Accepting this Agreement is done by: (a) executing an Order Form that references this Agreement; (b) clicking a box indicating acceptance; or (c) using the Services on a free trial basis, Customer agrees to the terms of this Agreement.
Individual accepting this Agreement is accepting on behalf of a company or other legal entity, and shall have authority to bind such entity and its Affiliates to this Agreement. The term “Customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority or does not agree with the terms and conditions of this Agreement, such individual must not accept this Agreement and may not use the Services.
The Services may not be accessed for the purposes of any benchmarking or competitive purposes. Duck Soup Style’s competitors are prohibited from accessing the Services, except with Duck Soup Style’s prior written consent.
This Agreement is effective as of the date Customer accepts this Agreement.
1. DEFINITIONS
1.1. “Affiliate” means any entity that directly or indirectly is controlled by the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of an entity.
1.2. “Documentation” means the specifications, descriptions and user instructions that describe the operation, performance and functionality of the Platform and/or Services. Licensor may update the Documentation from time to time with or without notice to Licensee.
1.3. “Hosting Equipment” means the equipment, hardware, operating systems, networks, software, interfaces or other infrastructure components that Licensor or its third-party hosting provider(s) will make available so that the Platform is available and accessible by Licensee and/or its Users.
1.4. “Intellectual Property” or “IP” shall mean any proprietary rights, title and interest in patents, patent applications, extensions, supplementary protection certificates, design rights, data rights, copyrights, trade secrets, trademarks, service marks, trade names, trade dress, know-how, business processes, technology and all other intellectual property rights, derivatives thereof, and any forms of protection of a similar nature anywhere in the world. The terms “Intellectual Property” or “IP” may also be used herein to refer to the embodiments (e.g., computer software or data) that are protected by the foregoing IP rights.
1.5. “Licensee Data” means all electronic data or information that Licensee or any of its Users input to the Platform.
1.6. “Licensor Data” means all electronic data or information provided by Licensor that Licensee or any of its Users downloads from the Platform.
1.7. “Malicious Software” means time bombs, Trojan horses, viruses, worms, and other intentionally harmful code or programs.
1.8. “Order” means a document for placing orders for licenses of the Platform and/or Services that may be executed by Licensee (or its Affiliate) and Licensor from time to time, including amendments and supplements thereto. By entering into an Order, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto. Orders attached hereto shall be deemed incorporated herein by reference
1.9. “Platform” means the SaaS software applications and/or services that Licensor makes available to Licensee and/or its Users subject to the terms and conditions of this Agreement and/or an Order, including all Upgrades thereto.
1.10. “Services” means any services provided by Licensor to Licensee under this Agreement or an Order, to include without limitation integration, customization, testing, maintenance and support, that allow or facilitate Licensee’s or its Users’ access to and use of the Platform, as well as any other services that are ordered by Licensee or an Affiliate under an Order and made available for Licensee’s use by Licensor.
1.11. “Upgrade” or “Upgrades” shall mean any new versions, fixes, enhancements, service packs or other revisions of the Platform as may be released in the future at Licensor’s sole discretion.
1.12. “User” means an individual who is authorized by Licensee to use the Platform, and has been supplied with an individual named user identification (“UserID”) and password by Licensee (or by Licensor at Licensee’s request). Users may include but are not limited to Licensee’s employees, consultants, contractors, agents, customers and other third parties with whom Licensee transacts business. UserIDs may be reassigned by the Licensee should a User no longer need access to the Platform, so long as the total number of Users by category does not exceed the total number of such Users set forth on the applicable Order.
2. LICENSE
2.1. Grant. Subject to the provisions of this Agreement and the applicable Order(s), Licensor hereby grants to Licensee, and Licensee accepts from Licensor, a time-limited, renewable, world-wide, non-exclusive, non-transferable and revocable license to use the Platform for its own internal business purposes. As part of this license grant, Licensor shall provide Licensee with access to the Platform Application Programming Interfaces (“APIs”) that permit Licensee to query the Platform database and download Licensor Data in real time for live display on Licensee’s website. This grant of license is subject to the usage and other restrictions of this Agreement, payment of Fees (as defined herein), and is valid only during the Term (as defined herein).
2.2. Subscriptions. During the Term hereof, Licensor shall make the Platform available to Licensee pursuant to this Agreement and one or more Orders. Licensee may use the Platform for the number of user subscriptions purchased as specified in an Order (“Subscriptions”), only for the processing of Licensee’s own business. Subscriptions may not be shared or used by more than one User, but may be reassigned to new Users replacing former Users who no longer require ongoing access to and/or use of the Platform. Licensee may add additional Subscriptions during the Term, which Subscriptions shall terminate on the same date as the pre-existing Subscriptions and the corresponding Fee shall be prorated for the remainder of the Subscription.
2.3. Users. The Platform may be used only by Licensee’s Users; provided that Licensee shall be solely responsible for the acts and omissions of any third-party Users, and shall insure that any third party that uses the Platform on behalf of Licensee complies with this Agreement.
2.4. Monitoring. Licensee hereby grants Licensor the right to monitor Licensee’s use of the Platform and any Services to the extent necessary to confirm compliance with this Agreement. If Licensor determines that Licensee has underpaid its Subscription Fees by permitting access by additional Users, Licensee shall pay an amount equal to such underpayment within ten (10) days after notification by Licensor of such underpayment.
2.5. Auditing. During the Term and for three (3) years thereafter, Licensee will maintain at its principal offices such books and records as are sufficient to confirm Licensee’s compliance with this Agreement. Licensee will permit Licensor or its representative to audit such books and records upon reasonable written notice. If any such audit reveals that Licensee has underpaid the Fees owed to Licensor under this Agreement for any quarter by more than five percent (5%), Licensee will remit such underpaid Fees, and reimburse Licensor for all expenses reasonably incurred by Licensor in connection with such audit. Unless such an underpayment is revealed, Licensee will not be required to submit to an audit more than once during any calendar year.
2.6. Upgrades Licensee acknowledges and agrees that Licensor may make changes and improvements to the Platform and implement Upgrades during the Term in its discretion. Specifically, Licensor may add, alter, or remove functionality from the Platform at any time without prior notice. Licensor may also limit, suspend, or discontinue a portion of the Platform in its discretion. If Licensor discontinues any substantial portion of the Platform, Licensor will give Licensee reasonable advance notice.
2.7. Restrictions Licensee shall not: (a) make the Platform available to anyone other than its authorized Users; (b) present any Licensor Data that has been defaced or distorted, or in a manner that is misleading or negatively reflects upon Licensor or its business; (c) knowingly use the Platform to store or transmit infringing, libelous, or otherwise unlawful material, or to store or transmit material in violation of third-party privacy rights; (d) intentionally interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein; (e) attempt to gain unauthorized access to or interfere with the Platform, Hosting Equipment or related systems or networks; (f) attempt to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any protection mechanisms in the Platform; (g) modify, alter, tamper with, repair or otherwise create derivative works of the Services; (h) decompile, disassemble or reverse engineer the Platform; (i) permit any third party to use the Platform, or use the Platform for purposes of processing the data of any third party; (j) use the Platform in violation of any applicable local, state, national or international law or regulation, including, but not limited to, U.S. export laws; or (k) permit or assist any other person or entity to do any of the foregoing.
2.8. Future Functionality. Licensee acknowledges and agrees that its purchase of licenses in the Platform hereunder is not contingent upon the delivery or provision of any future functionality or features.
3. FEES AND PAYMENT
3.1. Fees. Licensee shall pay the fees specified in each applicable Order (the “Fees”). Licensee also shall reimburse Licensor for any payment processing charges incurred by Licensor that are assessed by third-party payment processing services in connection with the payment of Fees by Licensee under this Agreement.
3.2. Invoicing and Payment. The Fees for the Platform and any Services are set forth on the applicable Order. All amounts mentioned in this Agreement are in U.S. Dollars. All Fees for Subscriptions shall be billed and paid in advance for each applicable term, unless otherwise stated in the applicable Order. Undisputed invoiced charges are due upon receipt of invoice. The invoices shall be delivered via electronic (e-mail) delivery and addressed as specified on the applicable Order. Licensee is responsible for providing complete and accurate billing and contact information to Licensor and notifying Licensor of any changes to such information.
3.3. Overdue Charges. At Licensor’s discretion, any undisputed amount not received from Licensee within thirty (30) days of written notice of non-payment may accrue interest at the rate of one percent (1.0%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.4. Suspension and Acceleration. If any undisputed amount owed by Licensee under this Agreement for Platform or Services is thirty (30) or more days past due Licensor may, without limiting its other rights and remedies, accelerate the unpaid Fee obligations so that all such obligations become immediately due and payable, and suspend the Platform and/or Services until such amounts are paid in full. Licensor shall provide at least seven (7) days’ prior written notice that the account is past due before suspending Services.
3.5. Payment Disputes. Licensee must notify Licensor in writing of any disputed amount within thirty (30) days of the date of invoice receipt. Licensor shall not exercise its rights under Sections 3.3 or 3.4, if Licensee has disputed the applicable charges reasonably and in good faith, and is cooperating diligently to resolve the dispute. After thirty (30) days, invoices received by Licensee and not disputed shall be deemed approved by Licensee.
3.6. Taxes. Unless otherwise stated, Fees and charges hereunder do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to sales, use, value added or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). Licensee is responsible for paying all Taxes associated with Licensee’s purchases hereunder. If Licensor has the legal obligation to pay or collect Taxes for which Licensee is responsible, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes do not include taxes which are based on Licensor’s income, property or employees.
3.7. Collection Costs. Licensee shall reimburse Licensor for reasonable attorneys’ fees and other costs incurred by Licensor in collecting any Fees or other charges in connection with this Agreement.
4. Support
4.1. Support. Licensor shall provide telephone and email support of the Platform and/or Services during the Term to answer questions and help troubleshoot any difficulties that Licensee may have in using the Platform and/or Services. There is no limit to the number of support calls that Licensee may place during the Term, however, live support will only be provided by Licensor between the hours of 9:00 AM and 6:00 PM PST, on normal business workdays. The support under this Agreement does not include any on-site support by Licensor. Support provided hereunder shall be further subject to the Service Level Agreement (“SLA”) of Exhibit A, attached hereto.
4.2. Online Support. Licensee shall have Internet access to any Licensor help facilities posted on Licensor’s web site, to allow Licensee to obtain solutions to problems by querying this knowledge base.
4.3. Upgrades. During the Term, Licensor shall provide Licensee with access to all Upgrades as hosted by Licensor or its service providers at no additional charge.
5. OTHER LICENSEE OBLIGATIONS
5.1. Licensee Responsibilities. Licensee shall: (a) be responsible for Users’ compliance with this Agreement; (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and/or Services under Licensee’s accounts, and notify Licensor promptly of any such unauthorized access or use; (c) use commercially reasonable efforts, including implementing commercially-available virus protection software and procedures, to prevent the introduction of any Malicious Software in or to the Platform; (d) obtain any licenses and consents necessary to facilitate its access to the Platform and/or Services; and (e) use the Platform and Services only in accordance with this Agreement, and applicable laws and government regulations.
5.2. Licensee Equipment. Licensee shall provide, operate and maintain all equipment needed to connect to, access and use the Platform and/or Services, other than any Hosting Equipment to which access is provided by Licensor.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Except for any rights granted under license herein, each Party shall retain all right, title and interest in and to all of its Intellectual Property and Confidential Information. Subject to the limited rights expressly granted hereunder, Licensor reserves all rights, title and interest in and to the Platform, Services and Licensor Data, including all related Intellectual Property rights. No rights are granted to Licensee hereunder other than as expressly set forth herein.
6.2. Licensee Data. Licensee shall make commercially reasonable efforts to assist Licensor with obtaining all necessary rights to receive, process, store and/or transmit Licensee Data via the Platform and/or Services. Except for the limited rights granted by Licensee hereunder, Licensor acquires no rights, title or interest in or to Licensee Data, including any Intellectual Property rights therein.
7. CONFIDENTIALITY
7.1. Definition. “Confidential Information” means all information disclosed by a Party (“Discloser”) to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of disclosure. Confidential Information shall include, but not be limited to, the terms and conditions of this Agreement and all Orders, as well as business and marketing plans, technology and technical information, data, customer and supplier lists, pricing, product plans and designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to the Discloser; or (iv) was independently developed by the Recipient.
7.2. Protection and Non-Disclosure. The Recipient shall use at least the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care). During the term hereof and for five (5) years thereafter (or such longer period as may be authorized under applicable law), the Recipient shall not: (i) use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement; or (ii) except as otherwise authorized by the Discloser in writing, disclose any Confidential Information to any other person or entity, except to those employees, contractors and agents who have a need to know, provided that such persons are bound by confidentiality obligations at least as strict as those set forth herein. Without limiting the generality of the foregoing, neither Party may disclose the terms of this Agreement or any Order to any third party other than its Affiliates and their legal counsel and accountants without the other Party’s prior written consent.
7.3. Permitted Disclosure. Notwithstanding any provision hereof, a disclosure by a Recipient of any of the Discloser’s Confidential Information (1) in response to a valid order by a court or other governmental body; (2) as otherwise required by law; or (3) necessary to establish the rights of either Party under this Agreement shall not be considered to be a breach of this Agreement by the Recipient; provided, however, that Recipient must provide prompt prior written notice thereof to the Discloser to enable the Discloser to seek a protective order or otherwise prevent the disclosure. Further, the Recipient shall disclose only the minimum amount of the Confidential Information that it is legally required to furnish and, where appropriate, will exercise its best efforts to obtain written assurances that confidential treatment will be accorded to such Confidential Information.
7.4. Return or Destruction. At the request of the Discloser during the Term hereof and promptly upon expiration or termination of this Agreement, the Recipient shall return or destroy, as the Discloser directs, all materials in any medium that contain, refer to or relate to the Confidential Information of the Discloser that are in the Recipient’s possession or control, except to the extent that retention is required by law, necessary to document performance under this Agreement, or required to be kept for backup or data retention purposes (in which case such information will be kept confidential in accordance with this Section until deletion), and provide a written certification of the same.
7.5. Remedy for Breach. Notwithstanding anything to the contrary herein, the Parties agree that monetary damages would not be a sufficient remedy for any breach of this Section by the Recipient, and that the Discloser shall be entitled to seek injunction and/or specific performance as a remedy for any such breach without requiring proof of irreparable harm. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Section, but shall be in addition to any other remedies available to the Discloser.
8. WARRANTIES AND DISCLAIMERS
8.1. Mutual Warranties. Each Party represents and warrants the following: (a) the Party’s execution, delivery and performance of this Agreement: (i) are authorized by all necessary corporate action, (ii) do not violate the terms of any law, regulation, or court order to which such Party is subject or the terms of any material agreement to which the Party or any of its assets may be subject and (iii) are not subject to the consent or approval of any third party; (b) this Agreement is the valid and binding obligation of the representing Party, enforceable against such Party in accordance with its terms; and (c) such Party is not subject to any pending or threatened litigation or governmental action which could interfere with such Party’s performance of its obligations hereunder.
8.2. Performance Warranty. Licensor warrants that the Platform shall perform materially in accordance with the Platform Documentation, and that the Services will be performed in a prompt, diligent and professional workmanlike manner. In the event that Licensee discovers a material malfunction in the Platform or Services, Licensor agrees, during the Term, to promptly use commercially reasonable efforts to correct, cure or otherwise remedy, at Licensor’s option, such malfunction at Licensor’s sole expense. Licensee agrees to cooperate and work closely with Licensor in a prompt and reasonable manner in connection with Licensor’s correction efforts.
8.3. Limitations. Licensor does not warrant that the Platform or Services will be sufficient to meet Licensee’s requirements, or operate error-free or without interruption. Licensor is not responsible for any delays, delivery failures, or any other loss or damage resulting from: (a) the transfer of data over communications networks and facilities, including the Internet, and Licensee acknowledges that the Platform may be subject to limitations, delays and other problems inherent in the use of such communications facilities including the Hosting Equipment; (b) integration or combination of the Platform with any product or service not supplied by Licensor; (c) use of the Platform other than for its intended purpose; (d) modification of the Platform by any person or entity not authorized by Licensor; or (e) use of other than the current, unaltered release or version of the Platform, in each case if the loss or damage would have been avoided in the absence of the circumstances specified in (a) through (e) above.
8.4. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. LIMITATION OF LIABILITY
9.1. Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF THE PARTY WITH ALLEGED LIABILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Direct Damages. IN NO EVENT SHALL EITHER PARTY’S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNTS PAID OR OWED BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE FIRST OCCURRENCE OF THE EVENTS GIVING RISE TO ANY CLAIM.
9.3. Exceptions. NOTWITHSTANDING ANY STATEMENT TO THE CONTRARY IN THIS AGREEMENT, THE LIMITATIONS OF LIABILITY OF THIS SECTION SHALL NOT APPLY TO A PARTY’S OBLIGATIONS OF INDEMNIFICATION, OR CLAIMS OF A BREACH OF CONFIDENTIALITY, SECURITY, PRIVACY, GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT, OR CLAIMS ARISING FROM MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR VIOLATION OF APPLICABLE LAWS OR REGULATIONS.
10. INDEMNIFICATION
10.1. Licensor Indemnification.
- Licensor (here, the “Indemnifying Party”) shall indemnify Licensee and its affiliates, owners, officers, directors, shareholders, agents and employees (the “Indemnified Party”) from and against any and all losses, costs, damages, injuries, awards, judgments and liabilities, including but not limited to legal and professional fees, costs, and expenses (“Losses”), incurred by the Indemnified Party as a result of any claim, suit, proceeding or cause of action asserted against the Indemnified Party by a third party (“Claim”) and shall defend the Indemnified Party against any such Claims, arising from: i) any infringement or misappropriation of Intellectual Property owing to the Indemnified Party’s use of the Platform or Services; or ii) any material breach of this Agreement by the Indemnifying Party.
- The Indemnifying Party shall have no liability for any Claim resulting from: (a) use or combination of the Platform or Services with any other goods or services not supplied by the Indemnifying Party; or (b) any modification or alteration of the Platform or Services by anyone not so authorized by the Indemnifying Party, where such Claim would not have arisen except for such use, combination, modification or alteration.
- Should the Platform or Services become, or in the Indemnifying Party’s opinion be likely to become, the subject of a Claim, the Indemnifying Party shall at its option and sole expense either: (i) procure for the Indemnified Party the right to continue to use same as contemplated hereunder, or (ii) modify same to eliminate any Claim that might result from its use hereunder, provided that the Platform or Services performance must not be diminished by such modification or elimination, or (iii) replace same with an equally suitable, compatible and functionally equivalent non-infringing product at no additional charge to the Indemnified Party. If none of these options is reasonably available to the Indemnifying Party, then this Agreement may be terminated at the option of the Indemnifying Party, without further obligation or liability on the part of either Party, except that the Indemnifying Party agrees to promptly refund to the Indemnified Party a pro rata portion of Fees paid prior to such termination.
10.2. Licensee Indemnification. Licensee (here, the “Indemnifying Party”) shall indemnify Licensor and its affiliates, owners, officers, directors, shareholders, agents and employees (the “Indemnified Party”) from and against any and all Losses incurred by the Indemnified Party as a result of any Claim and shall defend the Indemnified Party against any such Claims, arising from: i) any infringement or misappropriation of Intellectual Property owing to the Indemnified Party’s access, receipt or use of the Licensee Data; or ii) any material breach of this Agreement by the Indemnifying Party.
10.3. Process. The Indemnifying Party shall defend each Claim, and control and direct the investigation, defense and settlement of each such Claim at its expense. When seeking indemnification, the Indemnified Party shall: 1) promptly notify the Indemnifying Party in writing of the Claim for which indemnification is sought, 2) permit the Indemnifying Party to control the defense and settlement negotiations of the Claim, 3) cooperate with the Indemnifying Party as reasonably requested to assist in the defense and/or settlement of the Claim at the Indemnifying Party’s expense, and 4) have the right to provide for its own separate defense at its own expense. Notwithstanding the foregoing, the failure to give notice to the Indemnifying Party within a reasonable time of the commencement of any Claim under this Section will not relieve the Indemnifying Party of any liability to the Indemnified Party under this Section unless such failure materially prejudices the Indemnifying Party’s ability to defend such Claim.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement shall continue in force for an initial term of one (1) year from the Effective Date (“Initial Term”), and upon the expiration of this Initial Term, this Agreement shall be automatically renewed for successive one (1) year terms (each a “Renewal Term”), unless terminated by either Party upon thirty (30) days’ notice prior to such renewal or unless otherwise terminated by its terms. This Agreement shall automatically terminate at the end of the Initial Term or the current Renewal Term as applicable if Licensee fails to pay the Fees for the next Renewal Term in advance. Notwithstanding anything to the contrary set forth in this Agreement, Licensee can terminate this Agreement, in its sole discretion, at any time and for any reason, without penalty, upon not less than thirty (30) days’ prior written notice.
11.2. The Initial Term plus all successive Renewal Terms up until the date of termination shall be collectively referred to as the “Term” of this Agreement.
11.3. Subscription Term. Subscriptions for the Platform purchased by Licensee shall commence on the applicable date specified on the Order and shall continue for the applicable term specified therein.
11.4. Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement, and fails to correct such breach within thirty (30) days following written notice specifying the breach. In the event that Licensee terminates this Agreement for cause, Licensor will refund a pro rata portion of any prepaid Fees paid during the current term based upon the date of breach.
11.5. Termination for Bankruptcy. Either Party may terminate this Agreement at any time if the other Party enters into insolvency or bankruptcy, or is unable to pay its debts as they become due, or a trustee or receiver or the equivalent is appointed for the Party, or proceedings are instituted against the Party relating to dissolution, liquidation, winding up, bankruptcy or insolvency, if such proceedings are not terminated or discharged within thirty (30) calendar days.
11.6. Effect of Termination. In the event of any expiration or termination of this Agreement and/or any Order, i) Licensee shall pay Licensor any and all undisputed Fees due; and ii) all license rights granted hereunder shall terminate.
11.7. Survival. The following Sections shall survive any termination or expiration of this Agreement: 1, 2.5, 2.7, 3, 6, 7, 8.4, 9, 10, 11.5, 11.6 and 13.
12. PUBLICITY AND COMMUNICATION
12.1. Press Releases. At a mutually agreed upon time, the Parties may issue a joint press release to announce their relationship as set forth in this Agreement. Neither Party shall issue any press release or make any other public announcement or communication regarding the subject matter of this Agreement without the prior written approval of the other, which approval shall not be unreasonably withheld or delayed.
13. GENERAL PROVISIONS
13.1. Governing Law and Jurisdiction. This Agreement will be construed and enforced in accordance with the laws of the State of California, including its recognition of applicable federal law, but excluding such jurisdiction’s choice of law rules, and the Parties consent to the exclusive jurisdiction and venue of state and federal courts in the State of California.
13.2. Dispute Resolution. Except as otherwise provided herein, in the event of a dispute between the Parties arising out of this Agreement, and as a condition precedent to any right of action, representatives of each Party shall meet (either in person or by telephone), within ten (10) days after receipt of a notice from either Party specifying the nature of the dispute, to review a Party’s claims for the basis of such dispute and attempt to resolve in good faith all such claims. Thereafter, if the Parties are unable to resolve the dispute within such time period, the matter shall be escalated to a Vice President (or a more senior officer) of each Party, who will meet, either in person or by telephone, within fifteen (15) days of such escalation. If the dispute remains unresolved after such escalation, then the Parties may exercise their other rights and remedies at law or in equity.
13.3. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HEREBY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT.
13.4. Assignment. Neither Party may assign, delegate, subcontract or transfer any of its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign this Agreement, without the consent of the other Party, to an Affiliate or in connection with the sale of all or substantially all of its assets. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties, their respective successors and permitted assigns.
13.5. No Third-Party Beneficiaries. Nothing in the Agreement shall create any rights in any third-party beneficiaries, and no Party has any obligation to any third party by virtue of the Agreement.
13.6. Notice. Except as otherwise specified in this Agreement, any notice required or permitted to be given under this Agreement will be sufficient if given in writing and: (i) personally delivered; (ii) deposited for next day delivery with a reputable overnight courier service; (iii) deposited in the mail, prepaid and certified or registered with return receipt requested; or (iv) sent by email with confirmation of receipt. Either Party may change its address for notice by giving written notice in accordance with the terms of this Section. All notices shall be addressed to the appropriate contact person as designated by Licensee or Licensor.
13.7. Compliance with Laws. Each Party shall comply with all applicable local, state, national and foreign laws and regulations. As the Platform and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions, Licensee shall not permit Users to access or use the Platform in a U.S. embargoed country in violation of any U.S. export law or regulation.
13.8. Relationship of the Parties. The Parties agree that each is an independent contractor and the Agreement does not create any employment relationship between the Parties for taxation of any other purpose. The Parties acknowledge and agree that neither this Agreement nor any related document shall in any respect be interpreted, deemed or construed as creating a partnership or joint venture between the Parties, or making either Party an agent or representative of the other Party, and each Party agrees not to make any contrary assertion, contention, claim or counterclaim in any action, suit or other legal proceeding involving any of the Parties. In no event shall either of the Parties be liable for debts or claims accruing or arising against the other Party.
13.9. Waiver. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right or any other right.
13.10. Severability. If any provision of this Agreement is held by a court having jurisdiction over the Parties to be wholly or partially unenforceable for any reason, such unenforceability shall not affect the remainder of this Agreement, which shall remain in full force and effect.
13.11. Force Majeure. Neither Party shall be responsible for failure to fulfill any obligation under this Agreement due to an event or circumstance beyond its reasonable control (a “Force Majeure Event”), including without limitation acts of God, acts of government, pandemics, floods, fires, storms, earthquakes, civil unrest, acts of terror, strikes or other labor problems, disruption of telecommunications services, disruption of common carriers or utilities, internet service provider failures or delays, denial of service attacks, and similar events. If Licensor should fail to make any delivery provided for herein as a result of any such Force Majeure Event, Licensor shall have the right to make delivery within a reasonable time after the cause of such delay has been removed.
13.12. Entire Agreement. This Agreement, including all Orders, amendments, exhibits and addenda hereto, constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning such subject matter.
13.13. Precedence; Licensee Forms. In the event that any term or condition in any Order attached hereto contradicts, modifies or adds to the terms and conditions of this Agreement, then such term or condition in such Order shall govern and control only with respect to the subject matter of such Order. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Licensee-issued purchase order or other ordering documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be of no force or effect.
