This Master Service Agreement (“Agreement”) is entered by
and between (i) TIPO Entertainment, Inc. d/b/a Evaluator
Sales, a Delaware corporation, or any Evaluator Sales Affiliate listed in Order
Form (“Evaluator Sales”), and (ii) the individual, company, or other legal
entity named as a customer in the Order Form (“Customer”), and (iii) the agency
named as the Customer’s agent (“Agency”) in the Order Form, if any. This
Agreement includes and incorporates each Order Form and each Statement of Work,
if applicable. An Order Form or Statement of Work may be amended or added at
any time if signed and dated by both parties.
BY (1) CLICKING OR CHECKING A BOX INDICATING ACCEPTANCE OR
(2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AND AGENCY
(IF APPLICABLE) AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE
INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF THE CUSTOMER OR
AGENCY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH
ENTITY TO THESE TERMS AND CONDITIONS. IF THE INDIVIDUAL ACCEPTING THIS
AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND
CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE
SERVICES.
1. DEFINITIONS
- “Affiliates” means
those entities under common control of an entity.
- “Authorized
User” means each of Customer’s employees, agents, and independent
contractors who are provided access protocols by Customer or Evaluator
Sales.
- “Beta
Services” means the service(s) Evaluator Sales makes available to
Customer for testing purposes, subject to the terms and conditions
described in Exhibit A. Exhibit A is hereby incorporated by
reference.
- “Confidential
Information” means any trade secret, proprietary, or other nonpublic information of a party or its Affiliates
(the “Disclosing Party”), whether disclosed orally or in written or
digital media, that is identified as “confidential” or with a similar
legend at the time of such disclosure, or that the receiving party or its
Affiliates (the “Receiving Party”) knows or should reasonably have known
is the confidential or proprietary information of the Disclosing Party,
including but not limited to Disclosing Party’s customer lists, strategic
plans, network designs, relationship with vendors, pricing
(including as reflected in any Order Form hereunder) and internal business
operations shall be deemed Confidential Information without any
marking or further designation. Information will not constitute the
Disclosing Party’s Confidential Information if it: (1) is already known by
the Receiving Party without obligation of confidentiality; (2) is
independently developed by the Receiving Party without access to or use of
the Disclosing Party’s Confidential Information; (3) is publicly known
without breach of this Agreement; or (4) is lawfully received from a third
party without obligation of confidentiality.
- “Customer
Content” means the data, information, text, graphics,
photographs, images, video, audio, SKUs, return policies or other content
owned or licensed by Customer and provided to Evaluator Sales under this
Agreement or uploaded by Customer directly, including, product
descriptions, suggested sale price, and any other information identified
as the Customer Content, including, as applicable, sample products.
Customer Content includes images or videos that are modified by Evaluator
Sales for use in Evaluator Sales Platform video players, such as through
the performance of video-editing services. Customer Content does not
include the Evaluator Sales Platform video players that incorporate
Customer Content or derivative works of these Evaluator Sales Platform
video players.
- “Customer
Trademark” means the Customer’s brands and all related
trademarks, service marks, trade dress, slogans, logos, taglines, labels
and other designs and product identifications.
- “Documentation” means
user guides, help information and other documentation regarding the Evaluator
Sales Platform and Beta Services provided by Evaluator Sales to Customer
in electronic or other form.
- “End
User” means those individuals/shoppers who access Customer
Content through the shoppable media links enabled by the Evaluator Sales
Platform.
- “Evaluator
Sales Platform” means Evaluator Sales’s suite of proprietary
web-based applications as described in a duly executed Order Form.
- “Order
Form” means an executed order form defining the scope of
Customer’s (or its Affiliate’s, if applicable) use of the Evaluator Sales
Platform, Beta Services, and other Services as applicable.
- “Performance
Data” means data collected from engagement with Evaluator Sales
Platform-enabled Customer Content, such as number of visits, time spent,
video completions, views of product information, clicks on the “add to
cart” button and retailer selection. Performance Data is the data that Evaluator
Sales collects while a user is using the Evaluator Sales Platform during
the time period starting when they load Evaluator Sales Platform to until
they “checkout” with an online retailer.
- “Personal
Information” means personal information, personal data, or other
similar terms as defined by applicable Rules, or information that
otherwise relates to an identified or identifiable natural person.
- “Rules” means
all consumer protection and data privacy and protection laws, rules, and
regulations, applicable to the collection, use, sharing, or other
processing of Personal Information under this Agreement, as may be updated
or amended from time to time, including without limitation the General
Data Protection Regulation (Regulation (EU) 2016/679) (the “GDPR”), the
California Consumer Protection Act (the “CCPA”), and the Children’s Online
Privacy Protection Act of 1998 (“COPPA”). More information about Evaluator
Sales’s compliance with Rules is set forth in its Privacy Policy located
at www.evaluatorsales.com/customerHome/tnc.
- “Sales
Insights” means the data analytics service leveraging retailer
and affiliate APIs relating to users who engage with Evaluator Sales
Platform-enabled Customer Content (“Sales Insights Data”), which is then
surfaced as data within the Evaluator Sales Platform. Sales Insights
Data is gathered after a consumer clicks to “checkout” of the Evaluator
Sales Platform and then buys the item in a reasonable amount of time from
an online retailer.
- “Services” means
the Evaluator Sales Platform, Sales Insights, and/or any other services
listed in any Order Form. Services shall be used by Customer in the
Territory/ies set forth in an executed Order
Form.
- “Territory” means
the United States unless otherwise set forth in an applicable Order
Form.
2. PROVISION OF SERVICES
- Access. Evaluator
Sales will provide Customer with access to the Services during the term
stated on the applicable Order Form. Evaluator Sales will provide to
Customer the necessary passwords, security protocols and policies, network
links or connections, and access protocols to allow Customer and its
Authorized Users to access the Services. Customer will be solely
responsible for any unauthorized access to, or use of, the Services, and
notify Evaluator Sales promptly of any such unauthorized use known to
Customer.
- License. Subject
to the terms and conditions of this Agreement, Evaluator Sales grants to
Customer a non-exclusive, non-sublicensable, non-transferable (except as
permitted under Section 12.5) license during the Term to: (1)
access and use Services; (2) internally use and reproduce the
Documentation; and (3) grant Authorized Users the right to access and use
the Services. It is contemplated that Customer may permit its Affiliates
and their respective employees, contractors and agents to access Services
as Authorized Users subject to the terms of this Agreement, so long as
Customer is responsible for ensuring that such Affiliates’ Authorized
Users comply with the terms hereof (altogether “License”).
Additionally, if any such Affiliate executes an Order Form that
incorporates and is subject to this Agreement, Customer agrees that by
executing such Order Form, such Affiliate is agreeing to, and will be
deemed to be joined as, a party hereunder and will be referred to as a
“Customer” hereunder mutatis mutandis as if such Affiliate had executed
this Agreement itself. Unless otherwise set forth in any Order
Form, the License is for use of the Services in the United States and its
territories and possessions.
- Evaluator
Sales Platform. Subject to the terms and conditions of this
Agreement, Evaluator Sales grants to Customer a non-exclusive,
non-sublicensable, non-transferable (except as permitted under Section
12.5) license to use and effect the display of the Evaluator Sales
Platform on Customer’s digital properties or the digital properties of
third-parties as identified by Customer (“Permitted Properties”).
Notwithstanding the foregoing, Customer may sublicense the foregoing
rights solely as necessary to effect the display of the Evaluator Sales
Platform on the Permitted Properties. Customer will not modify, remove,
obscure or disable any element of Evaluator Sales Platform.
- Sales
Insights. If the Services include the provision of Sales
Insights, Evaluator Sales grants to Customer a limited, non-sublicensable,
non-exclusive, non-transferable license to access the Sales Insights Data
in the form and in accordance with the Documentation or instructions
provided by Evaluator Sales.
- Restrictions. Except
as expressly permitted herein, Customer will not, and will not permit any
Authorized User or other party to, directly or indirectly: (1) allow any
third party who is not an Authorized User to access the Services, Beta
Services, or Documentation; (2) modify, adapt, alter or translate the
Services, Beta Services, or Documentation; (3) sublicense, lease, sell,
resell, rent, loan, distribute, transfer or otherwise allow the use of the
Services, Beta Services, or Documentation for the benefit of any unauthorized
third party (including, without limitation, for service bureau purposes);
(4) reverse engineer, decompile, disassemble, or otherwise derive or
determine or attempt to derive or determine the source code (or the
underlying ideas, algorithms, structure or organization) of the Services
or Beta Services, except as permitted by law; (5) interfere in any manner
with the operation of the Services or Beta Services or the hardware and
network used to operate the Services or Beta Services; (6) modify, copy or
make derivative works based on any part of the Services, Beta Services, or
Documentation; (7) access or use the Services or Beta Services to build a
similar or competitive product or service; (8) attempt to access the
Services or Beta Services through any unapproved interface; or (9)
otherwise use the Services or Beta Services in any manner inconsistent
with applicable law, the Documentation, or this Agreement.
- Additional
Services. Where the parties have agreed to Evaluator Sales’s
provision of additional or customized services (“Additional Services”),
such Additional Services will be described in a duly executed Order Form
or an attachment thereto which will include: (1) a description of the
Additional Services to be performed; (2) the schedule for performance of
such Additional Services; and (3) if separate from the fees for other
Services, the fees for the performance of the Additional Services. It is
understood that in connection with such Additional Services, Evaluator
Sales may include in its deliverables to Customer certain trend or other
industry information or data that is provided to Customer on a
non-exclusive basis and is the property of Evaluator Sales or its
licensors. In the event of a conflict between the terms and
conditions of any Order Form and the terms and conditions of this
Agreement, the terms and conditions of this Agreement will govern.
- Suspension
of Evaluator Sales Services. Customer acknowledges that Evaluator
Sales may suspend the delivery of the Evaluator Sales Platform or any
component thereof at any time, including without limitation as necessary
to protect Evaluator Sales’s systems from a denial-of-service attack,
computer virus or any other threat to the security of Evaluator Sales’s
systems or data. Evaluator Sales will provide Customer with
reasonable notice in advance of any planned Service suspensions. Evaluator
Sales may also suspend delivery of Sales Insights at any time if it is no
longer able for any reason to provide said service. In that case, Evaluator
Sales will provide Customer with as much notice as reasonably practical.
3. INTELLECTUAL PROPERTY
- Ownership. The
Services (including without limitation the Sales Insights Data), Beta
Services, Documentation, and all worldwide intellectual property rights in
each of the foregoing, are the exclusive property of Evaluator Sales
and/or its suppliers and licensors. All rights in and to the Services,
Beta Services, Sales Insights Data, and Documentation not expressly
granted to Customer in this Agreement are reserved by Evaluator Sales and
its suppliers and licensors. Except as expressly set forth herein, no
express or implied license or right of any kind is granted to Customer
regarding the Services, Beta Services, Sales Insights Data, Documentation,
or any part thereof. Except as set forth herein, Customer shall own
all right, title, and interest in Customer Content and Performance Data.
- Customer
Content; Performance Data. Customer grants Evaluator
Sales a non-exclusive, royalty-free and fully paid up license to use,
reproduce, distribute, publicly display, publicly perform, modify and
create derivative works of the Customer Content and Performance Data for
the purpose of: (1) providing Services; (2) for Evaluator Sales’s internal
and diagnostic purposes (e.g., to develop, provide and improve the
Services and future Evaluator Sales products and services); and (3) only
with respect to Performance Data, surfacing it solely in
de-identified and aggregate form that does not identify Customer or its
End Users (“Anonymized Data”) . All uses of the Customer
Trademarks will be subject to the Customer’s trademark guidelines as made
available to Evaluator Sales. All goodwill associated with the Customer
Trademarks will inure solely to the benefit of the Customer. The Customer
Content and Customer Trademarks and all worldwide intellectual property
rights in and to such content and marks shall be the exclusive property of
Customer. All rights in and to the Customer Content and Customer
Trademarks not expressly granted to Evaluator Sales in this Agreement are
reserved by Customer.
- Permitted
Properties. As between the parties, the Permitted Properties and
all content contained therein, apart from the Evaluator Sales Platform
licensed hereunder, will remain the exclusive responsibility and/or
property of Customer.
- Feedback. Customer
hereby grants to Evaluator Sales a royalty-free, worldwide, transferable,
sublicensable, irrevocable, perpetual license to use or incorporate into
the Services any suggestions, enhancement requests, recommendations or
other feedback provided by Customer, including Authorized Users, relating
to the Services. This Section 3 shall survive termination of this
Agreement.
4. FEES AND PAYMENT
- Fees. Customer
will pay Evaluator Sales the fees described on the applicable Order Form.
Unless otherwise stated in the Order Form, payments shall be made in USD
no later than thirty (30) days after the date of invoice. Customer
will provide Evaluator Sales with complete, accurate and up-to-date
Customer billing and contact information. Evaluator Sales reserves
the right to suspend provision of the Services if fees are past due more
than thirty (30) days.
- Taxes. All
fees owed by Customer in connection with this Agreement are exclusive of,
and Customer will pay, all sales, use, excise and other taxes and
applicable export and import fees, customs duties and similar charges that
may be levied upon Customer in connection with this Agreement, except for
employment taxes for Evaluator Sales employees and taxes based on Evaluator
Sales’s net income.
- Interest. Any
amounts not paid when due will bear interest at the rate of one- and
one-half percent (1.5%) per month, or the maximum legal rate if less, from
the due date until paid.
5. CUSTOMER RESPONSIBILITIES
- Customer
Warranty. Customer represents and warrants that the Customer
Content and the use thereof by or on behalf of Evaluator Sales as
contemplated herein will not; (1) be deceptive, defamatory, obscene,
pornographic or unlawful; (2) contain any viruses, worms or other
malicious computer programming codes intended to damage Evaluator Sales’s
system or data; or (3) otherwise violate the rights of a third party. Evaluator
Sales is not obligated to back up any Customer Content; Customer is solely
responsible for creating backup copies of any Customer Content at
Customer’s sole cost and expense.
- Data
and Security. Customer and its Authorized Users will have access
to the Customer Content and will be responsible for all changes to and/or
deletions of Customer Content and the security of all passwords and other
access protocols required in order to access the Services. Customer will
have the sole responsibility for the accuracy, quality, integrity,
legality, reliability, and appropriateness of all Customer Content.
6. WARRANTIES AND DISCLAIMERS
- Representations
of Both Parties. Each party represents and warrants to the other
that: (1) it has the full right, power and authority to enter into this
Agreement and perform its obligations hereunder; (2) this Agreement
constitutes a legal, valid and binding obligation of it, enforceable
against it in accordance with the terms of this Agreement, and (3) its
execution and delivery of this Agreement, and its performance hereunder,
will not violate or conflict with any other contract or agreement to which
it is a party.
- Limited
Warranty. Evaluator Sales warrants to Customer that the Services
will substantially conform to the Documentation. Provided that Customer
notifies Evaluator Sales in writing of any breach of the foregoing
warranty during the Term, Evaluator Sales will, as Customer’s sole and
exclusive remedy, use commercially reasonable efforts to correct the
defect.
- Disclaimer. EXCEPT
AS EXPRESSLY PROVIDED IN SECTION 6.2 , AND TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, THE SERVICES AND DOCUMENTATION ARE PROVIDED
“AS IS,” AND EVALUATOR SALES MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER
WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE,
MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE,
WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES OR
DOCUMENTATION OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY EVALUATOR
SALES. EVALUATOR SALES DOES NOT PROVIDE ANY WARRANTIES REGARDING THE
ACCURACY OF DATA OR INFORMATION PROVIDED BY THIRD PARTIES AND EVALUATOR
SALES SHALL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS,
SERVICE FAILURES AND ANY OTHER PROBLEMS ARISING FROM CUSTOMER’S USE OF THE
INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE DISCLAIMERS
CONTIANED IN THIS SECTION ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN EVALUATOR
SALES AND CUSTOMER, AND EVALUATOR SALES’S PRICING REFLECTS THIS ALLOCATION
OF RISK AND THE LIMITED WARRANTIES SPECIFIED HEREIN. EVALUATOR SALES DOES
NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE
SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
7. LIMITATION OF LIABILITY
- Special
Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL,
INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY
NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST REVENUE, LOSS OF
BUSINESS OR DATA AND SIMILAR CLAIMS, REGARDLESS OF THE CAUSE OF ACTION OR
THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF
SUCH PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
- LIMITATION.
THE MAXIMUM LIABILITY OF EACH PARTY ARISING OUT OF OR IN ANY WAY CONNECTED
TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO EVALUATOR
SALES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR
OCCURRENCE GIVING RISE TO SUCH LIABILITY.
- Basis
of the Bargain. The parties agree that the limitations of
liability set forth in this Section 7 will survive and continue in
full force and effect despite any failure of consideration or of an
exclusive remedy. The parties acknowledge that the prices have been set
and this Agreement entered into in reliance upon these limitations of
liability and that all such limitations form an essential basis of the
bargain between the parties. This Section 7 shall survive
termination of this Agreement.
8. CONFIDENTIALITY
- Confidential
Information. The Receiving Party agrees: (1) not to use or
disclose any Confidential Information except as expressly authorized by
this Agreement; (2) to protect the Disclosing Party’s Confidential
Information using the same degree of care that it uses with respect to its
own confidential information, but in no event with less than a reasonable
degree of care; (3) to hold the Disclosing Party’s Confidential
Information in strict confidence; and (4) to limit access to the
Disclosing Party’s Confidential Information to those of its employees,
agents or Authorized Users having a need to know and who are bound by
confidentiality obligations at least as restrictive as those contained
herein.
- Compelled
Disclosure. Nothing herein shall prevent the Receiving Party from
disclosing any Confidential Information or Personal Information as
necessary pursuant to any court order or any legal, regulatory, law
enforcement or similar requirement or investigation; provided, prior to
any such disclosure, the Receiving Party shall use reasonable efforts to
(1) promptly notify the Disclosing Party in writing of such requirement to
disclose and (2) cooperate with the Disclosing Party in protecting against
or minimizing any such disclosure or obtaining a protective order.
- Return
or Destruction of Confidential Information. Upon written request
by the Disclosing Party, a Receiving Party shall destroy or return (as
instructed by the Disclosing Party) all Confidential Information in its
possession, except solely to the extent such Confidential Information may
be deemed reasonably necessary to document the Receiving Party’s
performance or compliance with this Agreement. Nothing in this
Section 8.3 shall require the destruction or alteration of computer
back-up tapes or similar storage made in the ordinary course of the
Receiving Party's business that contain the Disclosing Party's
Confidential Information, provided that Receiving Party shall continue to
comply with its obligations herein with respect to such Confidential
Information. This Section 8 shall survive termination of this Agreement.
9. PERSONAL INFORMATION, DATA PROTECTION AND SECURITY
- Personal
Information. Customer agrees that in performing its obligations hereunder,
Evaluator Sales may process Personal Information related to Customer’s
employees, representatives, contractors, and End Users. Evaluator Sales
agrees to process any such Personal Information in accordance with
applicable Rules and this Agreement. Customer represents and warrants that
it has provided all necessary notices and obtained all necessary consents
required to provide Personal Information to Evaluator Sales pursuant to
this Agreement, and that Customer has complied and shall continue to
comply with all applicable Rules with respect to any Personal Information
it makes available to Evaluator Sales in connection with this
Agreement.
- Security
Measures. Evaluator Sales will implement and maintain reasonable
security procedures and practices appropriate to the nature of the
Personal Information within Evaluator Sales’s control and take such other
actions as are necessary to maintain conformance with high industry
standards of security.
- Notification
of Data Breach and Incident Response. In the event an
unauthorized third- party gains access to, alters, exfiltrates, or
otherwise compromises the security of Personal Information (a “data
breach”) held by Evaluator Sales, Evaluator Sales shall promptly notify
Customer and provide, to the extent possible, details of the data breach
including the steps being taken to mitigate potential risks and harm.
Notification by Evaluator Sales of a data breach does not represent any
acknowledgement or acceptance by Evaluator Sales of fault or liability with
respect to the data breach.
10. INDEMNIFICATION
- By
Evaluator Sales. Evaluator Sales will defend at its expense any
suit brought against Customer, and will pay any settlement Evaluator Sales
makes or approves, or any damages finally awarded in such suit, insofar as
such suit is based on a claim by any third party alleging that the
Services misappropriate any trade secret recognized under the Uniform
Trade Secrets Act or infringes any copyright or United States patent
issued as of the Effective Date. If any portion of the Services becomes,
or in Evaluator Sales’s opinion is likely to become, the subject of a
claim of infringement, Evaluator Sales may, at Evaluator Sales’s option:
(1) procure for Customer the right to continue using the Services; (2)
replace the Services with non-infringing software or services which do not
materially impair the functionality of the Services; (3) modify the
Services so that they become non-infringing; or (4) terminate this
Agreement and refund any unused prepaid fees for the remainder of the term
then in effect, and, upon such termination, Customer will immediately
cease all use of the Services and Documentation. Notwithstanding the
foregoing, Evaluator Sales will have no obligation under this Section
10.1 or otherwise with respect to any infringement claim based upon
(5) any use of the Services not in accordance with this Agreement or as
specified in the Documentation; (6) any use of the Services in combination
with other products, equipment, software or data not supplied by Evaluator
Sales; or (7) any modification of the Services by any person other than Evaluator
Sales or its authorized agents (collectively, the “Exclusions” and
each, an “Exclusion”). This Section 10.1 states the
sole and exclusive remedy of Customer and the entire liability of Evaluator
Sales, or any of the officers, directors, employees, shareholders,
contractors or representatives of the foregoing, for infringement claims
and actions.
- By
Customer. Customer will defend at its expense and advance
sufficient fees and costs to Evaluator Sales in connection with any third
party suit brought against Evaluator Sales, and will pay any settlement
Customer makes or approves, or any damages finally awarded in such suit,
insofar as such suit is based on a claim arising out of or relating to (1)
the Customer Content misappropriates any trade secret recognized under the
Uniform Trade Secrets Act or infringes any copyright or United States
patent or (2) an Exclusion. This Section 10.2 states the sole
and exclusive remedy of Evaluator Sales and the entire liability of
Customer, or any of the officers, directors, employees, shareholders,
contractors or representatives of the foregoing, for the claims and
actions described herein.
- Procedure. The
indemnifying party’s obligations as set forth above are expressly
conditioned upon each of the foregoing: (1) the indemnified party will
promptly notify the indemnifying party in writing of any threatened or
actual claim or suit; (2) the indemnifying party will have sole control of
the defense or settlement of any claim or suit;
and (3) the indemnified party will cooperate with the indemnifying party
to facilitate the settlement or defense of any
claim or suit.
11. TERM
- Term. This
Agreement will begin on the Effective Date and continue in full force and
effect as long as any such Order Form remains in effect. This
Agreement will remain in effect for two (2) years from the expiration or
termination of the final Order Form unless terminated by either party
earlier under the terms hereof (the “Term”). Any termination of
this Agreement constitutes a termination of all Order Form(s).
Notwithstanding the foregoing, any provisions that by their nature are
meant to survive the Term shall survive the termination or expiration
hereof.
- Termination.
Either party may terminate this Agreement for material breach by providing
the other party no less than thirty (30) days’ written notice specifying
the nature of the alleged breach and providing such party a chance to
cure. If no cure is made within the 30-day notice period, the party
alleging the breach may terminate this Agreement with no further
notice.
12. MISCELLANEOUS
- Governing
Law and Venue. This Agreement and any action related thereto will
be governed and interpreted by and under the laws of the State of New
York, without giving effect to any conflicts of laws principles. Customer
hereby expressly consents to exclusive personal jurisdiction and venue in
the state and federal courts for the county in which Evaluator Sales’s
principal place of business is located for any lawsuit arising from or
relating to this Agreement. The United Nations Convention on Contracts for
the International Sale of Goods does not apply to this Agreement.
In the event of any dispute, the prevailing party will be entitled to
collect from the other the fees and costs of litigation, including but not
limited to attorneys’ fees and expenses.
- Export. Customer
agrees not to export, reexport, or transfer, directly or indirectly, any
U.S. technical data acquired from Evaluator Sales, or any products
utilizing such data, in violation of the United States export laws or
regulations.
- Severability. If
any provision of this Agreement is, for any reason, held to be invalid or
unenforceable, the other provisions of this Agreement will remain
enforceable and the invalid or unenforceable provision will be deemed
modified so that it is valid and enforceable to the maximum extent
permitted by law.
- Waiver. Any
waiver or failure to enforce any provision of this Agreement on one
occasion will not be deemed a waiver of any other provision or of such
provision on any other occasion.
- No
Assignment. Except as is necessary in connection with providing
Services, neither party will assign, subcontract, delegate, or otherwise
transfer this Agreement, or its rights and obligations herein, without
obtaining the prior written consent of the other party, and any attempted
assignment, subcontract, delegation, or transfer in violation of the
foregoing will be null and void; provided, however, that Evaluator Sales
may assign this Agreement in connection with a merger, acquisition,
reorganization or sale of all or substantially all of its assets, other
operation of law, or to a Evaluator Sales Affiliate without any consent of
Customer. Subject to the foregoing, the terms of this Agreement will be
binding upon the parties and their respective successors and permitted
assigns.
- Force
Majeure. Any delay in the performance of any duties or
obligations of either party (except the payment of money owed) will not be
considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire,
earthquake, flood, pandemic, health crisis or any other event beyond
the control of such party, provided that such party uses reasonable
efforts, under the circumstances, to notify the other party of the cause
of such delay and to resume performance as soon as possible.
- Independent
Contractors. The relationship of Evaluator Sales to Customer is
that of an independent contractor, and neither party is an agent or
partner of the other. Customer will not have, and will not represent to
any third party that it has, any authority to act on behalf of Evaluator
Sales.
- Notices. Each
party must deliver all notices or other communications required or
permitted under this Agreement in writing by (1) a nationally recognized
express mail service or (2) email. Notice by express mail service will be
effective upon receipt or refusal of delivery. Notice by email will be
effective when sent even if the sender receives a machine-generated
message that delivery has failed, provided that the sender sends a
tangible copy of the notice by express mail service with ten business days
of sending the email message. Notice shall be delivered as set forth on
the first page of this Agreement or as may be reflected in any Order
Form:
- Counterparts. This
Agreement and other documents to be delivered pursuant to this Agreement
may be executed in one or more counterparts, each of which will be deemed
to be an original copy and all of which, when taken together, will be
deemed to constitute one and the same agreement.
- Publicity. During
and after the Term (unless terminated by Customer due to Evaluator Sales’s
breach thereof), Evaluator Sales shall have the right to reference
Customer as a customer of Evaluator Sales’s (e.g., on the Evaluator Sales
website and marketing materials), including using a Customer Trademark
subject to Customer’s written guidelines as provided to Evaluator Sales
for such purposes, and Customer will make an appropriate representative
available to answer questions about the Services from Evaluator Sales’s potential
clients. Customer will further allow Evaluator Sales to create and use a
public case study during or after the Term, and Customer will agree to
participate in at least one press moment with Evaluator Sales during or
after the Term.
- Entire
Agreement. Except as may be set forth in any applicable policy
or agreement concerning data, privacy or security, this Agreement is the
complete and exclusive agreement of the parties with respect to the
subject matters hereof and supersedes and merges all prior discussions
between the parties with respect to such subject matters. No modification
of or amendment to this Agreement, or any waiver of any rights under this
Agreement, will be effective unless in writing and signed by an authorized
signatory of Customer and Evaluator Sales.
Exhibit A – Beta Services
- Supplemental
Terms. Notwithstanding anything to the contrary in the Agreement,
the following terms shall apply to Customer’s use of the Beta Services:
- License. The
particular features and functionalities of Beta Services will be
described in an Order Form executed by the parties. Subject to the terms
and conditions of the Agreement, the relevant Order Form, and this
Exhibit A, Evaluator Sales grants to Customer a limited,
non-sublicensable, nonexclusive, nontransferable license to use the Beta
Services, in accordance with the instructions supplied by Evaluator Sales.
- Access
and Restrictions. Customer will only disclose the Beta Services
and the information, reports, data, or other deliverables or work product
accessed by or provided to Customer in connection with the Beta Services
(collectively such information, reports, data, or other deliverables or
work product, the “Beta Service Reports”) to those of its Authorized
Users as are necessary for the use expressly and unambiguously licensed
hereunder, and only after such Authorized Users have agreed in writing to
be bound by confidentiality obligations no less restrictive than those in
this Agreement. Customer shall not, without the prior written
consent of Evaluator Sales, disclose or otherwise make available the Beta
Service Reports, Beta Services or copies thereof to any third party. The
Beta Services and Beta Service Reports shall be (1) used for Customer’s
internal use only, and (2) Evaluator Sales’s Confidential Information.
The Beta Service Reports are not Performance Data.
- Feedback. Evaluator
Sales makes the Beta Services available to Customer for purposes of
evaluation and feedback without any compensation or reimbursement of any
kind from Evaluator Sales. Customer hereby agrees to provide such
feedback as reasonably requested by Evaluator Sales and acknowledges that
Evaluator Sales owns any feedback provided. Customer grants to Evaluator
Sales, if for any reason it is further needed, a perpetual,
non-revocable, royalty-free worldwide license to use and/or incorporate
such feedback into any Evaluator Sales product or service (including the
Beta Services) at any time at the sole discretion of Evaluator Sales.
- Modification
and Termination. Evaluator Sales reserves the right to modify or
discontinue any aspect of the Beta Services at any time in its sole
discretion, for any reason, with or without notice and without liability
to Customer. Evaluator Sales reserves the right to immediately suspend or
terminate Customer’s access to and use of the Services (1) if Customer
breaches the terms of the Agreement, this Exhibit B, or any applicable
Third-Party Software terms; or (2) if any act or omission of Evaluator
Sales’s third party licensors negatively impacts Evaluator Sales’s
ability to provide the Beta Services to Customer; or (3) in its sole
discretion at any time. With respect to each Beta Service, these terms
will be in effect as of the date of execution of the applicable Order
Form and will continue in force until the earlier of (4) the expiration
or termination of the Agreement or of the Order Form(s) relating to Beta
Service(s), (5) Evaluator Sales’s suspension or termination of the Beta
Service(s) in accordance with this Section, or (6) the date Evaluator
Sales, in its sole discretion, makes such Beta Service generally publicly
available. If Evaluator Sales makes the Beta Service(s) generally
available, they will be governed by the same terms and conditions as
other “Services” under the Agreement (unless otherwise agreed in writing
by the parties) and any documentation related to the Beta Services will
be “Documentation” under the Agreement. Evaluator Sales may in its sole
discretion choose to make continued provision of such Services subject to
additional fees.
- Warranties. The
parties acknowledge that the Beta Services are experimental in nature and
that the Beta Services are provided “AS IS” and may not be functional on
every machine or in every environment. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, EVALUATOR SALES MAKES NO (AND HEREBY DISCLAIMS ALL)
WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL,
EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR
PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE
THE BETA SERVICES OR DOCUMENTATION OR ANY OTHER PRODUCTS OR SERVICES
PROVIDED TO CUSTOMER BY EVALUATOR SALES HEREUNDER. EVALUATOR SALES DOES
NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE
BETA SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. USE OF THE BETA
SERVICES IS AT CUSTOMER’S OWN RISK.
- Indemnification. Customer
will defend at its expense any suit brought against Evaluator Sales, and
will pay any settlement Customer makes or approves, or any damages
finally awarded in such suit, insofar as such suit is based on a claim
arising out of or relating to (1) Customer’s use of the Beta Services,
and (2) Customer’s breach or alleged breach of its obligations under this
Exhibit A.
- Limitation
on Liability. IN NO EVENT SHALL EVALUATOR SALES BE LIABLE FOR
ANY INDIRECT, SPECIAL, CONSEQUENTIAL AND/OR INCIDENTAL LOSS, EXEMPLARY OR
OTHER DAMAGES RELATED TO OR ARISING FROM THIS EXHIBIT B, AND/OR WHETHER
DIRECT OR INDIRECT: (1) LOSS OF DATA, (2) LOSS OF INCOME, (3) LOSS OF
OPPORTUNITY, (4) LOST PROFITS, AND (5) COSTS OF RECOVERY OR ANY OTHER
DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER
OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF
STATUTE, OR OTHERWISE, AND WHETHER OR NOT EVALUATOR SALES HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EVALUATOR SALES’s LIABILITY HEREUNDER IS LIMITED TO
$50.00.