Terms and Conditions

DEFINITIONS

Terms and Conditions

1. Products and Services

   1. Scorpion Platform.

      The Products and Services consist of: (i) a cloud-based back-end which stores, analyzes, manages, distributes, and processes data; and (ii) front-end clients (e.g. mobile applications, web interface, plugins, system connectors) which allow for the retrieval, presentation, distribution, and management of aspects of Subscriber’s business. Scorpion provides solutions, among other things, for Subscriber to manage all applicable aspects of Subscriber’s online marketing campaign in one location (“Scorpion Platform”) through the use of the Products and Services where access to and/or some functionality may require a separate Subscription and/or agreement to additional terms.

   2. Website Design & Development.

      Scorpion will use Technology to create and Host one (1) Website promoting Services during the Platform Subscription Term. To facilitate Launch of Website, Scorpion will write up to ten (10) English content pages and carry-over, as-is, any pre-existing valuable content Scorpion determines, including, but not limited to, bios, blogs, testimonials, case results, case studies, and any other pre-existing website webpage content as-is. Further, Subscriber’s digital marketing strategy shall use at least one (1) call-tracking phone number and/or tracking code as determined by Scorpion, where both are essential for Scorpion's delivery of Subscription and if additional numbers are later determined to be necessary to achieve the objectives of Subscriber’s digital marketing strategy additional monthly charges shall apply. For Scorpion to be able to best evaluate the success of the digital marketing strategy, Subscriber directs Scorpion to initially actively record any and all of the inbound phone calls made to a Scorpion managed call-tracking phone number, which Subscriber may opt-out of call recording at anytime through the Scorpion Platform at their discretion.

   3. Advertising.

      Scorpion will use Technology to create Advertising Campaign(s) for Subscriber if, and when, Advertising Package(s) is/are recited on the Order Form. An Advertising Campaign will begin after Website Launches provided Scorpion is in receipt of the respective Advertising Investment. The first Advertising Investment shall be prorated and due on Launch and then on the first day of each consecutive calendar month thereafter. Advertising Campaign(s) will be managed and use Machine Learning Advertising. Subscriber expressly acknowledges that by having Scorpion manage an Advertising Campaign using at least Machine Learning Advertising, Technology or any element thereof, that Subscriber shall never acquire any rights to nor have any direct or indirect access to any proprietary element or aspect of the Technology or the Advertising Campaign as determined by Scorpion. The Machine Learning Advertising is confidential information which Subscriber, or anyone at Subscriber’s indirect or direct direction, shall never attempt to view directly or indirectly, acquire, transfer ownership and/or reverse engineer any element or aspect of the Machine Learning Advertising including, but not limited to, best practices, trade secrets, technology, strategies, techniques, know-how, bid structure, placement, potential customer targeting, logic trees, keyword selection, keyword match type(s), keyword(s), advertising channel budget allocations (if any), and messaging (collectively “Campaign Elements”) and Subscriber further expressly acknowledges Scorpion shall be under no obligation to disclose any Campaign Elements. After receiving feedback from Subscriber, if any, Scorpion shall then have full discretion and authority to manage every aspect of an Advertising Campaign, including, but not limited to, selection of the targeted individual words and/or phrases (“Paid Keywords”), determination of applicable advertising channels (“Selected Advertising Channels”), determination of bids, the creation and management of any and all Scorpion Marketing Pages. In some instances, Scorpion may determine that some potential advertising channels may not be available (“Unavailable Advertising Channels”) until the Advertising Investment is increased to a sufficient monetary value to capitalize on these other available advertising channels based on the competitiveness, geographic target and practice areas. This strategy is essential to the performance of Subscriber’s Advertising Campaign as each channel has a minimum threshold budget that should be maintained. Scorpion shall have full discretion with respect to the allocation of the available Advertising Investment on the Selected Advertising Channels, and Scorpion makes no guarantees as to when or where ads will be displayed. Scorpion, either manually or through Technology, may make adjustments to an Advertising Campaign, including, but not limited to allocating the Advertising Investment spend, shifting and/or reallocating the Advertising Investment spend, advertising channels and/or partners, ad types and positioning at any time as determined by Scorpion in our sole discretion. If, for example, Scorpion determines that the best use of the Advertising Investment should be used on a modified list of advertising channels, potentially including initially unselected available advertising channels or on yet-to-be-developed advertising channels (collectively, “Advertising Campaign Channels”), Scorpion shall have full discretion to do so. Subscriber acknowledges that all statistics provided by Scorpion evidencing any portion of an Advertising Campaign shall be conclusive and binding on Subscriber for all purposes of this Agreement. Scorpion makes no guarantees as to the performance of any Advertising Campaign. Once the allocated Advertising Investment is sufficiently depleted for a calendar month for that given Products and Services, all corresponding Advertising Campaigns will cease until either (i) Subscriber increases the current month's Advertising Investment; or (ii) next month's Advertising Investment is funded. Any Advertising Investment increases will take effect upon receipt of the additional funds, where any decrease or pause will take effect once fully processed by the system and/or third-party processes and any decrease may invalidate any estimated goals. Scorpion makes no guarantees with respect to the time it takes to fully utilize the allocated Advertising Investment. Additionally, by electing to have Scorpion manage Subscriber's Advertising Package, Subscriber expressly authorizes Scorpion to take Its Advertising Tracking & Technology Charge.

   4. Professional Services.

      If Subscriber procures Professional Services from Scorpion, the specific details of the Professional Services will be described on the Sales Order on a per-project basis. Unless expressly recited, Scorpion does not provide any custom deliverables or services which would qualify as work-made-for-hire. Unless expressly recited, Professional Services are not subject to any acceptance procedure. Professional Services will be performed remotely unless otherwise specified, in which case, Subscriber will be invoiced at cost for pre-approved reasonable travel, hotel, and out-of-pocket expenses properly incurred by Scorpion in connection with the Professional Services.

2. Definitions

   Capitalized terms used in this Agreement have the meaning set forth herein or as set forth below:

   1. “Account Manager” means a designated Scorpion account manager who will be Subscriber’s singular point of contact during your Platform Subscription Term.

   2. “Activation Fee” means the recited non-refundable consideration due by Subscriber at the time You sign this Agreement to activate Your Subscription.

   3. "Admin User" means any User for whom Subscriber is not using the Products and Services except to administer the account.

   4. “Advertising Campaign” means a paid advertising campaign created by Scorpion using Technology on applicable advertising channels based on Subscriber’s Advertising Investment and Subscriber’s active Subscriptions.

   5. “Advertising Investment” means the monthly monetary investment paid in advance by Subscriber to fund any respective Subscription’s Advertising Campaign which shall be provided to Scorpion in advance of any Advertising Campaign being active, where Scorpion shall utilize the payment method in Subscriber’s account for all Advertising Investment(s).

   6. “Advertising Package” means a subscription to use an Advertising Tier during such times as You timely provide an Advertising Subscription.

   7. “Advertising Tier” means a Scorpion proprietary advertising tier selected by You which consists of at least one (1) paid digital marketing campaign utilizing Scorpion’s Paid Advertising Platform to market You which will be managed as determined by Scorpion and/or Our Technology.

   8. “Advertising Tracking & Technology Charge” means the twenty percent (20%) charge from each Advertising Subscription paid to Scorpion to at least Manage Subscriber’s Advertising Tier.

   9. "Authorized User(s)" means any Subscriber authorized User whois using the Products and Services.

   10. "Claim" means a claim, demand, action, or legal proceeding filed against a Party.

   11. "Confidential Information" means non-public or proprietary information about the disclosing Party's business (including copies, summaries, and extracts) which is: (i) disclosed in tangible form and is identified in writing as confidential at the time of disclosure; (ii) disclosed in non-tangible form that is unambiguously identified as confidential at the time of disclosure; or (iii) disclosed in such a manner, or of such a nature, that a reasonable person under the same circumstances would clearly understand the information to be confidential. Confidential Information does not include information that: (i) is or becomes generally publicly available through no fault of the receiving Party; (ii) was known to the receiving Party, free of any confidentiality obligations, before its disclosure by the disclosing Party; (iii) becomes known to the receiving Party, free of any confidentiality obligations, from a source other than the disclosing Party; or (iv) is independently developed by the receiving Party without use of or reference to the Confidential Information, as demonstrated by documents and other competent evidence in the receiving Party's possession.

   12. “Customize” means Scorpion’s reasonably commercial efforts to have the respective asset closely resemble the look and feel of Subscriber’s logo and/or brand guidelines, if any, as determined by Scorpion.

   13. “Gold Advertising” means an Advertising Tier with an increased initial Advertising Subscription over that of lower tiers.

   14. "Graphic Design" means the Subscriber approved graphical design utilizing up to ten (10) Professional Stock Photography images which may comprise a mockup of at least Website’s home page and up to five (5) Customized interior page Website Structural Layout(s) for a desktop, tablet and/or mobile device.

   15. “Host”, “Hosting” or “Hosted” means the Website created under this Agreement hosted on Scorpion's servers which allows visitors to access it via the internet.

   16. “Launch” means the date Website is first publicly accessible online after Scorpion’s receipt of Subscriber’s approval thereof.

   17. “Location” means Subscriber’s physical business address(es).

   18. “Machine Learning Advertising” means Scorpion’s proprietary paid advertising platform comprising at least SAM and Our other applicable Technology.

   19. “No Advertising” means Subscriber has either not: (i) subscribed to an Advertising Package; or (ii) provided a sufficient Advertising Subscription to fund the selected Advertising Package.

   20. “Non-Advertising Investment” means Total Monthly Investment minus Advertising Investment.

   21. “Party” means either Scorpion or Subscriber, and are together referred to as the “Parties”.

   22. "Permitted Third Party" means an individual or entity under contract with Subscriber who needs to access the Products and Services as part of its relationship with Subscriber and who is not Scorpion's competitor.

   23. "Personal Data" means any information relating to an identified or identifiable natural person (i.e., a person who can be identified, directly or indirectly, by reference to an identifier or to one or more factors specific to such person's physical, physiological, genetic, mental, economic, cultural, or social identity).

   24. "Platform Subscription Term" means the duration of the Scorpion Platform Subscription as stated in the Sales Order, and modified by any applicable extension or early termination.

   25. “Platinum Advertising” means an Advertising Tier with an increased initial Advertising Subscription over that of lower tiers.

   26. "Products and Services" means the recited products and services set out in the Sales Order that Subscriber will receive the benefits of during its respective term.

   27. "Professional Services" means any consulting, training, implementation, or technical services provided by Scorpion to Subscriber, as set out in the Sales Order.

   28. “Professional Stock Photography” means images from designated Scorpion licensed affiliates and categories that Scorpion will use to only Customize Graphic Design, where Subscriber is solely responsible for acquiring appropriate licenses for any and all other page specific images, layout images and/or content area images.

   29. "Sales Order" means the sales order form, statement of work, or other written document detailing the Products and Services being procured by Subscriber, and which references this Agreement.

   30. "Scorpion" means Scorpion Enterprises, LLC, a Delaware limited liability corporation with its principal office in Utah.

   31. "Scorpion Advertising Machine" or "SAM" means Scorpion’s proprietary artificial intelligence omni-channel paid advertising software.

   32. “Scorpion Marketing Pages” means any proprietary landing page and associated content, technology, design, structure, functionality, systems and any and all associated elements used by Scorpion including, but not limited to, creating, delivering, maintaining, updating and/or analyzing any paid media campaigns under this Agreement.

   33. “Scorpion Platform Cost” means the the recurring monthly subscription cost for the Scorpion Platform.

   34. "Scorpion Privacy Policy" means the privacy policy maintained at www.scorpion.co/platform-privacy-policy, as updated from time to time.

   35. “Scorpion Website Content” means the most recently saved version of all static content and imagery on Website, expressly excluding any Technology and as otherwise determined by Scorpion.

   36. "Sensitive Personal Information" means information of a sensitive nature, including without limitation, personal financial and financial account information, sexual orientation, personal medical or health information, personal information of children under 13, personal education records, and social security, national identity, national insurance, and similar personal identifiers. Where specific privacy or data protection laws apply (e.g. the General Data Protection Regulation (GDPR), the Gramm-Leach-Bliley Act (GLB), Health Insurance Portability and Accountability Act of 1996 (HIPAA), US Children's Online Privacy Protection Act (COPPA), Americans with Disabilities Act (ADA), Family Educational Rights and Privacy Act (FERPA)), and those laws define Sensitive Personal Information or a similar term (e.g. "Sensitive Personal Data," "Special Categories," or "Protected Health Information"), Sensitive Personal Information will adopt the meaning from the applicable law or regulation.

   37. “Services” means the recited classification of services that Subscriber provides to end-users.

   38. “Silver Advertising” means an Advertising Tier with an increased initial Advertising Subscription over that of lower tiers.

   39. “Subscriber” means the entity identified on the Sales Order who has duly executed this Agreement.

   40. "Subscriber Data" means all files, content (including audio, video, text, or images), and data (including Personal Data) belonging to or controlled by the Subscriber which is uploaded into, or accessed by the Products and Services, or otherwise provided to Scorpion for processing.

   41. “Subscription” means all of Subscriber’s active subscriptions of applicable Scorpion offered Products and Services which may use Technology, including, but not limited to, the Scorpion Platform as recited under this Agreement, Sales Orders and/or amendments thereto.

   42. "Subscription Term" means the aggregate duration of all Subscriptions for Products and Services, as stated in all Sales Orders, and modified by any applicable extension or early termination.

   43. "Taxes" means any local, state, provincial, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from the Agreement.

   44. “Technology” means Scorpion’s proprietary software and/or technology, methodology, techniques, strategies and implementation related to and including, but not limited to, all created or to be created utilities, tools, programs and computer code provided or developed by Scorpion or third party licensors under this Agreement that are used to facilitate creation, maintenance, delivery, analysis, storage or transmission of the Subscriptions, Scorpion's Logos, databases, trade secrets, trademarks, patents, purchased and/or owned domain names, call tracking telephone numbers, any and all elements of the conversion center and chat functionality, Scorpion Platform, Platform, Platform Apps, Scorpion Marketing Pages and Scorpion’s proprietary content management system platform (“CMS”) and as otherwise determined by Scorpion.

   45. “Term” means the current Subscription term.

   46. "Third-Party Product(s)" means any product, platform, or service not developed by Scorpion which enhances, manipulates, integrates with, interacts with, interoperates with, or adds functionality to the Products and Services or Subscriber Data. Third-Party Products may include public APIs, stand-alone software, or hardware. Third-Party Products may be obtained directly from the developer or through a reseller. Scorpion may act as a reseller for some Third-Party Products.

   47. “Total Monthly Investment” means the monetary sum paid in advance by Subscriber to Scorpion for all Products and Services for the upcoming month.

   48. "User" means (i) Subscriber; (ii) authorized employee of Subscriber; or (iii) authorized third-party of Subscriber.

   49. “Website” means a Hosted responsive website utilizing a Website Structural Layout with linked web pages, in the English language only, under common control, developed, Customized and/or managed by Scorpion for Subscriber during the Term, which shall only have textual navigation, utilize Graphic Design, and Launch with necessary Scorpion Content where Subscriber may purchase additional content to facilitate Launch; and for the avoidance of doubt, a subdomain or any other domain shall be a considered a separate website.

   50. “Website Structural Layout” means pre-created layout elements which Scorpion will Customize for Subscriber to swap out logos, images, text, and colors; wherein the given structure and functional capabilities which further specifies the size and location of all website elements, graphics, navigation, textual (not graphical) navigation, and all other structural design elements will remain as-is without the possibility of modification.

3. Subscriber Responsibilities & Obligations

   1. Subscriber Cooperation.

      Subscriber has elected to start a Subscription which may require Subscriber’s involvement, scheduling, feedback and/or approval, where each of which is necessary for Scorpion to deliver such Subscription in a timely manner. Subscriber shall use best efforts to deliver, schedule and/or provide any asset requested by Scorpion in a commercially reasonable manner and without undue delay to allow Scorpion to timely deliver the Subscription.

   2. Subscriber Data.

      Subscriber is responsible for ensuring that Subscriber Data does not violate applicable laws and regulations, or third-party intellectual property rights, and Subscriber will take reasonable steps to identify and promptly remove any such Subscriber Data. Subscriber represents and warrants that Subscriber Data will not include any Sensitive Personal Information, and that all of Subscriber's collection, transfer, and use of any Personal Data transmitted or otherwise processed through the Products and Services will comply with all applicable privacy laws, regulations, and self-regulatory guidelines (including proper disclosure via Subscriber's privacy policy and receipt of all consents required to process any Personal Data with the Products and Services).

   3. Subscriber Obligations.

      Subscriber will (i) defend at its expense, and (ii) pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Subscriber) for third-party Claims alleging a breach by Subscriber of its obligations under applicable data protection laws and regulations, including failure to comply with its own data privacy policy and the terms of the Agreement.

4. Scorpion's Responsibilities & Obligations

   1. Scorpion will: (i) defend at its expense and (ii) pay any damages finally awarded by a court of competent jurisdiction (or settlement amounts agreed to in writing by Scorpion) for third-party Claims alleging (a) the Products and Services (unless based on Subscriber Data) directly infringe the third party's patent, copyright, or trademark; or Scorpion has misappropriated the third party's trade secret or (b) a breach by Scorpion of its obligations under applicable data protection laws and regulations. While Scorpion may, Scorpion is under no obligation to copy, host and/or maintain Subscriber's pre-existing website(s).

5. Warranties, Disclaimers, and Remedies

   1. Products and Services.

      Scorpion warrants that the Products and Services as delivered to Subscriber will materially conform to the specifications set forth in the Agreement. Scorpion further warrants that Scorpion will perform Professional Services in a professional and workmanlike manner. Subscriber must notify Scorpion of a claim under this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appears.

   2. Implied Warranties.

      To the maximum extent permitted by law and except for the express warranties in this section, Scorpion provides the Products and Services on an "as-is" basis. Scorpion disclaims and makes no other representation or warranty of any kind, express, implied, or statutory (including claims about merchantability, title, non-infringement, accuracy, omissions, completeness, currentness, delays or fitness for a particular purpose). Subscriber acknowledges that certain software used by internet users may not be capable of supporting certain features or functionality which may be included in Subscription. Subscriber expressly acknowledges Scorpion shall have no liability whatsoever for any claim(s) relating to any internet user's inability to access the Subscription, including, but not limited to Website, properly or completely or for any claim relating to any errors or omissions in the Subscription regardless of whether the claim is based on any policy, procedure, law, statute or otherwise. Neither Scorpion nor its affiliates or agents make any warranty as to the results that may be obtained from the Subscriptions, that access to the Subscriptions will be uninterrupted or that the subscriptions will be error free.

   3. Remedies.

      To the extent permitted by law, Subscriber's sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to replacement of the non-conforming Products and Services or re-performance of the Professional Service, as applicable. If in Scorpion's sole discretion replacement or re-performance is not commercially reasonable, Scorpion may terminate the applicable portion of the Sales Order and provide a refund of any prepaid unused fees for the applicable Product and Services.

   4. Cap on Liability.

      SUBSCRIBER EXPRESSLY AGREES SCORPION'S, ITS AFFILIATES' AND ITS AGENTS' ENTIRE LIABILITY, IF ANY, FOR ANY DISPUTE AND/OR CLAIM MADE AGAINST THEM (OR ANY ONE OF THEM) FOR DAMAGES RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), SHALL BE LIMITED TO, IN THE AGGREGATE, ONE (1) NON-ADVERTISING INVESTMENT. ANY CLAIM FOR DAMAGES IN EXCESS THEREOF BEING HEREBY EXPRESSLY WAIVED BY SUBSCRIBER. IN NO EVENT WILL SCORPION, ITS AFFILIATES OR ITS AGENTS BE LIABLE FOR ANY LOST PROFITS OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, ARISING FROM OR IN ANY WAY RELATED TO THIS AGREEMENT OR RELATING IN WHOLE OR IN PART TO SUBSCRIBER'S RIGHTS HEREUNDER OR THE USE OF OR INABILITY TO USE THE SUBSCRIPTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.

6. Term; Subscription Cost; Termination of This Agreement

   1. Delinquent Activation Fee.

      Scorpion shall not activate Subscriptions unless and until Scorpion receives the recited Activation Fee which is due on Effective Date unless otherwise waived. Notwithstanding anything contained herein to the contrary, Scorpion may immediately terminate this Agreement if the Activation Fee is not received by Scorpion within ten (10) days of Effective Date.

   2. Subscription Term.

      This Agreement shall become effective and binding as of Effective Date of the first Sales Order. The Subscription Term shall begin on Effective Date (“Subscription Start Date”). The Scorpion Platform subscription term will begin for the quantity of recited consecutive months listed above beginning on Subscription Start Date (“Initial Platform Term”). If not canceled by either Party pursuant to the terms herein, the Scorpion Platform subscription term shall automatically renew on a 12-month basis (“Renewal Platform Term”). All other non-Scorpion Platform subscriptions, unless otherwise expressly recited, shall have an initial 1-month term and if not cancelled shall automatically renew on a month-to-month basis thereafter.

   3. Monthly Investments.

      Subscriber agrees to pay Scorpion the recited Total Monthly Investment in US$ currency outlined in the order form in advance of Scorpion’s delivery of the recited Products and Services. The first Subscription Cost shall be due on the Subscription Start Date and then on that same calendar date for each subsequent month thereafter. All invoices will only be delivered electronically using the billing and contact information provided by Subscriber. If Subscriber believes that Scorpion has billed Subscriber incorrectly, Subscriber must contact Scorpion in writing within thirty (30) days of the invoice date, specifying the error. Subscriber is not entitled to offset or deduct any amounts from Scorpion's invoice unless: (i) Subscriber has properly notified Scorpion of the dispute; (ii) the dispute is made in good faith; and (iii) Scorpion has approved a payment limited to the undisputed amounts. If Subscriber fails to pay any amount due under the Agreement within fifteen (15) days of the due date, Scorpion may suspend or restrict the Products and Services. Scorpion may charge interest at a monthly rate equal to the lesser of 1% per month or the maximum rate permitted by applicable law on any overdue fees.

   4. Termination of Subscriptions.

      The Agreement shall remain in effect until all Subscriptions are terminated or canceled as set forth herein. This Agreement may be terminated by providing written notice to the other Party at least thirty (30) days before the end of the respective Platform Term. Notwithstanding the foregoing, either Party will have the right to terminate this Agreement immediately if (a) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (b) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.

   5. For Cause.

      Scorpion may immediately terminate the Agreement and/or pursue all other available remedies, including recovery from Subscriber of Scorpions' costs and attorneys' fees incurred in pursuing such remedies (collectively “Termination Remedies”) if (i) a Subscription is made impracticable or is delayed for at least thirty (30) days as a result of Subscriber's failure to (i) provide Subscriber Data; (ii) provide necessary Subscriber assets or feedback; or (iii) to redirect a domain name or provide domain register's login credentials (each “Termination for Cause”).

   6. Material Breach.

      In addition to any other right to terminate set forth herein, either Party may terminate this Agreement if the other Party breaches any material term or condition of this Agreement (“Material Breach”) and fails to cure such breach within thirty (30) days after receipt of written notice of the same, except in the case of delinquent Total Monthly Investments which must be paid in full by due date. Despite anything to the contrary, Scorpion may immediately suspend and/or pause Subscriptions if Total Monthly Investment isn’t received on due date. Either Party may terminate this Agreement with thirty (30) days’ notice if the other Party materially breaches the same material term or condition of this Agreement. Further, Subscriber expressly acknowledges that an initiation of or credit card chargeback(s) and/or canceled check(s), which may or may not create delinquent or past-due invoices, shall be a material breach which cannot be cured, where Scorpion may immediately terminate the Agreement without notice while reserving all legal rights to be made whole for the full value of the Agreement; and Subscriber further waives any and all rights to seek any damages for this material breach as well as future delivery of Subscription under this Agreement. Further, any and all amounts charged-back, canceled or returned may result in the Subscriber thereafter being charged up to the maximum legal interest rate on any past due balance which is considered liquidated damages, and is not a penalty.

   7. Obligations Upon Termination.

      Upon termination of this Agreement, Scorpion irrevocably revokes Subscriptions, and Subscriber shall immediately cease and desist from using Subscriptions, Technology and any other intellectual property of Scorpion or a third party licensor unless expressly authorized herein. Further, Subscriber shall immediately pay all due and outstanding Total Monthly Investment(s). Notwithstanding the above, if Subscriber has satisfied the terms of the Ownership section recited herein, Subscriber may have acquired additional rights to the Launched Graphical Design and Scorpion Website Content.

7. Dispute Resolution; Arbitration

   1. Notice of Dispute.

      Subscriber must notify Scorpion of a dispute within thirty (30) days of the date on which the condition giving rise to the claim first appears. Subscriber shall give (i) written notice to Scorpion setting forth all applicable and reasonable available details and/or proof, including, but not limited to, screenshots, emails, calculations and/or basis used to allege the dispute; and (ii) a proposed solution and/or compromise (“Dispute Documentation”). The Parties will first try to settle any dispute(s) between them amicably in good-faith negotiations within thirty (30) days of receipt of the Dispute Documentation (“Notice Period”). If after the Notice Period the dispute has not been resolved to the satisfaction of the Parties, either Party may initiate arbitration procedures as set forth below:

   2. Arbitration.

      Except as provided below, the Parties agree that any cause of action, legal claim, or dispute between the Parties arising out of or related to the Products and Services provided by Scorpion pursuant to this Agreement shall only be resolved by arbitration on an individual basis in accordance with JAMS Comprehensive Arbitration Rules & Procedures. A copy of which may be reviewed at: https://www.jamsadr.com/rules-comprehensive-arbitration/ and is incorporated by reference. As part of the arbitration, the Parties will have the opportunity for reasonable discovery of non-privilege information relevant to the dispute.The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to prove relief warranted by the party’s individual claims. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based. The arbitrator will decide the substance of all claims in accordance with applicable law and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Subscribers but is bound by the rulings in prior arbitrations involving the same Subscriber to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided the award may be challenged in a court of competent jurisdiction. BY AGREEING TO ARBITRATION, SUBSCRIBER AND SCORPION UNDERSTAND THEY ARE WAIVING THE RIGHT TO BRING AN ACTION IN COURT AND/OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT.

   3. Choice of Law.

      The Agreement and this Arbitration Agreement are governed by and construed under the laws of the state of Utah, without regard to any conflict of law rules or principles. This choice of law provision is only intended to specify the use of Utah law to interpret this Agreement and is not intended to create any other substantive right to non-Utahns to assert claims under Utah law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non-binding, the Parties shall remain bound by all other provisions of this Agreement. In that event, the Parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement.

   4. Class Action Waiver.

      To the fullest extent permitted by law, Subscriber and Scorpion agree to waive any and all statutory or common law right permitting or authorizing class or collective action through arbitration or otherwise. All claims, whether in arbitration or otherwise, must be asserted in individual/corporate capacity, and not as plaintiff or class member in any purported class or collection proceeding. SUBJECT TO THE ABOVE PROVISO, THE PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO PURSUE OR PARTICIPATE IN A CLASS OR COLLECTIVE ACTION PERTAINING TO ANY ARBITRABLE CLAIMS BETWEEN SUBSCRIBER AND SCORPION.

   5. Location of Arbitration.

      Unless Subscriber and Scorpion agree otherwise, any arbitration hearing between the Parties shall take place in Salt Lake County, Utah.

   6. Arbitration Fees and Awards.

      The arbitrator’s fees and costs of the arbitration will be borne by the Parties equally unless the arbitrator in his discretion makes a different provision in the final award. Except as provided by state or federal law, each party shall pay its own attorneys’ fees and pay any costs incurred in the litigation of claims such as costs to subpoena witnesses or take depositions. At the conclusion of the arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to the prevailing party, to the extent authorized by applicable law.

8. Miscellaneous

   1. License Grant and Reservation of Rights.

      Subject to ongoing compliance with the Agreement, Scorpion grants Subscriber a non-exclusive and non-transferable license during the Subscription Term to permit Users to access, implement and use the Products and Services solely for Subscriber's direct beneficial business purposes. Subscriber's rights to use the Products and Services are limited to those expressly set forth in the Agreement for any active Subscription, including limitations based on license type set forth therein. Scorpion retains all right, title, and interest in and to the Products and Services and all related intellectual property rights, including without limitation any modifications, updates, customizations, apps, or other add-ons unless otherwise expressly recited in the Agreement. Subscriber grants Scorpion a non-exclusive, worldwide, fully paid-up, royalty free right and license to use, copy, encode, adapt, modify, make improvements to, store, archive, distribute, transmit, communicate, publicly display, and publish Subscriber Data, in whole or in part, as part of the Subscriptions list, represent, register or establish accounts or Keywords in connection with providing the Subscriptions. Subscriber further agrees that Scorpion may display aspects of Subscriptions, including, but not limited to Website, in a design portfolio, in advertising and promotional materials, and for submission to third parties for a special recognition, honors, or awards.

   2. Restrictions and Acceptable Use.

      Except as explicitly permitted under the Agreement, Subscriber must not do any of the following with the Products and Services: (i) use in violation of any applicable law or regulation; (ii) use in a manner that would cause a material risk to the security or operations of Scorpion or any of its other Subscribers; (iii) disassemble, decompile, or reverse engineer; (iv) redistribute, republish, sell, rent, lease, host, sub-license, or permit usage on a time-sharing basis as part of a hosted service or on behalf of any third party; (v) remove, obscure, or alter any proprietary notices; or (vi) circumvent, disable, or stress test any security or other technological features.

   3. Results.

      Subscriber acknowledges search results, search engine rankings, and advertising results are influenced by several factors, and Scorpion does not make any promise or guarantee with respect to any position, placement, rank of Website or ad in any search engine or advertising network channel, and Scorpion has made no guarantees, representations or warranties to Subscriber with respect to the results or performance of the Subscriptions, including, but not limited to, the quality or volume of Internet traffic, business or revenue the Subscriptions will generate. Scorpion may use aggregate data across all Subscriber's to provide audience insights which may be used for general advertising and potential consumer profiling. Further, Subscriber expressly acknowledges You are not relying on anything (whether written or oral) outside the terms of this written agreement.

   4. Relationship of Parties.

      Scorpion and Subscriber are independent contractors. Neither Party is an agent, representative or partner of the other Party. Notwithstanding the foregoing, Subscriber expressly authorizes Scorpion to enter into any agreements necessary to provide Subscriptions on Subscriber's behalf. This Agreement does not, and is not intended to, confer any rights or remedies upon any person other than Subscriber and Scorpion. Subscriber acknowledges that Scorpion provides Subscriptions to other businesses throughout the world, and Subscriber agrees that nothing herein grants Subscriber an exclusive right to receive Subscriptions from Scorpion. Subscriber agrees that Scorpion may provide Subscriptions to any and all other businesses and such provision of these Subscriptions does not give rise to a conflict of interest. This Agreement is also not intended to benefit, nor shall it be deemed to give rise to, any rights in any third-party. This Agreement and the performance of any duties hereunder may not be assigned, transferred, delegated, sold or otherwise disposed of in whole or in part by a Party other than with the prior written consent of the other Party. This Agreement will be binding upon and shall inure to the benefit of a Party's permitted successors and assigns. Any purported assignment, transfer, delegation, sale or other disposition in contravention of this Section is null and void.

   5. Integration And Severability.

      This Agreement is governed by the laws of the State of Utah, excluding its conflict of laws principles and constitutes the entire understanding and agreement between the Parties, oral or written, with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous representations, understandings and agreements related thereto, all of which are merged in this Agreement. If any provision of these terms or incorporated documents is found by the arbitrator or a court of competent jurisdiction to be invalid, the Parties nevertheless agree that the arbitrator or court should endeavor to give effect to the Parties' intentions as reflected in the respective provision(s), and the other provisions of these terms remain in full force and effect. Except for claims by Scorpion relating to Subscription Cost owed by the Subscriber, no claim, regardless of form or any statute or law to the contrary, which in any way arises out of this Agreement, may be made, nor action based upon such claim brought by either Party more than one (1) year after the Agreement terminates.

   6. Payment.

      Subscriber shall pay Scorpion all amounts due under the Agreement in full on the recited due date(s), and Subscriber hereby irrevocably authorizes Scorpion to charge Subscriber's provided credit card for any such amounts when due during the Term, and Subscriber agrees to inform Scorpion in writing if the nominated credit card account is canceled, substituted, renewed lost or stolen. Amounts due will be automatically charged, in advance, and are not refundable. Scorpion shall be under no obligation to perform any Subscriptions if Subscriber is delinquent on any Subscription Cost on any Scorpion agreement. If Scorpion suspends any Subscriptions due to non-payment by Subscriber, Subscriber agrees that it owes all amounts that would be due for the remaining months of the Term of the suspended Subscriptions as if such Subscriptions had not been suspended. If Scorpion does not receive timely payment of any amount due under the Agreement, Subscriber agrees to pay all amounts due pursuant to the Agreement upon demand and will reimburse Scorpion for all charges and fees Scorpion incurs in collecting the delinquent Subscription Cost(s), where Subscriber may be charged up to the maximum legal interest rate on any past due balance(s) where such interest is considered liquidated damages, and is not a penalty.

   7. Construction.

      The Parties have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The word “including” shall mean including without limitation. The word “excluding” shall mean excluding without limitation.

   8. Indemnification.

      Subscriber agrees to indemnify, defend and hold harmless Scorpion, its successors, officers, directors, employees, designees and agents (the “Indemnified Parties”) from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) (“Claims”) relating to or arising from the Subscriber Data, Subscriber's use of the Subscriptions, or breach (or alleged breach) of Subscriber's representations, warranties and covenants under the Agreement. Scorpion agrees to indemnify, defend and hold harmless Subscriber from and against any and all claims, actions, demands, costs, losses liabilities, penalties, damages and expenses (including reasonable legal and accounting fees) relating to or arising from the Scorpion Website Content or Technology. The indemnification obligations under this article are subject to the indemnified Party: (i) promptly giving written notice of the Claim to the indemnifying Party; (ii) giving the indemnifying party sole control of the defense, negotiation, and settlement of the indemnified portion of the Claim; and (iii) providing the indemnifying Party with all reasonable assistance required to effectively defend the Claim. Neither Party will have any indemnification obligation or liability regarding a third-party data security and privacy Claim when acts or omissions of the indemnified Party impede or prevent the indemnifying Party's ability to meet its data security and privacy obligations under the Agreement.

   9. Force Majeure.

      Neither Party will be liable for, or be considered to be in breach of, the Agreement on account of any delay or failure to perform as required by the Agreement as a result of any unforeseeable or exceptional situation beyond its reasonable control, so long as the non-performing Party: (i) did not cause such situation by its own negligent acts or omissions and (ii) exercised all due diligence and used commercially reasonable efforts to avoid such situation and mitigate the impact.

   10. Ownership.

       The Parties agree that, as between the Parties (i) the Technology and any improvements thereto whether or not created under this Agreement ("Scorpion Proprietary Data") are the exclusive property of Scorpion, and Subscriber shall not and will not acquire any ownership interest by reason of this Agreement nor make any efforts to acquire any Scorpion Proprietary Data; and (ii) Subscriber Data is the exclusive property of Subscriber. For the avoidance of doubt, Subscriber shall never acquire any rights, title, viewing rights or ownership to any aspect of any Machine Learning Advertising and/or SAM. During the Term and thereafter, neither Party will use, disclose or provide to any third party the other party's confidential information and/or property, except as expressly provided in this Agreement or as necessary for the Parties to perform their obligations or exercise or enforce their rights hereunder. Subscriber may acquire all rights, title and ownership to Website's static files (e.g., .html, .jpg, and .gif files) reflecting the state of the Website when the files were last saved (“Website Files”) once Subscriber tenders twenty-four (24) complete (non pro-rata) Subscription Cost payments since the Launch of that Website Graphic Design design (collectively "Ownership Condition Date"). If Subscriber has failed to satisfy the Ownership Condition Date, Subscriber may elect to purchase the Website Files for a one-time fee of $10,000.00 or have their prior vendor relaunch their pre-existing website (“Website Purchase Date”). After Ownership Condition Date or Website Purchase Date, Subscriber may request Scorpion to provide an electronic copy of the Website Files no more than twice per annum. The Website Files shall NOT include working files (e.g., Photoshop, Website Structural Layouts, etc.), Technology, or search engine optimization beyond embedded keywords in the Scorpion Website Content. Modification by Subscriber may be required for the Website Files to function in a similar manner on a third party's platform to that of Scorpion’s. This third-party shall be solely responsible, and Subscriber shall not hold Scorpion liable for any aspect of the Website Files including, but not limited to: redirects, hosting Website Files on a non-Scorpion server, and implementing a satisfactory transition of the Website Files. Notwithstanding anything to the contrary herein, Scorpion may reject Subscriber's request if Subscriber has failed to satisfy the terms of this Agreement or is otherwise in default on any Subscription Cost and/or account.

   11. Electronic Contract.

       The following provision applies if the Agreement is accepted electronically. The Agreement is an electronic contract that sets out the legally binding terms of the Subscriptions which must be acknowledged before this Agreement may be executed. By clicking on the “I Agree” button, Subscriber (or its authorized agent) acknowledges reading and accepting the Agreement, all of these Terms and Conditions, the Privacy Policy and represents, warrants and agrees that Subscriber (or its authorized agent) has the power, authority and legal right to enter into the Agreement.

   12. Counterparts; Facsimiles; Electronic Record.

       This Agreement may be executed in any number of textually identical counterparts, each of which when so executed and delivered will be deemed an original, and such textually identical counterparts together will constitute one and the same instrument. Each Party will receive a duplicate original of the counterpart copy or copies executed by it. For purposes hereof, a facsimile or an electronic record or copy of this Agreement, including the signature pages hereto, will be deemed to be an original. Notwithstanding the foregoing, the Parties will each deliver original execution copies of this Agreement to one another as soon as practicable following execution thereof.

   13. Notices of Dispute or Termination.

       Except as specifically provided in this Agreement, all notices, demands or other communications of Dispute or Termination required or permitted hereunder shall be in writing and shall be given as follows:

       1. If by You: electronic mail (notice deemed effective on date of transmission) to email address (legal@scorpion.co and management@scorpion.co); and

       2. If by Scorpion: by electronic mail (notice deemed effective on date of transmission) to the email address listed in Subscriber’s account.

   14. Website Credits and Links.

       Scorpion may place a Scorpion.co Logo and/or text with hyperlink to Scorpion.co in the footer of Website as Scorpion determines.

   15. Pre-Existing Conflicting Scorpion Agreements.

       If any portion of this Agreement directly conflicts with other pre-existing Scorpion agreements or any Scorpion partnership agreements which prevents Scorpion from providing Subscriber with Subscriptions, Scorpion shall notify Subscriber that a conflict exists and return all payments (“Return Payment”) to Subscriber within a reasonable time of such discovery. Once Subscriber has received such notification and Return Payment, the Parties shall mutually cancel this Agreement wherein the Parties shall each expressly waive any and all claims, or causes of action against the other Party and release and hold them harmless from any and all claims or causes of action they may have under this Agreement. Further, the Parties further agree not to bring or cause to be brought any suit or any such claim or cause of action and acknowledges that the releases and waivers referred to herein shall apply regardless of whether liability is asserted on the basis of contract, strict liability or ordinary or gross negligence.

   16. Confidential Information.

       The receiving Party will only use Confidential Information for the purposes of the Agreement and will not reproduce, disseminate, or disclose Confidential Information to any person, except to its employees and authorized representatives (e.g. temporary employees, consultants, and contractors) who need to know the Confidential Information for the purposes of the Agreement and are bound by confidentiality obligations at least as restrictive as those in this section. The receiving Party will treat Confidential Information with the same degree of care as it treats its own information of similar sensitivity, but never with less than reasonable care. No Party may disclose the terms of this Agreement (including, for purposes of clarification, the pricing terms) to a third-party without prior written consent of the other Party.

   17. Non-Scorpion Computer Programs/Software.

       Scorpion has sole discretion in determining what software to install and update on Scorpion's servers. Any Services which conflict with this section shall be null and void as of Effective Date. Client further expressly authorizes Scorpion to not provide these null and void Services, where such non-performance is not a breach of this Agreement.

   18. Disallowed Content.

       Scorpion reserves the right to refuse, modify, substitute or remove any Subscriber Content, information or other materials that may (i) be deemed to violate the privacy, personal, proprietary, or contractual rights of third parties; (ii) be contrary to Scorpion's practices; or (iii) defame, expose to legal liability, or otherwise harm Scorpion (collectively “Disallowed Content”).

   19. Recorded Call Terms and Conditions.

       Scorpion's recorded call terms and conditions are hereby incorporated by reference as last updated at https://www.scorpion.co/recorded-call-terms-and-conditions.

   20. Requests Beyond Scope of Agreement.

       If Subscriber ever asks for any additional services beyond the scope of this Agreement as Scorpion determines, Scorpion will provide Subscriber with an estimate which Subscriber must authorize in writing and make any recited payments before Scorpion will begin providing such additional work and/or Subscription.

   21. Staffing.

       Scorpion shall have sole discretion in the manner of producing and delivery of Subscriptions to Subscriber including directly or indirectly answering phone calls and/or communicating with Subscriber’s end-users at Subscriber’s direction if that is a subscribed to Subscription.

   22. Headings; Counterparts.

       The headings and captions contained in this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

   23. Effectiveness; Date.

       This Agreement will become effective when both Parties have signed it (“Effective Date”). The date this Agreement is signed by the second Party to sign it (as indicated by the date associated with that Party's signature) will be deemed the date of this Agreement. If a Party signs but fails to date a signature, the date that the other Party receives the signing Party's signature will be deemed to be the date that the signing Party signed this Agreement.

   24. Waiver; Survival.

       Should any provision of this Agreement be held void, invalid, unenforceable, or illegal by a court of law, the remaining provisions will remain valid and enforceable. Any of the provisions of this Agreement may be waived by the Party entitled to the benefit thereof. No Party will be deemed, by any act or omission, to have waived any of its rights or remedies hereunder unless such waiver is in writing and signed by an authorized agent of the waiving Party (which shall only be Scorpion’s legal department in the case of Scorpion), and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to, or waiver of, any right or remedy as to a subsequent event. Any provisions of this Agreement which impose an obligation or right after the termination or expiration date shall survive the termination or expiration of this Agreement and shall be binding on the Parties, and Subscriber expressly waives any statutory or other legal protection in conflict with these provisions. The termination or expiration of the Agreement will not affect any provisions of the Agreement which by their nature survive termination or expiration, including the provisions that deal with the following subject matters: definitions, payment obligations, confidentiality, term and termination, effect of termination, intellectual property, license compliance, limitation of liability, privacy, content monitoring, and the Miscellaneous section in this Agreement.

   25. Non-Solicitation.

       Subscriber expressly agrees that for the Term and for thirty-six (36) months thereafter (“Solicit Term”), Subscriber will not directly or indirectly solicit for employment, retain, employ, work with, enter into a contract or working relationship (either personally and/or with or through a third-party business) any Scorpion employee who was employed at any time during the Term (“Subscriber Solicit”). Scorpion expressly agrees that for the Solicit Term, Scorpion will not solicit for employment, retain, or employ (directly or through another source) (“Scorpion Solicit”) any employee of Subscriber who was employed at any time during the Term.

   26. Subscription Tiers.

       Certain Subscriptions may be added, modified, removed, upgraded or downgraded (“Subscription Modification”) at your discretion through the Platform. Upon such Subscription Modification, you authorize us to charge the new prorated amount for the current Term and to charge the new total Subscription Cost for all combined Subscriptions thereafter to the respective payment method on file for your associated account. Please note that downgrading your plan may cause the loss of data, information, features or other functionality that is associated with your account in addition to a recalibration of your estimated future growth metrics. You bear all risk from downgrading any service and release Scorpion from all liability and consequences related thereto. In some cases Scorpion may add, modify, deprecate, diminish or remove certain features and functionality, but such changes will not have a materially adverse impact on Subscriber's use of the Products and Services. Under these circumstances, Subscriber’s only remedy shall be to provide notice of termination of that respective Subscription within thirty (30) days of notice of change.

   27. Additional Subscriptions.

       From time to time Scorpion may offer features or services that may be subject to additional or different terms and fees. Subscriber may not use these additional features and services unless You agree to the applicable terms. Scorpion may also provide access to subscriptions, features or services that are identified as beta or pre-release. Subscriber understands that such services are still in development, may have bugs or errors, may be feature incomplete, may materially change prior to a full commercial launch, or may never be released commercially. Despite any other provision of this Agreement, any use of or reliance on beta or pre-release subscriptions, features or services is done at Subscriber’s own risk and is provided as-is and without warranty of any kind, and the Scorpion indemnity Section herein does not extend to such beta or pre-release features or services.

   28. Promotions.

       Any and all promotions delaying the initial Subscription Cost will be calculated as the recited number of days from the Effective Date. For such a promotion, the Initial Commitment shall begin on the Subscription Start Date. For any and all promotions offering Advertising Subscription credits, such credits will be added to Subscriber’s Advertising Subscription in the month Subscriber matches the respective Advertising Subscription credit.

   29. Users.

       Access to the Products and Services is limited to Users. User accounts may be reassigned by the Subscriber, but accounts must not be shared among multiple individuals. Subscriber agrees to: (i) supervise and monitor Users' use of the Products and Services; (ii) promptly report to Scorpion any violation of the Agreement by its Users; (iii) immediately disable access for anyone violating the Agreement on the Subscriber's account; and (iv) ensure that no false or misleading personal information is used to create User accounts.

   30. Feedback and Usage Analytics.

       Subscriber may provide feedback to Scorpion about the Products and Services (e.g. technical support input, suggestions, or enhancement requests) and generate usage analytics (e.g. non-identifiable technical data and metadata from usage of the Products and Services). Scorpion may use Subscriber's feedback and anonymous usage analytics to: (i) compile statistical and performance information related to the Products and Services; (ii) improve the Products and Services; and (iii) develop and publish benchmarks and similar informational reports.

   31. Technical Support Services.

       Scorpion's standard technical support services are included at no-additional charge during the Subscription Term. Access to email or in-app technical support is provided to Subscriber during normal business hours on weekdays (8AM-7PM Central Time) excluding nationally recognized holidays and/or Scorpion observed non-workdays. Access to online support resources are available 24x7 to all Users.

   32. Taxes.

       The fees stated in a Sales Order do not include Taxes. Subscriber is responsible for paying all applicable Taxes. If Scorpion determines that Scorpion has a legal obligation to pay or collect Taxes, Scorpion will add such Taxes to the applicable invoice and Subscriber will be obligated to pay such Taxes, unless Subscriber provides Scorpion with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues Scorpion for unpaid Taxes for which Subscriber is responsible under the Agreement and which Subscriber did not pay to Scorpion, Scorpion may invoice Subscriber, and Subscriber will be obligated to pay such Taxes to Scorpion or directly to the taxing authority, plus all applicable interest, penalties, and fees.

   33. General.

       Where relevant, a reference in the Agreement to Subscriber should be construed as equally including a reference to Subscriber's affiliates and Users. Similarly, a reference in the Agreement to Scorpion should be construed as equally including a reference to Scorpion's affiliates. Any obligation in the Agreement not to do something includes an obligation not to support or allow that thing to be done.

   34. Security.

       Scorpion will establish and maintain appropriate administrative, technical, and physical safeguards and controls to: (i) ensure the ongoing confidentiality, integrity, availability, and resilience of the Products and Services and Subscriber Data; (ii) restore the availability and access to Subscriber Data in a timely manner in the event of a physical or technical incident; and (iii) have in place a process for regularly testing, assessing, and evaluating the effectiveness of technical and organizational measures for ensuring the security of the processing through the Products and Services.

   35. Data Processing.

       Scorpion will comply with applicable privacy and data protection laws governing its processing and storage of Personal Data in connection with its role as described in the Agreement.

   36. Independent Allocations of Risk.

       Each provision of the Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by Scorpion to Subscriber and is an essential element of the basis of the bargain between the Parties.

   37. No Third Party Beneficiaries.

       There are no third-party beneficiaries to the Agreement, including, without limitation, permitted Third Parties or Users.

   38. Google Maps.

       Google Maps may be presented to Subscriber through the Products and Services and is powered by Google. Subscriber’s use of Google Maps is subject to the Google Maps Terms of Service, available online at https://www.google.com/intl/en-US_US/help/terms_maps.html, and https://www.google.com/intl/ALL/policies/privacy/index.html, and by using the respective Products and Services, Subscriber agrees to be bound by such terms.

   39. Entire Agreement.

       The Agreement contains the entire understanding of the Parties relating to the subject matter and supersedes all earlier agreements, understandings, proposals, discussions, negotiations, representations, and warranties, both written and oral, regarding the subject matter.