The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.
1.1.“Advertiser” means an entity that wishes to advertise its goods and/or services via the Advertisements.
1.2.“Advertisement” or “Ads” means materials or messages in any format that promote an Advertiser’s brands, products, and/or services.
1.3.“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
1.4.“Agency” means an entity engaged by an Advertiser to manage its advertising campaigns, in whole or in part.
1.5.“Applicable Laws” means all applicable international, national, state, and local laws, statutes, ordinances, regulations, directives, and self-regulatory guidelines, including any Data Protection Laws.
1.6.“Authorized User” means your employees, contractors, clients, or agents whom you authorize to access and use the Software and whom you identify to us pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’, clients’, or agents’ access to and use of the Software will be limited to their provision or receipt of services to or from you. You are responsible for the acts and omissions of your Authorized Users and any other person who accesses and uses the Software using any of your or your Authorized Users’ Sign-In Names, Passwords, and Unique Identifiers.
1.7.“Confidential Information” means: (i) with respect to LumenAd, the Software and any and all source code relating thereto and any other non-public information or material regarding our legal or business affairs, financing, customers, properties, pricing, or data; (ii) with respect to you, the Subscriber Content and any other non-public information or material regarding your legal or business affairs, financing, Authorized Users, properties, or data; and (iii) with respect to each Party, the terms and conditions of this Agreement. Notwithstanding any of the foregoing, Confidential Information does not include information which: (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
1.8. “Data Protection Laws” means any applicable legislation protecting the Personal Data of natural persons, together with all applicable rules, regulations, regulatory guidance, and regulatory requirements established pursuant thereto from time to time.
1.9. “Destructive Elements” means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would (i) cause the Software to cease functioning; (ii) in any way damage or corrupt data, storage media, programs, equipment, or communications; or (iii) otherwise interfere with the operations of the Software, including, without limitation, Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices.
1.10.“Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Software, as provided or made available by LumenAd to you whether in a written or electronic form.
1.11.“Fees” means the Implementation Fees, the Subscription Fees, and the Integration Fees set forth in the Order Form.
1.12.“Personal Data” means the definition of “personal data,” “personal information,” or “personally-identifiable information” (or similar term) set forth under applicable Data Protection Laws.
1.13.“Process,” “Processing,” or “Processed” means any operation or set of operations that is performed upon Personal Data, whether or not by automatic means, such as collection, using, accessing, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, modification, blocking, erasure, or destruction.
1.14.“Prohibited Content” means content that: (i) is illegal under Applicable Law; (ii) violates any third party’s intellectual property rights, including, without limitation, copyrights, trademarks, patents, and trade secrets; (iii) contains indecent or obscene material; (iv) contains libelous, slanderous, or defamatory material, or material constituting an invasion of privacy or misappropriation of publicity rights; (v) promotes unlawful or illegal goods, services, or activities; (vi) contains false, misleading, or deceptive statements, depictions, or sales practices; (vii) contains Destructive Elements; or (viii) is otherwise objectionable to us in our sole, but reasonable, discretion.
1.15.“Software” means our proprietary advertising management software. For the avoidance of doubt, the Software does not enable media buying or Ad serving.
1.16.“Subscriber” means the entity set forth in the Order Form. For the avoidance of doubt, Subscriber may be Agency or Advertiser.
1.17.“Subscriber Content” means any Ads, data, media, and other materials that Subscriber and its Authorized Users submit to the Software pursuant to this Agreement, but excluding, however, any Feedback (as defined below).
1.18.“Third-Party Platform” means a third-party platform (e.g., a demand side platform, buying platform, Facebook, Twitter, Google, etc.) with which LumenAd integrates pursuant to this Agreement.
2. SOFTWARE AND SERVICES.
2.1. Provision of Access to the Software. During the Term, we will provide your Authorized Users access to the Software subject to the terms and conditions of this Agreement. We shall use commercially reasonable efforts to make the Software accessible twenty four (24) hours per day, seven (7) days per week, 99.9% of the time, except for: (i) scheduled maintenance; (ii) required repairs; and (iii) any loss or interruption due to a Force Majeure Event (as defined below).
(a) Integrations. For the Integration Fee set forth in the Order Form, we will integrate our Software with any Third-Party Platforms that you request, provided that such Third-Party Platforms permit such integrations and have already integrated with us. For any requested Third-Party Platforms that do not have an existing integration with us, we will evaluate such request in good faith on a case-by-case basis.
(b) Data Discrepancies. There may, on occasion, be discrepancies between the data we provide you via the Software and the data you obtain directly from the applicable Third-Party Platform. If this occurs, please notify us, and we will use commercially reasonable efforts to address and reconcile such discrepancy with the applicable Third-Party Platform. If any Fees are calculated based on such data (e.g., media spend, cost-per-click, etc.), the data made available to you via the Software shall control in the event of any such discrepancy; provided, however, (i) if the discrepancy is one percent (1%) or less, we shall automatically resolve the discrepancy in your favor; and (ii) if the discrepancy is greater than one percent (1%), we shall use commercially reasonable, good-faith efforts to resolve the discrepancy with you.
(c) Disclaimer Regarding Third-Party Platforms. WE MAKE NO, AND HEREBY DISCLAIM ALL, REPRESENTATIONS, WARRANTIES, CLAIMS, AND ASSURANCES AS TO THE THIRD-PARTY PLATFORMS OR THEIR SERVICES. IF, AND TO THE EXTENT, THERE ARE ANY FAILURES, DEFICIENCIES, OR PROBLEMS WITH A THIRD-PARTY PLATFORM AND/OR ITS SERVICES, OUR ONLY OBLIGATION TO YOU, AND YOUR ONLY REMEDY HEREUNDER, IS FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO ADDRESS AND RECONCILE SUCH ISSUE ON YOUR BEHALF WITH THE APPLICABLE THIRD-PARTY PLATFORM. WE CANNOT GUARANTEE THAT WE WILL BE ABLE TO RESOLVE ANY SUCH ISSUE TO YOUR SATISFACTION, BUT WILL ATTEMPT TO DO SO.
2.3. Modifications. We modify the Software from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that during the Term, such additions, deletions, or modifications to features: (i) will not materially decrease the overall functionality of the Software; and (ii) will be described by us through updates to the Documentation.
2.4. Beta Features. We occasionally invite our customers to try beta features of the Software (“Beta Features”). You are not required to use any Beta Features, but if you affirmatively sign up indicating your desire to do so, your usage is subject to this Section. Beta Features are for evaluation purposes only and not for production use, are not considered part of the Software under this Agreement, are not warranted or supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any Beta Feature trial period will expire upon the date that a version of the Beta Feature becomes generally available to all of our customers for production use or upon the date that we elect to discontinue such Beta Feature. We may discontinue Beta Features at any time in our sole discretion and may never make them generally available as part of the Software. We will have no liability for any harm or damage arising out of or in connection with any use of a Beta Feature, and you use any Beta Feature at your own risk.
3. FEES AND PAYMENT.
3.1. Fees and Taxes. All Fees are due and payable as set forth below. Fees and other charges described in the Order Form are in addition to and do not include any federal, provincial, or local sales, PST, GST, HST, VAT, foreign withholding, use, property, excise, service, or similar transaction taxes (“Taxes”) now or hereafter levied, all of which will be for your account. Any applicable direct pay permits or valid tax-exempt certificates must be provided to us prior to the execution of this Agreement. If we are required to collect and remit Taxes on your behalf, we will invoice you for such Taxes, and you will pay us for such Taxes in accordance with Section 3.2. You hereby agree to defend, indemnify, and hold harmless us and our officers, directors, managers, employees, contractors, and agents from any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with any Taxes and related costs, interest, and penalties paid or payable by us on your behalf. For the avoidance of doubt, we will only be responsible for any taxes related to our income, property, franchise, or employees.
3.2. Payments. We will invoice you for the Fees and any applicable Taxes as set forth in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, all amounts are due and payable to us within thirty (30) days from your receipt of the invoice.
3.3. Late Payments. In the event that any invoiced amount is not received by us by the due date as set forth in Section 3.2, then without limiting our rights and remedies, we may: (i) charge interest on the outstanding balance (at a rate not to exceed the lessor of one percent (1%) per month or the maximum rate permitted by law); (ii) condition future orders on payment terms shorter than those specified in Section 3.2; (iii) suspend your access to, and usage of, the Software pursuant to Section 4.2; and/or (iv) terminate this Agreement in accordance with and pursuant to Section 4.1.
3.4. Non-Refundable. Unless otherwise expressly provided for in this Agreement, (i) all Fees are based on Software access and not on actual use; and (ii) all Fees paid under this Agreement are non-refundable.
3.5. No Contingency for Future Commitments. You agree that payment of the Fees under this Agreement is not contingent on the delivery of any future Software functionalities, or features, or any other future commitments, except as set forth in Section 2.1 and Section 2.3 of this Agreement.
4. TERMINATION AND SUSPENSION.
4.1. Termination. Either Party may terminate this Agreement: (i) as set forth in the applicable Order Form; (ii) upon thirty (30) days’ written notice to the other Party if the other Party breaches a material term of this Agreement, and the breach remains uncured at the expiration of such thirty (30) day period; or (iii) immediately, if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors. We may also terminate this Agreement upon written notice to you under the limited circumstances set forth in Section 11.3 below.
4.2. Suspension for Non-Payment. We may suspend your access to, and usage of, the Software upon written notice to you if any undisputed invoiced amount due to us is past due. We will not effect any such suspension while you are disputing any invoiced amount due to us reasonably and in good faith and are cooperating diligently to resolve the dispute. If we effect such suspension for non-payment, we may charge a re-activation fee to reinstate your access to the Software. You will promptly reimburse us for any reasonable expenses of collection, including costs, disbursements, and reasonable outside legal fees we incur, to the extent necessitated by your refusal to pay any invoiced amounts that you are not disputing in good faith.
4.3. Effect of Termination. Upon termination of this Agreement as set forth in Section 4.2: (i) we will stop providing you access to the Software, and you will stop all access to, and use of, the Software; (ii) if we terminate this Agreement pursuant to Section 4.1(i), Section 4.1(ii), or Section 4.1(iii), you will promptly pay all unpaid Fees and applicable Taxes due through the end of the Term; (iii) for any other termination, we will refund to you a pro-rata portion of any Fees that you have pre-paid, but not used, prior to the effective date of termination; and (iv) upon written request and subject to Section 6.1 and Section 6.3, each Party will either return to the Disclosing Party (or, at such Disclosing Party’s instruction, destroy and provide such Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any of such Disclosing Party’s Confidential Information that are in the Receiving Party’s possession or control.
4.4. Survival. The following provisions will survive termination of this Agreement: Section 1 (“Definitions”), Section 2.2(b) (“Data Discrepancies”), Section 2.2(c) (“Disclaimer Regarding Third-Party Platforms”), Section 3 (“Fees and Payment”) until you have paid all Fees and applicable Taxes, Section 4.3 (“Effect of Termination”), Section 5 (“Confidentiality; Feedback”), Section 6.3 (“Aggregated Data”), Section 7 (“Intellectual Property”), Section 9.4 (“Our Disclaimer”), Section 10 (“Limitation of Liability”), Section 11 (“Indemnification”), Section 12 (“General Provisions”), and this Section 4.4 (“Survival”).
5. CONFIDENTIALITY; FEEDBACK.
5.1. Confidentiality. The Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement. The Receiving Party may disclose, distribute, or disseminate the Disclosing Party’s Confidential Information to any of its officers, directors, members, managers, partners, employees, contractors, or agents (its “Representatives”), provided that the Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, other than its Representatives, without the prior written consent of the Disclosing Party. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives. If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use commercially reasonable efforts to insure that confidential treatment will be afforded such disclosed portion of the Confidential Information.
5.2. Specific Performance and Injunctive Relief. The Receiving Party acknowledges that in the event of a breach of Section 5.1 by the Receiving Party or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in, any act which violates Section 5.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of the terms of Section 5.1. The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.
5.3. Feedback. During the Term, you may elect to provide us with feedback, comments, and suggestions with respect to the Software (“Feedback”). You agree that LumenAd will be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to you.
6. SUBSCRIBER CONTENT; DATA; PRIVACY.
6.1. Subscriber Content. Subject to the terms and conditions of this Agreement, you hereby grant us during the Term a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to vendors providing services to us (such as hosting providers), to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Subscriber Content via the Software solely for us to perform our obligations hereunder. You will have sole responsibility for the accuracy, quality, and legality of the Subscriber Content.
6.2. Data Security. We (and any third-party hosting provider that we may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Subscriber Content on the Software from unauthorized use or disclosure.
6.3. Aggregated Data. We monitor the performance and use of the Software by our customers and collect data in connection therewith (the “Usage Data”). We may combine this Usage Data with other data (including anonymized elements of the Subscriber Content), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”). You hereby agree that we may collect, use, publish, and vend such Aggregate Data; provided, however, that such usage shall not identify you or your Authorized Users or contain your Confidential Information.
6.5. Data Protection. To the extent Subscriber is required under applicable Data Protection Laws to enter into a data protection addendum with LumenAd, upon Subscriber’s request, the Parties will enter into the data protection addendum provided to Subscriber by LumenAd. At such time, such data protection addendum shall be attached hereto and incorporated into this Agreement.
7. INTELLECTUAL PROPERTY.
All right, title, and interest in and to the Software, the Documentation, the Usage Data, and the Aggregate Data, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, will be and remain the sole and exclusive property of LumenAd and our licensors. Subject to Section 6.1, all right, title, and interest in and to the Subscriber Content, including all modifications, improvements, adaptations, enhancements, or translations made thereto, and all proprietary rights therein, will be and remain your sole and exclusive property.
8. USE AND LIMITATIONS OF USE; COOPERATION.
8.1. Restrictions on Use. You will not (and will not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to access and use the Software; (ii) allow an Authorized User to share his or her access credentials described in Section 8.3 with other Representatives of the Subscriber or any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Software; (iv) modify, adapt, or translate the Software; (v) make any copies of the Software; (vi) resell, distribute, or sublicense the Software or use it for the benefit of anyone other than you or the Authorized Users; (vii) save, store, or archive any portion of the Software (including, without limitation, any data contained therein) outside the Software other than those outputs generated through the intended functionality of the Software as set forth in the Documentation without the prior, written permission of LumenAd in each instance; (viii) remove or modify any proprietary markings or restrictive legends placed on the Software; (ix) use the Software in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (x) introduce, post, or upload to the Software any Prohibited Content; or (xi) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Software. Upon our request, you will use commercially reasonable efforts to assist us in preventing and enforcing these restrictions.
8.2. Compliance. We have the right to monitor your compliance with this Agreement. If any such monitoring reveals that you are not using the Software in compliance with this Agreement, then you will remedy any such non-compliance within five (5) business days of receiving notice from us, including, if applicable, through the payment of additional Fees.
8.4. Cooperation. You acknowledge that our ability to perform our obligations hereunder is dependent on your providing us the Subscriber Content, and complete, accurate, up-to-date, and timely information, and other materials. You agree to reasonably cooperate with us, to provide such Subscriber Content, information, and other materials to us, and to cause your employees, contractors, and agents to do the same.
9. REPRESENTATIONS, WARRANTIES, AND COVENANTS; OUR DISCLAIMER.
9.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; (ii) the execution, delivery, and performance of this Agreement, are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; and (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder.
9.2. Our Additional Representations and Warranties. In addition to the representations and warranties set forth in Section 9.1, we represent and warrant to you that any services we provide will be performed in a professional and workmanlike manner.
9.3. Your Additional Representations, Warranties, and Covenants. In addition to the representations and warranties set forth in Section 9.1, you represent, warrant, and covenant to us that: (i) the Subscriber Content contains no Prohibited Content; (ii) you have the right to provide us the Subscriber Content in accordance with this Agreement; (iii) your use of the Software, including, without limitation, the submission of the Subscriber Content, complies with all Applicable Laws; (iv) your Processing of Personal Data complies with applicable Data Protection Laws; (v) if you are an Advertiser, you shall obtain all required consents (provided you do not have another valid legal ground or basis), give all required notices or disclosures, and fulfill all other legal obligations under applicable Data Protection Laws to give lawful instructions to LumenAd regarding the Processing of Personal Data (such as, but not limited to, instructions given by Authorized Users through the Software) and ensure the unencumbered right of LumenAd to Process Personal Data, in each case for the purposes set forth herein; and (vi) if you are an Agency, you shall perform the covenants set forth in Section 9.3(v) or contractually require and ensure that the Advertiser performs such covenants to enable Agency to carry out Section 9.3(v) on Advertiser’s behalf.
9.4. Our Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1 AND SECTION 9.2, THE SOFTWARE, ITS COMPONENTS, ANY DOCUMENTATION, THE THIRD-PARTY PLATFORMS, AND ANY OTHER MATERIALS AND SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND LUMENAD MAKES NO WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT LUMENAD MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
10. LIMITATION OF LIABILITY.
EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR INDEMNIFICATION OBLIGATIONS OR YOUR BREACH OF SECTION 8.1 OR YOUR FAILURE TO PAY ANY AMOUNTS DUE AND OWING: (I) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO LUMENAD BY YOU UNDER THIS AGREEMENT DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY A PARTY MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE AND AGREE THAT: (A) THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY; (B) THE FEES WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN; AND (C) WE HAVE RELIED ON THESE EXCLUSIONS AND LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE SOFTWARE.
11.1. Indemnification by LumenAd. Subject to Section 11.2, we will defend, indemnify, and hold harmless you and your Representatives from any and all damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees (“Losses”) incurred by such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) alleging that your access and use of the Software in accordance with this Agreement infringes or misappropriates any United States patents, trademarks, copyrights, or trade secrets; provided, however, that the foregoing obligation will be subject to your: (i) promptly notifying us of the Claim; (ii) providing us, at our expense, with reasonable cooperation in the defense of the Claim; and (iii) providing us with sole control over the defense and negotiations for a settlement or compromise of the Claim.
11.2. Exceptions to Our Indemnification Obligations. We are not obligated to indemnify, defend, or hold you and your Representatives harmless with respect to any Claim to the extent: (i) the Claim arises from or is based upon your or your Authorized Users’ use of: (a) the Software not in accordance with the Documentation, or this Agreement; or (b) any unauthorized modifications, alterations, or implementations of the Software made by you or at your request (other than by us); (ii) the Claim arises from use of the Software in combination with unauthorized modules, apparatus, hardware, software, or services not supplied or specified in writing by us; or (iii) the Claim arises from any use of the Software for which they were not designed.
11.3. Infringement Claims. In the event that we reasonably determine that the Software is likely to be the subject of a Claim, we will have the right (but not the obligation), at our own expense, to: (i) procure for you the right to continue to use the Software as provided in this Agreement; (ii) replace the infringing components of the Software with other components with equivalent functionality; or (iii) suitably modify the Software so that it is non-infringing and functionally equivalent. If none of the foregoing options is available to us on commercially reasonable terms, we may terminate this Agreement without further liability to you. This Section 11.3, together with the indemnity provided under Section 11.1, states your sole and exclusive remedy, and our sole and exclusive liability, regarding any infringement Claim.
11.4. Indemnification by You. You will defend, indemnify, and hold harmless us and our officers, directors, managers, employees, contractors, and agents from any and all Losses incurred by such parties in connection with any Claim arising from: (i) your or any of your Authorized Users’ breach or violation of this Agreement; (ii) your Processing and transfer to LumenAd of any Personal Data; or (iii) your violation of Applicable Law; provided, however, that the foregoing obligation will be subject to our: (a) promptly notifying you of the Claim; (b) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (c) providing you with sole control over the defense and negotiations for a settlement or compromise of the Claim.
12. GENERAL PROVISIONS.
12.1. Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that a Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
12.2. Waiver. Subject to the last sentence in Section 10, no failure or delay by either Party in exercising any right or remedy under this Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.
12.3. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Montana, without regard for choice of law provisions thereof.
12.4. Exclusive Forum. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in Missoula, Montana for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any such suits, actions, or proceedings.
12.5. Notices. All notices required under this Agreement (other than routine operational communications) must be in writing and will be delivered either personally or by e-mail (other than notices under Section 4.1 which may not be delivered by e-mail), national overnight courier or the U.S. Postal Service to each Party’s notices contact and address listed in the Order Form. Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person or by e-mail (other than notices under Section 4.1, which may not be made via e-mail), or national overnight courier; or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.
12.6. Independent Contractors. As between themselves, the Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.
12.7. Severability. If any provision of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this Agreement will remain in full force and effect. Any provision of this Agreement that is unenforceable in any jurisdiction will be ineffective only as to that jurisdiction and only to the extent of such unenforceability without invalidating the remaining provisions hereof.
12.8. Force Majeure. Except for your obligations to pay any Fees and Taxes hereunder, neither Party will be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (each, a “Force Majeure Event”).
12.9. Third-Party Beneficiaries. Except as set forth in Section 11, there are no third-party beneficiaries under this Agreement.
12.10. Publicity. During the Term, we may refer to you as a customer and user of the Software. In connection therewith, we may use your name and, with your prior written consent, your corporate logos. Any goodwill arising from the use of such name and logos will inure solely to your benefit. All other publicity regarding this Agreement will be mutually coordinated and approved by the Parties.
12.11. Export. You will not export or re-export, either directly or indirectly, the Software or any copies thereof in such manner as to violate the export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time (including, without limitation, when such export or re-export requires an export license or other governmental approval without first obtaining such license or approval). Without limiting the foregoing, you will not permit Authorized Users or any third parties to access or use the Software in violation of any United States export embargo, prohibition, or restriction.
12.12. Complete Understanding. This Agreement constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. To the extent of any conflict or inconsistency between the Order Form and these Terms and Conditions, the terms of Order Form will govern. No term included in any confirmation, acceptance, purchase order, insertion order, or any other similar document from you will change this Agreement or have any force or effect.
12.13. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by fax or PDF), each of which will be deemed an original, but all of which together will constitute the same Agreement.