Last Updated: March 23, 2023

BANYAN TERMS OF SERVICE

Please read these Terms of Service (the “Terms”) carefully. These Terms govern the use of the website located at https://www.banyaninfrastructure.com (the “Site”) belonging to Banyan Infrastructure Corporation, a Delaware corporation (“Banyan,” “us,” “our,” and “we”), and Banyan’s products, services and properties and any content, products, services or other items offered in connection therewith, including without limitation the Platform (defined below) (collectively and together with the Site, the “Services”), unless a separate agreement or agreements (collectively, the “Agreement”) exist between you and Banyan, in which case the Agreement will control thereafter against any documentation or other agreements or materials, including the Terms. If you do not agree to these Terms or the Agreement, then you have no right to access or use the Services. As used herein, the term “you” (including any variant) refers to each individual who enters into these Terms on such individual’s own behalf or any entity on behalf of which an individual enters into these Terms, in which case you represent and warrant that you have the authority to bind that entity to this agreement (and in that case, “you” will refer to the individual and that entity).

THESE TERMS ARE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND BANYAN. BY ACCESSING OR USING THE SERVICES, YOU ARE ACCEPTING THE TERMS, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO ENTER INTO AND AGREE TO THE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SERVICE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD OR OF LEGAL AGE TO FORM A BINDING CONTRACT IN YOUR JURISDICTION. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THE TERMS, DO NOT ACCESS AND/OR USE THE SERVICE.

THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 10.5) TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Banyan may modify the Terms from time to time, in which case Banyan will post a new version on the Site and update the “Last Updated” date above. Modifications to the Terms are effective when posted to the Site. Your continued use of the Services following the posting of any changes constitutes your acceptance of such changes, and if you do not agree with these changes, you must immediately stop using the Services. Because the Services are evolving over time, Banyan may change or discontinue all or any aspect of the Services, at any time and without notice, at Banyan’s sole discretion.

1. SERVICES AND SUPPORT
1.1 Banyan hereby grants you a a worldwide, revocable, non-exclusive, non-transferable, non-sublicensable limited license to use the Services, including Banyan’s proprietary software to simplify, accelerate and optimize the financing of sustainable infrastructure projects across the life cycle of such projects (the “Platform”) in accordance with the Terms. If you are an individual or entity that has entered into an Agreement pursuant to which you may be provided with access to the Platform (a “Customer”) or an employee or agent of a Customer (but not a Third Party User (as defined below) who is authorized by Customer to access and/or use the Services for Customer’s business purposes in accordance with the Agreement and/or for whom a account for the access and/or use of the Services has been created by or on behalf of Customer (a “Customer User”), then your access, use and limited license of the Services are also subject to your compliance with terms of the Agreement. If you are an individual or entity authorized that is not a Customer or Customer User and you have been invited by Banyan to access the Platform and/or a Customer or Customer User to view such Customer’s Deal Information through the Platform (a “Third Party User”), your access and use are subject to the Terms.

2. 1.2  Banyan will provide Customer with support in accordance with Banyan’s then-current support policies.

3. 1.3  Banyan will provide storage for the specific data that Customer creates through Customer or Customer

User’s use of the Platform (the “Platform Data”), subject to the limitations in Section 4 hereto. Banyan will store the Platform Data and only upon request by Customer or termination of the Terms and the Agreement for any reason, whichever is sooner, will the Platform Data be deleted from Banyan’s servers within sixty (60) days of such request

or the termination, whichever is sooner. Customer will be responsible for transferring Platform Data to its own servers prior to the expiration of this sixty (60) day period.
1.4 The Services may contain links to third-party applications, websites and/or services for third parties (collectively, “Third-Party Materials”). Such Third-Party Materials are not under the control of Banyan, and Banyan is not responsible for any Third-Party Materials. Banyan does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Materials. You use all Third-Party Materials at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Materials, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Materials.

2. RESERVATION OF RIGHTS
2.1 You retain all right, title and interest, including all intellectual property and proprietary rights, related to (i) the data you transfer to Banyan through your use of the Platform (“Customer Data” and together with the Platform Data, the “Data”), (ii) the Platform Data, and (iii) all derivative data from the Data. Unless as expressly provided herein, nothing in the Terms is intended to convey to Banyan any license or ownership interest in any tangible or intellectual property of yours. You may not (except if expressly authorized to do so elsewhere in the Terms or the Agreement) (a) reproduce, publicly display, publicly perform, distribute or create derivative works from the Platform, (b) provide third-parties with access to the Platform under a service bureau, time sharing or other arrangement, or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive or access any of the Platform’s source code and/or human readable embodiment.
2.2 Banyan retains all right, title and interest in and to the Services as well as any anonymous, aggregated, data that Banyan may generate through the provision of the Services to you, including any and all copyright, trademark, patent and moral rights to the same (the “Banyan Data”). Banyan also retains the unrestricted right to use the Banyan Data, to compile anonymous statistical and performance related information which may be used to improve the Services and for other business purposes. The Banyan Data will not include any Customer Data, Platform Data, or any other data that allows you or your employees, customers, suppliers or any other party whose information is contained in the Customer Data to be identified.
3. PAYMENT OF FEES
3.1 You will pay Banyan any amounts due for the Services as stated in the Agreement (the “Fees”) in lawful money of the United States of America via wire transfer or such other reasonable manner as requested by Banyan. Any partial month of Services will be billed on a pro-rated, per diem basis. When Banyan begins providing Services, the Fees cannot be canceled or reduced. You will be solely responsible for any applicable tax for the Services, including without limitation, sales, use, value add and other taxes or duties. The Fees are due and must be received by Banyan per fee terms described in the Agreement, or within 30 days (NET30) of the invoice date. Unpaid invoices are subject to a finance charge of 1.5% per month, or the maximum permitted by applicable laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any government authority (collectively, “Law”), plus all expenses of collection. All Fees paid pursuant to the Terms of the Agreement are non-cancelable and nonrefundable. If your account is past due, Banyan may submit it to collection and upon not less than seven (7) days notice, suspend or cancel the Services. A reconnection fee may be assessed if you request to restore access to the Services.
3.2 If you believe that you have been billed for the incorrect amount, you must contact Banyan no later than thirty (30) days after the date on the first billing statement in which the error or problem appeared to receive an adjustment or credit.
4. RESTRICTIONS AND RESPONSIBILITIES
4.1 You will only use the Platform and all materials Banyan provides you (“Documentation”) for their intended purposes. You will not (and will not allow any Third Party User), directly or indirectly, to (i) reverse engineer, decompile, copy, disassemble or otherwise attempt to discover the source code, human readable embodiment, object code or underlying structure, ideas, algorithms, or any component, feature or structure of the Services (or any underlying software, documentation or data related to the Services); (ii) modify, translate, or create derivative works based on the Services, underlying software, Documentation or any portion or component thereof; (iii) rent, lease, distribute, pledge, assign, resell, or otherwise transfer or commercially exploit the Services or any underlying software in any manner not expressly authorized under the Terms or the Agreement; (iv) use the Services to transmit or store pornography, or any obscene, threatening, libelous, harassing, tortious, hateful or other unlawful material; (v) use the Services to transmit or store any content that you do not have a right to store or transmit; (vi)

use the Services to transmit or store any Protected Health Information (as defined in the Health Insurance Portability and Accountability Act of 1996 and its regulations (“HIPAA”)); (vii) use the Services to transmit or store passwords for any of your customers or other third-parties; (viii) transmit any content that contains software viruses or any code, files or programs designed to interrupt or destroy any computer software or hardware; (ix) interfere or disrupt the integrity or performance of the Services; and/or (x) access the Services if you are, or are working on behalf of, a competitor to Banyan. Banyan retains all right, title, and interest (including, but not limited, to intellectual property rights) in and to the Services and anything developed and delivered under the Terms or the Agreement. With the exception of the limited license provided in Section 1.1, nothing in the Terms or the Agreement will be construed as granting you any right, title, or interest in or to the Services.

4.2 You will be solely and independently responsible for (i) complying with all applicable Law relating to the data it collects, transfers, exports, processes and/or stores in connection with its use of the Services, including all applicable privacy laws, the Health Insurance Portability and Accountability Act of 1996, the Gramm-Leach-Bliley Act of 1999, and if applicable, the E.U. Data Protection Directive (EU Directive 95/46/EC); (ii) for notifying and obtaining the consent of your users and customers to transmit personal or other data to the Platform; (iii) updating and maintaining the accuracy of your Banyan account data; (iv) safeguarding access to the Services including without limitation, protecting all passwords and keys; and (v) promptly (within 24 hours) notifying Banyan of any breach or unauthorized use or access of your Banyan account.

4.3 You hereby grant Banyan a worldwide, non-exclusive, non-transferable, non-sublicensable license to use your name and logo for promotional purposes such as on the Site, press releases, advertisements, case studies or brochures. Within thirty (30) days of your acceptance of the Terms or the Agreement, Banyan will have the right to make a public announcement of your use of the Services, however such public announcement shall not include any commercial terms of the Agreement. Banyan will not acquire any right, title or interest in your logo or any of your intellectual property, including but not limited to your trademarks.

4.4 If you provide Banyan with reports, comments, suggestions, ideas or other feedback regarding the the Services, whether written or oral, either directly or through a third-party (collectively, “Feedback”), you do so without expectation of compensation and you assign all right, title and interest in and to such Feedback to Banyan. If for any reason such assignment is not valid, you hereby grant Banyan a world-wide, exclusive, perpetual, irrevocable, royalty-free, fully paid, sub-licensable license to use, sell, copy, modify, or make derivative works of, distribute and/or otherwise exploit any Feedback for any purpose in Banyan’s sole discretion. Feedback is strictly voluntary and Banyan is not required to hold it in confidence.

5. CONFIDENTIALITY
5.1 “Confidential Information” means any and all technical and non-technical information of you or Banyan disclosed by such party (the “Disclosing Party”) to the other party (the “Receiving Party”), which may include, without limitation: (i) patent and patent applications; (ii) trade secrets; (iii) proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, inventions, know-how, processes, apparatuses, equipment, algorithms, software programs, software source documents, and formulae related to the current, future, and proposed products and services of Banyan, including without limitation Banyan’s information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information Banyan provides regarding third-parties; (iv) the Terms, the Agreement and the Services, including without limitation the underlying software, algorithms and information embodied in the Platform; (v) the business information of Banyan that is conspicuously marked “Confidential,” “Proprietary,” or otherwise identified as confidential or proprietary at the time of disclosure; and (vi) all other information that you knew, or reasonably should have known, was the Confidential Information of Banyan.
5.2 The Receiving Party understands that the Disclosing Party has disclosed or may disclose Confidential Information. The Receiving Party agrees: (i) to hold all Confidential Information in the strictest of confidence and take all precautions to protect such Confidential Information as the Receiving Party employs with its confidential materials, but in no case less than reasonable precautions; (ii) not disclose Confidential Information or any information derived therefrom to any third-party (except as approved in writing by the Disclosing Party); (iii) only disclose the Confidential Information to the Receiving Party’s employees, contractors or agents who have a bona fide “need to know” basis for the purposes of carrying out their obligations pursuant to the Terms or the Agreement; and (iv) not copy, reverse engineer, decompile or attempt to derive the source code or human readable embodiment of the Confidential Information. Nothing contained in the Terms or the Agreement will be construed

as granting the Receiving Party any license, intellectual property right or other property right in the Disclosing Party’s Confidential Information. Unless such Confidential Information consists of a trade secret or proprietary information related to the Services or the Platform (including but not limited to the underlying software, algorithms and information embodied therein) which will remain confidential indefinitely, the Disclosing Party agrees that the foregoing will not apply with respect to any the Confidential Information disclosed by it five (5) years following the expiration or termination of the Terms or the Agreement or with respect to any Confidential Information that the Receiving Party can demonstrate with competent evidence that such portion of the Confidential Information (a) was in the public domain at the time it was disclosed to the Receiving Party, (b) entered the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party, (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to the Receiving Party; (d) was rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was disclosed to the Receiving Party; (e) was developed by employees or agents of the Receiving Party who had no access to any Confidential Information; or (f) to the extent such is required by Law or a valid order of a court or other governmental body having jurisdiction, provided that, for this section 5.2(f), the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the Law or regulation required, or for which the order was issued.

6. TERM AND TERMINATION
6.1 If you are a Customer, the term of the Terms will commence on the effective date of the Services and continue through the Term as defined in and pursuant to the Agreement unless otherwise terminated in accordance with the Agreement. If you are not a Customer, the term of the Terms will commence on the date that Banyan first makes the Services available to you and will continue until your access is suspended or terminated by Banyan, in its sole discretion.
6.2 The parties’ rights and obligations under Sections 2 (Reservation of Rights), 3 (Payment of Fees), 4 (Restrictions and Responsibilities), 5 (Confidentiality), 7 (Indemnification), 8 (Warranty and Disclaimer), 9 (Limitation of Liability), and 10 (Miscellaneous) shall survive termination or expiration of the Terms.
7. INDEMNIFICATION
7.1 Banyan agrees to indemnify, defend and hold you harmless against any suit, claim, or proceeding brought against it alleging the use of Services infringes any third-party U.S. intellectual property right. The foregoing obligations do not apply to the extent that such claim is based on (i) Services or portions or components thereof (a) not supplied by Banyan, (b) made in whole or in part in accordance to your specifications, or (c) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination; (ii) your use of the Services in a manner other than as expressly authorized by the Terms or the Agreement; (iii) your breach of the Terms or the Agreement; (d) modification of the Services by any party not authorized by Banyan; or (iv) combination of the Services with any other service, product or software not provided or authorized by Banyan. If the Services become, or in Banyan’s reasonable opinion are highly likely to become, the subject of a claim of infringement, Banyan may, at its option (i) replace or modify the Services so that it is non-infringing, or substitute a functionally similar alternative; (ii) obtain the right for you to continue using the Services from the applicable third-party; or (iii) if neither (i) or (ii) are commercially feasible, Banyan may opt to terminate the Terms or the Agreement. The obligations set forth in this Section 7.1 constitute Banyan’s entire liability and your sole remedy for any infringement or misappropriation of third-party intellectual property.
7.2 You hereby agree, at your own expense, to indemnify, defend and hold harmless Banyan against any damage, loss, liability, settlement and expense (including without limitation costs and attorneys’ fees) in connection with any demand, claim, action, suit or proceeding (each a “Claim”) brought against Banyan by a third-party that arises from an allegation involving (i) your breach of the Terms or the Agreement; (ii) your breach or misappropriation of third-party intellectual property or privacy rights; (iii) misuse of the Services; (iv) a violation of any Law, rule or regulation, including without limitation the transfer of personally identifiable information or personal data, the Health Insurance Portability and Accountability Act of 1996, the Children’s Online Privacy Protection Act of 1998, the Gramm-Leach-Bliley Act of 1999, the E.U. Data Protection Directive (EU Directive 95/46/EC), or any state privacy law; or (v) the failure to pay taxes, interest, or penalties for which you are responsible.
7.3 The indemnification obligations provided above are subject to the requirements of this Section 7.3. An indemnified party will: (i) promptly provide written notification to the indemnifying party of the claim, suit or proceeding, however, failure to give prompt notice will only relieve the indemnifying party of its obligations hereunder

to the extent such failure materially and actually prejudices such party; (ii) reserve the right to allow the indemnifying party, at its expense, to direct the defense of such suit, claim or proceeding and (iii) reasonably cooperate, at the indemnifying party’s expense, in the defense of such suit, claim or proceeding. You agree not to settle any matter without the prior written consent of Banyan.

8. WARRANTY AND DISCLAIMER
8.1 BANYAN DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR MEET YOUR REQUIREMENTS (INCLUDING ANY STATUTORY INFORMATION SECURITY REQUIREMENTS SUCH AS THOSE IN HIPAA); NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BANYAN EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.2 YOU ACKNOWLEDGE THAT BANYAN DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BANYAN IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.3 TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS.
8.4 Certain components of the Banyan Platform may be subject to “open source” or “free software” licenses (“Open Source Software”) that may be owned by third parties. The Open Source Software is not subject to the Terms. Nothing in the Terms limits or grants you rights that supersede Banyan’s rights under the terms and conditions of any Open Source Software license. If required by any license for Open Source Software, Banyan shall make such Open Source Software available by written request.
9. LIMITATION OF LIABILITY
9.1 EXCEPT WITH RESPECT TO OBLIGATIONS PURSUANT TO SECTIONS 5 AND 7, BANYAN WILL NOT BE RESPONSIBLE OR LIABLE UNDER ANY CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR ANY LOSS OF BUSINESS, ANY LOSS OF REVENUE OR PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED ONE HUNDRED THOUSAND DOLLARS ($100,000), EVEN IF BANYAN SHOULD HAVE BEEN AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING TYPES OF LOSSES OR DAMAGES. YOU ACKNOWLEDGE THAT AN INTERRUPTION IN SERVICE(S) DUE TO CIRCUMSTANCES BEYOND THE REASONABLE CONTROL OF BANYAN, SUCH AS A FAILURE OF TELECOMMUNICATIONS OR NETWORK SYSTEMS NOT CONTROLLED BY BANYAN, WILL NOT BE CONSIDERED A SERVICE OUTAGE OR SERVICE DEFICIENCY FOR PURPOSES OF ANY REMEDY PROVIDED HEREIN. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS SECTION 9, A PARTY’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
10. MISCELLANEOUS
10.1 Severability. If any provision of the Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms will otherwise remain in full force and effect and in no way affect the validity or enforceability of any other provision.
10.2 Assignment. The Terms and the Agreement bind and inure to the benefit of the parties’ successors and assigns. You may not assign or transfer the Terms or the Agreement without prior written consent of Banyan. Notwithstanding the foregoing, either party may assign the Terms or the Agreement to a successor upon written notice to the other party in connection with a merger, acquisition, reorganization or direct or indirect sale of all or substantially all of the party’s assets or business.
10.3 Entire Agreement. The Terms and the Agreement supersede all previous written and oral agreements, communications, and other understandings relating to its subject matter.
10.4 Independent Contractors; Beneficiaries. No agency, partnership, joint venture, or employment is created among you and Banyan as a result of the Terms or the Agreement. You acknowledge that Banayn is an independent contractor and except if expressly stated otherwise, you nor any of your employees or agents has the power or authority to bind or obligate Banyan in any respect.

10.5 Dispute Resolution. You and Banyan each agree that any and all disputes, claims or controversies arising out of or relating to the Terms will be submitted to JAMS, or its successor, for mediation in San Francisco, California and if the matter is not resolved through mediation, then it will be resolved pursuant the Federal Arbitration Act, 9 U.S.C. § 1-16, to the fullest extent permitted by law, by final, binding and confidential arbitration conducted by JAMS, or its successor, under JAMS’s then applicable rules and procedures appropriate for the relief being sought at a JAMS location in San Francisco, California. You and Banyan each acknowledge that by agreeing to this arbitration procedure, each of you and Banyan waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. This provision shall not be mandatory for any claim or cause of action to the extent applicable law prohibits subjecting such claim or cause of action to mandatory arbitration and such applicable law is not preempted by the Federal Arbitration Act or otherwise invalid (collectively, the “Excluded Claims”). You or Banyan may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. You and Banyan each will cooperate with JAMS and with one another in selecting a mediator from JAMS’ panel and in scheduling the mediation proceedings. You and Banyan covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of you or Banyan or their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either You or Banyan may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or forty-five (45) days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by you and Banyan, the mediator shall be disqualified from serving as arbitrator in the case.

10.6 Attorney’s Fees. If any action at law or in equity (including, mediation or arbitration) is necessary to enforce or interpret the Terms, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
10.7 Titles and Subtitles. The titles and subtitles used in the Terms are used for convenience only and are not to be considered in construing or interpreting the Terms.

10.8 Notices. Unless otherwise provided herein, all notices and other communications given or made pursuant to the Terms will be in writing and will be deemed effectively given upon the earlier of actual receipt, or (a) personal delivery to the party to be notified; (b) when sent, if sent by electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day; (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. All notices to you will sent to the contact information provided on your account or that Banyan has on file with your account, or such contact information as subsequently modified by written notice.

10.9 Governing Law. The Terms shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware.
10.10 Delays or Omissions. Banyan’s failure to insist upon strict performance of any provision of the Terms is not a waiver of any of its rights, powers or remedies. Except if expressly stated otherwise, all remedies under the Terms, at Law or in equity, are cumulative, nonexclusive and not alternative. No delay or omission to exercise any right, power or remedy accruing to Banyan under the Terms, upon any breach or default of any other party under the Terms, will impair any such right, power or remedy of Banyan nor will it be construed to be a waiver, or an acquiescence therein; nor will any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of Banyan of any breach or default under the Terms, or any waiver on the part of Banyan of any provisions or conditions of the Terms, must be in writing and shall be effective only to the extent specifically set forth in such writing.