Wondersign Terms of Service
These Terms of Service (the “Agreement” or the “Wondersign TOS”), effective as of the first date that you, the “Customer” engage the services (the “Effective Date”), is by and between Apexis Inc., a Florida corporation, d/b/a Wondersign (“Provider”) and you (“Customer”) (Provider together with Customer shall be referred to herein collectively as the “Parties” and each, individually, a “Party”).
WHEREAS, Provider provides cloud-based digital services and access to its software-as-a-service offerings to its customers;
WHEREAS, Customer desires to engage such services and access certain software-as-a-service offerings described herein at Customer’s locations (the “Locations”), and Provider desires to provide Customer access to such offerings, subject to the terms and conditions set forth in this Agreement and the agreement executed between the Parties (the “Wondersign Agreement”).
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Definitions.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise/ownership of more than 50% of the voting securities of a Person.
“Authorized User” means (i) Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement, and (ii) Customer’s store patrons, employees, consultants, contractors, agents and any other Person authorized by Customer to access and use Services.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, uploaded or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. Customer Data may also include any information, data and other content licensed by Provider from a third party or otherwise provided to Provider on behalf of Customer. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
“Customer Devices” means those Customer devices that are connected playout devices (other than the Equipment) used to access and use the Services, for example, Customer’s televisions, digital displays, and amplifier/speaker system located in the Location(s).
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems, and networks, whether operated directly by Customer or through the use of third-party services.
“Data API Service” means Provider’s service through which Customers can procure the raw data of product catalogs from vendors.
“Documentation” means any manuals, instructions, or other documents or materials that Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials.
“Equipment” means the third-party hardware and systems purchased from Provider or directly from a third party for use with the Services.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Kiosk Services” means those digital kiosk services provided by Provider.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means any information that, individually or in combination, does or can identify a specific individual or by or from which a specific individual may be identified, contacted, or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, “Personal Data” as defined in the EU Data Protection Directive (Directive 95/46/EEC), “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all rules and regulations issued under any of the foregoing.
“Process” means to take any action or perform any operation or set of operations that the Services or Provider and the Provider Systems are capable of taking or performing on any data, information, or other content. “Processing” and “Processed” have correlative meanings.
“Provider Disabling Device” means any software, hardware, or other technology, device, or means used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Materials” means the Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
“Provider Systems” means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems, and networks, whether operated directly by Provider or through the use of third-party services.
“Representatives” means, with respect to a Party, that Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means information, data and other content that is derived by or through the Services from processing Customer Data and is sufficiently different from such Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
“SaaS Services” means the software as a service offering(s), including without limitation, the Kiosk Services and the Data API Services.
“Services” means the SaaS Services, along with any Development Work, Installation Services, or Support Services, in each case agreed to by the Parties during the Term.
“Specifications” means the specifications for the Services.
“Subcontractor” means any third party Person engaged to perform some or all of the Services.
“Third-Party Materials” means materials and information, in any form or medium, including but not limited to any Equipment, Customer Devices, any data delivered through the Data API Service, and any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.
Any capitalized term not listed herein shall have the meaning set forth in the applicable provision of this Agreement.
2. Services and Equipment.
2.1 Access and Use. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.8) right to access and use the Services during the Term at the Locations, solely for use by Authorized Users in accordance with the terms and conditions herein, whether through the Equipment or Customer Devices. Provider shall provide to Customer the Access Credentials within a reasonable time following installation of the Equipment and Provider’s commencement of the Services.
2.2 Documentation License. Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 13.8) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.
2.3 Service and System Control.
Except as otherwise expressly provided in this Agreement, as between the Parties:
(a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Services and Provider Materials and Provider reserves the right, in its sole discretion, to make any changes to the Services or Provider Materials that it deems necessary or useful to: (i) maintain or enhance (A) the quality or delivery of Provider’s services to its customers, (B) the competitive strength of or market for Provider’s services, or (C) the Services’ cost efficiency or performance; or (ii) to comply with applicable Law. Notwithstanding the foregoing, any changes described in (i) shall not impact Customer’s ability to use visual assets such as videos, images, software code, or similar assets, that Provider has developed for distribution through the Services. Customer may, at any time during the Term, request in writing changes to the Services and the Parties shall evaluate and, if mutually agreed, implement all such requested changes and no requested changes will be effective unless and until memorialized in a writing signed by both Parties;
(b) Customer has and will retain ownership of and sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Data and Customer Systems, and sole responsibility for all access to and use of the Services or Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions, or actions based on such use;
(c) Customer shall be responsible for all content uploaded, displayed or modified by Authorized Users to the Services and Customer Systems, including with respect to compliance with applicable laws (including laws with respect to Personal Information) with respect to the use and access of such content by any Person;
(d) Provider’s provision of the Services is conditioned upon Customer’s provision of accurate and complete Customer Data and Customer shall timely perform its obligations reasonably necessary or as set forth in this Agreement for Provider to provide the Services;
(e) The Customer Devices shall be owned by Customer and Provider shall have no obligation to provide any warranty or repairs with respect to the Customer Devices. The Equipment shall be owned by Customer and either purchased by Customer from Provider or from a third party, and except as set forth herein, Provider shall have no obligation to provide any warranty or repairs with respect to the Equipment, provided that Provider has agreed to file and facilitate Customer’s manufacturer warranty claims or repairs with respect to Equipment that Customer purchases from Provider. If such assistance results in any additional fees, such fees shall be agreed in advance by Customer and Provider; and
(f) if at any time during the Term, Customer desires to obtain any content or other Third-Party Materials from a third-party provider, the Parties shall discuss such content and upon Provider’s request, Customer will enter into a separate written agreement with respect to such content.
(g) Provider shall not through the Services, the Provider Systems, or otherwise, and shall ensure that Provider Personnel do not, except as this Agreement expressly permits:
(i) copy, modify, or create derivative works or improvements of the Customer Systems or Customer Data;
(ii) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Customer Data to any Person;
(iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code in the Customer Data or the Customer Systems, in whole or in part;
(iv) input, upload, transmit, or otherwise provide to or through the Services, the Customer Systems, or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(v) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Customer Systems or the Customer Data, in whole or in part;
(vi) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Customer Systems or Customer Data, including any copy thereof;
(vii) access or use the Customer Systems or Customer Data for any purpose that is to Customer’s detriment or commercial disadvantage; or
(viii) otherwise access or use the Customer Data beyond the scope of any authorization granted herein.
2.4 Reservation of Rights. Except as expressly set forth herein, nothing in this Agreement grants any right, title, license, or interest in or to any Intellectual Property Rights in or relating to, the Services, Customer Data, Provider Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise, and all right, title, and interest in and to the Services, the Provider Materials, the Customer Data, and the Third-Party Materials are and will remain with Provider in the case of the Services and the Provider Materials, the respective rights holders in the case of Third-Party Materials, and with Customer in the case of Customer Data.
2.5 Service Management. Each Party shall, throughout the Term, maintain within its organization a service manager to serve as such Party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such Party under this Agreement. Each Party shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. If either Party’s service manager ceases to be employed by such Party or such Party otherwise wishes to replace its service manager, such Party shall promptly name a new service manager by written notice to the other Party.
2.6 Subcontractors. Provider may from time to time in its sole discretion engage Subcontractors to perform some or all of the Services. Notwithstanding the foregoing, Provider’s use of a Subcontractor hereunder shall not in any way be deemed to relieve Provider of any of its duties or obligations under this Agreement, and Provider shall be fully responsible for all acts and omissions of its Subcontractors with respect to the performance of the Services.
2.7 Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Provider Materials made available through the Services, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider reasonably believes that: (i) Customer or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. Notwithstanding the foregoing, in the event of any reasonable belief described in (b)(i) or (ii) in this Section 2.7, Provider shall immediately notify Customer and provide the basis for such belief in reasonable detail. Customer shall have five (5) days to resolve such issue before suspending, terminating or otherwise denying Customer’s access to or use of all or any part of the Services. This Section 2.7 does not limit any of Provider’s other rights or remedies, whether at law, in equity, or under this Agreement.
2.8 No Warranty. Provider makes no warranty with respect to the Equipment but such Equipment may have applicable manufacturer warranties.2.9 Shipment. Provider makes no warranty with respect to the Equipment but such Equipment may have applicable manufacturer warranties.
2.9 Shipment. If the Equipment is purchased from Provider, the terms with respect to shipment, delivery, acceptance and inspection shall be set forth in a written document. Unless otherwise expressly agreed by the Parties in writing, Provider shall select the method of shipment of and the carrier for the Equipment and title to the Equipment shall pass to Customer upon delivery.
2.10 Fees. Customer will pay all fees specified on an accepted quote and invoice. Except as otherwise specified, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
3. Use Restrictions; Service Usage and Data Storage.
3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Provider Materials except as expressly permitted by this Agreement, Provider’s Privacy and Security Policy, and, in the case of Third-Party Materials, the applicable third-party agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not and shall ensure the Authorized Users do not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or Provider Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person other than a franchisee of Customer;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part, or create links to the Services or Provider Materials or frame or mirror any content therein;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials at a Location;
(e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof;
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage;
(j) access or use the Services or Provider Materials in, or in association with, the design, construction, maintenance, or operation of any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or Provider Materials beyond the scope of the authorization granted under this Section 3.1.
3.2 Service Usage and Data Storage.
(a) The Wondersign Agreement sets forth Fees for designated levels of usage and data storage (each a “Service Allocation”), beginning with the Fees payable by Customer for the levels of usage and data storage in effect as of the Effective Date. Provider will use commercially reasonable efforts to notify Customer in writing if Customer has reached 80 percent of its then current Service Allocation and Customer may increase its Service Allocation and corresponding Fee obligations. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to Provider the applicable excess usage and storage Fees. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other Provider customers and agrees that Provider has no obligation to permit Customer to exceed its then-current Service Allocation.
(b) Upon Customer’s reasonable request, Provider shall provide Customer with information regarding Customer’s utilization and use of the Services.
(c) Provider may monitor and collect data with respect to traffic, conversion, performance, memory usage, connection speed, efficiency and other similar analytics data, including Customer Data, for the purposes of providing and improving the Services hereunder but, except for Resultant Data or as required by applicable Law, Provider shall not use or sell, transfer or otherwise provide any Customer Data to any third party.
4. Customer Obligations.
4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair, and in accordance with the Specifications, all Equipment ; (b) provide Provider Personnel with such access to the Locations and the Equipment and Customer Devices as is strictly necessary for Provider to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2 Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure”).
4.3 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited under this Agreement, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and (b) notify Provider of any such actual or threatened activity.
5. Service Levels.
5.1 Service Levels. Subject to the terms and conditions of this Agreement, Provider will make the Services available to Customer, excluding unavailability as a result of any of the Exceptions described in this Section 5.1 (the “Availability Requirement”). Unless a higher standard is agreed to by the Parties in writing, “Available” means the Services are available for access and use by Customer and its Authorized Users over the Internet. For purposes of the Availability Requirement, the following are “Exceptions” to the Availability Requirement: (a) any act or omission by Customer or any Authorized User, access to or use of the Services by Customer or any Authorized User, or using Customer’s or an Authorized User’s Access Credentials, that does not materially comply with this Agreement and the Specifications; (b) any Customer Failure; (c) interruptions or unavailability of Customer’s or its Authorized User’s Internet connectivity; (d) any Force Majeure Event; (e) any failure, interruption, outage, or other problem with any software, hardware, system, network, equipment, facility, or other matter not supplied by or through Provider pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 2.7.
5.2 Scheduled Downtime. Provider will use commercially reasonable efforts to: (a) schedule downtime for routine maintenance of the Services between the hours of 12 a.m. and 5 a.m., Eastern Time; and (b) give Customer at least five (5) days’ prior written notice of all scheduled outages of the Services (“Scheduled Downtime”).
5.3 Service Support. The Services include Provider’s standard customer support services such as technical support via telephone and email (“Support Services”) at the support levels Customer purchases. Customer may purchase enhanced support services separately at Provider’s then current rates.
6. Data Backup. Customer acknowledges that Provider is not responsible for the integrity of information or data that Provider does not provide or control, including without limitation, any of Customer Data, including completeness, accuracy, validity, authorization for use and integrity over time, and Provider shall not be responsible for any loss, damage or liability arising out of such data it does not control or provide, including any mistakes contained in such data or the use or transmission of such data. Customer is solely responsible for the integrity and quality of the Customer Data and for maintaining an appropriate backup thereof. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
7. Security.
7.1 Provider Systems and Security Obligations. Provider will employ security measures in accordance with applicable industry practice and Provider’s data privacy and security policy as amended from time to time (“Privacy and Security Policy”). Provider and Provider’s Privacy and Security Policy will at all times comply with applicable law and all applicable industry standards related to data privacy and security and will not deviate in any significant respect from the operative Privacy and Security Policy in effect as of the Effective Date.
7.2 Data Breach Procedures. Provider maintains a data breach plan in accordance with the criteria set forth in Provider’s Privacy and Security Policy, applicable law, and all applicable industry standards related to data privacy and security and shall implement the procedures required under such data breach plan on the occurrence of a “Data Breach” (defined as any actual or suspected unauthorized processing, loss, use, disclosure, alteration, destruction or other compromise or acquisition of or access to any personal, confidential, or proprietary information or actual or suspected intrusion by an unauthorized third party into Provider’s computers, networks, servers or IT resources or as defined in Provider’s data breach plan). At a minimum, Provider will immediately notify Customer when it becomes aware of a Data Breach. Such notice will summarize in reasonable detail the effect on Customer, if known, of the Data Breach and the corrective action taken or to be taken by Provider. Provider will promptly take all necessary and advisable corrective actions and shall cooperate fully with Vendor in all reasonable and lawful efforts to prevent, mitigate or rectify such Data Breach. The content of any filings, communications, notices, press releases or reports related to any Data Breach must be approved by Customer in writing prior to any publication or communication thereof. Without limiting Provider’s indemnification obligations, Provider will be responsible for all costs associated with provision of any notice required in connection with any Data Breach, and any related remediation and investigation thereof.
7.3 Prohibited Data. Customer acknowledges that the Services are not designed with security and access management for Processing the following categories of information: (a) data that is classified and or used on the U.S. Munitions list, including software and technical data; (b) articles, services, and related technical data designated as defense articles or defense services; (c) ITAR (International Traffic in Arms Regulations) related data, (d) that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (e) that facilitates illegal activity, (f) that depicts sexually explicit images, (g) that promotes unlawful violence, (h) that is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity, or (i) causes damage or injury to any Person or property, or any Person’s rights of privacy, publicity and/or intellectual property (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any Authorized User or other Person to, provide any Prohibited Data to, or Process any Prohibited Data through, the Services, the Provider Systems, or any Provider Personnel. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data. To the extent that any Customer Data is Personal Information, Customer is solely responsible for ensuring that any access and use of such data by Customer or any Authorized User is in compliance with all applicable Laws.
7.4 Customer Control and Responsibility. Except for unauthorized use by Provider, Provider Personnel or Provider Subcontractors, Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials and any liability with respect to the use (whether or not authorized) of the Access Credentials; and (e) all access to and use of the Services and Provider Materials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Provider may change any Access Credentials or the authorization method for access to the Services or Provider Materials if it determines in its sole discretion that there are circumstances justifying such change.
7.5 Access and Security. Customer shall employ reasonable physical, administrative, and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services. If Customer becomes aware of any unauthorized access to the Services or any Access Credentials are lost, stolen or otherwise compromised, Customer shall immediately change its password and notify Provider of such unauthorized access or compromise. Customer shall assume all risks of potential Losses or damages in connection with its failure to take such control and security measures as set forth in this Section 7, whether any loss, theft, disclosure or unauthorized or fraudulent use was accidental or inadvertent, was caused by Customer’s negligence, was caused by an Authorized User or was due to other causes.
8. Confidentiality.
8.1 Confidential Information. In connection with this Agreement each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”.
8.2 Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate: (a) was known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3 Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
(f) Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
8.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
9. Intellectual Property Rights.
9.1 Provider Materials. All right, title, and interest in and to the Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Provider Materials are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
9.2 Customer Data. Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3. Provider has no right, license, or authorization with respect to any of the Customer Data, except as expressly set forth in Section 9.3, in each case subject to Section 2.3(g). All other rights in and to the Customer Data are expressly reserved by Customer.
9.3 Consent to Use Customer Data and Confidential Information. Customer hereby grants all such rights and permissions in or relating to Customer Data and its Confidential Information as are necessary for Provider, its Subcontractors’, and the Provider Personnel to perform their respective obligations hereunder.
9.4 Confidential Information. For the avoidance of doubt, as between the Parties, each Party owns its respective Confidential Information.
10. Representations and Warranties.
10.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
(d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10.2 Additional Provider Representations, Warranties and Covenants. Provider represents and warrants that the Services do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law, and that all Services performed by Provider will be (i) performed in a professional and workmanlike manner in accordance with industry standards for similar services, and (ii) performed in compliance with all applicable Law. For any breach of the forgoing warranties, Provider shall at Customer’s request re-perform such deficient Services and Customer shall be entitled to a pro-rata refund of Fees paid to Provider directly attributable to the deficient Services for the period of time that the Services were deficient. or Customer may terminate this Agreement with no further obligations, Fees or liabilities at which time Provider will promptly issue Customer a pro rata refund of any prepaid, unused fees for any Services terminated. If at any time Customer becomes aware of an alleged or actual breach of the representations and warranties in this Section 10.2, Customer shall notify Provider in writing and Provider shall have thirty calendar days to cure such alleged or actual breach.
10.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, it will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
10.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10, ALL SERVICES, EQUIPMENT, AND PROVIDER MATERIALS ARE PROVIDED “AS IS.” PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
11. Indemnification.
11.1 Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer and its Affiliates, and each of their respective officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee resulting from any Action by a third party that Customer’s use of the Services, including without limitation the use of Provider Materials, documents, data, specifications, software, content, or technology provided by or on behalf of Provider or any Provider Personnel or Subcontractor in accordance with this Agreement (including the Specifications), infringes or misappropriates such third party’s Intellectual Property Rights, or violates a third party’s right of publicity or privacy. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
(a) Customer Data;
(b) access to or use of the Services or Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider that are not reasonably expected to be used by Customer in connection with the Services;
(c) modification of the Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval in accordance with Provider’s written specification;
(d) failure to implement on a commercially reasonable timely basis any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
(e) act, omission, or other matter described in Section 11.2(b), Section 11.2(c), or Section 11.2(d), whether or not the same results in any Action against or Losses by any Provider Indemnitee. Provider shall also indemnify, defend, and hold harmless the Customer Indemnitees from and against any and all Losses incurred by such Customer Indemnitee resulting from any Action by a third party that arises out of or results from, or are alleged to arise out of or result from:
(f) allegation of facts that, if true, would constitute Provider’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; and
(g) negligence or more culpable act or omission (including recklessness or willful misconduct) by Provider, Provider Personnel, Subcontractors, or any other third party on behalf of Provider, any Provider Personnel, or Subcontractor in connection with this Agreement.
11.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee resulting from any Action by a third party that arises out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) Third-Party Data, including any errors in data received through the Data API Service, regardless of whether the source of any such error relates directly to the third party or to its processing by the Provider’s software;
(d) allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(e) negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
11.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 11.1 or Section 11.2, as the case may be. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate.
11.4 Mitigation. If any of the Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) obtain the right for Customer to continue to use the Services and Provider Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Provider Materials, as applicable, under this Agreement; or
(c) by written notice to Customer, terminate this Agreement with respect to all or part of the Services and Provider Materials, and require Customer to immediately cease any use of the Services and Provider Materials or any specified part or feature thereof, and, subject to Customer’s compliance with its post-termination obligations as described in the Wondersign Agreement, Customer will be entitled to a pro rata refund for any undelivered Services.
12. Limitations of Liability.
12.1 EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, (d) COST OF REPLACEMENT GOODS OR SERVICES, (e) LOSS OF GOODWILL OR REPUTATION, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF A PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
12.3 Exceptions. The exclusions and limitations in Section 12.1 or 12.2 do not apply to liability for gross negligence or willful misconduct, a breach of data or system security, or with respect to a Party’s indemnification obligations set forth in Section 11.
13. Miscellaneous.
13.1 Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
13.2 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
13.3 Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, provided, however, that Provider may, without Customer’s consent, include Customer’s name and other indicia in its lists of Provider’s current or former customers of Provider in promotional and marketing materials.
13.4 Notices. Any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other Person that such Party may designate from time to time in accordance with this Section 13.4):
If to Provider:
Apexis, Inc. dba Wondersign
9450 SW Gemini Dr #91247
Beaverton, OR 97008
E-mail: legal@wondersign.com
Attention: General Counsel
If to Customer:
To the address pursuant to the quote noted in page one of this document.
Notices sent in accordance with this Section 13.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; and (c) on the third day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
13.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (c) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (d) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, attachments, and appendices mean the sections of, and attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
13.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
13.7 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and Statements of Work (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, the Wondersign Agreement, (b) second, this Agreement; and (c) third, any other documents incorporated herein by reference.
13.8 Assignment. Except pursuant to a merger or acquisition resulting in the acquisition of all or substantially all of the Provider’s assets or capital stock, neither Party shall assign or otherwise transfer any of its rights or obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of the other Party. No assignment, delegation, or transfer will relieve a Party of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 13.8 is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
13.9 Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party hereunder), when and to the extent such failure or delay is caused by or results from acts of God, natural disasters, strikes, acts of terrorism, war (declared and undeclared), riot or civil disturbances, events that are unforeseeable or unavoidable and beyond remedy if foreseen, or other events which are beyond the impacted Party’s (“Impacted Party”) reasonable control and render the full or partial performance of this Agreement impossible or impracticable (such events are “Force Majeure Events”). The Impacted Party shall give written notice to the other Party as soon as reasonably practicable after discovery of a Force Majeure Event, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) calendar days following written notice given by it under this Section 13.9, either Party may thereafter terminate this Agreement upon ten (10) calendar days’ written notice.
13.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
13.11 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and executed by Wondersign. Wondersign may amend or modify this Agreement without prior notice. You will be notified by email of any such changes. You are responsible for ensuring at all times that your contact information, including email address(es), on record with Wondersign is correct. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.12 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
13.13 Dispute Resolution. The Parties shall resolve any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), under the provisions of this Section and Section 13.14. The procedures herein shall be the exclusive mechanism for resolving any Dispute that may arise from time to time, are express conditions precedent to litigation of the Dispute. A Party shall send written notice to the other Party of any Dispute (“Dispute Notice”). The Parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves. In the event that such Dispute is not resolved on an informal basis within fifteen (15) business days after one Party delivers the Dispute Notice to the other Party, either Party may, by written notice to the other Party (“Escalation to Executive Notice”), refer such Dispute to the executives of each Party set forth in the applicable writing (“Executives”). If the Executives cannot resolve any Dispute during the time period ending fifteen (15) business days after the date of the Escalation to Executive Notice, the Parties will enter into non-binding mediation at a location acceptable to both Parties in San Diego County, California using a neutral mediator. In any mediation, the Parties shall equally share the cost of the mediator and otherwise bear their own respective costs. As a last resort only, any Dispute not resolved by mediation will be resolved by binding arbitration in San Diego County, California. Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association, with the following exceptions if in conflict: (a) one arbitrator shall be chosen by the American Arbitration Association; (b) each Party to the arbitration will pay its pro rata share of the expenses and fees of the arbitrator, together with other expenses of the arbitration incurred or approved by the arbitrator; and (c) arbitration may proceed in the absence of any Party if written notice (pursuant to the Arbitrator’s rules and regulations) of the proceeding has been given to such Party. The Parties agree to abide by all decisions and awards rendered in such proceedings. Such decisions and awards rendered by the arbitrator shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. All such controversies, claims or disputes shall be settled in this manner in lieu of any action at law or equity, provided however, that nothing in this subsection shall be construed as precluding bringing an action for injunctive relief or other equitable relief. The arbitrator shall not have the right to award punitive damages or speculative damages to either Party and shall not have the power to amend this Agreement. IF FOR ANY REASON THIS ARBITRATION CLAUSE BECOMES NOT APPLICABLE, THEN EACH PARTY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER MATTER INVOLVING THE PARTIES HERETO. EMPLOYEE MAY ONLY RESOLVE DISPUTES WITH COMPANY ON AN INDIVIDUAL BASIS AND EMPLOYEE AGREES NOT TO BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION (E.G., CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR CONSOLIDATION WITH OTHER ARBITRATIONS)
13.14 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any Action arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the Southern District of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such Action. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein shall be effective service of process for any Action brought in any such court.
13.15 Waiver of Jury Trial. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any Action arising out of or relating to this Agreement or the transactions contemplated hereby.
13.16 Attorneys’ Fees. In the event that any Action is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
13.17 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.