3Cinteractive Corp. Master Services Agreement Terms and Conditions
The following terms and conditions shall be incorporated by reference and deemed a part of the 3Cinteractive Corp. Master Services Agreement by and between 3C and Client. 3C shall have the right to amend these terms and conditions from time to time in its sole and absolute discretion and, in the event of any such amendment, Client shall be bound by such amended terms and conditions. Capitalized terms used and not defined herein shall have the respective meanings ascribed thereto in the Master Services Agreement.
1.1 “3C Marks” shall mean the trademarks, service marks and logos owned or licensed by 3C.
1.2 “3C Property” shall mean the Platform (including any derivatives or customizations thereof), 3C Marks, 3C Confidential Information and any related documentation and all related and intellectual property, including, without limitation, all copyrights, trade secrets, patents, trade marks and other intellectual property rights therein and including any Derivative Works made during the Term or thereafter.
1.3 “Carrier” shall mean any wireless carrier (or any consortium thereof) that delivers Services to an End User.
1.4 “Client Marks” shall mean the trademarks, service marks and logos owned or licensed by Client.
1.5 “Confidential Information” shall mean all information disclosed by one Party to the other Party (whether written, oral or recorded on any media or in any format) related to the disclosing Party’s business, products, processes and services, including, without limitation:
1.5.1 a Party’s business plans, Content, personally identifiable customer information, technology, prices, operational information, customer’s processes, information that is proprietary in nature and other like information;
1.5.2 the Platform, Services and any software or documentation provided by one Party to the other Party;
1.5.3 Carrier technical information, economic data and other like information;
1.5.4 the fact that a Party has entered into this Agreement, received Confidential Information or that any discussions or negotiations are or were ongoing between the Parties;
1.5.5 any other document or information which comes into the receiving Party’s possession as a result of this Agreement; and
1.5.6 any information, technical data, or know-how, including, but not limited to, that which relates to research, product plans, products, services, customers, customer’s phone numbers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing, finances, development programs and activities, technical information and data, organizational structure, business plans and strategies, sales, pricing profitability and marketing strategies, pending litigation, litigation strategies, contingent liabilities, prototypes, and tools of 3C or Client. Confidential Information shall not include information, technical data or know-how which (i) is in the possession of 3C or Client at the time of disclosure as shown by the files and records of such Party, immediately prior to the time of disclosure; (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper inaction or action of the receiving Party; (iii) is approved by the disclosing Party in writing for release; (iv) is developed by the receiving Party without reliance on or use of Confidential Information of the disclosing Party; (v) is, to the receiving Party’s knowledge, rightfully received on a non-confidential basis from a third party free to disclose it without obligation to the disclosing Party; (vi) is required to be disclosed by Applicable Law or proper legal, governmental or other competent authority, provided, that, the receiving Party, if legally permitted, shall promptly notify the disclosing Party prior to such requested or required disclosure so that the disclosing Party may contest the disclosure or seek a protective order and the receiving Party shall limit the disclosure to the minimum amount that is legally required to be disclosed; or (vii) is disclosed to establish rights or enforce obligations under this Agreement, provided, that, the Confidential Information shall be disclosed only to the extent necessary and provided that the receiving Party shall use commercially reasonable efforts to ensure that the information is treated as confidential.
1.6 “Content” shall mean any and all information provided, inputted or uploaded to the Platform by Client or by 3C at Client’s direction.
1.7 “Device” shall mean a wireless device that is able to send and receive Messages.
1.8 “End User” shall mean a customer of Client or a person who has elected to receive communications from Client.
1.9 “End User Data” means information from or about an End User in connection with End User’s access to the Services that (i) identifies an End User (by name, signature, address, telephone number or other unique identifier), or (ii) that can be used to authenticate that individual (including, without limitation, passwords or PINs, biometric data, unique identification numbers, answers to security questions or other personal identifiers). 3C agrees that all End User Data and any anonymous or aggregate data collected by 3C during Client’s or an End User’s use of the Services is, as between the Parties hereto, Client’s Confidential Information. Notwithstanding anything in this Agreement to the contrary, Client grants 3C a non-exclusive, transferable, perpetual, irrevocable license to use all End User Data collected by 3C during Client’s or an End User’s use of the Services on an anonymized and aggregated basis within 3C business operations, marketing or sales activities and/or administrative purposes, including, but not limited to, monitoring aggregate metrics and general system usage.
1.10 “Governmental Body” shall mean any foreign, federal, state, municipal, political subdivision or other governmental department, commission, board, bureau, agency or instrumentality.
1.11 “Information” shall mean the data and text, in digital electronic form contained in a Message supplied by Client and sent by Client, or 3C on behalf of Client, to an End User.
1.12 “Message” shall mean a wireless communication able to be sent to and received from a Device.
1.13 “Platform” shall mean the software and technology owned or licensed by 3C and used to deliver mobile Messages from 3C and third party companies to target wireless audiences over wireless networks.
2.0 3Cinteractive Corp. Responsibilities.
2.1 3C will provide the Services to Client in accordance with and subject to the Agreement.
2.2 3C grants Client the right to use the Services in accordance with and subject to the Agreement.
2.3 3C will provide all reasonable assistance to Client in connection with Client’s compliance with (i) any conditions, which are, at any time, imposed by any Governmental Body, Carrier, any company that provides products and/or services to 3C, the CTIA or the Mobile Marketing Association, and (ii) any Applicable Laws, each of (i) and (ii) which are applicable to or affect the Services or this Agreement.
2.4 3C will not provide any support, resources or other cooperation (or to conceal or disguise the nature, location, source or ownership of support, resources or other cooperation) to any organization designated by the United States government as a foreign terrorist organization and 3C shall have the right to terminate this Agreement (including all Attachments hereto) in the event Client is designated as such.
2.5 3C represents, warrants and covenants that 3C has all rights and authority to enter into this Agreement and perform its obligations hereunder and that the entering into of this Agreement and the performance of its obligations hereunder do not violate any other agreement to which 3C is a party.
3.0 Client Responsibilities.
3.1 Client shall at all times conform to, and comply with, any 3C requirements, Governmental Body requirements, Carrier requirements (including 3C’s existing Carrier contracts), requirements imposed by any company that provides products and/or services to 3C, requirements and guidelines imposed or set forth by the Mobile Marketing Association, requirements and guidelines imposed or set forth by the CTIA, and Applicable Laws, relating to Client’s use of the Services and this Agreement, as any of the foregoing may be amended, modified, changed or updated from time to time. With respect to any changes to Governmental Body requirements, Applicable Laws, CTIA guidelines or requirements, Mobile Marketing Association guidelines or requirements, and/or Carrier requirements, Client shall comply with such changes (i) by the Governmental Body, Applicable Law, Carrier, CTIA, or Mobile Marketing Association, as the case may be, deadline for such changes, (ii) within five (5) business days of receiving notice from 3C or (iii) within five (5) business days of Client’s becoming aware thereof, whichever is earlier. With respect to any changes to 3C requirements or any requirements imposed by any company that provides products and/or services to 3C (other than Carriers), Client shall comply with such changes within five (5) business days of receiving notice from 3C.
3.2 Client shall promptly provide 3C with such accurate written guidelines, provisions or other information (collectively, “Directions”), as may reasonably be required by 3C in order to perform the Services. 3C will rely on any Directions provided by Client, and 3C shall incur no liability to Client as a result thereof.
3.3 Client shall be responsible for the procurement of any and all licenses, approvals, qualifications, permits or certificates, where required, in connection with Client’s use of the Services and this Agreement.
3.4 Client shall provide assistance to 3C, as requested by 3C, in connection with 3C’s compliance with (i) any conditions, which are, at any time, imposed by any Governmental Body, Carrier, any company that provides products and/or services to 3C, the CTIA, the Mobile Marketing Association, or 3C, and (ii) any Applicable Laws, each of (i) and (ii) which are applicable to or affect 3C’s provision of the Services to Client or this Agreement.
3.5 Client shall be solely responsible for any liability relating to the Client Information and Client Content.
3.6 Client shall ensure that its collection, access, use and disclosure of End User Information shall comply with all Applicable Laws, rules and regulations, including, without limitation, laws governing marketing by telephone, direct mail, e-mail, wireless text messaging, fax and any other mode of communication (collectively, “Privacy Laws”). Client shall, at all times, perform its obligations hereunder in such a manner as not to cause 3C to be in violation of any Privacy Laws, Carrier requirements, requirements imposed by any company that provides products and/or services to 3C, requirements or guidelines imposed or set forth by the CTIA, requirements or guidelines imposed or set forth by the Mobile Marketing Association, Governmental Body requirements or Applicable Laws.
3.7 Client shall submit to 3C for its review and approval (such approval not to be unreasonably withheld or delayed), and the approval of each Carrier whose approval is required, an advance copy of all Program scripts, including the opt-in process, and all advertising, promotional and fulfillment material to be used in connection with any of Client’s Programs or otherwise relating to this Agreement or the Services to be provided hereunder by 3C to Client (“Program Materials”), and any changes to previously approved Program Materials. In no event shall Client use any of the Program Materials, implement a Client Program or make any changes to the Program Materials or a Client Program until such time as Client has obtained the approval of 3C and any Carrier whose approval is required. Client acknowledges and accepts the fact that Carriers may have a role in the approval process and obtaining such approval may cause some delays.
3.8 Client represents, warrants and covenants that Client has all rights and authority to enter into this Agreement and perform its obligations hereunder and that the entering into of this Agreement and the performance of its obligations hereunder do not violate any other agreement to which Client is a party.
5.0 Compliance with Governmental Requirements and Carrier Agreements and 3C Requirements.
5.1 3C reserves the right to discontinue its provision of Services and/or terminate this Agreement (including all Attachments) if the character of Client’s promotion or advertising is deemed unlawful or is otherwise inconsistent with any of the policies, guidelines or the restrictions contained in this Agreement, including, without limitation, any requirements imposed by 3C or any company (including Carriers) that provide products and/or services to 3C. 3C, in its sole discretion, may impose as a business matter, certain additional restrictions and limitations with respect to the Services and the use thereof, including, but not limited to, restrictions concerning subject matter, credit, monetary and/or volume limitations and age based limitations (although 3C shall not be required to make any legal determinations whatsoever, and no legal opinion is to be inferred by virtue of the imposition or failure to impose any such restrictions or limitations).
5.2 Client shall comply with all Applicable Laws, rules, regulations, orders and Directives of the United States, any state, local municipality and foreign country, including, but not limited to, the Telephone Consumer Protection Act of 1991 (as amended, “TCPA”) and those governing, advertising, privacy or disclosures to customers. To the extent applicable to the Services provided by 3C to Client, Client shall comply with the CTIA and MMA guidelines as well as all applicable Carrier guidelines best practice, acceptable use policies or any other Carrier published documentation or guidelines (collectively “Guidelines”). Guidelines may be modified at the sole discretion of the CTIA, MMA or Carrier(s), as the case may be, and without notice.
5.4 To the extent applicable to the Services provided by 3C to Client hereunder, 3C acknowledges and agrees that in the event one of Client’s customers opts-out from a program (A) by properly sending a Message (e.g., texting the word “STOP”) to Client’s short code provisioned with the Platform or (B) in another manner and Client properly inputs such opt-out into the Platform, 3C will prevent such customer from being sent additional Messages in connection with such program in violation of established laws, rules and regulations, including, but not limited to, the TCPA, provided, that 3C’s obligations set forth in this sentence shall not apply if (1) subsequent to any such opt-out, Client, in any manner, utilizes the Platform, or requests 3C utilize the Platform, to send a Message to such customer in connection with such program (x) without utilizing the Platform’s functionality to check such customer’s opt-in/opt-out status with respect to such program immediately before so doing, or (y) after utilizing the Platform’s functionality which indicated that such customer was opted out with respect to such program, (2) Client, at any time, configures the Platform to send a Message to a customer that is opted-out from such program, (3) subsequent to any such opt-out, such customer, in compliance with applicable laws, rules and regulations, properly opts back in to such program by sending a Message(s) to Client’s short code or otherwise, or (4) Client enters such customer’s phone number, or requests 3C enter such customer’s phone number, into the Platform as a user that is opted-in to such program without Client having obtained a proper opt-in from such customer in compliance with applicable laws, rules and regulations, including, but not limited to, the TCPA. Client acknowledges and agrees to implement and utilize a procedure whereby Messages will not be sent to users other than in compliance with the TCPA and all other applicable laws, provided, that, Client’s obligation set forth in this sentence shall not apply to the extent of 3C’s obligations set forth in the immediately preceding sentence. A Party failing to comply with its obligations set forth in the first two sentences of this Section 5.4 shall be deemed a “Failing Party”. By not complying with the foregoing obligations, whether negligently, on purpose or inadvertently, in the event a recipient receives a text Message, after opting out or before properly opting-in, it may subject the Client and/or 3C to significant penalties, fines and legal actions. Subject to the terms and conditions set forth in Article 6.0, this Section 5.4 and any other applicable terms and conditions set forth in this Agreement, the Failing Party shall indemnify the Indemnified Parties from and against any and all Losses arising out of or resulting from any recipients who have previously opted out or not properly opted-in receiving text Messages from the Client, or 3C on behalf of Client, to the extent that the Failing Party failed to comply with its obligations set forth in the first two sentences of this Section 5.4. SECTION 5.4 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY CLAIMS COVERED UNDER THIS SECTION 5.4, PROVIDED, THAT, NOTHING CONTAINED HEREIN SHALL PREVENT THE INDEMNIFIED PARTY FROM PURSUING REMEDIES AS MAY BE AVAILABLE TO SUCH PARTY UNDER APPLICABLE LAW IN THE EVENT OF THE INDEMNIFYING PARTY’S FAILURE TO COMPLY WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER. NO CUMULATIVE REMEDIES PROVISION SET FORTH IN THIS AGREEMENT SHALL BE APPLICABLE TO ANY SUCH CLAIMS. NOTHING IN THIS SECTION 5.4 SHALL BE DEEMED TO LIMIT A PARTY’S RIGHTS TO TERMINATE OR SUSPEND THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREOF OR A PARTY’S RIGHTS UNDER SECTION 19.20. Any indemnification claim brought by an indemnified party under this section shall be subject to the terms and conditions set forth in Section 7.3, Section 7.4, Section 7.5 and Section 7.6. The terms and conditions of this Section 5.4 are material inducements to each Party continuing the Agreement with the other Party. This Section 5.4 shall survive any expiration or termination of this Agreement.
5.5 Client acknowledges that 3C shall be entitled to comply with any demand, request, recommendation, order, imposition or other like directive by a Carrier, the CTIA, the MMA or Governmental Body whether issued unilaterally or pursuant to contract (collectively “Directive”). Client further acknowledges that Carriers and Governmental Bodies may, by Directive levy, charge or impose upon 3C (on account of the Client) liquidated damages, penalties, fines, administrative fees, charges or other like sums for unfair or deceptive acts or practices by the Client that affects Carriers’ networks and services and End Users (including, without limitation, acts and omissions that violate applicable consumer protection laws and regulations) and acts or omissions by the Client that cause injury or damage to Carriers or End Users.
5.6 To the extent applicable to the Services provided by 3C to Client hereunder, Client acknowledges that Carriers reserve the right to investigate any End User complaints alleging a violation by 3C or Client of (i) a Carrier agreement, (ii) requirements imposed by any Carrier or Government Body on 3C and/or its Content providers and/or its customers and/or (iii) any Applicable Laws and/or (iv) any Guidelines. Client acknowledges that if a Carrier reasonably believes that 3C and/or Client has violated such requirements, Carrier may refuse to transmit Messages and may suspend or remove 3C’s access to the Carrier network. If any Carrier notifies 3C and/or Client of any alleged violation, and 3C and/or Client does not promptly remedy such violation (for example, by denying access to an End User sending inappropriate Messages to other End Users), the applicable Carrier may also terminate its agreement concerning access of the Services to such Carrier’s network. Client further acknowledges that if a Carrier receives a complaint from an End User or a Governmental Body (“Outside Complaint”), claiming that any Messages or Content are unlawful, obscene, racially or ethnically offensive or depict sexually explicit materials or infringe on the intellectual property rights of others, the Carrier may notify 3C in writing of such Outside Complaint and, in addition, may suspend such Carrier’s connection with 3C until such time as the complaint is remedied or otherwise resolved. 3C has agreed to remedy any such complaints as promptly as is commercially reasonable. Client acknowledges that such remedies may include, without limitation, removing the recipient of mobile-terminated Messages from various participant lists or blocking certain access to the Service. Client acknowledges that the obligations described in this Article 5.0 may prevent 3C from performing under this Agreement with respect to such Carriers. Client accepts and assumes any fines, penalties or fees derived from any Outside Complaint.
5.7 To the extent applicable to the Services provided by 3C to Client hereunder, Client acknowledges that Carriers cannot guarantee the privacy of Messages, and accordingly, Client agrees that neither 3C nor the Carriers will be liable to Client or any other party for any lack of privacy or security experienced when using the Service. Client also acknowledges that to the extent permitted by law, Carriers have the right to intercept and disclose any transmissions over their facilities in order to protect their rights or property, including, without limitation, to protect the efficient operation of their networks or to comply with governmental authorities.
5.8 Client acknowledges and agrees that, with respect to the Services being provided hereunder, Carrier communications services or any other services provided by a third party engaged by 3C in connection with 3C’s provision of Services to Client hereunder, one hundred (100%) percent of the Messages or Content may not be delivered and neither 3C, any Carrier nor any such third party will be liable to Client for any Messages or Content deleted or not delivered, regardless of the reason for deletion or non-delivery including, without limitation, Message processing or transmission errors. Neither 3C, any Carrier nor any such third party makes any representations or warranties regarding the quality, reliability, timeliness or security of the Services being provided hereunder, Carrier communications services or any such third party services or that they will be error-free, uninterrupted, free from unauthorized access or that all Messages will be delivered, and neither 3C, any Carrier nor any such third party will be liable to Client with respect to any such Services, Carrier communications services or third party services.
5.9 The Parties acknowledge that the Services provided herein may be subject to import or export laws, conventions or regulations, and any use or transfer of the Services must be compliant with all such laws, conventions and regulations. Accordingly, unless specifically provided with an Attachment, the Services set forth herein shall not be exported outside of the United States and Client represents, warrants and agrees that it will not use, distribute, transfer or transmit using the Services and/or the 3C Platform, any information outside of the United States of America. If requested by 3C, the Client agrees to sign written assurance, as in other documents, as may be required to comply with all such laws, conventions and regulations. Client confirms that it is, has been and will be at all times in full compliance in all respects with the laws applicable to its activities and the activities contemplated by this Agreement (“Applicable Laws”), including, but not limited to: (1) orders, rules, regulations and guidance promulgated by, under or in connection with the following: regulations of the U.S. Treasury Department’s Office of Foreign Assets Control (codified at 31 CFR Parts 500 – 600); the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 including those maintained under or pursuant to the Bank Secrecy Act; the Financial Crimes Enforcement Network (FinCEN); the Consumer Financial Protection Bureau (CFPB); and the Federal Trade Commission (FTC); and (2) the Foreign Corrupt Practices Act (codified at 15 U.S.C. 78dd 1 et seq.). Client further confirms that it has not received any written notice or other communication from any regulatory authority regarding any actual or possible violation of, or failure to comply with, Applicable Laws, and agrees that it shall neither take nor request any action that could cause 3C to violate Applicable Laws. Client represents and warrants that it and its controlling Affiliates are not in or from countries subject to U.S. embargo and that it is not a party identified on any governmental export exclusion lists and it will take appropriate measures to ensure that its End Users, agents and subcontractors likewise are not in or from countries subject to U.S. embargo or identified on governmental export exclusion lists.
5.10 Client acknowledges and agrees that 3C can, in its sole and absolute discretion, (i) purge from Client’s database on the Platform the phone number of any End User and/or (ii) refuse to send a message to any End User.
6.0 LIMITATION OF LIABILITY / DISCLAIMER OF WARRANTIES. THE TOTAL AGGREGATE LIABILITY OF 3C ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE NATURE OR THEORY OF THE CLAIM(S), INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT, IN ANY EVENT, EXCEED THE LESSER OF (I) THE AGGREGATE AMOUNT OF FEES PAID BY CLIENT TO 3C OVER THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (II) TWENTY-FIVE THOUSAND AND 00/100 ($25,000.00) DOLLARS. IN NO EVENT SHALL 3C BE LIABLE UNDER THIS AGREEMENT TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, REGARDLESS OF THE NATURE OR THEORY OF THE CLAIM(S), INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE (EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT 3C HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE). THE LIABILITY OF 3C, FOR ANY REASON AND UPON ANY CAUSE OF ACTION, SHALL BE LIMITED SOLELY TO ACTUAL, DIRECT DAMAGES AND SHALL IN ALL CASES BE SUBJECT TO THE LIMITATIONS SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE. 3C MAKES NO REPRESENTATIONS AND DISCLAIMS ALL WARRANTIES REGARDING SERVICES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. 3C SHALL NOT BE LIABLE FOR LOSS DUE TO BILLING OR LEGAL LIMITATIONS AND SHALL NOT BE LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY WITH WHICH 3C CONDUCTS BUSINESS TO ACCOMPLISH THE PURPOSES HEREIN CONTEMPLATED. BY USING THE SERVICES, CLIENT ACKNOWLEDGES THAT THE SERVICES ARE DELIVERED ON AN “AS IS” “AS AVAILABLE BASIS” AND THAT NEITHER 3C, ANY CARRIER OR ANY THIRD PARTY SERVICE PROVIDER WARRANTIES THAT ITS SERVICE WILL BE UNINTERRUPTED, SECURE OR ERROR FREE OR THAT MESSAGES WILL REACH THEIR INTENDED DESTINATION. THIS ARTICLE 6.0 SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.
7.1 Subject to the terms and conditions set forth in Article 6.0, this Article 7.0 and any other applicable terms and conditions set forth in this Agreement, each Party (the “Indemnifying Party”) shall indemnify and defend (provided, that, the obligation to defend shall solely apply to claims which have merit) (collectively, “indemnify” or “indemnified”) the other Party, each wireless service provider (defined as a Carrier, aggregator or other wireless service provider with which 3C conducts business to accomplish the purposes herein contemplated), their Affiliates, and each of their respective directors, officers, managers, partners, members, stockholders, employees, (sub)contractors, agents, representatives, successors and permitted assigns (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, deficiencies, claims, complaints, demands, judgments, settlements, causes of action, suits, proceedings, damages, costs, fines, penalties, interest, awards and expenses of any kind, including, but not limited to, reasonable attorneys’ fees and costs (in all courts including the appellate court(s)) and all reasonable amounts paid in investigation, defense or settlement of any of the foregoing (collectively, “Losses”), that are awarded against the Indemnified Party in a final non-appealable judgment to the extent they arise out of any third-party claim which alleges (a) any failure on the part of the Indemnifying Party and/or any of its directors, officers, managers, partners, members, stockholders, employees, (sub)contractors, agents, representatives, successors and permitted assigns (collectively, the “Personnel”) to materially comply with applicable federal, state or local laws, regulations, rules, Directives or orders in connection with the performance of its obligations under this Agreement; (b) any material breach or non-fulfillment of any material representation, warranty, agreement or other obligation of the Indemnifying Party and/or any of the Indemnifying Party’s Personnel under this Agreement; and (c) any grossly negligent or more culpable act or omission of the Indemnifying Party and/or any of the Indemnifying Party’s Personnel (including any fraudulent, reckless or willful misconduct) in connection with the performance of its obligations under this Agreement. This Article 7.0 shall survive any expiration or termination of this Agreement. No indemnitee or any other person or entity shall be entitled to any form of equitable or implied indemnification at any time. For purposes of this Article 7.0, a “third-party” shall mean a person or entity wholly unrelated to the Indemnified Party or any Affiliate thereof and shall not include any Affiliate or assignee of the Indemnified Party or any other person or entity under the direct or indirect control of or directly or indirectly acting in concert with the Indemnified Party.
7.2 In addition to 3C’s indemnification obligations set forth in Section 7.1, but subject to the terms and conditions set forth in Article 6.0, this Article 7.0 and any other applicable terms and conditions set forth in this Agreement, 3C shall indemnify the Indemnified Parties from and against any and all Losses that are awarded against the Indemnified Party in a final non-appealable judgment to the extent they arise out of any third-party claim which alleges that the Services provided hereunder directly infringe, misappropriate or violate a valid U.S. patent, copyright, trademark, trade name or trade secret of such third party. Notwithstanding any other provision of this Agreement, should Client be enjoined from using any of the Services or should any of the Services become, or in 3C’s opinion be likely to become, the subject of a suit, proceeding or other claim by a third party alleging that the Services infringe, misappropriate or violate a patent, copyright, trademark, trade name, trade secret or other intellectual property right of such third party, 3C may, in its sole discretion, (a) obtain the right for Client to use such Services, (b) replace or modify such Services with a different one having substantially comparable functionality, or (c) discontinue the provision of such Services to Client. Notwithstanding anything in this Agreement to the contrary, the defense of any suit, proceeding or other claim relating to the patents, copyrights, trademarks, trade names, trade secrets or other intellectual property rights of 3C, its Affiliates or licensors and any related counterclaims shall be solely controlled by 3C with counsel of its own choice.
7.3 Each Indemnified Party shall take all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss.
7.4 In order to be indemnified under this Agreement, Indemnified Party shall give Indemnifying Party prompt written notice (a “Claim Notice”) of any Losses or discovery of facts on which Indemnified Party intends to base a request for indemnification. Indemnified Party’s failure to provide a Claim Notice to Indemnifying Party under this Section 7.4 does not relieve Indemnifying Party of any liability that Indemnifying Party may have to Indemnified Party, except to the extent (and only to the extent) that Indemnifying Party demonstrates that it is prejudiced thereby. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Indemnified Party shall furnish promptly to Indemnifying Party copies of all papers and official documents received in respect of any Losses. Indemnifying Party’s duty to defend applies immediately, regardless of whether Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
7.5 The Indemnifying Party may assume, at its sole option, control of the defense, appeal or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under this Agreement by sending written notice of the assumption to Indemnified Party on or before ten (10) business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such indemnified claim and undertake, conduct and control, through reputable independent counsel of its own choosing and at Indemnifying Party’s sole cost and expense, the settlement or defense thereof. If Indemnifying Party assumes control of the defense in accordance with the immediately preceding sentence, Indemnified Party (a) shall fully cooperate with Indemnifying Party in connection with any such defense and (b) may employ, at any time, separate counsel to represent it; provided, that Indemnified Party is solely responsible for the costs and expenses of any such separate counsel. Notwithstanding anything to the contrary in this Section 7.5, Indemnified Party may defend an indemnified claim with counsel of its own choosing and without the Indemnifying Party’s participation if the indemnified claim is one for which Indemnified Party properly gave Indemnifying Party a Claim Notice in accordance with Section 7.4 and Indemnifying Party fails to assume the defense or refuses to defend the indemnified claim in accordance with this Article 7.0. If Indemnified Party assumes control of the defense under this Section 7.5, Indemnifying Party shall (a) reimburse Indemnified Party promptly and periodically for the reasonable costs properly incurred in defending against the indemnified claim (including reasonable attorneys’ fees and expenses); and (b) remain responsible to Indemnified Party for any Losses indemnified under this Agreement. Indemnifying Party may not, without Indemnified Party’s prior written consent, which Indemnified Party shall not unreasonably withhold, condition or delay, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise or consent: (a) includes an unconditional release of Indemnified Party from all liability arising out of such claim, (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnified Party; and (c) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains or interferes with the business of Indemnified Party. Indemnified Party may not settle or compromise any claim or consent to the entry of a judgment regarding which it is seeking indemnification hereunder without the prior written consent of Indemnifying Party, which Indemnifying Party shall not unreasonably withhold, condition or delay, unless (a) if the indemnified claim is one for which Indemnified Party properly gave Indemnifying Party a Claim Notice under Section 7.4 and Indemnifying Party fails to assume the defense or refuses to defend the indemnified claim in accordance with this Article 7.0; or (b) such settlement, compromise or consent: (i) includes an unconditional release of Indemnifying Party from all liability arising out of such claim, (ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnifying Party; and (iii) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains or interferes with the business of Indemnifying Party.
7.6 Indemnification Exception. Notwithstanding anything to the contrary in this Agreement, 3C is not obligated to indemnify a Client Indemnified Party against any claim if such claim or corresponding Losses arise out of or result from, in whole or in part, Client’s or any of Client’s Personnel (or any other party acting by, through or under Client or any of Client’s Personnel): (i) negligence or more culpable act or omission (including fraud, recklessness or willful misconduct), (ii) failure to comply with any of its obligations set forth in this Agreement, (iii) combination of any other product not provided or approved in writing by 3C with the Services, (iv) use of the Services in any manner that does not conform with the then-current usage guidelines provided by 3C, (v) modification or enhancement of the Services in any manner not approved in writing by 3C, (vi) for Client’s Content or any other information that is supplied by Client to 3C; (vii) creation, use and/or perpetuation of the Services provided for herein in any manner which is illegal, immoral, contrary to any state or federal law, rule, regulation or guideline promulgated for the use of such Services; (viii) any Losses otherwise expressly subject to indemnification hereunder by Client; (ix) Client’s failure to promptly follow 3C’s directions or instructions with respect to Client’s use of the Services; (x) Client use of a prior version of the Services which has been replaced with a newer version; or (xi) Client’s continued use of the Services after 3C provides notice to Client of potential intellectual property infringement.
7.7 SOLE REMEDY. THIS ARTICLE 7.0 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF THE INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR THE INDEMNIFIED PARTY FOR ANY CLAIMS COVERED UNDER THIS ARTICLE 7.0, PROVIDED, THAT, NOTHING CONTAINED HEREIN SHALL PREVENT THE INDEMNIFIED PARTY FROM PURSUING REMEDIES AS MAY BE AVAILABLE TO SUCH PARTY UNDER APPLICABLE LAW IN THE EVENT OF THE INDEMNIFYING PARTY’S FAILURE TO COMPLY WITH ITS INDEMNIFICATION OBLIGATIONS HEREUNDER. NO CUMULATIVE REMEDIES PROVISION SET FORTH IN THIS AGREEMENT SHALL BE APPLICABLE TO ANY SUCH CLAIMS. NOTHING IN THIS SECTION 7.7 SHALL BE DEEMED TO LIMIT A PARTY’S RIGHTS TO TERMINATE OR SUSPEND THIS AGREEMENT IN ACCORDANCE WITH THE TERMS HEREOF OR A PARTY’S RIGHTS UNDER SECTION 19.20.
10.0 Bankruptcy Remedies. Neither Client’s interest in this Agreement, nor any lesser interest of Client herein, nor any estate of Client created hereby, shall pass to any trustee, receiver, assignee for the benefit of creditors, or any other person or entity, or otherwise by operation of law under the laws of any state having jurisdiction of the person or property of Client unless 3C shall consent to such transfer in writing. No acceptance by 3C of any payments from any such trustee, receiver, assignee, person or other entity shall be deemed to have waived, nor shall it waive, the need to obtain 3C’s consent or 3C’s right to terminate this Agreement for any transfer of Client’s interest under this Agreement without such consent. Client hereby agrees that, in consideration of the recitals and mutual covenants contained herein, and for other good and valuable consideration, in the event that it shall (i) file in any bankruptcy court of competent jurisdiction a petition in bankruptcy or be the subject of any voluntary or involuntary petition under Title 11 of the U.S. Code as amended (“Bankruptcy Code”); (ii) be the subject of any order of relief issued under the Bankruptcy Code; (iii) file or be the subject of any petition seeking any reorganization, or arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency, or other relief for debtors; (iv) have sought or consented to or acquiesced in the appointment of any trustee or receiver, conservator, or liquidator; or (v) be the subject of any order, judgment or decree entered by any court of competent jurisdiction approving a petition filed against Client, for any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any present or future federal or state act or law relating to bankruptcy, insolvency, or other relief for debtors, then, subject only to obtaining prior court approval, and without the need for any further showing of cause, 3C shall thereupon be entitled to, and Client hereby irrevocably consents to the granting of, relief from any automatic stay imposed by Section 362 of the Bankruptcy Code, or otherwise, and Client hereby irrevocably waives any rights under Section 11 U.S.C. Section 365, on or against the exercise of the rights and remedies otherwise available to Client, as provided by law, any legal action under the applicable state laws (including, without limitation, the right of 3C to begin or complete the eviction suit and sale of the collateral) and otherwise provided by law, and Client irrevocably waives its respective right to object to such relief. Client specifically agrees not to directly or indirectly oppose, interfere with, impede or otherwise defend against 3C’s efforts to gain relief from the automatic stay or to otherwise enforce its rights hereunder. The remedies described in this Article 10.0 are not exclusive and shall not limit 3C’s rights.
11.0 Confidentiality. In the event that Client and 3C have previously entered into a Non-Disclosure Agreement, Mutual Non-Disclosure Agreement or other agreement of any type requiring confidentiality and/or other terms, the same shall be incorporated and made a part of this Agreement in all respects (the “Prior NDA”). In the event that a Prior NDA conflicts with any terms or conditions of this Agreement, the terms and conditions contained herein shall supersede such Prior NDA and the terms and conditions contained herein shall control in any and all respects. To the extent not modified or amended herein, any Prior NDA shall continue in full force and effect, be deemed restated herein and both 3C and Client shall remain bound by all terms and conditions contained therein.
11.1 Commencing on the Effective Date and continuing indefinitely from the termination of this Agreement, each Party shall protect as confidential, and shall not disclose to any third party, any Confidential Information. Confidential Information shall not be reproduced in any form except as required for the purposes of this Agreement. Confidential Information shall not be used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation, the export control laws of the United States.
11.2 Each Party agrees not to use any Confidential Information for its own use or for any purpose except to carry out discussions concerning, and in the assignment for which it is engaged, all pursuant to this Agreement. Neither Party will disclose any Confidential Information to third parties or its employees or agents, except such employees and agents who (i) are required to have the information in order to carry out the assignment, (ii) are made aware of the Confidential Information’s confidential nature and (iii) are subject to confidentiality obligations substantially similar to the ones herein. Each Party agrees that it will take all commercially reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information. Such measures shall include, but not be limited to, the highest degree of care that such Party utilizes to protect its own Confidential Information of a similar nature. Each Party agrees to notify the other Party in writing of any misuse or misappropriation of Confidential Information which may come to such Party’s attention.
11.3 Promptly following termination of this Agreement or at a Party’s request, the other Party shall return to the requesting Party or destroy (at the requesting Party’s election) all Confidential Information.
12.0 Relationship of the Parties. Nothing herein shall be construed to create a joint venture or partnership between the Parties hereto. Neither Party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party. In no event shall 3C be deemed responsible or liable for any of the liabilities, illegal acts, infringements of any state, federal or local law, or any rule, regulation, guideline or any other promulgation whatsoever by Client and the Client shall remain solely responsible for any and all such violations or infractions.
15.0 Intellectual Property.
15.1 Client Ownership. Client is, and shall remain, the licensee or the owner (including all ownership rights and all intellectual property rights) of the Client Marks, Client Confidential Information and any related documentation and all related and intellectual property, including, without limitation, all copyright, trade secret, patent, trade marks and other intellectual property rights therein (“Client Property”). No property or ownership right or interest in the Client Property or any part thereof is granted to 3C by virtue of this Agreement, the rights granted hereunder to 3C being solely contractual in nature. 3C hereby assigns to Client all of its right, title and interest in any such Client Property. Except as provided herein, 3C shall not (i) assign, transfer, modify, create any Derivative Work of or private label the Client Property, or reverse assemble, decompile, reverse engineer or attempt to derive source code or the underlying ideas, algorithms, structure or organization of the Client Property, (ii) alter or copy, or permit a third party to alter or copy, any part of the Client Property; (iii) use the Client Property to provide service bureau, time sharing, access through a public computer bulletin board or “shareware” distribution process, or other similar services to third parties; or (iv) sublicense, distribute, sell, assign, transfer, lease, rent, disclose, or provide access to the Client Property to any third party. In no event shall 3C use or access the Client Property except as permitted hereunder. Notwithstanding anything in this Agreement to the contrary, 3C shall have the right to use Client’s name and/or Client’s copyrighted, trademarked or other designated logos on 3C’s website, 3C marketing materials, press releases or for any other reason for the purpose of representing that Client is one of 3C’s customers.
15.2 3C Ownership. 3C is, and shall remain, the licensee or the owner (including all ownership rights and all intellectual property rights) of the 3C Property. No property or ownership right or interest in the 3C Property or any part thereof is granted to Client by virtue of this Agreement, the rights granted hereunder to Client being solely contractual in nature. Client hereby assigns to 3C all of its right, title and interest in any such 3C Property. Except as provided herein, Client shall not (i) assign, transfer, modify, create any Derivative Work of or private label the 3C Property, or reverse assemble, decompile, reverse engineer or attempt to derive source code or the underlying ideas, algorithms, structure or organization of the 3C Property, (ii) alter or copy, or permit a third party to alter or copy, any part of the 3C Property; (iii) use the 3C Property to provide service bureau, time sharing, access through a public computer bulletin board or “shareware” distribution process, or other similar services to third parties; or (iv) sublicense, distribute, sell, assign, transfer, lease, rent, disclose, or provide access to the 3C Property to any third party. In no event shall Client use or access the 3C Property, except as permitted hereunder.
16.0 Work Product and Derivative Work. “Work Product” shall mean any original work of authorship, invention, discovery, creative work, innovation, patent, copyright, trade secret or other intellectual property right of any kind or any other tangible or intangible thing or item resulting from, prepared, made, conceived, developed or reduced to practice by 3C, its employees or agents, alone or jointly with others, (i) in delivery of the Services, on behalf of Client, pursuant to this Agreement and any one or more Attachments, or (ii) otherwise. Any such item shall constitute Work Product whether or not it is eligible for patent, copyright, trademark, trade secret or other legal protection. Work Product includes, but is not limited to, research, designs, specifications, formulas, processes, reports, software, documentation, other works of authorship, know-how, techniques, concepts, methodologies, marketing plans and techniques, new product plans, production processes and derivatives thereof. The term “Derivative Work” shall mean a work developed by 3C, its employees or agents, alone or through combined efforts with Client, which is based on the Work Product, in whole or in part, such as a revision, modification, translation, abridgement, condensation, expansion, collection, compilation or any other form in which the Work Product may be recast, translated or adopted. Client agrees that all Work Product and Derivative Work shall become the sole and exclusive property of 3C. Client shall be deemed to have assigned, transferred and conveyed to 3C all of Client’s right, title and interest in, to and under such Work Product and Derivative Work, without additional compensation. Further, Client shall be deemed to have irrevocably relinquished for the benefit of 3C any moral rights in the Work Product and Derivative Work recognized by Applicable Law.
17.0 Information Security.
17.1 Both Parties will not intentionally include, insert and/or embed in any Content disseminated by the Services or otherwise introduce into the Services or the Platform, any technology, code or other material that could cause damage to an End User’s Device, download a Services application(s), change an End User’s settings, prevent or make it difficult for software from being uninstalled or create a program of multiple, sequential, stand-alone advertisements including by pop-up window or pop-under window.
17.2 Both Parties agree that each Party has not, and will not introduce into the Services or the Platform, and shall use up-to-date anti-virus/anti-malware software designed to prevent the introduction of, any material which allows or causes the installation, transferring or in any way facilitating the installation or transfer of any malware including, without limitation, spyware, viruses, worms, rootkits, adware, keystroke loggers, dialers, time bombs or time locks, or bot software. This is also inclusive of any target website locations either implicitly or expressly stated in Services communications to Client customers.
17.3 Both Parties shall implement reasonable restrictions regarding physical and electronic access to Information and 3C systems (including the Platform), including, but not limited to, physical access controls, secure user authentication protocols, secure access control methods, firewall protection, malware protection, and use of encryption (SMS messages are not encrypted) for Information being transmitted across the public Internet or wirelessly, and as otherwise required by Privacy Laws or other Applicable Laws.
17.4 To the extent it does not already employ one, each Party shall develop and maintain a reasonable and appropriate written data information security policy that includes technological, physical, administrative and procedural controls to protect the confidentiality, integrity and availability of Information and 3C systems (including the Platform), that encompasses access, retention and transport of Information and 3C systems (including the Platform), as applicable, and that provides for disciplinary action in the event of its violation.
17.5 Both Parties shall prevent terminated employees from accessing Information and 3C systems (including the Platform) by immediately terminating their physical and electronic access to such Information and 3C systems (including the Platform).
17.6 Both Parties shall employ assessment, monitoring and auditing procedures to ensure internal compliance with these safeguards.
17.7 Both Parties shall conduct a complete assessment of these safeguards at least annually and, upon written request, provide a report on the results of this assessment, including, but not limited to, any discrepancies, to the other Party.
17.8 Use of contractors or contractor firms, particularly from outside of the US for the purposes of development, support or implementation of Services by Client must be documented and supplied to 3C. Client is responsible for ensuring its contractors adhere to all aspects of this Article 17.
17.9 Testing of the Platform by Client for security purposes is prohibited.
17.10 Client represents that Client’s use of application program interfaces (API’s) that enable messaging from websites whereby Messages can be sent to any phone number shall meet all applicable compliance requirements including, but not limited to, opt-out notifications.
17.11 Client shall provide allowable IP addresses for API access and shall be responsible for notifying 3C in writing at least thirty (30) days prior to any changes, additions, or deletions of such IP addresses.
18.0 Insurance. During the Term, Client shall maintain, at its own cost and expense, the following insurance coverage (1) commercial general liability insurance, covering premises, property damage (including loss of use thereof), operations, bodily injury (including death), personal and advertising injury, products liability, and completed operations, with individual policy limits of not less than $1,000,000 per occurrence, $1,000,000 per personal and advertising injury, $2,000,000 general aggregate (other than products liability and completed operations) and $2,000,000 products liability and completed operations aggregate, (2) worker’s compensation insurance with limits and coverage in accordance with applicable law, (3) employer’s liability insurance with individual policy limits of not less than $500,000 per each accident, $500,000 per each employee – disease and $500,000 policy limit – disease, (4) errors and omissions / cyber insurance, covering breach of network security, claims alleging breach of privacy or disclosure of confidential information, physical loss of data and reconstruction costs, and breach notification response costs, with individual policy limits of not less than $3,000,000 per occurrence, (5) umbrella or excess liability coverage with individual policy limits of not less than $2,000,000 per occurrence (which provides excess coverage for all other insurance policies required by this paragraph, other than the errors and omissions / cyber insurance and worker’s compensation insurance), and (6) automobile liability insurance, covering all owned, non-owned and hired vehicles, with individual policy limits of not less than $1,000,000 per occurrence (combined single limit for bodily injury and property damage). Client shall name 3C, its subsidiaries and its affiliates and each of their respective directors, officers, employees and agents as additional insureds on the insurance policies required pursuant to this paragraph (other than the worker’s compensation insurance) and each such policy shall contain a provision that such additional insureds although named an insured shall nonetheless be entitled to recovery for any loss suffered by Client as a result of the negligence of any of such additional insureds. Client’s insurance coverage shall (1) be primary with respect to any other insurance policies maintained by the additional insureds and such other insurance policies shall be excess and non-contributory and (2) contain full waivers of subrogation in favor of the additional insureds. All insurance policies required pursuant to this paragraph shall be in a form reasonably satisfactory to 3C and shall be maintained with insurers having an A.M. Best rating of A- VII or better. Client will provide 3C with certificates of insurance evidencing the required coverage upon receipt of 3C’s written request. In the event any insurance policy required by this paragraph is written on a “claims made” basis, coverage under such insurance policy or one with at least the same limits shall be maintained for at least two (2) years past the expiration or termination of the Term. This paragraph shall survive the expiration or termination of this Agreement. Client’s insurer must agree to provide, and the certificate of insurance shall evidence, 30 days notice (10 days with respect to non-payment by the insured) to all additional insureds prior to any material change in coverage or cancellation of the policy.
19.0 Miscellaneous Terms.
19.1 Assignment; Successors and Assigns. Client may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of 3C, which consent shall not be unreasonably withheld, conditioned or delayed. Any purported assignment or delegation in violation of this Section 19.1 is void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
19.2 Force Majeure. The obligations of a Party to perform under this Agreement may be temporarily suspended during any period during which such Party is unable to carry out its obligations under this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond a Party’s reasonable control, including, without limitation, (i) an act of God, (ii) fire, flood, hurricane, tornado, earthquake, explosion, storm, lightning, (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, (iv) government order or law, (v) actions, embargoes or blockades in effect on or after the date of this Agreement; (vi) action by any governmental authority; (vii) national or regional emergency; (viii) strikes, labor stoppages or slowdowns or other industrial disturbances; (ix) shortage of adequate power or transportation facilities or any other failure, delay or interruption of any electrical, telecommunication or other services; and (x) any other event or occurrence whether similar or dissimilar to those listed, and such Party shall not have any liability or responsibility to the other Party or be deemed to have defaulted under or breached this Agreement for delay in performance resulting therefrom (except that no such event shall relieve a Party of any obligation to pay any sum due under this Agreement or any of its indemnification obligations hereunder). Notwithstanding the foregoing, the affected Party shall, at such Party’s sole expense, use commercially-reasonable efforts to eliminate or mitigate the force majeure event and the effects thereof and develop and implement alternative arrangements (subject to the approval of the other Party which shall not be unreasonably withheld) to continue performance hereunder.
19.3 Integration and Amendment. This Agreement (including, for the avoidance of doubt, all Attachments) constitutes the sole and entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, warranties and understandings, verbal and/or written, with respect to the subject matter hereof. This Agreement (including, for the avoidance of doubt, any Attachments) may only be amended, modified, supplemented or revoked by an instrument in writing signed by both Parties.
19.4 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
19.5 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction and, in the jurisdiction in which such term or provision is invalid, illegal or unenforceable, such term or provision will be modified as nearly as possible to reflect the intentions of the Parties so as to no longer be invalid, illegal or unenforceable in such jurisdiction.
19.6 Waiver. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
19.7 Attorneys’ Fees. In the event that any Party institutes any legal suit, action or proceeding, including arbitration, against the other Party arising out of or related to this Agreement, including, but not limited to, contract, equity, tort, fraud and statutory claims, the prevailing Party in the suit, action or proceeding shall be entitled to receive, and the non-prevailing Party shall pay, in addition to all other remedies to which the prevailing Party may be entitled, the reasonable costs and expenses incurred by the prevailing Party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs, even if not recoverable by law (including, without limitation, all fees, taxes, costs and expenses incident to appellate, bankruptcy and post-judgment proceedings). The foregoing shall include, without limitation, paralegal fees, investigative fees, administrative costs, sales and use taxes, and all other charges billed by the attorney to the prevailing Party.
19.8 Non-Solicitation. Without 3C’s express prior written consent, Client shall not, and shall not permit any of its Affiliates to, directly or indirectly, at any time during the Term and for a period of three (3) years after its termination or expiration, (i) solicit (other than by way of general advertisement), (ii) hire or engage, (iii) attempt to hire or engage or (iv) knowingly induce or influence to discontinue or reduce the scope of their employment or business relationship, any employees, agents, independent contractors or other persons or entities employed or engaged or previously employed or engaged by 3C or any of its Affiliates.
19.9 Authority. By executing this Agreement, each signatory represents that he or she has the authority to enter into this Agreement and to fully and completely bind the Party whom or which he or she represents.
19.10 Governing Law. All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, excluding principles of conflicts of laws whether of the State of Florida or any other jurisdiction. Notwithstanding the fact that the Messages may be sent or terminate in another state or country, the Parties acknowledge and agree that all Services are contracted for and delivered in the State of Florida, notwithstanding the location of their receipt, and accordingly, the laws of the State of Florida shall govern all matters related to this Agreement.
19.11 Arbitration. Any controversy or claim between the Parties arising out of or relating to this Agreement shall be settled through binding arbitration administered by the American Arbitration Association (the “AAA”) as follows:
19.11.1 Selection. A single arbitrator engaged in the practice of law, who is knowledgeable about the mobile telecommunications industry, shall conduct the arbitration under the then-current Commercial Arbitration Rules of the AAA. The arbitrator shall be selected by the Parties in accordance with AAA procedures from a list of qualified people maintained by the AAA that are not affiliated with 3C, Client, Affiliates thereof or any of their officers, directors, stockholders, members or representatives. The arbitration shall be conducted in Palm Beach County, Florida, and shall commence when one Party serves the other Party with a written demand to arbitrate.
19.11.2 Discovery and Procedures. There shall be reasonable discovery allowed pursuant to the otherwise applicable rules of evidence. The arbitrator shall have only the authority to award compensatory damages and shall not have the authority to award punitive damages, other non-compensatory damages, or any other kind of relief. Written reasons for the arbitrator’s decision shall be complete and explicit and provided to the Parties, but limited to only those issues necessary to support the award. The written reasons shall include the basis for any damages awarded and a statement of how the damages were calculated. The arbitrator shall assess his or her costs, fees and expenses against the Party losing the arbitration proceeding, unless the arbitrator states in the decision that neither Party is the clear loser, in which case the arbitrator shall divide his or her fees, costs and expenses equally between the Parties. The arbitrator’s decision and award shall be final and binding, and judgment upon the award may be entered in any court having competent jurisdiction. Any duty to arbitrate under this Agreement shall remain in effect and enforceable after any expiration or termination of this Agreement for any reason. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability or formation of this Agreement including any claim that all or any part of this Agreement is void or voidable. However, the preceding sentence shall not apply to Section 19.11.3 entitled “CLASS ACTION WAIVER”.
19.11.3 CLASS ACTION WAIVER. ANY CLAIM MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, REPRESENTATIVE, MULTIPLE PLAINTIFF, OR SIMILAR PROCEEDING (“CLASS ACTION”). THE PARTIES EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. THE ARBITRATOR SHALL NOT HAVE AUTHORITY TO COMBINE OR AGGREGATE SIMILAR CLAIMS OR CONDUCT ANY CLASS ACTION NOR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. ALL CLAIMS ARBITRATED HEREUNDER WILL BE ARBITRATED ON AN INDIVIDUAL BASIS. ANY CLAIM THAT ALL OR PART OF THIS CLASS ACTION WAIVER IS UNENFORCEABLE, UNCONSCIONABLE, VOID OR VOIDABLE MAY BE DETERMINED ONLY BY A COURT OF COMPETENT JURISDICTION AND NOT BY AN ARBITRATOR. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE A PARTY TO A CLASS OR REPRESENTATIVE ACTION, HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.
19.12 Notices. No notice or other communication hereunder shall be deemed given unless sent in one of the manners, and to the persons, as specified in this Section 19.12. Any required notices on this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered, if delivered by hand, (b) on the next business day after the date sent, if sent by nationally recognized overnight courier, (c) upon the earlier to occur of receipt by the addressee as evidenced by return receipt thereof or five (5) days from the date of mailing, when sent by first class mail, prepaid postage, return receipt requested, or (d) on the date the transmission was sent if sent during normal business hours of the recipient or on the next business day if sent after normal business hours of the recipient, if sent by facsimile or e-mail, any such notice to be sent to the contact for 3C or Client on page 1 of the Master Services Agreement or to such other address as a Party shall hereafter designate in writing to another Party.
19.13 Venue. Subject to Section 19.11, each of the Parties agrees that all actions, suits or proceedings arising out of, based upon or relating to this Agreement, the subject matter hereof or the transactions contemplated hereby shall be brought and maintained exclusively in the Federal and state courts of Palm Beach County, Florida. Each of the Parties hereto by execution hereof (i) hereby irrevocably submits to the exclusive jurisdiction of the Federal and state courts in Palm Beach County, Florida for the purpose of any action, suit or proceeding arising out of, based upon or relating to this Agreement, the subject matter hereof or the transactions contemplated hereby and (ii) hereby irrevocably and unconditionally waives to the extent not prohibited by applicable law, and agrees not to assert by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of the above named courts, that it is immune from extraterritorial injunctive relief or other injunctive relief, that its property is exempt or immune from attachment or execution, that any such action, suit or proceeding may not be brought or maintained in one of the above named courts, that any such action, suit or proceeding brought or maintained in one of the above named courts should be dismissed on grounds of forum non conveniens, should be transferred to any court other than one of the above named courts, should be stayed by virtue of the pendency of any other action, suit or proceeding in any court other than one of the above named courts, or that this Agreement or the subject matter hereof may not be enforced in or by any of the above named courts. The provisions of this Section 19.13 shall not restrict the ability of any Party to enforce in any court any judgment obtained in a Federal or state court of Palm Beach County, Florida.
19.14 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, SUBJECT TO SECTION 19.11, EXCEPT TO THE EXTENT PROHIBITED BY ANY APPLICABLE LAW WHICH CANNOT BE WAIVED, EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, CAUSE OF ACTION, ACTION, SUIT OR PROCEEDING ARISING OUT OF, BASED UPON OR RELATING TO THIS AGREEMENT, THE SUBJECT MATTER HEREOF OR THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY EACH OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 19.14 CONSTITUTE A MATERIAL INDUCEMENT UPON WHICH SUCH PARTY IS RELYING AND WILL RELY IN ENTERING INTO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY. ANY OF THE PARTIES HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH OF THE PARTIES HERETO TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
19.15 Counterparts; Delivery. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same instrument. A signed copy of the Agreement delivered by facsimile or other electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
19.16 No Third Party Beneficiaries. Except as set forth in the immediately following sentence, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. The Parties hereby designate the Indemnified Parties as third-party beneficiaries of Section 5.4 and Article 7.0 of this Agreement with respect to their rights thereunder having the right to enforce their rights under Section 5.4 and Article 7.0.
19.17 Survival. The terms of any sections which by their nature are intended to extend beyond termination will survive termination of this Agreement for any reason.
19.18 Expenses. Unless otherwise specified in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby, including, but not limited to, those incurred in connection with the preparation, execution, delivery and performance of this Agreement, shall be paid by the Party incurring such costs and expenses.
19.19 Cumulative Remedies. Except as otherwise expressly set forth herein, all rights and remedies provided in this Agreement are cumulative and are in addition to and not in substitution for any other rights or remedies that may be available to the Parties, whether provided by law, equity, statute, in any other agreement between the Parties or otherwise.
19.20 Equitable Remedies. Each Party hereto acknowledges that a breach or threatened breach by such Party of any of its obligations under Article 11.0 or the other Party’s intellectual property rights would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
19.21 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate; and (e) whenever the masculine is used herein, the same shall include the feminine, and whenever the feminine is used herein, the same shall include the masculine, as appropriate. Unless the context otherwise requires, references herein: (x) to Sections, Articles, Exhibits and Attachments mean the Sections and Articles of, and Exhibits and Attachments attached to, this Agreement, (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted and every covenant, term and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any Party hereto. This Agreement is the result of negotiations between, and has been reviewed by, the Parties and their respective legal counsel.
19.22 Business Days. If any date on which a Party is required to make a payment or a delivery pursuant to the terms hereof is not a business day, then such Party shall make such payment or delivery on the next succeeding business day.
19.23 Further Assurances. Each of the Parties hereto shall execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably required to carry out the provisions of this Agreement and give effect to the transactions contemplated hereby.
[End of 3Cinteractive Corp. Master Services Agreement Terms and Conditions]