Last Updated: October 10, 2024
EARNUP GENERAL SERVICES AGREEMENT

This General Services Agreement (the “Agreement”) is effective as of the Order Form Effective Date (the “Effective Date”) between EarnUp Inc., a Delaware corporation, having its principal place of business at 2370 Market Street Suite 203, San Francisco, CA, 94114 (“EarnUp”) and the company listed as “Customer” on an EarnUp Order Form referencing this GSA as the Order Form’s governing Terms and Conditions, (“Customer”).  Each of EarnUp and Customer are referred to as a “Party” and collectively, as the “Parties.”

Customer desires to obtain certain EarnUp Services from Customer for Customer’s User as designated on a Statement of Work to be added to this Agreement from time to time by mutual, written agreement of Customer and EarnUp. EarnUp desires to perform such EarnUp Services as an independent contractor on the terms and conditions set forth in this Agreement. In consideration of the foregoing, and of the mutual covenants and agreements set forth in this Agreement, EarnUp and Customer agree as follows:

1.                DEFINITIONS.  As used in this Agreement:

1.1             “User” means an individual consumer that is an obligor on a Mortgage in the Territory.

1.2             “EarnUp Marks” means EarnUp names, trademarks, trade names, services names, and logos including those provided by EarnUp to Customer to use in connection with the marketing of the EarnUp Product.

1.3             “EarnUp Services” means, as applicable, any or all of the products, programs and services that EarnUp may provide pursuant to this Agreement, as specifically set forth in the SOW.

1.4             “End User” means a Customer’s User that has created an EarnUp account to access and use any of EarnUp’s Services.

1.5             “Intellectual Property Rights” means all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, mask work rights, moral rights, and other proprietary rights recognized by the laws of any country.

1.6             “Mortgage” means, as applicable, any mortgage loan that is originated or serviced by Customer, including any mortgage loan that (i) has been sold, transferred or assigned to Customer by another lender or loan service or (ii) resumes payments post-forbearance or otherwise re-performs.

1.7             “Open Source Components” has the meaning given in Section 2.3.

1.8             “Territory” means the countries or states specified in the applicable SOW.

1.9             “Term” has the meaning given in Section 11.1.

1.10          “User Documentation” means, as applicable, any user documentation furnished to Customer by EarnUp.

2.                EARNUP SERVICES.

2.1             Right to Use EarnUp Services.  Subject to the terms and conditions of this Agreement and an applicable Statement of Work (“SOW”), EarnUp shall provide the EarnUp Services to Customer and Customer’s User’s during the Term defined and set forth in a Statement of Work.

2.2             Restrictions. Customer acknowledges that each EarnUp Product and its structure, organization, and source code constitute valuable trade secrets of EarnUp and its licensors.  Accordingly, Customer will not, directly or indirectly, or permit any third party, including any Customer User to: (a) modify, adapt, alter, translate, or create derivative works based on any EarnUp Services or User Documentation; (b) assign, distribute or otherwise transfer its rights to access or use the EarnUp Services or User Documentation to any third party (except to assign its rights in accordance with Section 13.7); (c) provide unauthorized access to or use of the EarnUp Services or User Documentation to any third party (except as may be expressly authorized under an applicable SOW); (d) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code,  algorithms, or other configurations or components of the EarnUp Services; (e) remove any proprietary notices from any EarnUp Services, User Documentation, or any other materials furnished or made available hereunder, except as expressly permitted herein; (f) use any EarnUp Services for timesharing or service bureau purposes; or (g) use any EarnUp Services or User Documentation for any other purpose other than as permitted under this Agreement, including using any EarnUp Services in any way to create products or services similar to or competitive with EarnUp Services or, without EarnUp’s prior written consent, publicly disclosing any benchmarking or competitive review of EarnUp Services.  Customer must reproduce, on all copies made by or for Customer, and must not remove, alter, or obscure in any way all proprietary rights notices (including copyright notices) of EarnUp or its licensors on or within the copies of the User Documentation furnished by EarnUp to Customer.

2.3             Open Source Components.  Certain Open Source Components provided in or with the EarnUp products (“Open Source Components”) are subject to various “open source” or “free software” licenses. EarnUp may supplement such Open Source Components from time to time for any updates or upgrades to an EarnUp product that EarnUp provides as maintenance.  Customer’s and Customer’s Users’ use of the Open Source Components is subject to and governed by the license that accompanies the Open Source Component and is not subject to the terms and conditions of this Agreement, except that Sections 2.2, 8.3 and 10 of this Agreement also govern the use of the Open Source Components.  Nothing in this Agreement grants Customer rights that supersede the terms and conditions of any applicable license for the Open Source Component. Customer agrees to comply with the terms and conditions contained in all such Open Source Component licenses.

2.4             Customer Trademark License. Customer hereby grants to EarnUp a limited, non-exclusive, and royalty-free right and license to use, reproduce, display and distribute the Customer Marks during the Term solely in connection with providing the EarnUp Services as described in this Agreement or an applicable SOW, and as permitted under Section 13.2, below.  Customer grants no rights in the Customer Marks other than those expressly granted in this Section 2.4 and EarnUp acknowledges Customer’s exclusive ownership of Customer Marks.  EarnUp agrees not to take any action inconsistent with such ownership.

3.                SECURITY.  The Parties agree to comply with the requirements of Exhibit B – Information Security Addendum with respect to any receipt, storage or access of Personal Information (as defined in the Information Security Addendum) under this Agreement.

4.                FEES AND PAYMENT.

4.1             Fees.  Customer will pay to EarnUp the fees specified in the applicable SOW.  All fees are in United States dollars and are non-refundable.

4.2             Payments.  Customer will pay EarnUp all amounts due under this Agreement within thirty (30) days after the date of the invoice therefor.  Any amount that is not paid when due will accrue interest at one and a half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. 

4.3             Taxes.  Customer will be responsible for and will indemnify and hold EarnUp harmless from payment of all taxes (other than taxes based on EarnUp’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of fees to EarnUp under this Agreement.  Customer will make all payments of fees to EarnUp free and clear of, and without reduction for, any withholding taxes.

5.                RECORDS AND AUDITS.

5.1             Records.  During the Term and for two (2) years thereafter, Customer will maintain at its principal place of business complete and accurate records with respect to Customer’s activities pursuant to this Agreement, including all data needed for verification of compliance with this Agreement and amounts paid and payable to EarnUp under this Agreement. Customer may meet the requirements of this Section 5.1 by hosting such records in a “cloud” or other secure online service.

5.2             Audits.  EarnUp will have the right, during the Term and for two (2) years thereafter, normal business hours to audit or have an independent audit firm selected by EarnUp audit Customer’s records relating to Customer’s activities pursuant to this Agreement in order to verify that Customer has paid to EarnUp the correct amounts owed under this Agreement and otherwise complied with the terms of this Agreement.  The audit will be conducted at EarnUp’s expense, unless the audit reveals that Customer has underpaid the amounts owed to EarnUp by five percent (5%) or more during the audited period, in which case Customer will reimburse EarnUp for all reasonable costs and expenses incurred by EarnUp in connection with such audit.  Customer will promptly (but in no event more than ten (10) business days) pay to EarnUp any amounts shown by any such audit to be owing plus interest as provided in Section 4.2. 

6.                CUSTOMER OBLIGATIONS.

6.1             Marketing and Sales Representations. Customer will not make or publish any false or misleading representations, warranties, or guarantees on behalf of EarnUp or its licensors concerning the EarnUp Services that are inconsistent with any warranties made by EarnUp.

6.2             Insurance.  During the Term and for two (2) years thereafter, Customer will maintain, at its sole cost and expense, (i) insurance coverage in the event of its loss of confidential data, including Customer’s User data, with limits of not less than $3,000,000 per occurrence and (ii) appropriate and comprehensive general liability insurance with limits of not less than $3,000,000. The insurance required by this Section 6.4 will be maintained with reputable insurance companies with an AM Best Rating of at least A-VII that is duly licensed to conduct business. Customer will provide its certificate of insurance to EarnUp upon request. Customer will give EarnUp at least thirty (30) days’ prior written notice if any policy materially changes or is cancelled.

7.                CONFIDENTIALITY.

7.1             Confidential Information.  Each Party (the “Disclosing Party”) may from time to time during the Term disclose to the other Party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”).  The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend.  The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure.  Regardless of whether so marked or identified, however, any information that the Receiving Party reasonable knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party.

7.2             Protection of Confidential Information.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

7.3             Exceptions.  The Receiving Party’s obligations under Section 7.2 with respect to any Confidential Information of the Disclosing Party will not apply if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is or was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is or was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding, or (iii) required by law or by the order or a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

7.4             Return of Confidential Information.  The Receiving Party will return to the Disclosing Party or at the Disclosing Party’s election, destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first.  At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 7.4.

7.5             Confidentiality of Agreement.  Neither Party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law, or (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of such Party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other Party to this Agreement).

8.                REPRESENTATIONS AND WARRANTIES.

8.1             Mutual Representations and Warranties.  Each Party represents and warrants that (i) it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of formation, (ii) it has the corporate and legal authority and power to enter into this Agreement and to perform the obligations set forth herein, (iii) no authorization or approval from any other person is required in connection with such party’s execution, delivery, or performance of this Agreement, (iv) the execution, delivery, and performance of this Agreement does not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound, (v) there is no pending, nor to the knowledge of such party, threatened, suit, action, arbitration or other proceedings of a legal, administrative or regulatory nature, or any governmental investigation, against such party or any of its Affiliates or any officer, director or employee which has not been previously disclosed to the other party in writing and which would materially and adversely affect such Party’s ability to perform its obligations under this Agreement, and (vi) each Party has registered for and obtained and will maintain all required licenses and permits from all regulatory authorities for it to lawfully engage in the business in which it is engaged, including without limitation, any required for it to complete its obligations under this Agreement; and (vii)  it will at all times comply with all applicable laws, rules and regulations. For purposes of this Agreement, “Affiliate(s)” means an entity that, directly or indirectly, owns, is owned by or is under common ownership with a Party. As used herein, “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of such Party.

8.2             Disclaimer of Warranty.  THE EXPRESS WARRANTIES IN THIS SECTION 8 ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE EARNUP SERVICES OR IF APPLICABLE THE USER DOCUMENTATION, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EARNUP DOES NOT WARRANT THAT USE OF THE EARNUP SERVICES WILL PRODUCE ANY RESULTS OR WILL BE SECURE, ERROR-FREE OR UNINTERRUPTED. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT AND THAT NO WARRANTIES ARE MADE BY ANY OF EARNUP’S LICENSORS.

9.                INDEMNIFICATION.

9.1             Indemnification by Customer.  Customer agrees to defend EarnUp, its Affiliates and their respective officers, directors, employees, and representatives from and against any claim, suit or proceeding brought by a third party (“Claim”) relating to: (a) any representations, warranties, guarantees, or other written or oral statements made by or on behalf of Customer relating to the EarnUp Services other than as authorized by EarnUp in writing or made in the User Documentation, (b) a security breach of Customer; or (c) Customer’s performance of its obligations hereunder and under any applicable SOW (including without limitation any breach by Customer of Sections 2.1, 2.2, 3, 4.2, 5, 7, or 8).  Customer will indemnify and hold EarnUp harmless against those costs and damages finally awarded against EarnUp in any such Claim (including reasonable attorneys’ fees) or those costs and damages agreed to in a monetary settlement of such Claim.

9.2             Indemnification by EarnUp.  EarnUp agrees to defend Customer and its officers, directors, employees, and representatives from and against any third-party Claim that the EarnUp Services infringe any U.S. patents or copyrights, or misappropriates any trade secrets, and EarnUp will indemnify and hold Customer harmless against those costs and damages finally awarded against Customer in any such Claim (including reasonable attorneys’ fees) or those costs and damages agreed to in a monetary settlement of such Claim. If the EarnUp Services becomes, or in EarnUp’s opinion is likely to become, the subject of an infringement claim, EarnUp may, at its option and expense, either (a) procure for Customer the right to continue exercising the rights granted to Customer in this Agreement, (b) replace or modify the EarnUp Services so that it becomes non-infringing and remains functionally equivalent, or (c) provide a pro rata refund to Customer of any prepaid fees for EarnUp Services not yet rendered, and terminate this Agreement.  Notwithstanding the foregoing, EarnUp will have no obligation under this Section 9.2 or otherwise with respect to any infringement claim arising due to (i) any unauthorized use, reproduction, or distribution of the EarnUp Services by Customer or any Customer’s Users, (ii) the combination of the EarnUp Services with other products, equipment, software, or data not supplied by EarnUp (including if applicable a Customer Data Source identified in an applicable SOW), (iii) any use, reproduction, or distribution of any release of the EarnUp Services other than the most current release made available to Customer, or (iv) any modification of the EarnUp Product by any person other than EarnUp or its authorized agents or contractors.  This Section 9.2 states EarnUp’s entire liability and Customer’s sole and exclusive remedy for infringement claims and actions.

9.3             Procedures.

Promptly after receipt by an indemnified Party under subsection 9.1 or 9.2 above of written notice of the start of any action, the indemnified Party will, if the claim is to be made against the indemnifying Party under subsection 9.1 or 9.2 above, notify the indemnifying Party of the action, and if the indemnified Party does not so notify the indemnifying Party within 30 days following receipt of any such notice by the indemnified Party, the indemnifying Party will have no further liability under subsection 9.1 or 9.2 above to the indemnified Party unless the indemnifying Party has received other notice addressed and delivered according to Section 13.10 of this Agreement.  However, the failure to notify the indemnifying Party will not relieve it from any liability which it may have to any indemnified Party. If any such action is brought against any indemnified Party and it notifies the indemnifying Party of the start of the action, the indemnifying Party will be entitled to participate in the action and, may, jointly with any other indemnifying Party, assume the defense of the action, with counsel reasonably satisfactory to the indemnified Party.  After notice from the indemnifying Party to the indemnified Party of its election to assume the defense of the action, the indemnifying Party will not be liable to the indemnified Party under subsection 9.1 or 9.2 above, as applicable, for any legal or other expenses subsequently incurred by the indemnified Party in connection with the defense of the action other than reasonable expenses for investigation. No indemnifying Party will, without the prior written consent of the indemnified Party, effect any settlement of any pending or threatened action for which any indemnified Party is or could have been a party if indemnity could have been claimed under this Agreement by the indemnified Party unless the settlement includes (i) an unconditional release of the indemnified Party from all liability on any claims in the action and (ii) does not include a statement or an admission of fault, culpability or a failure to act by or on behalf of the indemnified Party.

10.             LIMITATION OF LIABILITY.  EXCEPT WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, ABOVE, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAYABLE TO EARNUP BY CUSTOMER UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE (12) MONTHS. EACH PARTY ACKNOWLEDGES THAT THE FEES SET FORTH IN THIS AGREEMENT REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT EACH PARTY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY.

11.             TERM AND TERMINATION.

11.1          Term.      Unless earlier terminated pursuant to this Agreement, the term of this Agreement and any SOW entered into by the Parties under this Agreement, will begin on the Effective Date and will continue for the period set forth in the applicable SOW (such term of this Agreement, the “Term”).

11.2          Termination.

(a)             Termination for Breach or Insolvency.  Either Party (the “Non-breaching Party”) may terminate this Agreement, effective immediately upon written notice to the other Party (the “Breaching Party”), if the breach is a material breach and it is either incurable or the Breaching Party does not cure the breach within thirty (30) days after receiving written notice thereof from the Non-breaching Party.  Further, to the extent permitted by law, either Party may immediately terminate this Agreement in the event of: (i) an assignment for the benefit of creditors by the other Party or the voluntary appointment (at the request of the other Party or with the consent of the other Party) of a receiver, custodian, liquidator or trust in bankruptcy of the other party’s property or the filing by the other party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors; (ii) the filing against the other Party of a petition in bankruptcy or other similar proceeding under any law for relief of debtors, or the involuntary appointment of a receiver, custodian, liquidator or trustee in bankruptcy of the other party’s property, where such petition or appointment is not vacated or discharged within sixty (60) days after the filing or making thereof; or (iii) the other Party liquidates, dissolves, or otherwise ceases business operations.

(b)             Termination for Regulatory Changes.  EarnUp will have the right to terminate this Agreement or any applicable SOW in writing immediately if EarnUp determines in its sole discretion that EarnUp’s provision of and/or Customer’s use of an EarnUp Product in accordance with this Agreement or the relevant SOW is prohibited by applicable law, rule, regulation or licensing agreement, would place EarnUp in material breach of an agreement with its licensors, or would cause compliance with applicable law, rule, or regulation to be, in EarnUp’s sole discretion, excessively burdensome to EarnUp.

11.3          Effects of Termination. Upon termination or expiration of this Agreement for any reason, any amounts owed to EarnUp under this Agreement before such termination or expiration will be immediately due and payable, all rights to access or use the EarnUp Services granted in this Agreement by EarnUp to Customer will immediately cease to exist, Customer must promptly discontinue all further use of the EarnUp Marks and all further use of the EarnUp Product, and Confidential Information will be returned or destroyed pursuant to Section 7.4. Sections 1, 2, 3, 6.4, 7, 8, 9, 10, 11.3, 12, and 13 will survive expiration or termination of this Agreement for any reason. For clarification and notwithstanding expiration or termination of this Agreement, End Users of the EarnUp Product who are or were Customer’s Users may continue to use the EarnUp Product.

12.             OWNERSHIP.

12.1          EarnUp Services. The EarnUp Servives and User Documentation if any, including all upgrades, updates, improvements, and enhancements thereto, and all worldwide Intellectual Property Rights therein, are the exclusive property of EarnUp and its licensors.  All rights in and to the EarnUp Product not expressly granted to Customer in this Agreement are reserved by EarnUp and its licensors.

12.2          Feedback. During the Term, Customer may provide EarnUp with feedback regarding the EarnUp Services, including product features, user experience, implementation, pricing, and business terms. Customer acknowledges and agrees that such feedback will be considered EarnUp’s Confidential Information and EarnUp may use such feedback for its business purposes without obligation or compensation to, or approval of, Customer.

13.             GENERAL.

13.1          Governing Law and Venue.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different state.  Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which EarnUp’s principal place of business is located for any lawsuit filed there against Customer by EarnUp arising from or related to this Agreement.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

13.2          Publicity. Neither Party shall use the name or marks of the other in any publicity without the prior written approval of the other Party, provided that Customer agrees EarnUp may refer to Customer as a customer of EarnUp in its public-facing website and promotional or sales materials, and grants a limited license to EarnUp to use Customer’s name, logo, trademarks and service marks for the foregoing purposes in accordance with Customer’s trademark usage guidelines provided to EarnUp by Customer.

13.3          Export.  Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from EarnUp, or any products utilizing such data, in violation of United States export laws or regulations.

13.4          Severability.  If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

13.5          Waiver.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

13.6          Remedies.  Customer acknowledges that the EarnUp Services contains valuable trade secrets and proprietary information of EarnUp, that any actual or threatened breach of Sections 2.2 or 7 or any other breach of (i) Customer’s obligations with respect to use of the EarnUp Services the Intellectual Property Rights of EarnUp in this Agreement or any applicable SOW or (ii) Customer’s confidentiality obligations in this Agreement will constitute immediate, irreparable harm to EarnUp for which monetary damages would be an inadequate remedy, and that injunctive relief may be an appropriate remedy for such breach.  If Customer continues to distribute the EarnUp Services after its right to do so has terminated or expired, EarnUp will be entitled to seek immediate injunctive relief without the requirement of posting bond.  If any legal action is brought to enforce this Agreement, the prevailing Party will be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

13.7          No Assignment.  This Agreement, and each Party’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by a Party without the other Party’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, either Party may assign this Agreement to its successor in the event of a merger, acquisition, reincorporation or reorganization of such Party or a sale involving all or substantially all of such Party’s equity or assets relating to this Agreement without the consent of the other Party.  The terms of this Agreement will be binding upon successors and assigns.

13.8          Force Majeure.  Any delay in the performance of any duties or obligations of either Party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a pandemic, epidemic, civil unrest, labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such Party; provided, that such Party uses reasonable efforts, under the circumstances, to notify the other Party of the circumstances causing the delay and to resume performance as soon as possible.

13.9          Independent Contractors. Customer’s relationship to EarnUp is that of an independent contractor, and neither Party is an agent or partner of the other.  Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of EarnUp.

13.10       Notices.  Each Party must deliver all notices or other communications required or permitted under this Agreement in writing to the other Party at the address listed on the signature page by courier, by certified or registered mail (postage prepaid and return receipt requested), email, or by a nationally-recognized express mail service.  Notice will be effective upon confirmation of delivery, receipt or refusal of delivery.  If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark.  If delivered by courier, email or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt or electronic transmission. Each Party may change its address for receipt of notice by giving written notice of such change to the other Party.

13.11       Interpretation. Headings are for reference purposes only and do not define or limit the scope of any provision in this Agreement. References to “including” in this Agreement will be interpreted to mean “including without limitation”.

13.12       Counterparts.  This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

13.13       Entire Agreement.  This Agreement is the final, complete and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the Parties with respect to such subject matter. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized representative of each Party. Any pre-printed terms on any quote, order, or other similar document will have no effect and will be null and void.