Last Updated: June 1, 2026

Thank you for using the website, applications and services offered by AYP Consulting LLC, a Delaware limited liability company, and its Affiliates (“AYP,” “we,” “us,” or “our”). These Terms of Service (the “Terms”) govern the provision of services by AYP to the customer identified on the applicable Order Form (the “Customer,” “you,” or “your”). By signing an Order Form that references or links to these Terms, by clicking to accept these Terms, or by using or paying for any services from AYP, you agree to be bound by these Terms.

The agreement between you and AYP (the “Agreement”) consists of:

1. the Order Form signed by you and AYP, which sets out the specific services purchased, the scope of those services, pricing, billing cadence, term, and any other commercial terms; and
2. these Terms, including any addenda, exhibits, and policies expressly incorporated by reference (including, without limitation, the AYP Customer Travel Policy linked in Section 4 and the Data Protection Addendum in Section 7).

To the extent there is any conflict between an Order Form and these Terms, the Order Form controls with respect to the commercial terms it expressly addresses (e.g., pricing, billing cadence, term length, scope, customer-specific commercial modifications). A new Order Form will be required for any additional or different services; signing a new Order Form does not amend or supersede prior Order Forms unless the new Order Form expressly says so.

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR USING ANY OF THE AYP SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE IN SECTION 16 THAT REQUIRES, AMONG OTHER THINGS, THAT DISPUTES RELATING TO THIS AGREEMENT OR THE AYP SERVICES MUST BE RESOLVED BY BINDING ARBITRATION AND ON AN INDIVIDUAL BASIS ONLY.

1. Definitions

Capitalized terms used in these Terms have the meanings set out below or elsewhere in the Agreement.

“Affiliate” means, with respect to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means ownership of more than 50% of the voting equity or the power to direct management.

“Agreement” has the meaning set out in the preamble to these Terms.

“Company Inventions” means any ideas, concepts, techniques, processes, methods, tools, frameworks, or works of authorship created or developed by AYP independently of the Services, together with any associated intellectual property rights.

“Company Materials” means all non-customer-specific tools, methods, apps, processes, techniques, templates, report formats, frameworks, design patterns, trade secrets, knowledge, know-how, and other proprietary materials developed by AYP prior to, during (but independently of), or after the term of the Agreement, together with all enhancements and modifications thereto and all intellectual property rights therein.

“Confidential Information” has the meaning set out in Section 6.

“Customer Data” means any data, content, information, or materials that Customer or its users provide to AYP, or that AYP accesses on Customer’s systems, in connection with the Services, including (without limitation) Customer’s employee and contractor personal data, payroll information, and business records.

“Customer Representations” means information provided to AYP by Customer, including through Customer’s employees, contractors, users, authorized representatives, or other representatives, or by third-party services from which Customer elects to import information (including, without limitation, tax identification numbers, payroll information, benefits information, insurance information, leave policies, and other employment practices).

“Effective Date” means the date on which the applicable Order Form is fully signed.

“Fees” means all fees and other amounts payable by Customer under the Agreement, as set out in the Order Form. If the Order Form specifies an hourly rate approach, Fees includes all fees calculated by multiplying the then-applicable hourly rate for any individual who performs work for Customer multiplied by that individual’s number of hours worked for Customer during the billing period.

“Initial Term” means the initial term of the Agreement as set out in the Order Form.

“Order Form” means an order form, statement of work, or other ordering document signed by AYP and Customer that references these Terms.

“Personal Data” has the meaning set out in the Data Protection Addendum (Section 7).

“Renewal Term” has the meaning set out in Section 5.1.

“Services” means the services offered by AYP that are described in an Order Form.

“Sub-Processor” has the meaning set out in the Data Protection Addendum (Section 7).

“Term” means, collectively, the Initial Term and any Renewal Terms.

“Work Product” means any deliverables, written reports, configurations, designs, or other tangible work product created by AYP solely in the performance of the Services for Customer under an Order Form. Work Product does not include Company Materials or Company Inventions.

2. Services

2.1 Provision of Services

AYP will provide the Services described in the applicable Order Form with reasonable care and skill, in a professional and workmanlike manner, in accordance with applicable industry standards. AYP may, in its discretion, use Affiliates, employees, contractors, or subcontractors to provide the Services, provided that AYP remains responsible for their performance under the Agreement.

2.2 Changes to the Services

If Customer wishes to add to, modify, or change the scope, deliverables, pricing, service level, or any other terms of the Services in any material respect, the parties will document any agreed-upon change by signing either an amendment to the existing Order Form or a new Order Form. A new Order Form supersedes any prior Order Form to the extent expressly stated in the new Order Form. AYP is not obligated to begin work on any new or changed scope until the parties have signed.

2.3 General Operating Practices

The following operating practices apply to all Services, in addition to anything specified in an Order Form:

1. Primary contact. AYP will assign a primary contact for Customer. If the primary contact is temporarily unavailable, Customer may contact AYP at the email address designated by AYP for urgent matters.
2. Communication channels. All requests for Services must be made through one of the following channels: (i) a Slack channel established between the parties; (ii) recorded meetings; (iii) an email alias on AYP’s email domain established between the parties; or (iv) AYP’s ticketing system. Requests sent to Customer-domain email addresses or Customer-issued devices are not deemed received by AYP.
3. Meeting recording. AYP records meetings for deliverable review, training, and quality-assurance purposes. Customer may request that a particular meeting not be recorded, which AYP may accept in its discretion. If a meeting is not recorded, Customer waives any right to challenge the quality of the Services performed in or in connection with that meeting, to request discounts or reimbursements based on that meeting, or to dispute the substance of any directions or approvals given in that meeting.
4. Customer-side primary contacts. Customer will designate in writing a primary point of contact for AYP, and will keep that designation current.
5. No authority to bind. Neither party has authority to enter into contracts on behalf of the other or to incur obligations on behalf of the other without that party’s prior written authorization.

2.4 Independent Contractor

AYP performs the Services as an independent contractor. Nothing in the Agreement creates an employment, partnership, joint venture, agency, or co-ownership relationship between the parties. Each party is solely responsible for the salaries, taxes, workers’ compensation, and benefits of its own employees and personnel.

2.5 Compliance with Law

You will be solely responsible for compliance with any and all applicable laws, rules and regulations affecting your business, and any use you may make of the Services to assist you in complying with any such laws, rules or regulations. In addition, Customer is responsible for ensuring that its employees and representatives comply with applicable laws while using the Services, including the intellectual property and third-party rights of others.

2.6 No Professional Advice; Reliance

Customer acknowledges that AYP is not a lawyer, accountant, financial advisor, tax advisor, benefits broker, immigration consultant, or other professional services provider, and accordingly, AYP does not provide legal, financial, tax, benefits, IT, compliance, immigration, or other professional advice. AYP is not a certifying body, auditor, or regulator. Any information provided by AYP or through the Services is intended for Customer’s general use only, including when used to assist in organizing, monitoring, and managing compliance-related activities with respect to regulatory frameworks, industry standards, or internal policies, and does not constitute legal or other professional advice. Use of the Services does not ensure or guarantee compliance with Customer’s internal policies or procedures, any applicable laws, regulations, or rules of any governmental authority, self-regulatory authority, or certifying body, or the successful completion of any audit, certification, or regulatory review. Any audits, attestations, or certifications supported through the Services are conducted by independent third parties, and AYP does not control and is not responsible for their actions or conclusions, and makes no representations regarding audit, certification, or regulatory review outcomes. Customer understands that it is responsible for any actions taken based upon information received from AYP, and where professional advice is needed, that it should seek independent professional advice from a person who is licensed or qualified in the applicable field and jurisdiction.

3. Customer Obligations

AYP’s ability to perform the Services depends on Customer’s cooperation. Customer will:

1. provide AYP with all input, decisions, approvals, and information reasonably necessary for AYP to perform the Services, on a timely basis;
2. provide AYP with the access required to Customer’s systems, accounts (including, where applicable, Customer’s Rippling tenant and any other third-party platforms used in connection with the Services), facilities, and personnel reasonably necessary for AYP to perform the Services, and add AYP personnel to such accounts as required;
3. pay any fees imposed by third-party platforms (including third party HRIS platforms such as Rippling) for adding AYP personnel as users or contractors and any other third-party fees associated with the Services;
4. notify AYP promptly in writing of any added or removed employees or personnel covered by the Services, which may result in changes to billing or scope;
5. terminate AYP’s access to Customer’s systems and accounts promptly upon expiration or termination of the Agreement;
6. ensure that Customer’s use of the Services and any deliverables complies with applicable law, applicable third-party terms (including the terms governing any platforms accessed by AYP on Customer’s behalf), and Customer’s internal policies; and
7. refrain from using the Services in any way that infringes the intellectual property or other rights of any third party.

AYP is not liable for any costs, charges, or losses incurred by Customer arising directly from Customer’s failure to fulfill its obligations under this Section 3.

All Services will be based upon Customer Representations. Customer is responsible for reviewing all Customer Representations when made, and from time to time, to ensure such information is accurate, complete, and timely. Customer acknowledges that AYP is entitled to rely conclusively on all Customer Representations and that AYP has no obligation to independently verify, correct, update, or otherwise ensure the accuracy or quality of the Customer Representations. Customer further acknowledges that AYP bears no responsibility and shall not have any liability for errors, omissions, penalties, fines, missed payments, judgments, incorrect coverage, or any other losses incurred that result from inaccurate, incomplete, or untimely Customer Representations.

4. Fees, Invoicing, Payment, and Expenses

4.1 Fees

Customer will pay AYP the Fees set out in the applicable Order Form, including all Fees calculated pursuant to any hourly rates specified or referenced therein, following the billing cadence specified in the Order Form. Invoices are payable in U.S. dollars by wire transfer to the account designated by AYP, or by such other method as AYP may agree in writing. Unless the Order Form specifies otherwise, all payments are due within thirty (30) days of the invoice date. Customer has no right of offset, set-off, recoupment, or withholding against amounts due under the Agreement. All Fees are payable in full when due, without deduction.

4.2 Late Payment

Amounts not paid when due accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, calculated from the original due date through the date of payment.

4.3 Cancellation; Suspension for Non-Payment

If any invoice remains unpaid more than sixty (60) days after the due date, AYP may give Customer written notice of cancellation of the Services. If any invoice remains unpaid more than ninety (90) days after the due date, AYP may suspend the Services until Customer’s account is brought current. Customer waives, and releases AYP from, all claims, rights, and remedies arising directly or indirectly from any such cancellation or suspension. Cancellation or suspension under this Section does not relieve Customer of its obligation to pay outstanding Fees.

4.4 Fee Changes; Rate Card Updates

AYP may modify its standard hourly rates from time to time. Changes to the rates will apply to a given Order Form at the start of the next billing cycle following written notice of the change. 

4.5 Expenses

AYP is entitled to reimbursement for reasonable out-of-pocket expenses incurred in performing the Services (including travel, lodging, mileage, and per-diem meals while traveling or onsite), provided that AYP obtains Customer’s prior written approval (which may be by email) for any expense or category of expenses. Reimbursable expenses are charged at cost without markup and are billed on the invoice for the period in which they are incurred. All travel-related expenses are subject to the AYP Customer Travel Policy posted at https://aypconsulting.tech/travelpolicy (the “Travel Policy”), as in effect on the date the expense is incurred, which is incorporated into the Agreement by reference.

4.6 Taxes

Fees are exclusive of sales, use, value-added, gross-receipts, and similar transactional taxes. Customer is responsible for paying all such taxes, except taxes based on AYP’s net income.

5. Term, Renewal, and Termination

5.1 Term and Renewal

The Initial Term is set out in the Order Form. Unless the Order Form expressly says otherwise, at the end of the Initial Term and each Renewal Term, the Agreement automatically renews for successive periods equal in length to the Initial Term (each, a “Renewal Term”), unless either party gives the other written notice of non-renewal at least ninety (90) days before the end of the then-current Term.

5.2 Term Commitment; Early Termination

Customer commits to the full Initial Term and each Renewal Term, unless written notice of non-renewal is provided as set forth in this Agreement. If Customer terminates the Agreement, or any Order Form, for any reason other than (a) an uncured material breach by AYP, or (b) the expiration of the then-current Term following Customer’s timely non-renewal notice under Section 5.1, then all Fees for the remainder of the then-current Term (calculated as if Customer had continued to use the Services through the end of that Term at the levels and rates set out in the Order Form) become immediately due and payable in a single lump sum on the effective date of termination. For Order Forms priced on an hourly or usage basis, “Fees for the remainder of the Term” means the monthly minimum (if any) multiplied by the remaining months.

5.3 Termination for Material Breach

If a party materially breaches the Agreement and fails to cure the breach within thirty (30) days after written notice of the breach from the non-breaching party, the non-breaching party may terminate the Agreement immediately by written notice.

5.4 Termination for Insolvency

Either party may terminate the Agreement immediately by written notice if the other party (a) becomes insolvent, (b) makes a general assignment for the benefit of creditors, (c) files or has filed against it a petition under any bankruptcy or insolvency law that is not dismissed within sixty (60) days, or (d) has a receiver or similar appointed over a material portion of its assets.

5.5 Effect of Termination

Upon expiration or termination of the Agreement: (a) all outstanding Fees and reimbursable expenses for Services performed and expenses incurred through the effective date of termination, together with any amounts accelerated under Section 5.2, become immediately due and payable; (b) Customer will terminate AYP’s access to Customer’s systems and accounts in accordance with Section 3(e); (c) AYP will deliver to Customer any then-existing Work Product owned by Customer under Section 8; and (d) each party will return or destroy the other party’s Confidential Information in accordance with Section 6.

5.6 Transition Services

If AYP gives notice of non-renewal under Section 5.1, Customer may elect, by written notice no later than thirty (30) days before the end of the then-current Term, for AYP to continue providing the Services for up to ninety (90) days after the end of the Term (the “Transition Period”), on the terms set out in the Order Form or, if not specified, at an hourly rate of $250 per hour. The Transition Period is for the purpose of transitioning the Services to Customer or to a successor service provider.

6. Confidentiality

6.1 Definition

“Confidential Information” means any non-public information disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”) under or in connection with the Agreement, including (without limitation): (a) the disclosing party’s research, development, trade secrets, and business affairs; (b) non-public information about the disclosing party’s security policies, procedures, controls, standards, hardware, software, information systems, networks, vulnerabilities, patches, settings, capabilities, incidents, and breaches; (c) information about the disclosing party’s employees, contractors, customers, and vendors; (d) schematics, drawings, product specifications, documentation, business plans, product plans, financial plans, and forecasts; (e) the terms of the Agreement, including pricing; and (f) any other information disclosed in a manner that a reasonable person would understand to be confidential, whether or not marked “Confidential.” Confidential Information does not include information that the Receiving Party can demonstrate: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was known to the Receiving Party before disclosure by the Disclosing Party without obligation of confidentiality; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is rightfully received by the Receiving Party from a third party without obligation of confidentiality.

6.2 Obligations

The Receiving Party will: (a) not disclose, directly or indirectly, any Confidential Information to any third party without the Disclosing Party’s prior written consent; (b) not use the Confidential Information for any purpose other than performing the Receiving Party’s obligations or exercising the Receiving Party’s rights under the Agreement; (c) protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information of similar importance, and in any event no less than a reasonable degree of care; (d) limit access to the Confidential Information to employees, contractors, Affiliates, and Sub-Processors who have a need to know and who are bound by confidentiality obligations no less protective than those in this Section 6; (e) be responsible for any breach of these obligations by such employees, contractors, Affiliates, and Sub-Processors; and (f) notify the Disclosing Party promptly in writing of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information of which it becomes aware.

6.3 Compelled Disclosure

If the Receiving Party is compelled by law, court order, or regulatory authority to disclose Confidential Information, it will (where legally permitted) provide the Disclosing Party with prompt prior written notice and reasonable cooperation so that the Disclosing Party may seek a protective order or other appropriate remedy. The Receiving Party will disclose only that portion of the Confidential Information legally required to be disclosed.

6.4 Return or Destruction

Upon expiration or termination of the Agreement, or upon the Disclosing Party’s earlier written request, the Receiving Party will, at the Disclosing Party’s option, return or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession, except that the Receiving Party may retain copies (i) to the extent required by applicable law, regulation, or bona fide internal records-retention policy, and (ii) in routine system backups not readily accessible in the ordinary course of business, in each case subject to a continuing duty of confidentiality.

6.5 No License

Nothing in the Agreement grants the Receiving Party any right, title, or interest in or to the Disclosing Party’s Confidential Information except for the limited use rights expressly granted in the Agreement.

7. Data Protection and Security

This Section 7 functions as a data protection addendum to the Agreement and applies whenever AYP processes Personal Data on Customer’s behalf in connection with the Services.

7.1 Definitions

“Personal Data” means any information relating to an identified or identifiable natural person that is processed by AYP on Customer’s behalf in connection with the Services, including (without limitation) Customer’s employees’ names, contact information, government identifiers, compensation information, and payroll data.

“Process” (and its variants) means any operation performed on Personal Data, whether or not by automated means, including collection, recording, organization, storage, access, retrieval, use, disclosure, transfer, and deletion.

“Sub-Processor” means any third party engaged by AYP to Process Personal Data on AYP’s behalf in connection with the Services.

7.2 Roles of the Parties

With respect to Personal Data Processed in connection with the Services, Customer is the controller (or equivalent role under applicable law) and AYP is a processor (or equivalent role under applicable law). AYP will Process Personal Data only on Customer’s documented instructions, including as set out in the Agreement and the applicable Order Form, except as required by applicable law (in which case AYP will, to the extent legally permitted, notify Customer before such Processing).

7.3 Security

AYP will implement and maintain reasonable and appropriate technical and organizational measures designed to protect Personal Data against unauthorized access, use, disclosure, alteration, or destruction. At a minimum, those measures will include: (a) role-based access controls and the principle of least privilege; (b) multi-factor authentication for AYP personnel accessing Customer systems or Personal Data; (c) encryption of Personal Data in transit over public networks and at rest in AYP-controlled storage; (d) endpoint protection (anti-malware, device encryption, screen-lock) on devices used by AYP personnel to access Personal Data; (e) confidentiality obligations binding all AYP personnel with access to Personal Data; (f) security awareness training for AYP personnel; and (g) a written security incident response process. AYP may update these measures from time to time, provided that the updated measures provide at least an equivalent level of protection.

7.4 AYP Personnel and Sub-Processors

AYP will ensure that its employees and contractors who Process Personal Data are bound by written confidentiality obligations and have received appropriate training. AYP will conduct background checks on personnel with access to Personal Data, to the extent permitted by applicable law. Customer authorizes AYP to engage Sub-Processors to Process Personal Data in connection with the Services. AYP will remain responsible to Customer for the acts and omissions of its Sub-Processors as if they were AYP’s own.

7.5 Security Incidents

AYP will notify Customer without undue delay after AYP becomes aware of any actual or reasonably suspected unauthorized access to, or unauthorized acquisition, use, or disclosure of, Personal Data Processed by AYP on Customer’s behalf (a “Security Incident”). AYP will provide Customer with information reasonably available about the Security Incident, cooperate with Customer’s investigation, and take reasonable steps to mitigate the effects of the Security Incident.

7.6 Return or Deletion of Personal Data

Upon expiration or termination of the Agreement, AYP will, at Customer's election, return or delete Personal Data in AYP's possession, except for Personal Data AYP is required to retain under applicable law or that resides in routine backups not readily accessible in the ordinary course (and which will be deleted on AYP's standard backup-rotation schedule).

8. Intellectual Property

8.1 Work Product

Subject to Customer’s payment of the applicable Fees, all Work Product is and will be the sole and exclusive property of Customer. To the extent any Work Product does not vest in Customer by operation of law, AYP hereby assigns, and will cause its personnel and Sub-Processors to assign, to Customer all right, title, and interest in and to the Work Product (other than Company Materials embedded therein, which are licensed under Section 8.3).

8.2 Company Inventions

All Company Inventions are and remain the sole and exclusive property of AYP. Customer has no right or interest in any Company Invention.

8.3 Company Materials; License to Customer

AYP retains all right, title, and interest in and to Company Materials, including any refinements, modifications, improvements, or enhancements to Company Materials made by AYP during or as a result of the performance of the Services. To the extent that any Company Materials are incorporated into Work Product, AYP grants Customer a non-exclusive, royalty-free, worldwide, perpetual license to use, copy, and modify those Company Materials solely as embedded in, and as reasonably necessary for Customer’s use of, the Work Product. Customer may not extract, separate, or use the Company Materials apart from the Work Product, and may not sublicense, distribute, or resell the Company Materials except as expressly permitted by this Section 8.3.

8.4 Customer Data and Customer IP

As between the parties, Customer retains all right, title, and interest in and to Customer Data and all of Customer’s pre-existing intellectual property. Customer grants AYP a non-exclusive, royalty-free, worldwide license to use Customer Data and Customer’s intellectual property solely as necessary to perform the Services and to exercise AYP’s rights under the Agreement.

8.5 Feedback

If Customer provides AYP with suggestions, comments, or other feedback regarding the Services or AYP’s Company Materials, AYP may use that feedback freely and without restriction. No such feedback is treated as Customer’s Confidential Information.

8.6 No Other Licenses

Except for the licenses expressly granted in the Agreement, neither party grants the other any rights or licenses, by implication, estoppel, or otherwise.

9. AI and Third-Party Tools

9.1 Use of AI

AYP may use artificial intelligence (“AI”) tools, machine-learning tools, and other proprietary or public software tools in the course of providing the Services, including (without limitation) for research, drafting, analysis, document review, and process automation. AYP remains responsible for the quality of the Services and any Work Product, regardless of the tools used.

9.2 Customer Confidential Information and AI

AYP will not knowingly submit Customer’s Confidential Information or Personal Data to any AI tool that uses the submitted information to train models available to third parties. AYP will use enterprise or comparably configured AI tools when Processing Customer Confidential Information or Personal Data through AI, where reasonably available.

9.3 Third-Party Software

Some Services may rely on third-party software, platforms, or services (including, where applicable, Rippling and other HRIS/HCM systems). Customer is responsible for: (a) maintaining its own subscriptions to such third-party platforms; (b) complying with the applicable third-party terms; and (c) any fees imposed by the third-party platforms. Warranties for third-party software pass through to Customer only to the extent and on the terms provided by the third-party vendor.

10. AYP Personnel; Non-Solicitation and Placement Fee

10.1 Non-Solicitation

During the Term and for twelve (12) months after expiration or termination of the Agreement, Customer will not, directly or indirectly, approach, solicit, recruit, or hire any AYP employee or contractor who is or was staffed (or unstaffed but assigned) to provide Services to Customer, in each case without AYP’s prior written consent.

10.2 Placement Fee

If, notwithstanding Section 10.1, an AYP employee or contractor accepts employment or engagement with Customer or an Affiliate of Customer (whether as an employee, contractor, or otherwise), Customer will pay AYP a placement fee equal to thirty-five percent (35%) of the affected resource’s on-target earnings (base salary plus target bonus and commission) for the first twelve (12) months of their employment or engagement. The placement fee is due and payable before the start date of the affected resource and is in addition to any other remedies available to AYP. The parties acknowledge that the placement fee is a fair and reasonable measure of AYP’s actual damages from the loss of a trained resource, including the costs of recruiting, training, and replacing the resource, and is not a penalty.

10.3 AYP Communication Channels

Customer will direct all Service-related requests through AYP’s designated communication channels (Slack channel, recorded meetings, AYP email alias, AYP ticketing system). Customer will not require AYP personnel to use Customer-issued laptops, Customer-issued email addresses, or other Customer-controlled tools to perform the Services, except as expressly agreed in the Order Form. AYP is not responsible for any direction or request communicated through a channel other than its designated channels.

11. Marketing and Publicity

Customer grants AYP a non-exclusive, royalty-free, worldwide license to use Customer’s name and logo on AYP’s website, in sales decks and marketing materials, and in client lists, in each case to identify Customer as an AYP customer. Customer may opt out of this license at any time by giving AYP written notice (which may be made in the Order Form or by email to AYP’s marketing or legal contact); AYP will remove Customer’s name and logo from forward-looking marketing materials within thirty (30) days of the opt-out notice (and is not required to recall already-distributed materials). AYP will not, without Customer’s prior written consent in each instance, (a) issue press releases or case studies featuring Customer, or (b) represent that any Customer has approved, recommended, or endorsed AYP or any AYP product or service.

12. Representations and Warranties

12.1 AYP’s Representations and Warranties

AYP represents and warrants that:

1. it is duly organized and validly existing under the laws of its jurisdiction of organization, and has all licenses, qualifications, and authorizations required to perform the Services;
2. it will perform the Services with reasonable care and skill, in a professional and workmanlike manner, in accordance with applicable industry standards and applicable laws, codes, regulations, and administrative guidelines; and
3. the Services, and AYP’s Work Product, will not, to AYP’s knowledge, infringe or violate any intellectual property or other rights of any third party. The foregoing warranty does not apply to (i) third-party software or services provided to Customer subject to Section 9.3, (ii) modifications to the Services or Work Product made by anyone other than AYP, (iii) combinations of the Services or Work Product with third-party materials not supplied by AYP, where the claim would not have arisen but for the combination, or (iv) Customer’s use of the Services or Work Product in a manner not authorized by the Agreement. Section 13.1 and Section 13.4 state Customer’s exclusive remedy for any breach of this Section 12.1(c).

12.2 Customer’s Representations and Warranties

Customer represents and warrants that:

1. it has full power and authority to enter into the Agreement, and that the execution of the Agreement does not breach or constitute a default under any other agreement to which Customer is bound;
2. it is not under any pre-existing obligation in conflict with the Agreement;
3. it is in compliance and will comply with the terms of all applicable third-party agreements governing platforms accessed by AYP on Customer’s behalf; and
4. it has the right to provide AYP with the Customer Data, Customer’s Confidential Information, and any other materials provided to AYP in connection with the Services, and that AYP’s use of those materials as contemplated by the Agreement will not infringe or violate the rights of any third party.

12.3 Disclaimer of Other Warranties

EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 12, THE SERVICES, WORK PRODUCT, COMPANY MATERIALS, AND ANY OTHER MATERIALS PROVIDED BY AYP ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AYP DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

13. Indemnification

13.1 Indemnification by AYP

AYP will defend Customer and its officers, directors, employees, and Affiliates (collectively, the “Customer Indemnitees”) from and against any third-party claim that the Services or Work Product, as delivered by AYP and used by Customer in accordance with the Agreement, infringe a third party’s U.S. intellectual property right, and will indemnify and hold the Customer Indemnitees harmless from any damages, liabilities, costs, and reasonable attorneys’ fees finally awarded against them by a court of competent jurisdiction or paid in settlement of such claim (subject to Section 13.3). AYP’s obligations under this Section 13.1 do not apply to any claim falling within the exclusions described in Section 12.1(c)(i)–(iv). If a Service or Work Product becomes, or in AYP’s reasonable opinion is likely to become, the subject of an infringement claim, AYP may, at its option and expense: (i) procure for Customer the right to continue using the affected Service or Work Product; (ii) modify the affected Service or Work Product to make it non-infringing while preserving substantially equivalent functionality; (iii) replace the affected Service or Work Product with non-infringing material of substantially equivalent functionality; or (iv) terminate the affected Order Form and refund any prepaid, unused Fees.

13.2 Customer Indemnification

Customer will defend AYP and its members, managers, officers, directors, employees, contractors, and Affiliates (collectively, the “AYP Indemnitees”) from and against any third-party claim arising out of or relating to: (a) Customer’s breach of the Agreement, including Customer’s representations and warranties; (b) Customer’s negligent or willful acts or omissions or unlawful activities; (c) Customer Data or Customer’s instructions to AYP, including any claim that AYP’s Processing of Customer Data on Customer’s instructions infringes a third party’s rights or violates applicable law; or (d) Customer’s use of the Services or Work Product in a manner not authorized by the Agreement; and will indemnify and hold the AYP Indemnitees harmless from any damages, liabilities, costs, and reasonable attorneys’ fees finally awarded against them by a court of competent jurisdiction or paid in settlement of such claim (subject to Section 13.3).

13.3 Indemnification Procedure

The party seeking indemnification will: (a) give the indemnifying party prompt written notice of the claim (provided that any delay in notice will reduce the indemnifying party’s obligations only to the extent it is actually prejudiced by the delay); (b) give the indemnifying party sole control of the defense and settlement of the claim, except that the indemnifying party may not settle a claim in a way that imposes any non-monetary obligation on the indemnified party (including any admission of liability) without the indemnified party’s prior written consent; and (c) reasonably cooperate with the indemnifying party at the indemnifying party’s expense. The indemnified party may participate in the defense at its own expense.

13.4 Exclusive Remedy for IP Infringement

Section 13.1 states the entire liability of AYP, and the sole and exclusive remedy of the Customer Indemnitees, for any third-party claim of intellectual property infringement.

14. Limitation of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST REVENUE, LOST BUSINESS OPPORTUNITIES, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SERVICES, WHETHER UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT WILL NOT EXCEED THE AGGREGATE FEES PAID OR PAYABLE BY CUSTOMER TO AYP UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.

These limitations do not apply to: (a) Customer’s payment obligations, including amounts accelerated under Section 5.2; (b) Customer’s breach of Section 10 (Non-Solicitation and Placement Fee); (c) a party’s gross negligence, willful misconduct, or fraud; or (d) liability that cannot be limited or excluded under applicable law.

The parties acknowledge that the disclaimers, limitations, and exclusions in Sections 12.3 and this Section 14 are a fundamental basis of the bargain between them and have been factored into the Fees and other consideration exchanged under the Agreement.

15. Force Majeure

Neither party is liable for any delay or failure in performance (other than the obligation to pay amounts when due) caused by events beyond its reasonable control, including (without limitation) acts of God, fires, floods, earthquakes, severe weather, epidemics or pandemics, acts of war or terrorism, riots or civil disorder, governmental orders or actions, strikes or other labor disputes (not involving the affected party’s own workforce), cyberattacks or denial-of-service attacks not caused by the affected party’s failure to maintain industry-standard security, and failures of public utilities, telecommunications networks, or third-party cloud or platform services not under the affected party’s reasonable control (a “Force Majeure Event”). The affected party will give prompt notice of the Force Majeure Event and use commercially reasonable efforts to resume performance. If a Force Majeure Event continues for more than sixty (60) consecutive days, the unaffected party may terminate the affected Order Form by written notice without acceleration under Section 5.2.

16. Dispute Resolution

16.1 Informal Resolution

Before initiating any formal proceeding, the parties will attempt in good faith to resolve any dispute, claim, or controversy arising out of or relating to the Agreement (a “Dispute”) through informal negotiation, including at least one good-faith escalation meeting between senior executives of the parties. This obligation does not delay or limit a party’s right to seek injunctive or other equitable relief under Section 16.5.

16.2 Small Claims

For Disputes in which the amount in controversy does not exceed $10,000, either party may bring the Dispute in small claims court located in San Francisco County, California (or, if the small claims court declines jurisdiction, in another appropriate court in San Francisco County).

16.3 Binding Arbitration

For Disputes in which the amount in controversy exceeds $10,000, the Dispute will be finally resolved by binding arbitration administered by JAMS under its then-current Comprehensive Arbitration Rules and Procedures (or, for Disputes that qualify, its Streamlined Arbitration Rules and Procedures). The arbitration will be conducted by a single arbitrator selected by the parties or, failing agreement within thirty (30) days, appointed by JAMS in accordance with its rules. The seat of arbitration is San Francisco, California. The arbitrator may award any remedy available in court, including equitable relief and monetary damages, subject to the limitations in Section 14. Judgment on the award may be entered in any court of competent jurisdiction.

16.4 No Class Actions

To the maximum extent permitted by applicable law, each party waives any right to participate in a class, collective, or representative action against the other arising out of the Agreement.

16.5 Equitable Relief

Notwithstanding Sections 16.2 and 16.3, either party may seek temporary, preliminary, or permanent injunctive or other equitable relief in any court of competent jurisdiction to preserve the status quo or to prevent or remedy a breach of Section 6 (Confidentiality), Section 8 (Intellectual Property), Section 10 (Non-Solicitation and Placement Fee), or any threatened infringement of intellectual property rights, pending or in aid of arbitration.

16.6 Governing Law

The Agreement, and all matters arising out of or relating to it, are governed by the laws of the State of California, without regard to its conflict-of-laws principles.

17. Modifications to These Terms

AYP may update these Terms from time to time. AYP will post the updated Terms on its website, and the “Last Updated” date at the top of these Terms will reflect the date of posting. For Customers with an Order Form in effect at the time of the update, (a) non-material updates (clarifying language, corrections of typographical errors, updated references, and similar changes that do not materially adversely affect Customer’s rights) take effect on the “Last Updated” date, and (b) material updates (any change that materially adversely affects Customer’s rights or obligations) take effect on the date that is thirty (30) days after AYP provides Customer with written notice of the update (which may be by email to the notice contact identified in the Order Form or otherwise provided to AYP by Customer). Customer’s continued use of the Services after the effective date of a material update constitutes acceptance of the updated Terms.

18. General

18.1 Notices

Notices under the Agreement must be in writing and are deemed given: (a) when delivered personally; (b) one business day after deposit with a nationally recognized overnight courier, postage prepaid; (c) when sent by email (if confirmed by a non-automated reply or by acknowledgment from the recipient’s mail server, or, for legal notices, separately confirmed by another method permitted by this Section 18.1); or (d) two business days after mailing by U.S. certified or registered mail, postage prepaid. Notices to a party must be sent to the last provided address (postal and email) for that party. Notice to AYP is not complete unless a copy is also sent to notices@aypconsulting.tech.

18.2 Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by Customer without the prior written consent of AYP, which consent shall not be unreasonably withheld, conditioned, or delayed. Any attempted transfer or assignment in violation of this Section 18.2 is null and void. The Agreement binds and inures to the benefit of the parties and their permitted successors and assigns.

18.3 Subcontracting

AYP may engage Affiliates, contractors, and other subcontractors (including Sub-Processors under Section 7) to perform Services or parts of Services, provided that AYP remains responsible for their performance under the Agreement.

18.4 Survival

The following provisions survive expiration or termination of the Agreement: Section 1 (Definitions), Section 2.6 (No Professional Advice; Reliance), Section 3 (Customer Obligations, including Reliance on Customer Information), Section 4 (Fees, Invoicing, Payment, and Expenses) to the extent of any unpaid Fees or amounts accelerated under Section 5.2, Section 5.5 (Effect of Termination), Section 6 (Confidentiality), Section 7 (Data Protection and Security), Section 8 (Intellectual Property), Section 10 (Non-Solicitation and Placement Fee), Section 12.3 (Disclaimer of Other Warranties), Section 13 (Indemnification), Section 14 (Limitation of Liability), Section 16 (Dispute Resolution), Section 18 (General), and any other provisions that by their nature should survive.

18.5 Entire Agreement

The Agreement (these Terms together with the Order Form and any incorporated addenda, exhibits, and policies) is the entire agreement between the parties regarding its subject matter and supersedes all prior or contemporaneous agreements, communications, representations, and understandings, whether oral or written. Customer has not relied on any statement or representation not expressly set out in the Agreement.

18.6 No Waiver

A party’s failure to enforce, or delay in enforcing, any provision of the Agreement is not a waiver of that provision or of any other provision. A waiver of any breach is not a waiver of any subsequent breach.

18.7 Severability

If any provision of the Agreement is held to be unenforceable, the parties will negotiate in good faith a replacement provision that achieves the original intent of the unenforceable provision as closely as possible. If the parties cannot agree on a replacement, the unenforceable provision will be deemed modified to the minimum extent necessary to make it enforceable (or, if modification is not possible, severed), and the remainder of the Agreement will continue in full force and effect.

18.8 Construction

The headings in these Terms are for convenience only and do not affect interpretation. “Including” and its variants mean “including without limitation.” References to a statute or regulation include any successor. Each party has had the opportunity to review the Agreement with counsel, and no rule of construction will be applied against the drafter.

18.9 Independent Contractor; No Third-Party Beneficiaries

The parties are independent contractors. The Agreement does not create any agency, partnership, joint venture, or fiduciary relationship. The Agreement is for the sole benefit of the parties and their permitted successors and assigns; nothing in the Agreement gives any third party any right, benefit, or remedy.

18.10 Counterparts; Electronic Signatures

The Order Form may be executed in counterparts, each of which is deemed an original, and all of which together constitute one instrument. Signatures delivered by electronic transmission (including by e-signature platform) have the same effect as original signatures.

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