Terms of Service | Giraffe360

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1. INTRODUCTION

Giraffe360 offers a service that:

(a) allows users to create high-dynamic-range images, 3D scans and videos of properties, and to collect data relating to such properties using Giraffe360 camera equipment (each such image, scan, video or captured data set being a “Capture Asset“);

(b) processes such Capture Assets through a cloud-based production service to create virtual tours, floorplans and other high-quality photography (collectively, the “Giraffe360 Content“); and

(c) makes such Giraffe360 Content available to you to view, download and manage through a content management platform that Giraffe360 makes available as a service at Giraffe360.com/app (the “Content Management System“), (collectively, the “Giraffe360 Service“).

This Agreement (comprising the Order Form and these Terms of Service) sets out the terms and conditions upon which you may use the Giraffe360 Service, Giraffe360’s camera equipment and Giraffe360 Content, and any application or functionality Giraffe360 makes available through the Giraffe360 Service.

Revisions to these Terms of Service. These Terms of Service may be revised at any time by updating this posting. You should visit this page from time to time to review the then current Terms of Service because they are binding on you. Certain provisions of these Terms of Service may be superseded by legal notices or terms located on particular pages of this Website. YOUR CONTINUED USE OF THE SITE AFTER CHANGES ARE MADE SHALL BE CONSIDERED YOUR ACCEPTANCE TO THE REVISIONS.

By signing an Order Form, you agree to and accept these Terms of Service and the Order Form.

2. information about Giraffe360

The Giraffe360 Service is provided by Giraffe360, Inc., a Delaware Corporation, with a registered address at 1209 Orange Street, Wilmington, DE 19801 (“Giraffe360“).

3. INTERPRETATION

3.1. In these Terms of Service, except where the context expressly requires otherwise, the following terms shall have the following meanings:

“Additional Services” means the additional services to be provided by Giraffe360 to the Client, as agreed between the parties and described in the Order Form;

“Additional Services Fee” means the amount set forth in the Order Form relating to the provision of the Additional Services;

“Agreement” means the agreements between the Client and Giraffe360, comprised of the Order Form and the Terms of Service, for the provision of the Giraffe360 Service;

“Billing Period” means the period specified in the Order Form;

“Business Day” means any day other than a Saturday, Sunday or bank holiday;

“Camera Unit” means the digital camera and equipment that Giraffe360 makes available for the capturing of high-quality images and digital information and automatic uploading of such images and information to the Content Management System, including but not limited to the tripod, cables and carrying bag;

“Capture Asset” has the meaning specified in the Introduction;

“Capture Session” means the period of time commencing on the activation of each Camera Unit and until the next deactivation of such Camera Unit;

“Change Plan” has the meaning specified in Section 9.2;

“Change Request” has the meaning specified in Section 9.1;

“Client” or “you” means the person identified on the Order Form;

“Client Account” means an account with an ID and password that the Client uses to access the Content Management System;

“Client Data” means the Giraffe360 Content and any other content or data that the Client makes available to Giraffe360 and that is hosted by Giraffe360 in connection with the provision of the Giraffe360 Service;

“CMS Access Fee” means the amount specified in the Order Form, or such other amount that the parties may agree to, relating to the Client’s ongoing access to the Content Management System following termination of all Subscriptions;

“CMS Access Period” means the period commencing on the Delivery Date (or, where the Client orders multiple Subscriptions, the earliest Delivery Date) and ending on the later of:

(a) the date on which all Subscriptions under the Agreement expire or are terminated; or

(b) if the Client notifies Giraffe360 that it wishes to continue having access to the Content Management System after the date specified in subsection (a), the date on which the Agreement is terminated in accordance with Section 4.4 or Section 16;

“Confidential Information” means information which is identified as confidential or proprietary by either party, or that would be considered confidential or proprietary by a reasonable person given the nature of the information or the circumstances of its disclosure, as further set forth in Section 12;

“Content Management System” has the meaning specified in the Introduction;

“Data Fee” means the amount specified in the Order Form, or such other amount as the parties may agree, relating to the Client’s use of the Content Management System;

“Delivery Address” means the address specified in the Order Form, or such other location as the parties may agree in writing;

“Delivery Charges” means the amounts specified in the Order Form relating to the delivery of the Camera Units to the Client and return of the Camera Units by the Client;

“Delivery Date” means the date on which a Camera Unit is delivered to the Client at the Delivery Address;

“Security Deposit” means the amount specified in the Order Form;

“DPA” has the meaning specified in Section 11.1;

“Extended Renewal Date” means the date that is the last day of an Extended Subscription Period;

“Extended Subscription Period” has the meaning specified in Section 4.3;

“Fees” means the Subscription Fees and, where applicable, the Delivery Charges, Set-up Fees, Data Fees, Additional Services Fees, CMS Fees and Overage Fees;

“First Billing Period” means:

(a) in relation to a Subscription, the Billing Period commencing on the first day of the Initial Subscription Period;

(b) in relation to the payment of Overage Fees and Data Fees, the Billing Period commencing on the Delivery Date or, where the Client orders multiple Subscriptions, the earliest Delivery Date; or

(c) in relation to the CMS Access Fee, the Billing Period commencing on the day after the termination or expiration of all Subscriptions;

“Giraffe360 Content” has the meaning specified in the Introduction;

“Giraffe360 Service” has the meaning specified in the Introduction;

“Group” means, in relation to a corporation, partnership, limited liability company, joint venture, trust, association, organization, or other corporate entity, that corporate entity and any corporate affiliate of such corporate entity;

“Initial Renewal Date” means the date that is the last day of the Initial Subscription Period;

“Initial Subscription Period” means the period specified in the Order Form;

“Invoice Due Period” means the period specified in the Order Form;

“Order Form” means the order form signed (whether electronically or otherwise) by the parties, and which, amongst other things, identifies the Client and sets out the Fees;

“Overage Charging Period” means:

(a) the Initial Subscription Period (or, where the Client orders multiple Subscriptions, the period commencing on the earliest Delivery Date and ending on the latest Initial Renewal Date); or

(b) an Extended Subscription Period (or, where the Client orders multiple Subscriptions, the period commencing on the latest Initial Renewal Date or latest previous Extended Renewal Date (as applicable) and ending on the next Extended Renewal Date);

“Overage Fee” means the amount specified in the Order Form, or such other amount that the parties may agree, payable by the Client in respect of any Projects created and managed by the Client through the Giraffe360 Service in excess of the Project Limits;

“Prepayment Fee” means the amount set out in the Order Form, or such other amount that the parties may agree, payable by the Client and refundable by Giraffe360 as set out in clause 14.3.

“Prohibited Personal Information” means any of the following:

(a) personally identifiably financial information as defined by and subject to the Gramm-Leach-Bliley Financial Modernization Act of 1999;

(b) documents or information relating to court, tribunal or arbitration proceedings;

(c) cardholder or sensitive authentication data (as defined in the Payment Card Industry Data Security Standard) or information relating to an individual’s finances;

(d) national identity or other government issued identity numbers (including, without limitation, Social Security Numbers);

(e) education records, as defined under the Family Educational Rights and Privacy Act of 1974;

(f) information relating to children under the age of thirteen (13) that would be subject to the Children Online Privacy Protection Act;

(g) protected health information subject to the Health Insurance Portability and Accountability Act;

(h) information revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, sexual orientation, sex life, biometric data (including any videos or photos of natural persons); or

(i) any other information or documents that are either marked as sensitive, private or confidential or that would reasonably be considered as sensitive, private or confidential;

“Project” means a collection of up to forty (40) Capture Assets created:

(a) by the Client using the Giraffe360 Service from images and information collected by a Camera Unit in a single Capture Session in a single property;

(b) by the Client merging the Capture Assets in relation to the same property from multiple Capture Sessions, using the Content Management System within a twenty-four (24) hour period from the date of the first Capture Assets being uploaded to the Content Management System; or

“Project Limits” means the maximum number of Projects that the Client may have during an Overage Charging Period without being subject to Overage Fees, as specified in the Order Form;

“Set-up Services” means the services described in the Order Form, and any other configuration required to enable the Client to use the Giraffe360 Service;

“Subscription” means the Client’s right to use and access Giraffe360 Service subject to these Terms of Service;

“Subscription Fee” means the amount specified in the Order Form, or such other amount as notified by Giraffe360 to the Client under Section 4.4, relating to the Client’s use of and access to the Giraffe360 Service;

“Subscription Fee” means the amount specified in the Order Form, or such other amount as notified by Giraffe360 to the Client under Section 14.2;

“Terms of Service” means these terms and conditions of service, as amended from time to time;

“Third Party Sites” has the meaning specified in Section 8.3;

“Virus” means any thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware, or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including works, Trojan horses, viruses and other similar things or devices.

4. DURATION AND SUBSCRIPTION PERIODS

4.1. The Agreement shall commence on the date the Client signs (electronically or otherwise) the Order Form and shall continue for the CMS Access Period.

4.2. Each Subscription shall commence on the applicable Delivery Date and shall continue, unless and until it is terminated in accordance with Section 4.3 or Section 16, for the applicable Subscription Period.

4.3. Each Initial Subscription Period shall automatically extend for a further period of the same duration as the Initial Subscription Period (an “Extended Subscription Period“) at the end of the Initial Subscription Period and at the end of each Extended Subscription Period thereafter, unless either party gives written notice to the other party to terminate the relevant Subscription at the end of the Initial Subscription Period or the then-current Extended Subscription Period (as applicable), such notice to be given no later than thirty (30) days prior to the termination or expiration of the Initial Subscription Period or Extended Subscription Period (as applicable).

4.4. After termination of all Subscriptions under the Agreement, either party may terminate the Agreement upon giving to the other not less than thirty (30) days’ written notice.

5. USE AND CARE OF CAMERA UNITS

5.1. Giraffe360 shall grant to the Client Subscription as agreed between the Parties in n) the Agreement.

5.2. Subject to the payment to Giraffe360 of the Delivery Charges and Prepayment Fees (and, where applicable, the Security Deposit) in relation to each Subscription, Giraffe360 shall deliver and make available such number of Camera Unit(s) to the Client specified in the Order Form for the applicable Subscription Period.

5.3. All Camera Units shall at all times remain the property of Giraffe360 and the Client shall have no right, title or interest in or to the Camera Units (except the right to possession and use of the Camera Units subject to the terms and conditions of the Agreement).

5.4. The risk of loss, theft, damage or destruction of a Camera Unit shall be borne by the Client as of the transfer of physical possession of the Camera Unit to the Client or to anyone who accepts delivery of the Camera Unit on behalf of the Client at the Delivery Address. Each Camera Unit shall remain at the sole risk of the Client during the applicable Subscription Period, and any further period until such time as the Camera Unit is returned and delivered to Giraffe360 (the “Risk Period“).

5.5. The Client shall give immediate written notice to Giraffe360 in the event of any loss of or damage to the Camera Unit arising out of or in connection with the Client’s possession or use of the Camera Unit.

5.6. The Client shall, in respect of each Subscription:

(a) maintain at its own expense each Camera Unit in as good an operating condition (except for normal wear and tear) as it was in on the Delivery Date;

(b) take such steps as may be necessary to ensure, so far as is reasonably practicable, that each Camera Unit is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;

(c) not make (or permit any other person to make) any repair or alternation to the Camera Unit without the written consent of Giraffe360;

(d) keep Giraffe360 fully informed of all material matters relating to the Camera Unit;

(e) permit Giraffe360 or its duly authorized representative to inspect the Camera Unit at all reasonable times and for such purpose to enter upon any premises at which the Camera Unit may be located, and shall grant reasonable access and facilities for such inspection;

(f) not, without the prior written consent of Giraffe360, part with control or possession of (including for the purposes of repair or maintenance), sell or offer for sale, underlet or lend the Camera Unit or allow the creation of any mortgage, charge, lien or other security interest in respect of it;

(g) not do or permit to be done any act or thing which will or may jeopardize the right, title and/or interest of Giraffe360 in the Camera Unit;

(h) not suffer or permit the Camera Unit to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process; if any Camera Unit are so confiscated, seized or taken, the Client shall notify Giraffe360 and the Client shall at its sole expense use its best efforts to procure an immediate release of the Camera Unit and pursuant to Section 20, shall indemnify Giraffe360 on demand against all losses, costs, charges, damages and expenses incurred as a result of such confiscation;

(i) not use the Camera Unit for any unlawful, illegal or unethical purpose;

(j) ensure that at all times the Camera Unit remain identifiable as being Giraffe360’s property and wherever possible shall ensure that a visible sign to that effect is attached to the Camera Unit; and

(k) return and deliver each Camera Unit at the end of the applicable Subscription or on earlier termination of that Subscription to such address as Giraffe360 requires, or if necessary allow Giraffe360 or its representatives access to the Client’s premises or any premises where the Camera Unit is located for the purpose of removing the relevant Camera Unit.

6. SET-UP SERVICES AND ADDITIONAL SERVICES

6.1. Giraffe360 shall provide any Set-up Services and Additional Services to the Client with reasonable skill and expertise, in accordance with the Agreement.

6.2. In performing the Set-up Services and Additional Services, Giraffe360 shall comply with the Client’s reasonable instructions, and the Client shall provide Giraffe360 with access to any premises, information or systems as Giraffe360 may reasonably require in order to provide the Set-up Services and/or Additional Services.

7. ACCESS TO THE CONTENT MANAGEMENT SYSTEM

7.1. Giraffe360 grants the Client a non-exclusive, non-sublicensable, non-transferable licence, during the CMS Access Period, to access and use the Content Management System solely in accordance with and subject to the terms and conditions of the Agreement.

7.2. The Client must:

(a) treat any username and password used to access the Content Management System or Client Account as Confidential Information;

(b) not disclose such information to any third party; and

(c) take appropriate safeguards in accordance with good industry practice to prevent unauthorized access to the Content Management System.

7.3. The Client is responsible for maintaining the confidentiality of its login details for its Client Account and for any activities that occur under its Client Account.

7.4. Giraffe360 encourages the Client to use “strong” passwords (using a combination of upper and lower case letters, numbers and symbols) with its Client Account.

7.5. The Client must prevent any unauthorized access to, or use of, the Content Management System, and must promptly notify Giraffe360 in the event of any such unauthorized access or use. If the Client has any concerns about the login details for its Client Account, or thinks any of them may have been misused or stolen, the Client shall notify Giraffe360 in writing at support@giraffe360.com.

8. CLIENT’S OBLIGATIONS WITH RESPECT TO GIRAFFE360 SERVICE

8.1. The Client:

(a) must comply with all applicable laws and regulations with respect to its use of the Giraffe360 Service and its activities under the Agreement;

(b) must use the Giraffe360 Service in accordance with the terms of the Agreement;

(c) must notify Giraffe360 in writing if there are any changes to any of the Client’s contact details as set forth in the Order Form;

(d) must ensure that its network and systems, including its internet browser and operating systems, comply with any relevant specifications provided by Giraffe360 in writing (including e-mail) from time to time;

(e) is solely responsible for procuring and maintaining its network connections and telecommunications links from its systems in order to access and use the Giraffe360 Service; and

(f) must not do, or allow any other persons to do, any of the following:

(i) access, store, distribute, or transmit any Virus through the Giraffe360 Service;

(ii) use the Giraffe360 Service to access, store, distribute, or transmit any material that is unlawful, harmful, threatening, defamatory, inflammatory, violent, obscene, infringing, harassing, or racially or ethnically offensive;

(iii) use the Giraffe360 Service in a manner that is illegal or causes damage or injury to any person or property;

(iv) use any automated system, including without limitation “robots”, “spiders”, or “offline readers”, to access the Giraffe360 Service in a manner that sends more request messages to the Giraffe360 Service than a human can reasonably produce in the same period of time by using a conventional online web browser;

(v)attempt to interfere with or compromise the integrity or security of the Giraffe360 Service,

and Giraffe360 reserves the right, without liability or prejudice to its other rights under the Agreement, to disable the Client Account or access to all or any part of the Giraffe360 Service by the Client, for any breach of any provision of this Section 8.1(f).

8.2. Giraffe360 may monitor the Client’s use of the Giraffe360 Service to ensure the quality of, and improve, the Giraffe360 Service, and verify the Client’s compliance with the Agreement.

8.3. The Giraffe360 Service may contain links to, or call the servers of, third party websites, data or services that are not under Giraffe360’s control, solely at the direction of and/or as a convenience to the Client (“Third Party Sites“). As such, Giraffe360 is not responsible for, and makes no express or implied warranties with regard to, the information, content or other material, products, or services that are contained on or are accessible through, or the policies regarding use and privacy in respect of, Third Party Sites. Access to and use of Third Party Sites, including information, content, material, products, and services on such websites or available through such websites, is solely at the Client’s risk.

9. CHANGES TO THE SERVICE FEATURES

9.1. If the Client wishes to make a change to the Giraffe360 Service, it shall submit details of the requested change in writing to Giraffe360 (a “Change Request“).

9.2. Following receipt of a change request, Giraffe360 shall, within a reasonable time, provide the Client with a written estimate of:

(a) the time required to implement the change;

(b) the impact the proposed changes would have on the Fees, and any other additional costs to be paid by the Client in order to implement the change;

(collectively, the “Change Plan“).

9.3. The Client shall notify Giraffe360 within two (2) weeks of receiving the Change Plan whether it wishes to proceed with the changes specified in the Change Request in accordance with the Change Plan.

9.4. Subject to Section 19, Giraffe360 shall not make any changes to the Giraffe360 Service unless it receives confirmation from the Client in accordance with Section 9.3.

10. INTELLECTUAL PROPERTY RIGHTS

10.1. Except as expressly set forth in this Agreement, Giraffe360 does not grant to the Client any rights to or licenses in respect of the Giraffe360 Service.

10.2. The parties agree that all rights in and to the Giraffe360 Content shall, on creation of the rights, vest in Giraffe360. To the extent that any rights in and to the Giraffe360 Content vest in the Client by operation of law, the Client shall assign, and hereby assigns to Giraffe360 all such rights to the Giraffe360 Content absolutely and with full title guarantee.

10.3. Giraffe360 grants to the Client a royalty-free, perpetual, non-exclusive, transferable, sublicensable licence to copy, reproduce, adapt, make derivative works from and distribute the Giraffe360 Content created in connection with the Client’s use of the Giraffe360 Service.

10.4. Except as expressly set forth in this Agreement, the Client will not, when using the Giraffe360 Service:

(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Giraffe360 Service in any form or media or by any means;

(b) attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Giraffe360 Service;

(c) access all or any part of the Giraffe360 Service in order to build a product or service which competes with the Giraffe360 Service, or use or attempt to use the Giraffe360 Service to directly compete with Giraffe360; or

(d) erase or remove any proprietary or intellectual property notice contained in the Giraffe360 Service.

10.5. Giraffe360 may use the Client’s name, logo, and related trade marks in any of Giraffe360’s advertising or marketing materials (whether in printed or electronic form) for the purpose of highlighting that the Client uses the Giraffe360 Service and alongside any testimonials that the Client has agreed to give. The Client grants Giraffe360 such rights as are necessary to use it name, logo, related trademarks and testimonials for the purpose of this Section 10.5.

10.6. The Client agrees to provide regular feedback to Giraffe360 in relation to its use of the Giraffe360 Service. By submitting feedback, the Client acknowledges that Giraffe360 may use and allow others to use this feedback in the Giraffe360 Service or otherwise without any restriction and without payment of any kind to the Client.

11. DATA PROTECTION

11.1. The Client shall ensure that the Captured Assets do not contain any Prohibited Personal Information.

11.2. Without prejudice to Section 11.1, the Client:

(a) must notify Giraffe360 if the Giraffe360 Content contains any Prohibited Personal Information that is not blurred or otherwise obfuscated or rendered illegible; and

(b) shall ensure that it does not distribute or otherwise make publicly available any Giraffe360 Content containing Prohibited Personal Information unless that Prohibited Personal Information is blurred or otherwise obfuscated or rendered illegible.

11.3. The terms set out in Schedule 1 (the “DPA“) shall apply to the processing of any personal information (as defined in the CCPA) contained in the Client Data by Giraffe360 as a result of hosting the Client Data or otherwise as a result of the Client’s use of the Giraffe360 Service, to the extent that such personal information falls within the scope of the CCPA.

11.4. For the purposes of this Agreement, the term “CCPA” has the meaning given to it in the DPA.

12. CONFIDENTIAL INFORMATION

12.1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Agreement. A party’s Confidential Information shall not be deemed to include information that:

(a) is or becomes publicly known other than through any act or omission of the receiving party;

(b) was in the other party’s lawful possession before the disclosure;

(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or

(e) is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.

12.2. Each party shall hold the other party’s Confidential Information in confidence and, unless required by law, shall not make the other party’s Confidential Information available for use for any purpose other than as needed to perform or enforce the terms of the Agreement.

12.3. Each party shall take all reasonable steps to ensure that the other party’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.

12.4. Each party shall take a backup of its own Confidential Information and shall not be responsible to the other party for any loss, destruction, alteration, or disclosure of Confidential Information.

13. SECURITY DEPOSIT

13.1. Where the Client and Giraffe360 agree, in the Order Form, that the Client shall pay a Security Deposit to Giraffe360:

(a) the Client shall pay the Security Deposit promptly following the date on which the Client signs the Order Form and agrees to these Terms of Service;

(b) the Security Deposit is a deposit against any loss of or damage caused to the Camera Units while in the Client’s possession;

(c) if the Client causes any loss or damage to the Camera Units (in whole or in part), other than reasonable wear and tear, Giraffe360 shall be entitled to apply the Security Deposit against any such loss or damage;

(d) the Client shall pay to Giraffe360 any sums deducted from the Security Deposit within ten (10) days of a demand for the same;

(e) subject to the return of the Camera Unit(s) to which the Security Deposit relates, and any amounts that Giraffe360 may deduct from the Security Deposit in accordance with Sections 13.1(b) and 13.1(c), Giraffe360 shall refund the Security Deposit (or balance thereof) within ten (10) Business Days of the termination or expiration of the Agreement.

14. FEES AND PAYMENT

14.1. The Client will pay Fees as set forth in the Order Form.

14.2. Except as expressly agreed to in writing between the parties, Giraffe360 shall submit to the Client an invoice:

(a). in respect of each Subscription:

(i) promptly following the date on which the Client signs the Order Form and agrees to these Terms of Service, in respect of the Prepayment Fees together with the Delivery Charges and any Set-up Fees and, if applicable, Additional Services Fees;

(ii) promptly on or around the Delivery Date, in respect of the Subscription Fees due for the First Billing Period, together with Additional Services Fees as applicable, less Prepayment Fees paid by the Client upon signing the Order Form;

(iii) thereafter, each Billing Period in respect of the Subscription Fees due for the following Billing Period, together with Additional Services Fees as applicable;

(b) in respect of any Data Fees and Overage Fees due in the First Billing Period or subsequent Billing Periods, at the end of the First Billing Period or such subsequent Billing Period; and

(c) in respect of the CMS Access Fee due for the Client’s continued use of the Content Management System following termination of all Subscriptions, on the first day of the First Billing Period and each subsequent Billing Period during the remainder of the CMS Access Period.

14.3. Giraffe360 shall calculate any Overage Fees due in the First Billing Period or subsequent Billing Periods based on its reasonable projection of the number of Projects that the Client will have during the relevant Overage Charging Period. At the end of each Overage Charging Period, Giraffe360 shall either charge or refund (as applicable) the Client the difference between the Overage Fees paid and the Overage Fees due for that Overage Charging Period. Any refund issued under this Section 14.3 may be in the form of a credit note applied by Giraffe360 against any other Fees due to Giraffe360 at the end of the relevant Billing Period.

14.4. The Client shall pay all invoices within the Invoice Due Period following the date of the relevant invoice. If Giraffe360 has not received payment in full within the Invoice Due Period following the date of the relevant invoice, and without prejudice to any other rights and remedies available to Giraffe360:

(a) Giraffe360 may, without liability to the Client, suspend or temporarily disable all or part of the Client’s access to or use of the Giraffe360 Service and Giraffe360 shall be under no obligation to provide any access to the Giraffe360 Service while the relevant sum remains unpaid;

(b) interest shall accrue on such due amounts at an annual rate equal to four per cent (4%) above the then current base rate as reported by The Wall Street Journal in effect on the due date for payment of the relevant Fees, commencing on the due date for payment and continuing until the Fees have been paid in full, whether before or after judgment; and

(c) the Client shall reimburse Giraffe360 for all reasonable costs and expenses (including reasonable attorney fees) incurred by Giraffe360 in collecting any overdue amounts.

14.5. All amounts and Fees stated or referred to in the Agreement are payable in the currency specified in the Order Form, and are exclusive of any and all excise, sales, use, VAT, and other similar taxes and duties. The Client shall be responsible for the collection, remittance, and payment of any and all taxes, charges, levies, assessments, and other fees of any kind imposed by any federal, state, or local governmental or regulatory authority or other authority in respect of its use of the Giraffe360 Service, including (where applicable) payment of any customs fees or other similar duties related to the importation of any Camera Units. Giraffe360 shall not be responsible for the payment of any taxes on Client’s income.

15. AVAILABILITY AND SUPPORT

15.1. Giraffe360 will use commercially reasonable efforts to:

(a) make the Giraffe360 Service available with an uptime rate of 98%;

(b) process Capture Assets into Giraffe360 Content within seventy-two (72) hours of such Capture Assets being uploaded (and merged, if applicable) to the Content Management System,

except for planned maintenance for which twenty-four (24) hours’ notice will be given or unscheduled maintenance during normal business hours (EST time) or otherwise, for which Giraffe360 will use commercially reasonable efforts to give the Client advance notice.

15.2. Giraffe360 will use reasonable efforts to provide a level of support and advice on the use of the Giraffe360 Service that is appropriate to the nature of any issues requiring support or advice during normal working hours (EST time).

15.3. The Client shall provide all support reasonably required by Giraffe360 to perform its obligations under this Section 15, including providing reasonably detailed descriptions of issues and updates on the performance of the Giraffe360 Service.

16. SUSPENSION AND TERMINATION

16.1. Without prejudice to any other rights or remedies available to Giraffe360, if the Client fails to pay any sum due to Giraffe360 and such sum remains outstanding for a further thirty (30) days following notice requiring such sum to be paid, Giraffe360 may immediately terminate the Agreement on giving notice to the Client, without liability for Giraffe360 to the Client.

16.2. Without prejudice to any other rights and remedies available to Giraffe360, Giraffe360 may terminate the Agreement by notice with immediate effect, or such notice as Giraffe360 may in its sole discretion elect to give, if the Client:

(a) infringes Giraffe360’s intellectual property rights in the Giraffe360 Service;

(b) is in breach of Sections 10.4 and 12;

16.3. Without prejudice to any other rights and remedies available to Giraffe360, Giraffe360 may immediately suspend any Client Account, and the Client’s right to access and use the Giraffe360 Service without giving prior notice to the Client, if:

(a) the Client is in material or persistent breach of any of the terms of the Agreement;

(b) in Giraffe360’s reasonable determination, the Client is suspected of being in material breach of any of the terms of the Agreement,

and for the purposes of this Section 16.3, the parties acknowledge that any breach of Sections 10.4 and 12 will be a material breach of the Agreement.

16.4. Without prejudice to any other rights and remedies available to it, either party may terminate the Agreement at any time with immediate effect on giving notice in writing to the other party, if that other party:

(a) is in material or persistent breach of any of the terms of the Agreement and either that breach is incapable of remedy, or, if capable of remedy, the other party fails to remedy the breach within thirty (30) days after receiving written notice requiring it to remedy the breach; or

(b) is unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors, or becomes insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution, or becomes subject to any proceedings (whether voluntary or involuntary) under any bankruptcy or similar law, or has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets..

16.5. If Giraffe360 fails to deliver one or more Camera Units within two (2) weeks of the estimated delivery timeframe specified in the applicable Order Form(s), the Client may cancel its Subscription related to the particular undelivered Camera Unit. As its sole remedy for Giraffe360’s failure to timely deliver a Camera Unit, the Client may receive (upon written request) a full refund of all paid Fees (including the Prepayment Fee, Delivery Charges and (if applicable) the Security Deposit) regarding the undelivered Camera Unit(s). Client is entitled to such a refund only in case of non-delivery and may not claim the refund if the Camera Unit is eventually received (even if delayed) and the Client has not cancelled its Subscription before having received it. Giraffe360 shall be under no obligation to pay any interest or other contractual penalties on the refunded Fees. Cancelation of Subscription due to delayed delivery of one or more Camera Units does not affect other Client’s Subscriptions.

16.6. Giraffe360 shall permit the Client to download any Client Data (other than any Giraffe360 Content that is not supported or usable outside of the Giraffe360 Service) from the Giraffe360 Service for a period of three (3) days after the expiration or termination of the Agreement. Other than with respect to any Giraffe360 Content contained within the Client Data, Giraffe360 may thereafter:

(a) delete any Client Data at any time;

(b) retain Client Data upon expiration or termination of the Agreement in order to comply with applicable law, or as Giraffe360 may deem necessary to prosecute or defend any legal claim (in which case Giraffe360 may retain Client Data for a reasonable period of time pending resolution of such obligation or issue),

in each case subject to the DPA.

16.7. Termination of the Agreement for whatever reason shall not affect any rights or remedies of the parties that have accrued up to the date of termination.

16.8. Any provision of the Agreement that expressly or by implication is intended to come into force or continue in force on or after expiration or termination of the Agreement shall survive and continue in full force and effect.

17. LIMITED WARRANTIES

17.1. Giraffe360 warrants that, as of their delivery to the Client, the Camera Units are free from material defects in workmanship and materials. Giraffe360 undertakes, at its option, to repair or replace any Camera Unit which is found to be defective as a result of faulty materials or workmanship within the applicable Subscription Period, provided that:

(a) the Client gives Giraffe360 notice of the defect promptly after the Client discovers (or ought to have discovered) the defect;

(b) after receiving notice, Giraffe360 is given a reasonable opportunity of examining the Camera Unit and the Client provides such reasonable assistance to Giraffe360 as Giraffe360 may request to determine the cause of any fault or defect in the Camera Unit, including (where requested by Giraffe360) returning the Camera Unit to Giraffe360;

(i) a failure by the Client to follow Giraffe360’s oral or written instructions as to the storage, use or maintenance of the Camera Unit or good trade practice;

(ii) improper use of the Camera Unit or use outside its normal application; or

(iii) the Client, or any other person other than Giraffe360, alters or repairs the Camera Unit without Giraffe360’s written consent.

17.2. Giraffe360 undertakes to make the Giraffe360 Service available as set forth in Section 15.1, provided that the Client:

(a) complies with any directions, manuals or technical documentation provided by Giraffe360 with respect to the use of the Camera Unit and the uploading of Capture Assets to the Content Management System;

(b) complies with Section 15.3,

and the Client’s sole and exclusive remedy, and Giraffe360’s sole liability, with respect to any failure by Giraffe360 to provide the Giraffe360 Service in accordance with Section 15.1 is for Giraffe360 to use commercially reasonable efforts to repair the affected part of the Giraffe360 Service so that it is available in accordance with Section 15.1.

17.3. OTHER THAN AS SET FORTH IN SECTION 17.1, THE GIRAFFE360 SERVICE IS PROVIDED ON AN “AS IS” BASIS AND GIRAFFE360 GIVES NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR OTHER TERMS OF ANY KIND IN RESPECT OF THE GIRAFFE360 SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING (BUT NOT LIMITED TO) WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

17.4. EXCEPT AS EXPRESSLY PROVIDED FOR IN THE AGREEMENT:

(a) ALL REPRESENTATIONS, WARRANTIES, CONDITIONS AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW ARE, TO THE FULLEST EXTENT PERMITTED BY LAW, EXCLUDED FROM THE AGREEMENT; AND

(b) GIRAFFE360 WILL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS, DELAYS, FAILURES, OR NON-AVAILABILITY AFFECTING THE GIRAFFE360 SERVICE OR THE PERFORMANCE OF THE GIRAFFE360 SERVICE WHICH ARE CAUSED BY THIRD PARTY SERVICES (INCLUDING THIRD PARTY SITES), ERRORS OR BUGS IN THIRD PARTY SOFTWARE, HARDWARE, OR THE INTERNET ON WHICH GIRAFFE360 RELIES TO PROVIDE THE GIRAFFE360 SERVICE, OR ANY CHANGES TO THE GIRAFFE360 SERVICE MADE BY OR ON BEHALF OF THE CLIENT, AND THE CLIENT ACKNOWLEDGES THAT GIRAFFE360 DOES NOT CONTROL SUCH THIRD PARTY SERVICES AND THAT SUCH ERRORS AND BUGS ARE INHERENT IN THE USE OF SUCH SOFTWARE, HARDWARE AND THE INTERNET.

18. GIRAFFE360’S LIABILITY

18.1. SUBJECT TO SECTION 18.2, GIRAFFE360 WILL NOT BE LIABLE TO THE CLIENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR RESTITUTION, OR FOR BREACH OF ANY STATUTORY DUTY OR MISREPRESENTATION, OR OTHERWISE, FOR ANY LOSS ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT IN CONDITIONS THAT FALL INTO ANY OF THE FOLLOWING CATEGORIES: LOSS (WHETHER DIRECT OR INDIRECT) OF PROFIT, GOODWILL, BUSINESS, BUSINESS OPPORTUNITY, REVENUE, TURNOVER OR REPUTATION; LOSS (WHETHER DIRECT OR INDIRECT) OF ANTICIPATED SAVING OR WASTED EXPENDITURE; LOSS OF OR DAMAGE TO DATA; OR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE OR LOSS, COSTS OR EXPENSES.

18.2. NOTHING IN THE AGREEMENT EXCLUDES OR LIMITS GIRAFFE360’S LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY GIRAFFE360’S NEGLIGENCE, FOR FRAUD OR FRAUDULENT MISREPRESENTATION, OR FOR ANY INDEMNITIES GIVEN IN THE AGREEMENT.

18.3. SUBJECT TO SECTION 18.2, GIRAFFE360’S AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN ANY CALENDAR YEAR UNDER THE AGREEMENT IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR RESTITUTION, OR FOR BREACH OF ANY STATUTORY DUTY OR MISREPRESENTATION, OR OTHERWISE SHALL BE LIMITED TO THE SUBSCRIPTION FEES PAID OR PAYABLE BY THE CLIENT TO GIRAFFE360 IN THAT CALENDAR YEAR.

19. CHANGES TO THE GIRAFFE360 SERVICE

The Client recognises that Giraffe360 is always innovating and finding ways to improve the Giraffe360 Service with new features and services. The Client therefore agrees that the Giraffe360 Service may change from time to time and no warranty, representation or other commitment is given in relation to the continuity of any functionality of the Giraffe360 Service.

20. INDEMNIFICATION

The Client shall on demand indemnify, defend and hold harmless Giraffe360, and its agents and contractors from and against any and all losses, damages, claims, liabilities, costs or expenses of whatever nature (including reasonable attorneys’ fees) otherwise arising out of (i) a claim brought by any other third party relating to the Client’s use of the Giraffe360 Service; (ii) any loss of or damage to any Camera Units during the Subscription Period and the Risk Period (except to the extent caused by Giraffe360’s negligence); and (iii) or in connection with any failure by the client to comply with any of the terms of this Agreement.

21. GENERAL

21.1. Written Communications

Applicable laws may require that some of the information or communications that Giraffe360 sends to the Client should be in writing. When using the Giraffe360 Service, the Client accepts that communication with Giraffe360 will mainly be electronic. Giraffe360 will contact the Client by e-mail or provide the Client with information by posting notices on the Content Management System. For contractual purposes, the Client agrees to this electronic means of communication and the Client acknowledges that all contracts, notices, information and other communications that Giraffe360 provides to the Client electronically comply with any legal requirement that such communications be in writing.

21.2. Notices

All notices given by the Client to Giraffe360 must be submitted to support@giraffe360.com or at the address below:

107 Technology Parkway

Suite 667

Peachtree Corners, GA 30092

United States

Giraffe360 may give notice to the Client at either the e-mail or mail address the Client provides to Giraffe360, or any other way that Giraffe360 deems appropriate. Notice will be deemed received and properly served immediately when posted on the Content Management System or 24 hours after an e-mail is sent or three days after the date of mailing of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the mail and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.

21.3 Assignment

The Client may not assign or otherwise transfer the Agreement, or any of the Client’s rights or obligations arising under the Agreement, whether by operation of law or otherwise, without Giraffe360’s prior written consent. Giraffe360 may assign or otherwise transfer the Agreement freely without the Client’s consent. Any non-permitted assignment or other transfer of the Agreement will be void and of no effect.

21.4. Force Majeure Events

Neither party shall be liable to the other party for any delay or non-performance of any of its obligations under the Agreement arising from any cause beyond its control including, without limitation, any of the following: telecommunications failure, Internet failure, act of God, act of a third party unless an approved sub-contractor of Giraffe360, governmental act, war, fire, flood, explosion, or civil commotion. Notwithstanding the foregoing, nothing in this Section shall excuse the Client from any payment obligation under the Agreement.

21.5. No Third Party Beneficiaries

Other than as expressly stated in the Agreement, any person who is not a party to the Agreement may not enforce any of the terms under the Agreement.

21.6. Waiver

No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.

21.7. Cumulative Remedies

Except as expressly provided in the Agreement, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

21.8. Entire Agreement

The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not expressly set forth in the Agreement.

21.9. Independent Contractors

Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

21.10. Variation

No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

21.11. Severability

If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions of this Agreement shall not be prejudiced.

21.12. Governing Law and Exclusive Venue

The Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to principles of conflict of laws. Both parties agree to submit to exclusive jurisdiction and convenient forum in the County of New York, State of New York and further agree that any cause of action arising under or in connection with this Agreement may be brought in a court in New York. This choice of venue is intended by the parties to be mandatory and not permissive in nature, and to preclude the possibility of litigation between the parties with respect to, or arising out of, the Agreement in any jurisdiction other than that specified in this Section 21.12. Each Party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or theory or to object to venue with respect to any proceeding brought in accordance with this Section 21.12.

DATA PROCESSING SCHEDULE

1. BACKGROUND

1.1. This DPA applies as set out in Section 11.3 of the Agreement.

1.2. In the event of a conflict between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA shall prevail.

2. INTERPRETATION

2.1. Unless otherwise set out below, each capitalized term in this DPA shall have the meaning set out in the Agreement. In this DPA, unless the context requires otherwise:

“CCPA” means the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of the Agreement;

“CCPA Consumer” means a “consumer” as such term is defined in the CCPA;

“Client Personal Data” means any personal information (including “personal information” as defined in the CCPA) that Giraffe360 Processes on behalf of the Client and/or the Client’s Affiliates in connection with Giraffe360’s provision of the Giraffe360 Service;

“Data Processing Services” means the Processing of Client Personal Data for any purpose permitted by the CCPA, such as for a permitted “business purpose,” as such term is defined in the CCPA, or for any other purpose expressly permitted by the CCPA, in connection with the provision of the Giraffe360 Service;

“Processing” means any operation or set of operations which is performed on Client Personal Data or on sets of Client Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction, and “Process” will be interpreted accordingly;

“Security Incident” means any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Client Personal Data;

“Sell” and “Sale” have the meaning given in the CCPA;

“Subcontractor” means any person or legal entity engaged by Giraffe360 who Processes any Client Personal Data on behalf of Giraffe360.

3. CLIENT PERSONAL DATA PROCESSING

3.1. Role of the Parties.

For the purposes of the CCPA, the Parties acknowledge and agree that Giraffe360 will act as a “Service Provider” as such term is defined in the CCPA, in its performance of its obligations pursuant to the Agreement.

3.2. Instructions for Client Personal Data Processing

Giraffe360 shall not retain, use or disclose Client Personal Data for any purpose other than for the specific purpose of providing the Giraffe 360 Service, or as otherwise permitted by the CCPA. Giraffe360 acknowledges and agrees that it shall not retain, use or disclose Client Personal Data for any commercial purpose other than providing the Giraffe360 Service. Processing Client Personal Data outside the scope of this DPA or the Agreement will require prior written agreement between the Client and Giraffe360 on additional instructions for Processing.

4. DISCLOSURE OF CLIENT PERSONAL DATA

4.1. No Disclosure of Client Personal Data

Giraffe360 shall not disclose, release, transfer, make available or otherwise communicate any Client Personal Data to another business or third party without the prior written consent of the Client unless and to the extent that such disclosure is made to a Subcontractor for a business purpose, provided that Giraffe360 has entered into a written agreement with Subcontractor which imposes the same obligations on the Subcontractor with regard to their Processing of Client Personal Data as are imposed on Giraffe360 under this DPA and the Agreement. Notwithstanding the foregoing, nothing in this Agreement shall restrict Giraffe360’s ability to disclose Client Personal Data to comply with applicable laws or as otherwise permitted by the CCPA.

4.2. No Sale of Client Personal Data

Giraffe360 shall not Sell any Client Personal Data to another business or third party without the prior written consent of the Client.

4.3. Liability of Subcontractors of Client Personal Data

Giraffe360 shall at all times remain responsible for compliance with its obligations under this DPA with respect to the CCPA and will be liable to the Client for the acts and omissions of any Subcontractor or other third party to whom Giraffe360 has disclosed or permitted to Process Client Personal Data as if they were the acts and omissions of Giraffe360.

5. CONSUMER RIGHTS REQUESTS

5.1. CCPA Consumer Rights Requests

Giraffe360 shall comply with all applicable requirements of the CCPA, and shall, where possible and at Giraffe360’s expense, assist Client with ensuring its compliance under applicable CCPA requirements, and in particular shall:

(a) provide the Client with the ability to delete, access or copy the Client Personal Data of a CCPA Consumer, or

(b) promptly delete, access or copy Client Personal Data within the Giraffe360 Service at the Client’s request.

5.2. Notice of Requests

Giraffe360 shall promptly notify the Client of any request received by Giraffe360 or any Subcontractor from a CCPA Consumer in respect of the Client Personal Data of the CCPA Consumer, and shall not respond to the CCPA Consumer.

5.3. CCPA Policies, Procedures, and Controls

Giraffe360 shall adopt policies, procedures, and controls that enable Giraffe360 to respond, and to cause its agents and employees to respond, promptly to any rights request pursuant to the CCPA, including any disclosure request, deletion request or opt-out request.

6. SECURITY

6.1. Giraffe360 Security Obligations

Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Giraffe360 shall implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk, including without limitation the technical and organizational measures set out in Schedule 2 of the Agreement to protect the Client Personal Data against any Security Incident.

6.2. Audits

The Client may audit (by itself or using independent third-party auditors) Giraffe360’s compliance with this DPA (including the technical and organizational measures as set out in Schedule 2), including by conducting audits of Giraffe360’s (and its Subcontractors’) data processing facilities, and such audits may be performed at least once annually.

6.3. Security Incident Notification

If Giraffe360 or any Subcontractor discovers or becomes aware of a Security Incident, then Giraffe360 shall promptly notify the Client, take any additional steps that are reasonably necessary to remedy any non-compliance with this DPA, including complying with all applicable requirements of the Agreement, and reasonably cooperate in the investigation of the Security Incident.

6.4. Employees and Personnel

Giraffe360 shall limit access to Client Personal Data to those employees or other personnel who have a business need to have access to such Client Personal Data. Further, Giraffe360 shall ensure that such employees or other personnel have agreed in writing to protect the confidentiality and security of such Client Personal Data in accordance with the provisions of this DPA.

6.5. Government Disclosure

Giraffe360 shall promptly notify the Client of any request for the disclosure of any Client Personal Data by a governmental or regulatory body or law enforcement authority (including the Office of the California Attorney General) unless otherwise prohibited by applicable law or a legally binding order of such body or agency.

7. DELETION

7.1. Subject to paragraphs 7.2 and 7.3 below, Giraffe360 shall promptly and in any event within 90 (ninety) days of the date of termination of the Agreement (or within such shorter timeframe as may be required by the Agreement) delete and procure the deletion of all other copies of Client Personal Data Processed by Giraffe360 or any Subcontractors.

7.2. Subject to paragraph 7.3 below, the Client may in its absolute discretion notify Giraffe360 in writing within thirty (30) days after the date of termination of the Agreement to require Giraffe360 to return a complete copy of Client Personal Data Processed by Giraffe360 by secure file transfer in such a format as notified by the Client, and thereafter delete and procure the deletion of all copies of Client Personal Data Processed by Giraffe360 or any Subcontractors. Giraffe360 shall comply with any such written request within thirty (30) days after the date of request and provide a written confirmation of such destruction to Client as set forth in paragraph 7.4. Giraffe360 may, but shall have no obligation to maintain or return Client Personal Data more than thirty (30) days after termination of the Agreement.

7.3. Giraffe360 may retain Client Personal Data to the extent required by applicable laws, and only to the extent and for such period as required by applicable laws, and always provided that Giraffe360 shall ensure the confidentiality of all such Client Personal Data in accordance with this DPA and the Agreement and shall ensure that such Client Personal Data is only Processed as necessary for the purpose(s) specified in the applicable laws requiring its storage and for no other purpose.

7.4. Giraffe360 shall provide written certification to Client that it has fully complied with this paragraph 7 within ninety (90) days after the date of termination of the Agreement (or within such shorter timeframe as may be required by the Agreement).