Master Service Agreement
THIS MASTER SERVICE AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF THESE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS.
You may not access the Services if You offer a competing service or product except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. If you violate this paragraph, We have the sole and exclusive right to immediately terminate this Agreement and any use of the Services shall be immediately terminated and seek Injunctive Relief.
This Agreement was last updated on November 21, 2011. It is effective between You and Us as of the date of You accepting this Agreement.
Table of Contents
- 1. Definitions
- 2. Services
- 3. Use of the Services
- 4. Fees and Payment for Services
- 5. Proprietary Rights
- 6. Confidentiality
- 7. Warranties and Disclaimers
- 8. Mutual Indemnification
- 9. Limitation of Liability
- 10. Term and Termination
- 11. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
- 12. General Provisions
"We," "Us" or "Our" means Pangea Media LLC a Massachusetts company with a principle place of business at 85 Main St. Suite 200, Watertown, MA 02472 d/b/a SnapApp.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliate or Affiliates (defined below) of that company or entity.
"Services" means the online, web-based software and platform, social network applications, and embeddable "widgets" provided by Us via http://www.snapapp.com, http://app.snapapp.com, http://manage.snapapp.com and/or other websites owned by Us, including associated offline components, and components that interface with third party websites.
"Application" means the individual interactive work You create using the Services, such as a sweepstakes, trivia quiz survey, contest, poll, or personality test. Your Application may be created and managed at http://manage.snapapp.com and may be embedded on Your website, embedded on another web page that you control, such as Your page on facebook.com, or hosted by Us at http://app.snapapp.com.
"End User" means the individual who accesses, interacts with, otherwise uses an Application when they visit Your website(s), Our website http://app.snapapp.com, or third party website(s) and/or internet-enabled mobile devices that include the Service. End Users may include but are not limited to Your customers, potential customers, readership, or subscribership, or those individuals connected to you through social network services.
"Impression" means the loading or partial loading of a SnapApp application on any platform or device as counted solely by Pangea Media d/b/a SnapApp.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with You. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of You.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering document (electronic, faxed, printed or otherwise), for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Form shall be deemed incorporated herein by reference.
"Payment Method" means the method by which You pay Us for the Services, which may be credit card, direct debit, wire transfer, PayPal, or invoice, as specified on Your Order Form and/or in Your account settings, accessible at http://manage.snapapp.com/user/profile.
2.1. Provision of Services. We shall make the Services available to You pursuant to this Agreement and the relevant Order Forms for the subscription term. The Services are provided to You “as is” without any representation or warranty except as expressly set forth in this Agreement, and You agree and understand that Your receipt of the Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us or any third party regarding future functionality or features of any Services.
2.2. Subscription Period. We will provide You with access to the Service for a period one month following the scheduled payment date.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We shall: (i) provide to You basic support for the Services at no additional charge through our technical support form at http://www.snapapp.com/contact/technical-support, technical support email firstname.lastname@example.org, or by phone at 617-923-0000; (ii) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via the Services), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays; and (iii) provide the Services only in accordance with applicable laws and government regulations.
3.2. Your Responsibilities. You represent and warrant that You shall: (i) be responsible for You and Your employees’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Application(s) and of the means by which You create and/or acquire Your Content; (iii) be solely responsible for the manner in which you store and use End User Data, once you have obtained it via the Services; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly in writing of any such unauthorized access or use; (v) use the Services only in accordance with the instructions and directives provided within the Services and applicable laws and government regulations; (vi) be solely responsible to ensure that any Application and/or Content used or created with the Services is owned by You or Your End User, or that You or Your End User have permission to use that Application and/or Content; (vii) be solely responsible for complying with all agreements, terms of service, or conditions of use of any third party if You use or place any Content or Application used or created by You with the Services in connection with any website not owned by You; and (viii) provide truthful and accurate information for any and all fields and/or settings within the Services, including but not limited to special settings for lead generation, privacy policies, identification of an app as a giveaway, promotion or sweepstakes, and official rules of sweepstakes rules. If You use the Services to run a giveaway, promotion or sweepstakes, You accept sole responsibility for ensuring that Your Application is in compliance with local, state and federal laws, and the policies of third party sites where Your Application appears, including but not limited to Facebook's Promotions Guidelines. You represent and warrant that You shall not: (i) make the Services available to anyone who is not an authorized agent of You acting on your behalf, such as an employee or contracted worker; (ii) sell, license, sublicense, resell, rent or lease the Services to any party; (iii) use the Services to create, store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to create, store or transmit material in violation of third-party privacy rights; (iv) use the Services to promote any website, product, or service that is involved in unlawful or illegal activities; (v) use the Services to store or transmit Malicious Code, or use the Services to promote any website, product or service that stores or transmits Malicious Code; (vi) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (vii) attempt to gain unauthorized access to the Services or their related systems or networks.
3.3. Prohibited Content. In addition to any other restrictions set forth in this Agreement, including but not limited to Section 3.2, You may not produce Applications using the Services that violate the content standards defined in this section. We reserve the right to permanently and irrevocably delete from the Service without prior notice to You any Application which in our sole discretion we deem (i) is vulgar, obscene , offensive or pornographic (ii) makes false advertising claims, or perpetrates any other form of illegal advertising or promotion, (iii) pretends that You are, or that you represent, someone else, or impersonate any other individual or entity, (iv) violates any patent, trademark, trade dress, trade secret, copyright or other proprietary right or misappropriation of any party, (v) discloses or disseminates information or materials that You do not have a lawful, legal right to possess, disclose or disseminate (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, invasive of another's privacy, inflammatory, hateful, or racially, ethnically or similarly objectionable, or (vii) attempts to collect financial account numbers, tax identification data, driver's license numbers, or state-issued identification numbers. Five (5) business days prior to deleting any of Your Application(s) due to violations of this Section (3.3), We will notify you in writing that Your Content may be deleted, and provide You with an opportunity to cure, and maintain your subscription to the Services in an uninterrupted, active state.
3.4. Modification of the Services by You. You may not substantively alter Your Application(s) or the pages of Your website(s) where they appear, to make the Application(s) function or display in a manner other than than the manner in which they were designed to function and display, unless you first obtain Our expressed written permission to do so. This prohibition includes wholly or partially removing, obscuring, or hiding any element of Your Application, including the SnapApp branding or logo that appears at the bottom of the widget. In the event that You hide the SnapApp branding, Our remedy shall be to apply the cost of the "White Label" license feature (removal of the SnapApp branding from the widget by Us) and you will be charged accordingly based and if applicable retroactively.
3.5. Usage Limitations. Services may be subject to other limitations, including but not limited to limits on disk storage space and file size, the number of Impressions each of Your Applications may incur each month, and the number or type of Applications You can create. Unless otherwise specified on Your Order Form, all Applications are limited to 250,000 Impressions per monthly subscription period, beyond which Impression Overage Charges (Section 4.4.) will be assessed. The total size of your Application may not exceed 125 KB of content uploaded by You and we may charge additional fees at our discretion for each App above this level based on Usage. This Agreement may list specific domains, URLs, social media pages/accounts, countries or other specific use cases that are covered by this Agreement. Using SnapApp on any unauthorized domains, URLs, social media pages/accounts, countries or any other use cases that are not specifically covered by this Agreement will result in additional fees at the then current list price for adding the aforementioned and may be retroactively billed to the date of the infringement. Pangea Media may make a determination of Your authorized use at its sole discretion and assess fees.
3.6. Customer Support and Service. Customer can refer to the level of support and service defined at http://www.snapapp.com/pricing. SnapApp reserves the right to make changes to this at any time.
4. FEES AND PAYMENT FOR SERVICES
4.1. Your Fees. You shall pay all fees specified in all Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased and not actual usage, and (iii) payment obligations are non-cancelable and fees paid are non-refundable, except in the case of termination for cause by You as defined in Section 10.4.
4.2. Subscription Payments. Unless otherwise specified in the applicable Order Form, Services are purchased as monthly subscriptions. Payment for the first monthly subscription is due as of the date of the Order Form, and You shall be billed monthly thereafter. Unless otherwise specified in the applicable Order Form, subscription payments are collected automatically each month on Your payment date through Your Payment Method. In the event Your paying membership begins on the 29th, 30th, or 31st of the month, we bill your Payment Method on the initial day or your membership, and then on the last day of each month thereafter. For example, if you became a paying member on January 30th, your Payment Method would first be billed on January 30th, and your next payment date would be February 28th, then March 31, then April 30, and so on. We will bill the monthly subscription fee at the then current rate via the payment method you provide to us during registration (or to a different Payment Method if you change your account information).
4.3. Invoicing and Payment. You will provide Us with a Payment Method, such as valid and updated credit card information, PayPal account information, or a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription month and again on each monthly anniversary of the original purchase date. Such charges shall be made in advance, monthly or in accordance with any different billing frequency stated in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate Payment Method and contact information in the Services.
4.4. Impression Overage Charges. Unless otherwise stated on your Order Form, Your monthly subscription is good for a maximum of 250,000 Impressions, as measured and reported to You via the Services. In the event that your Application incurs Impressions in excess of 250,000 during a given month, You will be charged a fee of $95 per each additional 100,000 Impressions or portion thereof for that month. This fee is in addition to the monthly subscription fee indicated on Your Order Form. For example, if your monthly subscription fee is $499, and you incur 350,001 Impressions, Your total fees for that month will be $689 (the sum of $499 and two (2) $95 overage charges). In case Your Order Form specifies some alternate maximum number of Impressions other than 250,000, and Your usage exceed that specified value, You will be charged $95 per each additional 100,000 Impressions or portion thereof in excess of the specified alternate value.
4.5. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, such 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 lower, from the date such payment was due until the date paid.
4.6. Suspension of Service and Acceleration. If any amount owing by You under this Agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, in our sole discretion and without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full.
4.7. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, " Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.
4.8. Changes in Fees. From time to time, the fees for subscriptions to the Services may change, or we may add new fees or charges, in our sole discretion. You will be given 30 days advance notice of any change in Your fees or charges via email (which 30 day period shall commence upon return email confirmation of receipt of notification) before We bill Your Payment Method at the new rate. You shall then have the option to terminate this Agreement without penalty. If, however, You do not terminate this Agreement in response to a Change in Fees, You consent to any such new fees or charges and the new Fees will become part of your Agreement.
5. PROPRIETARY RIGHTS
5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We own all right, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You or any third party hereunder other than as expressly set forth herein.
5.2. Restrictions. You shall not (i) permit any third party to access or otherwise use the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) reverse engineer, decompile or otherwise recreate the Services, or (iv) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
5.3. Ownership of Your Application(s). As between Us and You, You exclusively own all right, title, and interest in and to all of Your Application(s). Upon creating Your Application(s) using the Services, You grant Us a royalty-free, worldwide, transferable, irrevocable, perpetual license to store, host, render, reproduce, display, publish, sublicense, distribute, or otherwise use Your Application(s), and to create derivative works based on Your Application(s) in any format, including but not limited to all print and electronic formats.
5.4. Ownership of Data. As between Us and You, You own the right, title and interest in and to all End User Data collected via Your Application(s) ("Your End User Data", hereafter). You grant Us a perpetual, irrevocable, royalty free, worldwide license to access, reproduce, analyze and utilize Your End User Data as well as any other data generated by You and Your Users' use of Our Services, and to aggregate it with End User Data from Our other customers' Applications, End User Data and/or any other third party data sources in our sole discretion in order to (i) monitor and investigate use of the Services, (ii) combat fraud and abuse (iii) improve, enhance, and enrich the Services for You and/or Our other customers, (iv) target, profile and enhance ad targeting, customer acquisition efforts, data augmentation, and other advertising related endeavors, and (v) acquire Your End User Data on Your behalf via Your Application(s) and deliver it to You. However, such license shall exclude the right for Us to send direct marketing communications to Your End Users using contact information submitted via Your Application without direct User consent given to Us. You acknowledge that it is possible, however, that through Our own independent marketing efforts or those of other customers of Ours, certain individuals may separately become both Our customers and Your End Users, in which case the exclusion set forth in this provision shall not apply to such customers.
6.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential 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 non-public or confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include any information about the usage of Your website(s) that becomes available to Us by virtue of Your using the Services on such websites. Our Confidential Information shall include, but not be limited to, the Services. Confidential Information of each party shall also include the terms and conditions of this Agreement and all Order Forms, 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 shall 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.
6.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement.
6.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Account Data and Your End User Data ("Your Data", collectively). We shall not (a) modify Your Data, or (b) disclose Your Data except as permitted in Secion 5.4, compelled by law in accordance with Section 6.4 (Compelled Disclosure), or as expressly permitted in writing by You.
6.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's sole cost and expense, 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 such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
7.1. Our Warranties. We warrant that (i) the Services shall perform materially as presented by Us in marketing materials, such as our website and printed brochures, and (ii) the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 10.3 (Termination for Cause) and Section 10.4 (Refund or Payment upon Termination) below.
7.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
7.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
7.4 Injunctive Relief. It is hereby understood and agreed that damages may be an inadequate remedy in the event of a breach by Buyer of this Agreement and that any such breach by Buyer would cause Seller significant and irreparable injury and damage. Accordingly, Buyer agrees that Seller shall be entitled, without waiving any additional rights or remedies otherwise available to Seller at law or in equity, to injunctive and other equitable relief in the event of a breach or intended or threatened breach by Buyer of this Agreement.
8. MUTUAL INDEMNIFICATION
8.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify, defend, and hold You harmless for any damages arising out of such third party allegations and for reasonable attorney’s fees and costs incurred by, You in connection with any such Claim; provided that You (a) promptly give Us written notice of the Claim; and (b) provide to Us all reasonable and necessary assistance in defending such Claim, at Our expense.
8.2. Indemnification by You. You shall defend Us and our parent company, subsidiaries, affiliates, directors, owners, shareholders, officers, employees, consultants and agents ("Our Group") against any Claim made or brought against Our Group by a third party (a) alleging that Your Data, Your Application(s), or Your use of the Services in violation of this Agreement, infringes or misappropriates the rights of a third party or violates applicable law, (b) any breach of this Agreement by You, and (c) Your conduct, and shall indemnify, defend, and hold Our Group harmless for any damages arising out of such Claim and for reasonable attorney’s fees and costs incurred by Our Group in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; and (b) provide to You all reasonable assistance in defending such Claim, at Our expense.
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT CAUSING THE LIABILITY. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR SERVICES). NOTWITHSTANDING THE FOREGOING, SUCH LIMITATION OF LIABILITY SHALL NOT APPLY TO CLAIMS FOR WHICH THE PARTIES ARE OBLIGATED TO INDEMNIFY ONE ANOTHER, PURSUANT TO PARAGRAPHS 8.1 AND 8.2 ABOVE.
9.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement commences on the date set forth in the initial Order Form and continues until Your subscription granted in accordance with this Agreement has expired or been terminated.
10.2. Term of Services Subscriptions. The subscription purchased by You commences on the date You submit Your Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all subscriptions shall perpetually and automatically renew for additional periods equal to the expiring subscription term (typically one month), unless either party gives the other notice of non-renewal at least 2 business days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter.
10.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 2 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such five (5) day period, or (ii) if the other 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. Additionally, We may terminate this Agreement for cause without prior notice to You if you violate Section 3.3 (Prohibited Content).
10.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
10.5. Return of Your End User Data. Upon written request by You made within 30 days after the effective date of termination of a Services subscription, We will make available to You for download a file of Your End User Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your End User Data in Our systems or otherwise in Our possession or under Our control.
10.6. No Return of Your Application(s). Your Application(s) is/are created within the Services and is/are dependent upon the Services for its/their existence. As such, it is not possible for Us to export, reproduce, or deliver to you a file containing Your Application(s) in any format. Upon termination of this Agreement, We have no obligation or ability to provide or make available Your Application(s) to You or to any other party.
10.8. Surviving Provisions. Section 4 (Fees and Payment for Services), 5 (Proprietary Rights), 6 (Confidentiality), 7.3 (Disclaimer), 8 (Mutual Indemnification), 9 (Limitation of Liability), 10.4 (Refund or Payment upon Termination), 10.5 (Return of Your Data), 11 (Notices, Governing Law and Jurisdiction) and 12 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW AND JURISDICTION
11.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing by overnight courier or delivery service, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
11.2. Agreement to Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding the law governing principles of conflicts of law. The parties agree that jurisdiction and venue for any dispute relating to or arising out of this Agreement shall occur solely and exclusively in any federal or state court within the Suffolk County, Massachusetts, and the parties voluntarily and irrevocably consent to jurisdiction of such courts for the adjudication of any such dispute.
12. GENERAL PROVISIONS
12.1. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports. and You shall not permit Your employees or third parties to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
12.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, or employment relationship between the parties.
12.3. Publicity. Upon execution of this agreement, We reserve the right to use Your name, logo and any Application that You create using the Services for public relations and marketing purposes. This provision shall survive the expiration or termination of this Agreement.
12.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
12.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
12.7. Attorney Fees. You shall pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 4.3 (Invoicing and Payment). This clause shall supersede any indemnification against demands for attorneys fees afforded to You by Section 8.1. (Indemnification by Us).
12.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party.
12.9. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.