TERMS & CONDITIONS

These Terms and Conditions are made as of the Effective Date (as defined below), by and between the (“Customer”), and Constellation Software Inc., a Delaware corporation (“Constellation”). “Party” or “Parties” shall mean, individually, Customer or Constellation as the context requires and, collectively, Customer and Constellation. The Parties hereby agree to the terms and conditions, including any specific services terms or product details set forth in applicable Order Form(s), each of which become binding on the Parties and are incorporated into these Terms and Conditions upon execution of an Order Form. Each Order Form is governed by and incorporates the following documents in effect as of the effective date of the applicable Order Form, collectively referred to as the “Agreement”, that consists of:

• the Order Form;
• any attachments or addenda to these Terms and Conditions; and
• These Terms and Conditions.

In the event of a conflict, the order of precedence is as set out above in descending order of control.

1. DEFINITIONS.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the applicable Party to this Agreement at any time during the term of this Agreement, for so long as such ownership and control exists. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the applicable Party.

“Applicable Laws” means any applicable national, federal, foreign, state, and local laws, rules, and regulations and/or self-regulatory guidelines, including, without limitation, those relating to advertising, the Internet, telemarketing, and unfair business practices and which shall include any applicable privacy laws.

“Constellation Data” means any statistical usage data derived from the operation of the Constellation Services, including data regarding configurations, log data, and the performance results for the Hosted Services, any data relating to any error by, issue with, or enhancement to the Hosted Services, and any other data that Constellation would have regardless of Customer’s Use of Constellation Services.

“Constellation Services” means the Hosted Services, Media Transaction Services, and/or any Professional Services provisioned or provided to Customer pursuant to this Agreement.

“Customer Data” means any: (i) non-public data, information or other materials submitted by or behalf of Customer to the Hosted Services by API integration or any other submission method, (ii) any data regarding the results of Media Transactions aside from data belonging to the Third Party Platforms in accordance with their agreements with Constellation, and (iii) any data provided to Constellation for the purpose of targeting Media Transactions. For clarity, Customer Data excludes Constellation Data.

“Effective Date” means the date Customer executes the initial Order Form incorporating this Agreement. The “effective date” of an Order Form shall be the date Customer executes such Order Form.

“Fees and Costs” means the fees Customer is required to pay Constellation (i) for use of the Hosted Services during a Services Term, (ii) to receive Professional Services, and (iii) the costs associated with Media Transactions, as such fees and costs are reflected on an Order Form.

“Hosted Services” means the generally available online, web-based applications and services that are ordered by Customer under an Order Form, including updates thereto from time to time.

“Inventory” means digital advertising inventory, including, without limitation, web, mobile, application, and/or native text advertising inventory available for purchase through a Third Party Platform.

“Media Transaction” means the purchase of Inventory by Constellation on behalf of Customer through a Third Party Platform.

“Order Form” means the ordering documents or online enrollment form for Customer purchases of any Constellation Services that are executed hereunder by Customer and Constellation from time to time. Order Form may also refer to ordering documentation related to Media Transaction Services, Professional Services or any other services.

“Professional Services” may include, but is not limited to, support, implementation, training, consulting, onboarding, creative, data analytics, or other services that Constellation provides to Customer pursuant to a mutually executed Order Form.

“Services Term” means the period of time that Customer may use and access the Constellation Services beginning on the Effective Date set forth in the applicable Order Form.

“Third Party Platform” means a hosted service or software-as-a-service platform which, pursuant to an agreement between Constellation and the provider of such platform, Constellation provides Media Transaction Services. Third Party Platforms include, but are not limited to, Meta and Google.

“Users” means an individual who is authorized by Customer to use the Constellation Services on Customer’s behalf or for Customer’s benefit. Users may include employees, consultants, contractors, and agents of Customer or its Affiliates.

2. SERVICES.

2.1 Provision of Constellation Services. Upon execution by both Parties of an Order Form referencing this Agreement, Constellation shall license and make Constellation Services available to Customer and its Users, pursuant to this Agreement and the applicable Order Form during each Services Term.

3. DATA AND SECURITY.

3.1 Security. Constellation will use commercially reasonable industry standard security technologies in providing Constellation Services. Constellation has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, designed to preserve the security, integrity, and confidentiality of Customer Data and to protect against unauthorized or unlawful disclosure or corruption of or access to such data.

3.2 Customer Data. Customer is responsible for the accuracy and legality of Customer Data as supplied to Constellation by Customer or by a third party on behalf of Customer. Further, Customer is solely responsible for determining the suitability of the Constellation Services for Customer’s business insofar as its compliance with and responsibilities under any Applicable Privacy Laws. Customer grants to Constellation the non-exclusive right to process Customer Data in accordance with these Terms and Conditions.

4. CUSTOMER USE OF CONSTELLATION SERVICES.

4.1 Access. Customer(s) shall be responsible for maintaining the confidentiality of any login credentials, of appropriately limiting dissemination of login credentials to its Users, and for using commercially reasonable efforts to prevent unauthorized access to the Hosted Service. Customer is responsible for the acts and omissions of all Users. Customer(s) will notify Constellation promptly of any unauthorized access to or use.

4.2 Customer Responsibilities; Usage Restrictions. Customer(s) shall ensure that its Users’ comply with this Agreement. Customer is responsible for the accuracy, quality and legality of all data and information provided by or on behalf of the Customer.

5. OWNERSHIP AND LICENSE.

As between the Parties, (i) Customer shall own all right, title, and interest, including all intellectual property rights, in and to any Customer Data, including all Customer trademarks and copyrighted material, and its Confidential Information, and (ii) Constellation shall own and retain all right, title, and interest, including all intellectual property rights, in and to the Constellation Services, including the look and feel of the Hosted Services, and its Confidential Information. Intellectual property rights in any specific work product or deliverables resulting from any Professional Services may be addressed specifically in an applicable Order Form. No intellectual property rights or licenses are granted to either party other than as expressly set forth herein. Customer is responsible for Customer Data, including, but not limited to, ensuring that it does not violate any applicable law or this Agreement. Customer represents and warrants that it has all rights, licenses, and permissions needed to use Customer Data in connection with Customer’s use of the Constellation Services. Constellation may use anonymized insights and learnings from servicing Customer under this Agreement (but never any PII data or Customer Data) to provide, maintain, develop, and improve the Constellation Services, comply with applicable law, enforce this Agreement and adhere to Constellation’s policies. Customer agrees that it shall not reverse engineer or decompile Constellation Services.

6. BILLING AND PAYMENT.

Constellation shall provide invoices in either its standard format or other mutually agreed upon format on a monthly basis setting forth all Fees and Costs accrued in the prior month that are payable directly to Constellation. License fees charged for subscription access to the Hosted Services are non-cancellable and non-refundable other than as set forth in Section 10. Customer agrees to pay all Fees and Costs in full when due, without deduction or setoff of any kind, in U.S. Dollars, unless otherwise specified in an Order Form. Constellation’s Fees and Costs are exclusive of all sales and use taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties as set forth on the applicable invoice. Except as otherwise provided in an Order Form, payment of invoices is due within thirty (30) days of Customer’s receipt of the applicable invoice. Notwithstanding the foregoing, if Customer has provided Constellation with credit card information as mode of payment, Constellation is hereby authorized to charge such card for all amounts due as of each invoice date. If payment is not received by the due date, Constellation reserves the right to, in addition to taking any other action at law or equity, (i) charge interest on past due amounts at one and a half percent (1.5%) or the highest interest rate allowed by law, whichever is less, and to charge all expenses of collection to Customer, and (ii) suspend Customer’s access to the Constellation Services until overdue amounts are paid in full, including any interest assessed on the overdue amounts.

7. REPRESENTATIONS & WARRANTIES.

7.1 Authority. Each Party represents and warrants that: (a) it has the power and authority to enter into this Agreement; (b) this Agreement, each Order Form, as applicable, is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and conditions of this Agreement; (c) its execution of this Agreement does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.

7.2 Product Warranty. Constellation warrants that: (i) it will provide Constellation Services in a manner consistent with generally accepted industry standards, (ii) Constellation Services will perform substantially as described when used in the hardware, software, and browser operating environment described therein and supported by Constellation, and (iii) the features and functionality of Constellation Services shall not be materially decreased during a Services Term. In the event of breach of (i)-(iii) above, Customer’s sole and exclusive remedies are those described in the section titled “Termination Rights.” Notwithstanding the foregoing, Constellation is not obligated to correct errors caused by unauthorized modification to Constellation Services by Customer or use of Constellation Services other than as instructed by Constellation.

7.3 Customer Warranty. Customer warrants that it shall independently review and validate any output from Constellation Services is accurate, complete, compliant with Applicable Laws and fit for Customer’s intended use.

8. DISCLAIMERS AND LIMITATIONS OF LIABILITY

8.1 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE CONSTELLATION SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. CONSTELLATION SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE CONSTELLATION SERVICES COMPLIES WITH APPLICABLE LAWS IN CUSTOMER’S JURISDICTION(S).

8.2 NO LIABILITY FOR INFORMATION OR DISCLOSURE(S) PROVIDED BY CUSTOMER. CONSTELLATION SHALL BEAR NO RESPONSIBILITY OR LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS, OR REGULATORY COMPLIANCE OF THE INFORMATION AND DISCLOSURE(S) CUSTOMER PROVIDES CONSTELLATION TO USE IN ANY ADVERTISEMENT. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT THE MANNER IN WHICH CONSTELLATION SHALL USE ANY INFORMATION OR DISCLOSURE(S) PROVIDED BY CUSTOMER FOR USE IN ANY ADVERTISEMENT SATISFIES ANY AND ALL REGULATORY REQUIREMENTS APPLICABLE TO CUSTOMER.

8.3 LIMIT ON DIRECT DAMAGES. EXCEPT FOR DAMAGES RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR LIABILITY INCURRED BY A PARTY IN CONNECTION WITH A CLAIM UNDER SECTION 9, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AND AGENTS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE GREATER OF (X) FEES (EXCLUSIVE OF PASS-THROUGH COSTS (AS DEFINED IN THE APPLICABLE ORDER FORM) PAID OR PAYABLE BY CUSTOMER TO CONSTELLATION DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM AND (Y) ONE HUNDRED THOUSAND DOLLARS ($100,000). CUSTOMER’S OBLIGATIONS TO PAY FEES AND COSTS DUE UNDER ANY ORDER FORM SHALL BE EXCLUDED FROM ALL LIMITATIONS ON LIABILITY AND REMAIN INDEPENDENT OBLIGATIONS UNTIL PAID IN FULL.

8.4 NO INDIRECT DAMAGES. EXCEPT FOR DAMAGES RESULTING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR AS AWARDED TO A PARTY IN CONNECTION WITH A CLAIM UNDER SECTION 9, IN NO EVENT SHALL EITHER PARTY OR THEIR AFFILIATES BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THE USE OR INABILITY TO USE THE CONSTELLATION SERVICES, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9. INDEMNITIES.

9.1 By Constellation. Constellation shall defend Customer and its officers, directors, employees and agents against any claim, demand, suit or proceeding made or brought against Customer by a third party: (i) alleging that Customer’s use of Constellation Services infringes or misappropriates a patent, copyright, trademark or trade secret of a third party, or (ii) based upon Constellation’s violation of Applicable Laws in providing the Constellation Services (a “Claim Against Customer”), and shall indemnify Customer for any damages, reasonable attorney fees and costs finally awarded against Customer as a result of, and for amounts paid by Customer under a court-approved settlement of, a Claim Against Customer; provided that Customer (i) promptly gives Constellation written notice of the Claim Against Customer, (ii) gives Constellation sole control of the defense and settlement of the Claim Against Customer (provided that Constellation may not settle or defend any Claim Against Customer unless it unconditionally releases Customer of all liability), and (iii) provides all reasonable assistance to Constellation in defending such claim, at Constellation’s expense. In the event of a Claim Against Customer or in the event that Constellation reasonably believes any Constellation Service(s) may infringe or misappropriate a third party’s intellectual property rights, then at no cost to Customer, Constellation may in its sole discretion (a) modify the Constellation Service(s) so that it no longer infringes or misappropriation, without breaching Constellation’s warranties above, (b) obtain a license for Customer’s continued use of the affected Constellation Service in accordance with this Agreement, or (c) terminate the affected Constellation Service or this Agreement upon 30 days’ prior written notice and provide a refund of any prepaid fees applicable to any period following the effective date of termination. The foregoing obligations do not apply to Claims Against Customer arising out of or resulting from, either in whole or in part, (w) any Customer Data, software, systems, tools, services or intellectual property, (x) any modification of the Constellation Services by Customer or at its direction, (y) any combination of the Constellation Services with content, data, software, systems, tools, services or intellectual property provided by Customer or at its direction where such claim would not exist but for such combination, or (z) use of the Constellation Services in breach of this Agreement that is directly related to the Claim Against Customer.

9.2 By Customer. Customer shall defend Constellation and its Affiliates and its and their officers, directors, employees and agents against any claim, demand, suit or proceeding made or brought against Constellation by a third party arising out of or relating to: (i) Customer’s use of the Constellation Services in breach of this Agreement, or (ii) an allegation that an ad unit infringes or misappropriates a copyright or trademark of a third party (a “Claim Against Constellation”), and shall indemnify Constellation for any damages, reasonable attorney fees and costs finally awarded against Constellation as a result of, and for amounts paid by Constellation under a court-approved settlement of, a Claim Against Constellation; provided that Constellation (a) promptly gives Customer written notice of the Claim Against Constellation, (b) gives Customer sole control of the defense and settlement of the Claim Against Constellation (provided that Customer may not settle or defend any Claim Against Constellation unless it unconditionally releases Constellation of all liability), and (c) provides Customer with all reasonable assistance in defending such claim, at Customer’s expense.

9.3 THIS SECTION 9 REPRESENTS THE PARTIES’ SOLE LIABILITY, AND EXCLUSIVE REMEDY, FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THIS AGREEMENT.

10. TERM AND TERMINATION.

10.1 Term of Agreement. Unless otherwise provided in an Order Form, this Agreement shall commence on the Effective Date listed above and shall continue until expiration or earlier termination of this Agreement or all Order Forms executed hereunder.

10.2 Termination Rights. Either Party may terminate this Agreement (including all related Order Forms): (i) upon breach of this Agreement, if such breach has not been cured within thirty (30) days of written notice from the non-breaching Party specifying the breach in detail; or (ii) pursuant to the terms of any Order Forms; or (iii) immediately upon written notice if the other Party seeks protection of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days).

10.4 Effect of Termination. Upon termination of this Agreement: (i) Customer will no longer have the right to use the Constellation Services, and any licenses or access granted to Customer relating to same shall automatically cease to exist as of the date of termination; and (ii) if any Fees and Costs were owed prior to termination, other than for termination by Customer for Constellation’s uncured breach, then Customer must pay those Fees and Costs in accordance with applicable payment terms. In no event shall Customer be relieved of liability to pay for Fees and Costs incurred for Media Transactions.

10.5 Survival. All terms and conditions herein which by their nature would, or are expressed to, survive termination shall do so.

11. CONFIDENTIAL INFORMATION.

11.1 Definition of Confidential Information; Protection of Confidential Information. Each Party may have access to information that is confidential to the other Party. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether orally or in writing, that is clearly identified as confidential, as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including but not limited to the terms and conditions of this Agreement (including pricing and other terms reflected in an Order Form hereunder), the Customer Data, the Constellation Services, business and marketing plans, technology and technical information, product designs, trade secrets, and business processes. A Disclosing Party’s Confidential Information shall not include information that (i) is or becomes available to the public through no fault of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party agrees to use all reasonable care to prevent disclosure of the Disclosing Party’s Confidential Information to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Constellation may disclose Customer’s Confidential Information to its employees, consultants, Affiliates and third-party service providers as is necessary to provide the Constellation Services, provided that Constellation has a non-disclosure protections in place with any such third-party service provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement.

11.2 Compelled Disclosure. If Receiving Party receives a request to disclose any Confidential Information of Disclosing Party pursuant to a subpoena, order, civil or criminal investigative demand, agency administrative demand, law, rule, regulation, or a judicial or similar process issued by a court of competent jurisdiction, the Receiving Party’s regulators or any other administrative body (each such request, a “Disclosure Request”), the Receiving Party is permitted to disclose such Confidential Information only to the extent necessary to comply with the Disclosure Request or as otherwise required by law. If legally permitted, the Receiving Party shall provide the Disclosing Party with prompt prior notice of such Disclosure Request and reasonable assistance, at Disclosing Party’s expense, if Disclosing Party wishes to seek protection or confidential treatment of the Confidential Information relevant to the Disclosure Request. If the Receiving Party receives a Disclosure Request as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the Disclosure Request or is requesting the Disclosure Request, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost and fees incurred in compiling and providing secure access to the Confidential Information relevant to the Disclosure Request. Notwithstanding the foregoing, in the case of a broad regulatory request with respect to the Receiving Party’s business (not targeted at Disclosing Party), the Receiving Party may promptly comply with such request.

11.3 Confidentiality Obligations upon Termination. Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party’s Confidential Information for so long as the Receiving Party retains possession of the Disclosing Party’s Confidential Information.

12. GENERAL PROVISIONS.

12.1 Export Compliance. Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Constellation Services. Each Party represents that it is not named on any U.S. or other applicable government list of persons or entities with which U.S. persons or persons in other applicable jurisdictions are prohibited from transacting, nor owned or controlled by or acting on behalf of any such persons or entities, and Customer will not, and will not permit any User to, access or use the Constellation Services in any manner that would cause any party to violate any U.S. or international embargo, export control law, or prohibition.

12.2 Use of Name and Logo. Constellation may identify Customer as a customer and may use Customer’s name and logo in customer lists and on Constellation’s website.

12.3 Governing Law; Jurisdiction. Any action related to this Agreement will be governed exclusively by the internal laws of the state of New York, without regard for its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in New York County, New York. The Parties hereby irrevocably consent to the jurisdiction of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act.

12.4 Entire Agreement. This Agreement, together with any applicable Order Forms, represents the Parties’ entire understanding relating to the use of the Constellation Services and supersedes any prior or contemporaneous, conflicting or additional, communications. In the event of a conflict between this Agreement, on the one hand, and any Order Form, on the other hand, the terms of the Order Form shall control solely to the extent of the conflict. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of Constellation or as otherwise allowed pursuant to this section. Constellation may change, modify, or adjust the terms set forth in this Agreement from time to time as needed and as permitted by law. Any revisions will be posted in a timely manner and your continued use of the Constellation Services following the effective date of any posted revisions constitutes your consent to any such changes.

12.5 Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Any rights not expressly granted herein are reserved.

12.6 Relationship of the Parties. No joint venture, partnership, employment, or agency relationship exists between Constellation and Customer as a result of this Agreement or use of the Constellation Services.

12.7 Assignment; No Third Party Beneficiaries. Customer and Constellation may assign this Agreement without the other Party’s consent to an Affiliate, to a successor-in-interest, or to a party acquiring business through a merger, acquisition, reorganization or other transaction. Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement is intended for the benefit of the Parties and their respective successors and permitted assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other person.

12.8 Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding Customer’s payment obligations) during any period in which such performance is delayed, hindered, rendered impracticable, illegal, or impossible due to circumstances beyond such Party’s reasonable control, including but not limited to acts of God, acts of governmental authority, governmental inaction, state of emergency, hurricanes, tsunami, flood, fire, earthquakes, weather disturbances, wildfires, disease, epidemics, pandemics, medical outbreak, curtailment of transportation facilities, civil unrest, civil disorder, acts of terror or threats of terrorism, war, strikes or other labor conditions beyond Constellation’s control, internet or other Hosted Services disruptions involving hardware, software, or power systems not within such Constellation’s possession or reasonable control, and denial of Hosted Services attacks, or any other similar causes beyond Constellation’s control.

12.9 Notice. Constellation may give notice by means of a notification to Customer, electronic mail to Customer’s e-mail address on record in Constellation’s account information, or by written communication sent by first class mail or pre-paid post to Customer’s address. Customer may give notice to Constellation at any time by letter sent by e-mail to legal@helloconstellation.com or by letter delivered first class mail to Constellation at One World Trade Center, Floor 21, 285 Fulton Street, New York, New York 10007. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or twenty-four (24) hours after sending by email.

12.10 Electronic Signature; Counterparts. This Agreement may be executed by e-mail exchange in .PDF format or other electronic transmission (e.g. DocuSign) with the same force and effect as an original signature in counterparts, which taken together shall form one legal instrument.

12.11 E-SIGN Act Policy. The federal Electronic Signatures in Global and National Commerce Act (“ESIGN Act”) and state laws allow Constellation to provide Customer this information electronically with Customer’s prior consent, and conduct transactions with Customer electronically. This consent allows Customer to: (1) create an account, (2) submit requests and obtain approval to subscribe to services and sign for them electronically, and (3) receive disclosures, notices, and manage Customer accounts online. Please read this ESIGN Policy carefully prior to providing Constellation with Customer’s consent.

12.11(a) Acknowledging Consent to Electronic Means. By tapping or clicking the button to proceed, Customer is confirming that: (i) it can access and print or save this Agreement and its ESIGN Policy and all electronic Communications; (ii) it has the requisite hardware and software; and (iii) on behalf of Customer and all account owners and authorized signers identified by Customer, Customer agrees to the use of electronic Communications on the terms described here and affirmatively consents to electronically (1) receive Communications, (2) enter into agreements with Constellation, and (3) provide Constellation account directions and updates. “Communications” means each notice, disclosure, agreement, acknowledgement, form, consent, statement, policy, record, document, preference, privacy policy, or other information Constellation provides to Customer, or that Customer submits, agrees to, or signs at Constellation’s request.

12.11(b) Consent to Use Electronic Communications. Constellation may provide any Communications to Customer by electronic means and use electronic signatures. Communications include, without limitation, legal or regulatory notices or disclosures related to Constellation’s product, service, or contract, including privacy policies and notices. Customer consent will remain in effect until Customer withdraws it with written notice. If Customer does not give Constellation ESIGN consent or withdraw it, Customer may not be able to complete certain transactions with Constellation. Constellation may in its discretion provide or require Customer to provide certain Communications in physical form, even if Customer has chosen electronic means. Communications in electronic form will be provided via: (1) a website, (2) e-mail, or (4) SMS or text message. Customer agrees that Constellation may store and make copies of certain Communications available to Customer via its website or other electronic means.

12.11(c) Copies; Paper Copies; Withdrawal. Customer may save a copy of any electronic Communication or print it. Customer has the option to receive paper copies of any Communication Constellation has provided by contacting Constellation at the point of contact in the Order Form. This request will not be in itself a withdrawal of Customer consent, unless Customer specify the withdrawal. Customer may have to pay a fee for the paper copy as allowed by law. Constellation recommends that Customer save electronic Communications for Customer records. Customer may withdraw Customer consent at any time by contacting Constellation at the contact information stated in the Order Form. Withdrawal will become effective after Constellation has had reasonable time to act on it. Withdrawal of consent in some instances may mean that Customer will not be able to complete certain transactions with Constellation.

12.11(d) Modification; Termination; Contact Information. Constellation may modify this disclosure and consent by providing Customer, as required by law, notice and opportunity to renew consent. Constellation may terminate Customer’s ability to receive electronic Communications and/or Customer’s access to the Constellation Service pursuant to the terms of this Agreement, including if Customer does not provide this consent or refuse to accept or violate any of the policies or terms and conditions applicable to this Agreement. Customer agrees to promptly notify Constellation of any change in Customer’s contract information. An electronic Communication will be deemed provided to Customer if Constellation’s use the email address Constellation has on record for Customer.

Last modified on October 19, 2026