Terms of Services
This SYNDICATED COMMUNICATIONS AGREEMENT (SCA) (the “Agreement or SCA”) is made between IBN (InvestorBrandNetwork) located at 8033 Sunset Blvd Suite 1037, Los Angeles, CA 90046 and Client Partner.
Client Partner hereby subscribes to and IBN agrees to provide services to Client Partner (as hereinafter defined) in accordance with the terms and subject to the conditions set forth in this Agreement, including those set forth below.
1.1. Definitions. The defined terms in the introductory paragraphs, the defined terms set forth below, and the defined terms in the remainder of this Agreement, each has the meaning so given to it whenever used throughout this Agreement:
1.1.1 “Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.
1.1.2 “Beta Services” means services or functionality that may be made available to Client to try at Client’s option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
1.1.3 “Client Information” means information and data made available by the Client to the Service Provider under this Agreement and/or in connection with a Service Agreement, to the extent not made publicly available in connection with the Services and/or to the extent not already publicly available at the time of disclosure to the Service Provider or thereafter.
1.1.4 “Content” means information and materials disclosed on Service Provider’s or its Affiliate’s websites.
1.1.5 “Control,” “controlled by” and “under common control with” mean, with respect to a specified Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of stock or other securities, as executor, by contract or otherwise.
1.1.6 “Effective Date” means Signed date of the IBN SCA.
1.1.7 “Malicious Code” means software or computer code designed to perform an unauthorized function on, or permit unauthorized access to, an information system and cause harm to such system, including without limitation, computer viruses, trojan horses, worms, and time or logic bombs.
1.1.8 “Person” means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity, including a governmental authority.
1.1.9 “Services” means the products and services that are ordered by Client from time to time under a Service Agreement and made available online by Service Provider, including associated offline components, as described in the Documentation.
1.1.10 “Service Agreement” means an ordering document or documents specifying the Services to be provided hereunder and the costs of such Services that are entered into between Client and Service Provider or any of Service Provider’s Affiliates, including any supplements thereto, to the extent executed by Client and Service Provider or an Affiliate of Service Provider, copies of which shall be included on Exhibit A hereto, and shall become a part of this Agreement.
1.1.11 “Taxes” means all taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever in connection with this Agreement, any Service Agreement or the Fees.
1.1.12 “Purchased Services” means Services that Client or a Client’s Affiliate purchase under a Service Agreement, as distinguished from those provided pursuant to a trial.
ENGAGEMENT; FEE; SERVICES
2.1. Services. Pursuant to the terms and conditions hereinafter set forth, the Client hereby engages Service Provider, and Service Provider hereby accepts such engagement, to provide Services during the Term of this Agreement.
2.2. Fees. Client will pay all fees, expenses and amounts specified in Service Agreements (collectively, “Fee”). Except as otherwise specified herein or in an Service Agreement, (i) fees are based on Services and Content 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, unless otherwise agreed in writing. The Fee shall be paid in the method, and at the times, set forth in the Service Agreement.
2.3. Invoicing and Payment. Client will provide Service Provider with valid and updated credit card information. Client authorizes Service Provider to charge such credit card for all Purchased Services listed in the Service Agreement for the initial subscription term and any renewal subscription term(s) as set forth in Section 4.5 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Service Agreement. If the Service Agreement specifies that payment will be by a method other than a credit card, Service Provider will invoice Client in advance and otherwise in accordance with the relevant Service Agreement. Unless otherwise stated in the Service Agreement, invoiced charges are due upon receipt from the invoice date. Client is responsible for providing complete and accurate billing and contact information to Service Provider and notifying Service Provider of any changes to such information.
2.4. Overdue Charges. If any invoiced amount is not received by Service Provider by the due date, then without limiting Service Provider’s rights or remedies, (a) at the option of Service Provider, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is less and/or (b) Service Provider may condition future subscription renewals and Service Agreements on payment terms shorter than those specified in Section 2.3 (Invoicing and Payment).
2.5. Suspension of Service and Acceleration. If any amount owed under this SCA or any other agreement of our services is thirty (30) or more days overdue. You have authorized Us to charge to Your credit card and or ACH), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with this Agreement, before suspending services to You. Any overdue payments not received thirty (30) days from this notice will be assigned to Commercial Collections Organization via ABC-Amega (ABC) (Certified by CLLA and Endorsed by IACC | Certified by CCA of A | CRF Platinum Partner). ABC will be adding 20% collections to ALL overdue account turned over to their firm. ABC will provide all further collections efforts as well as possibly reporting all delinquent accounts to Experian, Equifax, Dun & Bradstreet and or TransUnion.
2.6. Payment Disputes. Service Provider will not exercise its rights under Section 2.4 (Overdue Charges) or Section 2.5 (Suspension of Service and Acceleration) above if Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute, each as determined in Service Provider’s discretion.
2.7. Taxes. Service Provider’s Fees do not include any Taxes. Client is responsible for paying all Taxes associated with its purchases hereunder. If Client has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 2.7, Service Provider will invoice Client and Client will pay that amount unless Client provides Service Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.
2.8. Future Functionality. Client agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Service Provider regarding future functionality or features.
2.9. Ownership of Materials. Service Provider owns and shall retain all ownership and proprietary rights relating to the materials, information, posting and documentation posted on its websites and the websites of its Affiliates (collectively “Service Provider Materials”). This Agreement does not transfer, sell, assign, or entitle Client to any Service Provider Materials.
3.1. Independent Contractor. It is the express intention of the Client and Service Provider that Service Provider perform the Services as an independent contractor to the Client. Nothing in this Agreement shall in any way be construed to constitute Service Provider as an agent or employee of the Client. Without limiting the generality of the foregoing, Service Provider is not authorized to bind the Client to any liability or obligation or to represent that Service Provider has any such authority in connection with the Services. Service Provider acknowledges and agrees that Service Provider is obligated to report as income all compensation received by Service Provider pursuant to this Agreement. Service Provider agrees to and acknowledges the obligation to pay all taxes on such income.
TERM AND TERMINATION
4.1. Term. Service Provider (IBN) shall begin providing Services hereunder on the Effective Date and this Agreement to the extent set forth in any Service Agreement, and this Agreement shall remain in effect until the earlier of (a) the date which the applicable Services are to terminate (i.e., the end of any subscription term) set forth in a Service Agreement; and (b) until terminated as provided in Section 4.2, below (the “Term”).
The SYNDICATED COMMUNICATIONS AGREEMENT (SCA) Core Term via IBN Core Solutions will include continued coverage for a minimum of 365 days unless specifically specified in SCA and after the initial Term the SCA will renew Quarter to Quarter unless canceled in writing by Client Partner as described in Section 4.5.
4.2. Termination. The obligations of the Parties hereunder, except as set forth in Section 4.8, shall terminate on earlier of the (a) the end of the Term as described in Section 4.1(a), above; (b) the date this Agreement is mutually terminated by the Parties; (c) the date this Agreement is terminated by a non-breaching Party with notice in writing to the Breaching Party, after the end of the applicable Cure Period (defined below), in the event such applicable Breach (defined below) is not cured during such applicable Cure Period, in the event a party (1) fails to fulfill in a timely and proper manner any of its obligations under this Agreement, or (2) violates any of the material covenants, material agreements, or material stipulations of this Agreement ((1) and (2), each a “Breach”, and the non-fulfilling/breaching Party, the “Breaching Party”); provided that the non-Breaching Party shall provide the Breaching Party written notice of such Breach, and such non-Breaching Party shall have thirty (30) days to cure such Breach (“Cure Period”); and (d) the date this Agreement is terminated by either Party in the event either Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.3. Termination Date. “Termination Date” shall mean the date on which Service Provider’s engagement with the Client hereunder is actually terminated.
4.4. Rights Upon Termination. Upon termination of the Term, the Service Provider shall be paid any and all fees, expenses and other amounts accrued and due through the Termination Date, which shall represent the sole compensation and fees due to Service Provider, other than the obligations of the Client which shall survive the termination of this Agreement pursuant to their terms, as described in Section 4.8.
4.5. Term of Purchased Subscription. The term of each subscription shall be as specified in the applicable Service Agreement. Except as otherwise specified in an Service Agreement, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either Party gives the other notice of non-renewal at least 90 days before the end of the relevant subscription term. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless Service Provider has given Client written notice of a pricing increase at least 30 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
4.6. Refund or Payment upon Termination. If Client terminates this Agreement in accordance with Section 4.1 (Termination), Service Provider will not refund Client for any prepaid monthly fees covering the remainder of the term of all Service Agreements after the Termination Date. If Service Provider terminates this Agreement in accordance with Section 4.1 (Termination), Client will pay any unpaid fees covering the remainder of the term of all Service Agreements. In no event will termination relieve Client of Client’s obligation to pay any fees payable to Service Provider for the period prior to the Date of Termination. If this Agreement is a renewal of or replacement of a prior agreement, Client agrees that its right to receive any unused funds, postage or other deposits from the prior agreement are waived, unless specifically addressed in this Agreement.
4.7. Client Data Portability and Deletion. Upon request by Client made within 30 days after the Termination Date or expiration of this Agreement, Service Provider will make Client’s data available to Client for export or download as provided in the Documentation. After that 30-day period, Service Provider will have no obligation to maintain, store, keep or provide Client data, and will thereafter have the right to delete or destroy all copies of Client’s data in Service Provider’s systems or otherwise in Service Provider’s possession or control as provided in the Documentation, unless legally prohibited.
4.8. Force Majeure. Except for Client’s obligation to pay for Services rendered, neither Party will be responsible or in any way liable, and neither Party will have any termination or other rights, arising out of or relating to any failure by the other Party to perform or any hindrance in the performance of its obligations under this Agreement if such failure or hindrance is caused by events or circumstances beyond such Party’s control, including acts of God, war, third-party labor strike, terrorist act, fire, flood, earthquake, any law, order, regulation or other action of any governing authority or agency thereof, or failure of the Internet.
4.9. Survival After Termination. Sections 2.2, 2.4, 2.7, 3.2, 4.4, 4.6, 4.7, 4.8, 5.3 and 6.3 and ARTICLE VIII, ARTICLE IX and ARTICLE X, Sections 11.2, 11.3, 11.4, 11.6, 11.9, 11.10 and 11.13, shall survive the termination of this Agreement and continue to bind the Parties pursuant to their terms.
REPRESENTATIONS OF SERVICE PROVIDER
5.1. Dissemination of Materials. The Contractor shall not disseminate or spread false or misleading information relating to the Client to any Person. The Contractor shall disseminate any information which is specifically authorized in writing by the Client.
5.2. Provision of Services. Service Provider will (a) make the Services and Content available to Client pursuant to this Agreement and the applicable Service Agreements, (b) provide Service Provider’s standard support for the Purchased Services to Client at no additional charge, and/or upgraded support if purchased, and (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Service Provider shall give notice and which Service Provider shall schedule to the extent practicable during the weekend hours between 11:00 p.m. Friday and 5:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Service Provider’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Service Provider’s employees), Internet service provider failure or delay, or denial of service attack.
5.3. Protection of data. Service Provider will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client’s data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to reasonably prevent access, use, modification or disclosure of Client’s data by Service Provider’s personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 9.3 Compelled Disclosure) below, or (c) as Client expressly permits in writing.
5.4. Beta Services. From time to time, Service Provider may invite Client to try Beta Services at no charge. Client may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available. Service Provider may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Service Provider will have no liability for any harm or damage arising out of or in connection with a Beta Service.
5.5. Personnel. Service Provider will be responsible for the performance of its personnel (including its contractors) and their compliance with its obligations under this Agreement, except as otherwise specified herein.
5.6. Warranties. The Service Provider warrants that (a) this Agreement, the Service Agreements and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Client’s Data, (b) the Service Provider will not materially decrease the overall security of the Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) the Service Provider will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not intentionally introduce Malicious Code into the Client’s systems. For any breach of an above warranty, the Client’s exclusive remedies are those described in Section 4.1 (Termination) and Section 4.6 (Refund or Payment upon Termination).
REPRESENTATIONS OF THE CLIENT
6.1. Client Confirmation. Client confirms that past performance of profiled securities is not indicative of future results. Companies profiled on Service Provider’s and its Affiliate’s sites may lack an active trading market for their securities and investing in securities that lack an active trading market or trade on certain media, platforms and markets are deemed highly speculative and carry a high degree of risk.
6.2. Service Provider Not Broker-Dealer. Client confirms and acknowledges that Service Provider is not and does not hold itself out to be an investment adviser or broker-dealer and is not required to be registered as such. Neither Service Provider nor its Affiliates offer personalized investment advice or broker-dealer, finder or investment advisor services. Service Provider owes Client no fiduciary or similar obligations hereunder or otherwise.
6.3. Payment of Fees. Client agrees to promptly pay all fees and expenses due to Service Provider hereunder.
6.4. Disclosure of Information. The Client shall make available to the Contractor such information and data and shall permit the Contractor to have access to such documents and materials as are reasonably necessary to enable Contractor to perform the Services provided for under this Agreement. Client hereby acknowledges that Service Provider and its Affiliates will rely upon the accuracy of all information provided by Client or its representatives to it. Client recognizes and confirms that, Service Provider and in performing the Services, (i) will use and rely on data, material and other information furnished to Service Provider by Client, and (ii) may rely upon such data, material and other information without any independent investigation or appraisal to verify its accuracy, completeness or veracity, except to the extent Service Provider has actual knowledge to the contrary. All information provided by Client to Service Provider or its Affiliates will (i) be true, correct and complete in all material respects, at the time provided, (ii) not contain any untrue statement of a material fact, and (iii) will not omit to state a material fact necessary in order to make the information contained herein or therein not misleading or incomplete. If Client ever becomes aware of any misstatements or incorrect information in any of the information provided to Service Provider or its Affiliates, it shall immediately notify the Service Provider of such in writing. Client assumes full and complete responsibility and liability for the financial and other information furnished to Service Provider and its Affiliates under this Agreement and shall indemnify and hold harmless Service Provider and its Affiliates from and against any demands, claims, or liability relating thereto.
6.5. Non-Exclusivity. The Service Provider shall devote such of its time and effort as may be necessary to discharge its duties hereunder. The Client acknowledges that the Service Provider engages in other business activities, and that it will continue such activities during the term of this Agreement. The Service Provider shall not be restricted from engaging in other business activities during the term of this Agreement. Further, the Client acknowledges that the Services to be provided by the Service Provider hereunder are to be provided on a non-exclusive basis such that the Service Provider shall be permitted to perform any one or more of the Services to any other parties.
MUTUAL REPRESENTATIONS, COVENANTS AND WARRANTIES OF THE PARTIES
7.1. Power and Authority. The Parties have all requisite power and authority, corporate or otherwise, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby. The Parties have duly and validly executed and delivered this Agreement and will, on or prior to the consummation of the transactions contemplated herein, execute, such other documents as may be required hereunder and, assuming the due authorization, execution and delivery of this Agreement by the Parties hereto and thereto, this Agreement constitutes, the legal, valid and binding obligation of the Parties enforceable against each Party in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the Parties rights generally and general equitable principles.
7.2. Execution and Delivery. The execution and delivery by the Parties of this Agreement and the consummation of the transactions contemplated hereby and thereby do not and shall not, by the lapse of time, the giving of notice or otherwise: (a) constitute a violation of any law; or (b) constitute a breach or violation of any provision contained in the Articles of Incorporation or Bylaws, or such other document(s) regarding organization and/or management of the Parties, if applicable; or (c) constitute a breach of any provision contained in, or a default under, any governmental approval, any writ, injunction, order, judgment or decree of any governmental authority or any contract to which the Parties are bound or affected.
7.3. Authority of Entities. Any individual executing this Agreement on behalf of an entity has authority to act on behalf of such entity and has been duly and properly authorized to sign this Agreement on behalf of such entity.
LIMITATION OF LIABILITY; DISCLAIMERS
8.1. Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CLIENT HEREUNDER TO SERVICE PROVIDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT TO SERVICE PROVIDER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER ARTICLE II (ENGAGEMENT; FEE; SERVICES).
8.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT, OR OTHERWISE, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. THE SERVICE PROVIDER DOES NOT WARRANT THAT THE SERVICES PROVIDED HEREUNDER WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE AND ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE” BASIS.
9.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Client’s Confidential Information includes its Client Information; the Service Provider’s Confidential Information includes the Services and Content; and Confidential Information of each Party includes the terms and conditions of this Agreement and all Service Agreements (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such Party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
9.2. Protection of Confidential Information. The Receiving Party agrees to (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (ii) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither Party will disclose the terms of this Agreement or any Service Agreement to any third party other than its Affiliates, legal counsel and accountants without the other Party’s prior written consent, provided that a Party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 9.2.
9.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.4. No Use of Marks. Neither Client nor its Affiliates shall, in any manner, reference Service Provider, its trade names, trademarks, service marks or any other indicia of origin, or indicate that its products or services are in any way sponsored, approved or endorsed by the Service Provider, without the Service Provider’s prior written approval.
10.1. The Client agrees to fully indemnify, defend, and hold the Service Provider and each of its current, former and future, officers, directors, owners, employees, agents, affiliates, and future assignees or acquirers and each of their Affiliates (collectively, the “Indemnified Parties”), whether or not caused by or arising, in whole or in part, out of the comparative, contributory, or sole negligence of such Indemnified Party, against any and all claims, actions, demands, losses or damages, including attorneys’ fees, relating in any way to (a) Client’s Information, data, content and/or any information, provided to the Service Provider or an Affiliate of Service Provider by the Client for use in the Services, whether hosted on Client’s site or the Service Provider’s or any of Service Provider’s Affiliates, or otherwise; (b) Client’s representations or Client’s products/services marketed, introduced or mentioned by Service Provider or an Affiliate of Service Provider on its websites or publications, or those of its partners, or otherwise; (c) any breach or violation of any covenants, representations, warranties or agreements of Client under this Agreement; and (d) any failure of Client to comply with applicable rules, laws or statutes applicable to it. Client further acknowledges there are no refunds of any sort or kind in cash and/or in securities and that the Services are related to general marketing and advertising services only. Client also acknowledges no assurances have been made and holds no expectation of a response or reaction based on the services performed by Service Provider. Client indemnification will survive the completion or termination of this Agreement. Client will be responsible for advising the Service Provider of any information or facts that would affect the accuracy of any prior information or data provided to Service Provider or its Affiliates by Client, as well as information publicly disseminated or furnished to the Service Provider.
10.2. Recognizing that transactions of the type contemplated in this Agreement sometimes result in litigation and that the role of the Service Provider is as public relations advisory and to offer a communications portal, the Client further agrees to advance costs and fees to, and indemnify and hold harmless the Indemnified Parties against any and all loss, charge, claim, damage, expense, penalty and liability whatsoever, including, but not limited to, all attorneys’ fees and expenses (hereinafter a “Claim” or “Claims”), related to or arising in any manner out of, based upon, or in connection with (i) any untrue statement or alleged untrue statement of a material fact or information made by the Client or any omission or alleged omission of the Client to state a material fact required to be stated therein or necessary to make the statements therein not misleading, in any statements, materials, information, documents, reports, press releases or oral disclosures made to the Service Provider or any Affiliate of Service Provider, or (ii) any transaction, proposal or any other matter (items (i) and (ii) being hereinafter referred to as a “Matter” or “Matters”) contemplated by this Agreement or the Services, and will promptly advance fees to any of the affected Indemnified Parties in the amount of three times the face amount of any written agreement between the Client and any such Indemnified Parties and reimburse the Indemnified Parties for all expenses (including all fees and expenses of legal counsel incurred by the Service Provider and the Indemnified Parties) as incurred in connection with the investigation of, preparation for or defense of any pending or threatened Claim related to or arising in any manner out of any Matter, or any action or proceeding arising therefrom (collectively, “Proceedings”), regardless of whether such Indemnified Party is a formal party to any such Proceeding. Notwithstanding the foregoing, the Client shall not be liable in respect of any Claims that a court of competent jurisdiction has judicially determined by final judgment (and the time to appeal has expired or the last right of appeal has been denied) which resulted solely or in part from the gross negligence or willful misconduct of an Indemnified Party or the violation of any securities laws or regulations by an Indemnified Party. The Client further agrees that it will not, without the prior written consent of the Service Provider, settle, compromise or consent to the entry of any judgment in any pending or threatened proceeding in respect of which the Service Provider and any Indemnified Party may seek indemnification hereunder (regardless of whether the Service Provider or any Indemnified Party is an actual or potential party to such Proceeding), unless such settlement, compromise or consent includes an unconditional release of the Service Provider and each other Indemnified Party hereunder from all liability arising out of such proceeding. The advances to be made hereunder shall be paid by the Client to Indemnified Party within fifteen (15) days following delivery of a written request therefor.
10.3. Through counsel of its own choosing, the Indemnified Party has the right to participate in (but not control the defense of) any proceeding in which it is being indemnified under this Agreement, but in such event the Indemnified Party will be solely responsible for paying the legal fees and expenses for its own counsel. The Client will, however, continue to be solely responsible for all other expenses relating to the action, including the legal fees and expenses of the counsel it selects to defend the claims.
10.4. In order to provide for just and equitable contribution in any case in which (i) an Indemnified Party is entitled to indemnification hereunder, but it is judicially determined by the entry of a final judgment decree by a court of competent jurisdiction and the time to appeal has expired or the last right of appeal has been denied) that such indemnification may not be enforced in such case, or (ii) contribution may be required by the Client in circumstances for which an Indemnified Party is otherwise entitled to indemnification under this Agreement, then, and in each such case, the Client shall contribute to the aggregate losses, Claims, damages and/or liabilities in an amount equal to the amount for which indemnification was held unavailable. Notwithstanding the foregoing, Service Provider shall not be obligated to contribute any amount hereunder that exceeds the amount of fees previously received by Service Provider pursuant to this Agreement.
10.5. The Client further agrees that no Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to the Client for or in connection with Service Provider’s engagement hereunder or Services provided hereunder, except for Claims that a court of competent jurisdiction shall have determined by final judgment (and the time to appeal has expired or the last right of appeal has been denied) resulted solely or in part from the gross negligence or willful misconduct of such Indemnified Party or the violation of any securities laws or regulations by an Indemnified Party. The indemnity, reimbursement and contribution obligations of the Client set forth herein shall be in addition to any liability which the Client may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Client or an Indemnified Party.
10.6. The indemnity, reimbursement and contribution provisions set forth herein shall remain operative and in full force and effect regardless of (i) any withdrawal, termination or consummation of or failure to initiate or consummate any Matter referred to herein, (ii) any investigation made by or on behalf of any party hereto or any Affiliate of any Party hereto, (iii) any termination or the completion or expiration of this Agreement, and (iv) regardless of whether the Service Provider shall or shall not be called upon to render any public relations advice, whether formal or informal, in the course of such engagement.
11.1. Notices. All notices, approvals, consents, requests, and other communications hereunder shall be in writing and shall be delivered (i) by personal delivery, or (ii) by national overnight courier service, or (iii) by certified or registered mail, return receipt requested, or (iv) via facsimile transmission, with confirmed receipt or (v) via email. Notice shall be effective upon receipt except for notice via fax (as discussed above). Such notices shall be sent to the applicable Party or Parties at the address specified on the signature page of this Agreement, as such may be changed with at least 10 business days prior written notice.
11.2. Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective legal representatives, heirs, successors and permitted assigns. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (including all Service Agreements), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other Party, then such other Party may terminate this Agreement immediately upon written notice. In the event of such a termination, the Service Provider will not refund the Client any prepaid fees covering the remainder of the term of all subscriptions.
11.3. Severability. If any provision of this Agreement, or portion thereof, shall be held invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall attach only to such provision or portion thereof, and shall not in any manner affect or render invalid or unenforceable any other provision of this Agreement or portion thereof, and this Agreement shall be carried out as if any such invalid or unenforceable provision or portion thereof were not contained herein. In addition, any such invalid or unenforceable provision or portion thereof shall be deemed, without further action on the part of the Parties hereto, modified, amended or limited to the extent necessary to render the same valid and enforceable.
11.4. Waiver. No waiver by a Party of a breach or default hereunder by the other Party shall be considered valid, unless expressed in a writing signed by such first Party, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or any other nature.
11.5. Entire Agreement. This Agreement and the Service Agreements set forth the entire agreement between the Parties with respect to the subject matter hereof, and supersede any and all prior agreements between the Client and Service Provider, whether written or oral, relating to any or all matters covered by and contained or otherwise dealt with in this Agreement. In entering into this Agreement, neither Party has relied upon any statement, representation, warranty or agreement of the other Party except for those expressly contained in this Agreement. This Agreement does not constitute a commitment of the Client with regard to Service Provider’s engagement, express or implied, other than to the extent expressly provided for herein. In the event of a conflict between the terms of this Agreement and any Service Agreement, the terms of this Agreement shall govern.
11.6. Amendment. No modification, change or amendment of this Agreement or any of its provisions shall be valid, unless in a writing signed by the Parties.
11.7. Captions. The captions, headings and titles of the sections of this Agreement are inserted merely for convenience and ease of reference and shall not affect or modify the meaning of any of the terms, covenants or conditions of this Agreement.
11.8. No Third Party Beneficiaries. Except for Indemnified Parties, nothing in this Agreement shall confer any rights upon any Person which is not a Party or a successor or permitted assignee of a Party to this Agreement.
11.9. Governing Law and Personal Jurisdiction. This Agreement, and all of the rights and obligations of the Parties in connection with the relationship established hereby, shall be governed by and construed in accordance with the substantive laws of the State of Texas without giving effect to principles relating to conflicts of law. Both Parties agree that the state and federal courts situated within Travis County, Texas shall have exclusive jurisdiction over any dispute concerning this Agreement and both Parties waive any objection that they may have to personal jurisdiction or venue in those courts.
11.10. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.11. No Presumption from Drafting. This Agreement has been negotiated at arm’s-length between persons knowledgeable in the matters set forth within this Agreement. Accordingly, given that all Parties have had the opportunity to draft, review and/or edit the language of this Agreement, no presumption for or against any Party arising out of drafting all or any part of this Agreement will be applied in any action relating to, connected with or involving this Agreement. In particular, any rule of law, legal decisions, or common law principles of similar effect that would require interpretation of any ambiguities in this Agreement against the Party that has drafted it, is of no application and is hereby expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to affect the intentions of the Parties.
11.12. Review and Construction of Documents. Each Party herein expressly represents and warrants to all other Parties hereto that (a) before executing this Agreement, said Party has fully informed itself of the terms, contents, conditions and effects of this Agreement; (b) said Party has relied solely and completely upon its own judgment in executing this Agreement; (c) said Party has had the opportunity to seek and has obtained the advice of its own legal, tax and business advisors before executing this Agreement; (d) said Party has acted voluntarily and of its own free will in executing this Agreement; and (e) this Agreement is the result of arm’s length negotiations conducted by and among the Parties and their respective counsel.
11.13. Interpretation. When used in this Agreement, unless a contrary intention appears: (i) a term has the meaning assigned to it; (ii) “or” is not exclusive; (iii) “including” means including without limitation; (iv) words in the singular include the plural and words in the plural include the singular; (v) any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; (vi) the words “hereof”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision hereof; (vii) references contained herein to Article, Section, Schedule and Exhibit, as applicable, are references to Articles, Sections, Schedules and Exhibits in this Agreement unless otherwise specified; and (viii) references to “writing” include printing, typing, lithography and other means of reproducing words in a visible form, including, but not limited to email. The Exhibits hereto are integral parts of this Agreement and shall be read in connection with this Agreement.
11.14. Electronic Signatures and Counterparts. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any Party, each other Party shall re execute the original form of this Agreement and deliver such form to all other Parties. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.