Last Revised April 1, 2021

 

MASTER SERVICE AGREEMENT

YOU AGREE TO BE BOUND BY THIS AGREEMENT UPON THE EARLIER OF: (A) YOUR CLICKING OF THE “ACCEPT” OR “AGREE” INDICATOR ACCOMPANYING THIS AGREEMENT; AND (B) YOUR RECEIPT OF, USE OF OR PAYMENT FOR ANY PRODUCTS OR SERVICES PROVIDED BY US.  THIS AGREEMENT IS WITH YOU, AN INDIVIDUAL, IF YOU ARE A SOLE PROPRIETOR OR ACTING IN YOUR INDIVIDUAL CAPACITY.  THIS AGREEMENT IS WITH AN ENTITY IF YOU ARE AN EMPLOYEE OR AGENT OF SUCH ENTITY, IN WHICH CASE, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT.

TABLE OF CONTENTS

  1. Background
  2. Definitions
  3. Statements of Work; Purchase Orders
  4. Clearance of Client Content
  5. Offerings in General
  6. Web Offerings
  7. Intellectual Property and Licenses
  8. Confidentiality
  9. Payment
  10. Risk Assumption, Representations and Warranties
  11. Limitation of Liability
  12. Indemnification
  13. Term and Termination
  14. Miscellaneous

 

ARTICLE 1 – BACKGROUND

1.1     Parties.  This Master Service Agreement (“Agreement”), effective as of the Effective Date (defined below) is entered into by and between 19 Ideas, INC., a New York corporation having a place of business at 32C Essex Street, Buffalo, New York 14213 (“Provider”) and the party identified in the applicable Statement of Work (defined below) or who has otherwise agreed to enter into this Agreement as set forth above (“Client”).  Client and Provider may be referred to in this Agreement collectively as “Parties” and separately as a “Party.”

1.2     Provider’s Offerings.  Provider is engaged in the business of performing marketing consultation services, including, among other offerings, services in the areas of marketing, public relations, design, website and software development, website hosting and website maintenance.

1.3     Client’s Objective.  Client desires to receive from Provider, the products and services specified in the applicable Statement of Work.

NOW THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

ARTICLE 2 – DEFINITIONS

As used in this Agreement, the following terms will have the following meanings while other terms are defined parenthetically throughout this Agreement:

“Accepted Works” will have the meaning provided for such term in Section 5.4.1. 

“Business Conduct Laws” means all applicable international, foreign, national, federal, state, local and municipal statutes, laws and orders (including all ordinances, rules and regulations promulgated thereunder) involving or relating to: (a) advertising, direct marketing, truth‑in‑advertising, false advertising, deceptive acts and practices, misleading consumers, false or misleading statements, deceptive and unfair conduct, deceptive marketing practices or fraud; (b) trademark infringement, unfair competition, trade defamation or misappropriation of business trade secrets; (c) data privacy, consumer privacy, workplace privacy, child privacy protection, consumer rights, consumer protection, protection of individuals with disabilities, personal information, personally identifiable information, organization-identifiable information, health information, financial information, consumer information, employment information, education information or student records; or (d) online activity, data security or data protection.

“Business Hours” means 9:00 AM to 5:30 PM Eastern Time, Monday through Friday, twelve (12) months per year, excluding federal holidays of the United States and excluding the day following the United States’ Thanksgiving holiday.

“Client Agent” will have the meaning provided for such term in Section 7.5.5. 

“Client Content” means all works of authorship (whether or not copyrightable), trademarks, service marks, logos, names, Internet domain names, symbols, designs, materials, content, statements (including advertising puffery and claims), information and data provided by Client to Provider in connection with this Agreement.

“Client Requirements” will have the meaning provided for such term in Section 3.1. 

“Confidential Information” means each Party’s confidential or proprietary information, including trade secrets as well as technical, business and financial information, except any portion thereof that: (a) is within or falls within the public domain through no act or omission of the receiving Party; (b) was possessed by the receiving Party before receipt from the disclosing Party, as evidenced by documentation existing prior to such receipt from the disclosing Party; (c) is disclosed to the receiving Party by a third party who has a legal right to make such disclosure; or (d) is required to be disclosed by governmental regulation or court order, provided that the receiving Party will provide the disclosing Party with sufficient advance notice to allow the disclosing Party to seek a protective order or to contest any such court order.

“Developed Marks” will have the meaning provided for such term in Section 7.1.

“Documentation” means all information provided, directly or indirectly, by Provider or any Subcontractor to Client or any Web User that describes technical or functional aspects of any Offerings, including any user manuals, guides, release notes, technical manuals, specifications, use policies, license terms, help interfaces, support databases, readme files and other documentation.

“Domain Name” means the internet domain name of each Website.

“Effective Date” means the earlier of the following: (a) the date Client has clicked or activated any checkbox, selector or consent indicator that indicates Client’s acceptance of, consent to or agreement to this Agreement; (b) the date Client signs any SOW that refers to this Agreement; (c) the date Client provides its written approval of any SOW that refers to this Agreement, which approval may be in the form of an email, text message, or direct message sent through a web portal or other electronic communication platform; and (d) the date Client has received, used or paid for any Offerings.

“End-Use” means Client’s use of the Offerings for Client’s business purpose in accordance with applicable laws, as described in the applicable SOW.

“End-Use License” will have the meaning provided for such term in Section 7.5.3. 

“Extended Website Support Offerings” will have the meaning provided for such term in Section 6.9.

“Force Majeure Event” will have the meaning provided for such term in Section 14.3. 

“Host Subcontractor” means any third party engaged or commissioned by Provider to host the Website in the Hosting Environment owned or controlled by such third party.

“Hosting Environment” means the combination of software and hardware (including one or more servers) operated by any Host Subcontractor for the functionality of any Website.

“Hosting Offering” will have the meaning provided for such term in Section 6.3.

“Nonrecurring Fees” will have the meaning provided for such term in Section 9.1.

“Offerings” means: (a) all Accepted Works; and (b) all services performed by Provider to Client in connection with this Agreement, which may include, among other types of services, marketing services, public relations services, design services, website development services, software development services, website hosting services, website maintenance services, extended website support services or a combination thereof.

“Procurement Notice” will have the meaning provided for such term in Section 7.3.2. 

“Proposed SOW” will have the meaning provided for such term in Section 3.1. 

“Provider Property” will have the meaning provided for such term in Section 7.2. 

“Provider Site” means the website located at www.19ideas.com.

“SOW Date” will have the meaning provided for such term in Section 3.1. 

“SOW Period” will have the meaning provided for such term in Section 13.2.

“Statement of Work” or “SOW” means any document prepared and provided by Provider to Client (including a statement of work, quote, order confirmation, invoice or other document) that: (a) has been accepted (or deemed accepted) in accordance with Section 3.1; and (b) specifies: (i) the particular Offerings ordered by Client or otherwise offered by Provider to Client; and (ii) any terms and conditions applicable to such Offerings beyond the provisions in the Articles of this Agreement, including Client Requirements as well as pricing and payment terms.

“Subcontractor Materials” means materials within the Accepted Works that are subject to the rights of any Subcontractor, including any stock photography and stock illustrations.

“Subcontractor Terms” will have the meaning provided for such term in Section 7.3.1.

“Subcontractors” will have the meaning provided for such term in Section 3.3.

“Suggestions” means any and all information, works of authorship and concepts provided by Client or any Client Agent to Provider or any Subcontractor for purposes of feedback or suggestions related to troubleshooting, enhancing or improving any Tool or the design or structure of any Website.

“Tools” means the following items created or used by Provider or any Subcontractor to perform or produce any Offering: (a) design tools, methods, techniques, workflows, inventions (whether or not patentable), utilities, software, hardware and equipment, including source code, web authoring tools, type fonts, application tools; (b) templates, layouts, formats, architecture, navigational elements, functional elements, website themes, website design, screen structures and menu configurations; and (c) non-copyrightable elements, materials and concepts.

“Updates” means any and all patches, bug fixes, updates, upgrades, plugin changes, widget changes, and enhancements of any Website that Provider or any Subcontractor decides, in its sole discretion, to make available to Client.

“Web Data” means all data and content input by a Web User through any Website that is received by, stored by or processed by the Hosting Environment, including any personal information and personally identifiable information included within such data and content.

“Website” means the website software and webpages of a website, including: (a) any Accepted Works created for such website; and (b) any website software in the Hosting Environment that is operable for any Hosting Offering for such website.

“Web Terms” will have the meaning provided for such term in Section 6.13. 

“Web User” means any entity or person who visits or uses any Website, including Client’s actual and prospective customers.

“Working Files” means, other than the specific format of the applicable Accepted Work provided by Provider to Client, all Works created or used by Provider to ideate, explore, design or create such format of the Accepted Work, including the following: (a) all concepts, sketches, visual presentations and other alternate or preliminary designs and documents which Provider may or may not have provided to Client for consideration of such format of the Accepted Work; (b) all Work drafts, versions and alternatives that relate to, but do not constitute, such format of the Accepted Work; and (c) all digital files, data files and source files usable to generate or edit such format of the Accepted Work.

“Works” means: (a) all works of authorship (whether or not copyrightable), inventions (whether or not patentable), concepts, data, trademarks, service marks, logos, designs, materials, content, artwork, photographs (still and moving), images, videos, recordings (audio, visual and audiovisual), live streamed imagery, footage, films, motion pictures, media, and all other works, visual elements, graphic design, illustration, photography, animation, motion design, sounds, typographic treatments, fonts and text (in any and all electronic and non-electronic forms and all other mediums of expression) that Provider or any Subcontractor conceives, ideates, authors, creates, compiles, reduces to practice, takes, makes, generates, records or otherwise captures in connection with this Agreement; (b) Provider’s and Subcontractors’ modifications and variations of Client Content; and (c) Provider’s and Subcontractors’ selection, arrangement and coordination of any of the foregoing items in conjunction with Client Content or Subcontractor Materials.

 

ARTICLE 3 – STATEMENTS OF WORK; PURCHASE ORDERS

3.1     SOWs; Client Requirements.  From time to time, the Parties may confer regarding an SOW, including any specifications or instructions that describe Client’s requirements (collectively, “Client Requirements”).  Based on such conferring, Provider may provide Client with a proposed version of such SOW (“Proposed SOW”).  Client will be deemed to have accepted the Proposed SOW upon the earlier of the following: (a) Client’s signing of the Proposed SOW; (b) Client’s written approval of the Proposed SOW, which may be in the form of an email, text message, or direct message sent through a web portal or other electronic communication platform; (c) Client’s providing of a purchase order to Provider for the Offerings specified in the Proposed SOW; (d) Client’s payment for such Offerings; and (e) Client’s receipt or use of such Offerings.  Upon the date that each Proposed SOW is accepted (or deemed accepted) by Client under this Section (“SOW Date”), such Proposed SOW will be deemed an SOW that is binding on the Parties and automatically incorporated into this Agreement.

3.2     Purchase Orders.  From time to time, Client may provide Provider with a purchase order for Offerings specified in the applicable SOW.  No SOW will include or be modified by the terms of any document provided by Client, including any purchase order, counteroffer or other document.  If Client provides Provider with any document (including a purchase order) that conflicts with the terms of this Agreement (including the applicable SOW) or provides Provider with obligations not expressly set forth in this Agreement (or the applicable SOW), such document will be automatically rejected and nonbinding on Provider.

3.3     Subcontractors.  Client hereby authorizes Provider to delegate its obligations under this Agreement to, and procure works, materials or content from, Provider’s contractors, Host Subcontractors and other subcontractors, vendors, content suppliers and licensors (collectively, “Subcontractors”).

 

ARTICLE 4 – CLEARANCE OF CLIENT CONTENT

4.1     General.  Client may provide Provider with Client Content for use in connection with Offerings.  Pursuant to the applicable SOW, Client may require Provider to incorporate Client Content into certain Offerings.  Client will have sole responsibility for the use, accuracy, quality, integrity, legality, reliability and appropriateness of all Client Content.  If any third party has any right, title or interest in any Client Content, Client will not disclose or provide such Client Content to Provider unless Client has first obtained a written agreement by such third party that authorizes Client to: (a) use such Client Content for the End-Use; and (b) permit Provider and Subcontractors to use such Client Content for purposes of this Agreement.  Client will provide Provider with a copy of such agreement at Provider’s request.  Without limiting the foregoing, such agreement will include any and all necessary licenses, consents, permissions, waivers and releases for the End-Use of the Client Content and each element thereof, including all trademarks, logos, names and likenesses contained therein, without any obligation by Provider or any Subcontractor to pay any fees, residuals, guild payments or other compensation of any kind to any person or entity.

4.2     Personal Images.  Client will not include any image, illustration, photograph or video of any person (“Personal Image”) in any Client Content without first obtaining from such person or his/her licensee or assignee, the written consent to: (a) reproduce, publish and use the Personal Image for the End-Use; (b) publish and publicly disclose the Personal Image and, if the person’s name is included in the Client Content, the name of such person; and (c) exercise the person’s rights of publicity, privacy rights, trademark rights, copyrights and other rights, to use, copy, reproduce, prepare derivative works of, modify, enhance, perform, display, publish and distribute the Personal Image and such personal name (or portion thereof), personal likenesses, personal images, voice, variations thereof and combinations thereof in any and all forms and mediums for purposes of the End-Use.

 

ARTICLE 5 – OFFERINGS IN GENERAL

5.1     Provision of Offerings.  Provider will professionally provide or otherwise perform the Offerings specified in each SOW.  Provider will use commercially reasonable efforts to conform such Offerings to the Client Requirements and any other specifications provided in such SOW in accordance with applicable industry standards.

 5.2     Client’s Responsiveness and Cooperation.  Throughout the term of this Agreement, Client will: (a) cooperate with Provider in Provider’s efforts to perform and provide the Offerings; (b) promptly respond to Provider’s requests and communications relating to information, decisions or feedback requested from Client; and (c) act professionally and in accordance with applicable laws.  Client acknowledges that Provider’s ability to provide the Offerings depends on Client’s cooperation, responsiveness and fulfillment of Client’s obligations provided in this Agreement.  Provider will not be liable for the delay or suspension of any Offerings caused, in whole or in part, by Client’s failure to fulfill Client’s obligations provided in this Agreement.  In the event of such failure, Client hereby waives any right to assert that Provider’s performance was not timely.

5.3     Client Responsibilities.  Client will perform the obligations set forth below in this Section in a professional and timely manner.

5.3.1  To the extent any Offerings depend on a decision from any Client Agent or other third party affiliated with Client, Client will promptly coordinate the decision-making with such third party.

5.3.2  To the extent the applicable SOW requires Provider to incorporate any Client Content into any Offerings, Client will provide such Client Content to Provider in a form suitable for reproduction or incorporation into the Offerings without further preparation, unless otherwise expressly provided in such SOW.

5.3.3  Client will promptly respond to Provider’s requests for materials, approvals, comments, and feedback, adhering to all established deadlines and schedules as may be specified in the applicable SOW.

5.3.4  Client will ensure that all information, advertising puffery and claims within Client Content are accurate, in compliance with applicable laws and conform to applicable standards in Client’s industry.

5.4     Proofing and Acceptance.

5.4.1  Accepted Work.  With respect to each Work created by Provider pursuant to the applicable SOW, Client will proofread the final version of such Work and will promptly provide Provider with Client’s written acceptance of such version or written rejection.  Any written rejection by Client will specify, in detail, the ways in which such version fails to comply with such SOW.  If Client does not provide Provider with such written rejection within five (5) business days after receiving such final version, Client will be deemed to have accepted such version as final and approved.  After Client has accepted (or is deemed to have accepted) the final version of any Work under this Section in the specific format provided by Provider to Client (each, an “Accepted Work”), Client may request a change of the Accepted Work, including the correction of typographic errors, misspellings or formatting defects.  Provider will perform such change; provided, however, that Client will pay Provider a fee for such change in addition to the fees set forth in such SOW.

5.4.2  Working Files.  Client acknowledges that no Accepted Work will include the Working Files related to such Accepted Work.  For avoidance of doubt, the definition of Accepted Work in Section 5.4.1 will exclude all Working Files.  Client will have no right to receive or retain any Working Files created or provided by Provider in connection with any Accepted Work.  If Client receives any Working Files related to any Accepted Work, Client will destroy or return such Working Files to Provider upon the acceptance of such Accepted Work under Section 5.4.1.

5.5     Applicable Laws Related to Offerings.  Client acknowledges that applicable laws may apply to or restrict the use of Offerings online, in the public domain, in advertising communication or in other contexts, including the Business Conduct Laws.  Client will not use, or permit the use of, any Offerings by any means that may: (a) constitute an infringement of intellectual property or other proprietary rights; (b) violate the rights of any entity or person; (c) otherwise violate any Business Conduct Laws or any other applicable laws.  Client will be solely responsible for obtaining advice from competent legal counsel for the use of the Offerings in accordance with applicable laws.  Client will comply with applicable laws related to Client’s use of the Offerings.  To the extent required by the Business Conduct Laws, Client will implement procedures, measures and infrastructure (including disclosures, consent procedures and Web Terms) before using the Offerings.

ARTICLE 6 – WEB OFFERINGS

6.1     Web Offerings.  To the extent set forth in the applicable SOW, Provider will: (a) develop a Website for Client as specified in such SOW; (b) perform a Hosting Offering or an Extended Website Support Offering for the developed Website; (c) perform a Hosting Offering or an Extended Website Support Offering for a Website owned or controlled by Client before the SOW Date of such SOW; or (d) perform a combination of the foregoing Offerings.

6.2     Website Development.  To the extent any SOW obligates Provider to develop a Website, Provider will develop such Website in accordance with such SOW.  Before Provider begins developing such Website, Client will provide Provider with the applicable Client Content, including Client’s logo and branding guidance for the Website.

6.3     Hosting.  To the extent any SOW obligates Provider to host a Website for Client (“Hosting Offering”) for a hosting period of time (“Hosting Period”), Client hereby authorizes Provider to delegate the Hosting Offering to a Host Subcontractor selected by Provider.  As part of the Hosting Offering, Provider will:

(a)     implement, deploy and operate the applicable Website;

(b)     track and implement Updates issued by Subcontractors as necessary for the security and stability of such Website;

(c)     perform, at Client’s written request, backups of such Website, which are intended to enable such Website to be restored to an earlier point in time, provided that the content management system provided by the applicable Subcontractor enables such backups; and

(d)     provide helpdesk support to Client regarding general usage questions, making Provider’s technical staff available to answer phone calls and respond to emails and support ticket messages during Business Hours.

6.4     Domain Name Procurement.  Before Provider is obligated to perform any Hosting Offering for any Website, Client will provide Provider with written notice of the Domain Name for such Website.  Client will: (a) purchase such Domain Name if Client does not already own it, and then provide Provider with the credentials and cooperation to enable Provider to connect such Domain Name to the Host Subcontractor identified by Provider; or (b) provide Provider with Client’s written authorization to purchase such Domain Name at Client’s expense and for Client’s benefit.  Upon Client’s reimbursement of Provider for any such expense, Provider will transfer ownership of such Domain Name to Client.

6.5     Domain Name Renewal.  Unless the applicable SOW expressly provides otherwise, Client will be solely responsible and liable for renewing the registrations of all Domain Names at Client’s expense, and Client hereby waives any right to assert against Provider arising from the lack of such renewal or loss of any Domain Name.

6.6     IP Addresses.  As between the Parties, Provider will own and control all Internet protocol numbers and addresses that Provider or Subcontractor may assign to Client or any Website.  Provider may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.

6.7     Client’s Web Data Security Obligations.  Throughout the term of Hosting Period, Client will implement technical and administrative safeguards, in accordance with applicable laws and industry standards, to secure Website entryways that are within the control of Client or any Client Agent, including login interfaces accessible on servers, computers and other devices owned or controlled by Client or any Client Agent.

6.8     Web Data Security.

6.8.1  Web Data Security Policy.  To the extent any SOW obligates Provider to perform a Hosting Offering for any Website, Provider will identify the Host Subcontractor in the applicable SOW, including the website address of the Host Subcontractor that displays the Host Subcontractor’s policy and procedures related to data security (“Web Data Security Policy”).  Provider may periodically change from one Host Subcontractor to another Host Subcontractor at Provider’s sole discretion.  If Provider changes to an alternate Host Subcontractor, Provider will provide Client with an updated SOW that identifies the alternate Host Subcontractor and its website address that displays its Web Data Security Policy.  Client will not be required to sign such updated SOW for acceptance.  Client will be deemed to have accepted such updated SOW unless Client provides Provider with Client’s written rejection of such updated SOW within five (5) business days after receiving such updated SOW.

6.8.2  Policy Acceptance, Objection and Updates.  If Client does not provide Provider with a written objection to the applicable Web Data Security Policy within five (5) business days after receiving any SOW under Section 6.8.1, Client will be deemed to have accepted such Web Data Security Policy as sufficient for the protection of the Web Data related to such Website.  Client acknowledges that any Host Subcontractor may periodically update and modify its Web Data Security Policy.  Client will periodically (at least once per three (3) months) visit the Host Subcontractor’s website to review any modified version of the Web Data Security Policy.  Client will be deemed to have accepted the Web Data Security Policy (and each modification thereof) unless Client provides Provider with a written objection notice within five (5) business days after performing the periodic policy review required under this Section.  Any such objection notice will include a detailed description supporting Client’s conclusion that the Web Data Security Policy fails to conform to applicable laws and industry standards for types of websites similar to the Website.  In reply to such objection, Provider may select an alternate Host Subcontractor or terminate the applicable SOW in accordance with Section 13.6.

6.9     Extended Website Support Offerings.  To the extent specified in the applicable SOW, Provider will perform extended service Offerings for the applicable Website (“Extended Website Support Offerings”) in addition to any Hosting Offerings provided for such Website.

6.10   Acceptance of Updates.  Client will promptly accept and implement all Updates generally released by Provider or its Subcontractors.

6.11   Maintenance Downtime.  For purposes of the General Website Service Offerings, Client hereby authorizes Provider to: (a) periodically shutdown any Website for planned maintenance, repairs and Update implementation; and (b) shutdown any Website for any emergency or unplanned maintenance, repair or Update implementation.

6.12   Uptime Level Commitment.  Throughout the applicable Hosting Period for each Website, Provider will use commercially reasonable efforts to keep such Website running and available to Internet users at least ninety-nine and one-half percent (99.5%) of the time during each twelve (12) month segment of the applicable Hosting Period (“Uptime Level”); provided, however, that downtime caused by the following events will not count against Provider’s achievement of the Uptime Level: (a) planned or scheduled maintenance, Client’s behavior, or Client’s applications; (b) circumstances outside of Provider’s and its Subcontractors’ control, including Force Majeure Events; (c) backbone provider failures; (d) restoration of backups; (e) movement of accounts; (f) issues caused by the fault of any party or entity other than Provider or its Subcontractors; (g) fiber-optic main line cuts; (h) domain name system or domain name registrar issues related to any Domain Name; (i) routing issues between Client’s location and the relevant data center; (j) issues with Client’s local Internet service provider; (k) an attack that denies or impairs Website operation; and (l) suspension of an account.

6.13   Web Terms.  Client acknowledges that the Offerings will not include the creation or provision of any Web Terms for any Website.  It will be Client’s sole responsibility to prepare and post the appropriate privacy policies, cookie policies and other legal notices on all Websites in accordance with advice from Client’s competent legal counsel and in accordance with all applicable laws (collectively, “Web Terms”).  Pursuant to the Web Terms, Client will obtain the following from the Web Users: (a) the consent to collect, receive, store, process and use the Web Data for the End-Use; and (b) the right to authorize Provider and its Subcontractors to perform such acts for purposes of performing Offerings for Client under this Agreement.

6.14   Responsibility for Web Data; Acceptable Use Policy.  Client will not input any Web Data into any Website or the related Hosting Environment that causes a violation of any applicable laws, the Acceptable Use Policy (defined below) or any Subcontractor Terms.  Client will substantively prepare the Web Terms to require all Web Users to comply with the Acceptable User Policy.  Provider and each of its Subcontractors will have the right to remove any Web Data from any Website that, in its sole discretion, may be illegal, may subject it to liability, or may violate the Acceptable Use Policy.  Provider and each of its Subcontractors will cooperate with legal authorities in the investigation of any suspected or alleged crime or civil wrong arising from the use of any Website.  The use of any Website or Hosting Environment by Client or any Web User in a manner that violates the Acceptable Use Policy will be deemed Client’s breach of this Agreement.  In the event of such breach, Provider will have the right to immediately suspend the operation of the applicable Website and the related Offerings under Section 13.8.  The term “Acceptable Use Policy,” as used in this Agreement, will mean the use of Websites and Hosting Environments in a manner without performing or attempting to perform any of the following acts and events:

(a)     the transmission or posting of any Web Data that contains, or provides links to, nudity, pornography, adult content, sex, or extreme violence;

(b)     the transmission or posting of any Web Data that, intentionally or unintentionally, violates any applicable law;

(c)     the harm of any minor in any way;

(d)     the transmission or posting of any Web Data that harasses, threatens or encourages bodily harm or destruction of property;

(e)     the fraudulent misrepresenting or fraudulent offering, including any offering related to any to “pyramid schemes” or “Ponzi schemes;”

(f)      the access of any account of another person;

(g)     the penetration of any security measure of Client or its Subcontractors or another entity’s computer software or hardware, electronic communications system or telecommunications system, whether or not the penetration results in the corruption or loss of data;

(h)     the transmission or posting of any Web Data that infringes upon any copyright, trademark, patent, trade secret or other proprietary, intellectual property right or personal right of any person or entity, including the unauthorized copying or distribution of copyrighted material, the digitization and distribution of photographs from magazines, books, music, video or other copyrighted sources, and the unauthorized transmittal of copyrighted software;

(i)      the collection, use or sale of personal information without obtaining the prior, informed consent of the person identified by such information and performing any other procedures required by applicable laws;

(j)      the performance of any activity that adversely affects the ability of other people or systems to use any Website or Hosting Environment or the Internet, including “denial of service” (DoS) attacks against another network host or individual user;

(k)     the interference with or disruption of other network users, network services or network equipment;

(l)      the transmission or posting of any Web Data that contains any computer virus, worm, Trojan horse and other type of malicious code;

(m)    the violation of any applicable laws; or

(n)     the performance of any act or omission that is contrary to or prohibited by the provisions of the applicable Subcontractor Terms relating to acceptable use policies, terms of use, usage prohibitions or usage restrictions.

6.15   Client’s Cooperation.  Client will generally cooperate with Provider and the Hosting Subcontractor with respect to Provider’s efforts to develop any Website pursuant to any SOW, perform any Hosting Offering pursuant to any SOW, and perform any Extended Website Support Offering pursuant to any SOW.  With respect to any Offerings for any Website under the applicable SOW, Client will:

(a)     provide Provider with access to such Website for performing Provider’s development obligations under such SOW, enabling Provider to create new webpages and make changes to such Website;

(b)     accurately and promptly provide Provider with detailed instructions for changing any Client Content within such Website;

(c)     accurately and promptly provide Provider with any additional Client Content that Client desires to be added to such Website; and

(d)     appoint an individual to serve as the primary contact between Client and Provider with respect to the administration of such Website.

6.16   Further Limitations and Exclusions. 

6.16.1 General Limitations.  Except to the extent expressly set forth in the applicable SOW, no Hosting Offering or Extended Website Support Offering will include any software development, application development, software programming support, or any instructions for software configuration above and beyond general usage questions.  Any Updates provided by Provider or any Subcontractor will only be provided for standard software and hardware platforms and operating systems supported by Provider or such Subcontractor, as indicated in the applicable Documentation.  In addition, Provider will have no obligation to perform the following services except to the extent the applicable SOW expressly provides otherwise:

(a)     any action to resolve problems resulting from deficiencies with any hardware that is not owned or controlled by Provider or any Subcontractor;

(b)     any action related to any software, hardware or service that is not provided by Provider or any Subcontractor; or

(c)     installation of any Updates on Client’s computer systems.

6.16.2 Exclusion of Ancillary Systems.  Unless the applicable SOW expressly provides otherwise, Provider will have no obligation to support, maintain, repair or provide any assistance with respect to any email system, messaging system, mobile app, customer relationship system or any other software-based service or technology that may compliment or be usable in conjunction with any Website.

6.16.3 Website Support Limitations.  With respect to each Website provided, hosted or maintained by Provider under this Agreement, Client acknowledges and agrees as follows:

(a)     Provider has no control over the policies of search engines or directories with respect to the type of websites or content that they accept as of the Effective Date or thereafter.  Such Website may be excluded from any search engine or directory at any time at the sole discretion of the search engine or directory entity.

(b)     If Provider or any Subcontractor makes changes to such Website according to information provided by Client and such changes are undesirable or cause problems, Client will owe fees, in addition to the fees provided in the applicable SOW, for the additional time necessary to remedy such Website at Client’s request.

(c)     Provider will not be obligated to rewrite sentences, restructure paragraphs, or check for typing errors, misspellings or other informalities in Client Content except to the extent Client specifically instructs Provider in writing to correct or change certain text specified by Client.

(d)     Provider will not be responsible for any changes made to such Website by any person or party other than Provider or its Subcontractors.

(e)     If, as a result of any Extended Website Support Offering, any third party plugin or widget becomes impaired or nonfunctional, Provider will not be responsible for resolving, repairing or addressing such impairment or non-functionality.

(f)      If such Website is compromised, hacked, defaced or infected before Provider receives access to such Website, Provider will not be obligated to repair such Website.

(g)     There is no guarantee, warranty or assurance that Provider will successfully recover or repair such Website.

(h)     There is no guarantee, warranty or assurance that Provider will successfully produce backups of such Website or the Web Data or Client Content related to such Website.

6.17   Customization of Website Software.  The Subcontractor Terms of any Subcontractor that supplies software within the Website may permit users to customize such software in accordance with such Subcontractor Terms.  By way of a non-limiting example, such Subcontractor Terms may permit users to use the administrative dashboard of the Website to edit such software’s source code files by adding or modifying source code written in PHP, HTML, CSS, JavaScript or another website code language.  In such event, Client may access and modify the source code of such software solely to the extent permitted by such Subcontractor Terms.

6.18   End of Hosting – Transition Period.  Client acknowledges that the Hosting Period for any Website may terminate upon the expiration of such period or as the result of Client’s breach of this Agreement.  Before any such expiration, Provider may provide Client with a written alert, notifying Client of the upcoming termination date for the applicable Hosting Offering.  The period between the date of its alert and such hosting termination date will be at least five (5) business days (“Transition Period”), and Provider will continue the Hosting Offering during the Transition Period.  During the Transition Period, Client may: (a) access the administrative dashboard of such Website; and (b) download data files containing the Website, including any Web Data and Client Content associated with the Website; and (c) transfer the Website, Web Data, Client Content and applicable Domain Name to Client’s selected host.  Client will be responsible for all expenses associated with transferring such Website to Client’s selected host, including securing a new web hosting account, web hosting account and technical support provider.  Within the Transition Period, Client may provide Provider with a written request for assistance with transferring the Website, Web Data and Client Content to Client’s selected host.  Provider may, in its sole discretion, provide Client with an SOW for performing such assistance, setting forth the assistance fees payable by Client.  If such SOW is accepted under Section 3.1, Provider will perform such assistance, and Client will pay such assistance fees in accordance with such SOW.  At any time after the Transition Period, Provider will have the right to terminate the Hosting Offering and all other service Offerings related to such Website, and Provider will have the right to permanently delete such Website, including all Web Data and Client Content associated with the Website.  Client hereby waives any right to claim any damage, loss or remedies in connection with the permanent loss of such Website, Web Data and Client Content.

 

ARTICLE 7 – INTELLECTUAL PROPERTY AND LICENSES

7.1     Intellectual Property of Client.  As between the Parties, Client will be the sole owner of all intellectual property rights in and to the Developed Marks (defined below) and the Client Content (collectively, “Client Property”).  The term “Developed Marks,” as used in this Agreement, will mean any trademarks or service marks created by Provider that are part of any Accepted Works, provided that Client has remitted to Provider, all payments owed for such Accepted Works pursuant to the applicable SOW.  At Client’s request, Provider will execute documents necessary to evidence the transfer of the ownership of the Developed Marks from Provider to Client.  It will be Client’s sole responsibility to evaluate whether the use of the Developed Marks might infringe upon third party intellectual property rights.

7.2     Intellectual Property of Provider.  As between the Parties, Provider will be the sole owner of all Provider Property (defined below).  The term “Provider Property,” as used in this Agreement, will mean: (a) all Tools; (b) all Works (including Working Files) other than Client Property, regardless of whether such Works are conceived, authored, compiled, made, developed or reduced to practice by Provider, Client, Client Agents or Subcontractors, alone, jointly or with others; (c) all rights to create derivative works based on such Works; (d) all derivative works, collective works, supplementary works, compilations and other works that include part or all of such Works in their original or modified form; (e) all future enhancements, improvements, augmentations, derivatives and modifications of the Tools, such Works or any portion thereof; (f) all rights of paternity, integrity, disclosure and withdrawal related to such Works and any other rights related to such Works that may be known as or referred to as “moral rights;” (g) all personal rights of publicity, privacy rights and property rights related to such Works; (h) all copyrights worldwide in and to the foregoing items, together with all registration rights related to the foregoing items, including the right to make applications for copyright registrations for such items in any and all countries; and (i) all other intellectual property rights and tangible property rights worldwide in and to the foregoing items, including patent rights, trademark rights, copyrights, database rights and trade secret rights.  The Provider Property will not be considered a work made for hire within the meaning of the work made for hire definition of the U.S. Copyright Act or any other copyright law.  To the extent necessary to fully vest ownership of the Provider Property in Provider, Client hereby assigns, transfers and conveys (and agrees to further do so and to cause Client Agents to do so) to Provider, all right, title and interest in and to the Provider Property, and Client will execute all documents requested by Provider to fully vest such ownership rights in Provider.

7.3     Subcontractor Materials.

7.3.1  Subcontractor Terms.  Client acknowledges that: (a) the intellectual property rights in Subcontractor Materials are owned by, licensed by or otherwise subject to the rights of Subcontractors; (b) all Websites will include Subcontractor Materials; (c) Works provided by Provider to Client (including Accepted Works) might include Subcontractor Materials; and (d) Client’s use of Subcontractor Materials may be restricted by, and subject to, terms and conditions of the applicable Subcontractor, including any terms of use, license restrictions, acceptable use policies, privacy policies or payment terms for license fees or other charges owed to such Subcontractor for the use of such Subcontractor Materials in the End-Use (collectively, “Subcontractor Terms”).  Client will comply abide by and comply with the Subcontractor Terms.

7.3.2  Procurement Notice.  To the extent Provider includes any Subcontractor Materials in any Website or Accepted Works, Provider will either: (a) procure a license from the applicable Subcontractor that permits Client to use such Subcontractor Materials for the End-Use; or (b) notify Client in writing of the need for Client to procure a license from such Subcontractor (“Procurement Notice”).  Any such Procurement Notice will identify such Subcontractor, and Client will obtain such license directly from such Subcontractor before using such Subcontractor Materials.  Provider may pay the fees charged by such Subcontractor, in which case Client’s fees payable under the applicable SOW will account for such expense of Provider as well as any associated fees charged by Provider.  Alternatively, at Provider’s request, Client will directly pay such Subcontractor for the fees charged by such Subcontractor.

7.4     Licenses to Provider.

7.4.1  License for Provider’s Performance.  Client hereby grants to Provider, a non-assignable (except as part of an assignment permitted under Section 14.7), non-sublicensable (except as permitted in this Section), royalty-free, free-of-charge, non-exclusive license to use, copy, reproduce, prepare derivative works of, modify, enhance, perform, display, publish, and distribute the Client Property for purposes of Provider’s performance of its obligations under this Agreement, including incorporating Client Content into Accepted Works for the End-Use.  Provider may sublicense such license to Subcontractors, permitting Subcontractors to exercise such license to perform services to or on behalf of Provider.

7.4.2  License to Web Data.  Client hereby grants to Provider a worldwide, non-assignable (except as part of an assignment permitted under Section 14.7), non-sublicensable (except as permitted in this Section), royalty-free, free-of-charge, non-exclusive license to receive, retrieve, collect, store, process, digitize, convert, install, upload, transmit, select, order, arrange, compile, combine, synchronize, publicly display, publicly disclose, hyperlink, make archival copies of, make back-up copies of, use, copy, reproduce, prepare derivative works of, modify, enhance, perform, display, publish and distribute Web Data, all for purposes of Provider’s performance of Website development Offerings, Hosting Offerings and Extended Website Support Offerings under this Agreement.  Provider may sublicense such license to Subcontractors, permitting Subcontractors to exercise such license to perform services to or on behalf of Provider.  Such license will automatically terminate upon the termination of the SOW related to such Offerings; provided, however, that Provider and its Subcontractors may retain the Web Data to the extent necessary to comply with applicable laws or cooperate with legal, judicial or governmental authorities.

7.4.3  License to Suggestions.  Client hereby grants Provider a worldwide, perpetual, irrevocable, assignable, sublicensable, royalty-free, free-of-charge, non-exclusive license to use, copy, reproduce, prepare derivative works of, modify, enhance, perform, display, publish, distribute, commercialize and monetize all Suggestions as well as any product or service including any Suggestion.

7.5     End-Use License to Client.

7.5.1  Exclusive License for Accepted Works Other than Websites.  Subject to the terms and conditions of this Agreement, Provider hereby grants to Client a worldwide, non-assignable (except as part of an assignment permitted under Section 14.7), non-sublicensable (except as permitted in this Section), exclusive license to use, copy, reproduce, perform, display, publish and distribute Accepted Works (other than Websites) in their original form for the End-Use; provided, however, that such license will not take effect unless and until Client remits to Provider, all payments owed under the SOW related to such Accepted Works.

7.5.2  Non-Exclusive License for Websites.  Subject to the terms and conditions of this Agreement, Provider hereby grants to Client a worldwide, non-assignable (except as part of an assignment permitted under Section 14.7), non-sublicensable (except as permitted in this Section), non-exclusive license to use, copy, reproduce, prepare derivative works of, modify, enhance, perform, display, publish and distribute Websites that are portions of Accepted Works; provided, however, that such license will not take effect unless and until Client remits to Provider, all payments owed under the SOW related to such Websites.

7.5.3  End-Use License.  The licenses granted in Sections 7.5.1 and 7.5.2 will be collectively referred to in this Agreement as the “End-Use License.”

7.5.4  Duration.  The period of the End-Use License will begin on the date when Client remits to Provider, all payments owed under the SOW related to the Accepted Works that are the subject of the End-Use License.  The End-Use License will continue unless and until Client breaches this Article 7, at which time the End-Use License will be automatically terminated.  If Provider receives a claim, allegation, demand or notice from a third party, describing such third party’s assertion of rights or remedies related to any Accepted Work that is the subject of the End-Use License, Provider may suspend the End-Use License with respect to such Accepted Work in accordance with Section 13.10.

7.5.5  Sublicensing to Client Agents.  Client may sublicense the End-Use License to its third party contractors and associates (“Client Agents”), permitting the Client Agents to exercise the End-Use License for the End-Use.  Before granting such sublicense to any Client Agent, Client will enter into a written agreement with such Client Agent that obligates such Client Agent to comply with terms, conditions and restrictions consistent with the provisions of this Article 7.  Client will be fully responsible for the acts and omissions of such Client Agent as if carried out by Client.

7.5.6  Provider Property Within Accepted Works.  With respect to any Provider Property included in any Accepted Work, (a) the End-Use License will not apply to the use of such Provider Property apart from such Accepted Work, and (b) Provider will retain all rights in and to such Provider Property for itself and for servicing Provider’s clients other than Client, including the rights to use, copy, reproduce, prepare derivative works of, modify, enhance, perform, display, publish, distribute, commercialize and monetize such Provider Property.

7.5.7  Inspiration.  Provider will retain the perpetual, irrevocable right to refer to Accepted Works for inspiration and ideation in the process of creating works, content and materials for clients of Provider other than Client.

7.5.8  Further Restrictions.  Except to the extent the applicable SOW expressly permits otherwise, the End-Use License will not include the right to (and Client will not, directly or indirectly):

(a)     license, sublicense, sell, rent, lease, sublease, transfer, assign, outsource, or disclose any Accepted Offerings to any third party other than sublicensing to Client Agents in accordance with Section 7.5.5;

(b)     permit any third party to use or publish any Accepted Offerings in any timesharing business or service bureau arrangement;

(c)     distribute, display, host or use any Accepted Works for any purpose other than the End-Use;

(d)     modify, create derivative works of, disassemble, decompile, reverse engineer, hack, augment, crop, distort, manipulate, reconfigure, mimic, animate, edit, extract portions or alter the color of any part of any Accepted Works except for the Website software customizations permitted under Section 6.17;

(e)     access or possess the source code of any software within any Accepted Works, except as may be necessary for performing the Website software customizations permitted under Section 6.17;

(f)      retain, access, possess, edit, modify, create derivative works of or use any Working Files;

(g)     remove or modify any program markings or any legal or proprietary notices of Provider or any Subcontractor;

(h)     use any Accepted Works in any manner prohibited by any Subcontractor Terms;

(i)      perform or disclose any of the following security test activities related to any Website or Hosting Environment without Provider’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing or penetration testing;

(j)      disclose the data of such security test activities to any third party without Provider’s prior written consent; or

(k)     descramble, circumvent, decrypt, bypass or distribute any security safeguard (such as a username-password, passcode, license key or biometric code), control measure, device, software module, process or system implemented by Provider or any Subcontractor to prevent or impede the use of any Accepted Works in a way that violates the terms and conditions of this Article 7.

7.5.9  Request for Broader Scope of License.  Client may provide Provider with a written request to expand the scope of the End-Use License with respect to any Accepted Work specified by Client.  Provider may approve such request in its sole discretion.  Any such approval will not be effective unless expressly set forth in an additional SOW.  Client acknowledges that any such additional SOW may require Client to pay additional fees beyond the fees set forth in the original SOW related to such Accepted Work.

7.6     Return of Provider’s Materials.  For purposes of clarity, Client acknowledges that Client will receive no right or license (express, implied or otherwise) to any Provider Property that is not incorporated into any Accepted Works.  Within thirty (30) days after Provider’s delivery of the Accepted Works under each SOW, Client will deliver to Provider, any and all materials and samples in Client’s possession that include or embody any Provider Property not incorporated into such Accepted Works, including data files, documents, mockups, samples, demos, alternative designs, alternative works and other materials that are not incorporated into such Accepted Works.

7.7     Reservation of Rights.  Except for the End-Use License, Client will not receive or acquire any right, title, interest or license (express, implied or otherwise) in or to any intellectual property or other property of Provider or its Subcontractors.

7.8     Intellectual Property Protection.  Client will not: (a) patent, attempt to patent or file any patent application for any inventions within any Provider Property anywhere in the world; or (b) register, attempt to register or file any copyright or trademark application for any Provider Property anywhere in the world.  As the owner of the Developed Marks, Client may, at Client’s expense and risk, register, attempt to register, and file trademark applications for the Developed Marks.

7.9     Intellectual Property Infringement.

7.9.1  Notification of Claims.  In the event that Client receives any claim, allegation, demand or notice by a third party, describing such third party’s assertion of rights or remedies related to any Accepted Works, Client will promptly report such event to Provider in writing, together with the details known by Client.

7.9.2  Provider’s Right to Sue Infringers.  As between Provider and Client, Provider will have the sole right, but not the obligation, to bring suit against any infringer or violator of any Provider Property, including Provider’s rights in Accepted Works licensed to Client under the End-Use License.  Client, at Provider’s expense, will reasonably cooperate with Provider in all respects in any such action related to Accepted Works, including joining suit as a co-plaintiff and providing evidence and testimony to establish damages or other remedies for Provider.  Client will have no right to any damages, recoveries or remedies received by Provider in connection with such action.

 

ARTICLE 8 – CONFIDENTIALITY

8.1     Nondisclosure Duty and Restrictions.  In connection with this Agreement, each Party (“Discloser”) may disclose its Confidential Information to the other Party (“Receiver”).  The Receiver will: (a) maintain such Confidential Information in confidence, implementing reasonable measures and safeguards to maintain the confidentiality of such Confidential Information; (b) not disclose such Confidential Information to any third party without the disclosing Party’s prior written consent; and (c) not access or use such Confidential Information for any purpose other than the purpose of performing its obligations or exercising its rights in accordance with this Agreement.

8.2     Return or Destruction. Within thirty (30) days after the termination of this Agreement, Receiver will return to Discloser, all of Discloser’s Confidential Information or permanently destroy such Confidential Information, provided that Receiver may retain a list of such Confidential Information for legal archival purposes.

 

ARTICLE 9 – PAYMENT

9.1     Fees.  Client will pay fees to Provider in accordance with the fee and payment terms set forth in the applicable SOW.  Depending on the Offering, the fees may include: (a) one-time fees (“Nonrecurring Fees”), such as a one-time fee payable for Provider’s creation of an advertisement image; (b) periodic fees (“Recurring Fees”), such as a periodic fee payable for a Hosting Offering for a Website; or (c) a combination of Nonrecurring Fees and Recurring Fees.  Unless the applicable SOW provides otherwise, the Recurring Fees for Hosting Offerings will include Provider’s charges in addition to the charges of the applicable Subcontractors for the operation of the applicable Website, including Domain Name charges and hosting charges.

9.2     Adjustment of Recurring Fees.  The Recurring Fees for the applicable Offering will remain fixed for the period of such Offering specified in the applicable SOW.  By way of a non-limiting example, if a Hosting Period is one month, the Recurring Fee for such Hosting Period will be fixed for such month.  At least five (5) business days before the period of the applicable Offering expires, Provider may increase the Recurring Fees for such Offering by providing Client with a Proposed SOW.  Such Proposed SOW will be declined, accepted, or deemed accepted in accordance with Section 3.1.

9.3     Out-of-Pocket Expenses.  Unless the applicable SOW expressly provides otherwise, Client will promptly reimburse Provider for all of Provider’s out-of-pocket expenses related to all Offerings, including all charges by Subcontractors.

9.4     Prepayments.  To the extent any SOW requires a prepayment for Provider’s fees or out-of-pocket expenses, Client will remit such prepayment to Provider before Provider is obligated to perform or provide any Offerings under such SOW.  An SOW may specify a prepayment of fees for certain service Offerings.  By way of non-limiting examples, an SOW may specify: (a) a prepayment amount for a certain number of hours of Extended Website Support Offerings, and (b) a prepayment amount for one month of a Hosting Offering for a Website.  If Client does not use or exhaust all of the prepaid service Offerings for a reason other than Provider’s breach of this Agreement, Client will have no right to a reduction of the payments set forth in the applicable SOW, nor will Client have a right to a credit or refund based on such unused service Offerings.

9.5     Invoicing; Payment.  From time to time, Provider may provide Client with invoices for fees and reimbursements owed under the applicable SOW.  Provider may email such invoices to Client and will not be obligated to mail paper invoices to Client.  Unless the applicable SOW provides otherwise, Client will pay each such invoice within thirty (30) days after Client’s receipt of such invoice.

9.6     Invoice Disputing.  Each invoice provided by Provider will be deemed accepted by Client unless Client provides Provider with a written, good faith dispute of such invoice within fourteen (14) days after receiving such invoice.  Any such dispute will set forth a detailed description and evidence that substantiates the basis for such dispute.

 9.7     Payment Method; Late Payment Fee.  All prices and monetary values in this Agreement will be in United States Dollars and will be paid in United Stated Dollars.  Client will make all payments under this Agreement by ACH, wire, check, money order or credit card, as specified by Provider.  Client will pay for any and all payment transaction fees, including any ACH and wire fees.  If Client elects to pay any fee by credit card, Client will pay, along with such fee, a credit card processing charge equal to five (5%) of such fee or a different processing charge specified by Provider.  If Client pays any fee by check, Provider may withhold the applicable Offerings until the check clears.  If Provider’s bank returns any check provided by Client due to non-sufficient funds of Client, Client will pay, along with a new form of payment, a bounced check charge of $40 or a different charge specified by Provider.  If Client owes any past due amount under this Agreement, Provider may charge interest on such amount at the lower of: (a) one and one-half percent (1.5%) per month; or (b) the maximum rate permitted by law; provided, however, that such interest will not accrue on any invoiced amount earnestly disputed by Client in good faith under Section 9.6.  Payment of such interest by Client will not limit, in any way, Provider’s right to exercise any other remedies Provider may have as a consequence of the lateness of any payment.

9.8     Collection of Past Due Amounts.  All past due and unpaid balances under this Agreement will be subject to collection except for any invoiced amount earnestly disputed by Client in good faith under Section 9.6.  In the event of collection, Client will be liable for Provider’s expenses of collection, including reasonable attorneys’ fees, court costs and collection agency fees.  If Client’s account is suspended due to lack of payment, Client will pay the then-current reinstatement fee, in addition to all other charges then due and payable, prior to restoration of the Offerings.  If Client owes a past due amount under any SOW for any Hosting Offering for over one hundred and twenty (120) days, Provider will have the right to terminate the applicable SOW under Section 13.7 and permanently shut down and delete such Website and all Web Data related to such Website.  In such event, Provider will not be liable for such shut down and deletion.

9.9     Taxes. All amounts owed to Provider pursuant to this Agreement will be paid without deduction of exchange, collection or other charges, and, specifically, without deduction of withholding or similar taxes or other government-imposed fees or taxes.  Client will be solely responsible for paying for all sales, use, excise and other similar taxes or duties (other than taxes based on Provider’s net income) that may be assessed by a tax authority in connection with this Agreement or the Offerings (collectively, “Transactional Taxes”).  Any invoice issued by Provider may set forth charges for Transactional Taxes.  In such event, Provider will remit the collected Transactional Taxes to the applicable tax authority.  Client will retain full responsibility for remitting all uncollected Transactional Taxes to the applicable tax authorities.

9.10   Refund Policy.  SUBJECT ONLY TO SECTIONS 12.4 AND 13.5, CLIENT WILL HAVE NO RIGHT TO ANY REFUND (FULL OR PARTIAL) OF ANY PREPAYMENTS OR OTHER PAYMENTS MADE UNDER THIS AGREEMENT WITH NO EXCEPTIONS.

9.11   Independence of SOW Payment Obligations.  Client’s obligation to pay and perform under each SOW will not be contingent upon Provider’s performance under any other SOW.

 

ARTICLE 10 – RISK ASSUMPTION, REPRESENTATIONS AND WARRANTIES

10.1   Client’s Assumption of Risks.  Client hereby assumes all risks related to or arising from: (a) the use, publication or distribution of Client Property by Client or any Client Agent, including Client Property incorporated into Accepted Works; (b) the use, collection, handling or processing of Web Data; (c) the Web Data Security Policy, including the sufficiency of the Web Data Security Policy with respect to applicable laws; (d) the modification of any Offerings by Client or any Client Agent; (e) the posting (or lack thereof) of Web Terms; (f) the use or operation of Websites; or (g) the violation of any Business Conduct Laws by Client or any Client Agent.  Client hereby waives the right to sue, take legal action against and pursue damages from Provider with respect to such risks.

10.2   Provider’s Representations and Warranties.  Provider hereby represents and warrants that:

(a)     Provider is a corporation, duly organized and validly existing and in good standing under the laws of the New York, with full right, power, and authority to enter into and perform this Agreement and to grant all of the rights, powers, and authorities granted herein;

(b)     the execution, delivery, and performance of this Agreement does not conflict with or violate any agreement to which Provider is a party or Provider’s organizational documents; and

(c)     with respect to Provider Property incorporated into Accepted Works, (i) Provider is the owner or licensee of such Provider Property, having the right to perform such incorporation for the End-Use, or (ii) Provider has provided Client with a Procurement Notice that identifies the applicable Subcontractor who supplies such Provider Property, obligating Client to procure a license from such Subcontractor.

10.3   Client’s Representations and Warranties.  Client hereby represents and warrants that:

(a)     Client is a corporation, company, organization, partnership or sole proprietorship duly organized and validly existing and in good standing under the laws of the state in which it was formed, with full right, power, and authority to enter into and perform this Agreement and to grant all of the rights, powers, and authorities granted herein;

(b)     the execution, delivery, and performance of this Agreement does not conflict with or violate any agreement to which Client is a party or Client’s organizational documents;

(c)     Client is the owner or licensee of all Client Property;

(d)     Client has the right to license the Client Property, Web Data and Suggestions to Provider as provided in Section 7.4;

(e)     to the extent Client has obtained any Client Property, Web Data or Suggestions from any third party and provided or otherwise disclosed such Client Property, Web Data or Suggestions to Provider in connection with this Agreement, Client has obtained such third party’s written license or consent, authorizing: (i) the inclusion of such Client Property as part of the Accepted Works; (ii) the use of such Client Property for the exercise of the activities set forth in the End-Use License; (iii) Provider’s and its Subcontractors’ use of such Client Property and Web Data for purposes of performing Provider’s obligations under this Agreement; and (iv) the licensing of such Suggestions to Provider as provided in Section 7.4.3;

(f)      the exercise of the End-Use License by Client and Client Agents will comply with the applicable Subcontractor Terms and all applicable laws, including the Business Conduct Laws; and

(g)     Client has reviewed the Web Data Security Policy and determined, through Client’s independent judgment, that the Web Data Security Policy is sufficient for operating each Website in compliance with the Business Conduct Laws.

10.4   Warranty Limitations and Waivers. 

 

10.4.1 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10.2(C), THE PROVIDER PROPERTY THAT IS LICENSED AS PART OF ANY ACCEPTED WORKS IS BEING LICENSED BY PROVIDER “AS IS” WITHOUT WARRANTY OF ANY KIND, AND ANY WEBSITE HOSTED BY PROVIDER IS BEING HOSTED AND OPERATED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND.

10.4.2 THE WARRANTY PROVIDED IN SECTION 10.2(C) IS EXCLUSIVE, AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS FOR ANY PROVIDER PROPERTY OR OFFERINGS, INCLUDING THOSE FOR NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.

10.4.3 PROVIDER MAKES NO REPRESENTATION, WARRANTY, GUARANTEE OR ASSURANCE THAT: (A) ANY OFFERING WILL OPERATE OR BE PERFORMED ERROR-FREE, UNINTERRUPTED, OR FREE OF DOWNTIME; (B) PROVIDER WILL CORRECT ALL ERRORS IN THE OFFERINGS; (C) THE OFFERINGS WILL OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY PROVIDER OR ITS SUBCONTRACTORS THAT ARE NOT SPECIFIED IN THE DOCUMENTATION; (D) THE OFFERINGS WILL SATISFY CLIENT OR MEET CLIENT’S EXPECTATIONS OR BUSINESS OBJECTIVES; (F) ANY OFFERINGS CAN OR WILL SUCCESSFULLY SATISFY CLIENT’S BUSINESS OBJECTIVES OR END-USE GOALS; (G) THE USE OF ANY OFFERINGS OR PROVIDER PROPERTY WILL NOT INFRINGE UPON A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (H) PROVIDER WILL BE ABLE TO SUCCESSFULLY RESTORE ANY WEBSITE OR WEB DATA.

 

ARTICLE 11 – LIMITATION OF LIABILITY

11.1   Liability Disclaimer.  

11.1.1 CLIENT WILL BE SOLELY AND ENTIRELY RESPONSIBLE AND LIABLE FOR: (A) THE IMPLEMENTATION OF ANY CLIENT REQUIREMENTS; (B) THE USE, PUBLICATION AND DISTRIBUTION OF OFFERINGS; (C) THE PERFORMANCE OF MARKETING OR ADVERTISING THROUGH THE USE OF ANY OFFERINGS; (D) COMPLYING WITH ALL BUSINESS CONDUCT LAWS; AND (E) ALL CLAIMS AND LIABILITIES ARISING THEREFROM OR RELATING THERETO.

11.1.2         CLIENT ACKNOWLEDGES THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT WEBSITES AND HOSTING OFFERINGS MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  CLIENT WILL BE SOLELY AND ENTIRELY RESPONSIBLE AND LIABLE FOR: (A) ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS; AND (B) ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF ANY WEBSITE THAT ARISE FROM ANY INPUT OUTSIDE OF THE CONTROL OF PROVIDER AND ITS SUBCONTRACTORS.

11.2   Exclusion of Certain Damages.  UNDER NO CIRCUMSTANCES WILL PROVIDER OR ITS RELATED EMPLOYEES, AGENTS, PERSONS, CONTRACTORS, SUBCONTRACTORS OR AFFILIATES BE LIABLE TO CLIENT OR ITS RELATED EMPLOYEES, AGENTS, PERSONS, CONTRACTORS, SUBCONTRACTORS OR AFFILIATES FOR ANY DAMAGE OR LOSS OF ANY KIND OR NATURE ARISING FROM OR RELATING TO: (A) LOSS OF DATA, DAMAGE TO DATA, OR CORRUPTION OF DATA; (B) THE IMPAIRMENT OF OR DAMAGE TO HARDWARE, COMPUTERS, COMPUTER NETWORKS OR OTHER TANGIBLE PROPERTY; (C) THE INACCURACY OR INCOMPLETENESS OF ANY DATA, INFORMATION OR INPUT NOT PROVIDED BY PROVIDER OR ANY SUBCONTRACTOR; (D) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR PROPERTY; (E) COMPUTER OR SERVER FAILURE OR MALFUNCTION; (F) THE PROVISION BY CLIENT OF FALSE, INCORRECT OR MISLEADING CONSUMER INFORMATION OR ADVERTISEMENTS; (G) CLIENT REQUIREMENTS; (H) THE ACTS OR OMISSIONS OF CLIENT, ITS AGENTS, CUSTOMERS OR END USERS; OR (I) THE ACTUAL OR ALLEGED VIOLATION OF ANY BUSINESS CONDUCT LAWS BY CLIENT OR ANY CLIENT AGENT.  THE EXCLUSION OF LIABILITY UNDER THIS SECTION WILL APPLY TO PROVIDER REGARDLESS OF WHETHER THE FOREGOING EVENTS, DAMAGE OR LOSS ARISES OUT OF PROVIDER’S BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, TORTIOUS ACT OR OMISSION, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.

11.3   Exclusion of Special Damages.  SUBJECT TO SECTION 11.5, UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS RELATED EMPLOYEES, AGENTS, PERSONS, CONTRACTORS, SUBCONTRACTORS OR AFFILIATES BE LIABLE TO THE OTHER PARTY OR ITS RELATED EMPLOYEES, AGENTS, PERSONS, CONTRACTORS, SUBCONTRACTORS OR AFFILIATES FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES OF ANY KIND OR NATURE, WHATSOEVER, WHETHER SUFFERED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING LOST PROFITS, LOST OPPORTUNITIES, BUSINESS INTERRUPTIONS, HARM TO GOODWILL AND ECONOMIC LOSS) REGARDLESS OF WHETHER ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, TORTIOUS ACT OR OMISSION, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.

11.4   Maximum Liability.  SUBJECT TO SECTION 11.5, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE LIABILITY OF EACH PARTY TO THE OTHER FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION THAT IMPOSES LIABILITY, WHETHER IN CONTRACT, TORT, EQUITY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE, WILL BE LIMITED TO, AND WILL NOT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO PROVIDER RELATED TO THE APPLICABLE SOW WITHIN THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE APPLICABLE CLAIM FOR SUCH DAMAGES; PROVIDED, HOWEVER THAT THIS SECTION WILL NOT LIMIT THE AMOUNT OF ANY PAYMENTS OWED BY CLIENT TO PROVIDER PURSUANT TO ARTICLE 9 OF THIS AGREEMENT.

11.5   Exceptions.  The limitations provided in Sections 11.3 and 11.4 will not apply to or limit: (a) either Party’s indemnification obligations under Article 12 of this Agreement; or (b) Client’s infringement or misappropriation of Provider’s intellectual property rights.

 

ARTICLE 12 – INDEMNIFICATION

12.1   Indemnification by Provider.  Provider will, at all times during and after the term of this Agreement, defend, indemnify and hold harmless Client and its affiliates, managers, directors, officers, employees, agents and contractors from and against any and all losses, claims, lawsuits, proceedings, expenses, recoveries and damages, including reasonable legal expenses, costs and attorneys’ fees (each, a “Claim”), arising out of any infringement of any intellectual property right of any third party that is caused by Client’s exercise of the End-Use License in accordance with this Agreement; provided, however, that Provider will have no obligation under this Section to the extent such infringement is caused by any act or omission for which Client is obligated to indemnify Provider pursuant to Section 12.2.

12.2   Indemnification by Client.  Client will, at all times during and after the term of this Agreement, defend, indemnify and hold harmless Provider and its affiliates, managers, directors, officers, employees, agents, contractors and subcontractors from and against any and all Claims arising out of: (a) any actual or alleged infringement or misappropriation of any intellectual property right of any third party that is caused by any Client Property or any other product, service, content, material, specification, requirement or intellectual property not provided by Provider or any Subcontractor; (b) any collection of, storage of, processing of, handling of, use of, misuse of, unauthorized use of, or unauthorized access to any Web Data; (c) any Web Terms (or lack thereof) related to any Website; (d) the implementation of any Client Requirements; (e) any modification, alteration or misuse of any Offerings not performed or provided by Provider or any Subcontractor; (f) the combination of any Offerings with any product, service or goods not provided by Provider to the extent such combination is the basis for any third party claim; (g) any use of any Offering in a manner contrary to any applicable Documentation; (h) any violation of any Subcontractor Terms by any person or entity other than Provider; (i) any use of any Subcontractor Materials specified in any Procurement Notice without a license for such use from the Subcontractor identified in such Procurement Notice; (j) any allegation or claim by any Web User or any actual or prospective customer of Client; (k) any tortious liability, product liability, strict liability, harm, loss or damage in connection with the End-Use of any Offerings; (l) Client’s breach of its representations, warranties or obligations provided in this Agreement; (m) any violation of applicable laws (including any Business Conduct Laws) by Client or any Client Agent; or (n) any gross negligence or intentional wrongdoing of Client or any Client Agent.

12.3   Indemnification Procedures.  Each Party having a right to indemnification under Article 12 (“Indemnified Party”) will: (a) notify the other Party (“Indemnifying Party”) promptly in writing, not later than thirty (30) days after the Indemnified Party receives written notice of the applicable Claim (or sooner if required by applicable law); (b) give the Indemnifying Party sole control of the defense and any settlement negotiations related to the Claim except that the Indemnifying Party will not admit any liability or wrongdoing on the part of the Indemnified Party without the Indemnified Party’s prior written consent; and (c) at the Indemnifying Party’s expense, give the Indemnifying Party the assistance and cooperation that the Indemnifying Party finds necessary to fully defend against or settle the Claim.

12.4   Infringement Alternatives.  Client will provide Provider with prompt written notice of any Claim received by Client that is related to the infringement of third party intellectual property rights caused by Client’s use of any Provider Property under the End-User License.  If Provider is required to indemnify Client for such Claim pursuant to Section 12.1, and Provider concludes that any portion of such Provider Property may have potentially infringed upon a third party’s intellectual property rights, Provider may choose to either modify such Provider Property to be non-infringing (while substantially preserving its utility or functionality) or obtain a third party license to allow for continued use.  If these alternatives are not commercially reasonable, Provider may immediately terminate the End-Use License with respect to such Provider Property upon written notice to Client under Section 13.10.  In such event, if Client has paid a Nonrecurring Fee for any Acceptable Work incorporating such Provider Property, Provider will pay a refund of such Nonrecurring Fee to Client only if Provider is required to indemnify Client related to such Acceptable Work pursuant to Section 12.1.  For purposes of clarity, Client will have no right to such refund if such Claim is caused, directly or indirectly, by any act or omission for which Client is obligated to indemnify Provider under Section 12.2.  THE REMEDIES SET FORTH IN THIS SECTION CONSTITUTE CLIENT’S SOLE AND EXCLUSIVE REMEDY AGAINST PROVIDER (AND PROVIDER’S COMPLETE LIABILITY) WITH RESPECT TO ANY INTELLECTUAL PROPERTY CLAIM UNDER SECTION 12.1 BEYOND PROVIDER’S OBLIGATION TO INDEMNIFY UNDER SECTION 12.1 FOR DAMAGES INCURRED BY CLIENT AS OF THE DATE CLIENT FIRST NOTIFIED PROVIDER OF THE APPLICABLE CLAIM.

 

ARTICLE 13 – TERM AND TERMINATION

13.1   Term.  The term of this Agreement will begin on the Effective Date and end upon the expiration of the SOW Periods for all SOWs unless extended or earlier terminated in accordance with the terms of this Article 13 set forth below.

13.2   SOW Periods.  Unless any SOW provides otherwise, the period of performance for each SOW (“SOW Period”) will begin on the applicable SOW Date and end upon the expiration of twelve (12) months thereafter.

13.3   Automatic Extension.

13.3.1 Hosting Period Extension.  Unless the applicable SOW provides otherwise, the Hosting Period (and each extension thereof) will be automatically extended for an extension period equal in length to the previous Hosting Period unless either Party provides the other Party with a written termination notice at least thirty (30) days before the expiration of the Hosting Period or the extension, as the case may be.

13.3.2 Extension of SOW Periods.  Unless the applicable SOW provides otherwise, each SOW Period (and each extension thereof) will be automatically extended for an extension period equal in length to the previous SOW Period unless either Party provides the other Party with a written termination notice at least thirty (30) days before the expiration of the SOW Period or the extension, as the case may be.

13.4   Termination for Breach.  If either Party breaches this Agreement and fails to cure the breach within thirty (30) days after receiving written specification of the breach from the non-breaching Party, then the non-breaching Party may terminate this Agreement upon written notice to the breaching Party.

13.5   Termination for Convenience.  Provider will have the right to terminate any SOW (or this Agreement entirely) without cause upon thirty (30) days’ advance, written notice to Client.  If Provider performs any termination under this Section and Client has made a prepayment of fees under any SOW whose SOW Period was not expired as of the date of Provider’s termination notice, Provider will pay to Client, a prorated refund of such prepayment based on the percentage of the applicable Offerings not completed as of the date of Provider’s termination notice.  Client will have no right to receive such prorated refund with respect to any prepayments for the reimbursement of expenses already incurred by Provider.  The End-Use License will continue, subject to the terms of this Agreement, with respect to any Accepted Works delivered by Provider as of the date of Provider’s termination notice.

13.6   Termination for Objection to Host Subcontractor.  If Client has objected to any Host Subcontractor under Section 6.8.2 because of concerns related to the Web Data Security Policy, Provider may, instead of providing an alternate Host Subcontractor, terminate the applicable SOW upon written notice to Client.  In the event of such termination, Client will have no right to receive any refund (prorated or otherwise) with respect to any prepayment related to such SOW.

13.7   Suspension or Termination for Non-Payment.  If Client is in breach of any of its payment obligations under any SOW, Provider may, upon written notice to Client, take any of the following steps: (a) immediately suspend the Offerings related to such SOW; or (b) terminate such Offerings and such SOW.

13.8   Suspension for Website Violation.  If any party (including Client or any Web User) uses any Website or the related Hosting Environment in a manner that violates any Business Conduct Laws, any other applicable laws, any Subcontractor Terms or any Acceptable Use Policy, Provider may, upon written notice to Client, immediately suspend the operation of such Website and all Offerings related to the applicable SOW, including any Hosting Offering and any Extended Website Support Offering.

13.9   Termination for Insolvency.  Subject to the provisions of Title II, United States Code, if either Party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver or similar officer for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other Party, by giving written notice to such Party, may terminate this Agreement as of the date specified in such written notice.

13.10 Infringement Claim.  If Provider receives any claim, allegation, demand or notice from a third party, describing such third party’s assertion of rights or remedies related to any Accepted Works (or portion thereof), Provider will have the right to terminate or suspend the End-Use License with respect to such Accepted Works by providing Client with written notice of such termination or suspension.  In the case of such a suspension, Client will not exercise the End-Use License with respect to such Accepted Works until receiving Provider’s written notice that the suspension has ended.  Client will cause Client Agents to comply with any termination or suspension of the End-Use License under this Section.

13.11 Accrued Payment Obligations.  The termination or expiration of this Agreement will not relieve Client of any of its payment obligations that accrued before the termination or expiration of this Agreement.

13.12 Survival.  Client’s obligations under Articles 4, 5 and 6 of this Agreement (and Provider’s rights under such Articles) will survive the termination and expiration of this Agreement.  Also, the Parties’ rights and obligations under the following provisions of this Agreement will survive the termination and expiration of this Agreement: Sections 7.1, 7.2 and 7.4.3, Section 7.5 (unless and until the End-Use License is terminated under Section 7.5.4), Sections 7.6 through 7.9, Articles 8 through 14, and all other provisions which, by their terms, contemplate survival.

 

ARTICLE 14 – MISCELLANEOUS

14.1   Audit.  Provider will have the right to audit Client’s records, information and materials related to Accepted Works for purposes of assessing Client’s compliance with this Agreement.  Any such audit will not unreasonably interfere with Client’s normal business operations and will be limited to once per calendar year and any additional time at which Provider suspects Client has used such Accepted Works in violation of this Agreement.  Client will cooperate with Provider’s audits and provide reasonable assistance and access to information.

14.2   Export.  The export laws and regulations of the United States and any other relevant local export laws and regulations will apply to any Offerings that include software or technical data, as well as any output data generated by the operation of such software (collectively, “Technical Materials”).  Such export laws will govern Client’s use of the Technical Materials.  Client will comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).  Client will not, directly or indirectly: (a) export any Technical Materials (or direct product thereof) in violation of these laws; or (b) use any Technical Materials (or direct product thereof) for any purpose prohibited by these laws, including nuclear, chemical or biological weapons proliferation, or the development of missile technology.

14.3   Force Majeure.  Provider will not be liable for any failure or delay in the performance of its obligations under this Agreement, and such failure or delay will not be deemed a breach of this Agreement or grounds for termination hereunder if such failure or delay is caused, directly or indirectly, by a fire, flood, earthquake, storm, element of nature, act of God, act of war, terrorism, cyberattack, riot, civil disorder, rebellion, revolution, labor strike, labor lockout, epidemic, pandemic, failure of public utilities, interruption or failure of the Internet, industry-wide unavailability of raw materials or parts, change in law, issuance of a judicial or governmental order, the illegality of any activity or transaction related to the Agreement, or any other cause beyond the reasonable control of Provider (each, a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, Provider will be excused from any further performance of those of its obligations under the Agreement affected by the Force Majeure Event for as long as: (a) such Force Majeure Event continues; and (b) Provider continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible.

14.4   Independent Contractors.  In the performance of this Agreement, the Parties will at all times act as and be deemed to be independent contractors.  Neither Party nor any of its employees, agents or officers will be considered an employee, joint venturer, agent or partner of the other Party.  Neither Party is authorized to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of the other.  Each Party’s personnel and employees will at all times be under the exclusive direction and control of such Party.

14.5   Publicity.  Upon Client’s written consent, Provider will have the right to publish Client’s name and logo in Provider’s client listings within Provider’s website and sales materials.

14.6   Notices.  All notices under this Agreement will be in writing and may be given by personal delivery, nationally recognized courier service, mail, email or any other commercially reasonable method to each Party’s postal or email address as provided in the first paragraph of this Agreement, in any SOW or as otherwise provided in writing to the other Party.  Notices will be deemed to have been received upon the earlier of the following: (a) actual receipt; (b) delivery, if delivered personally or by a nationally or internationally recognized courier service; (c) one business day after being deposited with a nationally or internationally recognized courier service for delivery within twenty-four (24) hours; (d) three business days after being deposited in U.S. mail, by registered or certified mail, return receipt requested and postage prepaid; or (e) a manual, non-automated email reply by the recipient of an emailed notice.  Notwithstanding the foregoing, if any notice related to this Agreement involves or relates to a legal claim, threat or allegation, breach of contract or any other legal action, threatened or actual, the Party providing such notice will deliver such notice to the other Party via personal delivery, nationally recognized courier service, or U.S. mail, by registered or certified mail, return receipt requested.

14.7   Assignment.  Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided, however, that: (a) each Party may assign this Agreement in its entirety to any third party pursuant to a sale of all or substantially all of its assets that pertain to the subject matter of this Agreement; and (b) Provider may assign this Agreement, in whole or in part, to any third party in connection with a merger, corporate reorganization, contractual assignment or other transaction.  Any purported assignment in violation of this Section will be null and void.  This Agreement will be binding on the Parties and their respective successors and permitted assigns.

14.8   Governing Law.  This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to: (a) any conflict of laws principles; or (b) the United Nations Convention on the International Sale of Goods.

14.9   Jurisdiction and Venue.  The courts of the State of New York (state and federal) will have sole and exclusive jurisdiction over any and all Disputes (defined below) arising from, under, out of, relating to, or in connection with this Agreement.  Venue for any action arising out of or relating to this Agreement will be in the State Court in Erie County, New York or in the United States District Court for the Western District of New York; provided, however, that, if the applicable Dispute involves or relates to intellectual property infringement or misappropriation by Client, Provider may optionally select jurisdiction and venue where Client resides or where such infringement or misappropriation occurs.  The Parties hereby waive all claims of immunity from the jurisdiction and venue established pursuant to this Section.  The term “Disputes,” as used in this Agreement, will mean any dispute, controversy, claim, difference, lawsuit, legal action, or administrative, legal, or other proceeding arising from, under, out of, relating to, or in connection with this Agreement, its interpretation, the breach, termination, applicability or validity of this Agreement, any Offerings, the actual or alleged infringement or misappropriation of Provider Property or Client Property, or any other dispute arising out of or relating to the relationship between the Parties or either Party’s property or assets.

14.10 Legal Expenses Awarded to Prevailing Party.

14.10.1  Credit Card Disputes.  In the event that: (a) Client initiates a credit card payment Dispute related to any payment made under this Agreement to Provider; and (b) a third party (including a bank or credit card issuer) investigates such Dispute, such third party may, after completing its investigation, provide the Parties with its written, final decision whether to return (or credit the amount of) such payment to Client.  If such final decision requires the return of (or crediting in the amount of) such payment to Client, Provider will pay for all of the out-of-pocket expenses (including reasonable attorney fees) incurred by Client in connection with such Dispute.  If such final decision does not require the return of (or crediting in the amount of) such payment to Client, Client will pay for all of the out-of-pocket expenses (including reasonable attorney fees) incurred by Provider in connection with such Dispute.  Either Party that owes any expense reimbursement under this Section will pay such reimbursement to the other Party, promptly after receiving an invoice for such reimbursement.

14.10.2  Other Disputes.  In the event that any legal, judicial or administrative proceeding (including lawsuit, appeal of court decision, appellate process and post-judgment proceeding) occurs in relation to any Dispute, the prevailing Party will have the right to recover from the non-prevailing Party, all fees, costs and expenses (including all court costs, reasonable attorney fees, expert witness fees) incurred by the prevailing Party in connection with such Dispute, including all fees, costs and expenses related to activities occurring before and after the proceeding, including any mediation activities, lawsuit preparation, litigation activities, post-lawsuit activities, and all settlement and negotiation activities (collectively, “Legal Expenses”).  The non-prevailing Party hereby agrees and consents that the court will award the Legal Expenses to the prevailing Party. 

14.11 Equitable Relief.  Notwithstanding anything in this Agreement to the contrary, in the event of a breach or threatened breach of Article 4, Section 5.5, Article 7 or Article 8 of this Agreement by Client, Client acknowledges that Provider’s remedies at law would be inadequate and that Provider would suffer continuing and irreparable injury to its businesses and opportunities, and therefore, in the event of any such violation or threatened violation, Provider will be entitled, in addition to any other remedies available, to seek a temporary restraining order and other injunctive relief without any requirement to prove actual damages or to post a bond, and Provider will be entitled to any other appropriate equitable relief that the court deems proper.

14.12 Waiver.  Neither Party’s delay or failure in enforcing any right or remedy afforded under this Agreement or by law will prejudice or operate to waive that right or remedy or any other available right or remedy.

14.13 Severability.  If any term of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, or becomes invalid or unenforceable by operation of law, the remainder of this Agreement will continue in full force and effect, and such term will be replaced with another term consistent with the purpose and intent of this Agreement.

14.14 Judicial Modification.  If any provision of this Agreement is deemed unenforceable because of its scope in terms of disclaimer, limitation, time, ownership or any other matter, the court making such determination will have the power to modify such provision, through reductions or limitations thereon or to delete specific words or phrases, and in its reduced form, such provision will then be enforceable and will be enforced under applicable law.

14.15 Entire Agreement.  This Agreement, including the SOWs, forms the entire and complete agreement between the Parties, and this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the subject matter of this Agreement.

14.16 Amendment.  Except as provided in this Section, this Agreement may not be modified, and the rights, obligations and restrictions hereunder may not be altered or waived.  The top of this Agreement states the date of the version of this Agreement that Provider posted to the Provider Site as of the Effective Date (“Original Version”).  From time to time after such posting, Provider may post to the Provider Site, a modified version of the Original Version of this Agreement (each, a “Modified Version”).  The Original Version will apply to and govern all SOWs having an SOW Date before Provider posts any Modified Version to the Provider Site.  Each Modified Version will apply to and govern each SOW having an SOW Date after Provider posts such Modified Version to the Provider Site.  This Agreement will not be modified by any course of dealing, course of performance or usage of trade; provided, however, that Client’s receipt, use of or payment for any Offerings under any SOW will be deemed Client’s binding consent and agreement to amend this Agreement as set forth in the Modified Version that was posted to the Provider Site as of the SOW Date of such SOW.

14.17 Controlling Terms; Conflicts.  This Agreement will supersede the terms in any non-Provider document (including any purchase order, procurement internet portal, click-through agreement or other document prepared by Client), and no terms included in any non-Provider document will apply to the End-Use License or any Offerings provided by Provider.  In the event of a conflict between the terms set forth in Articles 1 through 14 of this Agreement and the terms of any SOW, the terms in such Articles will control and prevail.

14.18    Construction; Interpretation.  Each Party acknowledges and agrees that: (a) the Parties have participated jointly in the negotiation and drafting of this Agreement; (b) it or its counsel has reviewed and negotiated the terms and provisions of this Agreement; (c) no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement or the changes made through revisions; (d) the rule of construction to the effect that any ambiguities are resolved against the drafting Party will not be employed in the interpretation of this Agreement; (e) any reference to applicable laws will be deemed to refer to all applicable international, foreign, national, federal, state, local and municipal statutes, laws and orders, including all ordinances, rules and regulations promulgated thereunder; (f) all terms defined in the singular form will have the same meaning in the plural form, and all terms defined in the plural form will have the same meaning in the singular form; (g) the word, “will” has the same legal effect and force as the word, “shall;” and (h) the word “including” means “including, without limitation,” the word, “includes” means “includes, without limitation,” and the word “or” will not be exclusive.

14.19 Signature of SOWs.  Either Party may sign any SOW in its sole discretion; provided, however, that its signature will not be required to make such SOW legally binding.  Instead, such SOW will be accepted (or deemed accepted) by Client and binding upon the Parties in accordance with Section 3.1.  Any signed copy of any SOW in digital (e.g., PDF) or facsimile form will be deemed and considered as an original, binding and enforceable document.  Each Party hereby agrees that its electronic signature of any SOW will be deemed, and will have the same force and effect as, its original, hand-written signature of such SOW.

14.20 Signature of Agreement.  Provider will be deemed to have duly signed this Agreement (including the Original Version and each Modified Version) upon posting the Original Version and each Modified Version to the Provider Site.  Client will be deemed to have duly signed this Agreement (including the Original Version and each Modified Version) upon performing the earlier of the following steps of assent: (a) clicking or activating any checkbox, selector or consent indicator that accompanies the Original Version or any Modified Version, as the case may be; (b) signing any SOW that refers to this Agreement; (c) providing Client’s written approval of any SOW that refers to this Agreement, which approval may be in the form of an email, text message, or direct message sent through a web portal or other electronic communication platform; (d) providing a purchase order to Provider for any Offerings; and (e) receiving, using or paying for any Offerings.

 

End of Master Service Agreement

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