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WBX Data Services and License Agreement

Data Services and License Agreement

This Data Services and License Agreement (“Agreement”) is made and entered into by and between Whitebox Technologies, Inc., dba as WBX Commerce, a Delaware corporation (“Whitebox” or “WBX”) and the entity identified in an Order Form (an Order) that references this Agreement (“Customer”) (each a “Party” and collectively the “Parties”).  This Agreement is effective as of the date of the first Order entered into by the Parties (the “Effective Date”).

A.    WBX collects, processes and licenses various types of data, and delivers certain data-related services on a subscription basis; and

B     WBX and Customer desire to enter into this Agreement to enable Customer to license certain data and receive certain data-related services from WBX under this Agreement, as specified in one or more Orders and/or SOWs.


Each Party, intending to be legally bound, hereby agrees as follows:

1.     Definitions. 
1.1   Definitions. Unless specifically defined below, capitalized terms are defined in Schedule A below.

2.     Services.
2.1     License.  Subject to Customer’s compliance with this Agreement, WBX grants to Customer a non-exclusive, non-assignable (except as permitted in Section 9.2 below) right to use the Subscription Services (including the Licensed Data) in the normal course of Customer’s business, in the form provided by WBX, as described in each applicable Order, during the applicable Subscription Term specified in that Order, in accordance with the applicable documentation made available by WBX, and subject to any additional limitations specified in each Order.  The foregoing right includes the right for Customer to permit its Authorized Users to access the Subscription Services (including the Licensed Data) on behalf of Customer, within the scope of the foregoing right granted to Customer, and otherwise subject to this Agreement.
2.2     Use of Subscription Services.  Customer will not itself, and will not permit others to: (a) perform or disclose any benchmarking or availability testing of the Subscription Services; or (b) perform or disclose any performance or vulnerability testing of the Subscription Services without WBX’s prior written approval, or perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking or remote access testing of the Subscription Services; , ((a) and (b) collectively, the “Use Policy”).  In addition to its other rights and remedies under this Agreement, WBX has the right to take immediate remedial action if Customer violates or permits the violation of the Use Policy, including to remove or disable access to material that violates the Use Policy.  Customer will ensure that all passwords and all access to the accounts held by Authorized Users within the Subscription Services are kept secure and confidential, and Customer will be responsible for all access and losses that may occur through any Authorized User account, including to the extent caused by security lapses, failure to keep confidential access credentials, or other misconduct by Authorized Users.
2.3     Data.
(a)      Data Enhancement.  As part of the Subscription Services, WBX may use Licensed Data to augment Customer Data provided by Customer, or may provide Licensed Data to Customer on a stand-alone basis.  All such Licensed Data will be considered WBX Data under this Agreement and is licensed to Customer as provided in Section 2.3(b) below.
(b)      License to Customer. The license granted to Customer under Section 2.1 above includes the right for Customer to use the Licensed Data within the scope of that license.  Customer will own all Customer Data (including all IP Rights related to such Customer Data), and WBX will own all WBX Data (including all Licensed Data, and all all IP Rights related to such WBX Data and Licensed Data).
(c)      Overlapping Data.  To the extent that both Parties collect or otherwise acquire the same data from any third party, (i) each Party will own its copy of that data, (ii) such data will be considered simultaneously both Customer Data and WBX Data, and (iii) neither Party will have any confidentiality or other obligations under this Agreement for such data.
(d)      Data Use and Insights.  As part of the Services, WBX may process the Customer Data, including to combine or augment it with Licensed Data and/or to provide various information, analytics, suggestions, or insights to Customer relating to such Customer Data (“Insights”).  To the extent that Insights are based on the Customer Data, the Insights will be considered Customer Data, and will remain the property of Customer.  To the extent that Insights are based on the WBX Data, the Insights will be considered WBX Data, and will remain the property of WBX.  Customer grants to WBX a nonexclusive, royalty free and fully paid up, assignable and transferrable as permitted in Section 9.2 below, worldwide license, including the right to sublicense in the course of the WBX’s normal business, under all of Customer’s rights relating to the Customer Data and Insights, to the maximum extent permitted under applicable rights and regulations, to (a) use the Customer Data and Insights to provide the Services to Customer under this Agreement, and (b) to produce anonymized  data (“Anonymized Data”) based on the Customer Data, and to use, share and commercialize all such Customer Data in the course of WBX’s business.  The foregoing license will remain in effect for the Term of this Agreement with respect to clause (a), and will be perpetual and irrevocable with respect to clause (b).  WBX will comply with all applicable laws and regulations in the course of producing, sharing, using and commercializing the Anonymized Data.
(e)      Regulatory Compliance.  Each Party will comply with all laws and regulations applicable to its activities under this Agreement and to the data that such Party collects, uses, processes or otherwise commercializes in connection with this Agreement, and with its own privacy policies relating to such activities and data.  To the extent needed under applicable laws and regulations, each Party will obtain from all natural persons and from other relevant third parties all consents that are necessary to share with the other Party such data, and to grant to the other Party the rights and licenses that it is granting to the other Party with respect to such data under this Agreement.
2.4     Third-Party Services.  The Services may use or may rely on technology or services not provided by WBX (e.g., the Customer’s computers or network infrastructure, processing and approval of financial transactions by financial institutions, processing of fulfillment data by logistics vendors, data transmissions over the Internet or local networks, and other factors outside the control of WBX) (“Third-Party Services”).  The Licensed Data may also include data owned by third parties, and the Licensed Data will also be considered Third-Party Services.  Consequently, Customer assumes all risk with respect to the Third-Party Services.  WBX will have no obligations and liability in connection with this Agreement for any unavailability, inadequacy, losses or delays incurred by Customer to the extent caused by Third-Party Services.
2.5     Security Response.  WBX has the right to suspend the Subscription Services at any time in case of actual or suspected security risks or threats to the Subscription Services, in which case WBX will notify Customer of the respective issue as soon as reasonably possible.

3.     Professional Services.
3.1     Professional Services.  From time to time, Customer may request WBX to perform certain professional services (“Professional Services”) that require a statement of work (“SOW”).  Examples of Professional Services may include API integrations, customization of the Subscription Services, or other nonrecurring engineering services.  In such cases, Customer and WBX will negotiate in good faith the scope of work and the pricing for such Professional Services, which may be captured in one more SOWs executed by WBX and Customer.  Upon Customer and WBX entering into a specific SOW, the SOW will become a part of this Agreement and will be subject to the terms and conditions of this Agreement except to the extent expressly provided otherwise in such SOW.  For any SOW executed by both WBX and Customer, WBX will perform the Services and Customer will make the payments specified in that SOW.

4.     Financial.
4.1     Prices.  The prices for Services are set forth in applicable Orders entered into by WBX and Customer.
4.2     Payments.  Customer will pay all amounts specified under each Order and each SOW that was accepted by both Customer and WBX or otherwise due under this Agreement.  Unless otherwise agreed upon by Customer and WBX in an Order or SOW, all other payments owed under this Agreement by Customer are due within thirty (30) days of receiving an invoice from WBX.  Payments that are not made on time by Customer will bear interest at the rate of 1% of the unpaid balance per month (or the maximum amount allowed by law, if lower).  Costs of collection for late or unpaid amounts under this Agreement (including any applicable legal fees and other collection fees and expenses) will be paid by Customer.
4.3     No Fee Changes during Subscription Term.  During each Subscription Term, (a) WBX may not change the fees for the respective Services during the applicable Subscription Term, and (b) neither WBX nor the Customer may terminate that Order without the written consent of the other party until the expiration of that Subscription Term.  In the absence of a Subscription Term applicable to any Services, or at the end of any Subscription Term, WBX may change prices for such Services at any time with prior written notice to Customer.  Upon any expiration of a Subscription Term, the respective Order will automatically renew for another Subscription Term of the same duration, unless either Party declines such autorenewal by providing written notice to the other Party at least 90 days prior to the upcoming renewal date.  Unless otherwise agreed by the Parties in writing, WBX may adjust the fees for the Services for any upcoming renewal Subscription Term.
4.4     Scope of Use.  Customer will limit use of the Subscription Services in accordance with any limitations specified in each Order, including any limits on the number of Authorized Users.  If Customer exceeds the number of Authorized Users specified in an Order, WBX has the right to block access to the Services by the additional Authorized Users, or to invoice WBX for the additional number of Authorized Users.  Customer will pay all amounts invoiced by WBX under this Section within thirty days of receiving the invoice.
4.5     Taxes. Prices specified under this Agreement are net of taxes.  To the extent any taxes and other charges (including sales and use taxes, withholding taxes, gross receipts taxes, and other charges such as duties, customs, tariffs, imposts and other government-imposed surcharges) (“Taxes”) are applicable to the payments made by Customer to WBX under this Agreement, Customer will be responsible for those Taxes and will pay them to the appropriate authorities.  Customer will reimburse WBX for any such Taxes that WBX may pay on behalf of Customer.  WBX will reasonably cooperate with Customer to help the Customer obtain evidence of Tax payments under this Agreement to the extent Customer needs such evidence to claim tax credits.  Each Party is responsible for its own respective income taxes.
4.6     Currency.  Unless otherwise agreed in writing by the Parties, all amounts under this Agreement are stated and calculated, and will be paid in United States Dollars ($ U.S.) to a bank account designated by WBX in the USA.

5.     Intellectual Property
5.1     Ownership and Reservation of Rights.  Except for the right to use the Subscription Services (including WBX Data) in accordance with Section 2, WBX owns and will retain all right, title and interest to the Services, all deliverables and work product produced by WBX, and all WBX Data, and to all related software and other technology used to deliver the Services, and to all IP Rights in and to all such Services, deliverables, work product, and WBX Data, software and other technology.  Customer will retain ownership of its own respective technology (including software and hardware), services and IP Rights.  To the extent that Customer or WBX develops any new IP Rights and/or any new work product in connection with this Agreement, solely or jointly with the other Party, then the following will apply: (a) Customer will be the sole owner of any IP Rights and new work product that relate to the Customer’s technology and services (including the Customer Data), including any improvements, modifications or extensions of such technology and services, and (b) WBX will be the sole owner of any IP Rights and new work product that relate to WBX’s technology and services (including the Services, WBX Data, Licensed Data, and software), including any improvements, modifications or extensions of such technology and services.  Neither Party intends to grant, and neither Party does actually grant in connection with this Agreement any license or other right that is not expressly stated in this Agreement with respect to any IP Rights, Service, data, or software, whether by implication, statute, inducement, estoppel or otherwise, and WBX and Customer each hereby reserves all of its rights other than the rights expressly granted in this Agreement.  Each Party agrees to assign to the other Party the IP Rights developed by that Party, and does assign such IP Rights upon their creation, to the extent required under the foregoing clauses of this Section 5.1.  Each Party will reasonably collaborate with the other Party to assist the other Party to perfect its ownership and rights to any IP Rights assigned to the other Party under this Agreement.

6.     Confidentiality.
6.1     Each Party will comply with the confidentiality obligations in Schedule B (Confidentiality).

7.     Warranties and Disclaimers
7.1     Warranties.  With respect to each Subscription Service made available by WBX to Customer under an Order, WBX warrants to Customer that the respective Subscription Service (excluding Third Party Services) will operate substantially in accordance with WBX’s applicable documentation made available by WBX to Customer.  The foregoing warranty in this Section 7.1 will remain in effect for the duration of applicable Order.  Additionally, WBX will use its reasonable efforts to identify marketing audiences for Customer in accordance with each applicable Order, but due to inherent complexity and uncertainties associated with identifying and targeting audiences for marketing purposes (e.g., uncertainty in quality of data, Third Party Service limitations, etc.), WBX cannot warrant any specific result of any marketing campaign or the suitability of any particular target audience for any purpose.
7.2     Performance.  WBX and Customer each warrants and represents that it is a legal entity duly organized, validly existing and in good standing with the applicable authorities, and that it has all necessary corporate power and authority to execute and deliver this Agreement and each Order executed by it, and perform its obligations under this Agreement and such Order.
7.3     Compliance with Laws.  Each Party comply with all laws, rules and regulations applicable to its business and operations in connection with this Agreement.  To the extent applicable, Customer will obtain all consents required under all applicable laws and regulations (including any consents required by financial institutions) from end consumers to collect end consumer data (including any personal data and personally identifiable information) in accordance with this Agreement.  Customer will comply with all applicable laws and regulations while using the Services in connection with this Agreement, including any employment and privacy laws applicable to the Customer’s personnel whose data may be processed through the Services, and will indemnify and hold WBX harmless from any claims brought against WBX or its personnel and affiliates as a result Customer’s noncompliance with such laws, rules or regulations.
7.5     Mutual Limitations.  Neither Party will be liable for any costs of procurement of substitute deliverables or other products or services, nor for any loss of business, loss of use or of data, interruption of business, lost profits or goodwill, or other indirect, special, incidental, exemplary or consequential damages of any kind arising in connection with this Agreement, even if it has been advised of the possibility of such loss, and notwithstanding any failure of essential purpose of any limited remedy.  This exclusion includes any liability that may arise out of third-party claims.  Except for the obligation to pay the fees due for Services in the normal course of this Agreement under applicable Orders, under no circumstances shall the total and aggregate liability of all kinds arising out of or related to this Agreement and all Orders, regardless of the forum and regardless of whether any action or claim is based on contract, indemnification obligations, tort or otherwise, exceed for either Party at any point in time the total subscription fees paid to WBX under this Agreement for the Subscription Services giving rise to such liability over the twelve (12) months prior to that point in time.  The foregoing limitation in this Section 7.5 is cumulative, with all payments for claims or damages being aggregated to determine satisfaction of the limit, and the existence of one or more claims will not enlarge that limit.  Each Party acknowledges that these limitations will apply notwithstanding any failure of essential purpose of any limited remedy.  No claim, suit or action will be brought under this Agreement against either Party more than one year after the related cause of action first occurred.

8.     Term and Termination
8.1     Term.  This Agreement becomes effective on the Effective Date and will continue in effect until terminated in accordance with this Section 8 (“Term”).
8.2     Termination.
(a)      Termination for Convenience. Either Party may terminate this Agreement or any Order or SOW, in whole or in part, at any time, by giving prior 90-day written notice of termination to the other Party, except that neither Party may terminate for convenience (i) any Order before the end of all Subscription Terms defined in that Order, or (ii) this Agreement until all Subscription Terms included in all Orders have expired.
(b)      Termination for Cause.  This Agreement may also be terminated immediately, by written notice, (i) by either Party in the event of a material breach of this Agreement by the other Party if the circumstances that led to such breach remain uncured for 45 days from receipt of written notice of default, or (ii) by either Party if the other Party ceases to do business, makes an assignment for the benefit of creditors, or files or has filed against it a petition of bankruptcy or other insolvency proceeding.
8.3     Effect of Termination.  The provisions of Sections 2.3, 4 (to the extent payment obligations are not completed before the expiration or termination), 5, 6, 7, 8.3 and 9 and Schedules A and B will survive any termination or expiration of this Agreement.

9.     General
9.1     Insurance.  During the term of this Agreement and for at least one year after any termination or expiration of this Agreement, WBX will maintain insurance policies with financially sound and nationally reputable insurers rated A-VII or better by A.M. Best Company as follows: (a) Commercial General Liability Insurance with limits of at least $1 Million per occurrence and at least $2 Million in the aggregate; (b) Workers’ Compensation and Employers’ Liability Insurance, of the type and amount required by laws and regulations applicable to that Party under this Agreement; and (c) coverage for Cyber and Privacy liability arising out of technology services, including invasion of privacy violations and data security breach of networks that are under that Party’s control, with a limit of at least $1 Million per occurrence and at least $1 Million in the aggregate.  WBX will provide Customer with certification of such insurance upon request.
9.2     Assignment.  Neither Party may assign this Agreement or any Order without the express consent of the other Party, except that either Party may assign this Agreement (together with all Orders) without the need to obtain such consent to any entity that is sufficiently capitalized, has the resources to operate under this Agreement, and agrees to assume this Agreement and be bound by its terms.
9.3     Notices.  All notices or other communications relating to the performance, enforcement, or other legal aspects of this Agreement will be in writing and will be personally delivered or sent by overnight courier service to each Party, as applicable, at the address set forth in the preamble of this Agreement or in a relevant Order.  Any other communications between Customer and WBX, including relating to the technical and business collaboration under specific Orders or SOWs, may be conducted over telephone, email, or by other means reasonable under the circumstances and mutually acceptable to Customer and WBX.
9.4     Relationship of Parties.  The Agreement does not create and will not be construed as creating any relationship of agency, franchise, fiduciary duty, partnership, or employment between the Parties.  This Agreement and relationship are not exclusive for either Party.
9.5     Applicable Law and Venue.  This Agreement and all claims relating to the relationship of the parties contemplated herein, whether or not arising directly under this Agreement, will be governed by and construed and interpreted in accordance with the laws of the State of Delaware, USA, applicable to contracts entered into and to be performed within that state.  Customer and WBX hereby acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  WBX and Customer hereby irrevocably consent to the personal jurisdiction and venue of any State or Federal court located in Delaware, USA.
9.6     Injunctive Relief.  Notwithstanding anything to the contrary in this Agreement, in the event of a breach under Schedule C (Confidentiality), each Party, without limiting any of its other respective rights or remedies, will be entitled to specific performance and injunctive and/or equitable relief, in addition to other remedies afforded by law, to protect its interests.
9.7     Force Majeure.  Each Party will be excused from performance and will not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of that Party, including but not limited to, war (whether an actual declaration thereof is made), sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism or of any other public enemy, pandemic or other large-scale health-related events, hacking or other cyber-attacks, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of this contract or otherwise, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical or yield failures.
9.8     Construction.  For purposes of this Agreement, unless otherwise required by the context: the singular number will include the plural, and vice versa; the verb “may” indicates a legal right to perform the respective activity but does not establish a legal obligation to perform that activity; and the words “include,” “including” and “for example,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation.”  The headings in this Agreement are for convenience of reference only and will not be referred to in connection with the construction or interpretation of this Agreement.  English is the official language of this Agreement.  This Agreement may be translated and/or executed in languages other than English, but the Parties agree that the English version will control.  Each Party waives any rights that it may have under the laws of any country or jurisdiction to have this Agreement written in any local language, or interpreted or superseded by local law in those countries.
9.9     Miscellaneous.  No amendment or modification of this Agreement will be valid or binding upon the Parties unless made in writing and executed by authorized representatives of each Party, except as otherwise expressly provided in this Agreement.  This Agreement includes all of the attached Schedules, and all such Schedules are expressly incorporated and made a part of this Agreement.  This Agreement supersedes all prior agreements and understandings, including oral representations, between the Parties relating to its subject matter.  In case of any conflict between this Agreement and any SOW, Purchase Order, Quotation or other document, the terms of this Agreement will prevail unless otherwise expressly stated in such SOW, Purchase Order, or document.  Waiver of breach of any provision of this Agreement on any occasion will not be deemed a waiver of that provision or of any other provision on any other occasion, nor will such waiver affect the right of either party to terminate this Agreement.  If any provision in this Agreement is held to be invalid or unenforceable for any reason, such provision will, to the extent of such invalidity or unenforceability, be severed, but without in any way affecting the remainder of such provision or any other clause in this Agreement, and the provision will be replaced with a provision which, to the extent permitted by applicable law, achieves the purposes intended by the invalid or unenforceable provision.  This Agreement may be executed in counterparts.

Schedule A


1.     “Authorized User” is an individual authorized by Customer to access the Services on behalf of Customer and for the Customer’s internal business purposes, and otherwise in accordance with this Agreement.  Examples of Authorized Users include employees and contractors of Customer assigned to administer and manage the Services on behalf of Customer under this Agreement.  For clarification, unless approved by WBX in writing (email acceptable), Customer will ensure that each Authorized User is a natural person, and not a legal entity.

2.     “Customer Data” means any and all data owned, collected or otherwise in possession of Customer, but excluding the WBX Data provided by WBX to Customer under this Agreement.  The Customer Data may include Personal Data.

3.     “DAAS” or “SAAS” means Data-as-a-Service or respectively Software-as-a-Service offerings, as generally known in the industry.

4.     “IP Rights” means any and all intellectual property rights anywhere in the world, including all (a) patents, including utility patents, design patents, and all other equivalent or similar rights anywhere in the world in inventions and discoveries, together with any applications thereof (“Patents”), (b) copyrights and all other similar rights in software, documentation, and other works of authorship (“Copyrights”), (c) mask work rights, (d) trade secrets rights and other similar rights in oral and written confidential information, know-how, documentation, technology and software (“Trade Secrets”), (e) rights in all trade names, logos, common law trademarks and service marks, trademark and service mark registrations, and applications thereof (“Trademark Rights”), (f) rights in mask works, chip topographies, and chip or product layouts and designs; (g) rights in all moral and economic rights of authors and inventors, however denoted; and (h) any other similar, corresponding or equivalent rights to any of the foregoing related to any technology, hardware, software, data or services.

5.     “Licensed Data” means any and all WBX Data that is made available WBX to Customer under this Agreement, as may be further described in an applicable Order.  The Licensed Data includes any data that WBX makes available to Customer under this Agreement to enhance the Customer Data.

6.     “Order” means each order form entered into by the Parties and referencing this Agreement.  Orders may be submitted and accepted electronically or in writing.

7.     “Personal Data” or “PII” means any and all data to the extent such data can be used to uniquely identify a natural person.

8.     “Professional Services” means professional engineering services performed by WBX under this Agreement, as specified in a related SOW.

9.     “Services” means Subscription Services and/or Professional Services, as applicable.

10.   “Subscription Services” means services made available by WBX to Customer under this Agreement on a recurring basis, as specified in an Order.  Services may include DAAS or SAAS services, API access, and other cloud-based services.  The Services include the Licensed Data.

11.   “Subscription Term” means, with respect to each Service included in each Order, the subscription term specified in that Order for that Service.

12.   “WBX Data” means any and all data owned, collected or otherwise in possession of WBX.  The WBX Data includes data received, collected or licensed by WBX from third parties.  The WBX Data may include Personal Data.


Schedule B


1.        “Confidential Information” means any information disclosed by either Party to the other Party in connection with this Agreement (each a “Discloser” or “Recipient” of Confidential Information, as applicable).  Confidential Information includes all information that is communicated orally, or that is in written, electronic, graphic, machine readable or in other tangible form, provided that such information is identified as “Confidential”, “Proprietary” or in some other manner to indicate its confidential nature, or that it should be reasonably known under the circumstances as being confidential.  Confidential Information will include all technology, technical and business information, and all other tangible items and electronically stored data, including materials, formulations, compositions, prototypes, structures, designs, software, documentation, systems, files, records, databases, drawings, artwork, designs, displays, audio-visual works, manuals, specifications, flow charts, web pages, customer lists, test cases, customer support information, electronic and other data, tangible embodiments of technical or business data, marketing collateral, market requirement documentation, R&D development specifications, protocol specifications, and any other similar technology, information, data, materials and tangible or intangible items.  The Services and any modifications or extensions made in connection with this Agreement will be the Confidential Information of WBX.  The Customer’s technology, and any modifications or extensions made in connection with this Agreement to Customer’s technology, will be the Confidential Information of the respective Customer.  Notwithstanding the foregoing, Confidential Information will exclude any information that (i) was at the time of disclosure, or later becomes generally known and available in the public domain, through no fault of the Recipient; (ii) was known to the Recipient at the time of disclosure; (iii) is publicly disclosed with the prior written approval of the Recipient; (iv) was, or is later independently developed by the Recipient without any use of the Discloser’s Confidential Information; or (v) becomes known to the Recipient from a source other than the Discloser and not in violation of the Discloser’s rights.
2.        Obligations.  With respect to any Confidential Information disclosed under this Agreement by Discloser, (a) Recipient will treat such Confidential Information as confidential and will handle it using at least the same procedures and degree of care which it uses to prevent the misuse and disclosure of its own confidential information of like importance, but in no event less than reasonable care, (b) Recipient will only use such Confidential Information as expressly permitted under this Agreement and only to the extent necessary, and (c) Recipient will not disclose any such Confidential Information to any of its employees, consultants or other individuals or entities except to the extent necessary for the purposes of this Agreement and subject to confidentiality and nonuse obligations at least as protective of the Discloser as those set forth in this Agreement (in which case Discloser will remain responsible for any noncompliance by such employees, consultants or other individuals or entities).  Recipient further agrees to keep confidential the terms of this Agreement.  Recipient will not reverse engineer, disassemble or decompile any Services or other technology made available by the Discloser under this Agreement, except to the extent that this clause is not enforceable under applicable laws.
3.        Deletion of Data.  Upon any termination or termination of this Agreement or upon request from the Discloser, Recipient will delete all of the Confidential Information received from the Discloser under this Agreement (together with all copies and derivatives of such Confidential Information), except that (a) Recipient may continue to temporarily hold a copy of such information for data retention purposes in accordance with its data retention policy or as required by applicable laws (e.g., as required by PCI DSS data retention requirements), and (b) Recipient may continue to hold and use any Confidential Information received from the Discloser to the extent Recipient has surviving rights under this Agreement, or to the extent that such Confidential Information is anonymized and used in accordance with all applicable laws and regulations.