Metrics Arena
STANDARD TERMS AND CONDITIONS OF USE
Last Updated: August, 2024
Please read these TERMS AND CONDITIONS OF USE (“Terms”) carefully. Your access to, purchase of, and/or use of the Services (as defined below) constitutes your legally binding agreement to be bound by these Terms.
These Terms govern the user’s (“Customer”, “you”, or “your”) use of the websites, platform, applications, and software owned and/or operated by Metrics Arena, Inc. (“Company”, “we”, “us”, or “our”), to which these Terms are linked or referenced, including all content, features, and functionality, and related services (collectively, the “Services”). These Terms apply whether you are accessing the Services via a personal computer, wireless or mobile device, or any other technology or device. If you do not agree to these Terms, do not access or use the Services. The acceptance of these Terms and the execution of one or more Order Confirmations (as defined below) form the “Agreement”. For the purposes of these Terms, Customer and Company may be referred to herein individually as a “Party” and collectively as the “Parties”.
We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to modify, suspend, or discontinue the Services; modify and/or waive any Fees (as defined hereafter) charged in connection with the Services; and/or make available opportunities to some or all users of the Services. You agree that the Company shall not be liable to you or to any other person for any modification, suspension, or discontinuance of the Services or any component thereof.
1. Services
(a) Company agrees to provide the Customer with the Services, which shall include the use of Company’s proprietary software (“Software”) and access to its proprietary platform (“Platform”). The Services may be further defined in one or more Order Confirmations (each an “Order Confirmation” or “Order”) or the Customer shall have the option to purchase the Services through an online checkout portal by selecting the Services and agreeing to these Terms. Either method of ordering shall be incorporated into and made a part of this Agreement by this reference and called the “Order.”
(b) Customer may only adjust the Services ordered by executing a new or revised Order Confirmation or through an online checkout portal. Changes to the Services may result in an adjustment to the Fees, and will be subject to the following: (i) the term for the new Fees and new Service(s) will be coterminous with the preexisting Term (as defined hereafter); (ii) Fees will be the then-current Fees set by Company; (iii) any increase to the Fees which results from changes made in the middle of a Term will be charged in full on a pro-rated basis for the portion of the Term following such change; and (iv) any reduction in Fees that results from changes made in the middle of a billing month will not take effect until the end of the then-current Term and no partial refunds will be given.
(c) In the event of any conflict between these Terms and those contained in an Order Confirmation, the terms contained in the applicable Order Confirmation shall control.
(d) Although Company attempts to ensure the integrity and accuracy of the Platform, it makes no representations, warranties, or guarantees whatsoever as to the correctness or accuracy of the Platform and Content thereon. It is possible that the Platform could include typographical errors, inaccuracies, or other errors, and that unauthorized additions, deletions, and alterations could be made to the Platform by third parties. In the event that an inaccuracy arises, please inform Company so that it can be corrected. Company reserves the right to unilaterally correct any inaccuracies on the Platform without notice. Information contained on the Platform may be changed or updated without notice. Additionally, Company will have no responsibility or liability for information or Content posted to the Platform from any non-Company affiliated third party.
(e) In the event a product or service is listed at an incorrect price due to typographical error or error in pricing information received from our suppliers, we have the right to refuse or cancel any orders placed for the product/service listed at the incorrect price. We have the right to refuse or cancel any such orders whether or not the order has been confirmed and your credit or debit card charged. If your credit or debit card has already been charged for the purchase and your order is canceled, we shall promptly issue a credit to your credit or debit card account in the amount of the incorrect price.
2. Fees
(a) Customer agrees to pay Company the fees (“Fees”) upfront and as set forth in each applicable Order Confirmation or online checkout portal pursuant to the payment schedule contained therein. Customer acknowledges and agrees that any failure by Customer to make any timely payment(s) may result in Company suspending its provision of Services and restricting Customer’s access to the Platform. The Parties agree that such suspension or restriction shall not be considered a breach of this Agreement or any Order Confirmation. If Customer repeatedly fails to pay any Fees which are due to Company, in addition to its other rights and remedies contained herein, Company shall have the right to terminate this Agreement and all Orders (including any Order Confirmations then in effect at the time of termination) without any liability to Customer. Customer acknowledges and agrees that except as otherwise set forth herein, all Fees are nonrefundable.
(b) If any invoiced amount is not received by Company by the due date, then without limiting Company’s rights or remedies, (i) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (ii) Company may condition future subscription renewals and Orders on payment terms shorter than those specified in the then-current Order.
(c) Customer hereby acknowledges and agrees to reimburse Company for all reasonable costs and expenses incurred in collecting undisputed delinquent amounts.
3. Confidential Information
(a) Each Party hereto may be allowed access to the confidential or otherwise proprietary information of the other Party which is either (i) marked as confidential or proprietary or (ii) not marked or disclosed as confidential, but should reasonably be understood to be confidential due to the nature of the disclosed information and/or the circumstances surrounding disclosure (“Confidential Information”). For the purposes of this Section 3, the Party that receives Confidential Information in the performance or receipt of Services shall be referred to as the “Receiving Party” and the party that discloses Confidential Information shall be referred to as the “Disclosing Party”.
(b) Confidential Information shall include, but shall not be limited to information relating to the Disclosing Party’s (including that of its Affiliates or subsidiaries) business, finances, technology, products, pricing, services, strategies, customers, trade secrets, know-how, ideas and inventions, designs, drawings, specifications, roadmaps, and strategies in whatever form maintained or disclosed, whether documentary, computerized, electronic, oral or otherwise which (iii) is or has been disclosed to the Receiving Party whether prepared by the Disclosing Party and/or its advisors, agents, or otherwise, or (iv) is prepared by the Receiving Party, its representatives, or others and that contains or otherwise reflects or is based upon, in whole or in part, any of the Disclosing Party’s Confidential Information. The Receiving Party agrees that it will maintain the secrecy of any Confidential Information disclosed by the Disclosing Party to the Receiving Party. The Receiving Party agrees that it shall not use any Confidential Information for any purpose other than the performance or receipt of Services hereunder. The Receiving Party agrees that the Disclosing Party shall remain the sole owner of all Confidential Information it disclosed and that nothing contained herein shall be construed as granting to the Receiving Party any right, title, or license to use or possess any Confidential Information for any purpose other than the performance or receipt of Services hereunder.
(c) The term “Confidential Information” shall not include any information that is: (i) proven to be already known to or rightfully in the possession of the Receiving Party or its Personnel at the time of disclosure by the Disclosing Party, (ii) publicly available or otherwise in the public domain through no breach of this Agreement, or (iii) rightfully obtained by the Receiving Party from any third party without restriction and who is entitled to disclose such information. Notwithstanding the foregoing, the Receiving Party shall be entitled to disclose Confidential Information as required pursuant to judicial action, or governmental regulations or other requirements; provided that the Receiving Party has notified the Disclosing Party prior to such disclosure and used commercially reasonable efforts to cooperate with the Disclosing Party’s attempts to contest and avoid such disclosure, at the Disclosing Party’s sole expense.
(d) Immediately upon termination of this Agreement or any applicable Order Confirmation, or at any time upon written request from the Disclosing Party, the Receiving Party agrees that it will immediately deliver to the Disclosing Party, in a format reasonably chosen by the Disclosing Party, or at the option of the Disclosing Party destroy, all documents and materials containing any Confidential Information and provide a written certification of destruction. Notwithstanding the foregoing, (i) the Receiving Party shall be permitted to retain copies of the Disclosing Party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes, and (ii) neither Party will be required to search archived electronic back-up files of its computer systems for the other Party’s Confidential Information in order to purge the other Party’s Confidential Information from its archived files; provided further, that any Confidential Information so retained will (x) remain subject to the obligations and restrictions contained in this Agreement, (y) be maintained in accordance with the Receiving Party’s document retention policies and procedures, and (z) the Receiving Party will not use the retained Confidential Information for any other purpose.
4. Term
The term of this Agreement shall commence as of the Effective Date set forth above in the Order Confirmation or during the online checkout process and shall continue for as long as Company provides the Services under each applicable Order (“Initial Term”). The Initial Term of each applicable Order shall automatically renew for additional periods of the same length (each a “Renewal Term”) until Customer notifies Company in writing (email to suffice) that it does not wish to renew and such notice is made at least fifteen (15) days prior to the end of the then-current Term; provided however that the Parties may agree to increase the foregoing notice period for certain products or Services in an Order Confirmation. For the purposes of this Agreement, the terms “Initial Term” and any “Renewal Term” may be collectively referred to as the “Term”.
5. Termination
(a) Either Party may terminate this Agreement or any applicable Order in the event that the other Party commits a material breach and fails to cure such breach, if curable, to the reasonable satisfaction of the non-breaching Party within fifteen (15) days following receipt of written notice of such breach. Any notice of alleged breach hereunder shall include sufficient information to enable the alleged breaching Party the opportunity to cure hereunder, if curable.
(b) Either Party may terminate this Agreement if (i) the other Party files a petition in bankruptcy, insolvency, or like proceedings, or if any petition seeking reorganization, readjustment, or rearrangements of the business of such Party shall have been filed and not stayed or discharged for a period of thirty (30) days, or (ii) if a receiver or trustee shall be appointed for the property and assets of either Party and not discharged for a period of thirty (30) days.
(c) In the event of a termination for cause under Sections 5(a) or 5(b), except for a material breach by Company which is not cured, the Customer acknowledges and agrees that it shall be required to pay all Fees for the remainder of the applicable Term. Customer shall have no right to terminate this Agreement and/or an Order for convenience.
(d) In the event this Agreement expires or is terminated for any reason, Customer acknowledges and agrees that Company has no obligation to retain any Customer Data.
6. Accounts
Customer is solely responsible for all activity occurring under its Company account(s) (“Account”) as well as any account that customer has with any retail operation – e.g., Amazon®, Walmart®, Target®, etc. – (each a “Merchant”). Customer shall abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with its use of the Account and Merchant Accounts, including those related to data privacy, international communications, and the transmission of technical or personal data.
Customer shall: (a) notify Company immediately of any unauthorized use of any password or Account or any other known or suspected breach of security; (b) report to Company immediately and use best efforts to stop immediately any copying or distribution of Company intellectual property that is known or suspected by Customer; (c) not impersonate another user or provide false identity information to gain access to the Platform, the Services, or any Account; (d) not use the Platform, the Services, or any Account to defame, abuse, harass, threaten, or otherwise violate the legal rights of others; (e) not publish, post, upload, email, distribute, or disseminate any defamatory, misleading, infringing, or unlawful content; and (f) not collect, store, or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations.
7. Marketplace Account
Customer hereby grants Company access to its online administration accounts with each Marketplace for which Company provides Services (each a “Marketplace Account”). Notwithstanding the foregoing grant of access or anything to the contrary contained either herein or on each applicable Marketplace’s standard terms of use, Customer shall be fully responsible and solely liable for all activity in each Marketplace Account unless any such activity is solely attributable to the willful misconduct of Company.
Customer agrees that it shall be solely responsible for adherence to any flow down obligations required under any Marketplace Account terms and conditions, including any revisions made to such terms and conditions which may possibly affect the Platform or the Services.
8. Intellectual Property
(a) All trademarks, patents, copyrights, and other intellectual property rights owned by either Party prior to the provision of any Services by Company shall be and shall continue to be owned solely by such Party, and nothing herein shall be deemed to confer any rights to any such intellectual property on the other Party, except as provided herein.
(b) Company alone (and its licensors, where applicable) shall own all right, title, and interest to the Services and Platform, including any derivatives, suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or any other party relating to the Service, and any aggregated metrics, data, and trends compiled by Company. This Agreement does not convey to Customer any rights of ownership in or related to the Services, the Platform, any Account, or any intellectual property rights of Company. The Company name, the Company logo, and the product and service names associated with the Services and the Platform are trademarks of Company, and no right or license is granted to use them hereunder. The Platform and Company’s proprietary website located at www.metricsarena.com (the “Site”) may include trademarks, service marks, or logos of third parties, all of which are the property of their respective owners. Additionally, all content published on the Site belongs to Company and/or its licensors under applicable copyright law.
(c) Notwithstanding anything to the contrary contained herein, Company shall be entitled to adjust the scope of the Services and the functionality of the Platform to reflect the continuing development of the Service and technical advances. Customer acknowledges and expressly agrees that any results and proceeds from such adjustments, without respect to whether the Customer had any influence or input, shall accrue to the sole benefit of Company.
(d) You are prohibited from violating or attempting to violate the security of the Platform, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; or (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (c) accessing or using the Platform or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law. You may not use any scraper, crawler, spider, robot, or other automated means of any kind to access or copy data on the Platform, deep-link to any feature or content on the Platform, bypass our robot exclusion headers, or other measures we may use to prevent or restrict access to the Platform. Violations of system or network security may result in civil or criminal liability. Company will investigate occurrences that may involve such violations and may involve and cooperate with law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software, or routine to interfere or attempt to interfere with the proper working of the Platform or any activity being conducted on the Platform.
9. Customer Data
(a) The term “Customer Data” shall include, without limitation, data related to advertising campaigns, inventory and pricing information, account performance (from either Customer or any Marketplace), sales tax calculation, transaction settlement, or any other data that Customer submits to the Platform in the course of using the Services.
(b) Customer hereby grants Company a worldwide, royalty-free, non-exclusive right to use, reproduce, create derivative works of, distribute, perform, transmit, and publish Customer Data for the sole and exclusive purposes of (i) processing Customer Data in connection with providing the Service to Customer, and (ii) storing or hosting the Customer Data in a remote database or on the Platform for access by Customer. Customer Data is not shared with other customers or with any other third party by Company; provided that Company reserves the right to use Customer Data to compile, analyze, and disclose to third parties aggregated metrics, data, and trends related to the use of its Services for its own machine learning and artificial intelligence processes as long as such metrics, data, and trends do not contain uniquely identifiable Customer Data.
(c) Customer shall have sole responsibility for the accuracy and quality of all Customer Data. Company shall not be responsible or liable for the deletion, correction, destruction, damage, loss, or failure to store any Customer Data. Use of the Services by Customer is subject to existing laws and legal processes. Nothing contained in this Agreement will limit Company’s right to comply with governmental, court, and law enforcement requests or requirements relating to Customer’s use of the Services, which may include disclosing any Customer Data to the applicable authorities.
(d) Notwithstanding the foregoing or anything to the contrary contained herein, Customer acknowledges and agrees that Company may share non-personal and non-confidential identifiers, such as the advertiser or seller id, with third parties for purposes of troubleshooting and auditing.
10. Privacy of Personal Information
Please consult the Company’s Privacy Policy for information about the Company’s practices and policies with respect to the collection, use, and sharing of personal information, often referred to as personal data in the European Union.
11. License
(a) Company hereby grants Customer a non-exclusive, non-transferable, limited, revocable, worldwide right to access the Platform and use the Services during the Term, solely for Customer’s own internal business purposes, subject to the terms and conditions of this Agreement (“License”).
(b) Customer agrees it shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party the Services or the Platform in any way; (ii) modify or make derivative works based upon the Service or Platform; (iii) embed the Service as an “iframe” or “frame” from within another application; or (iv) reverse engineer or access the Service or Platform in order to (A) build a competitive product or service, (B) build a product using ideas, features, functions, or graphics that are similar to those related to the Service or Platform, or (C) copy any ideas, features, functions, or graphics of the Service or Platform.
(c) Customer acknowledges and expressly agrees that the Services and Accounts cannot be shared or used by more than one individual unless (and solely to the extent that) the terms of the applicable Order Confirmation allow for sharing within Customer’s internal organization. Sharing of access to the Services, Platform, or Accounts outside of the Customer’s organization is not allowed without the express written permission of Company, such permission to be withheld at Company’s sole discretion. The proper assignment of usernames and passwords for Accounts and adherence to all terms of this Agreement and any Order Confirmation are the sole responsibility of Customer.
(d) Customer is solely responsible for maintaining the confidentiality of all usernames and passwords related to all Accounts. Usernames and passwords may not be shared by more than one individual and may not be transferred from one individual to another unless the original User no longer requires, and is no longer permitted, access to the Service. Customer may use the Service only for its internal business purposes and shall not: (i) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (ii) interfere with or disrupt the integrity or performance of the Service or the data contained therein, or Company’s sites, servers, or networks; (iii) attempt to gain unauthorized access to the Service or its related systems or networks; or (iv) take any action that imposes an unreasonably or disproportionately large load on Company’s infrastructure. You agree to defend, indemnify, and hold Company harmless from and against all third-party claims, damages, and expenses (including reasonable attorneys’ fees) against or incurred by Company arising out of your breach of this Agreement or violation of applicable law, your use or access of the Platform, or access by anyone accessing the Platform using your user ID and password.
12. Proprietary Information
(a) All results and proceeds from Company’s provision of Services hereunder, including, without limitation, all copyrights, patents, trademarks, data, information, and materials owned, licensed, or created by Company, shall be owned by Company (“Proprietary Information”). Company agrees to provide to Customer, at no additional charge, certain website analytics (including number of visitors, page views, bounce rate, traffic trends by device, and traffic sources) as well as customer testimonials and feedback. In no instance shall any provision of any Proprietary Information by Company to Customer hereunder convey any ownership interest in the Proprietary Information to Customer. Any such disclosures shall be subject to the applicable confidentiality provisions contained herein. Customer acknowledges and agrees that Company cannot and shall not be required to disclose any redemption statistics.
(b) Customer agrees that Company shall have a gratis, royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Platform and Services any suggestions, enhancement requests, recommendations, or other feedback provided by Customer, including those made by its employees, contractors, or advisors.
13. Warranty and Representations
(a) Company Limited Warranty.
(i) Company warrants that the Services will: (A) be performed with commercially reasonable care in accordance with current reasonable industry standards; (B) be performed in accordance with all applicable laws; and (C) not be of a libelous or defamatory nature.
(ii) Company represents that (A) the Platform shall perform materially in accordance with the provided materials, and (B) the functionality of the Platform will not be materially decreased during the Term from the functionality provided at the start of the Term.
(b) Customer Warranty. Customer warrants and represents that (i) it has the right and authority to enter into this Agreement and (ii) the provision of access to any Merchant Account is authorized by such Merchant.
14. Disclaimer of Warranty
COMPANY DOES NOT WARRANT THAT THE PLATFORM OR SOFTWARE CONTAINED THEREIN IS ERROR-FREE OR THAT EITHER WILL RUN UNINTERRUPTED, OR THAT ANY SOFTWARE ERRORS CAN OR WILL BE CORRECTED. THE PLATFORM, THE SERVICE, AND ANY SOFTWARE IS PROVIDED ON AN ‘AS IS’ BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, SMS MESSAGING, AND OTHER FORMS OF ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. SECTION 13(a) CONTAINS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY COMPANY. COMPANY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING (BUT NOT LIMITED TO) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY CANNOT AND DOES NOT EXPRESSLY OR IMPLIEDLY MAKE ANY GUARANTEE, REPRESENTATION, OR WARRANTY REGARDING ANY RESULTS, OUTCOMES, OR PERFORMANCE BASED ON CUSTOMER’S USE OF THE SERVICES AND/OR PLATFORM.
15. Indemnification
(a) Company agrees to defend, indemnify, and hold harmless Customer, its subsidiaries and affiliates, and their respective officers, directors, employees, and agents from and against all costs, damages, claims, and liabilities brought by third parties (including reasonable outside attorney’s fees) arising out of or related to: (i) any breach of this Agreement by Company which is not cured pursuant to the cure provisions contained herein; (ii) any grossly negligent or willful act by Company; and (iii) any personal injury, death, or property damage directly caused by Company.
(b) Customer agrees to defend, indemnify, and hold harmless Company, its subsidiaries and affiliates, and their respective officers, directors, employees, and agents from and against all costs, damages, claims, and liabilities (including reasonable outside attorney’s fees) arising out of or related to: (i) any breach of this Agreement by Customer which is not cured pursuant to the cure provisions contained herein; (ii) any negligent or willful act or omission by Customer or its employees, contractors, and/or subcontractors; or (iii) any personal injury, death, or property damage caused by Customer, its employees, or Customer’s products or services as applicable.
16. Limitation of Liability
(a) Each Party’s entire liability under or in connection with this Agreement or any Order Confirmation, whether arising in contract, tort (including negligence and breach of statutory duty) or otherwise, shall not exceed the amounts of Fees actually paid by Customer to Company for the Services set forth in the applicable Order Confirmation in the prior six (6) months from the date on which the claim arose.
(b) Company shall not be liable to Customer for any loss, damage, or destruction of software or systems (temporary or otherwise) which may occur during the provision of Services, accessing the Platform, or using the Software, except and only to the extent that it is solely caused by Company. Company shall not be liable to Customer if any hardware or software used in conjunction with the Services or Platform malfunctions, fails, or is otherwise unable to communicate with other systems or internet users (including where computer viruses have caused such failures) such that the use of the Services is hindered or impeded.
(c) IN NO EVENT WHATSOEVER SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, SAVINGS, BUSINESS, BENEFITS, DATA, GOODWILL, OR REVENUES OF ANY KIND, EVEN IF THE PARTY SO AFFECTED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OR FORM OF ACTION (WHETHER BREACH OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE).
17. License to Use Customer Marks
Customer hereby grants to Company the non-exclusive, non-transferable, limited, revocable right to use Customer’s name, trademarks, and logo during the Term to communicate the relationship with Customer. Customer hereby warrants and represents that it is the true and sole owner of registrations, applications, and/or common law rights in and to the trademark, copyright, or other intellectual property rights in and to Customer’s name, trademark, and logo. Customer agrees that Company may identify Customer as a Company customer and may display the Customer logo on Company’s “partners page” on the Site.
Company may use Customer’s name, logo, and trademarks during the Term to identify Customer as a licensee of the Services. Customer further consents to Company using Customer’s success statistics (as percentages only or, alternatively, in a de-identified manner) for Company’s marketing purposes (i) on digital properties such as the website, social media, and press releases, (ii) in downloadable assets such as eBooks, case studies, reports, and award submissions, and (iii) in event signage and slides. Company agrees to use commercially reasonable efforts to promptly cease such usage if Customer revokes its consent expressly in writing.
18. Force Majeure
Neither Company nor Customer shall be liable for any delay in performance or non-performance directly or indirectly caused by or resulting from acts of God, fire, flood, accident, pandemic, epidemic, public health crisis, quarantine, riot, war, government intervention, embargoes, employee strikes, or other difficulties which are beyond the reasonable control and without negligence or other fault of such party (“Force Majeure”). Any such Force Majeure event shall not relieve Customer of its payment obligations.
19. Governing Law, Jurisdiction & Venue.
This Agreement and each Order Confirmation and its interpretation, performance, or any breach thereof shall be construed in accordance with and all questions with respect thereto shall be determined by the laws of the Commonwealth of Massachusetts (without giving regard to the conflict of laws rules thereof), applicable to contracts made and entirely performed therein, and venue and jurisdiction in any action involving, relating to, and/or arising from this Agreement and each Order Confirmation shall lie solely and exclusively with the courts in the Commonwealth of Massachusetts without regard to any conflicts of law provision.
20. Dispute Resolution
(a) Unless otherwise expressly set forth in an applicable Order Confirmation, the Parties will attempt in good faith to resolve any dispute arising out of the performance of or otherwise relating to this Agreement promptly by negotiations between executives who have authority to settle the controversy. Either Party may give the other Party written notice of any dispute not resolved in the normal course of business pursuant to the notice provisions contained herein. Within twenty (20) days after delivery of said notice, executives of both Parties will meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to exchange relevant information and to attempt to resolve the dispute. If a negotiator intends to be accompanied at a meeting by an attorney, the other negotiator will be given at least seven (7) days’ notice of such intention and may also be accompanied by an attorney. All negotiations pursuant to this clause are confidential and will be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any comparable state provision.
(b) Subject to Section 21(a) contained above, any dispute that might arise between the Parties relating to or arising from this Agreement (except for the enforcement of the confidentiality provisions contained herein), any Order Confirmation or the Services shall be settled by binding arbitration in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association (“AAA”), except where those rules conflict with this provision, in which case this provision controls. Arbitration shall be conducted before a single arbitrator selected from the AAA’s National Roster of Arbitrators. Each party shall have the right to meet and interview the potential arbitrator(s) for no more than one (1) hour each prior to the selection of an arbitrator. The arbitration shall be held, and Company and Customer irrevocably consent to arbitrate, in Boston, Massachusetts unless they mutually agree upon an alternative location. The arbitration shall be conducted in English. In rendering the award the arbitrator must apply the substantive law of Massachusetts (except where that law conflicts with this clause); however, the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. The arbitrator shall render a written opinion setting forth findings of fact and conclusions of law with the reasons therefor stated. Under no circumstances shall the arbitrator award damages in excess of or inconsistent with the limitations contained in the Section 16 of this Agreement. Any court with jurisdiction shall enforce this clause and enter judgment on any award. Company and Customer will agree upon, within forty-five (45) days after arbitration is initiated or, if they fail to agree, the AAA will design, procedures that they will follow to assure that the arbitration will be concluded and the award rendered within no more than six (6) months from selection of the arbitrator.
21. Entire Agreement
This Agreement constitutes the entire agreement and supersedes any and all other understandings and agreements between the Parties with respect to the subject matter hereof and no representation, statement or promise not contained herein shall be binding on either party. Any Order Confirmation may only be modified by a written amendment that is signed by persons authorized to sign on behalf of each Party hereto or by the substitution of a replacement Order Confirmation. The Parties agree that notwithstanding the foregoing or anything else to the contrary contained herein Company reserves the right to change, modify and/or update these Terms which form a part of the Agreement. Customer acknowledges and agrees that it is the sole obligation of Customer check these Terms for any changes, modifications and/or updates. This Agreement or any Order Confirmation shall not be supplemented or modified by any course of dealing or trade usage. Each Order Confirmation, including any work performed whether under a signed Order Confirmation or not, shall be governed by the terms of this Agreement. In the event of any conflict between the terms contained in this Agreement and those found in any applicable Order Confirmation, the latter shall control. If Customer requires the production and inclusion of any purchase order then Company expressly rejects any terms contained therein and the Parties expressly agree that any Customer terms contained in any purchase order shall have no effect and be considered void.
22. Authority
Each Party represents and warrants that the individual entering into this Agreement on behalf of Customer is duly authorized to bind Customer, and this Agreement shall constitute the valid and binding agreement of such Party, enforceable in accordance with these Terms.
23. Independent Contractors
Company shall, at all times, be deemed to be independent contractors and shall not be deemed to be employees, agents, joint venturers, partners or representatives of Customer, or be authorized or empowered to create any claim, debt or obligation on behalf of Customer.
24. No Guarantee
Company makes no representation of any kind concerning the results of Customer’s use of the Services or the Platform. Company makes no assurances as to any particular outcome, including increased income, sales, and/or any other outcome, based on the use of the Service, the Platform or any other products or service offered by the Company.
25. Miscellaneous
The Parties acknowledge and agree that: (a) this Agreement shall inure to the benefit of and be binding upon the Parties hereto and to their respective successors and legal representatives; (b) no provisions of this Agreement or any Order Confirmation will be waived by any Party except in writing; (c) the Parties hereto agree that the waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of that provision by the same Party, or any other provision or condition of this Agreement; (d) if any provision or application of this Agreement or any Order Confirmation shall be held invalid or unenforceable, the remaining provisions and applications of this Agreement or any Order Confirmation shall not be affected, but rather shall remain valid and enforceable; (e) the delivery of an executed copy of this Agreement or of any Order Confirmation made by facsimile transmission and/or electronic signature by any Party to the other Party hereto shall constitute effective delivery of such document by such transmitting party to such receiving party, and any such copy so delivered shall be deemed equivalent to an executed original; and (f) this Agreement and any Order Confirmation may be signed in two or more counterparts, and all counterpart signature pages, taken together, shall constitute one executed original.
26. Survival
Sections 2, 3, 5, 8, 11, 12 through 16, and 19 through 26 as well as those obligations or responsibilities contained in this Agreement and each Order Confirmation which are continuing in nature shall survive the expiration or termination of this Agreement or the applicable Order Confirmation.
These Terms were last revised on August, 2024.
