or proceeding; or (c) imposes any obligation or liability on the indemnified Party (other than monetary liability for which the indemnified Party is fully indemnified by the indemnifying Party), (iii) reasonably cooperating in response to a request from the indemnifying Party for assistance, and (iv) not making any statements or admissions that would materially prejudice or materially adversely impact the indemnifying Party’s defense or settlement of the Claim. The indemnified Party, in its sole discretion, may participate in (but not control) any such third-party Claims using its own counsel at its own expense.

9. TERM AND TERMINATION

9.1. Term. This Agreement shall be in effect commencing on the effective date of the Order Form and continuing until the expiration of the Trial Term unless earlier terminated in accordance with this Agreement. Thereafter, the Trial Term shall automatically renew for successive 3 month periods, unless either Party provides written notice to the other Party of its intent not to renew this Agreement at least fifteen (15) days prior to the expiration of then-current Trial Term.

9.2. Termination. In addition to any other termination rights set forth in this Agreement:

  1. either Party may terminate this Agreement upon written notice to the other Party if the other Party breaches any material provision of this Agreement and does not cure such failure within a period of thirty (30) days after receipt of written notice from the non-breaching Party reasonably specifying such failure.
  2. Microblink may terminate this Agreement for convenience upon written notice to Customer if the Go Live Date has not occurred by the end of the Integration Period.

9.3. Effect of Termination. Upon any expiration or termination of this Agreement:

  1. the Order Form automatically terminates;
  2. all rights and licenses granted to Customer with respect to the Microblink Activation Platform, Activation Content and Resultant Data hereunder will immediately terminate, and Customer shall immediately cease using the Microblink Activation Platform and comply with its destruction obligation under Section 3.4(b);
  3. Microblink will disable Customer’s access to the Microblink Activation Platform;
  4. Customer shall immediately return or destroy (and certify to Microblink that such destruction has been made) all copies of the Microblink Network Product and other Microblink’s Confidential Information in Customer’s possession or control; and
  5. Customer shall promptly remove the Microblink Network Product from the Application and shall promptly push out an updated version of the Application without the incorporated Microblink Network Product to all end users of the Application.
  6. The expiration or termination of this Agreement will not prejudice or affect any right of action or remedy that has accrued or will accrue to either Party due to the other Party’s acts or omissions prior to the effective date of such expiration or termination.

9.4. Survival. The following Sections of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement: Section 1 (Definitions); Section 3 (Data); Section 5 (Net Ad Revenue); Section 6 (Disclaimer of Warranties); Section 7 (Limitations of Liability); Section 8 (Indemnity); Section 9.3 (Effect of Termination); Section 9.4 (Survival); Section 10 (Confidentiality); Section 11 (Governing Law; Jurisdiction; Jury Trial Waiver); and Section 12 (Miscellaneous) except for Sections 12.1 (Force Majeure) and 12.3 (Export Compliance).

10. CONFIDENTIALITY

10.1. Obligations of the Receiving Party. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information (as defined below) to the other Party (as the “Receiving Party”).

10.2. “Confidential Information” means any information or data (including information or data received by the Disclosing Party from a third party and as to which the Disclosing Party has confidentiality obligations) provided or disclosed by the Disclosing Party to the Receiving Party that is: (a) marked as the confidential or proprietary information of the Disclosing Party; or (b) which a reasonable person would conclude is of a confidential nature given the type of information disclosed and the facts and circumstances surrounding such disclosure. Notwithstanding the foregoing, the Confidential Information does not include information that (i) was rightfully known to the Receiving Party without obligation of confidentiality prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement and was not obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (ii) is or becomes part of the public domain through no fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that is lawfully in possession of such information and not in violation of any contractual or legal obligation to the Disclosing Party with respect to such information; or (iv) the Receiving Party can demonstrate by written or other documentary records was independently developed by the Receiving Party without access to any of the Disclosing Party’s Confidential Information. The Parties agree that (i) the Microblink Activation Platform, Activation Content, Microblink Data, Receipt Data and Resultant Data are the Confidential Information of Microblink; and (ii) the terms of this Agreement constitute the Confidential Information of both Parties.

10.3. The Receiving Party shall:

  1. not access or use the Disclosing Party’s Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement and for the same purpose;
  2. unless otherwise determined herein, not disclose or permit access to the Disclosing Party’s Confidential Information other than to its employees, consultants, agents, contractors, and advisors (collectively, “Representatives”) who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, (ii) have been informed of the confidential nature of the Disclosing Party’s Confidential Information and the Receiving Party’s obligations under this Section 10, and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Disclosing Party’s Confidential Information as the terms set forth herein. For the avoidance of doubt, Customer shall remain responsible and liable for any of its Representatives’ non-compliance with the terms of this Section 10; and
  3. safeguard the Disclosing Party’s Confidential Information using at least the same degree of care it uses to protect its own similar information and in no event less than a reasonable degree of care.

10.4. Compelled Disclosure. If the Receiving Party is compelled by applicable law to disclose any Confidential Information then, the Receiving Party shall: (i) promptly, and, if possible, at least two days prior to such disclosure, notify the Disclosing Party in writing of such requirement (if permitted by applicable law) so that the Disclosing Party can seek a protective order or other appropriate remedy; (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure; and (iii) disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

10.5. Remedies. Each Party acknowledges and agrees that a breach by a Party of any of its confidentiality obligations hereunder may cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including an injunction, specific performance, and any other equitable relief that may be available from any court, without any requirement to post a bond or other security and without prejudice to such Party’s right to exercise any other rights and remedies it may have.

11. GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER

11.1. Governing Law; Exclusive Jurisdiction and Venue. This Agreement will be interpreted in accordance with and governed by the laws of the state of New York, excluding the United Nations Convention on Contracts for the International Sale of Goods which the Parties hereby agree shall not apply to this Agreement. Any legal action brought under or in connection with the subject matter of this Agreement shall be brought only in the state or federal courts located in New York, New York. Each Party waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in such courts and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.

11.2. Jury Trial Waiver. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY LEGAL SUIT, ACTION, PROCEEDING OR COUNTERCLAIM AGAINST THE OTHER ARISING OUT OF, OR CONNECTED IN ANY WAY TO, THIS AGREEMENT.

12. MISCELLANEOUS

12.1. Force Majeure. In no event will either Party be liable for any failure or delay in fulfilling or performing any of its obligations under this Agreement when and to the extent such failure or delay is caused by any circumstances beyond that party’s reasonable control (“Force Majeure Event”), including fire, flood, explosion, war, terrorism, riot or other civil unrest, earthquake, acts of God, riots, civil disorder, rebellion or revolution, pandemic, passage of law or any action taken by a governmental or public authority, including any complete or partial government shutdown, or national or regional shortages of adequate power or fuel.

12.2. Feedback. If Customer provides any suggestions, comments, recommendations for improvement or other feedback with respect to the Microblink Activation Platform (“Feedback”), then Microblink shall be free to use, disclose, distribute, reproduce, (sub)license or otherwise commercially exploit such Feedback as Microblink sees fit, on a worldwide basis, entirely without obligation or remuneration to Customer or restriction of any kind.

12.3. Export Compliance. Without limiting the Territory restriction, Customer may not remove or export from the United States, or allow the export or re-export of any part of, the Microblink Activation Platform, in violation of any export control laws or regulations of the United States, including those of the United States Department of Commerce or the United States Department of Treasury Office of Foreign Assets Control.

12.4. Notices. Except as otherwise expressly permitted hereunder, all notices required under this Agreement shall be in writing, in the English language, and must be given via (i) prepaid express courier or mail, with tracking of delivery, or (ii) e-mail with a delivery receipt to the address for the applicable Party set forth in the applicable Order Form, and in the case of Microblink, with a copy to legal@microblink.com, except that either Party may change its notice information by providing notice to the other in accordance with this Section. Any notice sent by a Party shall be deemed to have been duly given to the other Party when delivered to the other Party.

12.5. Entire Agreement. The Order Form, this Agreement and the DPA constitute the entire agreement between the Parties with respect to the Microblink Activation Platform and supersede any previous or contemporaneous communications, proposals, understandings or agreements, whether oral or written, between the Parties relating to the Microblink Activation Platform and supersede any purchase orders or other business forms purporting to relate to the Microblink Activation Platform.

12.6. Changes to this Agreement. Microblink may modify this Agreement from time to time by (i) posting an updated version at [insert url] or (ii) notifying Customer, in accordance with Section 12.4, that this Agreement has been modified and informing Customer where it can find a copy of the updated version of this Agreement. Unless otherwise stated by Microblink, any such modifications will become effective on the date of such posting or the date specified in Microblink’s notice or, if no date is specified, upon Customer’s continued access to or use of the Microblink Activation Platform after such posting or notice, as applicable. If Customer does not agree to the modified terms, Customer’s sole remedy is to terminate this Agreement for convenience upon written notice to Microblink.

12.7. Assignment; Subcontracting.

  1. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; except that, notwithstanding the foregoing, Microblink may assign its entire interest in this Agreement without the Customer’s consent, to (i) any Microblink’s affiliate, or (ii) to a third party in connection with a sale of all or substantially all of Microblink’s business to which this Agreement relates, irrespective of the form of the transaction (e.g. whether by conveyance of assets, merger or other business reorganization.
  2. Microblink may subcontract any obligations to be performed hereunder without Customer’s consent; provided that, Microblink shall remain responsible for the performance of Microblink’s obligations hereunder notwithstanding any such subcontracting.

12.8. Trademark Use. Each Party shall obtain the prior written approval of the other Party prior to using any trademark, service mark, logo or other source indicator of such other Party.

12.9. U.S. Government Rights. The Microblink Activation Platform is provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with only those rights and restrictions as are granted to all other customers pursuant to the terms and conditions set forth herein. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation or the Defense Federal Acquisition Regulation Supplement. If a government agency has a need for rights not granted under these terms, it must negotiate with Microblink to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

12.10. Severability. If any provision of this Agreement is for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect.

12.11. No Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right. All waivers must be in writing and signed by the Party granting the waiver. The waiver by a Party of any of its rights or remedies in a particular instance will not operate as a waiver of any subsequent event or breach by the other Party.

12.12. No Third-Party Beneficiaries. This Agreement shall not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.

12.13. Relationship of the Parties. The Parties acknowledge and agree that their relationship is in the nature of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other Party’s agent, partner, employee or representative, or has any right to obligate or bind the other Party in any manner whatsoever.

12.14. Rules of Construction.  For purposes of this Agreement, except as otherwise expressly provided or unless the context clearly requires otherwise: (i) the terms defined herein include the plural as well as the singular and include any words based upon the root of such defined terms; (ii) words importing gender include all genders; (iii) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (iv) the word “or” is not exclusive; (v) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; and (vi) the headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. Unless the context otherwise requires, references herein to: (a) Sections mean the sections of this Agreement; (b) an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (c) a statute means such statute as amended from time to time, and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted.