Fairway Platform Terms
This SaaS Services Agreement (the 'Platform Terms' or 'Agreement') is between Palermo Solutions, Inc. dba Fairway, a Delaware corporation (“Fairway”), and the customer named on any Order Form (as defined in Section 4.1 below) that incorporates or is incorporated into this Agreement or any other person or entity whose use of the Services is not governed by a superseding agreement (“Customer”). By clicking the box indicating acceptance after being presented with a conspicuous hyperlink to this Agreement, or by signing an Order Form that expressly incorporates this Agreement, Customer agrees that such Order Form and/or its use of the Services shall be governed exclusively by this Agreement and any additional terms stated in such Order Form. If you are entering into this Agreement on behalf of a Customer that is a company or other legal entity, you warrant and represent that you have the authority to bind such entity and such entity’s affiliates to this Agreement. Notwithstanding anything to the contrary, if Customer has entered into a separate written agreement with Fairway for use of the Services, the terms and conditions of such other agreement shall prevail over any conflicting terms or conditions in this Agreement with respect to the Services specified in such agreement. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
1. SERVICES AND SUPPORT; REGISTRATION
1.1 Subject to the terms of this Agreement, Fairway will provide the Fairway services identified on the applicable Order Form (the “Services”) to Customer during the Term (as defined in Section 5.1 below) in accordance with the Service Level Terms attached hereto as Exhibit A and in material accordance with all applicable laws and regulations and the user guides and other technical documents and specifications for the Services made generally available by Fairway to its customers (the “Documentation”). In addition, Fairway will provide reasonable technical support services to Customer in accordance with the terms set forth in Exhibit B. Customer, and those individuals who are authorized by Customer to use the Services on Customer’s behalf (“Users”), may access the Services solely for Customer’s own business purposes in accordance with this Agreement. The Services are subject to the Service Descriptions attached hereto as Exhibit C and the Privacy Policy available at https://www.getfairway.com/privacy-policy.
1.2 From time to time, Fairway may invite Customer to try, at no charge, certain products or services that are not generally available to Fairway’s customers (“Beta Services”). Customer may accept or decline any such trial in its sole discretion. Unless otherwise agreed on by the parties, Beta Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. BETA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTIES. Fairway may discontinue Beta Services at any time in its sole discretion and may never reinstate them. Fairway may also decide, in its sole discretion, if/when to start charging fees for the Beta Services, provided that Fairway gives notice to Customer before beginning to charge for Beta Services.
1.3 As part of the registration process, Customer and its Users may be asked to provide usernames and passwords for account registration. Fairway reserves the right to refuse registration of, or cancel, usernames or passwords it deems inappropriate. Customer and its Users shall keep its and their respective usernames and passwords confidential, and Customer will be responsible for all actions taken under a User’s account.
1.4 During the use of the Services, Customer may submit data to be processed by the Services (“Input”), and receive content generated and provided back to Customer by the Services based on the Input (“Output,” and collectively with Input, “Content”). Content shall constitute Customer Data (as defined in Section 3.1 below) that is owned by Customer. Output may be incomplete, inaccurate, or not suitable for Customer’s particular use. Customer is solely responsible for reviewing and validating Output before relying on it for compliance, legal, or business decisions. Customer must use discretion when relying on, publishing, distributing, or otherwise using any Output resulting from the use of the Services. Customer is also solely responsible for any Input, including the accuracy, quality, appropriateness, and legality thereof, and will ensure that its Input and use of the Services does not (i) violate any applicable law; (ii) violate the Order Form or the Agreement; or (iii) infringe, violate, or misappropriate the rights of Fairway or any third party. Fairway does not permit its third-party providers (the “Providers”) of the Services to use the Content to train their AI models.
1.5 Fairway may make the Services available to Customer for evaluation purposes for a limited period prior to execution of an Order Form (such period, the “Pilot Period”). The Pilot Period will commence on the date Customer first accesses or uses the Services and will end automatically upon the earlier of (a) Customer’s submission of ten (10) transactions to the Services, or (b) ten (10) business days (meaning any day other than a Saturday, Sunday, or U.S. federal holiday) following such commencement (the “Pilot Period End Date”). No Fees (as defined in Section 4.1 below) shall be due for Customer’s use of the Services during the Pilot Period, notwithstanding Section 4 below. Customer shall not access or use the Services after the Pilot Period End Date unless Customer and Fairway have executed an Order Form governing such continued use. If no Order Form has been executed as of the Pilot Period End Date, Fairway may suspend Customer’s access to the Services, without any liability to Customer, until an Order Form is executed; provided that this Agreement shall otherwise remain in full force and effect, and Customer’s access to the Services shall resume upon execution of an Order Form, subject to the terms of this Agreement and such Order Form. Use of the Services during the Pilot Period is subject to all other terms of this Agreement, including Section 3 (Confidentiality; Proprietary Rights) and Section 6 (Warranty and Disclaimer), and shall not be considered “Beta Services” under Section 1.2 above. Fairway may deny or revoke Customer's access to the Services during the Pilot Period at any time if Fairway reasonably believes Customer is abusing, or attempting to circumvent, the terms of the Pilot Period.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services; (ii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Fairway or authorized within the Services); (iii) sell, resell, rent or lease the Services or otherwise make the Services available to anyone other than Users, (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels from the Services, (vi) use the Services for the purpose of monitoring their availability or for any other benchmarking or competitive purposes; (vii) use the Services to transmit or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) interfere with or disrupt the integrity or performance of the Services; (ix) attempt to gain unauthorized access to the Services or their related systems or networks; (x) copy, frame or mirror the Services; (xi) access the Services in order to build a competitive product or service or copy any features, functions or graphics of the Services; or (xii) access or use the Services (A) to develop machine learning models or similar technology; (B) to mislead any person that Output from the Services was solely human-generated; (C) in a manner that violates any technical documentation, usage guidelines, or other terms and conditions; (D) in violation of applicable law; or (E) in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, data privacy right, or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data).
2.2 If Fairway makes access to any APIs available as part of the Services, Fairway reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Fairway may monitor Customer's usage of such APIs and limit the number of calls or requests Customer may make if Fairway believes that Customer's usage is in breach of this Agreement or may negatively affect the security, operability, or integrity of the Services (or otherwise impose liability on Fairway).
2.3 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, or anything related thereto, or any direct product thereof, in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Documentation and any software included in the Services are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer and its Users (i) will use the Services only in compliance with this Agreement, the Documentation and all applicable laws and regulations; (ii) will be responsible for ensuring that its systems meet the specifications set forth in the Documentation; and (iii) have all legal rights, consents, approvals, and authority necessary to access, use and disclose to Fairway all Customer Data as contemplated by this Agreement. Although Fairway has no obligation to monitor Customer’s use of the Services, Fairway may do so and may, upon written notice (which may be provided via email) to Customer, prohibit any use of the Services it believes may be in violation of the foregoing.
2.5 The Services may integrate with and receive information from third-party sources, services, software, applications, and platforms that provide data that are used in conjunction with the Input data to obtain Output (“Third-Party Data”). Fairway is not responsible for the accuracy, completeness, or suitability of any Third-Party Data. Customer acknowledges that it is Customer’s responsibility to ensure that its use of Third-Party Data complies with applicable law. Any Third-Party Data is provided “as-is” and without warranty. Where applicable, the Service Descriptions may include additional terms and conditions specific to a Third-Party Service.
2.6 Authorized System Access. Where an Order Form includes Services under which Fairway accesses a third-party or governmental system, or submits transactions to a governmental authority, on Customer’s behalf (including state or county titling, registration, or electronic vehicle registration systems), Customer represents and warrants that it has and will maintain all rights, authorizations, deputations, and approvals necessary to grant Fairway such access as an authorized user or agent, and that such access and use comply with applicable law and the rules of the applicable authority. Customer is responsible for provisioning, maintaining, and promptly deprovisioning that access and for all activity under any credentials it causes to be issued to Fairway, except to the extent arising from Fairway's gross negligence or willful misconduct. Fairway has no liability for any inability to perform, or for any consequences, resulting from the suspension, limitation, or revocation of that access. The service- and jurisdiction-specific terms for any such Services, including any limited-agent appointment, fee-handling, disclaimers, and state-specific requirements, are set out in the applicable Order Form.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS; DATA SECURITY
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business that (i) is marked or designated as “confidential” or “proprietary” at the time of disclosure by the Disclosing Party, or (ii) by its nature or content is reasonably distinguishable as confidential or proprietary to the Receiving Party (hereinafter referred to as “Confidential Information”). Confidential Information of Fairway includes non-public information regarding features, functionality and performance of the Services. Confidential Information of Customer includes the documents, data and information provided by Customer to Fairway to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information; provided that the Receiving Party may disclose the Disclosing Party’s Confidential Information to its employees, officers, directors, advisors and subcontractors who have a need to know such information in order for the Receiving Party to carry out its obligations and exercise its rights under this Agreement. The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public other than by a breach of this Agreement; or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party without any confidentiality obligation, or (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. In addition, the confidentiality obligations set forth in this Section 3 shall not apply where the Receiving Party discloses the Disclosing Party’s Confidential Information pursuant to the order or legal requirement of a court, administrative agency, or other governmental body; provided, however, that the Receiving Party shall provide prompt notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure unless prohibited by such order or requirement or otherwise by applicable law; and provided, further, that if the Disclosing Party fails to obtain a protective order or other appropriate remedy, the Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed and any Confidential Information so disclosed shall maintain its confidentiality protection for all purposes other than such legally compelled disclosure.
3.2 Customer shall own all right, title and interest in and to the Customer Data. Customer hereby grants to Fairway the worldwide, non-exclusive, royalty-free, sublicensable (solely to Providers and other subcontractors used to provide the Services) and transferable (solely in connection with a permitted assignment of this Agreement) right and license to use, copy, transmit, display, modify, analyze, and create derivatives of Customer Data to (i) provide and support the Services, and (ii) subject to Section 3.3, train, tune, and improve Fairway’s artificial intelligence and machine learning models. Customer represents and warrants that Customer has all necessary rights in Customer Data to grant the foregoing license to Fairway. Fairway shall own and retain all right, title and interest in and to (a) the Services; (b) any software, applications, inventions or other technology developed in connection with implementation or support services; (c) all improvements, enhancements or modifications to the foregoing; (d) all intellectual property rights related to the foregoing; and (e) Third-Party Data, and any information or data generated by the Services about Customer’s use or operation of the Services (excluding Customer Data). Customer shall ensure that it has provided all legally required notices and received all legally required consents to provide Customer Data to Fairway.
3.3 Notwithstanding anything to the contrary in this Agreement, Fairway may collect and analyze (a) de-identified and aggregated information created from Customer Data or from the decisions Customer makes while using the Services, in each case in a form that does not identify and is not reasonably capable of being associated with Customer or any individual; (b) technical logs, telemetry, usage statistics, and other operational information relating to the performance and provision of the Services and related systems (collectively, “Service Improvement Data”); and (c) use Customer Data and Service Improvement Data, during and after the Term (as defined in Section 5.1 below), solely to operate, maintain, secure, and improve (including to develop, validate, and optimize and train the algorithms that power the Services) the Services and other Fairway offerings, including refining algorithms and machine-learning models, provided that Fairway does not disclose Customer Data to any third party (other than Providers) in its raw form. Customer may opt out of Fairway’s use described in subsection (c) above for purposes of developing, validating, optimizing, or training algorithms or machine-learning models by providing written notice to Fairway. Any such opt-out will apply prospectively to training activities commencing after the opt-out becomes effective and will not require Fairway to delete or retrain any model developed before that time. For clarity, an opt-out will not restrict Fairway's collection or use of Service Improvement Data to provide, maintain, secure, troubleshoot, or comply with applicable law in connection with the Services. Fairway will not disclose Service Improvement Data in a manner that identifies Customer or any individual without Customer’s prior written consent, and Fairway will not attempt to re-identify any information described in subsection (a) above.
3.4 Customer hereby grants to Fairway a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer (including its Users) relating to the operation of the Services (“Feedback”). For the sake of clarity, Customer and its Users are not required to provide Feedback to Fairway.
3.5 Fairway will implement and maintain appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. The parties agree that Fairway’s security measures are described in, and governed by, the Fairway Security Measures Exhibit (the “Security Exhibit”) attached hereto as Exhibit D. Fairway maintains a SOC 2 Type II report and will provide such report under a mutually agreeable NDA upon Customer’s written request. Fairway also maintains cyber liability insurance with limits of at least $1,000,000.
3.6 Prohibited Data; Sensitive Data. Unless the parties agree otherwise in writing, Customer will not include in any Customer Data: (a) payment card data subject to PCI DSS; (b) protected health information subject to HIPAA; or (c) any sensitive personal information (i.e., sensitive Customer Data like race or ethnic origin, religion, political affiliations, sexual orientation, criminal history, and trade union or association membership, but excluding government-issued identification required for use of Services) or special categories of personal information as such terms are defined by applicable data privacy laws.
3.7 Fairway may use subprocessors in connection with providing the Services to Customer. A current list of such subprocessors can be found at https://trust.getfairway.com/subprocessors.
4. PAYMENT OF FEES
4.1 Customer will pay Fairway the fees calculated each month based on Customer’s actual usage of the Services at the per-unit rates set forth in the applicable Order Form (the “Fees”). Within five (5) business days after the end of each calendar month (each, a “Usage Period”), Fairway will determine Customer’s usage for that Usage Period and issue an invoice itemizing the Fees. Unless otherwise agreed in an Order Form, each invoice is due and payable within thirty (30) days of the invoice date. “Order Form” means an order form or other ordering document mutually executed by both parties. If any undisputed amount remains unpaid fifteen (15) days after Customer receives written notice of non-payment, Fairway may suspend Customer’s access to the Services until all undisputed Fees are paid in full. Unpaid amounts accrue interest at 1.5% per month, or the maximum rate permitted by law, whichever is lower, plus Fairway’s reasonable costs of collection.
4.2 If an Order Form specifies a committed baseline volume of transactions (or other usage metric) for any Usage Period, Customer will be invoiced for at least that baseline each month, regardless of actual usage. Any usage in excess of the committed baseline will be invoiced at the overage rate (if any) stated in the Order Form. All such Fees are payable Net 30 in accordance with Section 4.1.
4.3 The Fees shall automatically increase for each Renewal Term (as defined below) by the greater of (a) 5% or (b) the percentage increase in the CPI-U (U.S. city average, all items) over the twelve months preceding the renewal date, assuming the same total volume and mix of Services.
4.4 Unless otherwise stated in an Order Form, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with the Services purchased hereunder. For the sake of clarity, Fairway is solely responsible for taxes assessable against it based on its income, property or employees.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement shall commence on the date Customer first accepts this Agreement or first uses the Services, whichever is earlier and shall continue (i) through the Pilot Period, if applicable, and (ii) thereafter for so long as there is an Order Form in effect (the “Term”). Unless otherwise provided for in the Order Form, the term of each Order Form shall automatically renew for additional periods of the same duration as the initial Order Form Term (each a “Renewal Term”), unless either party gives the other party written notice of non-renewal at least 60 days prior to the end of the then-current Order Form Term or Renewal Term.
5.2 A party may terminate this Agreement for cause immediately upon written notice to the other party: (i) if the other party materially breaches its obligations under this Agreement and, after receiving written notice identifying such material breach in reasonable detail, fails to cure such material breach within 30 days from the date of its receipt of such notice; provided, however, in the case of a material breach that cannot reasonably be cured within such 30-day period (which shall necessarily exclude, for the avoidance of doubt, any payment default), the non-breaching party may terminate this Agreement following such 30-day period only if the breaching party shall have failed to commence substantial remedial actions within such 30-day period and to use reasonable efforts to pursue the same; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination for cause by Customer under this Section 5.2, Fairway shall refund to Customer any prepaid Fees covering the remainder of the Term after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any Fees payable to Fairway for the period prior to the effective date of termination.
5.3 Upon any termination of this Agreement, all rights and licenses granted hereunder shall immediately terminate (other than perpetual licenses); provided, however, that Customer may access its Customer Data for the purpose of exporting such Customer Data for a period of 60 days after the effective date of such termination. After such 60-day period, Fairway will delete the Customer Data from its databases, subject to its right to retain (i) any Service Improvement Data in accordance with Section 3.3 and (ii) electronic archives and backups for an additional 30 days, after which such backups and archives will be deleted.
5.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
6.1 Fairway represents and warrants that it will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform any implementation and support services in a professional and workmanlike manner. Customer’s sole remedy, and Fairway’s sole obligation, for any breach of the foregoing warranties is for Fairway to correct such breach within 30 days or else Customer may terminate this Agreement in accordance with Section 5.2. Customer acknowledges that Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Fairway or by third-party providers, or because of other causes beyond Fairway’s reasonable control, but Fairway shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, FAIRWAY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT FAIRWAY IS NOT RESPONSIBLE FOR ANY CONSEQUENCES OR RESULTS OBTAINED FROM USE OF THE SERVICES. FAIRWAY MAY PROVIDE FACTS AND INFORMATION THAT CUSTOMER MAY USE TO MAKE DETERMINATIONS ABOUT THE RESULTS OF THE SERVICES, BUT SUCH DETERMINATIONS (AND ANY ACTIONS OR DECISIONS OF CUSTOMER BASED ON SUCH DETERMINATIONS) ARE THE SOLE RESPONSIBILITY OF CUSTOMER. FAIRWAY MAY USE ARTIFICIAL INTELLIGENCE TO PROVIDE THE SERVICES, THE RESULTS OF WHICH MAY CONTAIN INACCURACIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND ANY IMPLEMENTATION OR SUPPORT SERVICES ARE PROVIDED “AS IS” AND FAIRWAY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. INDEMNITY
7.1 Fairway will defend Customer, and its officers, directors and employees (collectively with Customer, the “Customer Indemnitees”), from and against any third-party claim, demand, suit or proceeding (a “Claim”) (i) arising out of any breach of Section 3 by Fairway that results in the misuse or unauthorized disclosure of Customer Data; or (ii) alleging that the use of the Services as permitted hereunder infringes or misappropriates any United States intellectual property right. Fairway shall indemnify and hold harmless the Customer Indemnitees from any and against any damages and costs (including reasonable attorneys’ fees) awarded against Customer, or agreed in settlement by Fairway, resulting from a Claim, provided that Customer notifies Fairway of any and all Claims for which Customer seeks indemnification under this Section 7.1 and gives Fairway reasonable assistance and the opportunity to assume sole control over defense and settlement thereof (provided that Fairway may not settle any Claim without Customer’s prior written approval unless such settlement releases Customer of all liability). Fairway’s obligations under this Section 7.1 do not apply with respect to (a) portions or components of the Services (1) not supplied by Fairway; (2) made in whole or in part in accordance with Customer specifications; (3) that are modified after delivery by Fairway without Fairway’s authorization; or (4) combined with other products, processes or materials in a manner not contemplated by the Documentation where the alleged infringement relates to such combination, or (b) where Customer’s use of the Services is in violation of this Agreement. If, due to a Claim under part (ii) of this paragraph, the Services are held by a court of competent jurisdiction to be, or are reasonably believed by Fairway to be, infringing, Fairway may, at its option and expense (A) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality; (B) obtain for Customer a license to continue using the Services; or (C) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Services.
7.2 Customer will defend Fairway and its officers, directors and employees (collectively with Fairway, the “Fairway Indemnitees”), from and against any Claim (i) related to Customer’s breach of Sections 2.1, 2.3 or 3.6; or (ii) alleging that the use of Customer Data as permitted hereunder infringes or misappropriates any United States intellectual property right or violates the privacy or other rights of a third party. Customer shall indemnify and hold harmless the Fairway Indemnitees from and against any damages and costs (including reasonable attorneys’ fees) awarded against Fairway, or agree in settlement by Customer, resulting from a Claim, provided that Fairway notifies Customer of any and all Claims for which Fairway seeks indemnification under this Section 7.2 and gives Customer reasonable assistance and the opportunity to assume sole control over defense and settlement thereof (provided that Customer may not settle any Claim without Fairway’s prior written approval unless such settlement releases Fairway of all liability). Customer’s obligations under this Section 7.2 do not apply with respect to any use of Customer Data by Fairway that is in violation of this Agreement.
7.3 THIS SECTION 7 STATES THE INDEMNIFYING PARTY’S SOLE LIABILITY TO, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY AGAINST, THE OTHER PARTY FOR ANY TYPE OF CLAIM DESCRIBED IN THIS SECTION 7.
8. LIMITATION OF LIABILITY
8.1 TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY EXCLUDED CLAIMS (AS DEFINED BELOW), EACH PARTY AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR: (A) ERROR OR INTERRUPTION OF USE OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (B) FOR ANY PUNITIVE, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSES.
8.2 TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR ANY EXCLUDED CLAIMS (FOR WHICH THERE SHALL BE NO CAP ON LIABILITY) OR SPECIAL CLAIMS (WHICH ARE SUBJECT TO THE ENHANCED LIABILITY CAP DEFINED BELOW), NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL EXCEED THE GREATER OF (A) $1,000, OR (B) THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
8.3 As used herein, “Excluded Claims” means (i) any amounts payable to third parties pursuant to Fairway’s indemnity obligations under Section 7.1(ii); (ii) any fraud, willful misconduct or gross negligence by a party; (iii) any amounts payable to third parties pursuant to Customer’s indemnity obligations under Section 7.2; (iv) Customer’s violation of Section 2.1, Section 2.3, Section 3.2, or Section 3.6; or (v) Customer's obligation to pay undisputed Fees under Section 4.
8.4 As used herein, “Special Claims” means (i) any breach by a party of Section 3 that results in misuse of or unauthorized disclosure of the other party’s Confidential Information, or (ii) any amounts payable to third parties pursuant to Fairway’s indemnity obligations under Section 7.1(i). For any and all Special Claims, each party’s aggregate liability shall be subject to an enhanced liability cap not to exceed the greater of (i) $100,000 or (ii) three times (3X) the amount paid by Customer to Fairway during the 12 months prior to the event giving rise to the liability (the “Enhanced Liability Cap”).
8.5 NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, FAIRWAY SHALL HAVE NO LIABILITY FOR ANY CONSEQUENCES OR RESULTS OF THE USE OF THE SERVICES BY CUSTOMER OR ANY DETERMINATIONS OR DECISIONS RESULTING THEREFROM.
9. MISCELLANEOUS
9.1 Fairway may use Customer’s name, logo, and/or other identifying indicia in Fairway’s customer lists and advertising, marketing, and/or promotional materials, solely to identify that Customer is a customer of Fairway. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Except as otherwise provided herein, all waivers must be in a writing signed by both parties. Fairway may amend or modify this Agreement (including the Service Level Terms, Support Terms, and Service Descriptions) from time to time by providing notice to Customer, which notice may be given by email, in-Service notification, or posting the amended Agreement together with its effective date. Except for amendments that are required to comply with applicable law, that address a security vulnerability, or that do not materially and adversely affect Customer’s rights under this Agreement (each of which may take effect immediately upon notice), amendments will become effective no earlier than thirty (30) days after notice is provided. Customer’s continued use of the Services on or after the effective date of an amendment constitutes Customer’s acceptance of the amended Agreement. If an amendment materially and adversely affects Customer’s rights under this Agreement and Customer does not agree to it, Customer’s sole and exclusive remedy is to terminate this Agreement by providing Fairway written notice before the amendment’s effective date, in which case Customer will remain responsible only for Fees accrued through the date of termination. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination by Customer, Customer will remain responsible only for Fees accrued through the date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing, addressed to the party’s address set forth in the applicable Order Form (or such other address that a party gives notice of in accordance with this paragraph) and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Customer will send a copy of any notice given hereunder to legal@getfairway.com. This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions and the parties irrevocably consent to venue in the state and federal courts of Dallas County, Texas.
EXHIBIT A
Service Level Terms
The Services shall be available 99.5%, measured monthly, excluding scheduled maintenance performed with at least forty-eight (48) hours’ prior notice (except emergency maintenance). If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third-party connections or utilities or other reasons beyond Fairway’s control will also be excluded from any such calculation. Customer's sole and exclusive remedy, and Fairway's entire liability, in connection with Services availability shall be that for each period of downtime lasting longer than one hour, Fairway will credit Customer five percent (5%) of the Fees incurred for the Usage Period in which the downtime occurred; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Fairway) recognizes that downtime is taking place and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify Fairway in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits equal to one quarter (25%) of the Fees for that Usage Period. Fairway will only apply a credit to the month in which the incident occurred. Fairway’s blocking of data communications or other services in accordance with its policies shall not be deemed to be a failure of Fairway to provide adequate service levels under this Agreement.
EXHIBIT B
Support Terms
Support Plans
• Basic Support
Fairway will provide technical support to Customer via electronic mail on weekdays with the exclusion of federal holidays in the U.S., and will use commercially reasonable efforts to respond to all Helpdesk tickets within 2 days on weekdays (“Basic Support Hours”).
Customer may initiate a helpdesk ticket any time by emailing help@getfairway.com.
• Premium Support
Unless otherwise specified in the Order Form, at the outset of the initial Order Form Term, Fairway will provide a 1-hour training session to titling and registration analysts outlining how to upload documents, how to receive results, and how to interpret the results. This training session can be performed over video conference.
Fairway will provide technical support to Customer via electronic mail on weekdays with the exclusion of federal holidays in the U.S., and will use commercially reasonable efforts to respond to all Helpdesk tickets within 12 hours on weekdays (“Premium Support Hours”).
Customer may initiate a helpdesk ticket any time by emailing help@getfairway.com.
EXHIBIT C
Service Descriptions
These service descriptions (“Service Descriptions”) are incorporated into and made a part of the Agreement. All capitalized terms not defined in these Service Descriptions are defined in the Agreement. “Third-Party Services” are services provided by entities other than Fairway that may include additional functionalities, integrations, or data that are used or accessed through the Services but are not owned or controlled by Fairway. Fairway is not responsible for the performance, compatibility, or compliance of these Third-Party Services with Customer’s needs. Third-Party Services may require additional terms and conditions, depending on the service offered by the third party, which are described in this Exhibit C.
1.Fairway Audit.Fairway Audit is a cloud-hosted, AI-driven document review service that ingests title‐ and registration-related documents supplied by Customer, programmatically extracts key data fields, and applies Fairway’s proprietary validation and compliance models to generate a structured pass/fail determination together with an itemized list of detected defects. Each audit performed through the Services shall constitute an “Audit.” For purposes of this Agreement, an “Audit” means each instance in which Customer submits a packet for audit through the Services, including the initial submission and any subsequent resubmissions of the same or a related packet. Customer appoints Fairway as its limited agent solely for the purpose of parsing, validating, and summarizing the Input; all submission, filing, and compliance obligations remain with Customer. Fairway Audit is intended to highlight potential errors and omissions that may require further review, and is not a substitute for legal counsel, statutory interpretation, or human judgment. Customer shall not rely on the Output as legal advice or a guarantee of acceptance by any governmental authority, nor use the Output to make credit, employment, insurance, or other eligibility determinations governed by the Fair Credit Reporting Act or comparable laws. Fairway disclaims all liability for (i) inaccuracies resulting from incomplete, illegible, or corrupted Input, (ii) downstream use of the Output outside the stated purpose, and (iii) any changes in law or policy occurring after the date of processing.
2.Fairway Requirements. Fairway Requirements is a configurable requirements-execution engine that codifies state and county motor-vehicle statutes, DMV policy bulletins, and Fairway’s proprietary quality-control logic (the “Canonical Rules”) and produces transaction-specific checklists. Fairway reserves the right to reject or disable any Customer-specific Canonical Rule that (a) conflicts with applicable law, (b) materially degrades system performance, and/or (c) introduces security risks. Fairway Requirements is provided “as-is” for decision-support purposes; Customer is solely responsible for ensuring that any Customer-specific Canonical Rule deployed in production conforms to statutory and contractual requirements. Fairway makes no representation that the Canonical Rules or any Output produced therefrom will be accepted by a governmental authority, and Fairway shall not be liable for penalties, rejections, or delays arising from Customer’s reliance on such Output.
3.Fairway Autofill. Fairway Autofill is an automated form-generation service that maps structured data provided by Customer or produced by Fairway Audit into state-approved PDF, TIFF, or electronic forms and assembles multi-document packets for download or API delivery to Customer’s downstream systems. Fairway Autofill performs no substantive alteration of data and does not verify the accuracy or completeness of any field values; quality of Output is wholly dependent on Input accuracy. Customer remains responsible for (a) validating that populated forms meet jurisdictional filing requirements, (b) obtaining any required e-signatures, and (c) ensuring that barcodes or other machine-readable elements render correctly on Customer’s printers or electronic filing systems. Fairway disclaims responsibility for rejected filings that result from inaccurate or incomplete Input, template obsolescence occurring after Fairway’s last update, or Customer’s failure to comply with local formatting mandates.
4.Fairway NMVTIS.Fairway NMVTIS is a cloud-hosted vehicle-history and title-verification service that enables Customer to submit vehicle identifiers, including VINs and related transaction data, for automated retrieval of available information from the National Motor Vehicle Title Information System (NMVTIS), directly or through Fairway’s authorized data-provider integrations. Fairway NMVTIS may return structured Output reflecting available title, brand, salvage, junk, insurance, theft, odometer, and related vehicle-history information provided by NMVTIS or applicable third-party data sources. Each lookup performed through the Services shall constitute a “NMVTIS Query.” For purposes of this Agreement, a “NMVTIS Query” means each instance in which Customer submits a VIN, vehicle record, title record, packet, or related transaction for NMVTIS retrieval, including any resubmission, refresh, re-check, or related query for the same vehicle or transaction. Customer appoints Fairway as its limited agent solely for the purpose of transmitting Customer-provided Input to NMVTIS or Fairway’s authorized data providers, retrieving available responsive data, and formatting or routing such data through the Services. Customer remains solely responsible for verifying the accuracy of all Input, determining whether and how to use the Output, complying with applicable NMVTIS access rules and third-party data-provider terms, and satisfying all title, registration, disclosure, reporting, filing, and compliance obligations applicable to Customer’s business. Fairway NMVTIS is provided for vehicle-title review, fraud detection, and operational decision-support only, and is not legal advice, a title guarantee, a substitute for independent title review, or a guarantee of acceptance by any governmental authority. Fairway disclaims responsibility for inaccuracies, omissions, delays, or failed matches resulting from Customer Input, NMVTIS or third-party data-source limitations, system unavailability, post-query changes in vehicle status, or Customer’s downstream use of the Output.
5.Fairway NDTC. Fairway NDTC enables Customer to submit vehicle title applications and related data to the National Digital Title Clearinghouse operated by the West Virginia Division of Motor Vehicles (the "Clearinghouse") and to retrieve status, approvals, and the resulting paper or digital titles through the Services. Fairway transacts as an enrolled service provider under its own enrollment and will maintain the license, bond, and security attestations the Clearinghouse requires of it. Each submission to the Clearinghouse through the Services, whether or not accepted, constitutes an "NDTC Transaction," and each resubmission or corrected filing constitutes a separate NDTC Transaction. Fees are set forth in the applicable Order Form. Customer appoints Fairway as its limited agent solely to submit Customer-provided Input to the Clearinghouse under Fairway's enrollment and return the responses through the Services. Customer represents that it has lawful authority to title each vehicle submitted, that all Input is accurate and complete, and that its use complies with applicable law and Clearinghouse rules; Fairway may refuse or suspend any submission it reasonably believes would violate those rules or jeopardize its enrollment. Customer remains responsible for all state fees and taxes on its transactions, and for its own title, registration, disclosure, and recordkeeping obligations. Fairway does not issue titles or adjudicate submissions and makes no representation that any submission will be accepted. Fairway disclaims responsibility for rejections, penalties, delays, or inaccuracies arising from Customer Input, Clearinghouse limitations or unavailability, changes to Clearinghouse interfaces or rules, post-submission changes in title status, or Customer's use of the Output.
6.Fairway Complete.Fairway Complete is a data-automation and audit tool that populates Customer-provided data into an electronic vehicle registration (EVR) provider's system, or another titling or registration system, and audits the resulting entries for accuracy, typically delivered through a browser extension that works within Customer's existing workflow. Fairway Complete assists Customer's staff in preparing and reviewing transactions; Customer operates the applicable system and remains the party that submits each transaction. Under Fairway Complete, Fairway does not act as Customer's agent for submission, does not file or submit on Customer's behalf, and makes no representation that any entry or submission will be accepted. Output may be incomplete or inaccurate, and Customer is solely responsible for reviewing and validating all populated data before submission and for compliance with the applicable provider's and authority's rules. For the managed service in which Fairway submits transactions on Customer's behalf as its limited agent, see Fairway Submit below.
7.Fairway Submit.Fairway Submit enables Customer to submit motor vehicle title and registration transactions to the applicable governmental authority or its deputy (the “Authority”) through an applicable state or county titling, registration, or electronic vehicle registration (EVR) system (a “Submission System”), and to retrieve the corresponding responses through the Services. Each transmission of a transaction through the Services constitutes a “Submission,” Customer appoints Fairway as its limited agent solely to access the applicable Submission System as an authorized user on Customer's behalf, transmit Customer-approved Input to the Authority, and route the responses through the Services. Notwithstanding the Fairway Audit and Fairway Complete descriptions above, where Customer engages Fairway Submit, Customer authorizes Fairway to submit Customer-approved transactions on its behalf as described in this paragraph. Customer represents that it has lawful authority to title and register each vehicle submitted, that all Input is accurate and complete, and that its use complies with applicable law and Authority rules, and Customer remains responsible for reviewing and approving each transaction before Submission and for payment of all governmental, deputy, and Authority fees and taxes. Fairway is not an Authority or the deputy of record, does not adjudicate or accept submissions, does not hold or take custody of governmental or deputy funds, and makes no representation that any Submission will be accepted. Fairway disclaims responsibility for rejections, penalties, interest, late fees, delays, or duplicate or erroneous submissions, and for any over-collection, under-collection, or misapplied, delayed, duplicated, or reversed fee debit or remittance effected by an Authority, deputy, or Submission System, arising from Customer Input, the acts or omissions or availability of any Authority or Submission System, suspension or revocation of access, or changes in law or fees after a Submission; Fairway will use commercially reasonable efforts to correct a discrepancy caused solely by its own Services Fee calculation, for which Customer's sole remedy is a credit or refund of that Fee. The Services Fees, fee-collection mechanics, and jurisdiction-specific terms for Fairway Submit are set out in the applicable Order Form and its State Appendix, and Customer's grant of system access is governed by Section 2.6.
EXHIBIT D
Fairway Security Measures
1. Information Security Program
Fairway maintains a written information security program with administrative, technical, and physical safeguards appropriate to the nature of the Services and the sensitivity of Customer Data, including government identifiers and Social Security Numbers when processed.
2. Access Control
Role-based access control (RBAC), least privilege, multi-factor authentication (MFA) for administrative access, and periodic access reviews.
3. Encryption
Encryption in transit using Transport Layer Security (TLS) and encryption at rest for databases and backups.
4. Monitoring and Logging
Centralized logging, monitoring for suspicious activity, and alerting for security-relevant events.
5. Vulnerability Management
Regular vulnerability scanning and patch management; periodic penetration testing or equivalent security testing; remediation tracked to completion.
6. Secure Development
Secure software development life cycle (SDLC) practices including code review, change control, and separation of duties where appropriate.
7. Incident Response
Documented incident response plan with defined roles, triage, containment, investigation, remediation, and post-incident review.
8. Business Continuity and Disaster Recovery
Backups and recovery procedures designed to restore availability; periodic testing of backup restore processes.
9. Subprocessor Management
Due diligence and contractual controls for Subprocessors, including confidentiality and security obligations. Current Subprocessors are disclosed here: https://trust.getfairway.com/subprocessors.
10. Compliance Artifacts
SOC 2 Type II report available under NDA upon request. Cyber liability insurance maintained with limits of at least $1,000,000.
