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Your use of the Services (as defined below) are subject to the following terms and conditions of the Advertiser Terms of Use (this “Agreement”) which may be updated by Netsertive (”Mixpo”), including its parent organizations and affiliates (together, “Netsertive”) from time to time without notice to you, and you will be subject to the most current version of this Agreement posted on Netsertive.com. By using the Services, you agree to be bound by the terms of this Agreement. Furthermore, when using any of the Services, you may be subject to other posted guidelines, policies or other contractual provisions. If you are using the Services on your employer’s behalf, this Agreement and all posted guidelines, policies and other contractual provisions will apply to you and your employer. In the event of a conflict between this Agreement and any posted guidelines, policies or other terms of service, this Agreement shall govern. If you do not wish to be bound by this Agreement, you must immediately discontinue use of the Services.
In consideration of and subject to the payment of the Fees (as defined in Section 5.1 below), and subject to full compliance with all the terms and conditions of this Agreement, Netsertive (”Mixpo”) will provide you (the “Client”) the Services (as defined herein). The “Services” mean, collectively: (a) access and use of Netsertive’s (”Mixpo”) proprietary software platforms (together, the “Platform Services”); (b) media buying services (“Media Buying”); (c) Managed Services (as defined in Section 4.3.3 below); and/or (d) related design, integration, implementation or other professional services (the “Professional Services”).
2.1 Administrative Rights. The Platform Services may include a restricted-access administrative interface component (“Administrative Interface”) to allow employees or specific independent contractors designated by Client (“Administrative Users”) to access the configuration and settings components of the Platform Services to manage, configure and monitor the Platform Services for Client’s benefit. Each Administrative User will be provided access to and use of the Administrative Interface (“Admin User Access”). Client shall be responsible for ensuring the security and confidentiality of all Admin User Access. Client acknowledges that it will be solely and fully responsible for all liabilities incurred through use (permitted or unpermitted) of any Admin User Access.
As you use our Site or Products, certain passive information may also be collected, including your Internet Protocol address, browser type, and operating system. We also use cookies, web beacons and navigational data like Uniform Resource Locators (URL) to gather information regarding the date and time of your visit and the solutions and information for which you searched and viewed. This type of information is collected to make our Products more useful to you.
Third party vendors, including Google, Yahoo, and Microsoft, show you ads on sites on the internet. These vendors use cookies to serve ads based on a user’s prior visits to the Site. Users may opt out of Google’s use of cookies by visiting the Google advertising opt-out page or other third party vendor’s use of cookies by visiting the Network Advertising opt out page.
2.2.1 License Rights. During the applicable Subscription Term (as defined in Section 6.1 below) and subject to the terms and conditions of this Agreement, Netsertive (”Mixpo”) hereby grants to Client a limited, worldwide, non-exclusive, non- transferable license to: (i) access and use the Platform Services set forth in each Insertion Order (an “Insertion Order”) solely for the purpose of conducting digital marketing utilizing the Platform Services (the “Purpose”); and (ii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by Netsertive (”Mixpo”) that describes functionality of the Platform Services, if any (collectively, the “Documentation”) solely for Client’s internal business purposes. Netsertive (”Mixpo”) hereby reserves all rights not expressly granted herein.
2.2.2 Access Requirements. Client is solely responsible for: (a) obtaining and maintaining any equipment or ancillary services needed to access or otherwise use the Platform Services, including, without limitation, modems, hardware, software, and long distance or local telephone service and any fees associated therewith; (b) ensuring that such equipment or ancillary services are compatible with the Platform Services; and (c) procuring all necessary rights from applicable third parties to any related third party product(s) not provided by Netsertive (”Mixpo”) that may be necessary for Client to fully utilize any Platform Services (i.e., payment gateway rights, point of sale, email, inventory control, shipping, and/or accounting systems, etc.).
2.3 Restrictions. Except as otherwise expressly permitted under this Agreement, Client agrees not to: (a) reverse engineer or otherwise attempt to discover the source code of or trade secrets embodied in the Platform Services or any portion thereof; (b) distribute, transfer, grant sublicenses, or otherwise make available the Platform Services (or any portion thereof) to third parties, including, but not limited to, making such Platform Services available as an application service provider, service bureau, or rental source; (c) embed or incorporate in any manner the Platform Services (or any element thereof) into applications of Client or third parties; (d) create modifications to or derivative works of the Platform Services; (e) reproduce the Platform Services or Documentation; (f) use the Platform Services in a manner not authorized under the Documentation or in violation of any applicable law, rule or regulation, including any export/import laws; or (g) in any way access, use, or copy any portion of the Platform Services code (including the logic and/or architecture thereof and any trade secrets included therein) to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Platform Services. Further, Client acknowledges and agrees that when using the Netsertive (”Mixpo”) “editing tools” and “templates” as part of the Services, Netsertive (”Mixpo”) only authorizes you to use any content creates by use of such editing tools or templates within Netsertive’s (”Mixpo”) VideoAd player, and any other download or use of such content is prohibited.
2.4 Compliance with Laws and This Agreement. Client acknowledges and agrees that its use of the Platform Services shall comply with all applicable laws, including the terms of this Agreement or an Insertion Order. If Client fails to comply with any laws, or any provision order or this Agreement, Netsertive (”Mixpo”) may immediately terminate all licenses granted to Client without notice to Client. Upon termination, Client agrees to immediately stop using the Platform Services and destroy all Documentation. Upon termination Netsertive (”Mixpo”) is not obligated to return any Content to Client and is not responsible for any loss of data resulting from removal of Client material.
3.1 Delivery. During the applicable Subscription Term, subject to Client’s payment of all related Fees, Netsertive (”Mixpo”) will provide Client the Platform Services. Netsertive (”Mixpo”) will manage all updates and upgrades to the Platform Services that Netsertive (”Mixpo”) makes generally available to its Clients.
3.2 Client Content. Client acknowledges and agrees that all postings, messages, text, files, images, logos, photos, video, sounds, or other content or materials made available to the Platform Services (the “Content”) are the sole responsibility of the Client. For example, Client is solely responsible for determining whether its use of any Content requires the consent of any third party or the license of any rights. As between Client and Netsertive (”Mixpo”), Client shall at all times own the Content, and hereby grants Netsertive (”Mixpo”) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide, transferable, and assignable license to use, display, publish, distribute, or sell the Content anywhere and to do all other acts as necessary to increase viewership of the Content. Client acknowledges and agrees that Netsertive (”Mixpo”) shall have the right, in its sole discretion, to refuse, delete, or move any Content from the Platform Services for any reason whatsoever. Your use of the Platform Services shall comply with all applicable laws.
3.3 Client Content Guidelines. Client acknowledges and agrees that all Content shall adhere to all laws, rules, codes, Netsertive’s (”Mixpo”) Advertising Guidelines (as defined below), and other Netsertive (”Mixpo”) requirements that may be communicated to Client in writing. “Advertising Guidelines” means: (a) no Content may be, directly or by implication, vulgar, obscene, profane, pornographic, threatening, hateful, or contain nudity; (b) that the Content does not violate, misappropriate, or infringe any intellectual property rights or rights of privacy or publicity of any third party; (c) advertisements for hard liquor or distilled spirits (including products containing hard liquor) are not allowed (unless approved in advance in writing by Netsertive (”Mixpo”) after it has had a reasonable opportunity to review compliance with all applicable laws, rules, codes, and guidelines and subject to you hereby covenanting to indemnify, defend, and hold harmless Netsertive (”Mixpo”) from all damages, claims, expenses, fines, penalties or other losses in each case resulting from third party claims or audits, investigations, or other proceedings by governmental entities); (d) advertisers may promote beer and wine, subject to all applicable laws, rules, codes, and guidelines; (e) advertisements directed to children must comply with all applicable laws, rules, codes and guidelines; (f) advertising claims must be substantiated (prior to running the advertisements) with valid and reliable research or support, as required by all applicable laws; (g) advertisements comparing products or services may not distort or exaggerate differences or otherwise create a false, deceptive or misleading impression; (h) you may not advertise contests or sweepstakes via the Platform Services unless they comply with all applicable laws and regulations; (i) we do not allow advertising for firearms, ammunition, cigarettes, cigars, pipe tobacco, tobacco paraphernalia and smokeless tobacco; and (j) among other things, Netsertive (”Mixpo”) prohibits advertisements that: (1) make claims or representations that are false or tend to deceive, mislead, or misrepresent; (2) offer unsupported or exaggerated promises of earnings; (3) use “subliminal perception” or other similar techniques; (4) use “Bait and Switch” tactics; or (5) make direct or implied use of government officials or any government body without official approval. Advertising standards and practices may vary from region to region and as such, it is your sole responsibility to ensure that your advertisement conforms to all applicable laws, rules, codes and regulations. The display of your advertisement through the Platform Services does not constitute Netsertive’s (”Mixpo”) approval of your advertisement, the Content, or your use of the advertisement and the Content.
3.4.1 Responsibility. Client: (a) is solely responsible for any and all personally identifiable user data (“User Data”) that may be collected or utilized by Client through its use of the Platform Services, including, without limitation, any User Data that may be processed and shared between the Platform Services and applicable third-party social networks and websites (“Third Party Providers”) with which the Platform Services have been configured by an Administrative User; (b) acknowledges that Netsertive (”Mixpo”) has no control over and will not monitor the content of the User Data; (c) shall comply with the advertising guidelines set forth in Section 6 below (the “Advertising Guidelines”); and (d) agrees that Client will be responsible for (i) establishing and enforcing terms of use and privacy policies (“Client Policies”) with users that authorize Client’s use of the Platform Services as permitted under this Agreement, comply with applicable Third Party Providers’ then-current terms of use and privacy policies and are in compliance with applicable law, including export regulation and data protection legislation; and (ii) obtaining all necessary consents of third parties to the collection, processing, and use of User Data, including any processing by Netsertive (”Mixpo”) in connection with Netsertive’s (”Mixpo”) provision of the Services.
3.4.2 Usage Data. Netsertive (”Mixpo”) shall have the right to use, create derivative works of, distribute and otherwise exploit anonymous, aggregated usage data derived from User Data (“Usage Data”) (e.g., the aggregate number of transactions that occur within the Platform Services), provided that in no event will Netsertive (”Mixpo”) disclose or make available any Usage Data in a manner that does or reasonably could permit the recipient of such information to determine that such Usage Data pertained to Client in particular.
4.1 Support Services. During the applicable Subscription Term, subject to Client’s payment of all related Fees, Netsertive (”Mixpo”) shall provide technical support services to Client regarding Client’s operation and use of the Platform Services as set forth in the applicable Insertion Order. Client will provide all support to users.
4.2 Media Buying. For Insertion Orders that include Media Buying, Netsertive (”Mixpo”) will use commercially reasonable effort to engage applicable Third Party Providers to make advertisements provided by Client (“Ads”) available within applicable Third Party Provider social streams and/or sites for the benefit of Client in accordance with such Insertion Orders; provided that Netsertive (”Mixpo”) will make commercially reasonable efforts to notify Client as soon as practicable if the specified inventory is not available.
4.3.1 Generally. Netsertive (”Mixpo”) will provide all Professional Services and related deliverables for use with the Platform Services (collectively, the “Deliverables”) in accordance with the specifications and schedule, if any, set forth in each Insertion Order. Unless otherwise stated in an Insertion Order, if Client notifies Netsertive (”Mixpo”) in writing within thirty (30) days after the Deliverables are made available to Client that Netsertive (”Mixpo”) is not in compliance with the foregoing covenant with respect to such Deliverables, then Netsertive (”Mixpo”) will, as Client’s sole and exclusive remedy and Netsertive’s (”Mixpo”) sole liability, use commercially reasonable efforts to cause the Deliverables to conform to such covenant at no additional cost to Client.
4.3.1 Generally. Netsertive (”Mixpo”) will provide all Professional Services and related deliverables for use with the Platform Services (collectively, the “Deliverables”) in accordance with the specifications and schedule, if any, set forth in each Insertion Order. Unless otherwise stated in an Insertion Order, if Client notifies Netsertive (”Mixpo”) in writing within thirty (30) days after the Deliverables are made available to Client that Netsertive (”Mixpo”) is not in compliance with the foregoing covenant with respect to such Deliverables, then Netsertive (”Mixpo”) will, as Client’s sole and exclusive remedy and Netsertive’s (”Mixpo”) sole liability, use commercially reasonable efforts to cause the Deliverables to conform to such covenant at no additional cost to Client.
4.3.2 Stock Media. In the event the Deliverables include stock media (“Stock Media”), Client may use such Stock Media solely for the Purpose of this Agreement. Client’s right to use the Stock Media is limited, personal, non-exclusive, non-transferrable, and non-sublicensable. Your license does not include the right to possession of copies or tapes of the Stock Media, either in their original or customized versions. Netsertive (”Mixpo”) makes the Stock Media available to Client on an “as is” basis and for your convenience only, and Client has the right to remove the Stock Media without notice to Client. No intellectual property rights in the Stock Media are assigned to you pursuant to this Agreement. In the event Client creates customized versions of the Stock Media, Client hereby grants Netsertive (”Mixpo”) a worldwide, perpetual, irrevocable, sublicensable, royalty-free right to use such customized versions of the Stock Media.
4.3.3 Cooperation; Managed Services. Client acknowledges that the timely and successful performance of Professional Services and delivery of the Deliverables requires good faith cooperation by Client. Therefore, Client shall: (a) furnish information reasonably requested by Netsertive (”Mixpo”); (b) provide access to Client personnel, working space, facilities, and systems that Netsertive (”Mixpo”) or its personnel may reasonably request; and (c) timely perform its obligations as necessary to meet the schedule in the applicable Insertion Order. In the event that any failure by Client to comply with the provisions of this Section 4.3 results in any delay or deficiency in the performance of the Professional Services by Netsertive (”Mixpo”), Netsertive (”Mixpo”) shall not be deemed in breach of this Agreement (or any applicable Insertion Order) for such delay and Client shall be responsible for any costs reasonably incurred by Netsertive (”Mixpo”) in addressing and remedying such delay or deficiency. If Netsertive (”Mixpo”) is to directly access and use the Platform Services on behalf of Client pursuant to an Insertion Order (“Managed Services”), Client agrees to either: (i) provide Netsertive (”Mixpo”) with detailed prior written instructions related to such access and use; or (ii) review all proposed Platform Services activity prior to use in a production environment; provided, however, that Netsertive (”Mixpo”) shall not be responsible for, and hereby disclaims all liability related to, the results of any Managed Services that are performed in accordance with Client’s instructions or review.
4.3.4 Ownership Rights. Unless expressly stated otherwise in an Insertion Order and except with respect to Design Deliverables (as defined below), Netsertive (”Mixpo”) will retain all right, title and interest in and to all Deliverables (including any and all intellectual property rights therein), and Client hereby irrevocably assigns to Netsertive (”Mixpo”) any and all ownership rights it may have in or to such Deliverables (including any and all intellectual property rights therein). During the applicable Subscription Term and subject to the terms and conditions of this Agreement, Netsertive (”Mixpo”) hereby grants to Client a limited, worldwide, non-exclusive, non-transferable license to: (i) access and use such Deliverables set forth in each Insertion Order via the Platform Services solely for the Purpose of this Agreement; and (ii) use and make a reasonable number of copies of any descriptions, instructions, or other documentation made available by Netsertive (”Mixpo”) that describes functionality of such Deliverables, if any, solely for Client’s internal business purposes. Netsertive (”Mixpo”) hereby reserves all rights not expressly granted herein. Notwithstanding the foregoing, Client retains all right, title and interest in and to any: (a) Client Confidential Information (as defined in Section 8 below), including any and all materials, assets and any and all Client Marks (as defined below), artwork, graphics, video, text, data, and other materials supplied by Client to Netsertive (”Mixpo”), that may be incorporated into or provided with any Deliverable; and (b) any artwork, drawings, logos, designs, or content provided by Netsertive (”Mixpo”) as a Deliverable, excluding software (a “Design Deliverable”).
5.1 Fees. Subject to the terms and conditions below, all fees for the Services (collectively, the “Fees”) will be set forth on the applicable Insertion Order.
5.2 Payment Terms. Unless otherwise agreed to in writing by the parties, Client will pay to Netsertive (”Mixpo”) all undisputed Fees owed either, in Netsertive’s (”Mixpo”) sole discretion, (a) in advance by credit card; or (b) within thirty (30) days, or such other period as may be specified in the Insertion Order, from the date of the invoice. If applicable, payments will be sent to the address included on the invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Client is responsible for) any and all applicable sales, use and other taxes, (other than taxes based on Netsertive’s (”Mixpo”) income). Unless otherwise set forth in an Insertion Order, each party is responsible for its own expenses under this Agreement. In cases where Client fails to make payment under this Agreement, Client shall bear default interest after the due date at the rate of 18% per year or the highest amount permitted by applicable law (whichever is less), which shall be calculated on a per diem basis of a year of 365 days.
5.3 Refunds. Netsertive (”Mixpo”) will not issue any refunds of the Fees.
6.1 Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein. The initial subscription term for the Platform Services purchased by Client will be as set forth in the applicable Insertion Order and subject to any renewal as set forth in Section 6.2 below (collectively, the “Subscription Term”).
6.2 Subscription Terms; Adjustment; Renewal. Each Subscription Term will commence on the date that both parties have executed the applicable Insertion Order under which Client acquires such license, unless a later commencement date is expressly set forth on such Insertion Order, and will continue for the initial Subscription Term. Thereafter, each Platform Services license will automatically renew: (a) for the renewal period specified on the applicable Insertion Order, if any, or, if not specified, for a period of one (1) year; and (b) at the same Fees applicable during the immediately preceding term (based upon the latest applicable pricing tier) unless either party notifies the other at least thirty (30) days prior to the commencement of the renewal term that it does not intend to renew the Subscription Term upon the same terms.
6.3 Termination. This Agreement and/or any Insertion Order, if applicable, may be terminated: (a) by either party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five (5) days for breaches of Sections 2, 4.3.3, or 8); or (b) as set forth in Section 10.1. Additionally, a particular Insertion Order may be temporarily suspended or terminated by Netsertive (”Mixpo”) in the event that Client fails to pay applicable Fees when due or otherwise violates any of the use restrictions set forth herein.
6.4 Effect of Termination. Upon any termination of this Agreement or an Insertion Order, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required thereunder shall immediately cease; provided that Sections 2.3, 5, 6.4, 7, 8, 9, 10, 11, 12, and 13 shall survive termination; (b) Client will promptly delete and destroy all copies of the Documentation in its possession or control; and (c) Client shall pay to Netsertive (”Mixpo”) any outstanding Fees that have accrued under the Agreement and/or Insertion Order prior to the date of termination.
As between Netsertive (”Mixpo”) and Client: (i) Netsertive (”Mixpo”) will retain all ownership rights in and to the Platform Services, all updates and/or upgrades thereto, the Deliverables (excluding Design Deliverables), Documentation, and other derivative works of the Platform Services and/or Documentation that are provided by Netsertive (”Mixpo”) to Client, and all intellectual property rights incorporated into or related to the foregoing; and (ii) Client will retain all ownership rights in and to the Ad creative and Design Deliverables, and all intellectual property rights incorporated into or related to the foregoing. The trademarks and service marks and other Netsertive (”Mixpo”) logos and product and service names are trademarks of Netsertive (”Mixpo”) (the “Netsertive (”Mixpo”) Marks”). Likewise, the trademarks and service marks and other logos and product and service names of Client and Clients are trademarks of Client and/or each such Client respectively (collectively “Client Marks”). Without the other party’s prior written permission, the parties agree not to display or use in any manner, the Netsertive (”Mixpo”) Marks or Client Marks, as applicable. All rights not expressly licensed by Netsertive (”Mixpo”) and Client under this Agreement are reserved. As between the parties hereto, Client and its Users will retain all ownership rights in and to all User Data.
“Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonable should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information. The receiving party shall not be liable to the disclosing party for the release of Confidential Information if such information: (a) was known to the receiving party on or before Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by the employees of the receiving party who have not had access to Confidential Information; or (d) is divulged pursuant to any legal proceeding or otherwise required by law, provided that, to the extent legally permissible, the receiving party will notify the disclosing party promptly of such required disclosure and reasonably assists the disclosing party in efforts to limit such required disclosure.
9.1 Mutual. Each party represents, warrants and covenants to the other party that: (a) it has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party; (c) this Agreement constitutes the legal, valid and binding obligation of such party when executed and delivered; and (d) any and all activities it undertakes in connection with this Agreement shall be performed in compliance with all applicable laws, rules and regulations; provided, however, that Client shall be solely responsible for ensuring that its use of the Platform Services is in full compliance with applicable federal and state laws, rules, and regulations that govern lotteries, sweepstakes and similar contests (if applicable).
9.2 By Netsertive (”Mixpo”). Netsertive (”Mixpo”) warrants to Client that: (a) the Services shall be provided in a professional, competent and workmanlike manner in accordance with the prevailing industry standards; (b) the Platform Services, when used in accordance with the Documentation, will perform in all material respects as specified in such Documentation during the applicable Subscription Term; (c) to Netsertive’s (”Mixpo”) knowledge, the Services do not misappropriate, or infringe any intellectual property rights or privacy or publicity rights of any third party; and (d) Netsertive (”Mixpo”) will not knowingly introduce any “back door,” “time bomb,” “Trojan horse,” “worm,” “drop dead device,” “virus,” “preventative routines” or other computer software routines within the Platform Services that are intentionally designed to permit unauthorized access to or use of either the Platform Service’s or Client’s computer systems (“Viruses”). In the event of any breach of the warranties in subsection (a), (b), or (c) above, Netsertive (”Mixpo”) shall, as its sole liability and Client’s sole and exclusive remedy, diligently remedy any deficiencies that cause the Services to not conform to such warranties promptly after its receipt of written notice from Client. Netsertive (”Mixpo”) will not be liable to the extent that any breach of the foregoing warranties are caused by: (x) third-party components (including in combination or as integrated with the Platform Services) not provided by Netsertive (”Mixpo”) ; (y) unauthorized use or use of the Platform Services other than in accordance with the Documentation; or (z) Viruses introduced by Client or its agents or Users (collectively, “Exclusions”).
9.3 By Client. Client warrants and covenants to Netsertive (”Mixpo”) that: (a) the Content does not violate any Advertising Guidelines; (b) it has the right to grant Netsertive (”Mixpo”) the licenses set forth in Section 3.2; (c) it will comply with the Client Policies; and (d) it will abide by all of the restrictions, covenants, and obligations set forth in this Agreement.
9.4 Disclaimer. CLIENT AGREES THAT THE USE OF THE SERVICES ARE ENTIRELY AT ITS OWN RISK, AND NETSERTIVE (”MIXPO”) WILL NOT BE LIABLE TO CLIENT FOR ANY LOSS OR DAMAGE OF ANY KIND AS A RESULT OF CLIENT’S USE OF THE SERVICES. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY EITHER PARTY. ALL OTHER CONDITIONS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, QUIET ENJOYMENT, TITLE, MERCHANTABILITY, AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. NETSERTIVE (”MIXPO”) DOES NOT WARRANT THAT CLIENT’S USE OF THE PLATFORM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED. NETSERTIVE (”MIXPO”) DISCLAIMS ANY WARRANTIES FOR OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED VIA ADMISSION OR ACCESSED THROUGH ANY LINKS IN THE PLATFORM SERVICES.
10.1.1 By Netsertive (“Mixpo”). Netsertive (“Mixpo”) agrees, at its own expense, to indemnify, defend Client and hold Client harmless against any suit, claim, proceeding, damages, losses, liabilities, settlements, and expenses brought against Client caused by Netsertive’s (“Mixpo”) breach of its representations and warranties set forth in this Agreement, provided that Client: (a) promptly notifies Netsertive (“Mixpo”) in writing of any such suit, claim or proceeding; (b) allows Netsertive (“Mixpo”), at Netsertive’s (“Mixpo”) own expense, to direct the defense of such suit, claim or proceeding; (c) gives Netsertive (“Mixpo”) all information and assistance necessary to defend such suit, claim or proceeding; and (d) does not enter into any settlement of any such suit, claim or proceeding without Netsertive’s (“Mixpo”) written consent. The foregoing obligations do not apply with respect to the Services or portions or components thereof: (w) used other than in accordance with this Agreement; (x) not supplied by Netsertive (“Mixpo”); (y) made in whole or in part in accordance to Client specifications; (z) combined with other products, processes or materials where the alleged infringement would not have occurred without such combination. If the Platform Services (or any component thereof) becomes, or in Netsertive’s (“Mixpo”) opinion is likely to become, the subject of an infringement claim, Netsertive (“Mixpo”) may, at its option and expense, either: (1) procure for Client the right to continue exercising the rights licensed to Client in this Agreement; or (2) replace or modify the Platform Services so that it becomes non-infringing and remains functionally equivalent. If neither of the foregoing options are, in Netsertive’s (“Mixpo”) reasonable opinion, commercially reasonable, Netsertive (“Mixpo”) may terminate this Agreement and will refund to Client a pro-rata portion of any applicable prepaid Fees. Notwithstanding the foregoing, Netsertive (“Mixpo”) will have no obligation under this Section 10.1.1 or otherwise with respect to any infringement claim based upon any Exclusions. This Section 10.1.1 states Netsertive’s (“Mixpo”) entire liability and Client’s sole and exclusive remedy for infringement claims and actions.
10.1.2 By Client. Client agrees, at its own expense, to indemnify, defend Netsertive (“Mixpo”) and hold Netsertive (“Mixpo”) harmless against any suit, claim, proceeding, damages, losses, liabilities, settlements, and expenses brought against Netsertive (“Mixpo”) caused by Client’s breach of its representations and warranties set forth in this Agreement, provided that Netsertive (“Mixpo”): (i) promptly notifies Client in writing of any such suit, claim or proceeding; (ii) allows Client, at Client’s own expense, to direct the defense of such suit, claim or proceeding; (iii) gives Client all information and assistance necessary to defend such suit, claim or proceeding; and (iv) does not enter into any settlement of any such suit, claim or proceeding without Client’s written consent.
10.2 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING ANY DAMAGE TO BUSINESS REPUTATION, LOST PROFITS, OR LOST DATA), WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, A PARTY’S BREACH OF CONFIDENTIALITY, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER, IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE SERVICES AND INTELLECTUAL PROPERTY PROVIDED HEREUNDER SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, THE TOTAL OF THE FEES ACTUALLY PAID AND THE FEES PAYABLE TO NETSERTIVE (“MIXPO”) BY CLIENT UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
Unless otherwise set forth in the applicable Insertion Order, Client hereby agrees that Netsertive (“Mixpo”) shall have the right, but not the obligation, to include Client’s name and logo as a Client who uses the Platform Services on the Netsertive (“Mixpo”) website and in other materials promoting the Platform Services.
The parties acknowledge that the Platform Services and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that the injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement, including to prevent any actual or threatened unauthorized use or sublicensing of each party’s Confidential Information, the Platform Services, or any information or data contained therein.
The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to acts of God, earthquake, labor disputes and strikes, riots, war and governmental requirements. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties, and all successors to the foregoing. Neither party will assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except pursuant to a transfer of all or substantially all of such party’s capital stock or assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. This Agreement shall be governed by the laws of the State of Washington, without regard to Washington conflict of laws rules. The exclusive venue and jurisdiction for any and all disputes, claims and controversies arising from or relating to this Agreement shall be the state or federal courts located in King County, Washington. Each party waives any objection (on the grounds of lack of jurisdiction, forum non conveniens or otherwise) to the exercise of such jurisdiction over it by any such courts. The prevailing party shall be entitled to recover reasonable attorney’s fees and other costs from the other party. These fees and other costs are in addition to any other relief to which the prevailing party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement. In the event that any provision of this Agreement conflicts with governing law or if any provision is held to be null, void or otherwise ineffective or invalid by a court of competent jurisdiction, (a) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and (b) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. This Agreement includes any Insertion Orders agreed to by the parties in writing and all expressly referenced documents. Collectively the foregoing constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by Netsertive (“Mixpo”). The terms on any purchase order or similar document submitted by Client to Netsertive (“Mixpo”) will have no effect and are hereby rejected. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by email with confirmed receipt, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Insertion Order and are deemed delivered when received.
