This Software Subscription Agreement (this “Agreement“), is a binding contract between you (“Customer,” “you,” or “your“) and Local Drive, LLC (“Local Drive” or “Company“). Each of Local Drive and Customer may be referred to herein individually as a “Party,” and collectively as the “Parties.” This Agreement governs your access to and use of the Platform.
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES (the “Effective Date“). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM OR THE SERVICES.
- Definitions.
“Access Credentials” means any username, 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, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“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.
“Agreement” has the meaning set forth in the preamble.
“Authorized Users” means (i) with respect to Customer, those of Customer’s Representatives who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to this Agreement; and (ii) Franchisees who have subscribed to the Platform independently of Customer.
“Branded Content” means all promotional, marketing, and/or advertising content or media that is (a) created by the Customer and authorized for use by Authorized Users through the Platform; or (b) created by Company and approved by Customer for use by Authorized Users.
“Company Materials” means the Platform, Documentation, and Company 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 Company in connection with the Platform or otherwise comprise or relate to the Platform or Company Systems.
“Company Systems” means the information technology infrastructure used by or on behalf of Company in providing the Platform, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Company or through the use of third-party services.
“Confidential Information” has the meaning set forth in Section 7.1.
“Customer” has the meaning set forth in the preamble.
“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 Resultant Data or any other information reflecting the access or use of the Platform by or on behalf of Customer or any Authorized User.
“Customer Failure” has the meaning set forth in Section 4.2.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” has the meaning set forth in Section 7.1.
“Documentation” means any manuals, instructions, or other documents or materials that Company provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Platform or Company Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Franchisee” means a franchisee of Customer who has elected to subscribe to the Platform and utilize Branded Content to market its franchise.
“Fees” has the meaning set forth in Section 6.1.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Initial Sign Up” means Customer’s completion of the Platform onboarding process required for Customer to obtain access credentials to and request an account on the Platform, and Customer’s acceptance of the terms of use and privacy policy for the Platform.
“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.
“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.
“Platform” means, collectively, the website located at www.localdrive.com, including any content, functionality, and services offered on or through www.localdrive.com.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Receiving Party” has the meaning set forth in Section 7.
“Representatives” means, with respect to a Party, such Party’s Affiliates and the employees, officers, directors, consultants, and advisors of such Party and its Affiliates.
“Resultant Data” means data and information related to use of the Platform by Authorized Users that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform.
“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 Platform that are not proprietary to Company.
2.Grant of Access and Restrictions.
2.1 “Access and Use” Subject to and conditioned on Customer’s and its Authorized Users’ compliance with this Agreement, including but not limited to the timely payment of all applicable Fees, Company hereby grants Customer a limited, revocable, non-exclusive, non-transferable (except as provided in Section 13.6) right to access and use the Platform, solely for use by Authorized Users in accordance with the terms and conditions herein, and solely limited to Customer’s internal business use.
2.2 Documentation License. Company hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.6) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Platform.
2.3 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:
(a) Company has and will retain sole control over the operation, provision, maintenance, and management of the Company Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the Company Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Platform or Company; (ii) results obtained from any use of the Platform or Company Materials; and (iii) conclusions, decisions, or actions based on such use.
2.4 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to the Platform, Company Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Platform, the Company Materials, and the Third-Party Materials are and will remain with Company and the respective rights holders in the Third-Party Materials.
2.5 Platform Management. Customer shall maintain within its organization a platform manager to serve as Customer’s primary point of contact for day-to-day communications, consultation, and decision-making regarding the Platform, and shall identify such platform manager during its account setup on the Platform. The platform manager shall be responsible for providing all consents and approvals on behalf of Customer. If the platform manager ceases to be employed by or affiliated with the Customer, or if Customer otherwise wishes to replace its platform manager, Customer shall promptly name a new service manager by updating its account profile on the Platform.
2.6 Changes. Company reserves the right, in its sole discretion, to make any changes to the Platform and Company Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Company’s services to its customers; (ii) the competitive strength of or market for Company’s services; or (iii) the Platform’s cost efficiency or performance; or (b) to comply with applicable Law.
3. Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Platform or Company Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Platform or Company Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Company 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) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Platform or Company Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Platform or Company Materials or access or use the Platform or Company Materials other than by an Authorized User through the use of his or her own then-valid Access Credentials;
(e) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Platform, Company Systems, or Company’s provision of services to any third party, in whole or in part;
(f) remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Platform or Company Materials, including any copy thereof;
(g) access or use the Platform or Company Materials for purposes of competitive analysis of the Platform or Company Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage;
(h) otherwise access or use the Platform or Company Materials beyond the scope of the authorization granted under this Section 3.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair all Customer Systems on or through which the Platform is accessed or used; and (b) provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay. Company 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 this Agreement (each, a “Customer Failure“).
4.4 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3, Customer shall, and shall cause its Authorized Users to, immediately: (a) 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 Platform and Company Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Company of any such actual or threatened activity.
5. Security.
5.1 Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Platform; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems“); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Platform and Company Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
5.2 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Platform, including but not limited to all necessary precautions in connection with accessing the Platform from public or shared computers.
6. Fees, Credits, and Payment.
6.1 Fees. Customer shall pay Company the following fees (collectively, “Fees“) to Company in connection with the setup of Customer’s account on and access to the Platform:
(a) a one-time initial set up fee for the setup of Customer’s account on the Platform and onboarding of Authorized Users (the “Initial Set Up Fee“);
(b) a recurring monthly, quarterly, or annual subscription fee to access and use the Platform (the “Subscription Fee“);
(c) advertising fee in connection with the posting of digital advertisements or promoted posts on third-party platforms supported by the Platform (the “Ad Fee“);
(d) professional fees in connection with the creation of Branded Content by Company (the “Professional Fee“).
(e) Customer authorizes Company to charge Fees payable to Company hereunder to Customer’s credit card, debit card, Automated Clearing House (ACH) or other approved payment method as provided in Customer’s account profile on the Platform.
6.2 Fee Schedule. Customer shall pay Fees due to Company in the amounts and at the frequency set forth in Customer’s account profile with the Platform, as the same may be amended, supplemented, or modified from time to time in accordance with this Agreement (the “Fee Schedule“).
6.3 Marketing Credits. Customer shall have the option to purchase marketing credits for use by its Franchisees (the “Marketing Credits“), which may be redeemed on the Platform in exchange for access to and use of Branded Content. The purchase price for such Marketing Credits shall be as set forth in the Fee Schedule. Marketing Credits are non-transferable except to Customer’s Franchisees. Company shall refund to Customer all amounts paid for unused Marketing Credits remaining in a Franchisee’s Platform account following termination of such Franchisee’s account shall be refunded to Customer.
6.4 Taxes. All Fees and other amounts payable by Customer under this 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, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Company’s income.
6.5 No Deductions or Setoffs. All amounts payable to Company under this Agreement shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
7. Confidentiality.
7.1 Confidential Information. In connection with this 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 7.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Company Materials and the financial terms of this Agreement are the Confidential Information of Company.
7.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this 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.
7.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 7.4 not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 7.3 and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 7;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all commercially reasonable steps to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section
(f) Notwithstanding any other provisions of this Agreement to the contrary, the Receiving Party’s confidentiality and non-use obligations under this Section 7 with respect to any Confidential Information will continue until such Confidential Information becomes generally available to the public other than as a result of any act or omission of the Receiving Party or any of its Representatives.
7.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, prior to such disclosure and to the extent legally permitted, 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 7.3; 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 the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 7.4, 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.
8. Intellectual Property Rights.
8.1 Company Materials. All right, title, and interest in and to the Company Materials, including all Intellectual Property Rights therein, are and will remain with Company and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Company Materials except as expressly set forth in Section 1 or the applicable third-party license, in each case subject to Section 3. All other rights in and to the Company Materials are expressly reserved by Company. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Company an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
8.2 Customer Data. As between Customer and Company, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 8.3.
8.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Company and the Company Personnel to enforce this Agreement and exercise Company’s, and the Company Personnel’s rights and perform their respective obligations hereunder.
8.4 Branded Content. With respect to Branded Content, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all of Customer’s trademarks, trade names, service marks, logos, and designs incorporated therein. With respect to Branded Content created by Company on Customer’s behalf, Customer shall own all rights, title, and interest in and to such Branded Content upon receipt by Company of full, unconditional payment therefor from Customer. Company shall retain a non-exclusive, non-revocable license in Branded Content created by Company on Customer’s behalf, and Company reserves the right to use such Branded Content in connection with advertising, publication, promotion, display, or other purposes.
8.5 Work Product. Any copyrightable works, ideas, discoveries, inventions, patents, marketing data, marketing campaigns, or other information developed in whole or in part by Company during the Term, but excluding Branded Content, shall be the exclusive property of Company.
9. Representations and Warranties.
9.1 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 this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
9.2 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Company that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Company and used in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights of any third party or violate any applicable Law.
9.3 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 1, THE PLATFORM AND COMPANY MATERIALS ARE PROVIDED “AS IS.” COMPANY 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, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR COMPANY MATERIALS, OR ANY PRODUCTS 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.
10. Indemnification
10.1 Company Indemnification. Company shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, successors, and permitted assigns (each, a “Customer Indemnitee“) from and against any and all Losses incurred by Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s or an Authorized User’s use of the Platform (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party’s US Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement comes from:
(a) Customer Data, Third Party-Materials, or Branded Content to the extent not created by Company for the Platform;
(b) access to or use of the Company Materials in combination with any hardware, system, software, network, or other materials or service not provided by Company or specified for Customer’s use in the Documentation;
(c) modification of the Company Materials other than: (i) by or on behalf of Company; or (ii) with Company’s written approval in accordance with Company’s written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Company; or
(e) act, omission, or other matter described in Section 10.2(a)-(d), whether or not the same results in any Action against or Losses by any Company Indemnitee.
10.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Company and its Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Company Indemnitee“) from and against any and all Losses incurred by such Company Indemnitee resulting from any Action by a third party (other than an Affiliate of a Company Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Company in accordance with 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, including Company’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 Company;
(c) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) 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 this Agreement.
10.3 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 10.1 or Section 10.2 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 reasonably acceptable to Indemnitee 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 without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but not the 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.
10.4 Sole Remedy. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COMPANY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PLATFORM AND COMPANY MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
11. Limitations of Liability.
11.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL COMPANY OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER 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 OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE PLATFORM; (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, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF COMPANY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO COMPANY UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3 Exceptions. The exclusions and limitations in Section 1 and Section 11.2 do not apply to Company’s gross negligence or willful misconduct.
12. Term and Termination.
12.1 Term. The term of this Agreement commences as of the Effective Date and shall continue for a period of one (1) month, three (3) months, or one (1) year (such period, the “Initial Term“) as selected by Customer during Initial Sign-Up. This Agreement shall automatically renew for additional terms equal in length of the Initial Term (each, a “Renewal Term,” and together with the Initial Term, collectively, the “Term“), unless either party provides written notice of non-renewal of this Agreement to the other party no fewer than 30 days prior to the expiration of the Initial Term or any Renewal Term.
12.2 Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Company may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Company’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3, Section 5.1, or Section 7;
(b) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
(c) either party may terminate this 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.
12.3 Effect of Termination or Expiration. Upon termination of this Agreement for any reason, and except as otherwise expressly provided in this Agreement:
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Company shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Company directly or indirectly controls.
(c) Customer shall immediately cease all use of the Platform and Company Materials and (i) promptly return to Company, or at Company’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Company’s Confidential Information; and (ii) permanently erase all of Company’s Confidential Information from all systems Customer directly or indirectly controls.
(d) Company may disable all Customer and Authorized User access to the Company Materials and the Platform;
13. Miscellaneous.
13.1 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this 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.
13.2 Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this 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 Company may, without Customer’s consent, include Customer’s name and other indicia in its lists of Company’s current or former customers of Company in promotional and marketing materials.
13.3 Interpretation. For purposes of this 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; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this 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 this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this 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 this 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 this Agreement to the same extent as if they were set forth verbatim herein.
13.4 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.5 Entire Agreement. This Agreement and any other documents referenced herein constitute the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
13.6 Separate Website Agreements. In addition to this Agreement, Customer and its Authorized Users are also bound by Company’s Terms of Use and the Privacy Policy, as each may be amended from time to time. If there is any conflict between this Agreement, the Terms of Use, and the Privacy Policy, the terms of this Agreement shall prevail.
13.7 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Company’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving Customer (regardless of whether Customer is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Company’s prior written consent is required. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.6 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
13.8 No Third-Party Beneficiaries. This 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 this Agreement.
13.9 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by 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 this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this 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.
13.10 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this 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 this 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.
13.11 Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida 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 Florida.
13.12 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 this Agreement or the transactions contemplated hereby.
13.13 Arbitration. If not resolved through reasonable negotiation, and except as qualified below, any dispute between the parties arising under, out of, in connection with, or in relation to this Agreement shall be submitted to binding arbitration under the authority of the Federal Arbitration Act and must be determined by arbitration administered by the American Arbitration Association pursuant to its then-current commercial arbitration rules and procedures, including the procedures for emergency relief. The arbitration must take place in Broward County, Florida. The arbitrator must follow the law and not disregard the terms of this Agreement. A judgment may be entered on the arbitration award in any state, federal, or foreign court of competent jurisdiction. The decision of the arbitrator will be final and binding on all parties to the dispute; however the arbitrator may not under any circumstances: (a) stay the effectiveness of any pending termination of this Agreement; or (ii) assess punitive, exemplary, or consequential damages. Notwithstanding the foregoing, the parties agree that the following claims will not be subject solely to arbitration: (x) any action for declaratory or equitable relief, including, without limitation, seeking preliminary or permanent injunctive relief, specific performance, or other relief in the nature of equity to enjoin any harm or threatened harm to such party’s tangible or intangible property, brought at any time, including, without limitation, prior to or during the pendency of any arbitration proceedings initiated hereunder; and (y) any action in ejectment or for possession of any interest in personal property.
13.14 Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations under Section 3, Section 5 , Section 5.1, or Section 7 would cause Company irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Company will be entitled to equitable relief, including an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, in each case 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.
13.15 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.