Terms and Conditions
This agreement between nDimensional, Inc., a Delaware corporation (“Company”), and Customer (as defined below) consists of these Terms and Conditions, the terms and conditions of the Tier (as defined below) and Payment Plan (as defined below) and any other terms and conditions disclosed to Customer as a condition to any option selected and/or provided by Customer during Registration (as defined below), which are hereby incorporated by reference (collectively, this “Agreement”).
BY CLICKING THE BOX INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE COMPANY PLATFORM (AS DEFINED BELOW).
This Agreement is effective as of the date Customer completes the registration process (“Registration”) located at https://app.nd.com (the “Site”) and clicks the box indicating acceptance of this Agreement (the “Effective Date”) and governs Customer’s use of Company’s software-as-a-service platform that facilitates the collection and analysis of data (the “Company Platform”). The Company Platform includes any updates that are made generally available by Company to customers at no additional charge during the Term, but expressly excludes any upgrades or additional services that are made available by Company for an additional charge. As part of the Registration, Customer may, among other things, select the following from the options presented by Company: (a) a subscription plan tier (each, a “Tier”), (b) the duration of the initial term of this Agreement (the “Initial Term”) and (c) a payment plan (as may be adjusted from time to time as set forth herein, the “Payment Plan”). If these selections are not made, then Customer acknowledges that they are being provided to the End Customer Tier of the Company Platform whose Initial Term and Payment Plan are being provided and controlled by a third party customer of nDimensional.
1 ACCESS TO PLATFORM
1.1 Company Platform. Company will make the Company Platform available to Customer via the Internet pursuant to this Agreement during the Term. Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, nonexclusive, nontransferable (except as set forth in Section 9), non-sublicensable right, during the Term, to access and use the Company Platform solely for Customer’s own purposes. The scope of features and functionality of the Company Platform available to each Customer will be determined by the Tier and other options selected by such Customer during the Registration process.
1.2 Limitations. The following limitations and restrictions shall apply to the Company Platform: Customer shall not provide access to the Company Platform to any person who is not an employee of Customer, unless otherwise agreed to in writing by Company (the “Authorized Users”). If Customer is an individual, such individual is the sole “Authorized User” of the Company Platform under this Agreement. Except as expressly permitted hereunder, Customer shall not, and shall not permit or authorize any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Company Platform; (ii) modify, translate or create derivative works based on the Company Platform; (iii) copy (except for archival purposes), rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Company Platform; (iv) use the Company Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Company Platform or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; or (vi) remove or obscure any proprietary notices or labels of Company or its suppliers on the Company Platform.
1.3 Modifications. Company reserves the right to modify the Company Platform at any time, including, without limitation, by adding, discontinuing or altering certain functions and features of the Company Platform. Company will provide at least fifteen (15) days’ notice to Customer of any material modifications (notice via electronic mail to suffice). Company will not be liable to Customer for any such modifications to the Company Platform, regardless of the reason for such modifications. Customer’s sole remedy with respect to any dissatisfaction with any material modification of the Company Platform will be to terminate this Agreement by providing written notice to Company within fifteen (15) days of such material modification. If Customer terminates this Agreement due to a material modification to the Company Platform by Company, Customer will receive a refund of any pre-paid fees (if any) for the remaining part of the then-current term.
1.4 Beta Access. Company may make available to Customer the Company Platform (or certain of its functions or features) prior to its release for commercial use (the “Beta Platform”). In such case, subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, revocable, nonexclusive, nontransferable (except as set forth in Section 9), non-sublicensable right to access and use the Beta Platform solely for purposes of testing and evaluation. The rights granted by Company to Customer in this Section 1.4 will commence on the date on which Company makes the Beta Platform available to Customer and will continue for so long as Company elects to make such Beta Platform available to Customer (the “Beta Period”). Company will be entitled to revoke or terminate the rights granted in this Section 1.4 at any time for any reason or no reason without notice thereof. Upon any revocation or termination of such rights by Company, Customer shall immediately cease using the Beta Platform. If Customer is using the Beta Platform when Company launches the Company Platform for commercial use, Customer shall automatically be enrolled in the free Tier (the “Free Tier”) and notified of any options and settings related to such Tier. During the Beta Period, Customer will not be able to adjust Tiers or enroll in any Payment Plan.
2 OWNERSHIP; RESERVATION OF RIGHTS
2.1 Customer Data. Customer or its licensors own the data input or uploaded by Customer into the Company Platform (the “Customer Data”). Customer Data does not include Customer Algorithms (as defined below). Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (directly and indirectly through multiple tiers), nontransferable (except as set forth in Section 9): (a) right and license, during the Term, to copy, distribute, display, modify, create derivative works of and otherwise use the Customer Data to perform Company’s obligations under this Agreement; and (b) perpetual, irrevocable right and license during and after the Term to (i) collect, analyze and use data and other information relating to the Company Platform and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) to improve and enhance the Company Platform and for other development, diagnostic and corrective purposes in connection with the Company Platform and other Company offerings and (ii) use and disclose such data and other information solely in aggregate or other de-identified form in connection with its business. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Data other than the licenses expressly granted to Company under this Agreement.
2.2 Customer Algorithms. Customer or its licensors own all formulas, algorithms and other equations entered by Customer into the Company Platform in connection with organizing and analyzing the Customer Data therein (the “Customer Algorithms”). Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (directly and indirectly through multiple tiers), nontransferable (except as set forth in Section 9) right and license, during the Term, to copy, distribute, display, modify, create derivative works of and otherwise use the Customer Algorithms solely to perform Company’s obligations under this Agreement. As between the parties, Customer reserves any and all right, title and interest in and to the Customer Algorithms other than the license expressly granted to Company under this Agreement.
2.3 Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the parties, Company retains all right, title and interest in and to the Company Platform, all copies or parts thereof (by whomever produced), all improvements, updates, modifications or enhancements thereto, and all intellectual property rights therein. Company grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Company Platform.
2.4 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Company Platform. Company shall have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby assigns and transfers, and to the extent any such assignment cannot be made at present, will assign and transfer to Company, all right, title and interest in and to the Feedback, including all related copyright and other intellectual property rights.
2.5 Customer Responsibilities. Only Authorized Users who have been assigned a unique login to the Company Platform shall be entitled to access and use the Company Platform under this Agreement. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Company Platform and notify Company promptly of any such unauthorized access or use; (b) be solely responsible for the accuracy, quality, integrity and legality of the Customer Data and (c) use the Company Platform only in accordance with the documentation, this Agreement and any applicable laws and regulations. Customer will be solely liable for any uses of accounts linked to Customer’s or its Authorized Users’ login credentials.
3 FEES; PAYMENT TERMS
3.1 Fees; Payment Terms. Customer will pay Company in accordance with the Payment Plan. All payments will be made in U.S. dollars and are non-refundable (except as expressly set forth in Sections 1.3 and 8.1). Unless otherwise mutually agreed by Customer and Company in writing, payment will be made by credit card through Company’s third-party payment processor, and will be charged automatically on the first day of the Initial Term and any Renewal Term (each, as defined below). Notwithstanding the foregoing, if the first day of any Renewal Term is not a business day (e.g., falls on a holiday or weekend, or on a date that does not exist in a particular month (e.g., the 31st)), Company will charge the applicable credit card on the preceding business day (e.g., if the Effective Date is March 31st, the next charge will be on April 30th or, if April 30th is a Saturday, on April 29th). In addition, the date on which payment is due may be adjusted as a result of changes in Tiers and/or the Payment Plan, as set forth in Section 3.3 below. Unless Customer is subscribed to the Free Tier, Customer is responsible for providing current, valid credit card information during Registration and at all times during the Term. Customer may update the credit card information provided during Registration at any time by logging onto the Site and updating the applicable information.
3.2 Late Payment. If payment of any fees is not made when due and payable (e.g., if Customer fails to edit its payment method on the Site after the payment method on file expires, has insufficient funds or otherwise fails to settle payment hereunder), a late fee shall accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Company within five (5) days from the time such payment is due, Company may suspend Customer’s access to the Company Platform until such payment is made.
3.3 Changes in Tier; Payment Terms. Customer may adjust its Tier and related Payment Plan via the Site at any time during the Term. Any upgrades will be billed and effective immediately, as of the date such change is made on the Site, and the current term will terminate and a new Renewal Term (as defined below) will begin as of such date, with the timing of payments adjusted accordingly. Any downgrades will be billed and effective as of the first day of the next Renewal Term. Company reserves the right to adjust pricing at any time upon at least fifteen (15) days’ notice to Customer (notice via electronic mail to suffice). Any such adjustments will be effective as of the next Renewal Term, subject to Customer’s right to terminate in accordance with Section 4.2 below.
3.4 Net of Taxes. All amounts payable by Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes (collectively “Taxes“). Customer shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Customer will not withhold any Taxes from any amounts due Company.
4 TERM, TERMINATION
4.1 Term. Unless this Agreement is terminated earlier in accordance with its terms, this Agreement shall commence on the Effective Date, continue for the Initial Term and automatically renew for additional terms of equal duration (each, a “Renewal Term” and, together with the Initial Term, the “Term”).
4.2 Termination. Customer may terminate this Agreement (a) by electing to terminate on the Site, for any or no reason, or (b) in accordance with Section 1.3. Company may terminate this Agreement (i) by providing at least fifteen (15) days’ notice to Customer via electronic mail, for any or no reason, (ii) in accordance with Section 8.1 or (iii) immediately upon notice to Customer via electronic mail if Customer is in breach of this Agreement.
4.3 Effect of Termination. The effective date of termination will be the last day of the then-current term during which such termination occurs, and Customer may continue to access and use the Company Platform during such period between notice or election of termination and the effective date of termination; provided, that, if this Agreement is terminated by Customer pursuant to Section 1.3 or by Company pursuant to Section 4.2(iii) or Section 8.1, the effective date of termination will be the date on which Customer or Company terminates this Agreement. Customer will pay in full for the use of the Company Platform up to and including the last day on which the Company Platform is provided to Customer hereunder. Company will make all Customer Data and Customer Algorithms available to Customer for electronic retrieval for a period of thirty (30) days after the effective date of termination of this Agreement. Thereafter, Company may, but is not obligated to, in its sole discretion and without delivery of any notice to Customer, delete any Customer Data and/or Customer Algorithms stored or otherwise archived on the Company Platform or on Company’s network. Upon the effective date of the termination of this Agreement, all rights granted by Company hereunder and all obligations of Company to provide the Company Platform shall immediately terminate and Customer shall cease use of the Company Platform. Upon termination of this Agreement, each party will return or destroy all copies or other embodiments of the other party’s Confidential Information (subject to Company’s rights under Section 2.1(b)).
4.4 Survival. Upon any termination of this Agreement, all obligations in this Agreement shall terminate, provided that clause (b) of the third sentence of Section 2.1 and Sections 2.4, 3, 4, 5, 6.3, 7, 8 and 9 shall survive.
As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (the “Receiving Party”); provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services shall be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Company’s Confidential Information includes, without limitation, the Company Platform and the terms of this Agreement. Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each party agrees that it shall use the Confidential Information of the other party solely to perform its obligations or exercise its rights under this Agreement. Neither party will disclose, or permit to be disclosed, the other party’s Confidential Information directly or indirectly, to any third party without the other party’s prior written consent, except as otherwise permitted hereunder. Each party will use reasonable measures to protect the confidentiality and value of the other party’s Confidential Information. Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each party shall provide the other with prior written notification thereof, shall provide such party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party shall promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
6 REPRESENTATIONS, WARRANTIES AND DISCLAIMER
6.1 Representations and Warranties. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.
6.2 Customer Representations and Warranties. Customer represents and warrants that: (a) it has the legal authority and all rights necessary to provide the Customer Data and Customer Algorithms to Company hereunder; and (b) its provision of the Customer Data and/or Customer Algorithms to Company hereunder does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations Customer has to any third party or any other rights of any third party or any applicable law, rule or regulation.
6.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE COMPANY PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES. COMPANY DOES NOT WARRANT THAT THE COMPANY PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE COMPANY PLATFORM WILL BE UNINTERRUPTED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
7 LIMITATIONS OF LIABILITY
7.1 Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM COMPANY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 BELOW, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM COMPANY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.1 BELOW, UNDER NO CIRCUMSTANCES WILL COMPANY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 Beta Platform; Free Tier. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY DAMAGES OF ANY KIND IN CONNECTION WITH ANY CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT DURING THE BETA PERIOD OR WHILE CUSTOMER IS ENROLLED IN THE FREE TIER. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SECTIONS 6 AND 8.1 DO NOT APPLY TO THE BETA PLATFORM OR ACCESS TO THE FREE TIER. THE BETA PLATFORM LICENSED HEREUNDER IS EXPERIMENTAL AND IS EXPECTED TO CONTAIN DEFECTS. A PRIMARY PURPOSE OF ALLOWING CUSTOMER TO ACCESS THE BETA PLATFORM IS TO OBTAIN FEEDBACK ON ITS PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. CUSTOMER IS ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE BETA PLATFORM, INCLUDING BUT NOT LIMITED TO THE CORRECT FUNCTIONING OR PERFORMANCE OF THE BETA PLATFORM. THIS AGREEMENT SHALL NOT CREATE ANY OBLIGATION FOR COMPANY TO CONTINUE TO DEVELOP, PRODUCTIZE, SUPPORT, REPAIR, OFFER FOR SALE OR IN ANY OTHER WAY CONTINUE TO PROVIDE OR DEVELOP FOR CUSTOMER OR ANY OTHER PARTY THE BETA PLATFORM.
7.4 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8.1 Indemnification by Company. Company shall defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Company Platform infringes any copyright or misappropriates a trade secret of any third party. Further, Company shall indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Company’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Company Platform by any party other than Company without Company’s express consent; (b) the combination, operation, or use of the Company Platform with other product(s), data or services where the Company Platform would not by itself be infringing; or (c) unauthorized or improper use of the Company Platform. If the use of the Company Platform by Customer has become, or in Company’s opinion is likely to become, the subject of any claim of infringement, Company may at its option and expense (i) procure for Customer the right to continue using the Company Platform as set forth hereunder, (ii) replace or modify the Company Platform to make it non-infringing so long as the Company Platform has at least equivalent functionality, (iii) substitute an equivalent for the Company Platform or (iv) if options (i)-(iii) are not reasonably practicable, terminate this Agreement (subject to a refund of pre-paid fees (if any) for the remaining part of the then-current term). This Section 8.1 states Company’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by Customer. Customer shall defend Company and the officers, directors, agents, and employees of Company (“Company Indemnified Parties”) against any Claims arising from (a) any use or disclosure by Customer of the Company Platform in violation of this Agreement or (b) the exercise of any rights granted to Company by Customer in or to the Customer Data and/or Customer Algorithms in accordance with this Agreement. Further, Customer shall indemnify the Company Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
8.3 Indemnification Procedure. If a Customer Indemnified Party or a Company Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other party (the “Indemnifying Party”) prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
Customer may not remove or export from the United States or allow the export or re-export of the Company Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations, and the economic sanctions regulations administered by the United States Department of the Treasury’s Office of Foreign Assets Control, or any other United States or foreign agency or authority. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under this Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Customer will provide to Company prior written notice of any such permitted assignment, and will promptly update the contact information, payment information and any other information on the Site that will be affected by such assignment. Any assignment or attempted assignment by either party otherwise than in accordance with this Section shall be null and void. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and sent to the recipient’s address provided during Registration and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party’s financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party shall give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Customer acknowledges that any unauthorized use of the Company Platform may cause irreparable harm and injury to Company for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, Customer agrees that Company may be entitled to injunctive relief in the event Customer uses the Company Platform in any way not expressly permitted by this Agreement.