PLEASE READ THESE DEVELOPER API TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE USING THE API AND SERVICE (EACH AS DEFINED BELOW) OFFERED BY PALM FINANCE, INC. (“PALM”). BY CLICKING ON THE “ACCEPT” OR “SUBMIT” BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT (“YOU,” “YOUR,” “YOURS” OR “LICENSEE”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY, ARE BECOMING A PARTY TO THIS “AGREEMENT, AND ARE HEREBY REPRESENTING AND WARRANTING THAT YOU ARE AUTHORIZED TO BIND LICENSEE. YOUR USE OF ANY PORTION OF THE API OR SERVICE, AS WELL AS YOUR SUBMISSION OF ANY ORDER FORM (INCLUDING AN ONLINE ORDER FORM) OR SIMILAR DOCUMENT THAT REFERENCES THIS AGREEMENT AND THAT IS ACCEPTED BY PALM (EACH, AN “ORDER FORM”), SHALL IN EACH CASE ALSO CONSTITUTE ASSENT TO THIS AGREEMENT. IN ADDITION, ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA PALM’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY PALM SHALL BE DEEMED TO BE MUTUALLY EXECUTED. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DECLINE” BUTTON AND YOU SHALL HAVE NO RIGHT TO USE THE API OR SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
WHEREAS, Palm owns and operates a comprehensive data and analytics platform for small businesses, including a website, app and subdomains (the “Service”) that aggregates, collects and stores profile information for small businesses;
WHEREAS, Licensee desires to acquire from Palm, and Palm desires to provide to Licensee, the right and license to access and use certain technologies as more fully described herein;
NOW THEREFORE, the parties hereto, in consideration of the foregoing and other good and valuable consideration recognized by the parties, hereby agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings for the purpose of this Agreement:
1.1. “API” means Palm’s application programming interfaces and specifications thereto, as it is provided by Palm to Licensee, to enable Licensee and End Users to interface with the Service.
1.2. “Client” means the entity utilizing the API to connect to the Client Service.
1.3. “Client” means the entity utilizing the API to connect to the Client Service.
1.4. “Documentation” means documentation and information regarding the API and Service that are delivered by Palm to Licensee in any form (including the documentation set forth), including any updates to such documentation provided by Palm from time to time.
1.5. “Enablement Partner” means the entity that has been approved by Client and obtained a Client-specific Palm API key on behalf of Client in order to assist Client in enabling End Users to connect to the Client Service.
1.6. “End User” means a user that accesses the API or the Service through a Client Service for such user’s own benefit.
1.7. “Licensee Content” means any information, data, text, or other materials that Licensee or End Users upload, submit, transmit, display, post, store, or otherwise make available through the Service, including through the API or the Client Service.
1.8. “Licensee” means Client and the approved Enablement Partner.
1.9. “Permitted Purpose” means using the API to make the Service available to End Users solely for Client’s internal business in connection with the Client Service.
1.10. “Palm Data” means any information, data, text or other content provided by or on behalf of Palm to Licensee about an individual End User.
1.11. “Palm Website” means the website located at https://getpalm.com/.
1.12. “Electronic Signature” means an electronic sound, symbol, or process attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record, as defined under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq. ("ESIGN Act"), the Uniform Electronic Transactions Act ("UETA") as adopted in applicable jurisdictions, and, where applicable, Regulation (EU) No 910/2014 on electronic identification and trust services for electronic transactions in the internal market ("eIDAS").
1.13. “Handwritten Signature” means a handwritten mark, drawn signature, or equivalent personal mark created by a Signing Party using a stylus, finger, mouse, or other input device on a touchscreen or digital interface, or uploaded as a digitized image of a handwritten mark, that is electronically captured and stored through the Service. For the avoidance of doubt, a Handwritten Signature is a form of Electronic Signature under U.S. E-Signature Law and is treated as such for all purposes under this Agreement.
1.14. “Signature Record” means the complete, tamper-evident record associated with any Electronic Signature or Physical Signature collected through the Service, including all metadata, audit trail data, authentication evidence, consent records, timestamps, and the signed document in its final executed form.
1.15. “Signing Party” means any End User or third party whose Electronic Signature or Physical Signature is collected, processed, or transmitted through the Service.
1.16. “Audit Trail” means the chronological, tamper-evident log of all events in the signature collection process, including document access, identity authentication, signing actions, timestamps, IP addresses, device identifiers, and document integrity verification data.
2. API, SERVICE AND PALM DATA LICENSE; RESTRICTIONS
2.1. License. Subject to the terms and conditions of this Agreement, Palm hereby grants Licensee a non-exclusive, non-transferable, non-sublicenseable, revocable, and limited right and license during the Term to access and use the Service, API and Palm Data, and to permit End Users to access and use the API, Service and Palm Data, in each case, solely for the Permitted Purpose and in accordance with the Documentation.
2.2. Enablement Partner. If Licensee is an Enablement Partner, then Licensee may only access the API for or on behalf of Clients who have separately entered into this Agreement with Palm, and Enablement Partner hereby acknowledges and agrees that all services it performs hereunder and all rights and licenses granted to it hereunder are in furtherance of and solely for and to the benefit of such Client. In the event (i) Enablement Partner ceases to provide services for or on behalf of such Client, or Enablement Partner’s relationship with such Client terminates or expires pursuant to a separate agreement between Enablement Partner and Client, or (ii) if Palm’s relationship with such Client terminates or expires pursuant to the agreement between Palm and Client, all rights and licenses provided to Enablement Partner hereunder shall terminate and Enablement Partner shall cease any and all use of the API, Service and Palm Data on behalf of such Client. Enablement Partner and Client each shall defend, indemnify, and hold harmless Palm, Palm’s officers, directors, employees and agents, and affiliates from and against any claims, liabilities, or expenses relating to or arising out of any actions, agreements, disputes, issues or otherwise in any way related to the relationship between Enablement Partner and Client. All references to “Licensee” in this Agreement shall apply to both Client and Enablement Partner, however all references to “Client” in this Agreement shall solely apply to Client.
2.3. Responsibilities. Licensee is solely responsible for the acts or omissions of Licensee and each End User in connection with their use of the API and Service. Licensee’s agreements with End Users must: (i) be no less protective of Palm’s rights and ownership than this Agreement; (ii) not grant greater use or access rights to the Service or API than those rights, licenses and permissions described in this Agreement; (iii) require the parties to agree that Palm and its licensors shall not have any direct or indirect liability to any End Users; (iv) include substantially and materially similar restrictions to those set forth in Section 2.4 with respect to the Service and API to the extent applicable; and (v) obtain from End Users any and all necessary rights to enable Licensee to grant the license to Palm set forth in Section 3.2 below with respect to Licensee Consent. Licensee shall use best efforts to enforce all the limitations, restrictions and protections in this Section 2.2 with respect to End Users. Licensee agrees to use commercially reasonable efforts to prevent unauthorized access to or use of the API and to promptly notify Palm of any such unauthorized access or use. Licensee accepts and assumes all responsibility for complying with all applicable laws and regulations in connection with all of Licensee’s and End Users activities involving the API, the Service, or Palm Data.
2.4. Updates and Modifications. Licensee understands and agrees that the specifications for the API and the Service shall be defined by Palm in its sole discretion, and Licensee is responsible for its development and other costs associated with Licensee’s use of the API. Palm reserves the right to modify, change, update and/or enhance the API, the Service, and/or any Palm Website (each a “Modification”) at any time in Palm’s sole and exclusive discretion. Licensee acknowledges and agrees that such Modifications may affect Licensee’s and End Users’ ability to access the Service and may require Licensee to make changes to the Client Service’s interface with the API. Palm shall not be liable for any costs incurred by Licensee arising out of or in connection with any Modification.
2.5. License Restrictions.
2.5.1. Except as expressly permitted hereunder, Licensee shall not, and shall require that End Users do not (i) use any method to access or use the Service other than as permitted through the API, (ii) provide the API or access to the Service to any third parties other than End Users, (iii) permit or enable third parties to copy or obtain the API or access to the Service in any manner not expressly authorized in this Agreement, (iv) use the API or Service, in any manner that violates applicable laws, (v) license, sell, re-sell, rent, lease, transfer, assign, reproduce, distribute, or alter the API, Service or any portion of the API or Service, or permit or enable any third parties to do so; (vi) use the Service, the API, or any documentation or other materials received from Palm in connection with this Agreement, to develop a product or service that competes with the Service; (vii) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer, or otherwise attempt to discover the source code or underlying algorithms of any part of the Service or API except to the extent the foregoing restrictions are expressly prohibited by applicable law; (viii) remove or destroy any copyright notices or other proprietary markings contained on or in the Service or API; (ix) access or use the API or Service in any manner that could disable, overburden, damage, disrupt or impair the API or Service or interfere with any other party’s access to or use of the API or Service or use any device, software or routine that causes the same; (x) attempt to gain unauthorized access to, interfere with, damage or disrupt the API or Service, accounts registered to other users, or the computer systems or networks connected to the API or Service; (xi) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the API or Service; (xii) use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the API or Service to monitor, extract, copy or collect information or data from or through the API or Service; or (xii) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into Palm’s systems.
2.6. Public Announcements; Marketing. During the Term, (a) Licensee agrees to participate in case studies and other similar marketing efforts reasonably requested by Palm; (b) Palm may disclose that Licensee is a Palm licensee or customer to third parties; and (c) Palm may include on and in Palm's website, case studies, marketing materials, and conference presentations and other speaking opportunities, Licensee's testimonials and other feedback regarding the Service, Licensee's name, website URL, use case, logo, and other marks. Upon written request from Licensee, Palm will promptly stop making the disclosures and uses described in clause (c) of the foregoing sentence, except to the extent already included in any then-existing materials that are not reasonably practicable to modify or retract. Notwithstanding the foregoing, any use of Licensee's name or marks in a manner that materially differs from the foregoing (such as a dedicated press release or joint announcement) shall require Licensee's prior written approval, which shall not be unreasonably withheld or delayed.
2.7. Security Breach Obligations. Licensee shall promptly notify Palm, and in no event later than seventy-two (72) hours after Licensee becomes aware, of any actual or suspected event that compromises the Licensee's systems or applications or that does or reasonably could compromise the security, integrity, or confidentiality of Palm Data, End User Data, or Licensee Content, or result in its unauthorized use, disclosure, or loss (a "Security Breach"). Such notice shall: (a) describe all known facts regarding the Security Breach; (b) identify the types of Palm Data, End User Data, or Licensee Content affected; (c) identify the End Users potentially affected; and (d) include any other information Palm reasonably requests. Licensee shall reasonably cooperate with Palm in investigating, mitigating, and remediating the Security Breach. Licensee shall be responsible for all costs of investigating, mitigating, and remediating the Security Breach, including costs of credit monitoring, call centers, support, and any other customary or legally required remediation. A Security Breach does not include a good-faith disclosure of a vulnerability to Palm, provided that Licensee takes no exploitative action during such disclosure.
2.8. Non-Generally Available Services. From time to time, Palm may, in its sole discretion, make available to Licensee certain API features, functions, or services that are not yet generally available ("Non-GA Services"). Non-GA Services may be identified as alpha, beta, trial, pilot, limited release, developer preview, non-production, or by a similar designation. Licensee's participation in any Non-GA Services is voluntary and may be terminated by either party at any time. Licensee acknowledges and agrees that: (a) all Non-GA Services are provided solely for temporary evaluation purposes and may be incomplete, contain defects or errors, and may not meet the same level of security, reliability, or functionality as generally available Palm offerings; (b) Palm makes no commitments to continue developing or making any Non-GA Service generally available; and (c) Non-GA Services are provided "AS IS" and "AS AVAILABLE" without any warranties, representations, or commitments of any kind, whether express, implied, statutory, or otherwise. LICENSEE ASSUMES ALL RISKS ASSOCIATED WITH THE USE OF NON-GA SERVICES AND HEREBY RELEASES PALM, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AND CONTRACTORS FROM ANY AND ALL LIABILITIES, CLAIMS, OR DAMAGES ARISING OUT OF OR RELATED TO SUCH USE. Palm may modify, suspend, or discontinue any Non-GA Services at any time, with or without notice, and without any obligation or liability to Licensee.
2.9. Compliance Reviews. To access or use the Service, Licensee must successfully pass Palm's compliance reviews, which may include automated verifications, online questionnaires, and requests for information ("Compliance Reviews"). Licensee must provide prompt responses to Palm's requests for information about Licensee, the Client Service, Licensee's business and associated entities, and Licensee's intended use of the Service. Licensee represents and warrants that all information it provides to Palm as part of Compliance Reviews will be accurate and complete, and Licensee shall immediately notify Palm if any previously provided information becomes inaccurate or out-of-date. Licensee may be required to complete more than one Compliance Review, including to upgrade from development to production access or as requested by Palm based on changes in Licensee's use of the Service or increased risk factors. Palm's determination of whether Licensee passes or fails any Compliance Review is in Palm's sole discretion. If Licensee fails any Compliance Review, or fails to provide prompt and complete responses within three (3) business days after Palm's written request for information (even if Licensee has passed a previous Compliance Review or received provisional access), Palm may suspend, revoke, or terminate Licensee's access to the Service, without notice or further liability to Licensee.
2.10. Electronic Signatures.
2.10.1. Widget Implementation Requirements. Palm may make available to Licensee, as part of the Service, an electronic signature and consent capture widget (the "Signature Widget") through which Palm will: (a) deliver legally required disclosures to Signing Parties; (b) obtain affirmative consent from Signing Parties to conduct transactions by electronic means in accordance with applicable E-Signature Law; and (c) collect, process, and store Electronic Signatures and Handwritten Signatures on behalf of Licensee. Licensee's use of the Signature Widget is subject to the terms of this Section 2.10 in addition to all other applicable terms of this Agreement.
2.10.2. ESIGN Act. Licensee acknowledges that the ESIGN Act and applicable state UETA enactments govern Electronic Signatures in commercial transactions between businesses and that the consumer disclosure requirements of 15 U.S.C. § 7001(c) do not apply to transactions between commercial parties. Licensee represents and warrants that its use of the Signature Widget is limited to transactions in which all Signing Parties are acting in a commercial, business, or professional capacity and not as consumers. Licensee shall not use the Signature Widget to collect signatures from individuals acting in a consumer capacity without prior written notice to Palm, and Palm reserves the right to require additional configuration or consent flows before permitting consumer-facing use.
2.10.3. Signing Party Authentication. Licensee shall implement identity authentication measures appropriate to the risk level of the underlying transaction in connection with its use of the Signature Widget. At minimum, Licensee shall ensure that: (a) each Signing Party's identity is authenticated by at least one reasonable method prior to signature collection (which may include, without limitation, email verification, SMS one-time passcode, knowledge-based authentication, or credential verification through the Service); (b) the authentication method and result are captured in connection with the corresponding Signature Record; and (c) Licensee's authentication practices comply with applicable law and any heightened requirements imposed by the transaction type or governing instrument. Palm may offer optional identity verification services as part of the Service; Licensee's election not to use such services does not relieve Licensee of its obligations under this Section.
2.10.4. Palm’s Retention of Signature Records. Palm shall retain each Signature Record collected through the Signature Widget for Palm's own compliance, legal, audit, and platform integrity purposes in accordance with Palm's then-current data retention policy. Licensee acknowledges that Palm's retention of Signature Records does not constitute Palm acting as Licensee's record-keeper, document custodian, or agent for retention purposes, and Licensee shall not rely on Palm's retention of Signature Records to satisfy any recordkeeping obligation imposed on Licensee by applicable law, contract, or regulation. Licensee is solely responsible for independently retaining executed documents and associated evidence in a manner that satisfies Licensee's own legal and compliance obligations. Palm shall make Signature Records accessible to Licensee through the Service during the Term; following termination of this Agreement, Palm's obligation to provide Licensee access to Signature Records shall cease, subject to applicable law and this Agreement.
2.10.5. Audit Trail Integrity. Palm shall maintain an Audit Trail for each signature collection event processed through the Signature Widget. The Audit Trail shall include, at minimum: (a) a timestamp for each event in the signature workflow; (b) the IP address and device identifier associated with the Signing Party's session; (c) the document version presented to and executed by the Signing Party; (d) the authentication method and result; (e) any acknowledgment captured from the Signing Party; and (f) a cryptographic hash or equivalent integrity verification mechanism sufficient to detect post-execution tampering with the signed document. In the event of a dispute regarding the validity or enforceability of an Electronic Signature, Palm shall cooperate reasonably with Licensee to produce Audit Trail evidence in a format suitable for use in legal proceedings, subject to applicable law and Palm's then-current support terms.
2.10.6. Prohibited Uses of the Signature Widget. Licensee shall not use the Signature Widget to: (a) collect signatures on documents that are illegal, fraudulent, or in violation of applicable law; (b) collect signatures from individuals who lack legal capacity or authority to bind the relevant entity; (c) facilitate transactions that Palm determines, in its sole discretion, present an unacceptable legal, reputational, or regulatory risk to Palm; (d) present documents to Signing Parties in a misleading manner, including through pre-population of signature fields without the Signing Party's knowledge; or (e) collect signatures on document types excluded by Palm in the Documentation or by separate written notice to Licensee.
2.10.7. No Legal Advice. Palm's provision of the Signature Widget, including the facilitation of disclosure delivery and the capture of Signing Party acknowledgment, does not constitute legal advice to Licensee or to any Signing Party. Licensee is solely responsible for obtaining independent legal counsel regarding the enforceability of documents signed through the Signature Widget and the legal sufficiency of any disclosure delivered therethrough.
3. OWNERSHIP; LICENSES; THIRD-PARTY MATERIALS
3.1. Palm Ownership. As between Palm and Licensee, Palm retains all rights, title and interest in and to all intellectual property rights embodied in or pertaining to the API, Service, Palm Data, Palm Website, and Palm Marks (as defined in Section 3.6), and all improvements, modifications, enhancements, and derivative works of any of the foregoing. There are no implied licenses under this Agreement, and any rights not expressly granted to Licensee hereunder are reserved by Palm or its licensors. Licensee shall not take any action inconsistent with Palm’s ownership of the API, Service, Palm Data, Palm Website, and Palm Marks.
3.2. Licensee Content. As between Palm and Licensee, to the extent permitted by applicable law, Licensee retains ownership of the Licensee Content, subject to the license granted to Palm in the following sentence. Licensee grants Palm a perpetual, non-exclusive, sublicensable (through multiple tiers of sublicensees) royalty-free, fully paid right and license to use, copy, host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Licensee Content, in whole or in part, in any and all media or distribution methods (now known or later developed) for the purposes of operating and providing the Service to Licensee, and any for any other lawful business purpose, including to improve the usability, functionality, and accuracy of the Palm Website.
3.3. Trademark License. Palm hereby grants Licensee a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use Palm’s trademarks, service marks, and logos (collectively “Palm Marks”) during the Term on Licensee’s websites or promotional materials solely to (i) attribute Palm as the provider of the Service and (ii) otherwise advertise and promote the availability of access to the Service in the Client Service. Licensee agrees to use the Palm Marks only in a form identified by Palm in writing for use hereunder [and in accordance with Palm Marks Requirements and such quality standards as may be reasonably established by Palm and communicated to Licensee from time to time in writing. Licensee shall obtain Palm’s prior written approval of any material change in the style and manner in which any of the Palm Marks are proposed to be used. Licensee shall not use the Palm Marks in a manner that disparages Palm or its products or services, portrays Palm in a false, competitively adverse or poor light, or dilutes the Palm Marks. Except as expressly provided for in this Section 3.3, Palm reserves all right, title, and interest in and to the Palm Marks. All goodwill arising from Licensee’s use of the Palm Marks shall inure to the benefit of Palm. Licensee hereby grants Palm a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use Licensee’s trademarks, service marks, and logos (collectively “Licensee Marks”) on Palm’s websites or promotional materials solely to advertise and promote the availability of access to the Service in the Client Service and in accordance with Section 2.5. Palm shall obtain Licensee’s prior written approval of any material change in the style and manner in which any of the Licensee Marks are proposed to be used. Licensee shall not use the Licensee Marks in a manner that disparages Licensee or its products or services, portrays Licensee in a false, competitively adverse or poor light, or dilutes the Licensee Marks. Licensee reserves all right, title, and interest in and to the Licensee Marks. All goodwill arising from Palm’s use of the Licensee Marks shall isnure to the benefit of Licensee.
3.4. Feedback. Licensee agrees that submission of any ideas, suggestions, documents, proposals or other feedback provided to Palm (“Feedback”) is at Licensee’s own risk and that Palm has no obligations (including obligations of confidentiality) with respect to such Feedback. Licensee represents and warrants that it has all rights necessary to submit the Feedback. Licensee hereby grants to Palm a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, transferrable, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise exploit in any manner, any and all Feedback without restriction of compensation.
3.5. Data.
3.5.1. Licensee Content. Licensee represents and warrants that (i) before any End User may engage with the API or Service, Licensee shall ensure that it provides all notices and obtains all consents required under applicable law to enable Palm to process Licensee Content in accordance with Palm’s privacy policy (currently available at https://getpalm.com/privacy); (ii) it has sufficient rights, consents, and permissions to grant the licenses to Palm set forth in Section 3.2 and to input the Licensee Content into the Service and (iii) the Licensee Content does not infringe, misappropriate, or otherwise violate any third party’s intellectual property rights, privacy rights, rights of publicity, moral rights, or other proprietary rights. Licensee shall not (i) make representations or other statements with respect to Licensee Content that are contrary to or otherwise inconsistent with Palm’s privacy policy or (ii) interfere with any independent efforts by Palm to provide End User notice or obtain End User consent.
3.5.2. Palm Data. Palm Data shall only be used for the Permitted Purpose and Licensee shall delete all Palm Data in accordance with the Documentation. Licensee shall be responsible for obtaining consent directly from End Users for any use of the End User’s information or data outside of the Permitted Purpose. To the extent that End User submits any information or data directly to Licensee, Licensee shall be solely responsible for ensuring that Licensee’s use of that data is in compliance with any applicable laws and Licensee’s own stated privacy policy.
3.5.3. End User Data. As between Palm and Licensee, all information, data, and materials relating to End Users provided to or collected by Palm in connection with the Service, including without limitation any profile, verification, identity, or business information ("End User Data"), are and shall remain the exclusive property of Palm. Licensee acknowledges that it acquires no ownership rights or interests of any kind in any End User Data, whether received directly or indirectly through the Service, and that its access to End User Data is solely for the limited Permitted Purpose expressly authorized by Palm under this Agreement. Notwithstanding the foregoing, raw data submitted directly by an End User shall remain the property of that End User. Upon Palm's request or upon termination of this Agreement, Licensee shall promptly delete or return all End User Data in its possession, subject to applicable law. Palm retains all right, title, and interest in and to (i) End User Data, (ii) any aggregated, anonymized, or derived data created, generated, or processed through the operation, use, or improvement of the Service, including all metadata, analytics, models, or usage statistics, and (iii) any intellectual property rights therein.
3.6. No Training of AI Models. Notwithstanding anything to the contrary in this Agreement, Licensee agrees that it will not use Palm Data, Licensee Content, or any Output as direct training input for developing, fine-tuning, pre-training, or otherwise optimizing any large language models (LLMs), machine learning models, or other artificial intelligence systems (collectively, "AI Models"). This restriction applies solely to the use of such data as training material and does not limit Licensee's ability to operate, maintain, or improve its systems in ways that do not rely on such data as model-training input. For clarity, nothing in this Section restricts or prohibits Licensee from: (a) performing system-level optimization, safety tuning, performance monitoring, or analytics that do not use Palm Data or Licensee Content as training data; (b) using aggregated, anonymized, or statistical information that does not identify or permit reconstruction of Palm Data or Licensee Content; (c) retaining minimal logs or metadata necessary for fraud detection, security, compliance, abuse prevention, system reliability, or troubleshooting, provided Licensee does not use such information to train AI Models; or (d) using third-party AI or cloud services in connection with the API or Service, so long as Licensee uses commercially reasonable efforts to ensure such third parties do not use Palm Data or Licensee Content as training input in violation of this Section. Licensee shall not, and shall not permit any third party to, use Palm Data or Licensee Content, in whole or in part, to train, fine-tune, retrain, seed, calibrate, adapt, evaluate, test, or otherwise develop AI technologies. Licensee's obligations under this Section shall be subject to a commercially reasonable efforts standard.
3.7. Third Party Services. Licensee acknowledges and agrees that: (i) the Service may incorporate or interoperate with certain information, data, technology, or services provided by third-party vendors or licensors (collectively, "Third-Party Services"), which may include without limitation identity verification, e-signature infrastructure, data enrichment, and payment processing providers; (ii) Third-Party Services may only be used in conjunction with the Service and solely for the Permitted Purpose; and (iii) Licensee's use of any Third-Party Services accessed through the Service is subject to Licensee's independent obligation to comply with all applicable terms, restrictions, and requirements imposed by the relevant third-party provider to the extent Palm has notified Licensee in writing of such requirements. Palm will use commercially reasonable efforts to notify Licensee of any material third-party terms applicable to Licensee's use of the Service, and Licensee agrees to comply with such terms upon receipt of written notice. Palm does not make any representations or warranties with respect to any Third-Party Services or third-party providers, and shall not be liable for any acts, omissions, errors, or unavailability of any Third-Party Services. Palm cannot and does not guarantee that the Service will incorporate or continue to incorporate any particular Third-Party Service.
3.8. Signature Records. Palm retains all Signature Records collected through the Signature Widget for its own platform compliance, legal, and audit purposes. As between Palm and Licensee: (a) Signature Records constitute Palm Data to the extent they contain information collected or generated by Palm's platform infrastructure, including Audit Trail data, metadata, cryptographic verification records, and timestamps; (b) the underlying executed documents and any content provided by Licensee or Signing Parties through the Signature Widget constitute Licensee Content and remain subject to Section 3.2, provided that Palm's license to use such content shall not extend to using executed transaction documents for any purpose other than operating and providing the Service, and shall not be used for Palm's general business purposes unrelated to the Service; and (c) Palm retains all right, title, and interest in the Audit Trail infrastructure, cryptographic verification systems, and any aggregated or anonymized data derived from Signature Records consistent with this Agreement.
4. FEES
4.1. Fees. As consideration for the use of the API and Service by Licensee and End Users, Licensee shall pay Palm the fees set forth on the Order Form (if any) (“Fees”). Unless otherwise set forth on the Order Form, at the end of each calendar month, Palm shall deliver to Licensee an invoice for the Fees for such calendar month. Licensee shall pay Palm the amounts set forth in such invoice within the time period set forth in the Order Form or, if no time period is set forth in the Order Form, within thirty (30) days of Licensee’s receipt of such invoice. Any amounts due to Palm under this Agreement not received by the date due shall be subject to a late charge of one percent (1%) per month, or the maximum charge permitted by law, whichever is less. All payments amounts due hereunder shall be paid in U.S. dollars.
4.2. Taxes. The payments are exclusive of any applicable sales, use, gross receipts, excise, value-added, personal property, or other similar taxes, which shall be separately itemized and payable by Licensee. If Palm has the legal obligation to pay or collect any taxes that Licensee is responsible for, the appropriate amount shall be invoiced to Licensee and paid accordingly. Licensee indemnifies Palm against any penalties, interest, or other liability arising from its failure to pay applicable taxes.
5. TERM AND TERMINATION
5.1. Term. This Agreement shall commence upon Licensee’s first use of the API and/or Service and shall continue for the term set forth on the Order Form, or if the Order Form does not specify a term, one month (the “Initial Term”), unless earlier terminated in accordance herewith. Following the Initial Term, this Agreement shall automatically renew for successive renewal terms of equivalent length to the Initial Term each (each, a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term (as applicable).
5.2. Termination. Palm may terminate this Agreement at any time for any reason or no reason at all upon ten (10) days’ written notice. Either party may terminate this Agreement immediately upon written notice to the other party (a) if the other party breaches any warranty, representation, covenant or obligation under this Agreement and fails to cure such breach within thirty (30) days of receiving written notice of the breach from the non-breaching party; or (b) if the other party is subject to a dissolution, receivership, liquidation, insolvency, conservatorship, consolidation, reorganization, sale of substantially all of its assets, cessation of business, voluntary or involuntary bankruptcy. Palm may suspend Licensee’s or any End User’s access to the API or Service or terminate this Agreement if (i) required to do so by law, (ii) to prevent a security risk or other creditable risk of harm or liability to Palm, the Service, the API, or any third parties, or with respect to Enablement Partner specifically, in accordance with Section 2.2 above.
5.3. Effect of Termination; Survival. The provisions of Sections 1, 2.4, 2.10, 3, 3.7, 5.3, 6, 7.2, 8, 9 and 10 shall survive any expiration or termination of this Agreement. All other rights and obligations of the parties shall cease upon expiration or termination of this Agreement, and Licensee shall cease use of the API, Service and Palm Data as of the effective date of termination.
6. CONFIDENTIAL INFORMATION
6.1. Confidential Information. Each party and their respective affiliates, directors, officers, employees, authorized representatives, agents and advisors (including attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all proprietary information concerning the other party’s business procedures, present and future products, services, operations, marketing materials, fees, technology, policies or plans of the other party that is received or obtained during the negotiation or performance of the Agreement, whether such information is oral or written, and whether or not labeled as confidential by such party (collectively “Confidential Information”).
6.2. Use of Confidential Information. For as long as Confidential Information of the disclosing party is in possession of the receiving party, the receiving party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplication or disclosure of Confidential Information other than in accordance with this Agreement. Each party may disclose Confidential Information of the other party to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving party to treat such information confidentially, or as required by law or by a supervising regulatory agency of a receiving party. Neither party shall disclose, share, rent, sell or transfer to any third party any Confidential Information of the other party except as expressly permitted by this Agreement. The receiving party shall use Confidential Information of the other party only as necessary to perform this Agreement.
6.3. Exceptions. Notwithstanding anything to the contrary, the obligations of the receiving party set forth in this Section 6 shall not apply to any information of the disclosing party that: (a) is or becomes a part of the public domain through no wrongful act of the receiving party; (b) was in the receiving party’s possession free of any obligation of confidentiality at the time of the disclosing party’s communication thereof to the receiving party; (c) is developed by the receiving party completely independent from the Confidential Information of the disclosing party; or (d) is required by law or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure after providing the disclosing party with advance written notice if reasonably possible such that the disclosing party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
6.4. Remedies. Upon the request of the disclosing party following the termination of this Agreement, the other party shall promptly return all Confidential Information of the disclosing party in its possession, and shall promptly destroy such materials containing such information (and any copies, extracts, and summaries thereof) and shall further provide the other party with written confirmation of such return or destruction upon written request. In the event a party discovers that Confidential Information of the other party has been used in an unauthorized manner or disclosed in violation of this Section 6, the party discovering the unauthorized use or disclosure shall promptly notify the other party of such event. In addition, the non-disclosing party shall be entitled to all other remedies available at law or equity, including injunctive relief.
7. LIMITED REPRESENTATIONS AND WARRANTIES
7.1. General. Each party represents and warrants that (i) it is a duly incorporated or organized entity in its state of incorporation or organization and that it has the full power and authority to enter into and perform its obligations under this Agreement; (ii) the execution and performance by it of its obligations under this Agreement do not constitute a breach of or conflict with any other agreement or arrangement by which it is bound; (iii) this Agreement is a legal, valid and binding obligation of the party executing this Agreement; (iv) no consent or approval of any other party is required in connection with the execution, delivery, performance, or enforceability of this Agreement; and (v) it shall comply with all applicable laws, rules, and regulations in connection with performance of such party’s obligations under this Agreement.
7.2. Warranty Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 7, THE API, SERVICE, AND PALM DATA ARE EACH PROVIDED “AS IS” AND PALM AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES FOR TITLE, NON-INFRINGEMENT, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. PALM DOES NOT REPRESENT OR WARRANT THAT (I) THE PALM WEBSITE, THE API, OR THE SERVICE SHALL MEET LICENSEE’S REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF THE API AND SERVICE); (II) LICENSEE’S OR ITS USERS’ USE OF THE API AND SERVICE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THE ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICE OR API SHALL BE ACCURATE OR RELIABLE. LICENSEE ACKNOWLEDGES THAT THE SERVICE MAY INCLUDE THIRD PARTY SERVICES AND THAT PALM IS NOT LIABLE, AND LICENSEE AGREES NOT TO SEEK TO HOLD PALM LIABLE, FOR ANY THIRD PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTY SERVICES RESTS ENTIRELY WITH LICENSEE. LICENSEE ACKNOWLEDGES AND AGREES THAT PALM IS NEITHER A “CONSUMER REPORTING AGENCY” NOR A “FURNISHER” OF INFORMATION TO CONSUMER REPORTING AGENCIES UNDER THE FAIR CREDIT REPORTING ACT (“FCRA”) AND THE SERVICE DOES NOT RESULT IN A “CONSUMER REPORT” UNDER THE FCRA AND CANNOT BE USED AS OR IN SUCH. LICENSEE REPRESENTS AND WARRANTS THAT IT SHALL NOT, AND SHALL NOT PERMIT OR ENABLE ANY THIRD-PARTY TO, USE THE SERVICE AS A OR AS PART OF A “CONSUMER REPORT” AS THAT TERM IS DEFINED IN THE FCRA OR OTHERWISE USE THE API OR SERVICE SUCH THAT THE API OR SERVICE WOULD BE DEEMED “CONSUMER REPORTS” UNDER THE FCRA.
7.3. DPPA Compliance. Licensee certifies, represents, and warrants that all of Licensee's, and all End Users' and Enablement Partners', access to, use of, and disclosure of the Service, including any access to or processing of personal information derived from motor vehicle records, shall at all times be strictly limited to and fully compliant with the permissible uses expressly authorized under the Driver's Privacy Protection Act, 18 U.S.C. § 2721 et seq. ("DPPA"), and any applicable state analogs. Licensee shall not, and shall not permit any third party to, use the Service or any data obtained through the Service for any purpose not expressly permitted under the DPPA, including but not limited to marketing, solicitation, surveillance, or investigations not authorized thereunder. Licensee is solely responsible for verifying, documenting, and maintaining evidence of its compliance with the DPPA and the applicability of any asserted permissible use category. Licensee shall immediately notify Palm in writing of any suspected or actual non-compliance with the DPPA relating to the Service. Palm may immediately suspend or terminate access to any Service if Palm believes that Licensee or any End User has violated, or may be at risk of violating, the DPPA or any applicable law.
8. INDEMNIFICATION
Licensee agrees to indemnify, defend and hold harmless Palm, and parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors, from and against any and all third-party losses, costs, liabilities, and claims (including reasonable attorneys’ fees) relating to or arising out of (a) Licensee’s or End User’s use or misuse of the API, Service, Palm Data or intentional misconduct; (b) Licensee’s violation of this Agreement; (c) Licensee’s or End User’s violation of any applicable law, rule or regulation; (d) the Licensee Content or Licensee’s violation of any other party’s right, including without limitation any right of privacy or intellectual property rights; and (e) the Client Service. Palm shall provide the Licensee: (a) prompt notice of any claim alleged pursuant to this section; (b) the sole right to control defense and settlement of such claim; and (c) at Licensee’s sole expense, any and all assistance, information and documentation required by Licensee in its investigation, defense, settlement or release of any such action or proceeding, including execution of any document or filing reasonably related thereto. Licensee may not enter into any settlement or compromise of any such claim without prior written consent of Palm, which shall not be unreasonably withheld, except any settlement of a claim that resolves such claim without liability to Palm, impairment to any of the Palm’s rights, or requiring Palm to make any admission of liability. Notwithstanding the foregoing, Palm reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee, in which event Licensee shall fully cooperate with Palm in asserting any available defenses.
9. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL PALM BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO BUSINESS INTERRUPTION, IN EACH CASE WHETHER OR NOT PALM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, THE API, PALM DATA OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (I) THE USE OR INABILITY TO USE THE SERVICE OR API; (II) ANY OTHER MATTER RELATED TO THE SERVICE OR API OR PALM DATA, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, OR (III) FOR ANY AMOUNT EXCEEDING THE GREATER OF (X) THE AMOUNT OF FEES PAID TO PALM DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY OR (Y) $100 (ONE HUNDRED DOLLARS). NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 9 SHALL NOT LIMIT A PARTY’S LIABILITY UNDER SECTION 6 (CONFIDENTIALITY) OR SECTION 8 (INDEMNIFICATION). PALM ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY LICENSEE CONTENT.
10. MISCELLANEOUS
10.1. Assignment. Licensee may not assign this Agreement without the prior written consent of Palm. Subject to the foregoing limitation, this Agreement is binding upon and inures to the benefit of the successors and assigns of the respective parties hereto.
10.2. Independent Contractors. The relationship of the parties hereto is that of independent contractors. The parties hereto are not deemed to be agents, partners or joint ventures of the others for any purpose as a result of this Agreement or the transactions contemplated thereby. Nothing herein shall be deemed or construed as granting to either party or any right or authority to assume or to create any obligation or responsibility, express or implied, for, on behalf of, or in the name of the other party. All financial and other obligations associated with each party’s business are the sole responsibility of such party.
10.3. Third Party Beneficiaries. This Agreement is not intended and shall not be construed to create any rights or benefits upon any person not a party to this Agreement.
10.4. Force Majeure. Neither party shall be liable to the other in any way whatsoever for any failure or delay in performance of any of the obligations under this Agreement (other than obligations to make payment), arising out of any event or circumstance beyond the reasonable control of such party (including war, rebellion, civil commotion, terror, strikes, lock-outs or industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; acts of terror; epidemics, pandemics, or quarantine restrictions; or order by any government department, council or other constituted body).
10.5. Costs and Expenses. Unless specifically provided for elsewhere in this Agreement, each party shall bear its own costs and expenses, including legal fees, accounting fees and taxes incurred in connection with the negotiation and performance of this Agreement.
10.6. Compliance with Law. Licensee shall at all times comply with all applicable international, federal, state and local laws and shall not engage in any illegal or unethical practices. Without limiting any of the foregoing, Licensee agrees that it shall not permit the use of the Service or API or Palm Data, export, or re-export the Service or API or Palm Data, (a) into, or to or for the benefit of a national or resident of, any country to which the United States has embargoed goods, or (b) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders, or license or otherwise permit use of the Service or API or Palm Data for any activities involving nuclear materials or weapons, missile or rocket technologies, proliferation of chemical or biological weapons, or any other purpose prohibited by applicable law or in any jurisdiction where the Service is prohibited.
10.7. Notices. Except as otherwise provided, all notices under this Agreement shall be delivered by email, or physical mail to the other party at the address or number set forth in this Agreement. Notices to Palm sent by physical mail shall also be sent via email to hello@getpalm.com. Notices shall be deemed to have been given (i) at the time of delivery when delivered by email, (ii) at the time of delivery when delivered personally, or (iii) three (3) business days after having been sent by physical mail.
10.8. Entire Agreement; Modification. This Agreement, including any exhibits or other documents attached hereto or referenced herein, each of which is hereby incorporated into this Agreement and made an integral part hereof, constitutes the entire agreement between the parties relating to the subject matter hereof and there are no representations, warranties or commitments except as set forth herein. This Agreement supersedes all prior understandings, negotiations and discussions, written or oral, of the parties relating to the transactions contemplated by this Agreement. This Agreement may not be changed orally but only by an agreement in writing, signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought.
10.9. Headings; Construction. The headings to the clauses, sub-clause and parts of this Agreement are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement. The terms “this Agreement,” “hereof,” “hereunder” and any similar expressions refer to this Agreement and not to any particular Section or other portion of this Agreement. As used in this Agreement, the words “include” and “including,” and variations thereof, shall be deemed to be followed by the words “without limitation” and the word “discretion” means sole discretion.
10.10. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to any conflict of law principles. The Federal and State courts located in San Francisco County, California shall be the exclusive venue for any disputes under this Agreement, and the parties hereby consent to the personal jurisdiction of those courts for such purposes. The application of the United Nations Convention on Contracts for the International Sale of Goods (1980) is expressly excluded from and shall have no application to this Agreement.
10.11. Provisions Severable. If any provision of this Agreement shall be or become wholly or partially invalid, illegal or unenforceable, such provision shall be enforced to the extent that it is legal and valid and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, legal representatives and permitted assigns.
10.12. Waivers; Cumulative Remedies. No failure or delay by a party to insist upon the strict performance of any term or condition under this Agreement or to exercise any right or remedy available under this Agreement at law or in equity, shall imply or otherwise constitute a waiver of such right or remedy, and no single or partial exercise of any right or remedy by any party shall preclude exercise of any other right or remedy. All rights and remedies provided in this Agreement are cumulative and not alternative; and are in addition to all other available remedies at law or in equity.
10.13. Waiver of Jury Trial. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
10.14. Arbitration Agreement; Class Action Waiver.
(a) Mandatory Arbitration. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any court of competent jurisdiction), any dispute, claim, or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate (each, a "Dispute"), shall be determined by binding arbitration before a single arbitrator. The arbitration shall be administered by the American Arbitration Association ("AAA") pursuant to its Commercial Arbitration Rules and Mediation Procedures (available at www.adr.org) then in effect. The arbitration shall take place in San Francisco, California, in the English language. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Each party shall bear its own costs and attorneys' fees in connection with any arbitration; provided that the arbitrator may award costs and fees to the prevailing party as permitted by applicable law and the AAA Rules.
(b) Good Faith Negotiation. Prior to initiating arbitration, the parties shall use commercially reasonable good-faith efforts to resolve any Dispute informally for a period of at least thirty (30) days from the date written notice of the Dispute is delivered by one party to the other.
(c) Class Action Waiver. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ITS RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. ALL DISPUTES MUST BE BROUGHT BY THE PARTIES IN THEIR INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. IF A COURT OR ARBITRATOR DETERMINES THAT THE CLASS ACTION WAIVER SET FORTH IN THIS SECTION IS VOID OR UNENFORCEABLE FOR ANY REASON, OR THAT AN ARBITRATION CAN PROCEED ON A CLASS BASIS, THEN THE ARBITRATION PROVISION SET FORTH IN SECTION 10.14(a) SHALL BE DEEMED NULL AND VOID AND THE PARTIES SHALL BE DEEMED NOT TO HAVE AGREED TO ARBITRATE DISPUTES ON A CLASS BASIS.
(d) Exclusions. Nothing in this Section 10.14 shall be deemed to waive, preclude, or otherwise limit either party's right to: (i) bring an individual action in small claims court; (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) file suit in a court of law to address an intellectual property infringement claim.
10.15. Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which shall constitute one and the same instrument.