Master Service Agreement
This Master Services Agreement ("MSA") governs Customer’s acquisition and use of the Offering. By implementing or using the Offering you agree that you are authorized to accept these terms and conditions on behalf of yourself and/or your company (collectively, "you" or "Customer"), and that you are bound by the terms of this MSA for the Offering. Capitalized terms have the definitions set forth herein. By accepting this MSA, by (a) executing a Statement of Work or order form that references this MSA or (b) using free or trial services, Customer agrees to the terms of this MSA. If you do not agree with the terms contained in this MSA, you may not use any portion of the Offering. This MSA was last updated on August 15, 2023 and is effective between Organic Ventures Inc., a Delaware corporation ("Provider" or "Organic") and Customer as of the date of on which Customer accepts this Agreement ("Effective Date").
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology or device, used alone or in combination, to verify an individual’s identity and authorization to access and use the Platform.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation or investigation of any nature, whether at law, in equity, or otherwise.
"Advertisements" means all material or messages in any format that promotes a Person’s brand, product, services or idea, including banner advertisements, pre-roll advertisements, sponsored articles, sponsored videos, newsletters, events and any other activities and manner to exploit the Customer Content or the name and likeness of a writer or other party associated with the Customer Content to promote a Person or sell a Person’s products or services.
"Advertising Policies" means the then-current rules, including insertion orders, for the sale of Advertisements associated with the Customer Content.
"Advertising Services" means the advertising services provided to Customer by Provider as set forth in any Statement of Work or Order Form.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
"Agreement" means this Master Services Agreement, including all Exhibits hereto and Statements of Work or Order Forms.
"Authorized Users" means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to the Agreement; and (b) for whom access to the Platform has been purchased hereunder.
"Confidential Information" has the meaning set forth in Section 8.1.
"Customer" has the meaning set forth in the preamble.
"Customer Content" means the Domains and any information, data, text, Software, music, audio, photographs, graphics, video, messages, URLs, keywords and other navigational elements, links, and pointers, and any other materials (a) created by or on behalf of Customer, including through using AI tools, or provided by or on behalf of Customer pursuant to the Agreement or otherwise; and (b) published or contained on a Domain or the Platform including on third-party domains.
"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Platform. For the avoidance of doubt, Customer Data does not include Operational Data or any other aggregated and anonymized information reflecting access to or use of the Platform by or on behalf of Customer or by any Authorized User.
"Customer Indemnitee" has the meaning set forth in Section 11.1.
"Customer License" has the meaning set forth in Section 9.2(a).
"Customer Systems" means the Customer’s information technology infrastructure, including computers, Software, hardware, databases, electronic systems (including database management systems), and networks, whether operated by Customer or through the use of a third party.
"Disclosing Party" has the meaning set forth in Section 8.1.
"Documentation" means any manuals, instructions, or other documents or materials listed in any Statement of Work or Order Form that the Provider provides or makes available to Customer in any form or medium and which describes the functionality, components, features, or requirements of the Platform, including any aspect of the installation, configuration, extension, integration, operation, use, support, or maintenance of the Platform (as applicable).
"Domains" means the applicable Customer Internet domains set forth in any Statement of Work or Order Form.
"Domains Data" has the meaning set forth in Section 6.1.
"Effective Date" has the meaning set forth in the preamble.
"EU Data Protection Laws" means the GDPR and laws implementing or supplementing the GDPR, as well as all applicable laws relating to data protection and privacy within the European Economic Area, Switzerland, and the United Kingdom.
"Fees" has the meaning set forth in Section 7.1.
"GDPR" means Regulation (EU) 2016/679 (General Data Protection Regulation) on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
"Harmful Code" means any Software, hardware, or other technology, device, or means (including any virus, worm, malware, or other malicious computer code) the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, Software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Platform or Provider Systems as intended by the Agreement.
"Inappropriate Content" means content that is pornographic, sexually explicit, violent, illegal (including stolen copyrighted material and material that infringes or has the potential to infringe the Intellectual Property Rights of a Person), reasonably likely to cause harm, reasonably considered as slanderous or libelous, breaches a Person’s privacy, is spam, is machine- or randomly-generated, contains unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing), or mislead recipients as to the source of the material (such as spoofing).
"Indemnitee" has the meaning set forth in Section 11.3.
"Indemnitor" has the meaning set forth in Section 11.3.
"Initial Term" has the meaning set forth in Section 13.1.
"Intellectual Property Rights" means any and all rights now or hereafter arising from or associated with the following, whether registered, unregistered, applied for or otherwise: (a) patents, patent applications, and reissues, continuations, continuations in part, divisionals, extensions, revisions and reexamination thereof; (b) trademarks, service marks, logos, trade dress, trade names and other indicia of source or origin, together with the goodwill associated with the foregoing; (c) copyrights, works of authorship, databases, data collections and copyrightable works; (d) Internet domains; (e) Software; (f) Trade Secrets; and (g) similar or equivalent rights or forms of protection existing anywhere in the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Log-in Data" has the meaning set forth in Section 6.1.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Operational Data" means aggregated and anonymized data and information related to Customer’s and any Authorized User’s access to and use of the Platform, including statistical, operation and performance information related to the Platform.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
"Personal Information" means any information that (a) identifies or can be used to identify, directly or indirectly, an individual, household, or an individual’s electronic device; or (b) can be used to authenticate an individual. For the avoidance of doubt, Personal Information includes Sensitive Personal Information.
"Privacy Policies" means any applicable privacy policies, including notices issued thereunder, that govern the Processing of Personal Information.
"Processing" means processing, collecting, accessing, using, disclosing, transmitting, securing, sharing, retaining, destroying, transferring (including cross-border and onward transfers), storing or otherwise handling.
"Provider" has the meaning set forth in the preamble.
"Provider Indemnitee" has the meaning set forth in Section 11.2.
"Provider Materials" means, as applicable, the Specifications, Documentation, Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, Software, and other technologies and inventions (including any deliverables, technical or functional descriptions, requirements, plans, or reports) that are provided or used by Provider or any Subcontractor in connection with the Offering. For the avoidance of doubt, Provider Materials include Operational Data and Feedback, but do not include Customer Data.
"Provider Personnel" means all individuals involved in the providing the Offering as employees, agents, or independent contractors of Provider or any Subcontractor.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in providing the Offering, including all computers, Software, hardware, databases, electronic systems (including database management systems), and networks, whether operated by Provider or through the use of a third party.
"Receiving Party" has the meaning set forth in Section 8.1.
"Reimbursable Expenses" has the meaning set forth in Section 7.6.
"Renewal Term" has the meaning set forth in Section 13.2.
"Representatives" means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, agents, and legal advisors.
"Sensitive Personal Information" means (a) an individual’s government-issued identification number, including Social Security number, driver’s license number, or state-issued identification number; (b) an individual’s financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual’s financial account; (c) Personal Information of Persons under the age of thirteen or (d) biometric, genetic, health, or health insurance data.
"Service Level Agreement" means any service level agreement executed by and between the Parties that relates to the Offering.
"Software" means (a) computer software, computer programs, applications (including for mobile devices), LLMs (large language models) including other AI and software implementations of algorithms, models and methodologies, whether in source code, object code or any other form; (b) databases in any form and database management code; (c) specifications, utilities, interfaces, menus, icons, templates, forms, methods of processing, firmware, software engines, platforms, development tools, library functions, assemblers and compilers; (d) all versions, releases, updates, corrections, derivative works, enhancements and modifications of the foregoing; and (e) all related documentation (including, if applicable, the Documentation).
"Specifications" means the specifications for the Offering set forth in any Statement of Work or Order Form.
"Statement of Work" or "SOW" (or "Order Form") means the one or more statements of work (or order form or insertion order thereunder) to be provided pursuant to and governed under the terms of the Agreement, as agreed to by the Parties.
"Subcontractor" has the meaning set forth in Section 2.5.
"Subject Matter" means the subject matter of each Domain, as set forth in any Statement of Work or Order Form.
"Term" has the meaning set forth in Section 13.2.
"Third-Party Materials" means materials and information, in any form or medium, including any open source or other Software, documents, data, content, specifications, products, equipment, or components of or relating to the Offering that are not proprietary to Provider.
"Third-Party Services" means products and services provided in connection with Third-Party Materials.
"Trade Secrets" means trade secrets, know-how and corresponding rights in confidential and proprietary information, including discoveries, concepts, ideas, algorithms, formulae, inventions (whether or not patentable), research and development information, technology, processes, techniques, technical data, designs, drawings, specifications, improvements, business and marketing plans and strategies, market surveys, market know-how, pricing, and customer lists.
"User Content" has the meaning set forth in Section 3.1.
2.1 Platform Access and Use.
a. Subject to Customer’s and its Authorized Users’ compliance with the terms and conditions hereof, Provider hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 14.9) right to access and use the Platform and the Documentation during the Term solely for (i) Authorized Users’ use and (ii) Customer’s internal business purposes, in each case, in connection with the Offering and in accordance with the Agreement.
b. Provider shall provide to Customer the Access Credentials within a reasonable time following the Effective Date. The total number of Authorized Users will not exceed the number set forth in any applicable Statement of Work or Order Form, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
c. Platform and System Control. Except as otherwise expressly provided in the Agreement, as between the parties:
d. Provider will operate, provide, maintain and administer the Platform;
e. Provider has and will retain sole control over the Provider Systems, including the operation, provision, maintenance, and management thereof; and
f. Customer has and will retain sole control over the Customer Systems, including the operation, provision, maintenance, and management thereof, and all access thereto and use thereof.
For the avoidance of doubt, notwithstanding anything to the contrary in the Agreement, the Offering, including all Processing of Customer Data by or on behalf of Provider is provided solely from within, and on computers, systems, networks, and other infrastructure located in, the United States.
2.2 Services Provision.
a. Provider shall provide to Customer the Services set forth in any Statement of Work or Order Form in accordance with the terms and conditions of the Agreement.
b. In the event Customer elects to receive any Advertising Services pursuant to any Statement of Work or Order Form, the terms and conditions of the Agreement and Exhibit A shall apply.
c. In the event Customer elects to receive any additional services pursuant to any Statement of Work or Order Form, the terms and conditions of the Agreement shall apply.
d. To the extent applicable, in order for Provider to provide any Services related to analytics of the Domain, Customer shall give Provider access to the Customer’s Google Analytics account or, in the event that Customer does not use Google Analytics, to Customer’s primary analytics measuring tool with respect to the Domains.
Each party shall, throughout the Term, maintain within its organization a service manager to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under the Agreement. Each party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. If either party’s service manager ceases to be employed by such party or such party otherwise wishes to replace its service manager, such party shall promptly name a new service manager by written notice to the other party.
a. Provider reserves the right, in its sole discretion, to make any changes to the Offering and Provider Materials that it deems necessary or useful to: (i) maintain or enhance: (A) the quality or delivery of Provider’s services to its customers; (B) the competitive strength of or market for Provider’s platforms or services; or (C) the Offering’s cost efficiency or performance; or (ii) to comply with applicable Law.
b. Without limiting the foregoing, either party may, at any time during the Term, request in writing any changes to the Offering. The other party shall evaluate such request in good faith and, if agreed, the parties shall implement all such requested changes in accordance with the change procedure set forth in any Statement of Work or Order Form. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.
Provider may from time to time in its discretion engage third parties to perform its obligations under the Agreement, including the provision of any Services (each, a “Subcontractor”), provided that Provider will remain liable to Customer for any subcontracted obligations.
2.6 Suspension or Termination of Services.
Provider may, directly or indirectly, by any lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Offering or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that requires Provider to do so; (b) Provider believes, in good faith, that: (i) Customer or any Authorized User has failed to comply with applicable Law, any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement expires or is terminated; or (c) pursuant to an event of non-payment under Section 7.4 (c). This Section 2.6 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
3. Additional Terms; Use Restrictions.
3.1 Additional Terms
a. Customer Content. Other than the content of any Advertisement that is not Customer Content, Customer is solely responsible for all Customer Content and for all activities that occur on the Domains, including the general management and operation of the Customer Content and moderation or oversight of user comments or other user-generated content (“User Content”). Customer will operate the Domains in a manner that does not violate any applicable Law or the terms and conditions of the Agreement. Customer will make commercially reasonable efforts to ensure that the Customer Content, including User Content, does not contain any Inappropriate Content.
b. Third-Party Services. Provider may from time to time integrate Third-Party Materials into the Offering or offer Third-Party Services to Customer. In the event that use of a Third-Party Service would impose additional costs on Customer, or require Customer’s agreement to additional terms and conditions with Provider or the Third-Party Provider, Customer must opt-in to such Third-Party Service by executing a separate written agreement (as applicable) prior to receiving such Third-Party Service.
c. Export Regulation. Customer shall not, and shall not permit any third parties to, export, re-export or release, directly or indirectly, any Software to any country or jurisdiction to which the export, re-export or release of any Software is prohibited by applicable Law.
3.2 Use Restrictions
Customer shall not, and shall not permit any other Person to, access or use the Offering or Provider Materials except as expressly permitted by the Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Without limiting the generality of the foregoing, except as expressly permitted by the Agreement, Customer shall not:
a. copy, modify, or create derivative works or improvements of the Offering or Provider Materials;
b. rent, lease, lend, sell, resell, sublicense, assign, distribute, publish, transfer, or otherwise make available any of the Offering or Provider Materials to any Person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
c. except as permitted by applicable Law, reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code of the Offering or Provider Materials, in whole or in part;
d. bypass or breach any security device or protection used by the Platform or Provider Materials or access or use the Platform or Provider Materials other than through an Authorized User’s use of his or her own then-valid Access Credentials;
e. input, upload, transmit, or otherwise provide to or through the Platform or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
f. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform or Provider Systems, in whole or in part;
g. remove, delete, alter, or obscure any trademarks, Provider Materials, warranties, or disclaimers, or any Intellectual Property Rights or proprietary rights notices from the Offering or Provider Materials, including any copy thereof;
h. access or use the Offering or Provider Materials in any manner or for any purpose that (i) infringes, misappropriates, or otherwise violates any Intellectual Property Right of any Person (including by any unauthorized access to, use, alteration, destruction, or disclosure of the data of any other Provider customer); or (ii) that violates any applicable Law; or
i. access or use the Offering or Provider Materials for purposes of (A) competitive analysis of the Offering or Provider Materials; (B) the development, provision, or use of a competing Software service or product; or (C) any other purpose that is to the Provider’s detriment or commercial disadvantage.
4. Customer Obligations and Responsibilities
4.1 Customer Systems and Cooperation.
Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Customer Systems on or through which the Offering is accessed or used; (b) provide Provider Personnel with such access to Customer Systems as is necessary for Provider to perform any support services in accordance with any Service Level Agreement; and (c) provide all such cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with the Agreement.
4.2 Customer Responsibilities.
Customer has sole responsibility for:
(a) all uses of the Provider Materials by any Authorized User, and by any other Person through the Customer Systems or any other means controlled by Customer, including any results obtained from any use of the Offering or Provider Materials;
(b) all (i) information, instructions, or materials provided to Provider pursuant to the Agreement by or on behalf of Customer, any Authorized User or any other Person (A) through the Customer Systems, the Platform, or any other means controlled by Customer; or (B) in connection with the Services; and (ii) Customer Data (including its content and use), in each case, including the accuracy and completeness of the foregoing;
(c) all Customer Content that may be lost or unrecoverable through Customer’s use of the Platform, except to the extent that such loss or inability to recover is the result of (i) a failure in performance or other breach of the Agreement by Provider; or (ii) any other grossly negligent, reckless, or intentional act or omission by Provider or any of its Affiliates; and
(d) all Customer Systems, the security and use of Customer’s and its Authorized Users’ Access Credentials, and all access to and use of the Offering and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials.
4.3 Effect of Customer Failure or Delay.
Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under the Agreement.
4.4 Corrective Action and Notice.
If Customer becomes aware of any actual or threatened activity prohibited by Section 3.2, Customer shall, and shall cause its Authorized Users to, immediately: (a) notify Provider of any such actual or threatened activity; and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Offering and Provider Materials, and permanently erasing and destroying any data to which any of them have gained unauthorized access).
5.1 Information Security.
Provider will employ security measures in accordance with Provider’s data privacy and security policy as amended from time to time, a current copy of which will be made available on the Platform .
5.2 Access and Security.
Customer shall employ all physical, administrative, and technical controls, screening, monitoring, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Offering; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing under the Agreement
6. Data Collection and Privacy.
6.1 Data Collection.
Provider and Customer upon written agreement may (a) add tracking codes, cookies or pixels to any or all pages of the Customer Content; and (b) permit third parties acting on behalf of Provider or Customer, as applicable, to do the same, in order to collect and use for any lawful purpose any user, traffic, advertising or content performance data associated with the Assets (“Domains Data”). For the avoidance of doubt, Domains Data shall include the user log-in and user profile information on the Platform associated with the Customer Content (“Log-in Data”) and the data associated with such information.
(a) Customer agrees that Provider’s Privacy Policies will be accessible or displayed, as applicable, on the Services and be binding upon all Processing of Domains Data. Customer will not (i) collect any Personal Information about users of any Services other than any Domains Data; or (ii) use any tracking code, cookies or pixels other than as permitted by the Agreement and as described in the Provider Privacy Policies.
(b) Customer shall comply with all applicable Laws in connection with its Processing of any Personal Information through the Platform, the Domain or otherwise in connection with the Agreement (including any Log-in Data). Customer shall not sell or transfer to a third party any Personal Information that constitutes Domains Data.
(c) Provider shall not retain, use or disclose Personal Information for any purpose other than (i) for the purpose of providing the Offering as specified in the Agreement; (ii) if such Personal Information is used on an anonymized basis, for the purpose of improving the Offering as specified in the Agreement or (ii) as otherwise permitted by applicable Law.
(d) To the extent EU Data Protection Laws apply to the Processing of any Personal Information, each party will be a separate, independent controller of any Personal Information it Processes. Customer will be solely responsible for ensuring it has an appropriate legal basis for the Processing of any Personal Information and will comply with all other obligations applicable to it as a controller of such Personal Information.
(e) Data Transfer. If Provider transfers to Customer any Personal Information that is subject to EU Data Protection Laws and Customer Processes such Personal Information in a jurisdiction that has not been deemed adequate under EU Data Protection Laws, then the parties will conduct such transfer pursuant to the controller standard contractual clauses available at: https://eur- lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004D0915, which will be deemed executed by the parties as of the date of the Agreement. For purposes of those clauses, Provider will be deemed the “data exporter” and Customer will be deemed the “data importer,” the principles under Annex A will apply and Annex B will be completed with the information as follows: (1) data subjects are users of the Product; (2) purpose of the transfer is to facilitate user requests and enable Customer to process data relating to users of the Product, including to reach users of the Product and to market the Product and other products and services; (3) categories of data include name and contact information of users as well as device and browsing information, including cookie identifiers, IP addresses, device identifiers, and browsing data; (4) other recipients are confined to data processors of Customer; and (5) contact point for Provider will be firstname.lastname@example.org and for Customer will be as provided to Provider by Customer by written notice from time to time.
7. Fees and Payment.
Customer shall pay Provider the fees set forth in all applicable Statements of Work or Order Forms (“Fees”) in accordance with this Section 7. Provider shall remit to Customer advertising revenue as described in an applicable Statement of Work or Order Form.
All Fees and other amounts payable by Customer under the Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, local or foreign governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
Customer shall (a) pay all Fees and Reimbursable Expenses fifteen (15) days after the date of the invoice therefor; (b) make all payments hereunder in US dollars; and (c) make payments to the address or account specified in the relevant Statement of Work or Order Form or such other address or account as Provider may specify in writing from time to time.
7.4 Late Payment.
If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
(a) Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Customer shall reimburse Provider for all reasonable out-of-pocket costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) if such failure continues for thirty (30) days following written notice thereof, Provider may suspend provision of the relevant Platform or Services, or any portion thereof, until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension. Furthermore, the Provider will be granted the ability to place Advertisements or other monetization elements on Customer websites and/or mobile apps in order to apply net proceeds against late payments, interest and all reasonable out-of-pocket costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees.
7.5 No Deductions or Setoffs.
All amounts payable to Provider under the Agreement shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any deduction or withholding of tax as may be required by applicable Law.
7.6 Reimbursable Expenses.
Customer shall reimburse Provider for all pre-approved reasonable out-of-pocket expenses incurred by Provider in connection with performing the Services (“Reimbursable Expenses”).
8.1 Confidential Information.
In connection with the Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means all of the Disclosing Party’s information in any form or medium (whether oral, written, electronic, or other) that is marked or identified as confidential or proprietary, or would be reasonably deemed to be confidential or proprietary, including information consisting of or relating to the Disclosing Party’s Trade Secrets, business operations and customers, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Without limiting the foregoing, all Provider Materials shall be deemed to be the Confidential Information of Provider, and the financial terms and existence of the Agreement shall be deemed to be Confidential Information.
Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with the Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with the Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3 Protection of Confidential Information.
The Receiving Party shall:
(a) not access or use the Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Agreement;
(b) subject to Section 8.5, not disclose or permit access to the Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party exercising its rights or performing its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by confidentiality obligations or fiduciary duties at least as protective of the Confidential Information as the terms set forth in this Section 8;
(c) safeguard the Confidential Information from unauthorized access, use, alteration, destruction or disclosure;
(d) promptly notify the Disclosing Party of any unauthorized access to, or use, alteration, destruction or disclosure of, the Confidential Information and cooperate with the Disclosing Party to prevent further unauthorized access, use, alteration, destruction or disclosure; and
(e) ensure its Representatives’ compliance, and be liable for any of its Representatives’ non-compliance, with the terms of this Section 8.
8.4 Trade Secrets.
Notwithstanding any other provisions of the Agreement, the Receiving Party’s obligations under this Section 8 with respect to any of the Confidential Information that constitutes a trade secret under any applicable Law will continue until such time as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
8.5 Compelled Disclosures.
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any of the Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing the notice and assistance required under this Section 8.5, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
9. Intellectual Property Rights.
9.1 Provider Materials.
All right, title, and interest (including all Intellectual Property Rights) in and to (a) the Provider Materials is owned and retained by Provider; and (b) the Third-Party Materials is owned and retained by the applicable third-party providers. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case, subject to Section 3.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably assigns to Provider all right, title, and interest (including all Intellectual Property Rights) in and to the Provider Materials (including the Operational Data and Feedback) that may vest in Customer.
9.2 Customer License.
(a) Subject to the terms of the Agreement, Customer hereby grants to Provider a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license (the “Customer License”) to (i) use, host, store, cache, reproduce, publish, publicly display, distribute, transmit, modify, and adapt the Customer Content for the limited purposes of providing, maintaining and improving the Offering; (ii) use, publicly display, distribute and transmit the name, logo, and trademarks of Customer and of the Customer Content to identify Customer as a user of the Offering; and (iii) with Customer’s prior written consent, alter the page strategy (including the number and location of Advertisements on the Domains) and overall look, feel and functionality of the Customer Content (or portions thereof) through upgrades, testing, revisions, repairs and modifications of and to the Offering and through integrations of Third-Party Services into the Offering. All other rights in and to the Customer Content are expressly reserved by Customer.
(b) With Customer’s prior written consent, Customer acknowledges and agrees that Provider may edit the Customer Content with or without notice to Customer solely for the purpose of ensuring that the Customer Content complies with the policies of Provider and any applicable Laws.
(c) Customer acknowledges and agrees that Provider, with the Customer’s written approval, may publish, distribute, and disseminate Customer Content via the Offering or in any media formats, and through any media or other distribution channels, as determined by Provider, including (i) Provider-owned or operated properties or entities; (ii) third-party owned or operated properties, platforms or channels that are distribution partners of Provider via the Platform or pursuant to agreements between Provider and such third parties; and (iii) any form of internet protocol or similar delivery to all Internet-connected devices, any fulfillment services, streaming, downloadable or other non-tangible delivery to fixed and mobile platforms (including personal and other computers, communication devices, digital devices, or music, video or other audiovisual recorders or players), via “podcast”, or via all other personal, digital, mobile and other devices, platforms and services, whether now known or hereafter devised, to any customer or audience worldwide.
9.3 Customer Data and Domains Data.
(a) As between Customer and Provider, Customer is and will remain the sole and exclusive owner of all right, title, and interest (including Intellectual Property Rights) in and to all Customer Data and Domains Data, subject to Sections 9.3(b) and (c).
(b) Subject to the terms of the Agreement, Customer hereby grants to Provider a non-exclusive, non-transferable, non-sublicensable (except to the Subcontractors), royalty-free, worldwide license to use Customer Data during the Term for the purposes of exercising its rights and performing its obligations under the Agreement, including to improve the Platform.
(c) Subject to the terms of the Agreement, Customer hereby grants to Provider an irrevocable, non-exclusive, non-transferable, non-sublicensable (except to the Subcontractors and Provider Affiliates), perpetual, fully paid-up, worldwide license to use Domains Data for the purposes of improving the Platform.
At its option or upon Provider’s request, Customer may provide feedback and suggestions about the Offering to Provider (the “Feedback”). If Customer provides Feedback, then Provider and its Affiliates may use that Feedback without restriction, and without obligation or any consideration to Customer.
10. Representations and Warranties.
10.1 Mutual Representations and Warranties.
Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under the Agreement;
(c) the execution of the Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, the Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2 Customer Covenants.
Customer shall at all times during the Term comply with (a) all applicable Laws, (b) the terms of the Agreement and (c) the Provider Privacy Policies.
10.3 Provider Covenants.
Provider shall perform the Services using Provider Personnel of required skill, experience, and qualifications and in a professional and workmanlike manner consistent with applicable generally recognized industry standards.
10.4 Customer Representations and Warranties.
Customer represents and warrants to Provider that:
(a) Customer owns the Customer Content or is otherwise legally authorized to act on behalf of the owner of the Customer Content for the purposes of using the Offering;
(b) all Customer Content and other aspects of each Domain as of the relaunch of such Domain on the Platform: (i) comply with the applicable terms and conditions of any Opt-In Agreements and all applicable Laws and self-regulatory standards; (ii) do not breach any duty to or rights of any Person, including Intellectual Property Rights or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) do not include Inappropriate Content.
(c) Customer owns, or otherwise has the necessary rights and consents with respect to, the Customer Data so that, as received by Provider and Processed in accordance with the Agreement, the Customer Data do not and will not (i) infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party; or (ii) violate any applicable Law.
10.5 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10.1 AND SECTION 10.4, THE OFFERING AND ALL PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE OFFERING OR PROVIDER MATERIALS, OR ANY DOMAINS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. WHEN CUSTOMER CONTENT IS TRANSFERRED TO THE DOMAINS TO BE HOSTED VIA THE OFFERING, CUSTOMER MAY EXPERIENCE TRAFFIC LOSS DURING THE FIRST EIGHT (8) TO TWELVE (12) WEEKS.
11.1 Provider Indemnification.
Provider shall indemnify, defend, and hold harmless Customer and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of Customer Indemnitee) that (a) arises out of or results from Customer’s or an Authorized User’s use of the Offering in accordance with the Agreement infringes or misappropriates such third party’s Intellectual Property Rights and (b) that arises out of or results from Provider’s gross negligence or more culpable act or omission (including recklessness or willful misconduct) in connection with the Agreement and Services provided by Provider thereunder. The foregoing indemnification in Section 11.2(a) above shall not apply to the extent that the alleged infringement or misappropriation arises from:
(i) Provider’s authorized use under this Agreement of any Third-Party Materials or Customer Data;
(ii) access to or use of the Offering or Provider Materials in combination with any hardware, system, Software, network, or other materials or service not provided by Provider or specified for Customer’s use in the Documentation;
(iii) modification of the Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification;
(iv) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
(v) act, omission, or other matter for which Customer indemnifies Provider in Section 11.2, whether or not the same results in any Action against or Losses by any Provider Indemnitee.
11.2 Customer Indemnification.
Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party (other than an Affiliate of a Provider Indemnitee) that arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with the Agreement (except where such Action results from Provider’s use of the Customer Data in violation of this Agreement);
(b) any other materials or information (including any documents, data, specifications, Software, content, or technology) provided by or on behalf of Customer or any Authorized User;
(c) Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(d) Customer’s breach of any of its representations, warranties, covenants, or obligations under the Agreement;
(e) any claims that the Customer Content infringes or misappropriates the rights of any Person, including any rights of privacy or publicity or any Intellectual Property Rights;
(f) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with the Agreement; and
(g) Customer’s violation of applicable Law.
11.3 Indemnification Procedure.
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The party seeking indemnification (the “Indemnitee”) shall cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case, in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 11.3 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12. Limitations of Liability.
12.1 EXCLUSION OF DAMAGES.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SUBCONTRACTORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT ; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE OFFERING; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE LOSSES OR DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
12.2 CAP ON MONETARY LIABILITY.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF PROVIDER ARISING OUT OF OR RELATED TO THE AGREEMENT, EXCEED THE GREATER OF TOTAL AMOUNTS PAID TO PROVIDER UNDER THE AGREEMENT IN THE ONE YEAR PERIOD (NOT TO EXCEED $100,000) PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $50,000; PROVIDED, HOWEVER, THAT THE FORGOING SHALL NOT APPLY TO LOSSES ARISING OUT OF PROFESSIONAL SERVICES, WHICH LIABILITY SHALL NOT EXCEED THE GREATER OF $100,000 OR THE FEES PAID BY CUSTOMER TO PROVIDER FOR PROFESSIONAL SERVICES IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Section 12.1 and Section 12.2 do not apply to Provider’s gross negligence or willful misconduct, and Section 12.2 does not apply to Provider’s obligations under Section 11. Section 12.1(c) does not apply to professional services provided by Provider to Customer to the extent that any damages sustained by Customer were primarily caused by Provider.
13. Term and Termination.
13.1 Initial Term.
The initial term of the Agreement commences as of the Effective Date and, unless terminated earlier pursuant to the Agreement, will continue in effect for two (2) years from such date (the “Initial Term”).
13.2 Renewal Term.
The Agreement will automatically renew for additional one year terms unless earlier terminated pursuant to the Agreement or either party gives the other party written notice of non-renewal at least 60 days prior to the expiration of the then-current term (each a “Renewal Term” and, collectively, together with the Initial Term, the “Term”); provided, however, that the Term of this Agreement shall remain in effect until the expiration of any active Statement of Work or Order Form.
In addition to any other express termination right set forth elsewhere in the Agreement:
(a) Provider may terminate the Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.2, Section 4.2, or Section 8;
(b) either party may terminate the Agreement, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate the Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.4 Effect of Termination or Expiration.
Upon any expiration or termination of the Agreement, except as expressly otherwise provided herein:
(a) all rights, licenses, consents, and authorizations granted by either party to the other will immediately terminate;
(b) Provider shall immediately cease all use of any Customer Data (other than Operational Data and Feedback) and Customer’s Confidential Information;
(c) Customer shall immediately cease all use of the Offering and Provider Materials and (i) promptly return to Provider, or at Provider’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any Provider Materials or Provider’s Confidential Information and (ii) permanently erase all Provider Materials and Provider’s Confidential Information from all Customer Systems;
(d) Provider may disable all Customer and Authorized User access to the Provider Materials; and
(e) if Customer terminates the Agreement pursuant to Section 13.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination.
13.5 Surviving Terms.
The provisions set forth in the following sections, and any other right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, will survive any expiration or termination of the Agreement: Section 3.2, Section 7.4, Section 8, Section 9.3(c), Section 10.5, Section 11, Section 12, Section 13.4, this Section 13.5, and Section 14.
14.1 Further Assurances.
On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to the Agreement.
14.2 Relationship of the Parties.
The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.3 Public Announcements.
Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to the Agreement or, unless expressly permitted under the Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.
Except as otherwise expressly set forth in the Agreement, any notice, request, consent, claim, demand, waiver, or other communications under the Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.4):
If to Provider: Organic Ventures Inc.
1135 W 6th St
Austin, TX 78703
Attention: General Counsel
For purposes of the Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive and shall mean “and/or”; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in the Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, the Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend the Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of the Agreement to the same extent as if they were set forth verbatim herein.
14.6 Intentionally Omitted.
The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.
14.8 Entire Agreement.
The Agreement, together with all Statements of Work, Order Forms, and any Service Level Agreement, constitute the sole and entire agreement of the parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of the Agreement, any Statement of Work or Order Form or the Service Level Agreement, the following order of precedence governs: (a) first, the Statement of Work or Order Form; (b) the Agreement; and (c) third, any Service Level Agreement.
Customer shall not assign or otherwise transfer any of its rights, or otherwise transfer any of its obligations under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Provider’s prior written consent, which consent shall not be unreasonably withheld. No assignment or transfer will relieve Customer of any of its obligations or performance under the Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.9 is void. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
14.10 Force Majeure.
In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including acts of God, natural disasters, riots, war, terrorism or any pandemic or disease outbreak (including COVID-19 and any related disruptions). Either party may terminate the Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
14.11 No Third-Party Beneficiaries.
The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Agreement.
14.12 Amendment and Modification; Waiver.
No amendment to or modification of the Agreement is effective unless it is in writing and signed each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify the Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.14 Governing Law; Submission to Jurisdiction.
The Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted in state and federal courts located in the County of San Francisco, California, and each party irrevocably submits to the exclusive jurisdiction of such court in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
14.15 Waiver of Jury Trial.
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
14.16 Equitable Relief.
Each party acknowledges and agrees that a breach or threatened breach by each party of any of its obligations under Section 8 or, in the case of Customer, Section 3.1, Section 4.4, or Section 4.2(d), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
The Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of the Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Agreement.