TABLELIST/TABLELISTPRO MASTER SERVICES AGREEMENT
Terms and conditions
These Terms of Use (these “Terms”) set forth the legally binding terms and conditions that govern CUSTOMER’s (AS DEFINED BELOW) use of the SERVICES. By clicking the “Create Account” button, CUSTOMER: (I) acknowledges and agrees that CUSTOMER has read, is aware of, accepts full responsibility for and is bound by the terms and conditions contained in this Agreement, which also governs the use and provision of any Services purchased by CUSTOMER pursuant to any Order Form (AS DEFINED BELOW), and (II) represents and warrants that CUSTOMER has the right, authority, and capacity to enter into these Terms (on behalf of yourself or the entity that you represent). Any individual signing this Agreement represents that he or she is of legal age, and has the authority and power to sign this Agreement on their own behalf or for the CUSTOMER. you you may not access or use the APPLICATION SERVICES or accept the Terms if you are not at least 18 years old. If you do not agree with all of the provisions of these Terms, do not access and/or use the APPLICATION SERVICES.
1.1 “Affiliate” means any person or other entity, which directly or indirectly owns, is owned by or is under common ownership with a party.
1.2 “Agreement” means this Master Services Agreement, including any Order Forms.
1.3 “Application Documentation” means documentation, whether in electronic or printed format, provided by Company to Customer that describes the features, functions and operation of the Application Services.
1.4 “Application Services” means the software-as-a-service offerings ordered by Customer as set forth in any Order Form and provided by means of access to the features and functions of such service as hosted by Company, including without limitation, the Customer Management System.
1.5 “Authorized User” means each of Customer's employees, agents, and independent contractors when and to the extent they are acting on behalf of Customer, who is granted access to the Application Services by Customer.
1.6 “Company” means Tablelist, Inc.
1.7 “Company Brand” means any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, registrations and applications for registration thereof owned by, or licensed to, Company.
1.8 “Company Content” means any information, data, text, messages, software, sound, music, video, photographs, graphics, images and tags incorporated into the Services by Company or End Users (including without limitation, any information concerning End Users and their reservations and transaction processed via the Services.
1.9 “Company Fees” means the fees due to Company as set forth on an Order Form, which may include monthly software fees (the “Monthly Software Fees”), setup fees (the “Initial Setup Fees”), and Transaction Fees.
1.10 “Confidential Information” means all written or oral information, disclosed by either Party to the other (each, a “disclosing Party”), related to the business, products, services or operations of either Party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding products, customers, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, suppliers and agents; and (iii) information regarding the skills and compensation of the disclosing Party's employees, contractors, and other agents. Without limiting the foregoing, and for purposes of this Agreement, the Application Services (including the Application Documentation), Company Content, Feedback and any data or information collected and/or compiled by Company under the terms of this Agreement, will be the Confidential Information of Company. For the sake of clarity, any data collected by Company in connection with a End User’s use of the End User Services shall be Company Confidential Information.
1.11 “Customer” means the person or entity listed as “Company” in opening the account associated with this Agreement.
1.12 “Customer Brand” means any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, registrations and applications for registration thereof owned by Customer.
1.13 “Customer Content” means any photographs, graphics, artwork, text and other content provided by Customer.
1.14 “Customer Management System” means Company’s proprietary technology and content that Company makes available on a software as a service basis to Customers that enables the Customer’s to manage all table and guest list reservations, its clients, manage its client offerings including without limitation, those related to the distribution or sale of alcohol and provides relevant resources to the waitstaff and door staff of the venue regarding the client reservations, sell event tickets, and provide any other Services described on an applicable Order Form.
1.15 “End User” means any third party that utilizes End User Services. “End User Personal Data” means any Personal Data disclosed by Company to Customer in connection with the Services.
1.16 “End User Services” means any service provided by Company to End Users through web-based or mobile applications, including without limitation, ticketing, reservation, cover charge, and line-jumping services at nightclubs, lounges and bars.
1.17 “Party” or “Parties” means either or both of Company and/or Customer.
1.18 “Order Form” means a document signed by an authorized representative of each Party identifying the specific Application Service(s) to be made available, the Company Fees to be paid and other relevant customized terms and conditions.
1.19 “Services” means the Application Services and any other services ordered by Customer, to be provided by Company, as set forth in an Order Form.
1.20 “Transaction Fees” any fees set forth on an Order Form that are not Monthly Software Fees or Initial Setup Fees.
2.1 Orders. The Services to be provided by Company under this Agreement will be described and set forth in one or more Order Forms executed by the Parties. The Parties will negotiate and sign each Order Form separately. Each Order Form will be incorporated in the Agreement by reference, and will be subject to this Agreement. If a Company desires to use the Services in more than one venue, as applicable, then there shall be a separate Order Form for each such venue.
2.2 Access Grant. Subject to Customer’s compliance with the terms and conditions contained in this Agreement, Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to allow Authorized Users to access the applicable Service(s) during the applicable Order Form Term (as defined on the Order Form). Company will provide to Customer the necessary login information, passwords, security protocols and policies (the "Access Protocols") to permit Customer to access the Application Services in accordance with this Agreement. Customer will safeguard the Access Protocols and will be responsible for all activity carried out under all such accounts. Customer will notify Company immediately of any unauthorized use of any Access Protocols or any other known or suspected breach of security. Customer agrees that all right, title and interest in and to the Services and any copies, modifications, alterations or derivative works thereof, and that all right, title and interest in and to any existing or future copyrights, trade secrets, and other proprietary rights embodied therein, shall vest and/or remain exclusively with Company.
2.3 Provision of Access to Authorized Users. Customer will be responsible for all acts and omissions of its Authorized Users. Customer acknowledges and agrees that at least one of its Authorized Users will be required to upload certain information to the Application Services in order for the Application Services to function properly. Customer represents and warrants that all such information uploaded to the Application Services will be true, accurate and complete and that the Services may not perform as intended if the information is not true, accurate and complete.
2.4 Usage Restrictions. Customer will use the Services, including the Application Services (as applicable), solely on its own behalf and not on behalf of any third parties. For purposes of clarity, the Parties agree that, in the event that Customer owns or operates multiple venue locations, Customer shall obtain Services for each location at which it intends to use the Service pursuant to a separate Order Form under this MSA. Customer may use the Services solely in connection with the Customer specified on the Order Form. Customer will not use the Services: (i) in any manner that is not in compliance with applicable law or industry best practice; (ii) to display, transmit, distribute or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content or information of any kind; (iii) to defraud or deceive any third party; (iv) to build a similar or competitive product or service; or (v) with any device, software, or routine that damages, interferes with or disrupts the integrity, performance or use of the Services. Customer will not conceal, remove or alter any proprietary notice or legend regarding Company’s proprietary rights in the Services. Subject to the terms and conditions herein, Customer may permit any Authorized User to access and use the features and functions of the Services only through the Access Protocols and solely in accordance with the Application Documentation. Customer will only allow Authorized Users who have been assigned a unique user identification to access the Application Services.
2.5 End User Refusal. Customer retains the right to refuse any End User entry to a venue (as applicable) that does not follow dress code, is not of legal age, is not carrying proper ID, or is intoxicated. Customer shall not receive a Customer Fee (or shall promptly refund the Customer Fee to Company to the extent a Customer Fee has been paid to Customer) if any End User is refused for any reason.
3.1 License Grant of Customer Brand & Customer Content.
(a) Customer grants to Company a royalty-free non-exclusive, non-transferable right and license to use the Customer Brand and any photographs, graphics, artwork, text and other content provided by Customer during the Term for the limited purposes of performing Company’s obligations under this Agreement and for Company marketing purposes.
(b) Customer hereby grants to Company a limited, royalty-free, license during the Term to use, copy, display, disclose, modify and distribute the Customer Content in accordance with Company privacy policy. Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content and Company will not be responsible or liable for the deletion, damage, or failure to store any Customer Content by Authorized Users.
(c) Customer retains all right, title and interest in and to the Customer Brand and Customer Content, and Company acknowledges that it neither owns nor acquires any additional rights in and to the Customer Brand or Customer Content not expressly granted by this Agreement.
3.2 License Grant of Company Brand. Company grants to Customer a non-exclusive, non-transferable right and license to use the Company Brand and any photographs, graphics, artwork, text and other content provided by Company during the Term in accordance with Company branding guidelines. Except as expressly permitted by this Agreement, Company will have a written right of approval over the use of Company Brand by Customer. All right, title and interest, in and to the Services (including the Application Services and Application Documentation) and Feedback remain with Company, and Company expressly reserves all rights and licenses not expressly granted. Customer acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by this Agreement.
3.3 Feedback. Company in its sole discretion, may utilize, in any manner it deems appropriate, all comments and suggestions, whether written or oral, furnished by Customer to Company in connection with its access to and use of the Services (all reports, comments and suggestions provided by Customer hereunder constitute, collectively, the “Feedback”). Customer hereby grants Company a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into Company's products and services.
4.1 Training. Company will provide the number of hour(s) set forth on the Order Form of remote training related to the Services (including the Application Services as applicable) for the appropriate Customer personnel at a date and time agreed to by the parties. Customer may request that Company provide certain professional services related to Customer's use of the Application Services, including, by way of example, customization and/or additional training; provided, however, except as provided in this Section 4.1, Company shall have no obligation to provide or perform such services for or on behalf of Customer unless otherwise mutually agreed by the Parties in the relevant Order Form.
4.2 Support. Company will be reasonably available to provide phone and email technical support during the regular business hours of 10am-9pm EST Monday through Friday excluding U.S. federal holidays.
5.1 Fee and Payment Obligations. In consideration for the access rights granted to Customer pursuant to Section 2 herein and the Services provided by Company under this Agreement, Customer agrees as follows:(a) Customer shall pay to Company without offset or deduction, the applicable fees set forth in any and all Order Forms.(b) Customer shall also be responsible for payment of any applicable sales, use and other taxes and similar charges (other than taxes based on Company income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related Services.(c) Initial Setup Fees are due upon the Order Form Effective Date, and monthly billing shall commence upon the date the first Authorized User receives a login account for the Application Services.(d) Customer acknowledges and agrees that during the Term, unless Customer has opted for an automatically renewing subscription, Company will invoice Customer on a monthly basis in advance of each month's service for the Monthly Software Fee as set forth on any Order Form), and each invoiced amount will be due and payable within ten (10) days of receipt of the relevant invoice by Customer, unless otherwise mutually agreed by the Parties in the relevant Order Form.(e) Customer acknowledges and agrees that during the Term, if Customer has opted for an automatically renewing subscription, Customer’s subscription will be renewed automatically and Customer’s credit card will be charged based on the subscription program Customer has chosen, unless Customer has opted out or cancelled by following the instructions in this Agreement. Renewal of the subscription takes place subject to the terms and conditions in effect on the date of renewal.(f) Customer may opt out of renewing its subscription at least two business days before the renewal date by email via the contact information below or by logging into Customer’s account and following the cancellation instructions there; otherwise, the payment for renewal period of the subscription will be processed. Cancellations must be received by 5:00 p.m. Eastern Time on the appropriate day as described above.(g) In addition to Monthly Software Fees, to the extent applicable, Company shall receive Transaction Fees for transactions (each, a “Transaction”) as set forth on each Order Form. Within 14 days after a Transaction is processed by Company, Company shall remit to Customer the total amount received by Company for the Transaction, less the applicable Transaction Fee (the “Customer Fee”), which Company shall retain as its fee. Transactions Fees, including and without limitations are non-refundable.(h) Customer shall be solely responsible for and pay any and all taxes (sales tax or otherwise) associated with any Transaction. Customer shall be responsible to obtain a copy of each End User’s ID, credit card, and signature upon arrival at a Customer’s venue. In the event of a chargeback, and Customer has not obtained such information, Customer shall be solely and exclusively responsible to Company for any refunds and chargebacks.(i) Any portion of any amount payable by Customer hereunder that is not paid when due will accrue interest at one and one-half (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.
6.1 Confidential Information. During this Agreement, each Party will have access to certain Confidential Information of the other Party. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party and will remain the sole property of the disclosing Party. Except as otherwise expressly permitted, and without limiting each Party's obligations, under this Agreement, each Party agrees as follows: (a) it will not disclose the Confidential Information of the other Party to anyone except its employees, contractors and advisors who have a need to know, (b) it will not use Confidential Information disclosed by the other Party for any purpose other than exercising its rights and performing its obligations as described herein; (c) that such Party will not reproduce Confidential Information disclosed by the other Party; (d) that each Party will take no less than commercially reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information; (e) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; and (f) that such party will notify the other Party of any suspected breach of this Section 6. Notwithstanding the foregoing, the provisions of Section 6.1 will not apply to Confidential Information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure by the disclosing Party as shown by the receiving Party's files and records immediately prior to the time of disclosure; (e) is independently developed by the recipient without use of or reference to the disclosing Party's Confidential Information; or (f) is approved in writing for release or disclosure by an authorized representative of the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required: (1) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order will, to the extent permitted by law, first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (2) to establish a Party's rights under this Agreement, including to make such court filings as it may be required to do. In the event of a breach or threatened breach of this Section 6, the non-breaching Party will be entitled to seek injunctive relief to enforce the provisions of this Agreement without posting any bond and, if successful, will be entitled to recover reasonable attorneys' fees.
6.2 Data. Notwithstanding any other term or condition of this Agreement, and in addition to any rights Company has in and to the Company Confidential Information, Customer agrees that Company may use and disclose any data collected (including without limitation, any Customer Confidential Information or Customer Content) in connection with the operation of the Services and Customer’s use thereof as follows: (i) Company may use such data for purposes of providing Customer with use of the Application Services and for Company’s internal business purposes, including without limitation, to further improve the Application Services; (ii) Company may disclose such data to its third party service providers that assist it in making the Application Services available as is reasonably necessary for such assistance; (iii) Company may disclose such data as may be required by law or legal process; (iv) Company may use and disclose such data for any lawful business purpose where it is aggregated with data unrelated to Customer and is not specifically identified as relating to Customer; and (v) Company may use and disclose any data entered by End Users for any lawful business purpose whatsoever. All analyses or other uses of the aggregated and anonymous data made by Company shall be Company’s intellectual property and its Confidential Information. Customer acknowledges that the Application Services may use cookies and other technologies for purposes of measuring usage by end users.
6.3 Customer Use of End User Personal Data. Customer acknowledges that by entering into this Agreement, and by providing services to certain customers of Company, Company may disclose certain Personal Data regarding its End Users in connection with the services that Customer may provide to Company’s End Users. For purposes of this Agreement “Personal Data” means any information relating to an identified or identifiable natural person, including name, identification number, online identifier, or to one or more factors relating to the physical, physiological, genetic, mental, economic, cultural, or social identity of such person. In the event that we disclose Personal Data regarding our End Users to you in connection with the Services, Customer shall use and/or implement appropriate technical and organizational measures to protect the End User’s Personal Data from theft, unauthorized disclosure, destruction, or damage. Customer agrees not to disclose any Personal Data regarding an End User to any third party without Company’s prior written consent. Customer further agrees to use End User Personal Data only in accordance with Company’s written instructions and only for the purpose of providing services to the End User. Customer agrees that all employees, agents, and contractors of Customer that have access to End User Personal Data will be bound to Customer by an appropriate obligation of confidentiality with respect to the use and disclosure of End User Personal Data; provided that Customer may not engage a contractor or subcontractor to provide the Customer’s services without Company’s prior written consent if such contractor or subcontractor will have access to End User Personal Data. Customer will inform Company promptly in the event that Customer becomes aware of any unauthorized access to or processing of End User personal Data or any damage to or destruction of End User Personal Data. Upon Company’s request, Customer will cooperate in any manner in connection with Company’s compliance with any applicable law or regulation. Customer will destroy all End User Personal Data upon Company’s request.
7.1 Customer Representations and Warranties. Customer represents and warrants that: (a) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to Customer; (b) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of Customer and will be enforceable against Customer in accordance with its terms; (c) Customer will at all times conduct itself in a competent and professional manner in accordance with industry practice; (d) it owns or otherwise has all necessary permissions and rights to provide the Customer Content and to grant Company access to and use of the Customer Content in accordance with the terms of this Agreement; (e) Customer will not use the Application Services or its performance under this Agreement in violation of any laws, rules or regulations of the United States including without limitation, those related to the distribution or sale of alcohol; (f) the Customer Content will not violate the right of any third party (including any intellectual property right), or violate any law, regulation or other judicial or administrative action; and (g) Customer has obtained all necessary and required consents to disclose any Personal Data to Company and to permit Company to use, process, and disclose such Personal Data. To the extent applicable, Customer acknowledges and agrees that all alcohol is being sold and provided to the End User solely by the Customer, and that Venue shall be solely responsible for obtaining any and all required liquor licenses (collectively, “Permits“). Customer represents and warrants that it has all Permits, and that the Permits are valid and in good standing.
7.2 Company Representations and Warranties. Company represents and warrants that: (a) that the execution and performance of this Agreement will not conflict with or violate any provision of any law having applicability to Company; (b) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of Company and will be enforceable against Company in accordance with its terms; (c) Company will comply with all laws, rules or regulations of the United States that are applicable to the Application Services and Company's performance under this Agreement; and (d) the Application Services (excluding any Customer Content) will not violate the intellectual property right of any third party. Customer's exclusive remedies for a breach of any warranty in this Section 7.2 will be a right to terminate the Agreement in accordance with Section 10.2 and, to the extent applicable, Customer's rights of indemnification pursuant to Section 9.
8.1 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.2, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, REGARDING THE APPLICATION SERVICES, PRODUCT AND ALL OTHER MATERIALS AND SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT, COMPANY DOES NOT WARRANT THAT THE APPLICATION SERVICES, PRODUCT OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT WILL MEET CUSTOMER'S REQUIREMENTS, THAT THE OPERATION OF THE SERVICES, APPLICATION SERVICES OR PRODUCT WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. THE APPLICATION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.2 Exclusions of Remedies. IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
8.3 LIMITATION ON LIABILITY. EXCEPT WITH RESPECT TO COMPANY’S INDEMNIFICATION OBLIGATIONS, MISAPPROPRIATION OF A PARTY'S INTELLECTUAL PROPERTY AND/OR A BREACH OF CONFIDENTIALITY OBLIGATIONS, THE CUMULATIVE LIABILITY OF COMPANY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID OR DUE TO COMPANY BY CUSTOMER IN THE TWELVE (12) MONTHS PERIOD PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE PROVISIONS OF THIS 8.3 ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.1 Company Indemnification Obligations. Subject to the terms and conditions set forth in this Section 9, Company agrees to indemnify, defend and hold Customer, its directors, officers, employees and representatives (each a “Customer Indemnified Party”), harmless from and against any and all losses, damages and liability awarded by a court or agreed to in settlement and all related costs and expenses (including reasonable attorneys' fees) (collectively “Losses”) arising out of any third party claim alleging that the Services or Application Documentation infringe any U.S. intellectual property right of a third party, including any patent, copyright, trademark, or trade secret; provided that the Customer Indemnified Party promptly notifies Company in writing of the claim, cooperates with Company, and allows Company sole authority to control the defense and settlement of such claim. This Section 9.1 will not apply to the extent that the alleged infringement arises from (i) a modification of the Services or the Application Documentation by Customer or any entity acting on Customer's behalf, (ii) a combination, operation or use of the Services or Application Documentation with other software, hardware or technology not provided by Company, (iii) the Customer Content (any of the foregoing circumstances under clauses (i), (ii) or (iii) will be collectively referred to as a “Customer Indemnity Responsibility”).
9.2 Customer's Indemnity Obligations. Customer agrees to indemnify, hold harmless and, at Company's option, defend Company, its directors, officers, employees and representatives (each a “Company Indemnified Party”), from and against any and all Losses arising from any third party claim: (a) related to or in connection with the circumstances or an occurrence on or around premises owned or operated by Customer, or otherwise related to, or in connection with, Customer’s use of the Services, including without limitation, claims related to personal property damage, theft, personal injury or death; (b) alleging Customer's breach of Section 7.1, (c) Customer's failure to comply with any applicable law, regulation or rule, and (d) a Customer Indemnity Responsibility; provided that the Company Indemnified Party promptly notifies Customer in writing of the claim, cooperates with Customer, and allows Customer sole authority to control the defense and settlement of such claim. Company reserves the right to participate in the defense and/or settlement of any such claim with counsel of its own choosing, at its own cost and expense.
9.3 Settlement. The indemnifying party may enter into a settlement of such third party claim only if such settlement: (a) involves only the payment of money damages by the indemnifying party and (b) includes a complete release of the Indemnified Parties.
9.4 Infringement. If any Service is, or in Company's opinion, is likely to become the subject of any infringement-related claim, then Company may, at its expense and in its discretion: (a) procure for Customer a license to continue use of any such infringing material or (b) modify or replace any such infringing material to make the Service non-infringing. If Company determines that neither of these alternatives is commercially practicable, then Company may terminate the Agreement or its obligation to provide the applicable Service, and Customer shall be provided a pro-rata refund of fees paid attributable to the remaining balance of the Term prior to such termination. EXCLUSIVE OF COMPANY'S INDEMNIFICATION OBLIGATIONS, THE PROVISIONS OF THIS SECTION 9.4 STATE COMPANY'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHT.
10.1 Term. The term of this Agreement will commence on the Effective Date and will continue for as long as any Order Form is in effect, unless terminated in accordance with this Section 10 or as otherwise expressly provided in this Agreement (the “Term”).
10.2 Termination for Breach. Either Party may, at its option, terminate the applicable Order Form and/or this Agreement in the event of a material breach by the other Party. The breaching Party will have a right to cure such breach or breaches within fifteen (15) days of receipt of written notice, and this Agreement will terminate in the event that such cure is not made within such fifteen (15) day period. If Company is the terminating party, Customer shall pay, within thirty (30) days of the effective date of the termination, all remaining Monthly Software Fees (as set forth on any Order Form) applicable to the Term during which Customer was to be subject to this Agreement (had it not been so terminated), and any and all Transaction Fees accrued as the effective date of such termination. If Customer is the terminating party, Customer shall pay, within thirty (30) days of the effective date of the termination, Monthly Software Fees on a pro-rated basis through the effective date of the termination, and any and all Transaction Fees accrued as the effective date of such termination.
10.3 Suspension of Access. At any time during the Term, Company may, immediately upon prior written notice to Customer, limit or suspend access to the Services in the event that: (a) Company has reasonably determined that Customer has breached the terms of this Agreement or is using the Services in such a manner that could reasonably be expected to reflect unfavorably on the reputation of Company; (b) Company has reasonably determined that Customer is not complying with any applicable law or the terms of this Agreement; or (c) any amount due under this Agreement is not received by Company when due. In such a case, no portion of Customer’s subscription payment will be refunded. Company also reserves the right to suspend or terminate Customer’s access to the Services at any time for any reason, and should the Company terminate Customer’ s access for any reason other than as set forth in subparagraphs (a)-(c) above, Company will refund to Customer any unused portion of Customer’s subscription payment, which will be Customer’s sole and exclusive remedy upon such suspension or termination.
10.4 Termination for Convenience. If Customer wishes to terminate this Agreement for convenience prior to the end of the Term, Customer may do so, provided Customer provides thirty (30) days prior written notice to Company, and Customer pays, within such thirty (30) day period, all remaining Monthly Software Fees applicable to the Term during which such Customer was to be subject to this Agreement (had it not been so terminated), and all Transaction Fees that have accrued as of the effective date of said termination. If Company wishes to terminate this Agreement for convenience prior to the end of the Term, Company may do so, provided Company provides thirty (30) days prior written notice to Customer. Within such thirty (30) day period, Monthly Software Fees applicable to the Term shall be pro-rated and Customer shall only be responsible for such Monthly Software Fees through the effective date of the termination, and any and all Transaction Fees accrued as of the effective date of said termination.
10.5 Effect of Termination. Upon any termination of this Agreement: (a) Customer will immediately discontinue all use of the Services, the Application Documentation, and any Company Confidential Information; (b) Company and Customer will each delete any Confidential Information of the other party from its computer storage or any other media including, but not limited to, online and off-line libraries; (c) at the party's option, return or destroy, all copies of any Confidential Information then in the party's possession (including any Application Documentation).
12.1 Entire Agreement. This Agreement, together with the Order Forms, sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and supersedes all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof.
12.2 Independent Contractors. In making and performing this Agreement, Customer and Company act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between the them.
12.3 Notices. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision.
12.4 Amendments; Modifications. These terms and conditions are subject to occasional revision, and Company makes any substantial changes, Company shall notify Customer by sending Customer an e-mail to the last e-mail address you provided to us (if any). Customer is responsible for providing Company with its most current e-mail address. In the event that the last e-mail address that Customer provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to Customer (if applicable). Continued use of the Services following notice of such changes shall indicate Customer’s acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes. Notwithstanding the foregoing to the contrary, an Order Form may only be amended if executed by Company and Customer.
12.5 Assignment; Delegation. This Agreement cannot be assigned by either Party without the prior written consent of the other Party; provided, however, that Customer and Company may each assign this Agreement to any person or entity that acquires by sale, merger or otherwise all or substantially all of its assets, stock or business or to an affiliate. Any attempted assignment or delegation in violation of this Section 12.5 will be null, void and of no effect.
12.6 Order of Precedence. The terms and conditions of this Agreement shall control over any conflicting preprinted terms and conditions contained in in Customer’s purchase order or similar documents.
12.7 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
12.8 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
12.9 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time. Any delay or forbearance by either Party in exercising any right hereunder will not be deemed a waiver of that right.
12.10 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party's reasonable control, including, by way of example, Internet access outside of Company's reasonable control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay.
12.11 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflicts of law principles. For purposes of all claims brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. Each Party expressly waives any right to a trial by jury in any action or proceeding brought by or against either Party in connection with this Agreement.