Customer Terms and Conditions

These Customer Terms and Conditions (this “Agreement”), effective as of the date on which you click a button or check a box acknowledging your acceptance of this Agreement or you execute with Latch an Order that incorporates this Agreement by reference (the “Effective Date”), is by and between Super Labs Inc., a Delaware corporation with offices located at 1191 2nd Ave, Suite 630, Seattle, WA 98101 (“Latch”) and the entity on whose behalf the individual accepting this Agreement accepts this Agreement (“Customer”). The individual accepting this Agreement hereby represents and warrants that it is duly authorized by the entity on whose behalf it accepts this Agreement to so accept this Agreement. Latch and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The Parties hereby agree as follows:

1. Certain Definitions

The following capitalized terms will have the meanings indicated below unless otherwise specifically defined in this Agreement.

1. “Approved Servers” has the meaning set forth in the Order.
2. “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to use the Software under this Agreement.
3. “Client-Side Software” means the software provided by Latch for installation locally by Customer in order to access or connect with the Products.
4. “Customer Content” means any data or other content that is created or provided by Customer or Authorized Users, whether directly or indirectly from a third party, for transmission, storage, integration, import, display, distribution or use in or through use of the Products, including any aggregated or transformed versions thereof and any analytical outputs.
5. “Documentation” means the technical specification documentation provided to Customer by Latch regarding the Software, Latch Materials, and Client-Side Software, available at docs.latch.ai.
6. “Intellectual Property Rights” means any all right, title, and interest in and to any and all patents, copyrights, service marks, trademarks, know-how, trade secrets, trade names, rights in trade dress and packaging, moral rights, rights of privacy, rights of publicity, and similar rights of any type, including any applications, continuations, or other registrations with respect to any of the foregoing, under the laws or regulations of any governmental, regulatory, or judicial authority.
7. “Latch Core License” shall mean a license or access right to the Products specified in the Order (and any related purchase orders, statements of work, or amendments, in each case incorporated into this Agreement) to be used on the Approved Servers for the duration of the Subscription Term (as defined below) subject to the terms and conditions set forth in this Agreement.
8. “Latch Materials” means any data, technology, and materials provided or made available to Customer by Latch for use with the Software and Services pursuant to this Agreement, including sample code, software libraries, command line tools, data integration code, templates, and configuration files.
9. “Order” means: (i) a purchase order, order form, or other ordering document entered into by the Parties that incorporates this Agreement by reference; or (ii) if Customer registered for certain Products and/or Services through Latch’s online ordering process, the results of such online ordering process.
10. “Personal Data” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located, including without limitation all data considered “personal data”, “personally identifiable information”, or something similar under applicable laws, rules, or regulations relating to data privacy.
11. “Product(s)” means the Latch Materials, Documentation, and Software.
12. “Sensitive Data” means: (i) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) protected health information as defined in the Health Insurance Portability and Protection Act, as amended (“HIPAA”); (iii) payment cardholder information or financial account information, including bank account numbers or other personally identifiable financial information; (iv) social security numbers, driver’s license numbers, or other government identification numbers; (v) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act (“COPPA”) or the Gramm-Leach-Bliley Act (“GLBA”), in each case as amended, or related rules or regulations; or (vi) any data similar to the above protected under applicable laws, rules, or regulations.
13. “Services” means Support and Maintenance and/or Training, each as defined herein.
14. “Software” means Latch’s proprietary micro application software in a Customer on-premises or Latch-hosted environment, any third-party software, the Client-Side Software, application programming interfaces (APIs), and models or algorithms in any format specified in the Order (and any related purchase orders, statements of work, or amendments, in each case incorporated into this Agreement) or provided or made available to Customer in connection with this Agreement, and any improvements, modifications, derivative works, patches, Updates, and upgrades to any of the foregoing that Latch provides in its discretion to Customer hereunder.
15. “Updates” means Product changes that Latch at its discretion may implement in the applicable generally available Products without requiring the payment of additional fees. Updates do not include new product or service offerings that Latch makes available for an additional charge.

2. Provision of Products

2.1 Grant of Limited License. If “Customer On-Premises” or “Hybrid” is specified in the Order, subject to Customer’s continued and full compliance with all of the terms and conditions of this Agreement, including without limitation the Usage Limitations, Latch hereby grants to Customer a non-transferable (except in accordance with Section 14.1), non-assignable, non-exclusive, license, without any right to sublicense (except as necessary to install the Software on the Approved Servers), during the Subscription Term (as defined below), to install, execute, and use the Software specified in the Order in object code format on the Approved Servers solely for Customer’s internal purposes, and only (a) for use in accordance with the Documentation, and (b) for the purpose(s), configuration(s), and module(s) specified in the Order and any associated statements of work. If “Hybrid” is specified in the Order, the foregoing rights and licenses apply only to the Software that is hosted by Customer. The license(s) granted in the Order shall not be fungible and shall not be reallocated or expanded by Customer to any purpose, configuration, or module not specified in the Order.

2.2 Provision of Access and Grant of Limited License. If “Latch-Hosted” or “Hybrid” is specified in the Order, subject to Customer’s continued and full compliance with all of the terms and conditions of this Agreement, including without limitation the Usage Limitations, Latch will (a) provide Customer with access to a single instance of the Software as specified in the applicable Order during the Subscription Term solely for Customer’s internal purposes, and only (i) to use, access, display, and run in accordance with the Documentation, (ii) if specified, for the number of Latch Core Licenses specified in the applicable Order, and (iii) for the purpose(s), configuration(s), and module(s) specified in the Order and any associated statements of work; and (b) provide other Products as necessary to deliver the Software. If “Hybrid” is specified in the Order, the foregoing rights and licenses apply only to the Software that is hosted by Latch. The license(s) granted in the Order shall not be fungible and shall not be reallocated or expanded by Customer to any purpose, configuration, or module not specified in the Order.

2.3 Client-Side Software. If applicable, Latch hereby grants to Customer a non-transferable, non-sublicensable, non-exclusive, limited license to use the Client-Side Software during the Subscription Term for the sole purposes of using and connecting to Products. At Latch’s request, Customer will promptly install Updates to the Client-Side Software provided by Latch. Customer shall allow Latch to access the Client-Side Software remotely as necessary.

2.4 Third-Party Services. Latch may utilize and/or make available third-party services in the provision of the Products and processing of Content (each a “Third-Party Service”). For purposes of this Agreement, such Third-Party Services are subject to their own terms and conditions. Latch is not responsible for the operation of any Third-Party Services and makes no representations or warranties of any kind with respect to Third-Party Services or their respective providers. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

2.5 Latch Materials. Latch hereby grants to Customer during the Subscription Term a non-exclusive, nontransferable, non-sublicensable, limited license, to (a) use the Latch Materials in accordance with the Documentation and this Agreement and (b) copy, modify, and use the Latch Materials solely to the extent necessary for Customer’s use of the Software.

2.6 Usage Data. Latch may collect analytics, statistics, metrics, or other data related to Customer’s use of the Products (“Usage Data”) (a) in order to provide the Products and Services to and for the benefit of Customer, including for security purposes; and (b) for statistical use as well as to analyze, maintain, and improve the Products and Services and for any other lawful reason. As between Latch and Customer, all right, title, and interest in and to such Usage Data is owned solely and exclusively by Latch.

3. Customer Use of Products

3.1 Authorized User Accounts. Latch will provide Customer with the capability to provision and establish accounts to access the Products (“Accounts”) for Customer’s Authorized Users. Each Authorized User must have its own unique Account for the Software and Authorized Users may not share their Account credentials with one another or any third party. Customer will be responsible for all the acts and omissions of its Authorized Users in connection with this Agreement and for all use of Authorized Users’ Account.

3.2 Customer Content Use. Customer shall provide Latch with all information, assistance, and materials, including access to Customer Content, as reasonably required for Latch to activate and operate the Products for Customer pursuant to this Agreement. Customer grants to Latch a non-exclusive worldwide license to use, copy, store, process, transmit, retrieve, and display such information and materials in connection with the provision of the Products for Customer.

3.2.1 Security Measures. If “Latch-Hosted” is specified in the Order, Latch shall use commercially reasonable efforts to maintain the security and integrity of the Products and the Customer Content. Customer acknowledges and agrees that the Products may be subject to limitations on the length of time that Customer Content will be stored, and the amount of Customer Content that may be stored, and that Customer Content which exceeds either of such limitations may be automatically deleted by the Products. Latch may delete all Customer Content upon termination or expiration of this Agreement. In addition, and notwithstanding anything to the contrary, Customer acknowledges and agrees that Latch may internally use and modify (but not disclose) Customer Content to provide the Products to Customer. Customer represents and warrants that it has all rights, consents, and authorizations necessary to grant such rights to Latch.

3.2.2 Processing of Personal Data; No Sensitive Data. Latch’s rights and obligations with respect to Personal Data that it collects directly from individuals are set forth in Latch’s Privacy Notice. If “Latch-Hosted” is specified in the Order, Personal Data processed by Latch on behalf of Customer will be governed by the terms of this Agreement. Notwithstanding the foregoing, Customer acknowledges and agrees that: (i) the Products are not designed to store Sensitive Data; and (ii) Customer will not use the Products to store Sensitive Data and will not submit, post, or otherwise transmit through the Products any Customer Content that includes or constitutes Sensitive Data.

3.2.3 AI Technologies. The Products include features and functionalities supported by AI technologies. If Latch cloud hosting is specified in the Order, Customer may provide Customer Content via the Products and receive outputs from the Products based on that Customer Content (“Output”). As between Latch and Customer, and to the extent permitted by applicable law, Customer: (i) retains all ownership rights in its Customer Content; and (ii) owns all Output. Except to the extent otherwise expressly set forth in this Agreement, Latch will only use Customer Content as necessary to provide Customer with the Products, comply with applicable law, and enforce Latch’s policies; provided that, notwithstanding the foregoing, Latch may use the Customer Content on an aggregated and anonymized basis to improve the Products and Latch’s other products and services. Customer may opt out of such aggregated and anonymized use via the Products. Customer acknowledges that Output may contain errors or misleading information, can perpetuate biases present in the data used to train them, which can result in Output that is discriminatory or offensive, and can struggle with complex tasks that require reasoning, judgment, and decision-making. Customer further acknowledges that Output may not be unique and other users may receive similar content from the Products, and such similar content is not considered “Output” owned by Customer hereunder. Customer is solely responsible for its use of all Output and evaluating the Output for accuracy and appropriateness for its use cases, including by utilizing human review where appropriate. ALL OUTPUT IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND.

3.3 Third Party Rights and Authorizations. Customer represents, warrants, and covenants to Latch that Customer has provided and will provide all necessary disclosures and has received and will obtain all rights, authorizations, and consents necessary, or otherwise required by applicable laws, including but not limited to, monitoring, recording and wiretapping laws, to permit Customer’s use of the Software as contemplated herein including but not limited to (i) the recording by Latch of video and audio material, including the potential capture of individual likeness within such video and audio material, and (ii) with respect to Third-Party Services.

4. Proprietary Rights

4.1 Customer Ownership. As between the Parties, Customer retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Customer Content and Output.

4.2 Latch Ownership. As between the Parties, Latch retains all rights, title, and interest, including all Intellectual Property Rights, in and to the Products, Updates, and any other related documentation or materials provided by Latch (including without limitation all Intellectual Property Rights embodied in any of the foregoing). No ownership rights are being conveyed to Customer under this Agreement. Except for the express rights granted herein, Latch does not grant any other licenses or access, whether express or implied, to any Latch software, services, technology, or Intellectual Property Rights. Customer will maintain and not remove, obscure, or alter any copyright notice, trademarks, logos, and trade names and any other notices or product identifications that appear on or in any Products or Updates and any associated media.

4.3 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Latch by mail, email, telephone, or otherwise, suggesting or recommending changes to the Products or Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Latch is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback.

4.4 Restrictions. Customer will not (and will not allow any third party to): (a) gain or attempt to gain unauthorized access to the Products or infrastructure, or any element thereof, or circumvent or otherwise interfere with any authentication or security measures of the Products; (b) interfere with or disrupt the integrity or performance of the Products; (c) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs through the Products; (d) decompile, disassemble, scan, reverse engineer, or attempt to discover any source code or underlying ideas or algorithms of any Products (except to the extent that applicable law expressly prohibits such a reverse engineering restriction); (e) provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the Products for the benefit of any third party; (f) list or otherwise display, or copy, any code of any Products, except for Latch Materials to the extent necessary for Customer’s use of the Software; (g) copy any Products (or component thereof) or develop any improvement, modification, or derivative work thereof, except for Latch Materials to the extent necessary for Customer’s use of the Software; (h) include any portion of any Products in any other service, equipment, or item; (i) allow the transfer, transmission (including without limitation making available on-line, electronically transmitting, or otherwise communicating, to the public), export, or re-export of any Products (or any portion thereof) or any Latch technical data; (j) perform benchmark tests on the Software; or (k) use, evaluate, or view the Products for the purpose of designing, modifying or otherwise creating any environment, software, models, algorithms, products, program, or infrastructure, or any portion thereof, which performs functions similar to the functions performed by the Products provided, however, that subject to the other terms and conditions of this Agreement, Customer shall be permitted to develop software that interfaces with the APIs Latch makes available for Customer’s use under this Agreement, provided further that Customer shall not attempt to, or encourage any third party to, sell, rent, lease, license, sublicense, distribute, transfer, or syndicate such software, without prior written approval from Latch.

4.5 Open Source Components. Certain aspects of the Software may contain or be distributed with open source software code or libraries (“Open Source Components”). Latch will provide a list of Open Source Components for a particular version of any distributed portion of the Software, on Customer’s request. To the extent required by the license applicable to such Open Source Components: (i) Latch will use reasonable efforts to deliver to Customer any notices or other materials (such as source code); and (ii) the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of such licenses prohibit any of the restrictions in this Agreement with respect to any particular Open Source Component, such restrictions will not apply to such Open Source Component. To the extent the terms of such licenses require Latch to make an offer to provide source code or related information in connection with the Open Source Component, such offer is hereby made.

5. Confidentiality

5.1 Definition. From time to time during the Subscription Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that: (i) is marked, designated or otherwise identified as “confidential” or something similar at the time of disclosure or within a reasonable period of time thereafter; or (ii) would be considered confidential by a reasonable person given the nature of the information or the circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party without use of, reference to, or reliance upon the disclosing Party’s Confidential Information.

5.2 Duty. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees, contractors, and agents who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder (“Representatives”). The receiving Party will be responsible for all the acts and omissions of its Representatives as they relate to Confidential Information hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. Further, notwithstanding the foregoing, each Party may disclose the terms and existence of this Agreement to its actual or potential investors, debtholders, acquirers, or merger partners under customary confidentiality terms.

5.3 Return of Materials; Effects of Termination/Expiration. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-use and non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination or expiration of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Fees and Taxes

6.1 Fees. Products are deemed delivered upon being made available to Customer for download, installation, or access. Products may be provided for a fee or other charge, as further described at latch.ai/pricing (as Company may update them from time to time, the “Pricing and Payment Terms”). The Pricing and Payment Terms are hereby incorporated by reference herein. Notwithstanding the foregoing, Customer shall pay to Latch the total amount of fees set forth in the Order (“Fees”) without offset or deduction at the cadence identified in the Order (e.g., monthly or annually). Fees paid by Customer are non-refundable. Customer shall make all payments hereunder in US dollars by ACH or credit or debit card payment via the link provided in the applicable invoice to such account as Latch may specify in writing from time to time, or by another mutually agreed-upon payment method. If Customer fails to make any payment when due, and Customer has not notified Latch in writing within ten (10) days of the payment becoming due and payable that the payment is subject to a good faith dispute, without limiting Latch’s other rights and remedies: (i) Latch may charge interest on the undisputed past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Latch for all reasonable costs incurred by Latch in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Latch may revoke Customer’s and its Authorized Users’ license to all or any part of the Software until such amounts are paid in full.

6.2 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Latch’s income.

7. Services

Subject to the payment of all applicable fees set forth in the Order as they become due, Latch may provide Customer with Services. The performance of any Services by Latch shall not affect the ownership of the Products, Updates, and other related documentation or materials provided by Latch under this Agreement.

8. Term and Termination

8.1 Term. This Agreement commences on the Effective Date and continues until all Orders hereunder have expired or been terminated (the “Term”). Each Order will specify the initial subscription term (the “Subscription Term”) and any applicable auto-renewal terms.

8.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:

(a) Latch may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Latch’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 4 or Section 5;

(b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice of such breach; or

(c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

8.3 Effect of Termination; Survival. Unless otherwise specified in an Order, upon any termination or expiration of this Agreement, all of Customer’s rights, access, and licenses granted hereunder to the Products and Services shall immediately cease and Customer shall promptly return to Latch or destroy all Client-Side Software, Latch Materials, and Documentation, including all portions thereof and all other Confidential Information, and so certify its compliance with the foregoing to Latch in writing within ten (10) days of termination or expiration. No termination or expiration of this Agreement shall limit or affect either Party’s rights or obligations that accrued prior to the effective date of termination or expiration (including without limitation payment obligations). Sections 4, 5 (but only for the period of time specified therein), 6, 7, 8, 9, 10, 11, 12, 13, and 14, shall survive any termination or expiration of this Agreement. Termination is not an exclusive remedy and all other remedies will remain available.

9. Indemnification

9.1 Latch’s Indemnification.

(a) Latch shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) brought against Customer alleging that the Products, or any use of the Products in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; provided that Customer promptly notifies Latch in writing of the claim, cooperates with Latch, and allows Latch sole authority to control the defense and settlement of such claim.

(b) If such a claim is made or appears possible, Customer agrees to permit Latch, at Latch’s sole discretion: to (i) modify or replace the Products, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If Latch determines that neither alternative is reasonably commercially available, Latch may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.

(c) This Section 9.1 will not apply to the extent that the alleged infringement arises from: (i) use of the Products in combination with data, software, hardware, equipment, or technology not provided by Latch or authorized by Latch in writing; (ii) modifications to the Products not made by Latch; or (iii) Third-Party Services.

9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Latch’s option, defend Latch from and against any Losses resulting from any Third-Party Claim based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Products in a manner not authorized by this Agreement; or (iii) use of the Products in combination with data, software, hardware, equipment or technology not provided by Latch or authorized by Latch in writing; or (iv) instructions with respect to any Third-Party Services, in each case provided that Customer may not settle any Third-Party Claim against Latch unless Latch consents to such settlement, and further provided that Latch will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

9.3 Exclusive Remedy. THIS SECTION SETS FORTH LATCH’S SOLE LIABILITY AND OBLIGATION, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10. Latch Warranty and Disclaimer

10.1 Latch Representations and Warranties. Latch represents that it has validly entered into this Agreement and has the legal power to do so. Additionally, Latch warrants that during the Subscription Term: (a) the Software as delivered to Customer will perform substantially in accordance with the applicable Documentation and (b) the Services will be provided in a professional and workmanlike manner and by an adequate staff with knowledge about the Software. This warranty covers only problems reported to Latch in writing (including a test case or procedure that recreates the failure and full documentation of the failure) during the Subscription Term. In the event of a material failure of the Software to perform substantially in accordance with the specifications during the Subscription Term (“Defect”), Latch shall use reasonable efforts to correct the Defect or provide a suitable work around as soon as reasonably practical after receipt of Customer’s written notice as specified above. A Defect shall not include any defect or failure attributable to improper installation, operation, misuse or abuse of the Software or any modification thereof by any person other than Latch. If Latch has not remedied the Defect within thirty (30) days of its receipt of Customer’s written notice, Customer may give Latch written notice of termination of this Agreement unless Latch is able to remedy the Defect prior to the effective date of termination. In the event of the termination of this Agreement pursuant to Customer’s exercise of its right under this Section, Customer shall be entitled to receive from Latch, as its sole and exclusive remedy, a refund of all amounts paid to Latch hereunder, but such termination shall otherwise be subject to Section 10.2.

10.2 Disclaimer. NO AMOUNTS PAID HEREUNDER ARE REFUNDABLE OR OFFSETTABLE EXCEPT AS OTHERWISE EXPLICITLY SET FORTH HEREIN. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10.1, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT ANY OTHER WARRANTIES OF ANY KIND, AND LATCH AND ITS SUPPLIERS AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, RELATING TO THE PRODUCTS AND ANY SERVICES PROVIDED HEREUNDER OR SUBJECT MATTER OF THIS AGREEMENT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING LIMITATION, LATCH DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES WILL MEET CUSTOMER REQUIREMENTS OR GUARANTEE ANY RESULTS, OUTCOMES, OR CONCLUSIONS OR THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE. LATCH IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD-PARTY SERVICE (INCLUDING, WITHOUT LIMITATION, UPTIME GUARANTEES, OUTAGES, OR FAILURES), OR FOR ANY ACTIONS TAKEN THROUGH THIRD-PARTY SERVICES AT THE DIRECTION OF THE CUSTOMER. CUSTOMER ACKNOWLEDGES THAT LATCH DOES NOT CONTROL THE TRANSFER OF DATA, INFORMATION, OR CONTENT OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET OR THIRD-PARTY SERVICES, AND THAT THE PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. LATCH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

11. Customer Representations and Warranties

11.1 Customer represents that it has validly entered into this Agreement and has the legal power to do so.

11.2 Use of Products. Customer warrants and covenants that it will not use the Products for any unauthorized, improper or illegal purposes, including but not limited to (a) discrimination, (b) harassment, (c) compromising information and data security or confidentiality, (d) harmful or fraudulent activities, (e) violation of privacy or constitutional rights of individuals or organizations, or (f) violation of third-party contractual agreements or local, state, or Federal laws, regulations, or ordinances.

11.3 Customer Content. Customer warrants and covenants that (a) it will not transmit, store, integrate, import, display, distribute, use or otherwise make available any Customer Content that is, or is obtained in a manner that is, unauthorized, improper or illegal; (b) no Customer Content infringes upon or violates any other party’s Intellectual Property Rights, privacy, publicity or other proprietary rights; (c) this Agreement imposes no obligations, by contract or local, state, Federal, or international law, regulation or ordinance, with respect to Content, unless explicitly mutually agreed upon in writing; and (d) Customer has provided all necessary notifications and obtained all necessary consents, authorizations, approvals and/or agreements as required by any applicable laws or policies in order to enable Latch to receive and process Customer Content, including personal data, according to the scope, purpose, and instructions specified by Customer. Customer acknowledges that all Content that Customer transmits, stores, integrates, imports, displays, distributes, uses, or otherwise makes available through use of the Products, and the conclusions drawn therefrom, are done at Customer’s own risk and Customer will be solely liable and responsible for any damage or losses to any party resulting therefrom. Latch has the right to immediately suspend the Products (1) in order to prevent harm to Latch or its business and to limit any potential liability; (2) if Customer is in breach of this Agreement; or (3) if required to do so pursuant to applicable law or regulation or requests or orders of governmental, regulatory, or judicial authorities.

12. Limitations of Liability

12.1 Liability Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER AGREES THAT LATCH SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY REGARDLESS OF THE LEGAL THEORY USED TO MAKE A CLAIM, AND WHETHER OR NOT BASED UPON LATCH’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, IN TORT OR ANY OTHER CAUSE OF ACTION, FOR ANY: (A) LOSS, ALTERATION, CORRUPTION OF, OR UNAUTHORIZED ACCESS TO CONTENT; (B) COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCTS OR SERVICES, OR COST OF REPLACEMENT, OR RESTORATION OF ANY LOST OR ALTERED CONTENT; (C) DELAYS OR UNAVAILABILITY OF ANY PRODUCTS OR SERVICES, ECONOMIC LOSSES, EXPECTED OR LOST PROFITS, REVENUE, OR ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF CONTRACTS, OR LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION; AND/OR (D) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE, WHETHER ARISING OUT OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE PRODUCTS, OR FOR ANY MATTER BEYOND LATCH’S REASONABLE CONTROL, EVEN IF LATCH HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

12.2 Liability Cap. EXCEPT FOR BREACHES OF ITS CONFIDENTIALITY OBLIGATIONS OR FULFILLMENT OF ITS INDEMNIFICATION OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, STRICT LIABILITY, PRODUCT LIABILITY, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY OR RESULTING FROM THIS AGREEMENT OR ANY PRODUCTS OR SERVICES, SHALL NOT EXCEED THE FEES PAID OR PAYABLE TO LATCH BY CUSTOMER UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM FOR THE PRODUCTS OR SERVICES THAT GAVE RISE TO SUCH CLAIM AND THAT SUCH REMEDY IS FAIR AND ADEQUATE.

13. Publicity

Latch may identify Customer as a user of the Software and may use Customer’s name, logo, and other trademarks in Latch’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer), provided that Customer may opt out at any time through functionality provided through the Software or upon written notice to Latch. Otherwise, neither Party may use the name, logo, or other trademarks of the other Party for any purpose without the other Party’s prior written approval.

14. Miscellaneous

14.1 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Latch. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

14.2 Notice. Any notice, report, approval, or consent required or permitted hereunder shall be in writing and sent by first class U.S. mail, confirmed email (with confirmation of transmission), or major commercial rapid delivery courier service to the address specified in the applicable Order. If any provision of this Agreement shall be adjudged by any court or board of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and be enforceable.

14.3 Amendment; Modification. Latch may change this Agreement (except for any Orders) from time to time at its discretion. The date on which the Agreement was last modified will be updated at the top of this Agreement. Latch will provide Customer with reasonable notice prior to any amendments or modifications taking effect, either by emailing the email address associated with Customer’s account on the Software or by another method reasonably designed to provide notice to Customer. If Customer accesses or uses the Software after the effective date of the revised Agreement, such access and use will constitute Customer’s acceptance of the revised Agreement beginning at the next Renewal Subscription Term (if any) or, if Customer enters into a new Order with Latch, as of the date of execution of such Order.

14.4 Waiver. No failure or delay by either Party in exercising any right or remedy available to it in connection with this Agreement will constitute a waiver of such right or remedy.

14.5 Interpretation. The section headings contained in this Agreement are for reference only and shall not affect in any way the meaning or interpretation of this Agreement.

14.6 Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control including without limitation acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, viral pandemic or quarantine (excluding preexisting or reasonably foreseeable events as of the date of the Order), governmental act, failure of the Internet, telecommunications or hosting service provider, computer attacks, or malicious acts.

14.7 Entire Agreement. This Agreement, including any exhibits hereto and any Orders, is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. In the event of any inconsistency between the statements made in the body of this Agreement, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement; and (ii) second, any other documents incorporated herein by reference.

14.8 Governing Law; Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder must be instituted in the federal courts of the United States or the courts of the State of Delaware in each case located in New Castle County, Delaware and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

14.9 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 4.4, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

14.10 US Government Rights. The Products, Support Services, and Training are “commercial items” as defined at 48 C.F.R. 2.101, consisting of commercial computer software, commercial computer software documentation, and commercial services. If Customer or end user is a U.S. governmental entity, then Customer acknowledges and agrees that: (a) use, duplication, reproduction, release, modification, disclosure, or transfer of the Products or any related documentation or materials of any kind, including, without limitation, technical data and manuals, will be subject to the terms and conditions of this Agreement, in accordance with Federal Acquisition Regulation 12.212 or Defense Federal Acquisition Regulation Supplement 227.7202-1 for military purposes; (b) the Products were developed exclusively at private expense; and (c) all other use of the Products except in accordance with the license or access grant provided above is strictly prohibited. Notwithstanding anything to the contrary, these terms and conditions describing the Government’s use and rights are in lieu of, and supersede, any conflicting provisions that address Government rights in the Products, related documentation, and technical data that may be incorporated in any contract or subcontract under which the Products are accessed or licensed.

14.11 Export Compliance. Customer acknowledges that the Software is subject to United States export control and economic sanctions laws, regulations and requirements and to import laws, regulations and requirements of certain foreign governments. Customer shall not, and shall not allow any third party to, export from the United States or allow the re-export or re-transfer of any part of the Software: (i) to any country subject to export control embargo or economic sanctions implemented by any agency of the U.S. Government; (ii) to any person or entity on any of the U.S. Government’s Lists of Parties of Concern; (iii) to any known end-user or for any known end-use related to the proliferation of nuclear, chemical or biological weapons or missiles, without first obtaining any export license or other approval that may be required by any U.S. Government agency having jurisdiction with respect to the transaction; or (iv) otherwise in violation of any export or import laws, regulations or requirements of any United States or foreign agency or authority.