Last Updated: 09/30/2019
Welcome to MAZ, operated by MAZ Systems Inc. Please read the Terms of Service carefully, as they are a contract between you and MAZ Systems Inc. They apply to your use of our website at mazsystems.com, all corresponding web pages associated with that URL, and/or any features, functionality and services offered by us.
Below is a list of frequently used words and phrases that are used throughout these Terms of Service and their definition. Other words/phrases may be defined within the Terms of Service:
“Applicable Law” means all applicable laws, regulations, orders and ordinances of any applicable jurisdiction, including relating to any performance hereunder, any handling of personally identifiable information and any applicable breach notification obligations imposed by such laws, regulations, orders and ordinances.
“Company Content” means the content (including any artwork, photographs, illustrations, graphics, logos, copy, text, computer code, music, application and other software), data, user interfaces, information, materials, and all legally protectable elements of the Services, including, without limitation, the design, selection, sequence, look and feel, and arrangement of the Services, and any copyrights, trademarks, service marks, trade names, trade dress, patent rights, database rights and/or other intellectual property and/or proprietary rights therein (including any content contained and/or made available in any advertisements or information presented to Customer via the Services) that are owned or licensed by Company (except for such materials that are licensed by Company from Customer, including hereunder). Unless the context clearly requires otherwise or we explicitly set forth in writing, the term “Services” includes “Company Content” as well.
“Company Marks” mean the trademarks and brand identifiers of Company.
“Data” shall mean all data, content, information or material entered by, or transmitted on behalf of, Customer, its Affiliates or any User into the Service.
“Developed Software” shall mean any app, or other software on any specific Platform built using the Services (i.e.: iPhone app or Amazon Alexa Skill).
“End User” shall mean any consumer of any Materials distributed via any Output.
“End User Data” means any data collected by, from or in connection with any End User’s activities or interaction with any Materials, including all PII associated with any End User.
“Fee” shall mean the amount set forth in any applicable Pricing Schedule.
“Malware” shall mean any software that enables or transmits any viruses, code or other routine or function that permits any unauthorized party (including any software routine) to: access, modify (including to destroy or obfuscate), monitor, or interfere with any property, data, software, network, telecommunications system, computer hardware or computer system.
“Marks” mean Customer Marks and Company Marks.
“Materials” shall mean any text, photos, graphics, images, audio/visual content, trademarks, logos, materials, feeds, multimedia, and information uploaded or provided by Customer via the Services.
“Operator” shall mean the third party owner/operator of any Platform (for example, Apple, Google).
“Output” shall mean the channels through which the Materials are distributed via the Company services, in connection with Platforms (including any related Developer Software, site, API, feed or other service), as described in any applicable Services Overview.
“Customer Marks” mean the trademarks and brand identifiers of Customer.
“Customer Materials” means all End User Data, Materials, Materials, Data, Customer Marks and other material that is owned or licensed by Customer (except for any materials or information licensed from Company hereunder).
“Personally Identifiable Information” or “PII” means any and all data and information related to any natural person that can be used on its own or with other information to identify, contact, or locate such natural person.
“Platform” shall mean the third party owned and/or operated point of output, distribution, app store, storefront and/or platform as described in any applicable Services Overview.
“Service” shall mean the services provided by Company to Customer hereunder and as further described in the Services Overview and Pricing Schedule.
“Services Overview” means any schedule setting forth services to be performed by Company hereunder in form similar to the attached Exhibit A.
“Third Party Processor” means any Operator and other third parties not affiliated with Company that may distribute or administer any Developed Software or Output.
“User” shall mean Customer’s employees, agents or contractors who are authorized by Customer to use the Service, for whom Customer has purchased subscriptions to the Service hereunder.
- Modifications. We may modify this Agreement from time to time and at any time in our sole discretion. We will post or display notices of material changes on the Services and/or notify you via email. Once we post or make them available on the Services, these changes become effective immediately and if you use the Services after they become effective it will signify your agreement to be bound by the changes. We recommend that you check back and review this Agreement frequently so you are aware of the most current rights and obligations that apply to you.
- Service; Initial Service Order.
- Purchase Orders. Company will provide the Services set forth in any applicable Services Overview and Pricing Schedule executed by an authorized representative of each of Company and Customer (each a “Service Order” or “SO”). Each SO will be subject to all terms and conditions hereof.
- Delivery. Company shall provide, make available, the Services, as set forth on each applicable SO.
- Term and Termination.
- Term. The term of this Agreement shall commence on the Effective Date and will continue until the end of a subscription term specified in the applicable SO (“Initial Term”). This Agreement will automatically renew for additional twelve (12) month terms at the end of the Initial Term (each, a “Renewal Term”) unless written notice is given to Company at least thirty (30) days prior to the end of the then-current term that it does not intend to renew the Agreement. All cancellation requests must be submitted in writing to [email protected]. Cancellation requests given by phone, physical mail or other means, or sent to any other Company email address or electronic contact will not be honored. The Initial Term together with any Renewal Terms are collectively the “Term”.
- Termination. This Agreement or any SO hereunder may be terminated:
- By Customer: (i) for convenience, with at least thirty (30) days prior written notice to Company, provided that Customer will remain responsible for full payment for the then-current Term; and/or (ii) on thirty (30) days’ notice to Company if Company materially breaches any provision of this Agreement and such breach is not cured within such thirty (30) day period.
- By Company on fifteen (15) days’ notice to Customer if Customer fails to pay properly invoiced and undisputed Fees when due, or upon thirty (30) days’ notice if Customer otherwise materially breaches any provision of this Agreement and Customer does not cure such failure within such thirty (30) day period after receiving such notice from Company;
- On notice by either party, if the other party files a petition of bankruptcy, makes an assignment for the benefit of its creditors, or becomes the subject of proceedings under any law relating to bankruptcy or the relief of debtors and such proceeding is not dismissed or discharged within sixty (60) days after being commenced;
- Consequences of Termination.
- Survival. Upon any termination or expiration of this Agreement, the rights and obligations of the parties shall cease except that Sections 3.3, 4, 6.1, 6.2, 6.3, 10.2, 12, 13, 16, 17, 18 and 19, as well as any other provisions of this Agreement which are intended to operate subsequent to the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement for any reason
- Deactivation. Upon the effective date of termination in accordance with this Agreement, Company will terminate and deactivate Customer’s account.
- Fees and Payment.
- Requirements. Customer shall pay the fees for the Service as set forth on any applicable SO, in accordance with the payment terms set forth herein, via a mutually acceptable payment method. Unless otherwise set forth in any applicable SO, Fees shall paid to Company by Customer upon receipt of any invoice. Prices will not change during the Term, but are subject to increase at the commencement of each additional Term in the sole discretion of Company, provided that no price increase will be valid except on at least thirty (30) days’ notice to Customer.
- Late Payments. If payment of any fees is not made when due, a late fee shall accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection which shall include reasonable attorneys’ fees.
- No Refunds or Credits. Except as specifically set forth herein, on any applicable SLA and/or any applicable PO, all fees and charges paid to Customer in connection with the Services are nonrefundable and Company shall not provide any refunds, reimbursements or credits.
- Taxes. Each of Company and Customer will be responsible for paying any taxes, duties, or fees for which it is legally responsible. If and to the extent any payment hereunder is subject to value-added taxes, goods and services taxes, sales and use taxes or similar taxes, the applicable payee will provide the payor with a valid tax invoice separately stating such taxes.
- Proprietary Rights; License Grant; Representation and Warranties.
- Company Ownership; License. Company owns, solely and exclusively, all right, title and interest in and to the Services, Developed Software (except for Customer Content embedded in or distributed through the Developed Software) and Company Content. Company hereby grants Customer a non-exclusive, non-assignable, non-transferrable (except as otherwise expressly set forth herein) license during the Term to utilize the Services and the Company Content as set forth herein and in any applicable SO, including to distribute and display Materials to End Users through the Platforms and to gather Data (including End User Data) from and through the Platforms, subject to any usage limitations or restrictions set forth in this Agreement, any SO, or any Third Party Terms.
- Customer Ownership; License. Except as subject to any Third Party Terms, Customer owns, solely and exclusively, all right, title and interest in and to the Customer Materials. Company shall only use Customer Marks as a part of the Developed Software and Outputs or with Customer’s prior written approval in each instance. Notwithstanding the foregoing, Customer hereby grants Company a license to use and reproduce the Customer Materials, solely during the term of this Agreement and solely in connection with the Service, including to embed the Customers Materials in and distribute the Customer Materials through the Developed Software or Services. Further, Customer hereby grants Company a perpetual, irrevocable, worldwide, fully-paid license to exploit, for any legal purpose, any Data collected by Company that does not contain or constitute any Confidential Information of Customer (“Anonymized Information”).
- Mutual Representations and Covenants. Each party hereby represents, warrants and covenants that: (i) it shall comply with all Applicable Law (as otherwise qualified herein), and shall satisfy all obligations owed to third parties and/or any governmental authority, in connection with the performance of its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; and (iii) it has full power and authority, and all other rights, licenses and authorizations required, to execute and deliver this Agreement, to perform its obligations set forth herein, and to grant all rights and licenses granted herein.
- Company Representations, Warranties and Covenants. Company hereby represents, warrants and covenants that, except as expressly set forth herein it will not alter, delete or conceal any Customer Marks in any Customer Materials or submitted by Customer for inclusion in the Services. Company assumes no responsibility for monitoring the Services for inappropriate content or conduct. Company shall promptly report to Customer any actual, alleged or suspected breach of this Section 6.5 to Customer.
- Customer Representations and Covenants. Customer hereby represents, warrants and covenants that, except as expressly set forth herein: (a) it will not, directly or indirectly, frame, scrape, crawl, spider or use other automated means to access, copy, index, process and/or store any Company Material; (b) it will materially comply with all exclusionary protocols (e.g., Robot.txt, Automated Content Access Protocol (ACAP), etc.) in the performance of its obligations hereunder; (c) it will not alter, delete or conceal any Company Marks in any Company Materials included in the Developed Software; (d) the Customer Materials do not and will not contain any Malware or violate the rights of any third parties; (e) it will not intentionally modify, disrupt, impair, alter or interfere with the use, features, function, operation or maintenance of the Services or the rights or use or enjoyment of the Services by any other user; (f) it will not impersonate any person or entity or falsely state or otherwise represent affiliation with any person or entity in connection with the Service; (g) it will not forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted on, through or in connection with the Services; (h) it will not solicit passwords or personal identifying information for unlawful purposes from End Users or engage in spamming in violation of applicable law; (i) it will not, directly or indirectly, 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 or any software, documentation or data related to the Services or encourage, assist or authorize any other person to do so; (j) it will not, directly or indirectly, modify, translate, or create derivative works based on the Services or use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (k) it will use this Services solely in accordance with this Agreement and all applicable laws and regulations. Customer will report to Company any actual, alleged or suspected breach of this Section 6.6 to Company within a commercially reasonable amount of time of discovery thereof.
- User Registration. In order to access and use the Services, Customer must register a unique username and password combination (“User Credentials”) and provide certain additional information, including, but not limited to, contact information and applicable payment information (collectively, a “User Account”). Customer represents that all information submitted in connection with the User Account is truthful and accurate and Customer is responsible for maintaining and updating the accuracy of such information. Customer is responsible for maintaining the confidentiality of its User Credentials. Company will offer Customer all reasonably requested assistance in connection with the creation of User Credentials for each User. Customer will promptly notify Company of any actual or suspected breach of security or unauthorized use of its User Credentials or User Account and shall remain liable for any such breach or unauthorized use.
- End User Agreements. EULAs. Customer shall be solely responsible for all terms of service, privacy policies and other documentation offered as binding terms or conditions of use of any Developed Software to any End User (together as the “EULAs”) and ensuring that such EULAs comply with all applicable laws. Except as otherwise expressly set forth herein and in any applicable EULA, Company shall have no obligation or responsibility for the subject matter of the EULAs, which will be binding between Customer and End Users.
- Developed Software.
- Submission to Operators; Agent Designation. All Developed Software submitted through the Services will be subject to review and approval by the applicable Operator prior to being made available for distribution and/or sale. Company will act as agent of Customer to submit Developed Software to applicable Operators.
- Rejection. Company will notify Customer promptly if any Developed Software is rejected by an Operator and Company will provide Customer with relevant information (if any) received regarding the reason(s) for rejection as provided by the Operator. Company will promptly make any and all necessary modifications to address any technical or other rejection based solely on the fault of Company and then promptly resubmit the Developed Software. If the reason for rejection is due to any Customer Materials or Customer’s configuration of the Services, Customer and Company will cooperate make any modifications to Customer Materials for the purposes of obtaining Operator approval and Company will resubmit the Developed Software to any applicable Operator. If a Developed Software is rejected again upon re-submission Company and Customer will cooperate to determine how to best proceed.
- No Guarantee. Customer acknowledges that the Operator review and approval process is outside the control of the Company and Company make no representations, warranties or guarantees regarding (a) the applicable review, approval or response times; the design, development or functional parameters; or any other requirements or criteria required by Operators in connection with the review and approval process; (b) that any Developed Software will be approved or made available by any Operator on any Platform; or (c) that any Developed Software previously approved will not be subsequently disapproved, rejected and/or otherwise removed from the applicable Platform.
- Updates. From time to time, Company may make updates, and/or add additional functionality available in connection with the Services (each an “Update”). Certain functions of the Developed Software may be modified as a result of such Updates and may not be available to End Users unless such End Users downloaded the required Updates. Company reserves the right to update, supplement, modify any or all functionality contained within the Services, including any Developed Software, at any time without notice provided that no such modification materially diminishes the functionality of any Developed Software. Any such modification that materially diminishes the functionality of any Developed Software shall require the prior approval of Customer, which such approval will not be unreasonably withheld.
- Platform Parity. While MAZ tries to maintain parity where desirable and/or feasible, there are intrinsic differences between platforms (such as Roku and AppleTV), both in capabilities and user interface design guidelines provided by platform Operators. In that, there may be differences and/or limitations of technical capabilities in all the Developed Software between different platforms.
- Company Branding. Company may, upon the approval of Customer, which approval shall not be unreasonably withheld, include within each Developed Software “Powered by MAZ” branding on the launch screen.
- Developed Software and Software Content Sales
- Obligations to Subscribers. If Customer offers a paid subscription to End Users, Customer will be responsible for such subscriptions, including but not limited to any related warranties, deliverables, liabilities, or payment terms and Company shall have no responsibility for such subscriptions.
- Third Party Disclaimers. The distribution, administration, reporting, accounting, availability and sales of any Developed Software or distribution of Materials via the Services, may be controlled, handled, processed and fulfilled by Third Party Processors. Accordingly, certain obligations regarding such distribution, administration, reporting, accounting, availability and sales functions may be governed by Third Party Terms entered into between Customer and such Third Party Processors. Accordingly, except as otherwise expressly set forth herein, Company makes no warranty or guarantee, and accepts no responsibility or liability for the subject matter of any such Third Party Terms or the actions or omissions of any Third Party Processors. Pursuant to the foregoing, Company provides tools and services that allow Customer to export Materials to Operators including, but not limited to Facebook, Twitter, LinkedIn, YouTube, and Slack by linking Customer’s User Account to Customer’s third party accounts with all applicable Operators. By linking Customer’s account to any of these Operators, Customer provides consent to Company to transfer Materials to those Operators subject to the terms and conditions of this Agreement and applicable Third Party Terms. If Customer elects to offer for sale any Developed Software and/or any content within any Developed Software, or place any dynamic video, display or other types of advertisements in the Developed Software or through any other Output, the revenue generated by the foregoing will be subject to the applicable terms and conditions of the Operator.
- Digital Millennium Copyright Act. Customer and Company will both materially comply with the requirements of the Digital Millennium Copyright Act (“DMCA”) and hereby represent and warrant that each has registered “Designated Agent” as with the US Copyright Office as defined thereby. Each of Company and Customer will (i) promptly notify the other party of any DMCA notices (a) directed to the Designated Agent of the other Party or (b) pertaining to the Materials (including Developed Software, as applicable) of the other party, or any other materials owned or licensed by the other party, that it receives; and (ii) cooperate with the reasonable requests of the other party in connection with DMCA compliance and enforcement of such party’s DMCA policy
- By Customer. Customer will indemnify, defend and hold Company, and its affiliates, its and their directors, officers, owners, employees and licensors, and the successors and assigns of each of the foregoing, harmless from any and all claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of any third party claim resulting from: (a) Customer’s material breach of this Agreement; (b) Customer’s obligations as an employer of its employees (including, without limitation, applicable salary, benefits, compliance with applicable labor and employment laws, federal, state, or local income tax, FICA, FUTA or SUI) and any claim that Company is or should be the employer or ’joint employer’ of any Customer personnel; (c) Customer’s willful misconduct or gross negligence; (d) claims that any Customer Materials or use of the Services or Data violate any applicable law or infringe the rights of any third party, including any patent, copyright, trademark, trade secret or other intellectual property or other proprietary right; and (e) Customer’s breach of any Third Party Terms or Customer’s other obligations to any Operators, End Users, or other third parties.
- Infringement Indemnity and Remedy. Company shall indemnify, defend and hold Customer and its affiliates, its and their members, owners, directors, officers, employees and other personnel, and licensors, and the successors and assigns of each of the foregoing, harmless from any and all Losses arising out of any third party claim that the Services, the Company Content, the Developed Software including any updates thereto (excluding Customer Materials) violate any applicable law or infringe the rights of any third party, including any patent, copyright, trademark, trade secret or other intellectual property or other proprietary right. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, including, but not limited to, Customer’s configurations of the Services or Developed Software or incorporation of Customer Materials, (iii) combined with other products, processes or materials where the alleged infringement relates to such combination and were such combination was not performed at Company’s direction, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services, Company Content, or Developed Software are not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services, Company Content, or Developed Software are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services, Company Content, or Developed Software 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, Company Content, or Developed Software, 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.
- Procedure. Each party’s respective indemnification obligations hereunder are conditioned upon the party seeking indemnification: (1) promptly giving written notice of the claim to the indemnifying party; (2) giving the indemnifying party sole control of the defense and settlement of the claim (provided that the indemnifying party may not settle or defend any claim unless it unconditionally releases the indemnified party of all liability); and (3) providing to indemnifying party all available information and reasonable assistance upon request.
- Limitation of Liability; Disclaimer of Warranties.
- EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE AND ALL OTHER DATA AND MATERIALS PROVIDED TO CUSTOMER BY COMPANY PURSUANT TO THIS AGREEMENT, INCLUDING IN CONNECTION WITH ANY PLATFORM, OPERATOR OR THIRD PARTY PROCESSORS, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND AND COMPANY MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, OR THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, SECURE, OR VIRUS-FREE. PROVIDER MAKES NO REPRESENTATION OR WARRANTIES OF ANY KIND WITH RESPECT TO THE THIRD PARTY COMPONENTS OF THE APPLICATIONS OR SERVICES. TO THE EXTENT PROVIDER MAY NOT AS A MATTER OF LAW DISCLAIM ANY WARRANTY, THE PARTIES AGREE THAT THE SCOPE AND DURATION OF ANY SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
- Without limiting the foregoing, Company shall not be responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of Customer’s use of the Services.
- Consequential Damages. EXCEPT FOR A PARTY’S (i) INDEMNITY OBLIGATIONS; AND (ii) VIOLATIONS OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS INCLUDING WITH RESPECT TO ANY USAGE RESTRICTIONS SET FORTH HEREIN; NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY HERETO FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES THAT RESULT FROM INTERRUPTED COMMUNICATIONS, LOST DATA, OR LOST PROFITS, OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE APPLICATIONS OR SERVICE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
- Limitation of Liability. Except with respect to a party’s indemnity obligations or violations of the other’s party’s intellectual property rights, including with respect to any usage restrictions set forth herein, , each party’s total aggregate liability to the other party shall not exceed the amounts paid or payable by Customer to Company during the twelve (12) month period preceding the event giving rise to an applicable claim.
- Beneficiaries; Assignment. This Agreement shall be binding on and shall inure to the benefit of the parties and their permitted successors and/or assigns. This Agreement may not be assigned by either party, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all SOs), upon written notice but without consent of the other party, in connection with a (i) merger, acquisition, corporate reorganization resulting in a change of voting control, or (ii) sale of all or substantially all of its assets not involving a direct competitor of the other party. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect. Except as otherwise expressly set forth herein, this Agreement is for the sole benefit of Company, Customer and their successors and permitted assigns, and it will not be construed as conferring any rights to any third party (including any third party beneficiary rights). Without limiting the foregoing, Customer’s successors and/or assigns, whether by merger, operation of law, acquisition of assets or otherwise, shall continue to perform Customer’s obligations under this Agreement and Customer shall remain liable to Company for Customer’s successors’ and/or assigns’ performance hereunder.
- Force Majeure. Each party shall be excused from performance hereunder to the extent such performance is prevented by circumstances beyond the reasonable control of such party, including an act of war or terrorism, failure of electricity supply, systems or connections, service interruptions, natural disaster, acts of God, third party service provider failure or delay in performance, civil commotion, governmental action, but excluding general economic downturn; provided that the affected party take reasonable steps to prevent or mitigate such circumstances and to promptly resume performance hereunder.
- Notices. Any notice required or permitted hereunder shall be in writing and shall be addressed to the following or such other address/person as a party designates by written notice hereunder: If to Company:
MAZ Systems Inc.
127 W 26th St.
New York, NY 10001
Email: [email protected]
Notice shall be deemed to have been given: (i) upon personal delivery; (ii) on the seventh business day after t by certified mail provided the sender obtains a delivery receipt; (iii) upon delivery if sent by overnight carrier with confirmed receipt; and (iv) the day after sender has received ‘read-receipt’ confirmation of notice sent by email.
- Governing Law; Jurisdiction and Venue; Equitable Remedies.
- New York. This Agreement shall be governed by, and construed and interpreted in accordance with, the internal laws of the State of New York in the United States of America, as if fully performed in the State of New York and without reference to the principles of conflicts of laws. Any action or proceeding based upon this Agreement shall be instituted in a federal or state court of competent jurisdiction in the State and County of New York. The parties hereby submit to the exclusive jurisdiction of such courts and waive any objection to the propriety or convenience of venue therein. Service of process with respect to any such action may be made upon the parties hereto by registered or certified mail, postage prepaid, to such party or the attorney for such party at its address as provided in Section 16.
- Equitable Remedies. Each party acknowledges that the other party may suffer great and irreparable harm as a result of the breach of any covenant or agreement to be performed or observed by the other Party hereto pertaining to confidentiality and/or intellectual property ownership, that monetary damages may be inadequate to compensate the non-breaching party for such breach and, whether such breach occurs before or after the termination of this Agreement, the parties acknowledge that the non-breaching party will have the right to enforce the provisions of this Agreement by seeking injunctive or other equitable remedies from any court or other tribunal of competent jurisdiction for any such breach, whether actual or threatened, without any necessity of proving damages or any requirement for the posting of a bond or other security. Such remedy shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or equity to the non-breaching party, pursuant to this Agreement or otherwise, including seeking compensation for any damages that result from such breach, subject to any express exclusions or limitations in this Agreement to the contrary.
- Confidentiality. “Confidential Information” means all non-public information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood by the Receiving Party to be confidential given the nature of the information and the circumstances of disclosure, including the existence and the terms and conditions of this Agreement (including pricing and other terms reflected in any PO), non-public Customer Materials, Data (except for Anonymized Information), End User Data, PII, business and marketing plans, technology, software, source code and technical information, product designs, tools, templates, processes, methodologies, know-how, business and analytical processes, and pricing models. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party on a non-confidential basis prior to its disclosure by the Disclosing Party; (iii) was independently developed by the Receiving Party without use of, knowledge of, or reliance upon the Confidential Information as demonstrated by written documentation; or (iv) is received from a third party on a non-confidential basis without breach of any obligation owed to the Disclosing Party. The foregoing exceptions shall not apply to PII to the extent required by applicable law. The burden of proving these exceptions to the confidentiality and use provisions of this Agreement resides with the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. The Receiving Party shall protect the Disclosing Party’s Confidential Information with the same degree of care it uses to protect its own information of a confidential nature which in no event shall be less than a reasonable degree of care. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party contests the disclosure. Receiving Party will promptly report any suspected, actual or alleged breaches of this provision to Disclosing Party and cooperate with Disclosing Party in its efforts to mitigate the damage of such suspected, actual or alleged breach. Upon any termination or expiration of this Agreement, or upon the Disclosing Party’s request at any time, the Receiving Party shall return, or at the Disclosing Party’s option, destroy, all of the Disclosing Party’s Confidential Information under its possession or control and shall promptly certify such return or destruction in writing.
- Complete Agreement; Amendment; Waivers. This Agreement, including all attachments hereto such as any applicable POs, contains the entire understanding and agreement between Customer and Company concerning the subject matter hereof any and all prior agreements, representations, and statement with respect to such subject matter are superseded hereby. To the extent any term or provision of any SO is inconsistent with any term or provision in this Agreement, the terms and provisions of the applicable SO shall control, but only for the purposes thereof. This Agreement may be changed only by written agreement duly executed by an authorized representative of by both Customer and Company. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition, but shall apply solely to the instance to which such waiver is directed. No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise of any right, power or privilege. No waiver hereunder shall be binding unless executed in writing by a duly authorized representative of the party to be bound thereby. Except as otherwise expressly set forth herein, all remedies, rights, undertakings, obligations and agreements contained in this Agreement will be cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of any other remedy, right, undertaking, obligation, or agreement of either party. This Agreement will not be modified other than in a writing duly executed by each of the parties. No writing to be executed by any party hereto will be effective unless duly executed by a duly authorized representative of such party.
- Independent Parties. Except as expressly set forth herein or as otherwise expressly authorized by a party hereto, nothing in this Agreement shall be construed as a grant of authority to either party to accept any order, waive any right, incur any obligation or liability, enter into any agreement, grant any release or otherwise purport to act in the name of the other party. Company shall perform the Service as an independent contractor, and nothing contained in this Agreement shall be construed to create or imply a partnership, principal-agent or employment relationship between the parties except as expressly set forth herein. Except as expressly set forth herein: neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and neither party shall have power or authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on the other party’s behalf or in its name, nor shall such party represent to any one that it has such power or authority.
- Interpretation and Construction. The captions, section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The construction of this Agreement shall not take into consideration the party who drafted or whose representative drafted any portion of this Agreement, and no canon of construction shall be applied that resolves ambiguities against the drafter of a document. Each party has had the opportunity to have its legal counsel review this Agreement and has done so to the extent desired. Whenever the context so requires, each pronoun or verb used herein shall be construed in the singular or the plural sense and each capitalized term defined herein and each pronoun used herein shall be construed in the masculine, feminine or neuter sense. References to Sections and Exhibits are to Sections and Exhibits of this Agreement unless otherwise specified. Whenever the words “include”, “includes” or “including” are used, they are deemed to be followed by the words “without limitation.” When the word “or” is used, the phrase “and/or” shall be deemed to be used. The words “herein,” “hereof” and other words of similar import refer to this Agreement as a whole and not to any particular section, subsection, paragraph, clause, or other subdivision. The word “or” is not exclusive. The symbol “$”, and all references to cash amounts, refer to United States dollars.
- Severability. Should any provision of this Agreement be held to be void and invalid, unenforceable, or illegal by a court, the validity and enforceability of the other provisions will not be affected. To the greatest extent possible, any invalid provision shall be automatically deemed modified to the least extent necessary to render it a valid provision which most closely approximates the intent effect of the invalid provision and, together with all other provisions of this Agreement, shall continue in full force and effect.
- Counterparts. This Agreement may be executed in any number of counterparts (including by electronic signature), each of which will be deemed to be an original, but which taken together will be deemed to be one and the same instrument. Executed copies of the signature pages of this Agreement transmitted electronically in PDF format shall be treated as originals, fully-binding and with full legal force and effect, and the parties waive any rights they may have to object to such treatment.