General Terms & Conditions
1. General. This Agreement, including the Service Specific Addendum attached hereto as Schedule A, sets forth the general terms under which the Services are provided by Company. Additional terms and conditions specific to a particular Service may apply and any such terms and conditions are set forth in the Service Specific Addendum applicable to such Service.
2. Grant of Rights.
(a) License. Company hereby grants to Client a non-exclusive, non-transferrable(except in compliance with Section 13) right during the Term of this Agreement to access and use the Services, for Client’s internal business purposes, and for no other purposes whatsoever,subject to the terms and conditions of this Agreement and the additional terms and conditions, if any, set forth on Schedule A. Unless otherwise agreed in writing by Company, Client shall use the Services solely for the purposes described on the applicable Service Specific Addendum and not for any time-sharing or service bureau purposes, or otherwise for the benefit of any third party.
(b) Required Third Party Services. Attached hereto as Schedule B is a list and description of third-party products, if any, required to be obtained or implemented by Client as part of, or in order to enable Client to fully utilize, the Services (the “Required Third-Party Products”). In addition, Client may utilize the optional third-party products and services described on Schedule B as part of the Services (the “Optional Third-Party Products”). The list of Required Third-Party Products and Optional Third-Party Products may be amended by Company from time to time. All Required Third-Party Products and Optional Third-Party Products shall be obtained by Client, at Client’s sole cost and expense, and shall be subject to all terms and conditions of the applicable third-party provider.
(c) Changes. Company reserves the right, in its sole discretion, to make any changes to the Services that it deems necessary or useful to (i) comply with applicable law, or (ii) enhance the quality or delivery of the Services, the competitive strength of, or market for, the Services, or the efficiency or performance of the Services.
3. Fees; Payment.
(a) Fee Schedule. Client shall pay Company the fees for the Services (the “Fees”) set forth on the fee schedule attached hereto as Schedule C (the “Fee Schedule”). Fees for any Services not set forth on the Fee Schedule shall be effective upon mutual agreement in writing by the Parties.
(b) Invoices. Except as may otherwise be provided on the Fee Schedule, Company shall invoice Client for all recurring Fees in accordance with the Fee Schedule on a monthly basis, in arrears. Non-recurring Fees, if any, shall be invoiced as provided on the Fee Schedule. Except as otherwise specified in the Fee Schedule, all invoices shall be paid by Client within thirty (30) days of the date such invoice was received by Client.
(c) Late Payments. Any payments due hereunder will accrue interest at the rate of 1.5% per month or, if less, the maximum amount allowed by law, if not paid when due, until paid in full. In the event that Client’s account is more than forty-five (45) days delinquent, Company may, without limiting any other remedy available to it, suspend performance of the Services and/or withhold settlement of revenue collected, in whole or in part, until payment is received and Client’s account is current.
(d) Taxes. All Fees are exclusive of taxes. Company shall separately state on its invoices hereunder all taxes applicable to the performance of its obligations under this Agreement. Client is solely responsible for paying all sales, use,value added, excise and/or personal property taxes related to its use of the Services or any equipment leased by Company to Client, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on amounts payable by Client hereunder, regardless of the jurisdiction that imposes such taxes, other than taxes imposed on the Company’s income.
4. Client Point Person. If required by the other Party, a Party shall identify a person to serve as the other Party’s primary point of contact for day-to-day communications, approvals,consultation, and decision-making regarding this Agreement, including the management of any implementation, data migration, and training processes to be provided under this Agreement. The Party shall ensure that such point person has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The Party shall use commercially reasonable efforts to maintain the same point person in place throughout the Term. If the Party’s designated point person ceases to be employed by the Party or the Party otherwise wishes to replace such point person, the Party shall promptly notify the other Party of such change.
5. Termination.
(a) Termination by Client. Client may terminate this Agreement, effective immediately upon written notice to Company if Company breaches any of its obligations under Section 6 or Section 9.
(b) Termination by Company. In addition to and without limiting any other rights or remedies Company may have, Company may terminate this Agreement, effective immediately upon written notice to Client, if (i) Client fails to pay any amount when due hereunder, and such failure continues for more than forty-five (45) days after Company’s delivery of written notice thereof, or (ii) Client breaches any of its obligations under Section 6 or Section 9.
(c) Termination by Either Party for Material Breach. Either Party may terminate this Agreement,effective immediately upon written notice to the other Party, if the other Party materially breaches any other provision of this Agreement and such breach(i) is incapable of cure; or (ii) being capable of cure, remains uncured for forty-five (45) days after the non-breaching Party provides the breaching Party with written notice of such breach, provided that if the breaching Party has taken reasonable steps toward a cure during such cure period, the cure period is extended by a reasonable additional period not to exceed thirty (30) days to permit the breaching Party to complete the cure.
(d) Termination by Either Party for Bankruptcy. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law which is not discharged or dismissed within sixty (60) days; (iii) makes or seeks to make a general assignment for the benefit of creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(e) Effect of Termination. Upon the expiration or termination of this Agreement, Client shall immediately cease all use of the Services and Company shall have no further obligation to provide the Services except as otherwise set forth herein. The termination of this Agreement shall not affect Client’s obligation to pay all Fees that may have become due before the effective date of such termination. Any termination of this Agreement shall be without prejudice to the rights or remedies of either Party to recover such damages as may be due it by reason of the other Party’s breach of this Agreement, and terminating this Agreement shall not be a condition precedent to the recovery of damages for breach of this Agreement.
6. Intellectual Property.
(a) Company Proprietary Rights. Client acknowledges and agrees that Company is the sole and exclusive owner of, or has the right to license, the Services and the Software (including, without limitation, all source code and object code), systems, database content and related documentation, and all Intellectual Property Rights (as defined below) therein and/or related thereto (“Company Intellectual Property”) and that Company does not convey to Client any proprietary or other interest in or to the Company Intellectual Property other than the limited license rights expressly granted hereunder. Unless expressly approved by Company in writing, Client shall not copy, disclose, publish, transmit,distribute, perform, license, lease, display, or assign, transfer, sell, lend,sub-license, create derivative works of, or otherwise make available the Company Intellectual Property or copies thereof to third parties. Client will not, directly or indirectly, (i) reverse engineer, decompile,disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms comprising, or found at or through the Services or any software, documentation, or data related to the Services (the “Software”), (ii) remove any proprietary notices or labels from the Services or the Software, or (iii) modify, translate, or create derivative works based on the Services or the Software. For the purposes of this Agreement, “Intellectual Property Rights” shall mean, collectively: (i) patent rights; (ii) trademarks, service marks, trade names, brand names, certification marks, designs, logos and slogans, commercial symbols, trade dress and other indications of origin and general intangibles of like nature, the goodwill associated with the foregoing, and registrations in any domestic or foreign jurisdiction of, and applications in any such jurisdiction to register, the foregoing, including any extension, modification, or renewal of any such registration or application; (iii) research and development data, formulae,ideas, know-how, research, analysis, experiments, proprietary processes and procedures, algorithms, models and methodologies, technical information,technologies, techniques, innovations, creations, concepts, designs, industrial designs, procedures, trade secrets and confidential information, and rights in any domestic or foreign jurisdiction to limit the use or disclosure thereof by any person; (iv) writings and other works of authorship of any type (including patterns, drawings, data, the content contained on any web site), whether copyrightable or not, in any such jurisdiction, and any copyrights and moral rights therein; (v) computer software (whether in source code or object code form), databases, compilations, and data; and (vi) registrations or applications for registration of copyrights in any domestic or foreign jurisdiction, and any renewals or extensions thereof; (vii) any improvements to, or inventions derived from, the foregoing; and (viii) any similar intellectual property or proprietary rights.
(b) Client License to Company. Client hereby grants to Company anon-exclusive, royalty-free license to reproduce, distribute, and use publicly Client’s trademarks, trade names, service marks, and logos (“Client Marks”) for the purpose of placing same on Company’s website, in press releases issued by Company, as well as in other marketing and advertising materials. Company shall not alter, modify, dilute, or otherwise misuse any Client Mark, or bring it into disrepute. Company agrees that all goodwill associated with each Client Mark belongs exclusively to Client and that Company’s use of each Client Markshall inure to the benefit of Client. Upon termination or expiration of this Agreement, all rights granted to Company under this Subsection 6(b) shall automatically terminate and Company shall immediately cease and desist from all further use of the Client Marks.
(c) Logo and Trademark Display; License to Client. Company hereby grants to Client a non-exclusive, royalty-free license to reproduce, distribute, and use publicly the Company’s trademarks, trade names, service marks, and logos (the “Marks”) during the Term for the purpose set forth in this Subsection 6(c). Client [shall/may] display the Marks in Client’s printed materials and on its website during the Term and shall comply with Company’s usage guidelines with respect to such Marks (the “Usage Guidelines”). Client shall not alter, modify, dilute or otherwise misuse any Mark, or bring it into disrepute. Client agrees that all goodwill associated with each Mark belongs exclusively to Company and that Client’s use of each Mark shall inure to the benefit of Company. Upon termination or expiration of this Agreement, all rights granted to Client under this Subsection 6(c) shall automatically terminate and Client shall immediately cease and desist from all further use of the Marks.
7. Client Data; Data Processing Addendum.
(a) Personally identifiable information with respect to persons who purchased tickets to Client’s Events through Company and the Services or who otherwise interacted with the Services (such individual referred to as “Purchaser” and such data referred to as “Purchaser Data”) shall be considered Client Data. Client hereby grants Company a irrevocable, fully-paid-up, royalty free, sublicensable, transferable, assignable, worldwide license and right to use the Purchase Data for Company’s own, independent purposes, including, without limitation, for Company’s independent marketing purposes, internal benchmarking, and to make improvements to the Services. Company represents and warrants that it has provide all notices and obtained all consents from all Purchasers necessary for Company’s use of Purchaser Data as provided herein. Additionally, Client agrees to access, use, and disclose the Purchaser Data only in compliance with all applicable laws, rules, regulations, and administrative rulings and in accordance with Company’s Privacy Policies and Client’s own posted privacy policies. Company also requires that Client include in any email communications that Client may make based on the Purchaser Data a mechanism to provide the recipient with the right to opt-out from receiving further communications from Client and that Client honor such opt-out preferences. Notwithstanding anything to the contrary, Company will retain sole right in any other data that Company collects by any means under its own Privacy Policy, including, without limitation, such data that may be redundant to Purchaser Data.
(b) To the extent applicable to the use of the Services by Client, each of the Parties shall comply with the provisions set forth on Schedule D attached hereto (the “Data Processing Addendum”).
8. Warranties; Disclaimer; Remedies.
(a) Client Warranties. Client warrants that it will use the Services in compliance with the terms of this Agreement and with all applicable laws, rules, and regulations (including but not limited to laws, rules and regulations related to Intellectual Property Rights, spamming, privacy, consumer protection, obscenity or defamation).
(b) Company Warranties. The Company warrants that the Services shall materially conform to the functionality outlined in Schedule A. Additionally, Company warrants the Services will comply with all applicable laws, rules, and regulations (including but not limited to laws, rules, and regulations related to Intellectual Property Rights, spamming,privacy, consumer protection, obscenity, or defamation).
(c) Disclaimer by Company. USE OF THE SERVICES AND ANY RELIANCE BY CLIENT UPON THE SERVICES,INCLUDING ANY ACTION TAKEN BY CLIENT BECAUSE OF SUCH USE OR RELIANCE IS AT CLIENT’S SOLE RISK. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, ORBE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THESERVICES. THE SERVICES ARE PROVIDED “AS IS” AND, EXCEPT AS EXPRESSLY PROVIDED IN SUBSECTION 8(b), COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
(d) Client Content. Although Company has no obligation to monitor or pre-screen any content provided by Client (including, without limitation, text, links, photographs, or other graphics) or Client’s use of the Services, Company may do so and may remove any such contentor prohibit any use of the Services it believes may be (or is alleged to be) inviolation of Subsection 8(a) above. Company will advise Client in writing of any such removal.
9. Confidentiality.
(a) Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed to the other Party (“Receiving Party”), whether disclosed 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, including, without limitation, the terms and conditions of this Agreement (including pricing and other terms herein), the Client Data, Non-Public Personal Information (as defined below), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public, including general industry knowledge, 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) was independently developed by the Receiving Party without use of any Confidential Information or the breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose inconsistent with the terms or outside the scope of this Agreement, except with the Disclosing Party’s prior written consent.
(c) Protection. Each Party agrees to protect the confidentiality of the Confidential Information of the other Party in the same manner and degree that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
(d) Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prompt prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure or seek a protective order.
(e) Non-Public Personal Information. “Non-Public Personal Information” shall include,without limitation, any identifiable personal or financial information, such as names, addresses, telephone numbers, account numbers, and other similar information. To the extent Company has access to any Non-Public Personal Information, either directly or indirectly, Company acknowledges that such information shall be considered Confidential Information and treated in accordance with the provisions of this Section 9; provided, however, that Non-Public Personal Information shall not be subject to the exemptions set forth in Subsection 9(a) and shall remain confidential in all circumstances.
(f) Return of Confidential Information. Upon the expiration or termination of this Agreement, the Receiving Party shall return or, upon request of the Disclosing Party, as permitted by applicable law, destroy all copies of documents, papers, or other material that may contain or be derived from the Confidential Information of the Disclosing Party, that are in Receiving Party’s possession or control; except that, subject to the confidentiality provisions in this Section 9, Company shall be entitled to retain all records that relate to Client for purposes of tax and related regulatory and business purposes. The Receiving Party shall, if requested by the Disclosing Party, provide a certificate signed by the Receiving Party in form and substance satisfactory to the Disclosing Party, stating that all the Confidential Information has been returned or destroyed, as the case may be.
(g) Ownership. The Parties further acknowledge and agree that the Confidential Information shall remain the sole and exclusive property of the Disclosing Party and that the Receiving Party shall not acquire any right, license, title, or ownership interest therein solely by virtue of this Agreement.
10. Limitation of Liability.
(a) Limitations. EXCEPT AS SET FORTH IN SUBSECTION 10(b), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL,OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, OR LOSS INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY SHALL IN NO WAY BE LIABLE FOR CLIENT’S DAMAGES DUE TO RELIANCE UPON, USE OF, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, OR LOSS RESULTING FROM ANYSERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH THE USE OF THE SERVICES OR RESULTING FROM UNAUTHORIZED ACCESS TO, DELETION OR ALTERATION OF CLIENT’S TRANSMISSIONS OR DATA, OR FAILURE OF THE SERVICES TO STORE CLIENT’S TRANSMISSIONS OR DATA (PROVIDED THAT, SUCH UNAUTHORIZED ACCESS, DELETION,ALTERATION, OR FAILURE TO STORE IS NOT CAUSED BY THE ACTS OR OMISSIONS OF COMPANY), INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA,OR OTHER INTANGIBLE PROPERTY, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Exclusions. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OR EXCLUSION OF LIABILITY SHALL APPLY WITH RESPECT TO ANY CLAIMS BASED ON CONFIDENTIALITY, INDEMNIFICATION, OR A PARTY’S FRAUDULENT OR WILLFUL MISCONDUCT, OR WITH RESPECT TO ANY CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE.
11. Indemnification.
(a) Client Indemnification. Client, at its own expense, shall indemnify and hold harmless Company, its subsidiaries, affiliates, and assignees, and its and their respective partners, directors, officers, employees, members, managers, and agents, and defend any action brought against same, with respect to any third-party claim, demand, cause of action, investigation, debt, or liability, including attorneys’ fees, arising out of or relating to Client’s material breach of this Agreement.
(b) Company Indemnification. Company, at its own expense, shall indemnify and hold harmless Client, its subsidiaries, affiliates, and assignees, and their respective partners, directors, officers, employees, members, managers,and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt, or liability, including attorneys’ fees, to the extent that it is based upon a claim that the Company Intellectual Property provided directly by the Company hereunder misappropriates, infringes, or violates any patents, copyrights, trademarks, trade secrets, licenses, orother property rights of any third party; provided however that the foregoing indemnity shall not apply if the alleged infringement is attributable to the combination of the Services with any other product or service (other than any Required Third-Party Product) if the alleged infringement would not exist but for such combination, or if the Services are used by Client or its Clients outside the scope of this Agreement.
(c) Procedures. The indemnified party shall promptly notify the indemnifying party of any claim or action described in this Section 11 (although failure to do so will only relieve the indemnifying party of its obligations hereunder to the extent the indemnifying party was prejudiced thereby). The indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense of any such claim or action. The indemnifying party shall have full control over the defense and settlement of any such claim or action, subject to this Subsection 11(c). The indemnified party shall have the right, at its own expense, to participate in the defense of any such claim or action. The indemnifying party shall have total control over all negotiations for the settlement or compromise of a claim or action which such party is required to defend and/or handle under this Section 11, provided that such settlement or compromise is solely monetary innature. Without limiting the generality of the foregoing, the indemnifying party may not, without the indemnified party’s prior written consent, settle,compromise, or consent to the entry of any judgment in any such commenced or threatened claim or action, unless such settlement, compromise, or consent: (i)includes an unconditional release of the relevant indemnified party from all liability arising out of such commenced or threatened claim or action; and (ii)does not include a statement as to or an admission of fault, culpability, or failure to act by, or on behalf of, the relevant indemnified party or otherwise adversely affect the relevant indemnified party.
12. Force Majeure. Neither Party will be liable to the other for any Internet or telecommunications failure, computer virus,third-party interference, or other third-party software or hardware that may interrupt or delay access to the Services or cause other problems or losses,including the loss of Client content or Client Data. Neither Party will be liable to the other for any delay or failure to fulfill its obligations that results from an act of God, war, civil disturbance, court order, legislative or regulatory action, catastrophic weather condition, earthquake, failure or fluctuation in electrical power or other utility services, or any other cause beyond its reasonable control (each, a “Force Majeure Event”).
13. Assignment; Successors and Assigns. Neither Party shall assign,sub-license, sub-contract, charge, or otherwise encumber any of its rights or obligations under this Agreement without the prior written consent of the other Party except that the Company may assign this Agreement (i) to any entity that controls,is controlled by, or is under common control with the Company; or (ii) in a merger, acquisition, consolidation, reorganization, or other similar transaction including without limitation to any entity that acquires all or substantially all of the Company’s assets or equity. Any assignment in violation of this Section 13 shall be null and void. This Agreement shall be for the benefit of,and be binding upon, each Party and its successors and permitted assigns.
14. Digital Millennium Copyright Act of 1998. Client hereby agrees to comply with the provisions of the United States Digital Millennium Copyright Act of 1998. Client acknowledges and agrees that if Client becomes aware of any violation, or potential violation of any copyright rights,including Client’s, Client will promptly provide notice of such violation or potential violation to Company.
15. Governing Law. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed, and interpreted in accordance with the laws of the State of Delaware, without giving effect to the principles of conflict of laws (whether of the State of Delaware or any other jurisdiction). The Parties hereby agree and accept that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
16. Dispute Resolution. The Parties will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith in aspirit of mutual cooperation. If those attempts fail, then the dispute will be mediated by a mutually accepted mediator to be chosen by the Parties within forty-five (45) days after written notice by either Party to the other demanding mediation. No Party may unreasonably withhold consent to the selection of a mediator. The Parties will share the cost of the mediation equally. By mutual agreement, the Parties may postpone mediation until some specified but limited discovery about the dispute has been completed. The Parties may also agree to replace mediation with some other form of alternative dispute resolution. Any dispute which cannot be resolved by the Parties through negotiation, mediation or other form of agreed alternative dispute resolution within one hundred twenty (120) days following the date of the initial demand for it by one of the Parties may then be submitted to the courts for resolution. Nothing in this section will prevent a Party from resorting to judicial proceedings if: (a) good faith efforts to resolve the dispute under these procedures have been unsuccessful; (b) interim, injunctive or other equitable relief from a court is necessary to prevent serious and irreparable injury to one Party or to other; or (c) litigation is required to be filed prior to the running of the applicable statute of limitations. The use of any alternative dispute resolution procedure will not be construed under the doctrine of latches, waiver or estoppel to affect adversely the rights of either party. All of the above alternative dispute resolution procedures shall be confidential.
17. Jurisdiction. Any litigation, proceeding or other legal action brought under or in connection with or relating to this Agreement (a “Legal Proceeding”) shall be brought only in a court of competent jurisdiction located in the jurisdiction of the State of Delaware (and the appellate courts therefrom), and such courts shall have exclusive jurisdiction with respect to any such Legal Proceeding. Each Party hereby (a) consents and submits, for itself and its property, to the jurisdiction of such courts for the purpose of any such Legal Proceeding instituted against such Party; (b)agrees that a final judgment in any such Legal Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable law; (c) agrees that service of process maybe made upon such Party by delivery by registered or certified mail (postage prepaid and return receipt requested) or by nationally recognized overnight or second day delivery courier to the address set forth on the signature page to this Agreement (or to such other address as may have been designated by a party in a written notice complying with Section 17) or in any other manner permitted by applicable law; and (c) waives to the fullest extent permitted by law any objection that it may now or hereafter have to the venue of any such Legal Proceeding in any such court or that any such Legal Proceeding was brought in an inconvenient forum. Each of the Parties freely acknowledges and agrees that a Legal Proceeding being instituted in any of the courts described in this Section 17 would be reasonable and just and that such courts are not so inconvenient that such Party would effectively be denied a meaningful day in court by such Legal Proceeding occurring in any such court.
18. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by it of any of its obligations under Section 6 or Section 9 of this Agreement will cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and that, inthe event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
19. Notices. Any notice or other communication to be provided under this Agreement shall be in writing and shall be deemed given if delivered personally, by a nationally recognized overnight courier service, mailed by registered or certified mail, postage prepaid, return receipt requested, or by email addressed to the parties at the address set forth on the signature page to this Agreement (if any). A Party’s address for notices may be changed from time to time by such Party by giving notice in accordance with this Section 17.
20. Entire Agreement. This Agreement, including all Schedules, Exhibits, Addenda and Statements of Work attached hereto, constitutes and contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements.
21. Amendments or Modifications; Waiver. No amendment, modification, supplement, or waiver of any section of this Agreement, including to any Schedule,Exhibit, Addendum or Statement of Work, shall become effective unless the same shall be in writing and signed by authorized representatives of both Parties. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude anyother or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by applicable law.
22. Severability. Any term or provision of this Agreement that is held invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties hereto agree that the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties hereto agree to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to the extent possible, the economic,business and other purposes of such invalid or unenforceable term.
23. Counterparts and Electronic Transmission. This Agreement may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or electronic transmission in portable document format (“PDF”) or any electronic signature complying with the U.S. ESIGN Act of 2000 (an “E-signature”), shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party shall raise the use of a facsimile machine or electronic transmission in PDF to deliver a signature, or the use of an E-signature, or the fact that any signature, agreement or instrument was transmitted or communicated through the use of a facsimile machine or electronic transmission in PDF, as a defense to the formation of a contract and each Party forever waives any such defense.
24. Survival. The following Sections shall survive termination of this Agreement: 3, 5, 6, 8, 9, 10, 11 and 13 through 14.
