Terms & Conditions

Terms & Conditions

These Terms and Conditions are between Stirista, LLC, (“Stirista”), a Delaware limited liability company with its principal place of business at 777 E Sonterra Blvd., Suite 225, San Antonio, TX 78258, and the Company identified on the initial Order Form (“Company”). Stirista and Company may be individually referred to as a “Party,” and collectively referred to as the “Parties.” The Parties acknowledge receipt and sufficiency of good and valuable consideration and agree as follows,

1. AGREEMENT.
   1. This Agreement contains the standard terms and conditions applicable to Stirista’s performance of its obligations to Company and provision of Services (as such terms are defined in Section 2) to Company. Stirista and Company may, from time to time, execute an Order Form pursuant to this Agreement with additional terms and conditions specific to the Services detailed within each Statement of Work (“SOW”) accompanying the Order Form and including information specific to the transaction. Each Order Form shall be subject to the terms of this Master Agreement and shall apply only to the Services referenced therein and shall not apply to any other Order Form. Services may only be ordered pursuant to an Order Form executed by both Parties. Terms and conditions contained in or attached to any Company-provided or furnished contractual documents shall not apply to the Services and shall be null and void.
   2. In the event of any conflicting or inconsistent terms, the following order of precedence applies in descending order: (a) the Data Processing Addendum attached hereto as Exhibit A with respect to the Processing of Personal Data by Stirista; (b) this Master Agreement; (c) an Order Form, unless an Order Form expressly states that a particular provision of the Order Form overrides a particular provision of this Master Agreement; (d) any other Attachments other than the Data Processing Addendum. This Agreement and any Order Form may only be amended in writing signed by authorized representatives of the Parties. Use of the term “days” means “calendar days” unless otherwise specified.
2. DEFINITIONS.
   1. “Agreement” means, collectively, these Terms and Conditions and all Attachments.
   2. “Attachment” means all Order Forms, Statements of Work, and all other documents incorporated and/or referred to herein and therein, and all other written exhibits, schedules, addenda, or other similar documents executed by the parties pertaining to the Services.
   3. “Change Order” means a written request to amend, expand, or reduce the agreed upon Services.
   4. “Certificate of Data Destruction” means a document signed by an authorized person of Company or Stirista that confirms destruction of all applicable data has been completed.
   5. “Company Data” means, without limitation, the following: (a) all data that is the output of Processing; (b) any copies, reproductions, improvements, modifications, adaptations, translations, and other derivative works of, based on, or otherwise derived from any Company Data; and (c) any Personal Data Processed from or on behalf of Company pursuant to the Agreement.
   6. “Confidential Information” means all non-public information disclosed by one Party or one of its Representatives to the other Party or one of its Representatives in connection with this Agreement and either: (i) the disclosing Party marks as confidential in writing; or (ii) the information is disclosed under circumstances that, or is of a nature and sensitivity that, the receiving Party should reasonably know that the information should be treated as the confidential information of the other party.
   7. “Derivative Data” means any data or products created by Company from or with the use of Licensed Data.
   8. “Intellectual Property Rights” means all intellectual property rights throughout the world, including all copyrights, copyright registrations and applications, trademark and service mark rights (including trade dress and derivative works), trademark registrations and applications, service mark registrations and applications, patent rights (including the right to apply therefor), patent applications therefor (including the right to claim priority under applicable international conventions and any derivative works arising therefrom) and all patents issuing thereon, and inventions whether or not patentable, together with all utility and design thereof, know-how, specifications, trade names, mask-work rights, trade secrets, trade dress, moral rights, author’s rights, algorithms, computer software (including executable software and source code), end-points, report format, business logic, rights in packaging, goodwill and other intellectual property rights, as may exist now or hereafter come into existence, and all renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or any other state, country or jurisdiction.
   9. “Licensed Data” means proprietary information and/or data provided to the Company by or on behalf of Stirista.
   10. “Order Form” means the written documentation, once accepted by Stirista and executed by the Parties, that describes Stirista’s provision of the Services to Company.
   11. “Personal Data” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, to a particular individual or household that is Processed by a Party pursuant to the Agreement.
   12. “Process” or “Processing” and all conjugations thereof mean any operation or set of operations which is performed on data or data sets, whether or not by automated means, such as access, 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.
   13. “Representatives” means any employees, contractors, and agents of either Party.
   14. “Services” means all the services to be provided by Stirista to Company as set forth in applicable Order Forms and the attached SOWs. For clarity, this shall include, but not be limited to Licensed Data, email deployment, creative, and digital advertising placement.
   15. “Statement of Work” or “SOW” means that written document referenced in the applicable Order Form, which describes and/or defines the Services offered by Stirista.
   16. “Third-party Software” means technology and computer software made available to Company by a third-party.
3. SERVICES.
   1. This Agreement shall apply to the delivery of Services as further described in any Order Form that may be proposed and mutually approved in writing by the Parties. Company and Stirista will execute one or more Order Forms, each of which will include, at a minimum, a listing of the Services being ordered, an SOW, and the associated fees. Except as otherwise provided on the Order Form or this Agreement, each Order Form is non-cancellable by Company and will be subject to the terms and conditions of this Agreement.
   2. Services may be defined by and are subject to the definitions and terms within the SOW attached to the Order Form. Subject to the terms and conditions of the Agreement, Stirista hereby grants to Company a limited, revocable, non-exclusive, non-transferable license to use and access the Services in accordance with this Agreement and during the Term of this Agreement subject to a material default and breach of the Agreement or Order Form by Company.
   3. Stirista shall perform the Services in a timely and professional manner in accordance with applicable industry standards and in accordance with the Order Form.
   4. From time to time throughout the life of this Agreement, either Party may submit a Change Order. Neither Party shall be responsible for any Change Order unless fully executed in writing by authorized officers of both Parties. The Parties shall discuss and negotiate in good faith any schedule and cost adjustments arising from such Change Order and such shall be paid in accordance with the terms of the Order Form (as may be amended by such Change Order).
4. OWNERSHIP.
   1. The Parties agree any creative-related deliverables identified in an Order Form and prepared by Stirista for Company in the course of providing Services (“Deliverables”) shall be considered works made for hire. All Intellectual Property Rights of such Deliverables shall be assigned to Company as its sole and exclusive property upon Stirista’s receipt of full and final payment covering the creation of such Deliverables, provided that Stirista shall have a limited license to retain and use the Deliverables as required for its provision of the Services. Stirista shall retain ownership of all Intellectual Property Rights in materials created by or on behalf of Stirista prior to or independent from this Agreement.
   2. The Parties agree that the Licensed Data and Stirista’s proprietary products, including all derivatives, modifications, adaptations, improvements or works of any kind incorporating any of the foregoing (in each case whether created by Stirista, Company, a Representative, or any third party) and all Intellectual Property Rights therein shall remain the sole and exclusive property of Stirista, except for any limited licenses thereto expressly granted to Company in the Agreement. Company agrees that it will not obtain, expressly or implicitly, by estoppel or otherwise any ownership right, title, or interest in any of Stirista’s Licensed Data nor proprietary products, nor any ownership or license in or to use of any patent, copyright, trade secret, trademark, or other intellectual property rights therein, except that Company shall, subject to the terms and conditions of the Agreement, have a limited, non-exclusive, royalty-free license to use the foregoing solely to the limited extent required by Company for its internal use and receipt of the Services.
   3. Company may not use Stirista’s Licensed Data to create Derivative Data unless expressly agreed to by Stirista in writing.
   4. Company is prohibited from transferring, selling, sublicensing, leasing, or otherwise conveying any part of the Licensed Data to companies that primarily sell, rent, or license data in competition with Stirista.
   5. All rights, title and interest in and to Company Data are and shall remain the property of Company. Company understands that certain of Stirista’s Services will not function absent Company Data, and as such, Company shall provide Stirista, in the form and format and on the schedule specified by Stirista, Company Data and other information reasonably required for Stirista’s performance of its obligations under the Agreement and Stirista shall not be responsible for a delay or failure to perform any Services due to a failure by Company to make available Company Data or other such information as provided herein. Subject to the terms of the Agreement, Company hereby grants to Stirista throughout the term of the Agreement (and after the term solely as reasonably necessary for the performance of Stirista’s post-termination obligations to Company) the right to Process Company Data solely to the extent necessary for Stirista to provide the Services or otherwise perform its obligations under the Agreement.
   6. Stirista may Process Company Data as part of the Services to create aggregated or deidentified data (as such terms are defined by applicable laws), provided Stirista: (i) takes reasonable measures to ensure the Deidentified Data cannot be associated with an individual or household; (ii) publicly commits to maintain and use the data in a deidentified form and not attempt to reidentify such information; and (iii) contractually obligates any recipients to comply with the foregoing requirements.  Stirista may use the resulting data for its own lawful purposes.
   7. Notwithstanding the foregoing, the Parties recognize that Stirista’s performance of Services will require Stirista’s skills, and therefore Stirista shall retain the right to use without fee and for any purpose such know-how, ideas, techniques, and concepts that do not contain or constitute Company Data or the Deliverables. that Stirista has used or developed in the course of performance of the Services.
5. STIRISTA OBLIGATIONS. Stirista shall at all times (i) conduct business in a courteous and professional manner; (ii) use all reasonable efforts to provide the Services as set forth in the Order Form and SOW; (iii) not Process or sell Company Data for any other purpose except to provide the Services requested by Company, except that Stirista may Process Company Data for any anonymized benchmarking or analytics conducted for the benefit of Stirista, to comply with applicable law, or as otherwise permitted by the Data Processing Addendum attached as Exhibit A; (iv) implement and maintain reasonable technical and organizational measures designed to ensure a level of security appropriate to the nature of Company Data in its possession; (v) hold Company Data in strict confidence; and (vi) use reasonable efforts designed to disclose Company Data only to Stirista Representatives who need-to-know and only to the extent necessary to provide the Services, and who are subject to confidentiality undertakings or professional or statutory obligations of confidentiality with respect thereto.
6. COMPANY OBLIGATIONS. Company shall at all times (i) submit information and requests relating to the Services to the designated Stirista contact; (ii) take all reasonable precautions to protect and secure the Licensed Data delivered to the Company as a part of the Services; (iii) ensure Company’s, and its Representatives’, compliance with any legal, regulatory or similar restrictions applicable to the data Company elects to Process with the Services or otherwise make available to Stirista, and Company shall be responsible for the means by which such data was collected, and for ensuring that such data may be lawfully made available to Stirista for Stirista’s Processing in compliance with the Agreement; (iv) comply with all applicable state, federal, and international laws, including, but not limited to, the California Consumer Privacy Act (CCPA) and Maryland Online Data Privacy Act of 2024 (MODPA); (v) implement and maintain reasonable technical and organizational measures designed to ensure a level of security appropriate to the nature of Licensed Data in its possession; (vi) take reasonable steps to prevent the accidental or unauthorized disclosure of Licensed Data employing security measures consistent with best industry practices; (vii) hold Licensed Data in strict confidence; (viii) disclose the Licensed Data only to Company’s Representatives who need-to-know, and who are subject to confidentiality undertakings or professional or statutory obligations of confidentiality; (ix) comply with the terms of this Agreement and the terms of the Order Form; and (x) provide written documentation for all requests, including those made over phone calls or in person.
7. PERSONAL DATA COLLECTION, PROCESSING AND TRANSFER.
   1. Company is solely responsible for obtaining, and represents and covenants that it has obtained or will obtain, all necessary consents, licenses, and approvals, and has provided any required notices and/or rights to opt out (and where applicable honored such rights to opt out), prior to any Processing by Stirista of Personal Data provided in connection with the Services. Company ensures that it has a valid legal basis for such Processing and such Processing by Stirista pursuant to this Agreement will not violate applicable law. Stirista requires that Company collect the legal consent of individuals when utilizing pixels, cookies, or other technologies, whether installed by Company or by Stirista on behalf of Company, for data collection. Company agrees to provide evidence of such consent to Stirista upon request and shall indemnify and hold harmless Stirista against any claims, damages, or lawsuits arising from Company’s failure to obtain or provide the necessary legal consent or satisfy the obligations in this Section.
   2. Company may select the Personal Data it provides to Stirista for Processing at Company’s discretion, and agrees that Stirista has no control over the nature, scope, origin, or means by which Company acquires Personal Data nor whether Company has satisfied all requirements under applicable law for its provision of the Personal Data to Stirista for Stirista’s Processing under this Agreement to be lawful. Stirista will Process Company Personal Data only as necessary to provide the Services and in accordance with Company’s written instructions, and as otherwise provided in the Data Processing Addendum attached as Exhibit A. This Agreement, along with Company’s use of the Services, serves as Company’s instructions to Stirista regarding the Processing of Company Personal Data.
   3. In addition to the indemnification obligations in sections 7.1 and 14, Company agrees to defend, indemnify, and hold harmless Stirista and its Affiliates, including their respective directors, officers, employees, and agents, from any and all losses incurred as a result of any third-party claim, judgment, inquiry, investigation, or proceeding relating to or arising out of: (1) the content of Company’s campaign, or (2) any alleged infringement of third-party rights or violations of applicable laws, including, without limitation, any claims arising from Company’s collection and use of Personal Data from users of the Sites or the development and use of behavioral targeting segments.
8. THIRD-PARTY SOFTWARE.
   1. Company may ask for Stirista’s Services be compatible with Company’s Third-Party Software, including CRM, marketing automation tools, or other software separately licensed or owned by the Company. Stirista will work with the Company to integrate with its Third-Party Software using pre-built integrations, or custom integrations for an additional cost based on the scope of work required. Stirista is not responsible for and does not endorse any Third-Party Software or websites which integrate with Stirista’s Services nor for its provision of Company Data to the providers of such Third-Party Software at Company’s direction.
   2. Certain Third-Party Software do not allow the use of purchased, rented, or third-party datasets of email addresses. Company and Company’s clients are responsible for reading, understanding, and complying with the terms of service of any Third-Party Software shall be responsible for the use of the Licensed Data with such Third-Party Software in compliance with any terms of service for such Third-Party Software. Stirista is not responsible for and does not endorse any Third-Party Software that may be used by or on behalf of the Company or Company’s clients.
9. FEES; TAXES; PAYMENT TERMS.
   1. Company will pay Stirista the fees as further described in the applicable Order Form. All invoices shall provide details regarding the fees due. Company shall pay all invoices within thirty (30) days after receipt of such invoice. Any invoice not paid within such a 30 day period will incur interest at five percent (5%) annually compounded on a monthly basis. If Company has not paid within sixty (60) days of the invoice date, Stirista has the right to suspend services. This section shall apply to all invoices, unless otherwise provided in the applicable Order Form, in which case the terms of the Order Form will govern.
   2. Company waives its right to dispute any invoice after sixty (60) days following the date Stirista issues the invoice or following Company’s payment of any such invoice. If Company disputes any charge or amount on any invoice and such dispute cannot be resolved promptly through good faith discussions between the Parties, Company shall pay the amounts due under this Agreement less the disputed amount, and the Parties shall diligently proceed to resolve such disputed amount. An amount will be considered disputed in good faith if (i) Company delivers a written statement to Stirista on or before the due date of the invoice, describing in detail the basis of the dispute and the amount being withheld by Company, (ii) such written statement represents that the amount in dispute has been determined after due investigation of the facts and that such disputed amount has been determined in good faith, and (iii) all other amounts due from Company that are not in dispute have been paid as and when required under this Agreement.
   3. Company is responsible for any applicable taxes, including, without limitation, any sales, use, levies, duties, or any value added or similar taxes payable with respect to Company’s subscription and assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in the Order Form, all fees, rates, and estimates exclude any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with, any of the Services rendered.
   4. Although not expected, pre-approved expenses associated with personnel travel or third-party fees related to the provision of the Services may be invoiced to the Company for reimbursement. Additionally, Company will be responsible for reimbursing Stirista for any and all third-party fees Stirista incurs associated with the Services detailed in an Order Form. Stirista will invoice the Company within the month Stirista incurs the expense. All invoices are due net 30 unless otherwise provided in the applicable Order Form.
10. CONFIDENTIALITY. Any and all prior non-disclosure agreements previously signed by the Parties hereto shall remain in effect and be incorporated herein by reference. Except with respect to Personal Data, all Confidential Information of the Parties, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by a Party to the other, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for the receiving Party’s use in performing or as otherwise permitted by this Agreement and may not be disclosed or copied unless authorized by the disclosing Party in writing. Confidential Information does not include information, technical data or know-how: (a) previously known to the receiving Party on a non-confidential basis; (b) independently developed by the receiving Party without use or reference to the disclosing Party’s Confidential Information; (c) acquired by the receiving Party on a non-confidential basis from a third party with the right to disclose such information; or (d) that is or becomes a part of (through no breach of this Agreement) the public domain. Neither Party will be in breach of this Agreement by reason of disclosing Confidential Information that the receiving Party is required by law to disclose, provided that the receiving Party shall, to the extent not prohibited by law, promptly notify the disclosing Party in writing and provide the disclosing Party with an opportunity to contest such process or seek a protective order prior to making any such disclosure. If requested by the disclosing Party, the receiving Party shall reasonably cooperate (at the expense of the disclosing Party) in such action, and exercise commercially reasonable efforts to obtain assurance that the disclosed information will be accorded confidential treatment. Upon the disclosing Party’s request, the receiving Party shall promptly return all documents and other materials received from the disclosing Party. The Parties shall be entitled to injunctive relief for any violation of this Section.
11. RELATIONSHIP OF THE PARTIES. Each Party shall act solely as an independent contractor, and nothing in this Agreement shall be construed to give either Party the power or authority to act for, bind, or commit the other Party in any way. Nothing herein shall be construed to create the relationship of partners, principal and agent, or joint-venture partners between the Parties.
12. REPRESENTATIONS AND WARRANTIES.
    1. Stirista represents and warrants to Company that all Services provided under this Agreement complies with and has been provided in accordance with applicable industry standards in existence at the time the Services are being performed.
    2. Stirista represents and warrants that the Services and/or any component thereof, does not and shall not infringe, misappropriate or violate any Intellectual Property Right of any third party. If Stirista becomes aware that the Services provided to Company possibly infringes on one or more patents, copyright, trade secret, trademark, trade name, or other such Intellectual Property Rights of any third party, Stirista shall immediately notify Company in writing.
    3. Stirista represents and warrants that Stirista is acting, and covenants that it shall at all times act during the existence of any Order Form hereunder, in material compliance with any applicable law in connection with the Services and, specifically, as it relates to its collection and/or compilation of the Licensed Data and the performance of its obligations under this Agreement.
    4. Stirista represents and warrants that: (a) Stirista is qualified and registered to transact business in all locations where the performance of its obligations hereunder would require such qualification; (b) Stirista has and shall maintain all necessary rights, powers and authority, including all permits and licenses required, to enter into and perform under this Agreement and to grant any and all rights or licenses granted or required to be granted by Stirista under this Agreement; (c) the execution and performance of this Agreement and each Order Form hereunder by Stirista shall not conflict with or violate any (i) applicable law, (ii) the terms of any privacy policy or other disclosure made at the time of collection of the Licensed Data; or (iii)  any agreement, covenant, court order, judgment or decree to which Stirista is a party or by which it is bound.
    5. Stirista represents and warrants that any Licensed Data provided hereunder does not contain any malicious code, viruses, malware or worms.
    6. In an instance where Stirista shall deliver Licensed Data as a part of the Services detailed in an Order Form, Stirista represents and warrants that the Licensed Data was collected with the proper notice and opt-out opportunities provided in accordance with established industry practices and that any opt-out records provided to Company, if any, have been properly identified.
    7. Stirista represents and warrants that it shall maintain a privacy policy that: (i) clearly and unambiguously discloses the collection, provision and usage of Licensed Data for the purposes contemplated in any Order Form by Company hereunder and, if applicable, the use of cookie technology for such collection; and (ii) contains a link to an easy-to-use mechanism or method that enables the user to opt out of interest based advertising or the Services provided by Stirista.
    8. Company represents and warrants it has the full right, power, and authority to enter into this Agreement and agree to its other obligations hereunder, and its execution of this Agreement and in so doing shall not result in a breach of or default under any other agreement to which Company is a party or by which it is bound.
    9. Company represents that it is and will not be an “Entity Controlled by Foreign Adversary Country,” “Foreign Person,” “Country of Concern,” or “Covered Person” while this Agreement is in effect with respect to any services that include access to “Personally Identifiable Sensitive Data” or “Bulk U.S. Sensitive Personal Data” (as each of these terms are defined in 28 C.F.R. Part 202 and 15 U.S.C. § 9901).
    10. Company shall not make Licensed Data that constitutes Personally Identifiable Sensitive Data or Bulk U.S. Sensitive Personal Data available (i.e., providing, licensing, transferring releasing, disclosing, or enabling access) to any “Entity Controlled by Foreign Adversary Country”, “Foreign Person”, “Country of Concern”, or “Covered Person” (as each of these terms are defined in 28 C.F.R. Part 202 and 15 U.S.C. § 9901), including through employees, contractors, vendors, or investors.
    11. If a change of law, Company’s status, control, or ownership, or in the Services causes either Party to know or reasonably believe that (i) Stirista has provided the Company with Personally Identifiable Sensitive Data or Bulk U.S. Sensitive Personal Data intended to be shared by Company with an Entity Controlled by Foreign Adversary Country, Foreign Person, Country of Concern, or Covered Person; (ii) Company has provided or intends to provide Personally Identifiable Sensitive Data or Bulk U.S. Sensitive Personal Data to an Entity Controlled by Foreign Adversary Country, Foreign Person, Country of Concern, or Covered Person; or (iii) Company’s status has changed and Company has become or will become an Entity Controlled by Foreign Adversary Country, Foreign Person, or Covered Person, then such Party shall promptly notify the other Party. Upon receiving Notice, both Parties shall cooperate in good faith to erase, remove, or return Personally Identifiable Sensitive Data or Bulk U.S. Sensitive Personal Data in a timely manner or otherwise modify the Services to comply with relevant legal requirements including 20 C.F.R. Part 202 and 15 U.S.C. § 9901.
    12. Company represents and warrants that Company is acting, and covenants that it shall at all times act during the existence of any Order Form hereunder, in compliance with any Applicable Law in connection with the Services.
    13. Company represents and warrants that Company will not, and will not permit any third party to, use any Stirista Confidential Information, Licensed Data, or Stirista provided Personal Data as an input to train, build, fine-tune, or improve any Artificial Intelligence System. “Artificial Intelligence System” means any system, including large language models (“LLM”),  (or tools which use LLM but are integrated in software or other products), that learn and adapt without following explicit instructions through the use of algorithms and statistical models to analyze and draw inferences from patterns in data, including systems capable of generating novel content or insights, such as and without limitation, text, audio, images, video, software code, or other content, or making summaries, inferences, predictions, or decisions, based on patterns derived from training data.
13. LIMITATION OF LIABILITY. IN NO EVENT SHALL A PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, RESULTING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY’S LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE SUM OF FEES PAID OR PAYABLE TO STIRISTA DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE WHEN THE LIABILITY AROSE. THE FOREGOING LIMITATIONS WILL NOT APPLY TO I) CLAIMS FOR BREACH OF CONFIDENTIALITY, INCLUDING BREACHES OF DATA SECURITY OBLIGATIONS; OR II) COMPANY'S OBLIGATION TO INDEMNIFY STIRISTA AS REQUIRED IN THIS AGREEMENT; OR III) CLAIMS FOR GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT BY EITHER PARTY, ITS AGENTS, ASSIGNS OR EMPLOYEES AGAINST THE OTHER PARTY.
14. INDEMNIFICATION.
    1. Stirista will indemnify, defend and hold harmless Company, its successors and assigns, and each of the respective officers, directors, employees, agents, and representatives (collectively, “Indemnified Parties”) of the foregoing, for, from and against any and all claims, damages, assessments, costs, losses and other expenses, including but not limited to attorneys’ fees and legal costs, in connection with any third party claim, demand, suit, action or other proceeding (collectively, “Claims”) arising from or relating to: (a) Stirista’s breach of a representation or warranty set forth in Sections 12.2, 12.4, and 12.6; provided that, Stirista will have no obligation to indemnify, defend or hold harmless Company or any third party to the extent such Claims arise out of, result from, or relate to: (1) any modifications, alterations or changes to the Services or Licensed Data by Company, in full or in part, or any third party; (2) Company’s or any third party’s misuse or unauthorized use of the Services or Licensed Data; (3) any combination of the Services or Licensed Data with any Company or third party content or materials; or (4) any instructions or directions provided by Company to Stirista; or (b) any actual or alleged acts, errors or omissions of Stirista and/or its Representatives that constitute gross negligence, willful misconduct and/or fraud.
    2. Company will indemnify, defend and hold harmless Stirista, the Indemnified Parties of the foregoing, for, from and against any and all Claims arising from or relating to: (a) Company’s breach of any representation or warranty set forth in Section 12 of this Agreement or made to Stirista pursuant to or in connection with this Agreement; (b) Company’s or any third party’s misuse or unauthorized use of the Services; (c) any modifications, alterations or changes to the Services by Company or any third party; (d) any combination of the Services with any Company or third party content or materials; or (e) the acts, errors or omissions of Company and their Representatives or anyone for whose acts any of them may be liable, including, without limitation any actual or alleged acts, errors or omissions of Company and/or its Representatives that constitutes gross negligence, willful misconduct and/or fraud.
    3. The Indemnifying Party's obligations are conditioned upon the Indemnified Party: (i) giving the Indemnifying Party prompt written notice of any claim, action, suit or proceeding for which the Indemnified Party is seeking indemnity (provided that a failure or delay in providing such notice shall not relieve the Indemnifying Party's obligations, except to the extent prejudiced by such failure or delay); (ii) granting complete control of the defense and settlement to the Indemnifying Party, provided that the Indemnifying Party will not acquiesce to any judgment or settlement without the Indemnified Party's prior written consent, said consent not to be unreasonably withheld, conditioned or delayed, unless it obtains a full and final release of all claims against the Indemnified Party and such judgment or settlement does not impose any requirements or restrictions upon the Indemnified Party; and (iii) reasonably cooperating with the Indemnifying Party, at the Indemnifying Party's expense, in the defense and settlement of such claim. The Indemnifying Party shall provide the Indemnified Party the option to engage separate counsel, at the Indemnified Party’s expense, to participate in any claim giving rise to indemnification hereunder.
15. TERM AND TERMINATION.
    1. Term. This Agreement shall be effective as of the Effective Date and remain in effect until terminated in accordance with the terms hereof. The term of each Order Form shall be effective as set forth in the applicable Order Form (“Term”) and shall remain in effect until the earlier of: (i) the termination of such Order Form by a Party in accordance with this section (“Term and Termination”); or (ii) the end of the Term specified in such Order Form.
    2. Termination for Convenience. Unless otherwise stated in the applicable Order Form, Stirista has the right to terminate for convenience this Agreement and/or any applicable Order Form effective upon the provision of ten (10) business days’ written notice.
    3. Termination for Cause. Either Party may terminate this Agreement immediately by providing written notice to the other Party if any of the following occur: (1) a material breach of the terms of this Agreement by a Party, provided that the offending Party is given the opportunity to cure, but does not successfully cure such alleged non-compliance within thirty (30) days of the initial notice of such non-compliance; (2) the other Party becomes insolvent; (3) a petition in voluntary or involuntary bankruptcy is filed by or against the other Party under any chapter of the United States bankruptcy laws; (4) assignment for the benefit of creditors or similar disposition of the assets of the other Party; (5) any act of the other party that materially impairs the good will of the terminating Party’s trade name, service mark, logotype, or other commercial symbol; or (6) the failure by the other Party to materially comply with applicable data privacy laws or to implement reasonable measures designed to protect Personal Data of the terminating Party.
    4. Effect of Termination. Unless otherwise agreed in writing between the Parties, the termination of this Agreement and/or any specific Order Form shall not result in the termination of any other effective Order Forms, and the term of each shall remain in full force and effect unless otherwise terminated pursuant to the rights within this Agreement and/or the applicable Order Form. Services to be performed pursuant to this Agreement and/or terminated Order Form shall cease immediately. Upon expiration or termination of this Agreement and/or an Order Form for any reason, Company shall pay Stirista in accordance with Section 9 the fees due for Services completed before such expiration or termination. On termination, each Party shall remove from its server, to the extent it is technically possible to do so, any Licensed Data or Company Data provided by the other during the term of the Agreement, unless it is required for record keeping by Applicable Law, and provide a Certificate of Data Destruction within ten (10) days of such expiration or termination.  If either Party is required by law to retain Licensed Data or Company Data, such retention shall be limited to the data that is necessary to comply with law, such data shall be Processed only for the purposes for which it is required to be retained, and Processing of such data shall remain subject to the data protections in this Agreement until the data is securely returned or deleted.
    5. Notwithstanding anything to the contrary herein, if there is/are any active Order Form(s) at the time of termination of the Agreement, the Parties agree that relevant clauses of this Agreement shall remain in full force and effect as it relates to the Services provided under the Order Form(s) until the expiration of the Order Form. Furthermore, if on termination of any Order Form the Licensed Data is being used in any live or planned campaign or in any model at the time of Termination, Company shall be entitled to continue to use the Licensed Data for a winddown period of thirty (30) days, subject to the terms of this Agreement and the relevant Order Form including any Fees payable, and such Licensed Data must be securely and permanently deleted by Company following such winddown period.
16. GENERAL PROVISIONS.
    1. Notices. Any notice given in accordance with this Agreement will be in writing and will be given by either (a) personal service by courier; (b) United States certified mail, return receipt requested, postage prepaid to the addresses appearing in the Order Form; or (c) email notification, provided that recipient confirms receipt via return email. Notice given by personal service will be deemed effective on the date it is delivered to the addressee as confirmed by the courier service and mailed notice will be deemed effective on the third day following its placement in the mail addressed to the addressee.
    2. Assignment. Company may not assign its rights or delegate its obligations under this Agreement without Stirista’s prior written consent. Stirista may assign its rights or delegate its obligations under this Agreement in its sole and exclusive discretion. Any purported assignment in violation of this section will be void.
    3. Governing Law and Venue. This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of Texas, including its statutes of limitations. Venue for any dispute arising out of or relating to this Agreement shall lie exclusively in the state or federal courts located in Bexar County, Texas.
    4. Force Majeure. Stirista shall not bear any responsibility or liability for any losses arising out of the delay or interruption of its performance of obligations under this Agreement due to any act of God, act of governmental and/or quasi-governmental authority, act of public enemy, or due to war, riot, flood, terrorism, civil commotion, insurrection, severe weather conditions, pandemic, public health crisis, or any other similar or related cause beyond the reasonable control of Stirista.
    5. Exclusivity. Company declares that it is currently not a party to any other contract that contains terms and provisions that might impede or limit their performance of any obligations under this Agreement. This Agreement shall not impair or impede Stirista’s ability to enter into additional or different contracts with any other companies, persons, or parties providing the same or similar services as the Services or any other services.
    6. Severability; Non-waiver. If any provision of this Agreement is held to be illegal, unenforceable, or invalid by any court of competent jurisdiction, the remaining provisions hereof shall remain in full force and effect. All rights and remedies of Stirista hereunder and all those given to it by law and equity shall be cumulative, concurrent, nonexclusive, and in addition to any right that might otherwise apply. No waiver of any provision hereof shall be effective unless made in writing and signed by the waiving Party. The failure or delay of either Party to enforce at any time any provision of this Agreement shall not constitute a waiver of Party’s right thereafter to enforce each and every provision of this Agreement.
    7. Survivability. These provisions, which by their nature are intended to survive the termination or expiration, of this Agreement, shall survive the termination or expiration of this Agreement.
    8. Publicity. Stirista may include Company on its client list in presentations, white papers, or reports made to shareholders, clients, and potential clients, provided no representation, express or implied, is or will be made as to Company’s opinion of Stirista’s Services. Any proposed press releases, advertising, or other promotional materials that use the other party’s name or trademark must be sent to the other party for approval, which shall not be unreasonably withheld. Stirista may publish a case study about Company’s use of the Services.
    9. Privacy Policy. By enrolling in or using the Services, the Company acknowledges and consents to Stirista’s Privacy Policy available at https://www.stirista.com/privacy-policy.
    10. Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect this Agreement.
    11. Entire Agreement; Modification. This Agreement and its Attachments constitute the entire agreement between the Parties and supersedes all prior or contemporaneous oral or written negotiations, understandings, representations, warranties, covenants and agreements between the Parties with respect to the subject matter hereof. No modification or amendment of this Agreement (including any Attachment hereto) shall be effective unless in writing signed by both Parties.
    12. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall be one and the same instrument.

EXHIBIT A

DATA PROCESSING ADDENDUM

This Addendum supplements the terms of the Agreement and is entered into as of the Effective Date of the Agreement by Company and Stirista, LLC. Except as modified below, the Agreement will remain in full force and effect.  In the event of a conflict between the Agreement and the Addendum, the Addendum shall control exclusively with respect to Personal Data subject to Privacy Laws.

Terms used in this Addendum that are neither defined herein nor in the Agreement shall have the meaning given in applicable Privacy Laws.

1. Definitions.
   1. “CCPA” means the California Consumer Privacy Act of 2018 and its regulations, as amended.
   2. “Controller” means a person or entity that, alone or jointly with others, determines the purposes and means of the Processing of Personal Data, and includes a “business” as defined in the CCPA and similar concepts as defined in other Privacy Laws.
   3. “Privacy Laws” means all applicable U.S. federal, state, and local legislation and regulations relating to the privacy, security, and protection of Personal Data, each as may be amended or replaced from time to time, including laws and regulations that are enacted or that become effective after Effective Date.
   4. “Processor” means a person or entity that Processes Personal Data pursuant to the instructions of a Controller and does not control the purposes and means of the Processing of Personal Data.  The term includes a “service provider” as defined in the CCPA and similar concepts as defined in other Privacy Laws.
   5. “Rights Request” means a request by or on behalf of an individual to exercise rights granted to such individual under Privacy Laws with respect to Personal Data about such individual.
   6. “Security Breach” means an actual or reasonably suspected (i) unauthorized or unlawful Processing of Personal Data; (ii) compromise of the security, confidentiality, or integrity of Personal Data; and (iii) events or circumstances that meet the definitions of “security incident,” “breach of the security of the system,” “personal data breach,” and similar terms under Privacy Laws.
   7. “Subprocessor” means a third-party engaged by or on behalf of Stirista to Process Personal Data.
2. Processing of Personal Data.
   1. The Parties agree that, with respect to the Processing of Company Data to the extent Company Data contains Personal Data, Company shall act as a Controller, and Stirista shall act as a Processor, except that where Company acts as a Processor, such as when Processing Personal Data to provide products and services to Company’s clients and customers, then Stirista will be a subprocessor.  Except as expressly provided in Sections 9 and 10, this Addendum applies when Stirista Processes Company Data that is Personal Data as a Processor or subprocessor.
   2. The nature and purpose of the Processing are set forth in the Agreement and in Annex A to this Addendum, and the duration of the Processing will be for the duration of the Agreement (or as otherwise defined in the Agreement).  The types of Personal Data subject to the Processing are set forth in Annex A to this Addendum.
3. Compliance.
   1. Company and Stirista shall comply with all Privacy Laws in the Processing of Personal Data and will take steps to protect Personal Data as required by Privacy Laws.  Stirista shall provide the same level of privacy protection for Personal Data as is required of Company under Privacy Laws.
   2. Stirista shall ensure that each person Processing Personal Data is subject to a duty of confidentiality with respect to such Personal Data.
   3. Upon reasonable written request, Stirista will make available to Company information necessary (i) to demonstrate Stirista’s compliance with Privacy Laws and this Addendum or (ii) for Company to conduct data protection assessments required by Privacy Laws.
   4. Stirista acknowledges that Stirista is acting solely as a Processor, will Process Personal Data solely to provide the Services set forth in the Agreement, and shall not Process Personal Data other than on Company’s documented and lawful instructions provided in and consistent with the Agreement, except where otherwise required by law.  Company provides or makes available Personal Data to Stirista for the limited and specified purposes of providing Services to Company as set forth in the Agreement.
   5. Stirista is explicitly prohibited from:
      1. 3.5.1.Selling Personal Data or sharing Personal Data for online targeted advertising, except as expressly authorized by Company;
      2. 3.5.2.Processing or otherwise disclosing Personal Data for any purpose (including a commercial purpose) other than for the specific purpose(s) of performing the Processing instructed by Company or as otherwise permitted by Privacy Laws.
      3. 3.5.3.Processing, or otherwise disclosing Personal Data outside of the direct business relationship between Company and Stirista; and
      4. 3.5.4.Combining Personal Data with personal data received from another person or persons except as permitted for a Processor under Privacy Laws.
   6. Stirista certifies that it understands the restrictions in this section.
4. Subcontracting.
   1. Company acknowledges and agrees that Stirista may engage or replace a Subprocessor so long as Stirista notifies Company at least ten (10) business days in advance of such engagement and provides Company with the opportunity to object to the engagement of the Subprocessor.
   2. Stirista may continue to use those Subprocessors already engaged by Stirista as at the Effective Date, subject to Stirista, as soon as practicable, meeting the obligations set out in Section 4.3.
   3. Stirista shall, in respect of each Subprocessor, ensure that the arrangement with the Subprocessor is governed by a written contract including terms which offer at least the same level of protection for Personal Data as those set out in this Addendum and meet the requirements of Privacy Laws.
5. Reasonable Assistance for Compliance and Consumer Rights.
   1. Stirista will provide all assistance reasonably necessary for Company to comply with Privacy Laws, and Company may take appropriate steps, upon prior notice to and coordination with Stirista, to ensure that Stirista Processes Personal Data in a manner consistent with Company’s obligations under Privacy Laws.  If Stirista determines that it can no longer meet its own obligations under Privacy Laws, Stirista will notify Company of such determination.  Upon such notice or in the event Company otherwise becomes aware of unauthorized Processing of Personal Data, Company may take appropriate steps to stop and remediate the unauthorized Processing such as directing Stirista to suspend its Processing of Personal Data until Stirista can meet its material obligations under Privacy Laws, provided that Company shall only take such steps upon prior notice to and in coordination with Stirista.
   2. Stirista shall promptly, but in any event within the timeframes required by Privacy Laws, refer to Company any Rights Requests. Stirista shall reasonably cooperate with and reasonably assist Company in responding to and fulfilling such Rights Requests.  Stirista will comply with Client’s instructions regarding Personal Data subject to such Rights Requests, including that Stirista shall stop Processing Personal Data upon Company’s request made in accordance with an individual’s authenticated Rights Request under applicable Privacy Laws.
6. Data Security & Security Incidents.
   1. Stirista shall implement and maintain reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Personal Data.
   2. Without undue delay after becoming aware of a Security Breach, Stirista shall promptly (within 72 hours of becoming aware) notify Company in writing of said Security Breach.  Stirista shall also promptly (i) investigate the Security Breach and provide Company with information about the Security Breach; and (ii) take reasonable steps to remediate and mitigate the effects of the Security Breach.
7. Audits. No more often than annually, upon Company’s reasonable request, Stirista shall allow for and contribute to reasonable audits by Company or its designated auditor to assess Stirista’s compliance with Privacy Laws and this Addendum.  In lieu of the foregoing audit right, Company agrees that, at Stirista’s expense, Stirista may arrange for a qualified and independent third party to conduct such an audit so long as (i) the third party uses an appropriate and accepted control standard or framework and audit procedure (e.g., SOC2, ISO27XXX); and (ii) the report of such audit is provided to Company upon request.
8. Return or Deletion of Personal Data. At the end of Stirista’s provision of products or services to Company under the Agreement, Stirista will, at the election of Company, securely return or delete all Personal Data, unless Stirista is required by law to retain such Personal Data.  If Stirista is required by law to retain any Personal Data, such retention shall be limited to the Personal Data that is necessary to comply with law, such Personal Data shall be processed only for the purposes for which it is required to be retained, and Stirista’s Processing of such Personal Data shall remain subject to this Addendum until the Personal Data is securely returned or deleted.
9. Processing of Licensed Data by Company. The Parties acknowledge that with respect to any Personal Data contained in the Licensed Data and made available to Company, Stirista and Company are each Controllers with respect to such Licensed Data. As such, Company agrees as follows: (a) Company will Process the Licensed Data for the limited and specified purposes set forth in Annex A and for no other purpose; (b) Company will comply with Privacy Laws with respect to its Processing of Licensed Data and will provide the same level of privacy protection for such Licensed Data as is required of Stirista under Privacy Laws, and shall notify Stirista in the event it determines it can no longer comply with this obligation; and (c) Stirista shall have the right to take reasonable and appropriate steps to (i) ensure Company is Processing Licensed Data in a manner that complies with Privacy Laws and the Agreement; and (ii) stop and remediate unauthorized Processing of Licensed Data.
10. Processing of Personal Data for Sales or Sharing. The Parties acknowledge that with respect to any Personal Data Processing considered a Sale or Sharing (as those terms are defined by Privacy Laws), Stirista and Company are each Controllers with respect to such Licensed Data. As such, Stirista agrees as follows: (a) Stirista will Process the Licensed Data for the limited and specified purposes set forth in Annex A and for no other purpose; (b) Stirista will comply with Privacy Laws with respect to its Processing of Licensed Data and will provide the same level of privacy protection for such Licensed Data as is required of Company under Privacy Laws, and shall notify Company in the event it determines it can no longer comply with this obligation; and (c) Company shall have the right to take reasonable and appropriate steps to (i) ensure Stirista is Processing Licensed Data in a manner that complies with Privacy Laws and the Agreement; and (ii) stop and remediate unauthorized Processing of Licensed Data.
11. Changes in Data Protection Laws. The Parties may propose variations to this Addendum which the Parties reasonably consider to be necessary to address the requirements of any Privacy Laws. Such variations shall not be binding on the Parties until memorialized in an amendment executed by authorized officers of the Parties.
12. Term. The term of this Addendum begins as of the date of execution.  The term of this Addendum will end upon the later of termination of the Agreement or Stirista’s written confirmation of destruction or return, if requested by Company, of all Personal Data processed by Stirista under the Agreement.  The terms of this Addendum shall survive any expiration or termination of the Agreement and/or this Addendum for so long as Stirista Processes Personal Data.