PLEASE READ THESE TRADEWIND TERMS OF SERVICE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY TRADEWIND EAST INC. (“TRADEWIND”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH TRADEWIND WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

Arbitration Date
The last day of the sixty (60) day period Tradewind and the Partner Broker will work in good faith to attempt to resolve an issue the Partner Broker has raised to Tradewind.

Agent
A professional who has an active and valid real estate license in the states or localities they operate in and represents a buyer or seller in a real estate transaction.

Agent / Broker Split
The percentage of commission a Brokerage collects from an Agent it employs on particular real estate Transactions.

Agent Contact
The list of names, emails and phone numbers a Participating Pro Agent provides Tradewind for Tradewind to market on their behalf or Tradewind collects on behalf of the Participating Pro Agent or as a part of any Program.

Agent Owned Lead
A Lead resulting from an Agent Contact.

Association
A real estate association is a trade group made up of Agents and Brokers that conduct various activities such as, but not limited to, providing trainings, lobbying the government, distributing market research, and operating an MLS.

Blog Content
Content, created by Tradewind on behalf of a Partner Broker or Participating Agent, focused on residential real estate that’s designed to engage buyers and sellers. This content would be hosted on the Marketing Website and Partner Brokers and/or Participating Agents will have the ability to manage that content on their own (edit, remove, etc.) if they wish. Tradewind asks to be notified in those cases to understand the impact it may have on the overall Marketing strategy. For clarity, the Partner Broker or Participating Agent agree that they do not need to pre-approve Blog Content before it is sent and that Tradewind is not obligated to send any specific content provided by the Partner Broker or Participating Agent or create specific content on the Partner Broker’s or Participating Agent’s behalf but will be open to reviewing any ideas or requests.

Broker
A professional who has an active and valid real estate license and has completed additional Broker training and licensing requirements for real estate. They can work independently and hire other real estate agents to work for them.

Brokerage
The legal entity the Broker uses to set up and operate their business.

Broker Contact
The list of names, emails and phone numbers a Partner Broker provides Tradewind for Tradewind to market as part of a Program or Tradewind collects on behalf of the brokerage as a part of a Program. The Partner Broker owns these contacts. A Partner Broker can ask Tradewind to remove anyone from the email marketing list at any time and Tradewind will remove them within 7 days.

Business Hours
The operating hours that a Tradewind ISA actively performs tasks. The hours are 8am – 7pm in the time zone the Partner Broker and/or Participating Agent operates, 7 days a week, unless otherwise agreed upon (in Appendix A) between Tradewind and a Partner Broker or Participating Agent.

Closing
The last step in the home buying process where closing documents are signed, outstanding funds are paid and the property is legally transferred from seller to buyer.

Commission
Money owed to a Partner Broker or Participating Agent for completing a Transaction. Tradewind will be subject to whatever the Participating Agent’s commission is, including any discounts the Participating Agent offers, assuming they are approved by the Partner Broker. Partner Broker and Participating Agent will charge a reasonable commission for completing a Transaction.

Contact
A name, with an associated email and/or phone number, provided by a Partner Broker or Participating Pro Agent to Tradewind, either a Broker Contact or Agent Contact.

Consumer
A person who has not explicitly shown interest in selling or purchasing real estate but has provided a name, phone number or email address for contact information.

Covered Area
The locations, as defined by city, neighborhood, or zip code in a particular MLS, where a Participating Pro/Lite Agent or Partner Broker conducts business that has been communicated to, and accepted by, Tradewind.

Dual Ownership Lead
If Tradewind has already collected contact information from a Consumer before it is provided to Tradewind by a Partner Broker or Participating Pro Agent, then it will be considered a Dual Ownership Lead. Dual Ownership Leads and Contacts owned by both Tradewind and the Participating Agent or Partner Broker. All parties would retain a copy of the lead’s information upon the agreement between Tradewind and the applicable Participating Pro Agent or Partner Broker ending. To provide the best consumer experience, Tradewind will use reasonable best efforts to assign Dual Ownership Leads to the Participating Agent(s) who also have a connection with such Dual Ownership Leads. For clarity, if a Broker Contact, Agent Contact or Lead provides their contact information directly, irrespective of when, to a Tradewind via a website or other forms of Tradewind marketing unaffiliated to the Partner Broker or Participating Agent, then that lead would become a Dual Ownership Lead.

Email Content
Content, created by Tradewind on behalf of a Partner Broker or Participating Agent, focused on residential real estate that’s designed to engage buyers and sellers via email and ultimately build value enough to generate Leads, usually by directing them back to a Marketing Website. For clarity, the Partner Broker or Participating Agent agrees that they do not need to pre-approve Email Content before it is sent and that Tradewind is not obligated to send any specific content provided by the Partner Broker or Participating Agent or create specific content on the Partner Broker’s or Participating Agent’s behalf but will be open to reviewing any ideas or requests.

Facebook Social Page Management
Social Page Management specifically on Facebook owned by Meta Inc.

Facebook Page Messenger
Tradewind monitors and responds to inbound messages using Facebook Messenger for Meta business pages on behalf of a Partner Broker and/or Participating Agent. The goal is to respond quickly and accurately to messages and ultimately send a Warm Lead Notification to a Participating Lite/Pro Agent.

Free Pass
A mechanism for an Participating Pro Agent to bypass the Tradewind Pro Fee on a particular Transaction, given Tradewind has agreed to the Free Pass use.

Google Paid Advertising
A Paid Ad Program whereby Tradewind will run Google Advertising on behalf of the Partner Broker. Partner Broker is responsible for setting the budget.

Gross Commission
The total amount of commission paid to a Partner Broker or Participating Agent as defined on the relevant closing statement including before any Agent / Broker Split including any Brokerage Fees unless otherwise agreed.

Initial Term
The initial commitment period of 6 months. During this period the Partner Broker or Tradewind can terminate this Order Form, at any time, for any reason or no reason, upon at least 60 days prior written notice to the other party.

Inbound Call Handling
Tradewind will answer all inbound calls and route non-sales related calls to the Partner Broker or Participating Agent or qualify/screen callers based on rules set by the Partner Broker or Participating Agent and mutually agreed to by Tradewind.

Instagram Social Page Management
Social Page Management specifically on Instagram owned by Meta Inc.

ISA
A Tradewind Inside Sales Associate who acts as an extension of a Partner Broker or Participating Pro Agents brand in lead generation efforts. Tradewind ISAs will respond to all inbound inquiries in 120 seconds or fewer on average over the course of a calendar month, during Business Hours.

ISA Notification
The message initiated from the ISA Screening process that is sent to a Participating Agent through the Messenger App about an ISA Qualified Lead who has met the Qualification Criteria or a Contact who reached a Warm Lead Notification.

ISA Screening
The process of a Tradewind ISA communicating directly or indirectly with a potential Lead or Tradewind’s technology analyzing the potential Lead to determine what action to take. ISA Screening is usually done to perform an ISA Qualification on behalf of a Partner Broker or Participating Agent or to initiate an ISA Notification.

ISA Qualification
The process of a Tradewind ISA communicating with a potential Lead and attempting to find out if the Lead meets a predetermined set of Qualification Criteria. The Qualification can happen over phone, email, SMS, chat and other various communication platforms.

ISA Qualified Lead
A residential real estate buyer or seller lead who has gone through the ISA Qualification process and met the agreed upon Qualification Criteria.

Lead
A person who has shown interest in selling or purchasing real estate and has provided a name, phone number or email address.

Broker Owned Lead
A Lead resulting from a Broker Contact.

Lead Assignment
A Lead that is in an exclusive conversation with a particular Participating Agent who matches on Routing Rules. This exclusive relationship lasts only as long as the Participating Agent is actively working the lead, which includes that the Participating Agent is meeting reasonable response time and industry standard conversion metrics, as determined by Tradewind (acting reasonably and in good faith). Tradewind can un-assign or reassign any lead from a Participating Agent who is not meeting this standard to another Participating Agent unless that Lead was generated from an Agent’s Contacts.

Marketing
Any outbound communication done by Tradewind on behalf of a Partner Broker/Participating Pro/Lite Agent as well as any inbound response to a Contact or Lead’s requests or questions.

Marketing Website
A Tradewind hosted website branded as a Partner Broker or a Participating Agent that could include MLS listings. In the event that Sphere Marketing is being utilized, blog content will be hosted on the website and Leads will be directed to the site to produce Warm Lead Notification. In cases where a brand/style guide exists, Tradewind may work with, but is not obligated to unless mutually agreed upon, the Partner Broker and/or Participating Agent to maintain, to the best of their ability, the look and feel they want. The Partner Broker and/or Participating Agent may be charged additional direct fees by their MLS or Associations that Tradewind does not cover.

Marketing Website Chat
A standard chat widget that appears on the Partner Broker or Participating Agents website to a consumer. If the consumer engages with the widget the ISA Screening and Qualification process starts with the intention of generating an ISA Qualified Lead.

Messenger App
The proprietary mobile application in which all communication between the Tradewind team and Participating Pro/Lite AgentPartner Agents will be used. This application will serve as the primary source for lead assignment, contact upload, etc.

MLS
A multiple listing service (MLS) is a centralized database established by cooperating real estate Brokers to provide data about residential and commercial properties for sale in a particular geographic location. An MLS allows their members (Agents and Brokers) to see one another’s listings of properties for sale with the goal of connecting homebuyers to sellers. Under this arrangement, both the listing and selling Agents and Brokers benefit by consolidating and sharing information.

Paid Ad Programs
Programs which require a budget or payment in order to run. Typically these Programs involve paying for impressions, clicks or leads.

Participating Lite Agents
The agents selected by a Partner Broker to participate in receiving leads (that match their Routing Rules) from a particular Program who have signed the Tradewind Lite Agreement and completed the onboarding in the Messenger App.

Participating Pro Agent
An agent who has signed an agreement for Tradewind Professional, the Tradewind program designed to market on behalf of a particular agent with the goal of generating residential real estate buyer and seller leads.

Participating Agent
A generic term for either a Participating Lite Agent, Participating Pro Agent or any other Agent who has signed an agreement for a Tradewind Program.

Partner Broker
A Broker that has completed a Tradewind order form.

Programs
A broker Marketing effort designed to generate and distribute residential real estate buyer and seller leads to Participating Lite Agents.

Referral
The contact information of a new consumer interested in purchasing or selling real estate given by a known Lead or Consumer.

Routing Rules
The criteria a Participating Lite Agent sets, or has set for them, by their Partner Broker for minimum price point and zip code that a Tradewind Program Lead would meet in order for the Participating Lite Agent to be matched to the lead.

Social Content
Content in various mediums, created by Tradewind on behalf of a Partner Broker or Participating Agent, that would be used in Social Page Management. The Content is focused on residential real estate that’s intended to engage buyers and sellers and ultimately to generate Leads, usually by directing them back to a Marketing Website. For clarity, the Partner Broker or Participating Agent agrees that they do not need to pre-approve Social Content before it is posted and that Tradewind is not obligated to post any specific content provided by the Partner Broker or Participating Agent or create specific content on the Partner Broker’s or Participating Agent’s behalf but will be open to reviewing any ideas or requests.

Social Page Management
Tradewind manages page profiles, creates and posts Social Content and, when applicable, handles live chat on the social platform (e.g. Facebook Page Messenger). Tradewind will assess office or non-corporate accounts for Partner Brokers and create a predefined list of additional accounts we will manage. Partner Broker agrees to grant Tradewind admin access to these accounts to post Social Content. Partner brokers and/or Participating Agents can continue make updates to the social profiles or post their own content but must inform Tradewind of any material changes they’d like to make that may have a negative impact on the lead generation efforts.

Sphere Marketing
The Marketing (digital or physical) that Tradewind does on behalf of a Partner Broker to their Broker Contacts or on behalf of a Participating Agent to their Agent Contacts.

Similar Programs
A Partner Broker Program, not run by Tradewind, that includes any Marketing Activities that are substantially similar to a Selected Program. For example, creating a new website for the brokerage if Tradewind is already powering the Brokerage Marketing Website Program.

Saved Search Emails
Emails sent by Tradewind to Leads containing relevant real estate listings based on their buyer preferences captured through an ISA or some other information provided by the Lead. The emails will be branded as the Partner Broker and/or Participating Agent and the respective party will receive an ISA Notification, about relevant Leads activity with the search to create a Warm Lead Notification.

Subsequent Programs
A Program added after the Work Order was executed. Subsequent Programs can be added or removed any time with the details confirmed over email from both sides.

Qualifying Transaction
A Transaction that meets the criteria for a Tradewind Fee to be collected.

Qualified Agent
An Agent who meets industry and brokerage standard response time for interacting with Qualified Leads, Warm Lead Notification as well as maintains or exceeds industry or brokerage standard conversion rates from Lead to Transaction.

Qualified Lead
A person who has provided a name, phone number, buying price range (if buying), buying area (if buying), and selling address (if selling), and is willing to speak to an Agent in his or her Covered Area about buying or selling real estate and their timeframe to buy or sell real estate is in the next 6 months.

Qualification Criteria
A set of predefined attributes, set by a Partner Broker and/or Participating Agent, that a potential Lead would have to meet in order to be distributed to a Participating Lite/Pro Agent. Commonly this includes the potential Leads price range, bound by a minimum, their location, bound by Covered Areas and timeline to move, bound by number of months.

Tradewind Fees
Refers to the Tradewind Lite Fee, Tradewind Pro Fee or any other fee due to Tradewind.

Tradewind Owned Lead
Any contact information (of a Lead, Qualified Lead, Referral or Consumer) that has been collected by or on behalf of Tradewind and was not generated through Marketing to Contacts provided by a Partner Broker or Participating Agent. Tradewind is unrestricted in how it markets and communicates to the Leads that it owns, other than restrictions imposed by applicable federal and state laws or applicable MLS and Association rules. Upon termination or expiration of this Agreement, these Leads would stay with Tradewind and neither the Partner Broker nor the Partner Agent would be given an export of these leads.

Tradewind Program Lead
A residential real estate buyer or seller who has interacted with Tradewind’sMarketing through a specific Program, and who has met the Partner Broker Qualification Criteria.

Tradewind Qualified Contact
An Agent Contact who has gone through ISA Screening, met the Qualification Criteria and was distributed to that Participating Agent via the Messenger App. Tradewind Qualified Contacts are always assigned to the Participating Pro Agent who provided the Agent Contacts, and such Leads cannot be reassigned to other Participating Pro Agents. If multiple Participating Pro Agents provide the same Agent Contact, Tradewind will use commercially reasonable efforts to assign the Leads resulting directly from such contact to the Participating Pro Agent whose marketing the Lead engages with. For example, if a Contact fills out a form on a Participating Pro Agent’s Tradewind website, Tradewind would assign that Lead to such Participating Pro Agent.

Tradewind Premium Leads
A Qualified Leadwho was generated from a Tradewind funded Marketing (not through a Partner Broker Program or Agent Contact marketing) and who is distributed to a Participating Pro Agent.

Tradewind Lite Fee
The fee, as defined in the Order Form, collected by Tradewind on the Gross Commission of a Transaction from a Tradewind Program Lead.

Tradewind Pro Fee
The fee, as defined in the Order Form, collected by Tradewind on the Gross Commission of a Transaction from a Participating Pro Agent, regardless of source of lead/transaction.

Transaction
Completed Closings in connection with which all parties (the Agent and Broker) are owed a Commission.

Warm Lead Notification
The term used to describe a Contact who has gone through the ISA Screening process and engaged with a minimum amount of a Partner Broker or Participating Agents marketing material but has not explicitly gone through the ISA Qualification process.

Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any obligations, limitations and restrictions set forth on the applicable Order Form), Tradewind grants Customer a nonexclusive, limited, personal, non sublicensable, non transferable right and license to internally access and use the Tradewind service(s) specified in such Order Form and the related Messenger App (collectively, the “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Tradewind’s applicable official user documentation for such Services (the “Documentation”), if any.

From time to time, Tradewind may provide upgrades, patches, enhancements, or fixes for the Messenger App to its customers generally without additional charge (“Updates”), and such Updates will become part of the Messenger App and subject to this Agreement; provided that Tradewind shall have no obligation under this Agreement or otherwise to provide any such Updates. Customer understands that Tradewind may make improvements and modifications to the Services at any time in its sole discretion; provided that Tradewind shall use commercially reasonable efforts to give Customer reasonable prior notice of any major changes.

As between the parties, Tradewind retains all right, title, and interest in and to the Services, and all software, products, works, content and other intellectual property and moral rights related thereto or created, used, or provided by Tradewind for the purposes of this Agreement, including any copies and improvements, modifications and derivative works of the foregoing. Any software which is distributed or otherwise provided to Customer hereunder shall be deemed a part of the “Services” and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Tradewind with respect to the Service (“Feedback”). Tradewind acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Notwithstanding anything else, Customer shall, and hereby does, grant to Tradewind a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. In addition, Tradewind may use any and all data and other information that it collects in connection with this Agreement to improve and otherwise modify its Services.

Upon any termination or expiration of an Order Form, Customer may no longer use the Services provided in connection therewith, in whole or in part. Such restriction includes, without limitation, a restriction on continued use of any content Tradewind sent to, or on behalf of, the Customer or any of its Participating Pro or Participating Lite Agents, except that they retain a license to use any content Tradewind previously posted, sent or shared on their behalf (i.e., they don’t have to take down such content or ask recipients of such content to delete such content).Customer hereby grants to Tradewind a non-exclusive, limited license to use any trademarks, service marks, logos, trade names, and other branding features (“Customer Marks”) and any content and other materials, data and information that are provided to Tradewind by or on behalf of Customer, in connection with the provision of Services provided under this Agreement. Customer represents and warrants that it owns all right title and interest, or possesses sufficient license rights, in and to the Customer Marks and such content as may be necessary to authorize the use thereof contemplated by this Agreement. Customer agrees to (i) defend Tradewind against any claim by a third party that any Customer Marks or any such content, materials and information infringes or misappropriates or otherwise violates any copyright, trade secret or other intellectual property or other right of such third party and (ii) indemnify Tradewind for settlement amounts or other damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of such claim. The use by Tradewind of the Customer Marks in connection with this Agreement shall not create any right, title or interest, in or to the Customer Marks in favor of Tradewind and all goodwill associated with the use of the Customer Marks shall inure to the benefit of Customer. Upon any termination or expiration of an Order Form, Tradewind may no longer use the Customer Marks and such content provided by or on behalf of Customer in connection therewith, except that Tradewind has 30 days post-termination or –expiration to wind down its use of such Customer Marks and content and Tradewind has no obligation to delete or have deleted any prior use of such Customer Marks and content.

As between the parties, Customer retains all right, title, and interest in and to the Customer Marks, and all content that is provided to Tradewind by or on behalf of Customer, and all intellectual property and moral rights therein.

Partner Broker acknowledges that Tradewind does not pre-screen its Leads in any way, for criminal history or otherwise. Tradewind encourages Partner Broker and Participating Agent to be safe in conducting their business. In addition, Partner Broker agrees that, with respect to personal information that Partner Broker obtains or otherwise has access to in connection with this Agreement, Partner Broker and Participating Agent may only use such personal information for the purposes of this Agreement (i.e., to provide the brokerage services requested by the owner of such personal information to such person). Any other purpose will require express permission from such person. Partner Broker and Participating Agent will use such personal information in accordance with applicable provisions of Tradewind’s privacy policy and may not use any such information for any unlawful purpose, including without limitation to provide spam or other unsolicited communications. Customer agrees to (i) defend Tradewind against any claim by a third party that arises or results from any breaches of this Section and (ii) indemnify Tradewind for settlement amounts or other damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of such claim.

Except as otherwise provided in this Section, each party agrees that all business, technical and financial information (including without limitation the terms of this Agreement) it obtains from the other party that is designated as confidential or proprietary in writing, or is disclosed in such a manner or of such a nature that a reasonable person would understand the nature and confidentiality of the information disclosed, is and shall be the confidential property of the disclosing party and its licensors (“Confidential Information”). Confidential Information shall not include information that: (i) is previously rightfully known to the receiving party without restriction on disclosure, (ii) hereafter becomes known to the general public, through no act or omission on the part of the receiving party, (iii) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (iv) is independently developed by the receiving party. For the avoidance of doubt, Confidential Information of Tradewind includes the terms and conditions of this Agreement. Except as expressly and unambiguously allowed herein, the receiving party will not use or disclose the Confidential Information except as expressly permitted herein and will hold in confidence the Confidential Information using the same degree of care as it holds its own confidential or proprietary information, but no less than a reasonable degree of care. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies or digests thereof) will be returned to the disclosing party, or, at the option of the disclosing party, destroyed, and the receiving party will make no further use of such materials. If required by law, rule, requirement, regulation or order of any government, government agency or court, the receiving party may disclose Confidential Information, but will give adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor. The parties acknowledge that money damages will not be an adequate remedy if this Section is breached; either party may, in addition to any other legal or equitable remedies, seek an injunction or other equitable relief against such breach without the necessity of posting any bond or surety.

Customer shall pay Tradewind, and Tradewind shall pay Customer, fees as set forth in each Order Form (“Fees”). There is no right of set-off in connection with such payment obligations. Unless otherwise specified in an Order Form, all invoices for such Fees issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due amounts are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with this Agreement (excluding taxes based on Tradewind’s net income). All Fees paid are non-refundable. Customer will be paid a Royalty Fee, provided that Tradewind shall have no obligation to pay the Royalty Fee to brokers if: (i) the lead or contact is also a Tradewind Owned Lead or Dual Ownership Lead; (ii) such contact is also received by Tradewind from another Partner Broker or Participating Agent and a lead is generated with marketing attributed to such other Partner Broker or Participating Agent, which lead results in a Transaction or (iii) no Transaction that directly originated from the applicable lead or contact has closed within twelve (12) months after Customer provided such lead or contact to Tradewind to nurture or market to.

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party, including without limitation any Participating Agent, to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Messenger App (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Services, including without limitation the Messenger App; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Messenger App; (iv) use the Services for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Messenger App or any portion thereof; (vi) use the Services to build an application or product that is competitive with any Tradewind product or service; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (viii) bypass any measures Tradewind may use to prevent or restrict access to the Messenger App (or other accounts, computer systems or networks connected to the Messenger App). Without limiting the foregoing, Customer cannot, and will not permit any third party, including without limitation any Participating Agent, to repackage, modify, create derivatives of, or resell any content Tradewind provides to them or for them or try to rebuild the Services, in whole or in part, on their own (themselves or with the assistance of any third parties). Customer is responsible for all of Customer’s activity in connection with the Services. Customer shall act in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Services and this Agreement (including those related to data privacy).

Customer acknowledges and agrees that (i) the Services may operate on, with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (e.g., other vendors of Customer) (“Third Party Integrations”), (ii) the availability and operation of the Services or certain portions thereof may be dependent on Tradewind’s ability to access such Third Party Integrations, and (iii) Customer’s failure to provide adequate access or any retraction of permissions relating to such Third Party Integrations may result in a suspension or interruption of the Services. Customer hereby represents and warrants that it has all rights, licenses, permissions and consents necessary to connect, use and access any Third Party Integrations that it integrates with the Services, and Customer shall indemnify, defend and hold harmless the Tradewind for all claims, damages and liabilities arising out of Customer’s use of any Third Party Integrations in connection with or through the Services. Tradewind cannot and does not guarantee that the Services shall incorporate (or continue to incorporate) any particular Third Party Integrations and does not make any representations or warranties with respect to Third Party Integrations. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Integrations and for complying with any applicable terms or conditions thereof. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. The “Order Form Term” and each party’s rights to terminate an Order Form are defined in the applicable Order Form. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, confidentiality and data privacy provisions, warranty disclaimers, indemnity and limitations of liability.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

EXCEPT FOR CUSTOMER’S BREACH OF SECTION 8 (RESTRICTIONS) AND CUSTOMER’S BREACH OF SECTION 5 (LEADS), EXCEPT IN CONNECTION WITH EACH PARTY’S PAYMENT OBLIGATIONS UNDER SECTION 7 (FEES; PAYMENT) AND EXCEPT IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, OR SUPPLIERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO TRADEWIND HEREUNDER IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

This Agreement (including all Order Forms) represents the entire agreement between Customer and Tradewind with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Tradewind with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control. The Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; epidemics; pandemics; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business or assets relating to this Agreement, and (ii) Tradewind may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.Any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of 30 days after notice of a dispute has been given by one party hereunder to the other (the last day of such 30 day period being herein referred to as the “Arbitration Date”), shall be finally settled by arbitration in Boston, Massachusetts, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the number and identity of the arbitrators within fifteen (15) days following the Arbitration Date, then a single arbitrator shall be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. The arbitrator(s) shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrator(s) may determine. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator(s), provided that a permanent injunction and damages shall only be awarded by the arbitrator(s).