Wasabi Customer Agreement

These End-User Terms (the “Agreement”) contains the terms and conditions that govern your access to and use of Wasabi’s storage and related services, as further identified on an Order Form (the “Wasabi Service”) and is an agreement between you or the company you represent (“you” or “your”) and Wasabi Technologies LLC (“Wasabi,” “we,” “us,” or “our”). In the event of any conflict between the terms and conditions of this Agreement and any exhibit, policy, or product terms, the terms of the applicable exhibit, policy or product terms shall prevail.

YOUR USE OF THE WASABI SERVICE OR ANY TECHNOLOGY, IDEA, DATA, DATABASES, ALGORITHM OR INFORMATION CONTAINED THEREIN, CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT THE WASABI SERVICE WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND WITH ALL APPLICABLE LAWS.

1. Use of the Wasabi Service

1.1 Access. Subject to the terms and conditions of this Agreement, Wasabi grants you the right to access and use the Wasabi Service (including any customer portals which may also be made available to you as part of or through with the Wasabi Service) in accordance with the Documentation. “Documentation” means the user, technical and admin guides for the Wasabi Service.

1.2 Customer Accounts.

(a) We will use your Account Information in accordance with our Privacy Policy and you consent to such use, where “Account Information” means information about you that you provide to us in connection with the creation or administration of your Customer Account, including names, usernames, phone numbers, email addresses and billing information associated with your Customer Account.

(b) You may authorize others (collectively, “Authorized Users”) to use the Wasabi Service on your behalf, but you remain responsible for the acts and omissions of such Authorized Users.

(c) You and your Authorized Users are responsible for ensuring that any access credentials are kept confidential and are not disclosed to any third party, and for all activity that occurs under your Customer Account.

(d)  You agree to, and will ensure that each Authorized User will, notify us at support@wasabi.com immediately upon learning of any unauthorized access to a Customer Account or any other suspected security breach.

1.3 Software; Third-Party Content. 

(a) Certain Wasabi Services may require you to install software or access a SaaS platform (collectively “Software”). In such cases, Wasabi grants to you a non-exclusive, nontransferable, limited license (without the right to sublicense) to install, execute, access and use such Software during the applicable Order Form term, solely: (i) in object code format; (ii) for your internal use, with no right to make such software or SaaS available to third parties either by transferring copies thereof, by providing a hosted service, or sharing your access credentials; (iii) in connection with the Wasabi Service; and (iv) in accordance with Documentation and the terms hereof.

For purposes of this Agreement, any Software provided by Wasabi (including via SaaS) is included within the definition of Wasabi Service. Any such Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101 and is provided with “Restricted Rights”. If Customer is an agency of, or contractor to, the US Government, it receives only those rights with respect to such Software as are granted to all other end users under license.

Except where such restrictions are prohibited by law, you shall have no right, and you specifically agree not to: (i) modify or adapt the Software or create derivative works based upon the Software, or to permit third parties to do so; (ii) rent, lease, loan or use the Software as a service bureau, as an application service provider, to perform consulting or training services for a third party or in any commercial time share arrangement; (iii) decompile, decrypt, reverse engineer, disassemble or otherwise reduce the Software or any part thereof to human-readable form to gain access to trade secrets or confidential information in the Software; or (iv) remove any product identification, trademark, copyright or other notices contained in or on the Software.

(b) Third-Party Content, if any, may be used by you, solely at your option. Use of Third-Party Content is solely governed by the separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges. “Third Party Content” means content made available to you by any third party in conjunction with the Wasabi Service.

1.4 Limited Wasabi Services. We may offer the Wasabi Service for free in limited circumstances, such as a free trial or pre-release version of any Wasabi Service (“Limited Wasabi Service”). The Limited Wasabi Service requires an active Customer Account and is subject to the time limits that are made known to you at the time of order fulfillment, via email or the Documentation. You agree that to use the Limited Wasabi Service in compliance with any related Documentation and restrictions. Your use of any Limited Wasabi Service is for the sole purpose of evaluating and testing the applicable service and providing Feedback to Wasabi. Any pre-release version of a Wasabi Service may be experimental in nature, not fully tested and may be discontinued at any time with or without notice, at which point your access will end and Your Content shall be deleted.

1.5 Your Content. “Your Content” means content that you or any Authorized User transfers to us for storage or hosting by the Wasabi Service in connection with your Customer Account. Your Content does not include your Customer Account information. You will ensure that Your Content does not violate any terms of this Agreement, the Documentation, or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Feedback; (b) you have all rights in Your Content and Feedback necessary to grant the rights contemplated by this Agreement.

1.6 Acceptable Use. You represent and warrant to us that Your Content and use of the Wasabi Service will not violate the Acceptable Use Policy (“AUP”).

1.7 Proprietary Rights; Feedback.

(a) Reservation of Rights. All Software, code, hardware, trademarks, trade secrets, proprietary methods and systems used to provide the Wasabi Service (the “Wasabi Technology”) and the content made available or displayed by us through the Wasabi Service, including all text, graphics, images and the look and feel of such Wasabi Service (collectively, the “Wasabi Content”) are owned by or licensed to Wasabi, including all intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an assignment or other transfer of ownership in and to the Wasabi Technology or Wasabi Content to you, either expressly, or by implication, estoppel, or otherwise. Other than the authorizations or licenses as may be conferred or granted by us to you in this Agreement or any of the Documentation, Wasabi reserves all right, title and interest in and to the Wasabi Technology and Wasabi Content.

Except as expressly provided in this Agreement, you obtain no rights under this Agreement from us, our Affiliates or our licensors to the Wasabi Service, including any related intellectual property rights. Some Wasabi Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the Wasabi Content or Third-Party Content that is the subject of such separate license.

(b) Feedback. Notwithstanding anything to the contrary in this Agreement, all intellectual property rights in the Feedback, if any, and all other ownership in any ideas, modifications, enhancements, improvements, or any other suggestion specifically relating to the Wasabi Service, are hereby assigned to Wasabi and shall be the sole and exclusive property of Wasabi. “Feedback” means any suggestions, enhancement requests, recommendations, corrections or other feedback provided by you, your Affiliates, and/or Authorized Users relating to the features or operation of the Wasabi Service and Documentation.

2.  Service Changes; Support and Maintenance

2.1 To the Wasabi Service. We may modify or discontinue any or all of the Wasabi Service or change or remove functionality of any or all of the Wasabi Service from time to time; provided however, that during the Term of any Reserved Capacity Order Form, we will not discontinue or materially degrade the functionality of the Wasabi Service purchased, unless required by applicable law or to mitigate a material security risk. We will notify you of any material change to or discontinuation of the Wasabi Service by posting the revised version on our website and/or communicating it to you. Any changes to the Wasabi Services will be effective upon the later of: ten (10) days from the time we post such changes or the renewal date of any Reserved Capacity Order Form term. Your continued use of the Wasabi Services thereafter constitutes your acceptance of the changed Wasabi Service.

2.2 To the APIs. We may change or discontinue any APIs for the Wasabi Service from time to time. For any discontinuation of or material change to an API, we will use commercially reasonable efforts to continue supporting the previous version of such API for 12 months after the change or discontinuation (except if doing so: (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) would cause us to violate the law or requests of governmental entities).

2.3 Support and Maintenance. During the Term, Wasabi will provide you with reasonable support in accordance with Wasabi’s Service Level Agreement (“SLA”), except that support for Software, once downloaded, will be provided in Wasabi’s sole discretion. Wasabi may temporarily limit or suspend the availability of all or part of the Wasabi Service, without liability, if it is necessary for reasons of public safety, security, maintenance of the Wasabi Service, interoperability of services, data protection, or to perform work that is necessary for operational or technical reasons.

3.  Security and Data Privacy

3.1 Security. Without limiting your obligations under Section 1.5 or the terms of Section 10, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards. You are responsible for properly configuring and using the Wasabi Service and otherwise taking appropriate action to secure, protect and backup your Customer Account(s) and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.

3.2 Data Privacy. In connection with providing and using the Wasabi Service, each Party agrees to comply with the terms of Wasabi’s Data Processing Agreement (“DPA”).

4.  License Grant; Acknowledgment

4.1 License of Your Content. You grant to Wasabi a worldwide, non-exclusive, royalty-free, fully-paid up, transferable and sublicensable right to Your Content only to the extent necessary to perform this Agreement. You retain all ownership and proprietary rights in Your Content. You may modify or remove / export Your Content at any time during the Term. Your Content (and, where applicable, the related metadata) will be irretrievably deleted upon: (a) your deletion of Your Content or (b) cancellation or termination of the Customer Account (including from expiration or non-renewal of an RCS purchase).

4.2 Log-In Credentials and Account Keys. Any log-in credentials and private keys provided to you by Wasabi or generated by the Wasabi Service are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.

5.  Fees and Taxes

5.1 Service Fees.  Fees for the Wasabi Service (“Fees”) will be calculated and billed based on the Wasabi Service selected by you and will be payable to the partner through which you purchase the Wasabi Service, on the terms such partner sets.

5.2 Taxes.  All Fees and charges are exclusive of taxes or duties, including, without limitation, value-added, use, excise, sales and transactions taxes, surcharges or levies (“Taxes”).

6.  Confidentiality

Either party may, from time to time, provide to the other certain non-public information including business information, pricing, forecasts, financial plans and data, marketing plans, and unannounced product information (“Confidential Information”). Confidential Information shall also include the Wasabi Content, and any other information disclosed by a party to the other party, in whatever form, and designated in writing as proprietary or confidential, or which a reasonable person would understand to be proprietary or confidential in nature. During the term of this Agreement and for three (3) years following its termination, each party will not disclose any such Confidential Information except as set forth herein. The receiving party shall hold in confidence, and shall not disclose any Confidential Information to any person or entity except to an Affiliate, a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event, shall less than reasonable care be used. The parties expressly agree that the terms of this Agreement are Confidential Information and you further agree you will not use the Wasabi Service for the purposes of conducting comparative analysis, evaluations or product benchmarks with respect to the services and will not publicly post any analysis or reviews of the services without Wasabi’s prior written approval. A receiving party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.

Confidential Information excludes information that: (a) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (b) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (c) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; (d) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (e) is Your Content, which shall instead by governed by the terms of the DPA. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law, legal process or government regulation, provided that, where legally permitted to do so, it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.

Notwithstanding any other provision of this Agreement, both parties acknowledge that any unpermitted use of the disclosing party’s Confidential Information may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use. Either party may request the other party return or destroy their Confidential Information at any time, except such Confidential Information retained through industry-standard automatic archival processes.

7.  Term; Termination; Suspension

7.1 Term. 

(a) Agreement Term. Subject to the provisions of Section 7.2, the term of your access to the Wasabi Service will continue for so long as you have an active and fully paid-up Customer Account (the “Term”).

(b) Reserved Capacity Storage Order Form Term. For RCS purchases, the term of the Order Form will be as set forth in the applicable quote or other ordering document. The term of any Ordre Form will not automatically renew. A new Order Form must be executed prior to the expiration of the then-current Order Form term or your account may be terminated.

7.2 Termination.

(a)  Termination For Convenience.  Either party may terminate this Agreement and your Customer Account for any reason by providing the other party at least thirty (30) days’ advance notice, provided, however, if you have elected the Reserved Capacity prepaid Wasabi Service, you remain responsible for all fees due for the balance of the then-current reserved capacity term, and you shall not be entitled to any refunds.  

(b) Termination for Cause.

(i) By Either Party. Either party may immediately terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of thirty (30) days from receipt of notice by the other party. 

(ii) By Wasabi. We may also terminate this Agreement immediately upon notice to you (A) if our relationship with Affiliates and/or a third-party who provides Software or other technology we use to provide the Wasabi Service expires, terminates or requires us to change the way we provide the Software or other technology as part of the Wasabi Service, or (B) in order to comply with law.

7.3 Effect of Termination of this Agreement.  Upon termination: (a) all of your rights under this Agreement, any active Order, and your Customer Account immediately terminate; (b) you remain responsible for all fees and charges you have incurred through the termination date (including Reserved Capacity Fees); (c) you will immediately return or, if instructed by us, destroy all Wasabi content in your possession; (d) you will uninstall or destroy any Software, and will delete and cease all use of any Software creations or outputs such as tags or other metadata, and provide written certification of such; (e) those terms intended to survive termination shall continue to apply in accordance with their terms; (f) Wasabi may immediately terminate your Account and delete Your Content.

7.4 Suspension and Termination of Your Account; Deletion. 

(a) Suspension. We may immediately suspend (in our sole discretion) your Account or any Authorized User’s right to access or use any portion or all of the Wasabi Service if we determine you or your Authorized User’s: (i) are in violation of the Acceptable Use Policy, (ii) pose a security risk to Wasabi, the Wasabi Service, any other Wasabi customer, or any third party, (iii) could adversely impact our systems, the Wasabi Service or the systems or content of any other Wasabi customer, or (iv) could subject us, our Affiliates, or any third party to civil or criminal liability; (v) are in material breach of this Agreement; (vi) provide registration information that is inaccurate, untrue or incomplete; (vii) fail to maintain the security of any access credentials; or (viii) have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

(b) Effect of Suspension. If we suspend your Account or use of any portion or all of the Wasabi Service as permitted under this Agreement: (i) you remain responsible for all Fees and charges you incur during the period of suspension, and (ii) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension. If the conditions underlying the suspension are not cured within 30 days of our notice to you, Wasabi may immediately terminate your Account and delete Your Content.

(c) Failure to Pay. Notwithstanding any other terms set forth in this Section 7, if you (or the channel partner through which you purchased the Service) fail to make any payment as set forth in this Agreement, we reserve the right to immediately suspend your Account upon notice to you. You are required to make payment of all outstanding amounts before your Account will be re-enabled. If you fail to respond to the first notice of payment failure, we will provide a final notice that if outstanding amounts are not paid in full within twenty-four (24) hours of delivery of the second notice, we reserve the right to delete your Account and Your Content within seventy-two (72) hours from such final notice.

8.  Indemnification

8.1 Your Indemnity Obligations. You will defend, indemnify, and hold harmless us, our Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) arising out of or relating to any third-party claim concerning: (a) your or any Authorized Users’ use of the Wasabi Service (including any activities under your Customer Account and use by your Authorized Users); (b) violation of applicable law, rule or regulation by you, your Authorized Users or Your Content; (c) your failure to pay any applicable Taxes; and (d) any claim alleging that any of Your Content infringes or misappropriates any privacy or third party intellectual property rights.

8.2 Wasabi Indemnity Obligations.

(a) Subject to the limitations in this Section 8, Wasabi will defend you and your employees, officers, and directors against any third-party claim alleging that the Wasabi Service infringes or misappropriates a third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement agreed to by Wasabi in writing. 

(b) We will have no obligation or liability under this Section 8.2 arising from infringement by combinations of the Wasabi Service with any other product, service, software, data, content or method. In addition, Wasabi will have no obligations or liability arising from your or any Authorized User’s use of the Wasabi Service after Wasabi has notified you to discontinue such use. The remedies provided in this Section 8.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Wasabi Services.

(c) For any claim covered by Section 8.2(a), Wasabi will, at its election, either: (i) procure the rights to use that portion of the Wasabi Service alleged to be infringing; (ii) replace the alleged infringing portion of the Wasabi Service with a non-infringing alternative; (iii) modify the alleged infringing portion of the Wasabi Service to make it non-infringing; or (iv) terminate the allegedly infringing portion of the Wasabi Services and this Agreement.

8.3 Process. The obligations under this Section 8 will apply only if the indemnified party: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

9.  Disclaimers

THE WASABI SERVICE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT OF ANY STATUTORY RIGHTS THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS: (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE WASABI SERVICE OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE WASABI SERVICE OR ANY THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY OF YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

10.  Limitations of Liability

EXCEPT IN THE CASE OF WILLFUL MISCONDUCT OR FRAUD, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION.

EXCEPT IN THE CASE OF WASABI’S WILLFUL MISCONDUCT OR FRAUD, WASABI AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY WASABI UNDER THIS AGREEMENT FOR THE WASABI SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. IF THE WASABI SERVICE (OR ANY OTHER WASABI PRODUCT) IS PROVIDED TO YOU WITHOUT CHARGE, THEN WASABI WILL HAVE NO LIABILITY TO YOU WHATSOEVER.

YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF WASABI SERVICE. THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

11.  Modifications to the Agreement

We may modify this Agreement (including any policies or any links referenced herein) at any time by posting a revised version on the Wasabi website or by otherwise notifying you in accordance with Section 12.10, provided however, that any such modification: (a) to the DPA will not materially diminish the security measures or technical and organization measures set forth therein; (b) to the SLA will not materially diminish Customer’s rights and (c) to the AUP or Documentation will not materially increase Customer’s obligations.  Subject to the foregoing, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Wasabi Service after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Wasabi website regularly for modifications to this Agreement.

12.  Miscellaneous

12.1 Assignment. You may not assign or otherwise transfer this Agreement or any of the rights and obligations under this Agreement, without Wasabi’s prior written consent. Any assignment or transfer, or attempt thereof, in violation of this Section 12.1 will be void. Notwithstanding the foregoing, either party may assign this Agreement to an Affiliate, or to any entity that acquires by sale, merger or otherwise, all or substantially all or a portion of such party’s assets, stock or business. If another entity merges with or acquires Wasabi, or all, substantially all or a portion of our assets, stock or business you agree your encrypted stored data and information that Wasabi has collected from you, including personally identifiable information, may be transferred, and you consent to the secure transfer of such information, to such successor or assignee. “Affiliate” means any corporation, partnership or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with such party. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.

12.2 Affiliates, Subcontractors and Vendors. Some or all of the Wasabi Service, including support services, may be provided by Wasabi’s Affiliates, agents, subcontractors and information system vendors. The rights and obligations of Wasabi may be, in whole or in part, exercised or fulfilled by the foregoing entities, provided that Wasabi remains responsible for compliance with this Agreement.

12.3 Entire Agreement. This Agreement incorporates any policies or other information found at the published links by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement including those: (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this Agreement are inconsistent with the terms contained in documents referenced or linked herein, the terms contained in such documents will control.

12.4 Force Majeure. We and our Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, epidemics, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

12.5 Governing Law. The laws of the Commonwealth of Massachusetts, without reference to conflict of law rules, governs this Agreement and any dispute of any sort that might arise between the parties. Disputes arising under this Agreement shall be brought exclusively in the state or federal courts of Massachusetts. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

12.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Wasabi Service, including your transfer and processing of Your Content, the provision of Your Content to Authorized Users, and the Wasabi region in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.

12.7 Independent Contractors. Both parties are independent contractors with respect to each other.

12.8 Non-Exclusive Rights. Both parties reserve the right: (a) to develop or have developed for it: products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.

12.9 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

12.10 Notice.

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Wasabi website; or (ii) sending a message to the email address then associated with your account. You agree that all disclosures, notices and communications are considered received by you within twenty-four (24) hours of the time posted to Wasabi’s website, or within twenty-four (24) hours of the time emailed to you. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under this Agreement, you must contact Wasabi as follows: (i) by email transmission to legal@wasabi.com; or (ii) by personal delivery, overnight courier or registered or certified mail to either Wasabi Technologies LLC, the attention of the Legal Department and CFO. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.

12.11 No Third-Party Beneficiaries. This Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

12.12 No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit a party’s right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.

12.13 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect.

12.14 Marketing. Each party may use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in connection with the Wasabi Service and only during the Term. Any other use of a party’s Brands requires such party’s prior written consent.

12.15 Export Controls. Your use of the Wasabi Service is subject to compliance with United States and other applicable export control and trade sanctions laws, rules and regulations (collectively, “Export Control Laws”). You will not export, reexport, download or otherwise transmit the Wasabi Service, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, you acknowledge that the Wasabi Services, or any part thereof, may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government (“Sanctioned Countries”); or (b) anyone identified on any U.S. Government restricted party lists (collectively, “Restricted Party Lists”). By purchasing the Wasabi Service, you represent and warrant that you are not located in any Sanctioned Country or on any Restricted Party List. You acknowledge that the Wasabi Service may not be available in all jurisdictions and that you are solely responsible for complying with applicable Export Control Laws related to the manner in which you choose to use the Wasabi Service, including your transfer and processing of Your Content and the region in which any of the foregoing occur.

12.16 Electronic Communications. By using Wasabi Service, you consent to receive electronic communications to the email address provided in your Customer Account. It is your responsibility to keep your email address current for notice purposes. You agree that any communications that Wasabi provides to you electronically satisfies any legal requirement that such communications be in writing.

12.17 Survival. The provisions of this Agreement that are clearly intended by their nature to survive termination, shall survive the expiration or termination of this Agreement, including but not limited to Customer’s payment obligations and each party’s indemnity obligations.