Mongoose Master Service Agreement (MSA) – 2025

MASTER TERMS AND CONDITIONS

These Master Terms and Conditions are made and entered into this _____ day of ____ 202_ (the “Effective Date”), by and between Mongoose Research, Inc., a New York corporation with its principal office located at 505 Ellicott St, Buffalo, NY 14203 (“Mongoose”) and CLIENT, a STATE & TYPE OF INSTITUTION with its principal office located at ADDRESS ADDRESS ADDRESS  ADDRESS ADDRESS (“Client”), (each, a “Party” and collectively, the “Parties”). These Master Terms and Conditions and the Order(s) attached hereto or referencing these Master Terms and Conditions are collectively referred to as the “Agreement”

1. DEFINITIONS. The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1. “Affiliate” means, with respect to any entity, any other present or future entity controlling, controlled by, or under common control with such entity. For the purposes of this definition, control (and its derivatives) means, with respect to any entity, the possession, direct or indirect, of the power to solely direct or cause the direction of the management or policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise.

1.2. “AI” means software-based technology that enables corresponding computer systems to intake, store, process, learn, analyze, decipher, interact, communicate, write, assemble, compile and create based on input data and end user prompts.

1.3. “AI Assistant”: means that certain software program utilized by Mongoose which makes use of AI technology to generate content based on a custom-trained generative LLM, (e.g., generating replies to student inquiries, prompts or other communications on behalf of Mongoose staff, utilizing Cadence Credits for each response or prepared content transmitted in response to a student inquiry, prompt or other communication.

1.4. “Application Platform” or “Platform” means Mongoose’s proprietary application software and/or website, including the entire Cadence platform, all modules, functions, features identified in an Order, or otherwise generally made available by Mongoose to its clients, and all technology resources and infrastructure (e.g., hardware, third party software, etc.) supporting the Services. The Application Platform includes all updates, releases, improvements, and corrections to the Application Platform.

1.5. “Cadence Credits” or “Credits”: digital credits, which can be purchased by the Client, and which can be redeemed for Client’s access to and use of Mongoose’s AI Assistant feature, MMS messaging feature, and future channel services, including, but not limited to, Mongoose’s WhatsApp © (“WhatsApp”) channel.

1.6. “Confidential Information” means any and all technical, business, client or proprietary information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) directly or indirectly, including, but not limited to, information regarding the Disclosing Party’s business strategies and practices, methodologies, trade secrets, know-how, pricing, technology, software, product plans, services, relationships with any third party, client lists and information regarding the Disclosing Party’s employees, clients, vendors, consultants and Affiliates regardless of whether such information is marked “confidential” or some other proprietary designation, but which by its nature is information that would reasonably be considered to be confidential information of the Disclosing Party. In the case of Mongoose, Confidential Information includes the Application Platform and its source code.

1.7. “Documentation” means Mongoose’s user guides and manuals, and other related documents provided to Client or its users relating to the Services and Application Platform, including on-line help, as updated and amended from time to time.

1.8. “End Users” means Client’s administrators and/or Client’s information technology representatives, as authorized by Mongoose under this Agreement or an Order. 

1.9. “Implementation Services” means the data migration, implementation, integration (e.g., APIs), enhancement, and development services described in an Order that Mongoose will complete to comply with the specifications and requirements set out in such Order.

1.10. “Intellectual Property” means all algorithms, application programming interfaces (APIs), apparatus, concepts, Confidential Information, data, databases and data collections, deliverables, designs, diagrams, Documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos and slogan), methods, models, procedures, processes, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology.

1.11. “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) patent and industrial property rights; (e) other proprietary rights in Intellectual Property of every kind and nature; and (f) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (a) through (e) of this sentence.

1.12. “MMS” means the sending of multimedia content (e.g., image, audio, video or hyperlinks to webpages) via text messaging.

1.13. “Order” means an order pursuant to which from time-to-time Client orders Services or rights to the Application Platform.

(a) “Order Forms” means the form on which Client Orders Services or rights to the Application Platform from Mongoose.

(b) “Order Start Date” means the date on which the Services commence and is set forth in the applicable Order.

(c) “Services” means the services that may be ordered by Client under an Order, which may or may not include: (i) limited access and use rights to the Application Platform; (ii) hosting services; (iii) support services; (iv) consulting services; (v) Implementation Services; (vi) compliance management services with A2P brand registration, TCR registration, Long Code registration, and 10DLC compliance; (vii) limited access and use rights to the AI Assistant; (viii) limited access and use rights to MMS messaging; (ix) limited access and use rights to certain future channel services (e.g., WhatsApp); and (x) any other similar generally applicable services that Mongoose provides to its clients in accordance with the Documentation.

2. SOFTWARE-AS-A-SERVICE RIGHTS, OBLIGATIONS, AND LIMITATIONS.

2.1. Provision of Services and Application Platform. Mongoose grants Client a non-exclusive, non-transferable (except in compliance with Section 10.2) license to use the Platform and applicable Services in accordance with the applicable Order, Documentation, and other terms of this Agreement. Mongoose will make available to Client and its End Users on a non-exclusive and non-transferable basis the Services, Application Platform, and Documentation in accordance with the applicable Order, Documentation, and other terms of this Agreement. Phone Number Validation will only be used for contact phone numbers currently used with or intended for use with the Platform in the offices specified in this Agreement. Client shall not permit, and shall take reasonable measures to prevent, anyone apart from authorized individuals pursuant to the terms of an Order to use and access the Platform by and on behalf of Client. Client shall not otherwise use, share, copy, access or allow access to the Platform. Client’s license is non-exclusive, terminating, revocable and non-transferable, for the time period specified in the applicable Order Form(s); subject to full payment by Client. Client shall not directly or indirectly, (a) sell, assign, lease, sublicense, disclose, grant access to, or otherwise transfer the Platform or any copy thereof to any other Party; (b) copy, modify, distribute, publicly display, or publicly perform the Platform or create derivative works thereof; (c) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (d) input or transfer any personal identifying information or Excluded Data (as defined in Section 5.4 below) through the use of the Services; or (e) attempt to adapt, decipher, reverse translate, decompile, disassemble or otherwise reverse engineer, reconstruct, discover, or otherwise attempt to derive or gain access to any source code or underlying ideas, algorithms, processes know-how or other related technology of the Platform.

2.2. Access and Use Rights. Client will be responsible for providing its own internet access to the Application Platform. Mongoose may specify reasonable procedures in the Documentation according to which Client and End Users may establish and obtain such access to and use of the features and functions of the Services and Application Platform through the internet, including, without limitation, provision of any access codes, passwords, websites, connectivity standards or protocols, or any other relevant procedures. Client shall have access to the Platform from evergreen web browsers (browsers that are automatically upgraded to future versions) which currently include Google Chrome, Microsoft Edge, and Firefox. Cadence also works on the certain proprietary browser commonly known as Safari. Access to the Platform may include the ability to use certain Mongoose functionalities and features, including, but not limited to, end user texting, MMS messaging, the AI Assistant, and other administrative functions per terms specified in the applicable Order Form and subject to the corresponding purchase and redemption of Credits, as applicable.

2.3. AI Assistant. Mongoose will only train the underlying AI model on information, data and other content as provided from the Client, but, for the sake of clarity, Mongoose does not guarantee the accuracy or completeness of, nor is Mongoose liable for, any generated content from the AI Assistant. Client’s access to and usage of the AI Assistant is subject, at all times, to Client’s ongoing purchase and redemption of sufficient Cadence Credits.

2.4. Cadence Credits. Upon timely receipt of all sums due and owing to Mongoose pursuant to the applicable Order Form, Client shall receive that certain number of Cadence Credits  as set forth in the corresponding Order Form. Cadence Credits do not expire and are not transferrable. A current balance of all Cadence Credits available to Client will be provided by Mongoose upon request from Client. While any Credits purchased or accrued will be available until used or the expiration of earlier termination of this Agreement, Cadence Credits carry no redeemable or refundable value.

2.5. No Emergency Use. THE PLATFORM MAY NOT BE UTILIZED FOR EMERGENCY ALERTS. ANY ATTEMPT TO DO SO MAY RESULT IN IMMEDIATE TERMINATION OF THE CLIENT’S RIGHT TO UTILIZE THE PLATFORM AS DETERMINED BY MONGOOSE.

2.6. Trust Score.  A Client’s trust score (“Trust Score”) is assigned by the Campaign Registry (“TCR”) TCR is an independent third-party created by wireless carriers to vet all message traffic being sent via applicationtoperson (“A2P”) messaging.  Client acknowledges and agrees that Mongoose shall be in no way responsible or liable for the Trust Score assigned to Client.  Client shall contact TCR regarding any issues with its Trust Score.   

2.7. Orders. The initial Order is attached hereto as Order Form and includes all attachments thereto (the “Initial Order”). If Client desires to access or use additional Services or Platform Applications and/or increase any limitation on the number of named users, concurrent users, devices, location, transactions, or other elements, as applicable, in the initial Order or any subsequent Order, the authorized representatives of the Parties will execute a new Order. Upon Mongoose’s written acceptance of the new Order, such new Order will be effective. All Orders are subject to and hereby incorporate all Order Forms and the terms of this Agreement.

2.8. Limitations on Use. Except as otherwise provided in this Agreement, Client will not: (i) sell, rent, assign, grant access to, lease, sublicense or otherwise transfer or distribute the Application Platform, AI Assistant, Mongoose’s certain channel services, or Documentation or any copies of the Application Platform, AI Assistant, Mongoose’s certain channel services, or Documentation; (ii) copy, modify, publicly perform, translate, reverse engineer, decompile or disassemble the Application Platform, AI Assistant, or Mongoose’s certain channel services; (iv) create any copy of or “mirror” the Application Platform, AI Assistant, or Mongoose’s certain channel services; (v) alter, destroy or otherwise remove any proprietary notices or labels on or embedded within the Application Platform, AI Assistant, Mongoose’s certain channel services or Documentation; or (vi) attempt to adapt, decipher, reverse translate, decompile, disassemble or otherwise reverse engineer, reconstruct, discover, or otherwise attempt to derive or gain access to any source code or underlying ideas, algorithms, processes know-how or other related technology of the Application Platform, AI Assistant, or Mongoose’s certain channel services.

2.9. Acceptable Use. Client shall not: (a) use the Platform or any Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform, AI Assistant, or Mongoose’s certain channel services, except Client’s End-Users as specifically authorized by this Agreement; (b) provide Platform passwords or other log-in information to any third party, except Client’s designated employees and representatives as specifically authorized by this Agreement; (c) share non-public Platform features or content (including, but not limited to, the features and content of the Platform, AI Assistant, or Mongoose’s certain channel services)_ with any third party, except as specifically authorized by this Agreement; (d) access or make use of the Platform or any Services in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics, or to copy any ideas, features, functions or graphics of the Platform, AI Assistant, or Mongoose’s certain channel services; or (e) engage in web scraping or data scraping on or related to the Platform, AI Assistant, or Mongoose’s certain channel services, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that it suspects any breach of the requirements of this Section 2.9 (Acceptable Use), Mongoose may suspend Client’s access to the Platform and any applicable Services without advanced notice, in addition to such other remedies as Mongoose may have.

2.10. WhatsApp Compliance. Mongoose shall, from time to time, rely on WhatsApp, a communications system and related software, for performance of certain Services as requested by Client pursuant to one (1) or more applicable Order(s). WhatsApp has implemented: (i) a business messaging policy that applies to businesses and WhatsApp end-users (the “WhatsApp Business Messaging Policy”); and (ii) standard messaging guidelines (the “WhatsApp Messaging Guidelines”, and together with the WhatsApp Business Messaging Policy, the “WhatsApp Messaging Policy”), which may include messaging between Client and its End Users. Client agrees that Client, its employees and its End Users of the Platform shall comply with the WhatsApp Messaging Policy at all times (including all future updates and variations thereof and thereto). Mongoose shall in no way be liable for any interruption in service, suspension of account, or other action by WhatsApp resulting from Client, its employees or its End User’s failure to comply with the WhatsApp Messaging Policy.

2.11. Twilio Compliance.  Mongoose relies on Twilio, a major provider of internet-exposed communication systems and software, for Mongoose’s Platform to facilitate message delivery, number validation, carrier look-ups, delivery status for messages, and other related services.  Twilio has implemented a messaging policy that applies to all messaging channels (the “Twilio Messaging Policy”), including messaging channels utilized by Client and its End Users.  Client agrees that Client, its employees, and its End User’s of the Platform shall comply with the Twilio Messaging Policy at all times (including future updates and variations of the Twilio Messaging Policy).  Mongoose shall in no way be liable for any interruption in service, suspension of account, or other action by Twilio resulting from Client, its employees, or its End User’s failure to comply with the Twilio Messaging Policy.  

2.12. Client’s Employees & Other Users; Platform Access. Client is strictly responsible and liable for: (a) Client’s employees’ and authorized users’ access to and use of the Platform, AI Assistant and Mongoose’s certain channel services, including without limitation unauthorized conduct; and (b) any access to or use of the Platform, AI Assistant and Mongoose’s certain channel services through Client’s account, whether authorized or unauthorized. 

3. FEES.

3.1. Fees.  Client will pay Mongoose the charges set forth in the applicable Order for the provision and use of the Services and Application Platform (the “Charges”), subject to the other provisions of this Section 3 (Fees).

3.2. Payment of Fees. All Charges and other amounts payable by Client under this Agreement, are due and payable within thirty (30) days of Client’s receipt of the applicable invoice submitted in compliance with the applicable Order. If a Charge is not paid within ten (10) days after Client’s receipt of a notice from Mongoose of a past due Charge, a late payment fee of two percent (2.0%) of the balance due or the maximum amount permitted by law, whichever is lower, will be due and payable by Client to Mongoose for each month such invoice remains unpaid. Mongoose will not be required to refund the Total Initial Investment under any circumstances. Amounts due under this Agreement are payable to Mongoose without deduction, set-off, or abatement.

3.3. Reimbursement of Expenses. Client will reimburse Mongoose for any reasonable out-of-pocket expenses which are approved by Client (such approval not to be unreasonably withheld or delayed) prior to being incurred by Mongoose for the performance of the Services. Mongoose will submit to Client an invoice for expenses incurred in such form and detail as Client reasonably requires. 

3.4. Taxes. Except for taxes based upon Mongoose’s income or for goods or services used or consumed by Mongoose in connection with providing the Services under this Agreement, Client will be responsible for all sales, use, excise, duties, tariffs, or any other form of taxes (excluding withholding taxes related to Mongoose, its employees, agents or subcontractors) resulting from Client’s use of the Application Platform or imposed, levied, or assessed in connection with Client’s use of the Services and Application Platform, unless Client provides Mongoose with a valid tax exemption certificate authorized by the appropriate taxing authority. 

3.5. Right to Inspection. Client grants to Mongoose, or its independent accounts, upon fifteen business (15) days prior written notice, the right to reasonably examine those portions of its books, records and accounts related to this Agreement during Client’s normal business hours and not more than once per year solely to verify Client’s compliance with this Agreement. If any audit of Client’s books and records reveals that Client has failed properly to account for and pay any amounts due and payable to Mongoose hereunder (an “Underpayment”), and the amount of any such Underpayment exceeds by five percent (5%) or more the amounts actually accounted for and paid to Mongoose, then Client will pay Mongoose with five (5) business days of Client’s receipt of notice from Mongoose, all undisputed (in good faith by Client) past due amounts and reimburse Mongoose for Mongoose’s reasonable expenses incurred in conducting the audit.

4. TERM OF AGREEMENT AND DEFAULT.

4.1. Term. The term of this Agreement will commence upon the Effective Date and will be coterminous with the Initial Order. If any subsequent Orders are executed by the Parties referencing this Agreement, this Agreement will continue in effect with respect to the term of such subsequent Orders. The “Term” means the term of the Initial Orders and any subsequent Orders, including renewals and extensions.

4.2. Termination. Either Party may terminate this Agreement or any Order, for the other’s material breach by written notice specifying in detail the nature of the breach, effective 30 days following delivery of such written notice in instances of a non-monetary breach and 10 days following delivery of such written notice in instances where a required payment from Client to Mongoose is due, unless the other Party first cures such breach. Upon termination, Client may exercise the option to purchase assigned phone numbers for a fee of $1,500 to be paid in full to Mongoose at the time of termination. Any balance of Client’s unused Cadence Credits, as of the effective date of termination of this Agreement, will be forfeited by Client and not reimbursable to Client.

4.3. Effects of Termination. Upon termination of this Agreement the license and rights granted hereunder will be terminated, and (i) Client shall cease all use of the Platform and delete, destroy, or return all copies of any Mongoose manuals in its possession or control (and provide written confirmation of deletion or destruction to Mongoose, if applicable), (ii) the Application Platform (and associated Services) will cease to be accessible to Client or to its users, (iii) upon the Disclosing Party’s written request, the Receiving Party will immediately return all Confidential Information to the Disclosing Party, and (iv) Client will pay all accrued Charges within thirty (30) days of the invoice or the date termination occurred, whichever is earlier. The following provisions will survive termination or expiration of this Agreement: (i) any obligation of Client to pay fees incurred before termination; (ii) Articles and Sections pertaining to intellectual property, Confidential Information, any disclaimers of warranty disclaimers, indemnity, and any limitation of liability; and (iii) any other provision of this Agreement that must survive to fulfill its essential purpose.

5. OWNERSHIP AND DATA.

5.1. Ownership Rights. Except for the license and other rights expressly granted to Client in this Agreement, Mongoose retains all right, title, and interest in and to the Application Platform, Documentation, and Mongoose’s Confidential Information, including all Intellectual Property Rights therein. Further, Client acknowledges and agrees that the Application Platform, derivatives thereof, ideas, methods of operation, modifications, changes, enhancements, conversions, upgrades, additions, sub-systems, and modules included in the foregoing are proprietary material, and which contain valuable trade secrets of Mongoose.

5.2. Feedback. Mongoose has not agreed to and does not agree to treat as Confidential Information any Feedback (as defined below) that Client or Client’s End-Users provide to Mongoose, and nothing in this Agreement or in the Parties’ dealings arising out of or related to this Agreement will restrict Mongoose’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client or Client’s End-Users in question. Feedback will not constitute Client’s Confidential Information. “Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Client’s Platform or the Services.

5.3. Data. Mongoose may disclose data in electronic form inputted or collected through the Platform by or from Client, including without limitation by Client’s users, students, or prospective students (“Client Data”) if required by applicable law or by proper legal or governmental authority. Mongoose shall give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense. Client recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Platform, Client assumes such risks. Mongoose offers no representation, warranty, or guarantee that Client Data will not be exposed or disclosed through errors or the actions of third parties. Mongoose will have no responsibility or liability for the accuracy of data uploaded to the Platform by Client, including without limitation Client Data and any other data uploaded by users, students, or prospective students, or the AI Assistant, or content or replies based on said data. Mongoose may, in its sole discretion, permanently erase Client Data if Client’s account is delinquent or suspended for 30 days or more. Mongoose will permanently erase Client Data upon termination or non-renewal. Mongoose also reserves the right to perform, or delegate, analyses of system data, from any and all sources, and utilize those summary results for its own purposes without limitation as permissible by law.

5.4. Excluded Data. Client represents and warrants that Client Data does not and will not include, and Client has not and shall not upload or transmit to its computers or other media, any data (“Excluded Data”) regulated pursuant to the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and the regulations promulgated under these statutes, including without limitation, the privacy and security regulations (45 C.F.R. 160 and 164) and the transaction and code set regulations (45 C.F.R. 162) (collectively, “HIPAA”), the New York Stop Hacks and Improve Electronic Data Security Act (“SHIELD Act”), the General Data Protection Regulation 2016/679 (“GDPR”), the Personal Information Protection and Electronic Documents Act (“PIPEDA”), or any other similar national, state, or international laws, ordinances, decrees, orders, rules, or regulations  (the “Excluded Data Laws”). CLIENT RECOGNIZES AND AGREES THAT: (a) MONGOOSE HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) MONGOOSE’S SYSTEMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.

6. CONFIDENTIAL INFORMATION.

6.1. General. During the Term of this Agreement and thereafter, each Party will treat as confidential all Confidential Information of the other Party, will not use such Confidential Information except as expressly set forth herein or otherwise authorized in writing, will implement reasonable procedures to prohibit the unauthorized use, disclosure, duplication, misuse or removal of the other Party’s Confidential Information and will not disclose such Confidential Information to any third party except as may be necessary and required in connection with the rights and obligations of such Party under this Agreement, and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the foregoing, each of the Parties will use at least the same procedures and degree of care which it uses to prevent the disclosure of its own confidential information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement, but in no event less than reasonable care. Except as expressly authorized in this Agreement, neither Party will copy Confidential Information of the other Party without the Disclosing Party’s prior written consent. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Mongoose will retain all right, title, and interest in and to all its Confidential Information.

6.2. Exclusions. Except as otherwise provided below, Confidential Information will not include, or will cease to include, as applicable, Confidential Information that the Receiving Party can document and prove: (a) is or becomes generally available to the public through no improper action or inaction by the Receiving Party; (b) was known by the Receiving Party or in the Receiving Party’s possession prior to receipt of the Disclosing Party’s Confidential Information as shown by the Receiving Party’s business records kept in the ordinary course; (c) is disclosed with the prior written approval of the Disclosing Party; (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information and provided that the Receiving Party can demonstrate such independent development by documented evidence prepared contemporaneously with such independent development; or (e) becomes known to the Receiving Party from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights. The exclusions in this section will not apply with respect to any personal or private data that requires protection under applicable laws or regulations.

6.3. Court Order. The Receiving Party may disclose Confidential Information of the other Party only pursuant to the other or requirement of a court, administrative agency, or other governmental body (a “Court Order”), and only provided that the Receiving Party provides prompt, advance written notice thereof to enable the Disclosing Party to seek a protective order or otherwise prevent such disclosure, unless such Court Order restricts Receiving Party’s ability to provide written notice to the Disclosing Party. In the event such a protective order is not obtained by the Disclosing Party, the Receiving Party will disclose only that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose. Confidential Information so disclosed will continue to be deemed Confidential Information as between the Parties hereto.

6.4. Remedies. If either Party breaches any of its obligations with respect to confidentiality or unauthorized use or disclosure of Confidential Information hereunder, the other Party is entitled to seek equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.

6.5. Return. Upon the Disclosing Party’s written request, the Receiving Party will promptly return or destroy (with written confirmation provided to Disclosing Party following destruction of the Confidential Information), at the Disclosing Party’s option, all tangible copies of the Disclosing Party’s Confidential Information.

6.6. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Client is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

(a) An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(b) An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

7. REPRESENTATIONS & WARRANTIES.

7.1. Representations and Warranties.  Client represents and warrants to Mongoose (a) that it is fully empowered and had the authority to enter into this Agreement, and that its execution hereof does not constitute, either directly or indirectly, by act or omission, a breach of any other obligation owed by Client to any third-party and (b) that Client, its employees, independent contractors, successors, assigns, and its End Users will comply with the Twilio Messaging Policy and WhatsApp Messaging Policy at all times (including future updates and variations thereof and thereto).

7.2. Warranty Disclaimers. CLIENT ACCEPTS ALL MONGOOSE PRODUCTS AND SERVICES “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) MONGOOSE HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CLIENT OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) MONGOOSE DOES NOT REPRESENT OR WARRANT THAT ITS PRODUCTS OR SERVICES WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) MONGOOSE DOES NOT REPRESENT OR WARRANT THAT ITS PRODUCTS OR SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CLIENT DATA WILL REMAIN PRIVATE OR SECURE.

8. INDEMNIFICATION AND LIMITATION OF LIABILITY.

8.1. Indemnification. To the fullest extent permitted by law, Client shall defend, indemnify, and hold harmless Mongoose and the Mongoose Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Client’s alleged or actual use of, misuse of, or failure to use the Platform, AI Assistant or Mongoose’s certain channel services, including without limitation: (a) claims by users or by Client’s employees, as well as by Client’s own customers, students, or prospective students; (b) claims of breach or noncompliance of or with the Twilio Messaging Policy, the WhatsApp Messaging Policy, or any other applicable third party terms, conditions, policies or procedures; (c) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including customer, student, or prospective student data; (d) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Platform through Client’s account, including without limitation by Client data; and (e) claims that use of the Platform, AI Assistant, or Mongoose’s certain channel services through Client’s account harasses, defames, or defrauds a third party or violates the Controlling the Assault of Non-Solicited Pornography and Marketing At of 2003 (the “CAN-SPAM Act”), the Telephone Consumer Protection Act (“TCPA”), Canada’s Anti-Spam Legislation (“CASL”), or any other state, local, national, or international, law, decree, ordinance, order, rule, regulation, or restriction on electronic advertising or solicitation. Indemnified Claims include, without limitation, claims arising out of or related to Mongoose’s negligence. Client’s obligations set forth in this Section 8 (Indemnification) include retention and payment of attorneys and payment of court costs, as well as settlement at Client’s expense and payment of judgments. Client will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. The “Mongoose Associates” are Mongoose’s officers, directors, shareholders, parents, employees, subsidiaries, agents, successors, and assigns.

8.2. LIMITATION OF LIABILITY. IN NO EVENT WILL MONGOOSE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION, INFRINGEMENT OR OTHER CONTRACT OR TORT CLAIMS) EXCEED THE TOTAL CHARGES PAID BY CLIENT TO MONGOOSE DURING THE MOST RECENT 12 MONTH PERIOD PRIOR TO THE LAST EVENT GIVING RISE TO LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. If applicable law limits the application of the provisions of this Section 8.2 (Limitation of Liability), Mongoose’s liability will be limited to the maximum extent permissible.

8.3. Cumulative Rights. Except as otherwise expressly provided herein, all rights and remedies of the Parties are separate and cumulative and no one right, whether exercised by a Party or not, shall be deemed to be in exclusion of any of the other rights. The waiver or failure of either Party to exercise in any respect any right or remedy provided herein will not be deemed a waiver of any further right or remedy hereunder. For the avoidance of doubt, Mongoose’s liability limits and other rights set forth in this Section 8 (Indemnification and Limitation of Liability) apply likewise to Mongoose’s Affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.

9. EXCUSABLE DELAY. Neither Party will be liable to the other for any loss, damage, delay, or breach in performing any obligations hereunder to the extent resulting from any cause or event beyond the control of the Party being released hereby, including acts of God, pandemic, epidemic, telecommunication or power suppliers, and acts or omissions of civil or military authorities, or passage of law or any action taken by a governmental or public authority.

10. MISCELLANEOUS.

10.1. Compliance with Laws. Client shall strictly adhere to any and all applicable laws, regulations or guidelines, as well as any professional or ethical codes, relating to the use of data, including, without limitation, all restrictions relating to the privacy of any personally identifiable information or other information. All mobile phone numbers are to be provided by Client, and Client shall have sole responsibility for determining and warrants that those mobile phone numbers are held on an “opt-in” basis – where appropriate – under which the owner of the mobile phone number has agreed to the receipt of text message on behalf of Client under applicable law. Client shall have sole responsibility for receiving and processing removal requests.  Client warrants that it will process all removal requests received by mobile phone number owners, within ten (10) days of receipt of such request. 

10.2. Assignment. This Agreement will be binding on the Parties hereto and their respective successors and assigns. Client may not, and will not have the power to, assign this Agreement without the prior written consent of Mongoose. An assignment by operation of law, by order of any court, or pursuant to any plan of merger, consolidation or liquidation, and any change of control of Client through one or more series of transactions will be deemed an assignment of this Agreement for which prior written consent of Mongoose is required, and any assignment made without any such written consent will be void and of no effect. 

10.3. Relationship of the Parties. Client and Mongoose agree that neither Party will be an employee, agent, partner or joint venturer of or with the other. Mongoose, in furnishing the Services, is acting as Client’s independent contractor. Mongoose will be fully responsible for the acts and omissions of its employees, contractors, subcontractors, and other delegates as if they were performed by Mongoose. Neither Party has any authority to represent, contract, or commit the other in any matters, except as expressly authorized in this Agreement. 

10.4. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to conflict of law principles.

10.5. Escalation. Except as otherwise provided below, the following procedures will be followed in all legal controversies or disputes arising out of or related to this Agreement (“Disputes”), which the Parties cannot informally resolve at an operational level. The aggrieved Party will notify the other Party in writing of the nature of the Dispute with reasonable specificity. Representatives for the respective Parties will meet (telephonically or in person) within fourteen (14) business days after the receipt by the other party of the written notification of the Dispute to seek to reach an agreement on the Dispute and corrective action(s) to be taken by the respective Parties. If the representatives are unable to agree on corrective action, senior managers of the Parties having authority to resolve the Dispute (“Management”) will meet or otherwise act to facilitate an agreement within fourteen (14) business days after the date of the written report from such representatives. If Management cannot resolve the Dispute or agree upon a written plan of corrective action within seven (7) business days after their initial meeting, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either Party may exercise their individual rights under law or in equity. Except as otherwise specifically in this section, neither Party will initiate litigation unless and until this dispute resolution procedure has been employed or waived. Each Party agrees that it will continue to meet its obligations under the terms and conditions of this Agreement, except to the extent otherwise provided in Section 4 (Terms of Agreement and Default). All time periods set forth above may be extended by mutual consent to the Parties. The content of any and all discussions, negotiations, agreements, and/or disclosures made during this Dispute resolution process set forth in this section will be Confidential Information and as such will not be released to the public, nor will it be admissible in any court proceeding that a party or the Parties may initiate pursuant to this section. Notwithstanding anything to the contrary, nothing in this section will prevent or delay either Party from exercising its right to terminate in accordance with this Agreement and each Party is authorized to institute formal proceedings at any time to: (i) avoid the expiration of any applicable limitations period, (ii) obtain equitable relief, (iii) preserve a superior position with respect to other creditors, (iv) resolve a Party’s rights with respect to intellectual property, Confidential Information, or compliance, or (v) obtain injunctive relief.  Client shall at all times be required to make all payments due hereunder to Mongoose in accordance with the terms herein regardless of the Dispute.

10.6. Venue. Any claim, whether based on contract, tort, or other legal theory (including, but not limited to, any claim of fraud or misrepresentation), arising out or relating to this Agreement or any Order, including its interpretation, performance, breach or termination, not resolved by good faith negotiations and escalation as specified above, will be brought only in the United States District Court for the Western District of New York or, if such court would not have jurisdiction over the matter, then only in the State courts located in Erie County, New York, and each of the Parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. Service of process in any such action may be affected in the manner provided in Section 10.8 (Notices) for delivery of notices.

10.7. Interpretation. If any provision of this Agreement is found to be unenforceable, such provision will be deemed to be deleted or narrowly construed to such extent as is necessary to make it enforceable, and this Agreement will otherwise remain in full force and effect.

10.8. Notices. Except as provided in any express provision of this Agreement, any notice, request, approval, authorization, consent, demand, or other communication required or permitted to be given or made pursuant to this Agreement will be in writing (except where oral notice is specifically authorized in this Agreement) and will be deemed given upon actual receipt (or independent confirmation thereof) of notice by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the addresses first written above. A Party may from time to time change its address or designee for notification purposes by giving the other prior written notice of the new address or designee and the date, at least twenty (20) days from the date of the notice, upon which it will become effective.

10.9. Orders. All Orders are subject to and incorporate this Agreement, including its Order Forms. If there is a conflict between (i) an Order and (ii) these Terms and Conditions, these Terms and Conditions takes precedence, unless expressly provided otherwise and agreed to by the Parties. In addition, these Terms and Conditions take precedence over the Order Forms.

10.10. Counterparts. This Agreement may be executed in one or more counterparts, and such counterparts may be signed via electronic signature and delivered in electronic formation (including by facsimile and email), each of which shall be considered an original instrument, but all of which shall be considered one and the same Agreement.

10.11. Entire Agreement. This Agreement (including its Orders and Order Forms) constitute the entire agreement between Mongoose and Client with respect to the subject matter of this Agreement and may only be modified by a written amendment or addendum signed by both Parties.

10.12. Technology Export. Client shall not: (a) permit any third party to access or use the Platform, any Services, the AI Assistant or Mongoose’s certain channel services in violation of any U.S. law or regulation; or (b) export any software provided by Mongoose or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Client shall not permit any third party to access or use the Platform, any Services, the AI Assistant or Mongoose’s certain channel services in, or export such software to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).