Last Updated: January 15, 2020
SERVICE TERMS AND CONDITIONS
This Service Terms and Conditions (“Agreement”) is made and entered into by and between Ticket Vault LLC
(“Company”), and the client that has executed an Order Form (hereinafter, “Client”), with Company and this
Agreement shall govern the Services provided by Company for the Client as referenced herein and in such Order
BY EXECUTING AN ORDER FORM, CLIENT EXPRESSLY ACCEPTS AND AGREES TO THE TERMS
OF THIS AGREEMENT AS OF THE EFFECTIVE DATE SET FORTH IN THE ORDER FORM (“ORDER
FORM EFFECTIVE DATE”). IF CLIENT IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS
AGREEMENT ON BEHALF OF THE CLIENT’S LEGAL ENTITY, CLIENT REPRESENTS THAT SUCH
INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF CLIENT DOES NOT AGREE
WITH THIS AGREEMENT, CLIENT MUST NOT EXECUTE THE ORDER FORM.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION
17.9, CLIENT AGREES THAT DISPUTES BETWEEN CLIENT AND COMPANY WILL BE RESOLVED
BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A
CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
1.1 Services; Order Form. Company shall provide the SaaS Services and other services as described in
this Agreement, and/or set forth in the relevant duly executed order form(s) under this Agreement (hereinafter
“Order Form(s)”). Company will provide one (1) full business day of additional support services including, but
not limited to (i) the initial installation, set-up and use of the SaaS Services and/or (ii) training, on-boarding,
documentation, and/or online support regarding use of the SaaS Services as set forth in the applicable Order
Form (“Training Services”). Upon the Client’s request, additional phone and/or email Training Services may
be provided during regular business hours at Company’s then-current rates. SaaS Services and Training Services
shall collectively be referred to herein as “Services”. Neither party will have any obligation with respect to any
draft Order Form unless and until it is executed by both parties. Except as otherwise provided herein, if any
terms and/or conditions of this Agreement conflict with any terms and/or conditions of any Order Form, the
terms and conditions set forth in the Order Form will control solely with respect to the Services covered under
such Order Form.
1.2 Use of the Services. Client is solely responsible for obtaining, maintaining, installing and
supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other
equipment and services (specifically including responsibility for providing appropriate personal computers
and mobile devices) needed for it and its authorized users to access and/or use the SaaS Services. Client shall
ensure that its network and systems comply with the relevant specifications provided by Company from time to time
and shall provide Company with information as may be required by Company in order to provide the SaaS Services.
While Company uses reasonable efforts to keep the Services accessible, the Services may be unavailable from time
to time. Client understands and agrees that there may be interruptions to the Services and/or access to Client’s
account due to circumstances both within Company’s control (e.g., routine maintenance) and outside of Company’s
control. The Services may be modified, updated, suspended and/or discontinued at any time without notice and/or
1.3 Illegal Use. Client shall not access, store, distribute or transmit any Viruses or any material during the
course of its use of the SaaS Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing,
harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury
to any person or property. “Virus” shall mean any thing or device (including without limitation any software,
code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer
software, hardware or network, any telecommunications service, equipment or network or any other service or
device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including
the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole
or part or otherwise) and/or adversely affect the user experience, including worms, ‘Trojan’ horses, viruses and
other similar things or devices. Notwithstanding anything herein to the contrary, Company reserves the right,
without liability to the Client, to disable or suspend the Client’s access to the SaaS Services in the event (a) of
any breach or anticipated breach of this Agreement, (b) Client and/or its users access to and/or use of the
Services disrupts or poses a security risk to the Services and/or any other client, may harm Company’s
systems and/or any provider of any third-party services and/or may subject Company and/or any third-party
to liability, (c) Client and/or its authorized users are using the Services for fraudulent or illegal activities,
and/or (d) Company’s continued provision of any of the Services to the Client and/or its users is prohibited
by applicable law.
1.4 Client Content. Client is responsible for providing all Client Content, criteria, and/or information
and is responsible for the accuracy, quality, integrity and legality of such data and of the means by which
authorized users access and use the Client Content. Client hereby grants Company a worldwide, nonexclusive right and license to reproduce, distribute and display the Client Content as necessary to provide
the Services. Client represents and warrants that Client owns all Client Content or that Client has permission
from the rightful owner to use each of the elements of Client Content; and that Client has all rights necessary
for Company to use the Client Content in connection with the Services. Client and its licensors retain title,
all ownership rights, and all IP (as defined in Article 7), in and to the Client Content and reserve all rights
not expressly granted to Company hereunder. “Client Content” means any elements of text, employee
contact information, graphics, images, photos, designs, artwork, logos, user logins, passwords, account
access, credentials, listings, trademarks, service marks, and other materials and/or content which Client
provides in connection with any Services. Client Content excludes any content available in the public
domain; and any content owned or licensed by Company, whether in connection with providing Services or
otherwise. Client agrees that Company may contact Client’s users directly to provide the Services.
Notwithstanding anything herein to the contrary, Company may collect aggregated, anonymized data that
cannot identify any person and that is derived from or created through the use of the Services by Client
and/or its users and may share or otherwise use such anonymized and aggregated data as further set forth
1.5 Data Security. Client acknowledges and agrees that Company utilizes third-party service providers
to host and provide the SaaS Services and store Client Content and the protection of such data will be in
accordance with such third party’s safeguards for the protection of the security, confidentiality, and integrity
of Client’s data. Client is responsible for properly configuring and using the SaaS Services and taking
appropriate steps to maintain security, protection and backup of any and all Client Content.
1.6 Unauthorized Access. Company is not responsible for any unauthorized access to, alteration of,
and/or the deletion, destruction, damage, loss and/or failure to store any of, Client’s data and/or other
information that Client and/or its users submits and/or uses in connection with the Services (including as a
result of Client’s and/or its user’s errors, acts or omissions).
1.7 Errors, Inaccuracies, Omissions and Performance. Occasionally there may be information on
the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to services,
information, and data. Company reserves the right to (i) correct any errors, inaccuracies, and/or omission
and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue
any notice of such changes, except as prohibited by law. Furthermore, Company shall assume no
responsibility for the consequences of any intentional or unintentional error, omission, inaccuracy,
incompleteness or untimeliness in or with respect to the Services. Client acknowledges that Client is
responsible for reviewing the Services for accuracy and completeness.
1.8 Third Party Services.
a. Client agrees that Company may use third party service providers to provide the Services
described herein (“Third Party Services”). Company does not control, endorse, and/or adopt any Third Party
Services, and the inclusion of any link to web pages and/or content does not imply affiliation, endorsement
and/or adoption by Company of any site and/or any information contained therein, and can make no guarantee
as to its accuracy or completeness. Client’s right to use such third party technology is governed by the terms
and conditions of such third party technology specified by such third party and is not subject to the term and
conditions of this Agreement.
b. Company provides certain Services that include without limitation, a point of sale system to
sell, list and/or manage inventory across third party marketplaces (“Marketplace”). In order to use the Services
integrate Client’s accounts with a specific Marketplace, Client must provide Company with its log-in credential
and acknowledges and agrees that Client has the authority to provide Company with such access. Accessing
API terms and any other terms (collectively, the “Marketplace Terms”) to which Client may have agreed to
with such Marketplace. Client acknowledges that it shall be solely responsible for paying any charges, including
without limitation any accidental purchases, sales, errors or similar listing mistakes and complying with any
additional obligations imposed by such Marketplace. Client hereby releases Company from any claims or
liability arising from Client’s violation of any applicable Marketplace Terms.
2. Use; Maintenance; Prohibited Conduct; Creating Accounts
2.1 Right to Use. Subject to Company’s receipt of the Fees for the Services and provided Client and/or its
users are using such SaaS Services in accordance with the terms and conditions set forth herein and/or in the
applicable Order Form, Company hereby grants Client the right to access and/or use the SaaS Services during
the term of this Agreement and/or the term of the applicable Order Form solely for the Client’s internal business
operations and in accordance with the terms set forth herein and/or in the applicable Order Form. Client
then-current version shall be incorporated herein by reference. The Client shall reproduce and include any
copyright and other proprietary notices included in the Services, or any such other materials on all copies, in
whole or in part, made thereof.
2.2 Permitted Use. Client represents and warrants that its users of the Services will abide by the terms
and conditions of this Agreement and any Order Forms and Client acknowledges and agrees that it shall be fully
liable for any user’s breach of the terms and conditions set forth in this Agreement and/or any Order Form.
Client shall assign each individual user of the SaaS Services a unique email address, logon or ID. Client may
not permit any specific email address, logon or ID to be used by more than one individual. Client is responsible
for the management and administration of any email addresses, logons and IDs (and any associated passwords
and access privileges) to or for the use of the SaaS Services, in accordance with this Agreement and the SOW
and subject to the approval of Company. Client shall strictly maintain the confidentiality of all such email
addresses, logons, IDs, and passwords, and Client is solely responsible and liable for all transactions, activities,
and other consequences resulting from the use and/or disclosure of such logons, IDs, and/or passwords. Client
shall promptly report to Company any breach of confidentiality with respect to such logons, IDs, passwords, or
the SaaS Services, or any other problem with the SaaS Services, of which Client becomes aware. In no event
shall Client allow the SaaS Services to be accessed and/or used by parties other than Client and its authorized
users. Company reserves the right to refuse use and/or access to such SaaS Services by any individual party
other than Client and its authorized users. Client agrees to (i) maintain the accuracy and completeness of
information provided to Company and agrees to provide any changes to Company within thirty (30) days
after any such change and (ii) use commercially reasonable efforts to prevent unauthorized access to, and/or
use of the Services, and notify Company immediately of any such unauthorized access to and/or use of the
2.3 Creating an Account. Client may establish an account through the Services. Client’s account
requires Client to (i) indicate agreement to this Agreement, (ii) provide contact information, and (iii) submit
any other form of authentication required during the enrollment process, as determined by Company in its
sole and absolute discretion. Client may have multiple authorized users as determined through the applicable
Services level chosen. When initially registering an account, Client may determine the administrative user
authorized to control Client’s account access and/or controls. Client will ensure that its users of the Services
abide by the terms and conditions of this Agreement and/or applicable Order Form(s) and Client
acknowledges and agrees that it shall be fully liable for any breach of the terms set forth herein.
2.4 Maintenance; Modification. During the term or as otherwise specified in an applicable Order Form,
Company will make available to the Client updates, patches and bug fixes with respect to the SaaS Services as
may, from time to time, be developed and made generally available by Company to its clients. Company reserves
the right to modify and/or discontinue, temporarily and/or permanently, the Services and/or any features or
portions thereof without prior notice. Client agrees that Company will not be liable for any modification,
suspension and/or discontinuance of the Services or any part thereof.
2.5 Prohibited Conduct. Except as expressly permitted hereunder, Client shall not, directly or indirectly,
without the express, prior written consent of Company (i) use or permit the use of, reproduce and/or otherwise
duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, and/or transfer the
SaaS Services and/or any portion thereof, and/or any of Client’s rights thereto, (ii) merge any SaaS Services or
any portion thereof with any other program and/or materials, (iii) create software, robots, spiders or other
automatic devices, programs algorithms to access, acquire, copy, distribute, display, monitor any data, content
or otherwise circumvent the structure of the Services, (iv) reverse engineer, decompile, disassemble, extract,
and/or otherwise derive and/or attempt to derive the source code of any SaaS Services and/or any other compiled
software provided or made available by Company hereunder, (v) adapt, translate, localize, port, or otherwise
modify any SaaS Services and/or any other compiled software provided or made available by Company
hereunder, (vi) remove, obliterate, and/or cancel from view any copyright, trademark, and/or other proprietary
and/or confidentiality notice and/or legend appearing on and/or in any materials provided or made available by
Company hereunder, and/or fail to reproduce any such notice and/or legend on any copy made of any such
materials, (vii) take any action that materially interrupts and/or interferes with, or that might reasonably have
been expected to materially interrupt and/or interfere with, the SaaS Services, Company’s business operations
and/or other clients, (viii) copy or imitate part or all of the design, layout and/or look and feel of the Services in
any form or media and/or (ix) permit any other user, person and/or entity to engage in any of the foregoing
conduct. In the event of Client’s breach of Section 1.3 or this Section 2.5, Company may terminate Client’s
account immediately without liability, and Client consents to Company obtaining any injunctive or equitable
relief that Company deems necessary or appropriate in such circumstances.
3.1 Fees. In consideration of the provision of Services described herein, Client shall pay Company the fees
set forth in the applicable Order Form (“Fees”). All Fees due and payable by Client to Company hereunder must
be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law.
3.2 Invoices. Unless otherwise set forth herein and/or set forth in an Order Form, Company will provide
Client with an invoice on a monthly basis for Fees that become due hereunder. All Fees, expenses and taxes due
hereunder will be paid in U.S. Dollars. Each invoice shall be due and payable by Client upon receipt of such
3.3 ACH. Unless otherwise set forth herein and/or in an Order Form, all Fees shall be deducted from a
payment account designed by Client. Client authorizes Company and/or its third-party service provider to
automatically deduct the payment account for the Fees in advance or as otherwise agreed to by the parties in
writing. If Client’s payment account on file is closed or the account information is changed, or if, for any reason,
a charge is rejected by Client’s payment account, Client shall immediately update Client’s payment account or
supply a new payment account, as appropriate. If Client is unable to update its payment account with appropriate
information, then Company will send an invoice to Client detailing the amount due. Client must pay the amount
due in full within three (3) business days after receipt of the invoice. Upon Company’s request, Client agrees to
promptly complete and submit a wire transfer authorization, and/or ACH authorization form to Company, as
applicable. Client permanently and irrevocably waives any and all right to enact a 'chargeback' (i.e., a disputed,
reversed or contested charge with the applicable bank) against such payments for any reason whatsoever against
3.4 Expenses. Client shall promptly reimburse Company for any out-of-pocket expenses reasonably
incurred in connection with the performance of the Services and/or the delivery, installation, support and/or
configuration of any SaaS Services at Client’s location and/or facilities.
3.5 Taxes. All Fees due and payable under this Agreement and/or any Order Form are exclusive of
applicable taxes, which will be added at the prevailing rate from time to time. Client is responsible for all taxes,
fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees
under this Agreement (collectively, “Taxes”) except for taxes based on Company’s net income and/or payroll
taxes. Client will indemnify, defend and hold harmless Company for all taxes imposed which may be attributable
to the Services.
3.6 Out of Scope Services. In the event Client requests additional Services outside the scope of Services
described herein and/or in the applicable Order Form, then Client shall submit such request in writing to
Company. Thereafter, the parties shall memorialize any agreed upon changes in writing.
3.7 Late Payment. In the event that Fees are not paid within three (3) calendar days after such Fees first
become due and payable, Company may, without liability to Client, in addition to other available remedies,
disable the password, account and access to all or part of the SaaS Services. In the event of the foregoing,
Company shall not be obligated to provide any or all of the Services until such fees are paid in full.
3.8 Invoice Dispute Process
3.8.1 Process. If Client receives an invoice which it reasonably believes, acting in good faith and
with proper supporting evidence, specifies a charge which is not valid and properly due (“Disputed Charge”),
then Client shall notify Company in writing (“Dispute Notice”) within three (3) calendar days from the date
such invoice is received (“Dispute Period”) to notify Company that it has a bona fide dispute in relation to the
amount invoiced. For avoidance of doubt, disputed invoices do not relieve Client of paying invoices in full on
or before the date in which such payments are due. Client shall specify reasonable details of the nature of the
dispute in the Dispute Notice. The parties shall discuss the Disputed Charge within fourteen (14) calendar days
from the date of the Dispute Notice. If the dispute is not resolved within such time period, then either party may
at any time thereafter submit such dispute to a court of competent jurisdiction as set forth in Article 15.
3.8.2 Resolution of Dispute. When the dispute is resolved, any payment to be made to Company, or
credit to be applied to Client’s account, as the case may be, shall be made within ten (10) calendar days after the
resolution of such Disputed Charge.
3.8.3 Confidentiality. For avoidance of doubt, all negotiations pursuant to this Section shall be
treated as confidential compromise and settlement negotiations. Nothing said or disclosed, nor any document
produced, in the course of such negotiations which is not otherwise independently discoverable shall be disclosed
to any third party nor offered or received as evidence or used for impeachment or for any other purpose in any
current or future arbitration or litigation.
3.8.4 No Notice. In the event Company does not receive a Dispute Notice within the Dispute Period,
then the relevant invoice shall be deemed to be correct and shall be paid in full in accordance with the terms and
conditions of this Agreement and/or applicable Order Form.
4.1 Term. This Agreement shall commence on the Effective Date and shall continue until terminated
by either party in accordance with the terms and conditions contained herein.
4.2 Order Form Term. The Services will commence on the date set forth in the Order Form and continue
thereafter as set forth in such Order Form, unless otherwise terminated earlier in accordance with the terms and
conditions of such Order Form and/or this Agreement.
5.1 Termination for Breach. If a party materially breaches this Agreement and/or an Order Form (the
"Defaulting Party"), and the Defaulting Party does not cure such breach within fifteen (15) calendar days after
its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or an
Order Form upon written notice to the Defaulting Party. Termination of this Agreement and/or an Order Form
will be without prejudice to any other rights and remedies that the non-defaulting party may have under this
Agreement, an Order Form and/or at law and/or in equity.
5.2 Termination for Convenience. Company may terminate this Agreement and/or any Order Form at
any time for convenience upon written notice to Client. Unless otherwise set forth on an Order Form, Client
may terminate this Agreement and/or any Order Form upon written notice to Company at least thirty (30) days
prior to the end of the then-current term for such termination to take effect at the end of the then-current term.
5.3 Effect of Termination. Upon termination Client will pay all outstanding Fees, charges and expenses
incurred through the effective date of termination. Notwithstanding anything herein to the contrary, any credits
and/or refunds due to Client hereunder shall be determined by Company in its sole and absolute discretion.
6.1 Confidential Information. During the term of this Agreement, the Client may have access to certain
information that is not generally known to others including any and all information relating to the Company and
its business including without limitation: its business, legal, and operational practices, financial, technical,
commercial, marketing, competitive advantage and/or other information concerning the business and affairs,
partnerships and potential partnerships, business model, fee structures, employees, funding opportunities,
metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to
the Client, regardless of the form of the communication and the terms and conditions of this Agreement and/or
Order Form ("Confidential Information").
6.2 Non-Disclosure. Client agrees not to use or disclose the Confidential Information, and may disclose
the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to
receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents
and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential
Information solely in connection with this Agreement. The Client will cause such Representatives to comply
with this Agreement and will assume full responsibility for any failure to comply with the terms of this
Agreement. The Client will not transfer or disclose any Confidential Information to any third party without the
Company’s prior written consent and without such third party having a contractual obligation (consistent with
this Article 6) to keep such Confidential Information confidential. The Client will not use any Confidential
Information for any purpose other than to perform its obligations under this Agreement.
6.3 Exclusions. Confidential Information does not include information that: (i) is obtained by the Client
from the public domain without breach of this Agreement and independently of the Client’s knowledge of any
Confidential Information; (ii) was lawfully and demonstrably in the possession of the Client without use of or
reference to the Company’s Confidential Information; (iii) is independently developed by the Client without use
of or reference to the Company’s Confidential Information; and/or (iv) becomes known by the Client from a
third party independently of the Client’s knowledge of the Confidential Information and is not subject to an
obligation of confidentiality.
6.4 Legal Requirements. If the Client is requested or required to disclose any of the Company’s
Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement
(a "Legal Requirement"), the Client will, if lawfully permitted to do so, provide prompt notice of such Legal
Requirement to the Company so that the Company may seek an appropriate protective order or other appropriate
remedy or waive compliance with the provisions of this Agreement. If the Company is not successful in
obtaining a protective order or other appropriate remedy and the Client is legally compelled to disclose such
Confidential Information, or if the Company waives compliance with the provisions of this Agreement in
writing, the Client may disclose, without liability hereunder, such Confidential Information solely to the extent
necessary to comply with the Legal Requirement.
6.5 Confidentiality Breach. The parties agree that ownership of any IP (as defined in Article 7) in any
materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that
any right or license in respect of such IP is being granted to the other party.
6.6 Disposition of Confidential Information on Termination or Expiration. Upon termination or
expiration of this Agreement or upon the Company’s written request, the Client will return to the Company all
copies of Confidential Information already in the Client’s possession or within its control. Alternatively, with
Company’s prior written consent, the Client may destroy such Confidential Information; provided that the
Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered
unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Client will
certify in writing to the Company that all such Confidential Information has been so destroyed. The obligations
with respect to Confidential Information, as set forth in this Article 6, shall continue in force and effect for a
period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such
Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status
6.7 Remedy. Each party acknowledges that a breach of this Article 6 may result in irreparable and
continuing damage to the Company for which monetary damages may not be sufficient, and agrees that the
Company will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or
all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This
Article 6 shall survive the expiration or termination of this Agreement.
7.1 Intellectual Property. Company retains all rights, title, interest and ownership of, any and all IP and
proprietary rights with respect to the Services, and any aggregated data, manipulated data and/or transaction data
related thereto and any other materials provided or made available to Client by Company hereunder. “IP” means
all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade
names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database
rights. Except for the rights expressly granted to Client in this Agreement, all such Services and other materials
that are provided or made available, and all work product that is developed, under this Agreement, all
modifications, compilations, and derivative works thereof, and all intellectual property and proprietary rights
pertaining thereto, are and shall remain the property of Company and its respective licensors (and to the extent
any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Client,
Client hereby assigns such ownership rights to Company).
7.2 Rights. Company confirms that it has all the rights necessary to provide the SaaS Services described
herein and has the ability to grant all the rights it purports to grant under, and in accordance with, the terms of
8.1 Company Warranty. Company represents and warrants that (i) the SaaS Services will perform
substantially in accordance with the terms set forth herein, (ii) it will, at all times, comply with all applicable
local, state, federal and foreign laws in providing the Services, and (iii) it has taken all action necessary for the
approval and execution of this Agreement. The warranty set forth in this Section 8.1 shall not apply to the extent
of any non-conformance which is caused by use of the Services contrary to Company’s instructions, or
modification or alteration of the Services by any party other than Company and/or authorized by Company in
8.2 Client Warranty. Client represents and warrants that (i) it will, at all times, comply with all applicable
local, state, federal, and foreign laws in using the Service(s) and (ii) it has the requisite legal and corporate power,
right, and authority to enter into this Agreement.
8.3 Remedy. Client’s sole and exclusive remedy and Company’s sole and exclusive liability for any breach
of Company’s warranties set forth herein is for Company to use commercially reasonable efforts to correct any
non-conformance within a reasonable period of time or provide Client with an alternative means of
accomplishing the desired performance; provided that Client notifies Company of such breach in writing within
thirty (30) days after the date of Company’s alleged breach.
8.4 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1 OF THIS AGREEMENT,
COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS
AGREEMENT INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES AND
MATERIALS ARE PROVIDED BY COMPANY ON AN “AS-IS” BASIS. COMPANY DOES NOT
REPRESENT, WARRANT OR COVENANT THAT THE SERVICES AND MATERIALS (INCLUDING,
BUT NOT LIMITED TO, ANY DOCUMENTATION, REPORTS, ADVICE AND RECOMMENDATIONS,
IN ANY FORM) PROVIDED BY COMPANY IN CONNECTION WITH THIS AGREEMENT, ARE OR
WILL NECESSARILY ALWAYS BE COMPLETELY ACCURATE, CURRENT, COMPLETE AND/OR
CONTINUOUSLY AVAILABLE. COMPANY DOES NOT REPRESENT, WARRANT OR COVENANT
THAT THE SERVICES AND MATERIALS WILL BE AVAILABLE WITHOUT INTERRUPTION OR
TOTALLY ERROR-FREE, OR THAT ALL DEFECTS (INCLUDING, BUT NOT LIMITED TO, MINOR OR
COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT
FUNCTIONALITY OR FEATURES) WILL BE CORRECTED. COMPANY IS NOT RESPONSIBLE FOR
ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A)
TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B)
INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR
APPLICATIONS THAT THE SERVICES ARE DEPENDENT ON.
9. Limitation of Liability
COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF
AND/OR IN CONNECTION WITH THIS AGREEMENT AND ANY ORDER FORMS SHALL IN NO
EVENT EXCEED THE FEES PAYABLE BY CLIENT TO COMPANY FOR THE SERVICES PROVIDED
HEREUNDER THAT GAVE RISE TO THE LIABILITY DURING THE SIX (6) MONTH PERIOD
IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. IN NO EVENT WILL COMPANY BE
LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES
(INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF IT HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SET
FORTH HEREIN SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR
OMISSIONS BY COMPANY, ITS EMPLOYEES, REPRESENTATIVES AND/OR AGENTS. BECAUSE
SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, COMPANY’S LIABILITY IS
LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
10.1 Indemnification by Company. Company agrees to indemnify, defend and hold harmless Client, its
members, trustees, employees, agents, officers and officials, from and against any liabilities, losses, costs,
damages, demands and expenses, including reasonable attorney fees, arising out of and/or relating to any claim
(“Claim”) that Client’s use of the Services constitutes infringement, violation, trespass, contravention or breach
in the United States of any patent, copyright, trademark, license or other property or proprietary right of any
third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party.
Notwithstanding anything herein to the contrary, the indemnity in this Section 10.1, shall not apply (i) to a Claim
arising from any modification of the Services by Client or any third party, or from the use of the Services in a
manner contrary to those specific business functions as expressly provided under this Agreement, to the extent
such modification or use resulted in the Claim, (ii) if such Claim results from Client’s use of the Services after
notice of the alleged or actual infringement from Company or any appropriate authority, and/or (iii) in the event
of any breach of Client’s obligations under this Agreement and/or any Order Form, or the use of the Services
other than in connection with this Agreement and/or Order Form, or in a manner not reasonably contemplated
by this Agreement and/or Order Form. The indemnities set forth herein shall survive the termination of this
10.2 Indemnification by the Client. Client shall indemnify, defend and hold Company and its officers,
associates, employees, contractors and agents harmless from and against all Claims arising out of or related to
(i) Client’s acts and/or omissions, (ii) Client’s breach of the terms and/or conditions of this Agreement and/or
any Order Form, and/or (iii) Client’s failure to use the Services in accordance with the terms and conditions set
forth herein and in any Order Form.
10.3 Procedure. The indemnified party shall (i) provide notice to the indemnifying party of any Claim
immediately upon becoming aware of the same, (ii) provide the indemnifying party the sole right to conduct the
defense of any claim or action, or the negotiation of any settlement, in respect of a Claim and does not at any
time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action
except upon the express written instructions of the indemnifying party, and (iii) act in accordance with the
reasonable instructions of the indemnifying party and gives the indemnifying party such assistance as it shall
reasonably require in respect of the conduct of the said defense including without prejudice to the generality of
the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents.
The indemnified party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the
costs and expenses related to such claim. The indemnified party may reasonably participate in such defense, at
its sole expense.
10.4 Claim. In the event of a Claim related to Company’s IP infringement indemnification obligations
described herein, the Company shall be entitled at its own expense and option to (i) procure the right for the
Client to continue utilizing the IP which is at issue, (ii) modify the IP to render same non-infringing, or (iii)
replace the IP with an equally suitable, functionally equivalent, compatible, non-infringing IP. If none of the
foregoing is possible as determined by Company in its sole and absolute discretion, the Company may terminate
this Agreement and/or the applicable Order Form without liability upon written notice to the Client. This Section
sets forth the Client’s sole and exclusive remedy for any Claim related to Company’s IP infringement
indemnification obligations described herein.
11. Independent Contractor
It is understood and agreed that the relationship of Company to Client is and shall continue to be that of an
independent contractor and neither Company nor any of Company’s employees shall be entitled to receive client
employee benefits. Nothing in this Agreement will be construed to create an agency or employment relationship
between Client and Company for any purpose or create obligations of such party to third parties. As an
independent contractor, Company agrees to be responsible for the payment of all taxes and withholdings
specified by law, which may be due in regard to compensation paid by Client.
12. Force Majeure
Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any
delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of
war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications
or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any
third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its
obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to
meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party
written notice if the other party fails to perform those obligations for thirty (30) days due to such Force Majeure
Event. Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment
due under this Agreement and/or any Order Form, except to the extent that the Force Majeure Event physically
interferes with the delivery of the payment. The party whose performance is affected shall use commercially
reasonable efforts to minimize the impact of such Force Majeure Event.
All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the
persons designated in the Order Form or to such other persons and addresses as the parties may designate from
time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to
the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of
the recipient, and if not sent during normal business hours, then on the recipient's next business day, (c) five (5)
days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one
(1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next
business day delivery, with written verification of receipt.
This Agreement may be assigned by Company at any time and for any reason. This Agreement shall not be
assigned, delegated or transferred by Client without prior written consent from Company. This Agreement will
be binding upon the parties and their respective legal successors and permitted assigns.
15. Governing Law
This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois,
without regard to its choice of laws principles. Any action related to or arising from this Agreement shall take
place exclusively in the courts situated in Chicago, Illinois and the parties hereby submit to the venue of the
courts situated therein.
Client shall not, during the term of this Agreement and/or term of any Order Form and for a period of one (1)
year thereafter, either directly or indirectly, call on or attempt to call on, solicit, or induce any change in or
cessation of, the business relationship, of any customers, clients, contractors, vendors, contract manufacturers,
suppliers, investors or employees of the Company on whom Client called on or became acquainted with during
the term of this Agreement and/or any Order Form, either for Client’s own benefit or for the benefit of any other
person, firm, corporation or organization (or of any person or entity through or by which Company shall receive
a direct or indirect benefit).
17.1 Waiver. The failure by either party at any time to enforce any of the provisions of this Agreement,
Order Form or any right or remedy available this Agreement, Order Form or at law or in equity, or to exercise
any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any
way affect the validity of this Agreement and/or any Order Form. The waiver of any default by either party shall
not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.
17.2 Recitals. The recitals are hereby incorporated into and made a part of this Agreement.
17.3 Severability. If any one or more of the provisions of this Agreement and/or any Order Form are for
any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining
provisions of this Agreement and/or any Order Form will be unimpaired and will remain in full force and effect.
17.4 Survival. Any provision of this Agreement which, by its nature, would survive termination of this
Agreement will survive any such termination of this Agreement.
17.5 Headings. The headings and titles of the Sections of this Agreement are not part of this Agreement, but
are for convenience only and are not intended to define, limit or construe the contents of the provisions contained
17.6 Amendment. Notwithstanding anything herein to the contrary, Company may, at any time, for any
reason, in its sole and absolute discretion make changes to this Agreement and any changes to this Agreement
will become effective upon Client’s execution of a new or additional Order Form in which the new terms of this
Agreement will be incorporated.
17.7 Attorney’s Fees. If either party brings legal action to enforce its rights under this Agreement and/or any
Order Form, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation
reasonable attorneys' fees) incurred in connection with the action.
17.8 Entire Agreement. This Agreement (including the terms and conditions set forth herein, all Order
parties and supersedes all previous oral and written communications by the parties, concerning the subject matter
of the agreement between the parties. Standard or printed terms contained in any purchase order or sales
confirmation are deemed rejected and shall be void and shall not be incorporated herein unless expressly stated
therein and signed by the parties.
17.9 Dispute Resolution. Except with respect to breach of Company’s Confidential Information, intellectual
property infringement and/or any lawsuit solely for injunctive relief to stop unauthorized use and/or abuse of the
Services, if a dispute arises between the parties relating to the interpretation and/or performance of this
Agreement or the grounds for the termination hereof, the parties agree to hold a meeting within fifteen (15) days
of written request by either party, attended by individuals with decision-making authority, regarding the dispute,
to attempt in good faith to negotiate a resolution of the dispute prior to pursuing other available remedies. If,
within fifteen (15) days after such meeting, the parties have not succeeded in resolving the dispute, then the
parties agree to resolve any claims related to this Agreement through final and binding arbitration in accordance
with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration
Association. All information relating to and/or disclosed by any party in connection with the arbitration of any
disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business
information and shall not be disclosed without prior written authorization of the disclosing party. In the event
the agreement to arbitrate is found not to apply to a claim, the parties agree that any judicial proceeding (other
than small claims actions) will be brought pursuant to Section 15 herein.
17.10 Exclusivity. Client acknowledges and agrees that the Services provided by Company are not exclusive
to Client and that Company may provide such Services to other persons and/or entities.