TERMS OF SERVICE
Last Updated: March 4th 2020
THESE TERMS OF SERVICE (the “Agreement”) CONSTITUTES A BINDING CONTRACT BETWEEN CONTENT IQ, LLC (“Company”) AND THE CUSTOMER (“Customer”) THAT SUBSCRIBES TO THE WILDFIRE SERVICE (DEFINED BELOW).
BY SUBSCRIBING TO THE WILDFIRE SERVICE, OR BY OTHERWISE ACCESSING OR USING THE WILDFIRE SERVICE, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THE FOLLOWING (THE DATE OF SUCH OCCURRENCE BEING THE “Effective Date”):
THIS AGREEMENT, AND
OTHER SUPPLEMENTAL TERMS AND POLICIES REFERENCED HEREIN, WHICH ARE STATED TO BE INCORPORATED INTO THIS AGREEMENT BY REFERENCE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT THAT YOU HAVE FULL AUTHORITY TO BIND SAID ENTITY TO THIS AGREEMENT.
“Affiliate” means, with respect to either party, any person, organization or entity controlling, controlled by, or under common control with, such party, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organization or entity, whether through the ownership of voting securities or by contract or otherwise.
“Ad Creatives” means any advertising materials that Company creates in connection with the Wildfire Service.
“Content” means any text, data, information, files, images, graphics, sounds, music, videos, code, audio clips, links, and/or other similar materials.
“Company Content” means any Content (excluding Customer Content) appearing or made available on or in the Wildfire Service.
“Customer Content” means any Content inputted or uploaded to the Wildfire Service, or transmitted through the Wildfire Service, by or on behalf of Customer.
“Documentation” means any user guide for the Wildfire Service that Company provides or makes available to Customer.
“Feature” means any module, tool, functionality, or feature of the Wildfire Service.
“Intellectual Property” means any and all inventions, invention disclosures, discoveries, improvements, works of authorship, technical information, data, databases, know-how, show-how, designs, ideas, drawings, logos, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, software (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property or technology, in any format and media, anywhere in the world.
“Intellectual Property Rights” means any and all rights, titles, and interests in and to Intellectual Property (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered) and includes without limitation patents, copyright and similar authorship rights, personal rights (such as Moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as: (a) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and (b) all goodwill associated with the foregoing rights.
“Law” means any federal, state, foreign, regional or local statute, regulation, ordinance, or rule of any jurisdiction, including without limitation the the EU General Data Protection Regulation.
“Mini Site” means a website developed by Company based on Company technology and know-how, the content and layout of which were reviewed by Customer and serve as a landing page to paid content distribution Campaigns, as specified in the signed Order Form.
“Mini Site Content” means any text, rich media, graphics, photos, video and/or audio materials or combination thereof, and any other creative, that is presented to end users in a Mini site in connection with the Wildfire Service.
“Moral Rights” means any rights of paternity or integrity, or any right to claim authorship of a work, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any work, whether or not such would be prejudicial to the honor or reputation of the creator of the work, and any similar right, existing under judicial or statutory Law of any jurisdiction, or under any treaty.
“Order Form” means the form submitted by Customer when subscribing to the Wildfire Service.
“Update” means an upgrade or update (such as a fix or patch) to or of the Wildfire Service, excluding new Features.
“Wildfire Service” means Company’s proprietary software-as-a-service for managing paid content distribution on third party websites (such as Facebook) to Customer website (“Campaigns”), or to a specially created Mini Site in order to generate profit.
2.SUBSCRIPTION RIGHTS AND RESTRICTIONS.
2.1.Subscription. Subject to the terms and conditions of this Agreement, Company grants Customer a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable right, during the Term (defined below), to access and use the Wildfire Service solely for Customer’s internal business operations (collectively, the “Subscription”).
2.2.Restrictions. As a condition to the Subscription, Customer shall not do (or permit or encourage to be done) any of the following (in whole or in part): (a) copy, “frame” or “mirror” the Wildfire Service or Company Content; (b) sell, assign, transfer, lease, rent, sublicense, or otherwise distribute or make available the Wildfire Service or Company Content to any third party (such as offering it as part of a time-sharing, outsourcing or service bureau environment); (c) publicly perform, display or communicate the Wildfire Service or Company Content; (d) modify, alter, adapt, arrange, or translate the Wildfire Service or Company Content; (e) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Wildfire Service or Company Content; (f) remove, alter, or conceal any copyright, trademark, patent, or other proprietary rights notices displayed on or in the Wildfire Service or Company Content; (g) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Wildfire Service or Company Content; (h) make a derivative work of the Wildfire Service or Company Content, or use them to develop any service or product that is the same as (or substantially similar to) it; (i) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item (for example, by way of Customer Content) intended (or that has the potential) to damage or disrupt the Wildfire Service or Company Content; (j) employ any hardware, software, device, or technique to pool connections, devices or users that directly access or use the Wildfire Service or Company Content (sometimes referred to as ‘virtualisation’, ‘multiplexing’ or ‘pooling’) in order to circumvent any limitations or conditions on the scope of the Subscription; (k) forge or manipulate identifiers in order to disguise the origin of any data or content inputted or uploaded to, or transmitted through, the Wildfire Service or Company Content by Customer; or (l) take any action that imposes or may impose (as determined in Company’s reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Wildfire Service or Company Content, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.
2.3.Reservation of Rights. For the avoidance of doubt, the Wildfire Service and Company Content (including any copies thereof) are only licensed hereunder, and no title in or to the Wildfire Service or Company Content (or such copies) passes to Customer. Any rights not expressly granted herein are hereby reserved by Company and its licensors, and, except for the Subscription, Customer is granted no other right or license to the Wildfire Service or Company Content, whether by implied license, estoppel, exhaustion, operation of law, or otherwise.
2.4.Delivery. The Wildfire Service will be delivered electronically. Unless specified otherwise in the Order Form, the Wildfire Service shall be deemed accepted upon delivery.
2.5.Data Backup. The Wildfire Service is not intended to, and will not, operate as a data storage or archiving product or service, and Customer agrees not to rely on the Wildfire Service for the storage of any Customer Content whatsoever. Customer is solely responsible and liable for the maintenance and backup of all Customer Content.
3.THIRD PARTY PROVIDERS.
Customer hereby represents and warrants that: (a) its Customer Content does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property Rights, privacy rights (or other personal rights), or any Law; (b) its Customer Content is not, and will not be, disparaging, libelous, threatening, offensive, harassing, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person’s safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement; and (c) it has obtained, and will maintain during and after any termination of this Agreement, any and all licenses, permissions, consents, approvals, and authorizations required in connection with Customer Content. The content, nature, frequency, and quantity of Customer Content has not been specifically requested or authorized (and may or may not be reviewed) by Company. Unless specifically requested by the Wildfire Service, or strictly required for use of the Wildfire Service, Customer represents and warrants that Customer Content will not include any Sensitive Data (as defined below), unless Sensitive Data is specifically requested by Company.
“Sensitive Data” means any (i) categories of data enumerated in Article 9(1) of the European Union’s General Data Protection Regulation (Regulation 2016/679, aka the GDPR) or any successor Law; (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented (“HIPAA”), and Customer also agrees that Company is not acting as Customer’s Business Associate or subcontractor (as such terms are defined under HIPAA); (iii) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (iv) other information subject to regulation or protection under specific Laws, such as the United States’ Gramm-Leach-Bliley Act (or related Laws); (v) social security numbers, national insurance numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic Laws.
5.1.Fees. The parties agree to pay all fees payable under the Order Form in accordance with this Agreement, unless specified otherwise in the Order Form (“Fees”) (the party required to pay Fees under an Order Form shall be referred to as the “Payor Party; and the party to whom Fees are payable under an Order shall be referred to as the “Payee Party”).
5.2.Company Invoices. Unless expressly stated otherwise in the Order Form, in the event the Order Form requires Fees paid by Customer to Company, Company shall invoice Customer for such Fees incurred during the previous month as set out in the billing report provided to Customer under Section 5.4. The invoice will be payable by Customer within thirty (30) days from receipt of invoice.
5.3.Customer Invoices. In the event the Wildfire Service requires Fees paid by Company to Customer, Customer shall invoice Company such Fees as set out in the billing report provided to Customer under Section 5.4 and, unless otherwise agreed in the Order Form, the invoice will be payable by Company within sixty (60) days from receipt of invoice.
5.4.Billing Report. Company shall provide a report to the Customer detailing the Fees payable to Customer. All reported numbers for purposes of billing and payments are based on the counts within the Wildfire Service’s reporting system.
5.5.General. Unless expressly stated otherwise in the Order Form: (a) all Fees are stated, and are to be paid, in US Dollars via bank transfer to the account of the Payee Party at a bank to be nominated in writing by such party; (b) any amount not paid when due will (i) accrue interest on a daily basis until paid in full, at the lesser of the rate of one-half percent (0.5%) per month and the highest amount permitted by applicable Law; and (ii) where Company is the Payee Party, entitle Company, without liability to Customer, to suspend the Wildfire Service, disable Customer’s account access to all or part of the Wildfire Service, and Company shall be under no obligation to provide any or all of the Wildfire Service while the invoice(s) concerned remain unpaid. The Payor Party may set off and withhold against invoiced amounts any debt or sum owing to the Payor Party by the Payee Party.
5.6.Taxes. Each party shall be responsible for paying all applicable taxes, duties and other governmental charges imposed on it with respect to this Agreement and its performance hereunder. The Payor Party may withhold and deduct from Fees any and all applicable taxes and charges required to be withheld according to any applicable law or regulation, and the balance shall be deemed as full payment of such Fees. In addition, the Payee Party acknowledges that payments due to it may be subject to further deductions for payment processing fees by correspondents and the Payee Party’s own banking institution(s) which shall be fully borne by the Payee Party.
5.7.Customer Billing Information. Customer shall on the Effective Date provide to Company valid, up-to-date and complete approved Order Form information acceptable to Company and any other relevant valid, up-to-date and complete contact and billing details.
6.1.Service. As between the parties, Company is, and shall be, the sole and exclusive owner of all Intellectual Property Rights in and to: (a) the Wildfire Service; and (b) any and all improvements, derivative works, modifications, and/or customizations of/to the Wildfire Service and the Mini Site Content, regardless of inventorship or authorship. Customer shall make, and hereby irrevocably makes, all assignments necessary or reasonably requested by Company to ensure and/or provide Company the ownership rights set forth in the preceding sentence.
6.2.Customer Data. As between the parties, Customer is, and shall be, the sole and exclusive owner of all Customer Content.
6.3.Feedback and Statistical Data. In the event that Customer (or any person on Customer’s behalf) provides any suggestions or similar feedback regarding the Wildfire Service and/or Company Content, or any part thereof (“Feedback”), and/or to the extent Company receives de-identified statistical (or similar) information or data regarding Customer’s use of the Wildfire Service and/or Company Content (“Statistical Data”), Company shall be entitled, in perpetuity, to use and commercially exploit such Feedback and Statistical Data without any obligation or restriction whatsoever.
Each party and/or its Affiliates (the “Recipient”) may have access to certain non-public or proprietary information and materials of the other party and/or its Affiliates (the “Discloser”), whether in tangible or intangible form (“Confidential Information”). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, was in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings. Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature, to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes of performing under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such Law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon reasonable written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it, and if requested, certify such erasure in a signed writing).
THE WILDFIRE SERVICE, THE MINI SITE, COMPANY CONTENT, AND ALL OTHER SERVICES AND ITEMS PROVIDED OR MADE AVAILABLE BY COMPANY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS, AND WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET POSSESSION, NON-INFRINGEMENT, TITLE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY COMPANY;
COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE, OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, COMPLETENESS, OR QUALITY OF THE WILDFIRE SERVICE, THE MINI SITE, COMPANY CONTENT, OR OTHER SERVICES AND ITEMS PROVIDED OR MADE AVAILABLE BY COMPANY, THAT CUSTOMER’S USE THEREOF WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR REGARDING THE SATISFACTION OF, OR COMPLIANCE WITH, ANY GOVERNMENT REGULATIONS OR STANDARDS.
The above disclaimers apply to the maximum extent permitted by applicable Law. Customer may have legal rights in its country of residence which would prohibit the above disclaimers from (fully or partially) applying to Customer (for example, some jurisdictions’ Laws do not allow the disclaimer of certain implied warranties or conditions, and do not allow limitations to be imposed on statutory rights), and, to the extent the above disclaimers are prohibited, then Customer and Company agree that they will not apply to Customer.
9.LIMITATION OF LIABILITY.
9.1.IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT, FOR:
(A)ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES;
(B)ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS;
(C)ANY LOSS OF, THEFT OF, OR DAMAGE TO, CUSTOMER CONTENT, DATA, NETWORKS, HARDWARE, REPUTATION, OR GOODWILL; AND/OR
(D)THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES.
9.2.THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL COMPANY’S AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER (IF ANY) TO COMPANY OR A COMPANY AFFILIATE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO SUCH LIABILITY.
9.3.THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; (B) EVEN IF A PARTY HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (C) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (D) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY, INCLUDING WITHOUT LIMITATION BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY, OR OTHER CONTRACT, TORT OR STATUTORY LIABILITY.
10.1.Company Indemnity. Subject to the terms and conditions of this Agreement, (a) Company shall defend Customer against any third party demand, claim, suit, or action alleging that the Mini Site or Customer’s use of the Wildfire Service in accordance with this Agreement infringes such third party’s copyright(s) or patent(s) (an “Infringement Claim”) or is in breach of applicable Law; and (b) Company will pay any amounts finally awarded by a court against Customer (or otherwise agreed in settlement) under such Infringement Claim, as well as reimburse Customer for any documented expenses and legal fees (including a reasonable attorney’s fee) actually incurred by Customer prior to its notifying Company of the Infringement Claim. Customer must notify Company promptly after becoming aware of an Infringement Claim. Company’s obligation and liability under this Section are subject to the conditions that: (a) Customer has promptly so notified Company in writing of the Infringement Claim, and fully cooperates with Company in the defense of such Infringement Claim; (ii) Customer permits Company to assume sole control of defense of the Infringement Claim and all negotiations for any settlement thereof; and (iii) Customer refrains from admitting any liability or otherwise compromising the defense in whole or in part, without the express prior written consent of Company. Subject to Company’s express prior written consent, Customer shall have the right to participate in the defense of the Infringement Claim at its own cost and expense.
10.2.Customer Indemnification. Subject to the terms and conditions of this Agreement, If any third party (including, but not limited to, a regulatory or governmental authority) brings or makes any demand, claim, suit, action or proceeding against Company, a Company Affiliate, and/or any of their respective directors, officers, employees, or representatives (each, an “Indemnitee”), and it is based upon or arises from:
(a)Customer’s use of the Wildfire Service; and/or
(b)Customer’s breach of applicable Law
(each of the foregoing, an “Indemnity Claim”) then, upon written request by Company (to be decided in its sole discretion), Customer agrees to assume full control of the defense and settlement of the Indemnity Claim; provided, however, that (c) Company reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Indemnity Claim, and in such cases Customer agrees to reasonably cooperate with Company’s defense activities at Customer’s own cost and expense; and (d) Customer shall not settle any Indemnity Claim, or admit to any liability thereunder, without the express prior written consent of the Indemnitee(s).
In addition, and regardless of whether (or the extent to which) Customer controlled or participated in the defense and/or settlement of an Indemnity Claim, Customer agrees to indemnify and hold harmless the Indemnitee(s) for and against: (e) any costs and expenses (including reasonable attorneys’ fees) incurred by the Indemnitee(s) in the defense of the Indemnity Claim; and (f) any amounts awarded against, or imposed upon, the Indemnitee(s) under such Indemnity Claim, or otherwise paid in settlement of the Indemnity Claim (including without limitation any fines or penalties).
11.TERM AND TERMINATION.
11.1.Term. This Agreement commences on the Effective Date and, unless terminated in accordance herewith, shall continue in full force and effect for the period stated in the applicable Order Form (the “Initial Term”), following which this Agreement shall automatically renew for successive periods of equal length (each, a “Renewal Term”, and together with the Initial Term, the “Term”).
11.2.Termination by for Convenience. Each party reserves the right to terminate this Agreement, including any outstanding Order Form which is subject to the terms of this Agreement, for convenience, at any time, upon ten (10) business days’ prior written notice to the other Party, and each party agrees that that the terminating party shall have no liability to the other party for any such termination, except as otherwise set forth in the applicable Order Form.
11.3.Termination for Cause. Either party may terminate this Agreement, effective upon written notice to the other party: (a) if the breaching party commits a material breach under this Agreement (and default of any payment obligations shall be deemed a material breach); and/or (b) upon the occurrence of any of the following events: (i) a receiver is appointed for a Party, which appointment is not dismissed within sixty (60) days; (ii) a Party makes a general assignment for the benefit of its creditors; (iii) a Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) a Party is liquidating, dissolving or ceasing normal business operations.
12.CONSEQUENCES OF TERMINATION; SURVIVAL.
Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities that accrued as of the effective date of termination. Upon termination of this Agreement:
(a)the Subscription will automatically terminate and be deemed revoked, and Customer will immediately lose all access to, and use of, the Wildfire Service;
(b)Customer’s Account and related access credentials shall be terminated, and Customer shall be responsible for download or backing up any Customer Content, and Company shall not be required (unless required by applicable Law) to retain any Customer Content on Company’s databases and servers hosting the Wildfire Service; and
(c)Customer shall promptly pay any unpaid amounts that are outstanding as of termination.
(d)Confidential Information shall be returned or erased in accordance with Section 7 (Confidentiality).
Sections 6 (Ownership) through 15 (Miscellaneous) inclusive, as well as any other provision which is intended to survive termination of this Agreement, shall survive termination.
13.GOVERNING LAW; JURISDICTION AND VENUE.
This Agreement (including without limitation its validity and interpretation) shall be governed by, and construed in accordance with, the laws of the State of New York, USA, without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. The courts located in New York County, New York, USA shall have exclusive jurisdiction over any Dispute (defined below) that is not subject to arbitration pursuant to Section 14 (Jurisdiction), and the parties hereby irrevocably and unconditionally submit to the personal jurisdiction of such courts and waive any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue.
Regardless of any Law to the contrary, any claim or cause of action arising under, or otherwise in connection with, this Agreement must be filed within ONE (1) YEAR after such claim or cause of action arose, or else Customer agrees that such claim or cause of action will be barred forever.
This Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of New York, New York, over any dispute arising out of or connected to this Agreement. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.1.Entire Agreement. This Agreement, including the applicable Order Form, represents the entire agreement between Company and Customer with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Customer and Company with respect to such subject matter. Customer acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement, such as statements and explanations in any FAQs, summaries or explanatory guides regarding this Agreement, or other marketing material on the Company website. To the extent of any conflict or inconsistency between these terms and conditions on the one hand, and the Order Form on the other hand, the former shall prevail (unless the Order Form expressly overrides a provision herein). The Section headings in this Agreement are for convenience of reading only, and shall not to be used or relied upon for interpretive purposes.
15.2.Modifications to Agreement. Company may, from time to time and in its sole discretion, modify the terms and conditions of this Agreement, with notice to Customer in accordance with Section 15.13 (Notices). Except as otherwise indicated below, modifications to this Agreement will take effect at the next renewal of your Subscription and will automatically apply as of the next Renewal Term (if any). Notwithstanding the foregoing, in some cases (for example, to address compliance with Laws, or as necessary for new Features) Company may specify that such modifications become effective during Customer’s then-current Term. If the effective date of a modification is during Customer’s then-current Term, and the modification is material and adverse (that is, it expands Customer’s obligations and liabilities in a material way) and Customer objects to the modification, then, as Customer’s sole remedy, and Company’s sole obligation and liability, Customer may terminate the Agreement upon written notice to Company and receive a pro-rated refund of any pre-paid Fees hereunder based on the remaining period of the then-current Initial Term or Renewal Term (as the case may be); provided, however, that in order to exercise this right, Customer must provide Company with written notice of its objection and termination (which notice must include an explicit reference to the modification to which Customer objects) within thirty (30) days of Company’s notice of the modification.
15.3.Company Affiliates. At Company’s sole discretion, any Company obligation hereunder may be performed (in whole or in part), and any Company right or remedy may be exercised (in whole or in part), by a Company Affiliate. Without limiting the generality of the foregoing, Company may assign its right to invoice and receive payments under this Agreement to an Company Affiliate.
15.4.Publicity. Company may use Customer’s name and logo on Company’s website and in its promotional materials to state that Customer is a customer of Company and a Wildfire Service user. In addition, the parties agree to issue a mutually agreed press release following the successful launch of the Wildfire Service.
15.5.Compliance with Laws. Each party shall comply with all Laws applicable to it in connection with the performance of its obligations under the Agreement.
15.6.Export Compliance. Customer represents and warrants (on behalf of itself and its User Account, if applicable) that: (a) it is not a resident of (or will use the Wildfire Service in) a country that the U.S. government has embargoed for use of the Wildfire Service, nor is Customer named on the U.S. Treasury Department’s list of Specially Designated Nationals or any other applicable trade sanctioning regulations of any jurisdiction; and (b) its country of residence and/or incorporation (as applicable) is the same as the country specified in the contact and/or billing address provided to us. In the event Customer breaches this Section (in whole or in part), or otherwise violates any Export Control Laws (defined below) in connection with the Wildfire Service, Customer agrees to indemnify and hold harmless Company and all Company Affiliates (including ours and their respective directors, officers, and employees) for any fines and/or penalties imposed upon Company or an Company Affiliate (or such persons) as a result of such breach or violation. “Export Control Laws” means all applicable export and re-export control Laws applicable to Customer and/or Company, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
15.7.Assignment. Company may assign this Agreement (or any of its rights and/or obligations hereunder) without Customer’s consent, and without notice or obligation to Customer. This Agreement is personal to Customer, and Customer shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without Company’s express prior written consent. Any prohibited assignment shall be null and void.
15.8.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the parties hereto agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such illegality, invalidity or unenforceability), and will be substituted (in respect of such jurisdiction) with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
15.9.Third Party Software Rights. If Customer’s authorized use of the Wildfire Service results in any software code being distributed to Customer, and such software code is owned by a third party (“Third Party Software”), and is subject to its own licensing terms or notices (“Third Party Software Terms”) that render ineffective (or otherwise prohibit) any usage restrictions in this Agreement, then nothing in this Agreement is intended to prohibit (and nothing in this Agreement shall be construed as prohibiting) Customer from engaging in such restricted uses.
15.10.Remedies. Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
15.11.Waiver. No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by Company, the writing must be duly signed by an authorized representative of Company), and shall be valid only in the specific instance in which given.
15.12.Relationship. The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
15.13.Notices. The parties agree they may send each other notices by email, via each party’s point of contact at the time of the notice. and/or by regular mail.
15.14.No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (such as Company Affiliates), there shall be no third-party beneficiaries of or under this Agreement.
15.15.Force Majeure. Company shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond Company’s reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Wildfire Service shall not be deemed within Company’s reasonable control.
15.16.Language; Electronic Contract. The language of this Agreement is expressly agreed to be the English language. By entering into the Agreement, Customer hereby irrevocably waives to the maximum extent legally permitted, any Law applicable to Customer requiring that the Agreement be localized to meet Customer’s language (as well as any other localization requirements), or requiring an original (non-electronic) signature or delivery or retention of non-electronic records. Company may be able (but is not obligated) to provide Customer with copies of this Agreement on written request; however, please be sure to print a copy of this Agreement for Customer’s own records.