1. SERVICES AND SUPPORT.
1.1 Company Provision of Services. Subject to the terms of that certain Services Subscription Agreement (the “Services Agreement”) between the user and The Gough Company, LLC, (the “Company”) will provide to the Client the Services. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Services in a professional and workmanlike manner.
1.2 License. Subject to payment of agreed fees and strict compliance with the terms of access and acceptable use Company shall provide Client solely for Client’s internal business purposes: (a) remote access to the NoteRouter Platform through means Company provides (and which may include online portals or interfaces such as https, VPN or API); and (b) a limited, revocable, non-exclusive, non-assignable, non-transferable license to: (i) download, install, update or allow Company to update (when applicable), and use any software Company provides solely in support of Client's usage of the NoteRouter Platform; and (ii) use NoteRouter Platform documentation as reasonably required in connection with the NoteRouter Platform (collectively, “Use Rights”). Use Rights continue for the duration of the Term. The Services Agreement lists metrics to measure fees (the “Usage Metrics”). Use Rights are subject to Usage Metrics and restrictions in the Services Agreement. If Client exceeds Usage Metrics, Company may suspend access until Client pays required fees. Client, its employees and any party accessing the NoteRouter Platform on its behalf (“Users”) may exercise Use Rights, provided that, Client must bind them to the Agreement and are responsible for their compliance with it, any breach by them and their acts and omissions. Client may not resell Use Rights or permit third parties (except any Person directly or indirectly controlling, controlled by, or under common control with, the Person to which such term applies. For purposes of this Agreement, “control” as applied to any Person means the possession, directly or indirectly, of the power to direct or cause the direction of the management, policies and decision-making of such Person, whether through the ownership of voting interests, by contract or otherwise. “Control” shall also include the possession of direct or indirect equity or beneficial interests in more than fifty percent (50%) of the profits or voting control of any Person (an “Affiliate”) or service providers) to be Users or make copies of the SaaS (except for back up) except as agreed by Company in writing. Company has no responsibility with respect to actions or inactions of Users.
1.3 Marketing License. Client grants the Company a non-revocable and royalty-free license to use, copy, distribute, display, and create derivative works of marketing, advertising, and training materials, created together for the NoteRouter Platform and services. The Company agrees, when possible, to remove all marks identifying Association
1.4 Access. Client may be required to download a mobile app, or visit an internet portal or site, through which Client may access the NoteRouter Platform and set up accounts including issuance or authentication credentials. In operating its account Client and Users must: (i) maintain strict confidentiality of usernames, passwords or other credentials; (ii) not allow others to use credentials or access Client's account; (iii) immediately notify Company of any unauthorized use or breach of security related to your account; (iv) submit only complete and accurate information; and (v) maintain and promptly update information if it changes. Company may use rights management features (e.g. lockout) to prevent unauthorized use.
1.5 Restrictions. The Use Rights are the only acceptable use of the NoteRouter Platform. Client shall not use the NoteRouter Platform for purposes of, or in connection with: (a) reverse engineering, making machine code human readable or creating derivative works or improvements; (b) interfering with its security or operation (including probing, scanning or testing the vulnerability of any security measures or misrepresenting transmission sources); (c) creating, benchmarking or gathering intelligence for a competitive offering; (d) infringing another’s intellectual property rights; (e) employing it in hazardous environments requiring fail-safe performance where failure could lead directly or indirectly to personal injury or death or property or environmental damage; or (f) any use that would reasonably be expected to cause liability or harm to Company or its customers or breach the Agreement. Any violation of the restrictions set forth in this Section shall constitute a breach of Client's Use Rights under the Services Agreement. Company has the right to monitor usage.
1.6 Security Incidents. Company is not responsible or liable for any issues, problems, unavailability, delay or security incidents arising from or related to: (i) conditions or events reasonably outside of Company’s control; (ii) cyberattack; (iii) the public internet and communications networks; (iv) data, software, hardware, services, telecommunications, infrastructure or networking equipment not provided by us or acts or omissions of third parties you retain; (v) Client's and Users’ negligence or failure to use the latest version or follow published documentation; (vi) modifications or alterations not made by Company; (v) loss or corruption of data; (vi) unauthorized access via Client's credentials; or (vii) Client's failure to use commercially reasonable administrative, physical and technical safeguards to protect Client's systems or data or follow industry-standard security practices
2. COMPANY PERFORMANCE OBLIGATIONS.
2.1 During the Term, Company shall, in good faith and at its own expense, and at no cost to Client:
(i) Assign an implementation specialist to assist Client, related to the setup and implementation of the subscription of the NoteRouter Platform by Client;
(ii) Provide set-up and training support to Users, including “best practices” training;
(iii) Provide Client access to core-product upgrades and to commercially reasonable customer support; and
(iv) NoteRouter will adhere to TCPA and CAN-SPAM regulations as well as industry best-practices regarding Contact opt-in for communications such as emails and texts.
3. CLIENT RESPONSIBILITIES; RESTRICTIONS. During the Term, Client shall, in good faith and at its own expense, and at no cost to the Company:
3.1 Assign a member of the Client’s staff (generally a staff member familiar with membership data and the Client’s communications goals) designated to work with the Company, in the implementation and roll-out of the NoteRouter Platform for Client.
3.2 Designate personnel within Client who will be responsible for servicing inbound Client Contact questions regarding the Company and the NoteRouter Platform which will be provided in a manner as determined by Client in its sole and absolute discretion.
3.3 Contact consent for emails and texts.
(i) Company adheres to TCPA and CAN-SPAM regulations as well as industry best-practices regarding Contact opt-in for communications such as emails and texts and requires the same of Client and its Users;
(ii) Client accepts full responsibility of abiding by TCPA and CAN-SPAM regulations for the practice of sending communications initiated by Client through the NoteRouter Platform including but not limited to emails and texts to Contacts, and accepts the full responsibility and liability for any consequences if found in violation of those regulations;
(iii) Client acknowledges that prior written express consent is generally required prior to sending any Contact a communication via text or email. If Client ever communicates via email or text with their Contacts via NoteRouter, Client must obtain proper express consent in writing before doing so, such as via the Client’s membership application; and
(iv) Client acknowledges that in addition to legal consequences, failure to obtain this consent in the proper manner is grounds for immediate termination of the Services Agreement.
4. COMPANY INTELLECTUAL PROPERTY RIGHTS.
4.1 Company Ownership. The Company retains exclusive ownership and all right, title, and interest in and to its intellectual property and intellectual property rights and reserve all rights not expressly granted hereunder. Without limitation of the foregoing, and subject to the express rights and licenses granted by Company in the Services Agreement, Client acknowledges and agrees that:
(i) Any and all Company Intellectual Property Rights are the sole and exclusive property of Company or its licensors;
(ii) Client shall not acquire any ownership interest in any of Company Intellectual Property Rights under the Services Agreement;
(iii) Any goodwill derived from the use by Client of Company Intellectual Property Rights inures to the benefit of the Company or its licensors, as the case may be;
(iv) If Client acquires any Company Intellectual Property Rights in or relating to the NoteRouter Platform under the Services Agreement (including any rights in any Company trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to Company or its licensors, as the case may be, in consideration for $1.00, without further action by either Party; and
(v) Client shall use Company Intellectual Property Rights solely for the purposes of performing its obligations and exercising its rights and licenses under the Services Agreement and only in accordance with the Services Agreement and the instructions of Company. For purposes of the Services Agreement and this Agreement, "Company Intellectual Property Rights" means all intellectual property rights proprietary to Company comprising or relating to the NoteRouter Platform, including but not limited to (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (iv) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, source code, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) feedback about the NoteRouter Platform and related information or technology, whether provided by Client or others, and (vi) trade secrets; and all intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the laws of any jurisdiction throughout in any part of the world.
4.2 Company’s Trademark License Grant. The Services Agreement does not grant Client the right to use the Company’s or its affiliates' trademarks except as set out under this Section. Subject to the terms and conditions of the Services Agreement, Company hereby grants to Client a limited, non-exclusive, non-transferable and non-sublicensable license to use the Company’s trademarks during the Term solely on or in connection with its online and offline marketing material collateral and communications and with the marketing of the Company or the NoteRouter Platform in accordance with the terms and conditions of the Services Agreement and the Company’s then current trademark standards, and subject to the Company’s prior approval, which approval shall not be unreasonably withheld, delayed or conditioned. Client will promptly discontinue the display or use of any of the Company’s trademarks and will change the manner in which the Company’s trademarks are displayed or used with regard to the Company and the NoteRouter Platform when requested by Company. Other than the express licenses granted by the Services Agreement, Company grants no right or license to Client by implication, estoppel or otherwise to the NoteRouter Platform or any Intellectual Property Rights of Company.
4.3 Prohibited Acts. Client shall not:
(i) Take any action that may interfere with any of Company's rights in or to Company Intellectual Property Rights, including Company' ownership or exercise thereof;
(ii) Challenge any right, title or interest of Company in or to Company Intellectual Property Rights;
(iii) Make any claim or take any action adverse to Company ownership of Company Intellectual Property Rights;
(iv) Register or apply for registrations, anywhere in the world, for the Company’s trademarks or any other trademark that is similar to the Company’s trademarks or that incorporates the Company’s trademarks in whole or in confusingly similar part;
(v) Use any mark, anywhere, that is confusingly similar to the Company’s trademarks; and
(vi) Misappropriate any of the Company’s trademarks for use as a domain name without prior written consent from Company.
4.4 No Continuing Rights. On expiration or earlier termination of the Services Agreement:
(i) Client’s rights under 7.2 terminate immediately; and
(ii) Client shall immediately cease all display, advertising, promotion and use of all of the Company’s trademarks and shall not thereafter use, advertise, promote or display any trademark, trade name or product designation or any part thereof that is similar to or confusing with the Company’s trademarks or with any trademark, trade name or product or service designation associated with Company or the NoteRouter Platform.
5. CONFIDENTIALITY; PROPRIETARY RIGHTS.
5.1 Confidentiality. From time to time during the Term, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information that (i) relates or pertains to its properties, personnel, operations or business; (ii) if disclosed in written, electronic or other tangible form is conspicuously marked as confidential, proprietary or other similar designation; and (iii) if disclosed in oral or visual form is identified as confidential at the time of disclosure (the "Confidential Information"); provided that in all events information that the Receiving Party should reasonably understand to be confidential to the Disclosing Party shall constitute Confidential Information even if not marked or otherwise identified as confidential. Confidential Information includes, but is not limited to, business processes, practices, methods, policies, plans, publications, documents, operations, services, strategies, techniques, agreements, contracts, transactions, know-how, trade or business secrets, data, computer programs, computer software, source code, object code, software design, applications, operating systems, databases, manuals, records, systems, supplier information, vendor information, financial information, legal information, marketing information, pricing information, design information, technical information, customer/client information, payroll information, staffing information, personnel information, employee lists, supplier lists, vendor lists, customer/client lists, products, product plans, models, designs, research, trade secrets, know-how, inventions, discoveries, copyrights and other intellectual property, formulae, formulations, notes, instructions, reports, algorithms, unpublished patent applications, original works of authorship, and discoveries of the Disclosing Party or its businesses or of any other person or entity that has entrusted information to the Disclosing Party in confidence.
5.2 Excluded Confidential Information. Confidential Information does not include information that, at the time of disclosure:
(i) Is or becomes generally available to and known by the public other than resulting from, directly or indirectly, any breach of this Section by the Receiving Party or any of its representatives;
(ii) Is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that the third party is not and was not prohibited from disclosing the Confidential Information;
(iii) Personal and professional data, of Client Contacts, licensed for use under this Agreement (the “Licensed Content”);
(iv) Was known by or in the possession of the Receiving Party or its representatives before being disclosed by or on behalf of the Disclosing Party as demonstrated by written records; or
(v) Was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information.
5.3 The foregoing notwithstanding, it is not a violation for the Receiving Party to disclose Confidential Information if the Receiving Party is compelled to disclose by a subpoena or order issued by a court of competent jurisdiction (each, an “Order”) or is otherwise required to make disclosure Confidential Information in accordance with any applicable law, rule or regulation (“Legal Requirement.”)
5.4 The Receiving Party shall during the Term and in perpetuity thereafter,
(i) Protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(ii) Not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Services Agreement; and
(iii) Not disclose any of the Confidential Information to any Person, except to the Receiving Party's representatives who must know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Services Agreement.
5.5 The Receiving Party shall be responsible for any breach of this Section caused by any of its representatives. On the expiration or earlier termination of the Services Agreement, or at any time during or after the Term, at the Disclosing Party's written request, the Receiving Party and its representatives shall, promptly return or destroy, with the Receiving Party notifying the Disclosing Party by email, letter or facsimile that such Confidential Information has been destroyed, all Confidential Information (including copies) and all documents and tangible materials that contain, reflect, incorporate or are based on Confidential Information received under the Services Agreement
5.6 Both Parties understand and agree that all the terms and conditions of the Services Agreement are Confidential Information.
6. DATA AND SECURITY.
6.1 Subject to the provisions, terms and conditions of the Services Agreement, Client hereby grants to the Company during the Term a revocable, non-exclusive, non-transferable, royalty-free license to use, copy, distribute, display, and create derivative works of Licensed Content, solely within the NoteRouter Platform and as part of services delivered to Client, Users, and Client Contacts through the NoteRouter Platform.
6.2 Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that the Company shall have the right to distribute, deliver, provide access, export, or otherwise transmit to software and service providers whose software is integrated as core component of the NoteRouter Platform and is used to provide the NoteRouter Platform to Client, their Users, and their Contacts through the NoteRouter Platform (“Integrated Software Service Providers”), solely such portions of the Licensed Content as is required by such Integrated Software Service Providers, respectively, to provide their respective services to Client, Users, and Client Contacts within or through the NoteRouter Platform.
6.3 Client retains all ownership or other rights over data that Client or persons acting on Client's behalf input, upload, transfer or make available in relation to, or which is collected from Client devices or equipment by, the NoteRouter Platform (“Input Data”). Company and its Affiliates have the right to duplicate, analyze, transfer, modify and otherwise use Input Data to provide, improve or develop Company’s offerings. Client have sole responsibility for obtaining all consents and permissions (including providing notices to Users or third parties) and satisfying all requirements necessary to permit Company’s use of Input Data. Client will, at its cost and expense, defend, indemnify and hold harmless Company and its Affiliates, subcontractors and licensors from and against all losses, awards and damages (including attorneys’ fees), arising out of claims by third parties related to our possession, processing or use of Input Data in accordance with the Agreement or Client's or Users’ infringement, misappropriation or violation of Company’s or a third party’s intellectual property rights (except if caused by Client's authorized use of the NoteRouter Platform). Unless agreed in writing, Company does not archive Input Data for Client's future use.
6.4 Company will use commercially reasonable administrative, physical and technical safeguards to protect personal data and Input Data and follow industry-standard security practices; and (ii) following a confirmed breach of security leading to the accidental or unlawful destruction, loss, alteration or unauthorized access, disclosure or use of Client Personal Data or Input Data Company will notify Client without undue delay and as relevant information becomes available to assist Client in meeting its potential reporting or notice obligations under applicable law and Client will work with Company in good faith to develop any related public statements or required notices. Client is solely responsible for costs and liability incurred due to unauthorized use or access through Client's or Users’ account credentials or system.
7. PAYMENT OF FEES.
7.1 Services Fees. All Core Subscription Fees shall be due and payable upon receipt of invoice. Any payment not received within fourteen (14) days after its due date may accrue late penalties at the rate of ten percent (10%) per month or the highest rate allowed by law, whichever is lower, calculated from the date such amount was due until the date that the Company receives payment. Client shall reimburse the Company for all costs of collection of any undisputed Core Subscription Fees, including reasonable attorneys’ fees and expenses.
7.2 Set Up Fee. The set-up fee only applies to the Company’s own set-up fee, and any third-party set up fees to be incurred by Client shall be the responsibility of Client.
7.3 Taxes. All Subscription Fees are exclusive of any applicable, use, sales, service, or other tax or impost in connection with the purchase or sale of goods or services (collectively, “Taxes,” which shall not include any federal or state income tax, employment tax, capital gains tax, gift tax or estate tax, property tax or any other similar tax). A paying Party shall be responsible for payment of all Taxes as defined above resulting from any payments made hereunder. If a receiving Party is required to pay any such Taxes, the receiving Party shall include those taxes in an invoice and these shall be paid promptly by the paying Party.
8. TERM AND TERMINATION.
8.1 Term. Subject to earlier termination as provided below, the term of the Services Agreement (the “Term”) shall be for the Initial Term plus any Renewal Terms (if applicable).
8.2 Renewal. On expiration of the Initial Term, the Services Agreement automatically renews for additional successive twelve-month terms (each, a “Renewal Term”) unless and until either Party provides written Notice of Nonrenewal at least sixty (60) days before the end of the then-current term, or unless and until sooner terminated as provided under the Services Agreement. In the event of Renewal Term under this section, the terms and conditions of the Services Agreement are the same as the terms in effect immediately before the renewal, unless otherwise agreed to in writing by the Parties. In the event either Party provides timely Notice of its intent not to renew the Services Agreement, then, unless earlier terminated in accordance with its terms, the Services Agreement terminates on the expiration of the then-current term
8.3 Right to Terminate. Either Party may terminate the Services Agreement by providing written Notice to the other Party, if such other Party: (i) materially breaches any material provision of the Services Agreement, including not delivering on any subsequently agreed-upon written commitment, and either the breach cannot be cured or, if the breach can be cured, it is not cured by such other Party within sixty (60) days after its receipt of written Notice of the breach; (ii) becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due. Any termination under this Section is effective on receipt by such other Party of written Notice of termination or any later date set out in the Notice
8.4 Right to Remove Third-Party Content. Company reserves the right, in its sole discretion, to remove or disable access to any third-party Publisher or third-party content within the NoteRouter Platform at any time for any reason, including to protect the platform, Company, Client, or any third party from harm or potential liability.
8.5 Effect of Expiration or Termination. The Term's expiration or earlier termination does not affect any rights or obligations that were incurred by the Parties before the expiration or earlier termination. On the expiration or earlier termination of the Services Agreement: (i) Each Party shall return to the other Party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on such other Party’s Confidential Information. Each Party shall also destroy all source code and intangible materials of the other Party containing, reflecting, incorporating or based on such other Party’s Confidential Information; (ii) upon termination of the Services Agreement, the Company shall have no right, title or interest in or to any of the Licensed Content, and shall not further use for any purpose, any of the Licensed Content. Notwithstanding anything to the contrary in this Section, the Company shall have the right to maintain a copy of such Licensed Content as is required by law or for the purpose of maintaining a historical business records audit trail for Client Contacts. Upon the Party terminating the Services Agreement, or in the case of the expiration of the Services Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of the Services Agreement
8.6 Survival. All sections of this Agreement and the Services Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Company Representations and Warranties. Company represents and warrants to Client that:
(i) It is a California limited liability company duly organized, validly existing and in good standing in the jurisdiction of its organization;
(ii) It is qualified and licensed to do business and in good standing in every jurisdiction where qualification and licensing is required for purposes of the Services Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under the Services Agreement;
(iii) It has the full right, power and authority to enter into the Services Agreement, and to perform its obligations under the Services Agreement;
(iv) The execution of the Services Agreement by its representative whose signature is set out at the end hereof has been duly authorized by all necessary action of Company; and
(v) When executed and delivered by each of Company and Client, the Services Agreement will constitute the legal, valid and binding obligation of Company, enforceable against Company in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally or the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
9.2 Client’s Representations and Warranties. Client represents and warrants to Company that:
(i) It is duly organized as the Entity Type and in the state listed in the Service Agreement, validly existing and in good standing in the jurisdiction of its incorporation;
(ii) That to the best of its actual knowledge, the Company’s use of the Licensed Content as permitted under the Services Agreement will not infringe any third party intellectual property rights;
(iii) It is qualified and licensed to do business and in good standing in every jurisdiction where qualification and licensing is required for purposes of the Services Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under the Services Agreement;
(iv) It has the full right, corporate power and authority to enter into the Services Agreement, and to perform its obligations under the Services Agreement;
(v) The execution of the Services Agreement by its representative whose signature is set out at the end hereof has been duly authorized by all necessary corporate action of Client; and
(vi) When executed and delivered by each of Company and Client, the Services Agreement will constitute the legal, valid and binding obligation of Client, enforceable against Client in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting creditors' rights generally or the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity).
10. INDEMNITY
10.1 Company Indemnity Obligations. Company shall hold Client harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing.
10.2 IP Indemnification. Company will, at its cost and expense, defend, indemnify and hold harmless Client and its Affiliates and sub-contractors, from and against all losses, awards and damages (excluding attorneys’ fees),solely to the extent arising out of claims by third parties that Client's use of the NoteRouter Platform as provided by Company and in accordance with the Services Agreement, infringed, violated or misappropriated their valid intellectual property rights; provided that, with respect to patents, Company’s obligation is limited to U.S. patents issued before the Agreement becomes effective. Company has no indemnification obligations to the extent a claim arises from: (a) data Client provides; (b) Client's use of the outputs of the NoteRouter Platform or unauthorized use; (c) combining the NoteRouter Platform with goods, technology or services not supplied by Company; (d) modifications by anyone other than Company; or (e) compromise or settlement made by Client without Company’s written consent. If the NoteRouter Platform is held, or Company believes it may be, infringing, Company may undertake at least one of the following with respect to the allegedly infringing materials at Company’s option: (i) procure a license to allow Client's use; (ii) modify them to make them non- infringing; or (iii) procure a license to a reasonable substitute product. If Company cannot do one these after a reasonable period, Company may terminate the Agreement by notice and refund a pro-rata portion of pre-paid fees received during the applicable period without any further liability. This clause sets out Client's sole and exclusive remedies for claims the NoteRouter Platform infringes, violates or misappropriates third party intellectual property rights. Company’s obligations under this Section are contingent upon Client notifying Company in writing of a claim or other event requiring defense or indemnification promptly upon becoming aware thereof. Company shall have the sole right to control the defense and/or settlement of each claim and Client shall provide all reasonable assistance
10.3 Exclusions from Company Indemnity Obligations. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with the Services Agreement or this Agreement.
10.4 Replacement of Infringing Services. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate the Services Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.
10.5 Client Indemnification. Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the Services Agreement or this Agreement or otherwise from Client’s use of Services or as a result of Company’s reliance on any Client data or use of Client data in connection with the provision of the Services. In addition, Client shall indemnify Company for any TCPA/CAN-SPAM violations resulting from any communications initiated by Client.
11. LIMITATION OF LIABILITY
11.1 Disclaimer of Warranties by the Company. THE NOTEROUTER PLATFORM IS PROVIDED ON AN “AS IS,” “WITH ALL FAULTS” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT, AND ANY WARRANTY OF QUIET ENJOYMENT OR ACCURACY.
11.2 Disclaimer of Warranties by Client. THE LICENSED CONTENT IS PROVIDED TO THE COMPANY AGENT ON AN “AS IS,” “WITH ALL FAULTS” BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT, AND ANY WARRANTY OF QUIET ENJOYMENT OR ACCURACY.
11.3 Limitation on Liability. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THE SERVICES AGREEMENT, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT IS EITHER PARTY OR ITS REPRESENTATIVES LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS, LOSS OF DATA, OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THE SERVICES AGREEMENT, REGARDLESS OF (A) WHETHER THE DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES OR (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE
11.4 THE PARTIES AGREE THAT THE AGGREGATE AND TOTAL LIABILITY OF EACH PARTY TO THE OTHER PARTY FOR ANY LOSSES OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING OUT OF THE SERVICES AGREEMENT OR RELATED TO THE NOTEROUTER PLATFORM OR THE PERFORMANCE OF OR FAILURE TO PERFORM ANY SERVICES HEREUNDER, WHETHER IN CONTRACT, TORT, STATUTE, PRODUCTS LIABILITY, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE HIGHER OF $10,000 OR THE AMOUNTS ACTUALLY PAID TO THE BREACHING PARTY HEREUNDER DURING THE PRECEDING TWELVE MONTHS.
12. MISCELLANEOUS
12.1 Severability. If any term or provision of this Agreement or the Services 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.
12.2 Successors and Assigns. The Services Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
12.3 Assignment. Neither Party may assign any of its rights or delegate any of its obligations under the Services Agreement without the prior written consent of Company, other than in connection with a change in control, merger or sale of all or substantially all of its assets or equity.
12.4 Notice. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a Notice) shall be in writing and given in person or by courier, mailed by registered mail (return receipt requested and postage prepaid), or transmitted by facsimile or electronic mail (with confirmation) addressed to the Parties at the addresses or email addresses set forth in the Services Agreement. All Notices will be deemed effective upon the earlier of: (a) actual delivery to the Party; (b) five business days after the date the notice was postmarked; (c) receipt by electronic mail transmission with confirmation of delivery when directed to the relevant electronic mail address.
12.5 Amendments and Modifications. The Company reserves the right to amend or modify these Terms and Conditions at its discretion. For changes such as fixing typos, clarifying language, and other non-essential fixes (“Minor Changes”) the Company is not required to notify Client for such Minor Changes. For changes including changing fees, modifying customer obligations, and anything that impacts the terms of the Services Agreement, any such changes will be communicated to the Client at least thirty (60) days before the amendments become effective by providing Notice in accordance with Section 12.4 of this Agreement. The Notice will include a summary of the changes and the effective date. The continued use of the Services by the Client after the effective date of any amendments or modifications constitutes acceptance of those changes. If the Client does not agree to the amendments, the Client has the right to terminate the Services Agreement provided it provides Company Notice of termination in accordance with the termination provisions of this Agreement before the amendments become effective.
12.6 Entire Agreement. This Agreement, the Services Agreement, together with any other documents incorporated by reference and related exhibits and schedules, constitutes the sole and entire agreement of the Parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
12.7 Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever.
12.8 Attorney Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
12.9 Dispute Resolution. If there is any dispute and/or claim between the parties arising out of, under, in connection with, relating to or in relation to this Agreement including, but not limited to, its existence, validity, interpretation, conclusion, formation, performance, execution, breach, termination, completion and/or settlement, the Parties shall attempt to reach an amicable settlement through mediation within thirty (30) days. If the dispute is not resolved through mediation within the specified period, the dispute and/or claim shall be referred to and finally resolved by arbitration under the Rules of the American Arbitration Association (“AAA”) in effect on the date the dispute or claim arose. The AAA Rules shall govern the arbitration, except when contrary to the express provisions of this Agreement; in the event the AAA Rules conflict with a provision of Utah law applicable to arbitrations, Utah law shall prevail. The number of arbitrators shall be one (1). The arbitrator shall decide the dispute and/or claim according to the Utah law. The only place of arbitration shall be Salt Lake City, Utah, USA, unless mutually agreed to by the Parties, in writing. The language used in the arbitration proceedings shall be English. Each of the Parties hereby irrevocably submits to the jurisdiction of any arbitrator sitting in Salt Lake City, Utah, USA. Each of the parties hereby irrevocably agrees that any arbitration award shall be reduced to a judgment in any court of competent jurisdiction. The losing party shall bear the expenses of the arbitration, including attorney’s fees, unless decided otherwise by the arbitrator.
12.10 Governing Law. This Agreement shall be governed by the laws of the State of Utah, without regard to its conflict of laws provisions.
12.11 Counterparts. This Agreement may be executed in multiple counterparts and by facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument; and signatures exchanged by facsimile or other electronic means are effective for all purposes hereunder to the same extent as original signatures.
12.12 Definitions. Defined terms used but not defined herein shall have the definitions provided in the Services Agreement.
