This Master Service Agreement (these“Terms”) is made and entered into as of the date of last signature below (the “EffectiveDate”) by and between SMT WEB3, INC., a Delaware corporation (“SMT”), with an address at 201 Main Street, Suite 102, Carbondale, CO 81623 and the counter party identified on the Insertion Order and/or WorkOrder (“Client”). SMT and the Client are sometimes referred to individually as a “Party” and collectively as the “Parties”. In consideration of the mutual promises and covenants contained in the Terms, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS
In addition to the terms defined in the Terms, any Work Order or Insertion Order, the following words have the meanings provided below for all purposes of the Agreement:
Term
Meaning
Affiliate
Means, for purposes of the Agreement and with respect to a Party, any person or entity that controls such Party, is controlled by such Party or is under common control with such Party where “control” means ownership of 50% or more of the equity or other interests entitled to vote in the election of directors or corresponding managing authority of the Affiliate.
Agreement
Means these Terms and each Work Order and/or Insertion Order incorporating the Terms, along with all terms and conditions referenced therein and amendments, addendums, and attachments thereto.
Background Works
Means, as to each applicable Party, all tangible works and Intellectual Property Rights made, invented, developed, created, conceived, reduced to practice by such Party before the Effective Date and which is not otherwise the other Party’s Confidential Information.
Client
Means the Party identified in the above introduction or on a signed Work Order or Insertion Order. For clarity, if an Affiliate of Client enters into a Work Order and/or Insertion Order directly with SMT or an Affiliate of SMT, all references herein to Client shall apply to Affiliate of Client with respect to such Work Order and/or Insertion Order.
Client Content
Means the artwork, graphics, images, videos, slides, documents, technology, advertisements, trademarks, service marks, logos, and other content Client provides to SM under the Agreement, including all Client Intellectual Property Rights, and any derivative works thereof, if any, but excluding any Background Works.
Confidential Information
The non-public or proprietary information in any form or media that the disclosing Party designates as confidential or that by its nature or under the circumstances ought to be treated as confidential, including all products, trade secrets, operations, processes, plans, intentions, product information, prices, know-how, designs, customer lists, market opportunities, transactions, affairs and/or business of each Party and to its customers, suppliers.
Developed Works
Means the works of authorship or materials specifically developed or created and defined as such for Client pursuant to a Work Order. Client owns all rights, title and interest to such Developed Works, excluding all SMT’s Background Works, Products and Services.
End User
A customer, client, agency, or other third party who Client authorizes to use or access a Product or Service, however, always excluding an end consumer of the applicable Product and/or Service.
Fees
Means the platform fee, professional services fees, licensing and royalty fees, and any other mutually agreed upon fees specified in each Work Order and/or Insertion Order.
Insertion Order
Means an ordering document signed by each Party or an Affiliate of each Party, that specifies the Products or Services to be provided to a Client, an Affiliate of Client or End User and related Fees, including addenda exhibits and attachments thereto.
Intellectual Property Rights
Works of authorship, copyrights, domain names, inventions, patents, design rights, trademarks, know how, trade secrets, and all other industrial, commercial, and proprietary rights existing in any jurisdiction in the world and all the rights to apply for the same.
Product
Means the SMT products, platforms (including third party platforms to which SMT has given Client access, e.g., Brevo and Figma), applications, content, materials, and information sets identified in a Work Order and/or Insertion Order.
Services
Means the professional services, development services, managed services, implementation services, training services and other services identified in a Work Order and/or Insertion Order.
Taxes
Means any sales, use, transfer, privilege, excise, VAT, GST, consumption tax, or other similar taxes and duties, whether foreign, national, state, or local, however designated, present or future, that are levied or imposed by reason of the performance by SMT or Client under the Agreement.
Work Order
Means an ordering document signed by each Party or an Affiliate of each Party, that specifies the Products or Services to be provided to a Client, an Affiliate of Client or End User and related Fees, including addenda exhibits and attachments thereto.
2. PRODUCTS & SERVICES
2.1
Provision of Products & Services. SMT, or an Affiliate of SMT, shall provide theProducts and/or Services to Client, or an Affiliate of Client, subject to and pursuant to these Terms. SMT hereby grants Client and Affiliates of Client, as applicable, the non-exclusive, non-transferable(except in connection with a permitted assignment of the Agreement hereunder)license to access and use the Products and Services in accordance herewith.
2.2
Orders & Change Orders. The Parties, or Affiliates of the Parties, may enter into WorkOrders and Insertion Orders for the purchase of SMT Products and Services. Each Work Order and Insertion Order shall be governed by these master Terms and set forth the Products and Services, and applicable Fees. No Work Order orInsertion Order shall be valid unless signed by an authorized representative of each Party or as applicable an authorized representative of a Party’sAffiliate. Any modifications, deletions or additions to the scope set forth in a Work Order or Insertion Order will be made only in a change order signed by an authorized representative of eachParty or as applicable an authorized representative of a Party’s Affiliate (each a “Change Order”). SMT will continue performance under an existing Work Order and Insertion Order until a Change Order is mutually agreed upon by the Parties.
2.3
Restrictions. Client may use each Product and Service only as provided in the Agreement. Except to the extent permitted by these Terms, a Work Order , and/or Insertion Order, Client will not, and will not allow any End User or other party to:
2.3.1
sell, transfer, rent, lease, sub-license, disclose, use, make available or distribute any of the Products or Services, in whole orin part;
2.3.2
copy, modify, correct, adapt, translate, enhance, or otherwise prepare derivative works of or improvements to any Product or Service, or part thereof;
2.3.3
reverse engineer, disassemble, decompile, decode, or adapt any Product, Service, or any part thereof, or otherwise attempt to derive or gain access to the source code of a Product or Service, or part thereof;
2.3.4
bypass or breach any security device, license key or protection used for or contained in a Product or Service, or conduce penetration or similar testing on a Product or part thereof;
2.3.5
use a Product or Service, in whole or part, for purposes of: (i) benchmarking or competitive analysis; or (ii) developing, using or providing a competing product or service;
2.3.6
use a Product or Service, or part thereof, to store or transmit infringing, libelous, or otherwise unlawful or tortious material or content, or in a manner that does not comply with applicable law;
2.3.7
damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner a Product or Service, or part thereof, or SMT systems; or
use a Product or Service to store or transmit software, hardare,or other technology, device, or means, including any virus, worm, malware,program routine or other malicious computer code, the purpose or effect ofwhich is to (a) permit unauthorized access to, or to destroy, disrupt, disable,distort, or otherwise harm or impede in any manner any (i) computer, software,hardware, system, or network, or (ii) any application or function of any of theforegoingr the security, integrity, confidentiality, or use of any dataprocessed thereby, or (b) prevent access to or use of a Product or Service asintended by the Agreement.
2.3.8
3. TERM AND TERMINATION
3.1
Term. The Terms begin on the Effective Date and remain effective until terminated as provided in this Section.
3.2
Termination.
3.2.1
Either Party may terminate the Agreement immediately by serving written notice on the other Party in the following circumstances:
(a)
if the other Party commits a material breach of any of its obligations under the Agreement that is not capable of remedy;
(b)
if the other Party commits a material breach of any of its obligations under the Agreement that is not remedied within 30 days after receipt of a written notice from the Party not in breach specifying the material breach, requiring its remedy, and making clear that failure to remedy may result in termination; or
(c)
if the other Party enters into liquidation (apart from a solvent liquidation for the purposes of amalgamation or reconstruction) or is dissolved or declared bankrupt or has a liquidator, provisional liquidator, receiver, or manager appointed over all or part of its assets or enters into an arrangement with its creditors or takes or suffers any similar action.
3.2.2
Either Party may terminate these Terms or any individualWork Order and/or Insertion Order at its convenience and without any breach by the otherParty, by providing ninety (90) days written notice to the other Party.
3.3
Effect of Termination.
3.3.1
Termination of these Terms will terminate all active Work Orders and Insertion Orders; provided, however, the Terms remain effective until all Work Orders and Insertion Orders have expired or been terminated. Termination of a Work Order or Insertion Order will not terminate the Terms or any otherWork Orders or Insertion Orders, which will continue under their own terms and these Terms.
3.3.2
Termination of the Agreement will not affect any rights, obligations or liabilities of either Party which have accrued before termination, or which are intended to continue to have effect beyond termination.
3.3.3
Client shall, and shall cause all End Users to promptly cease all use of Products and Services upon termination of the Agreement, or the Products and Services of any Work Order or Insertion Order upon termination of such Work Order or Insertion Order.
3.3.4
Upon termination of the Agreement, each Party shall promptly return or destroy (provided that any such destruction shall be certified by a duly authorized representative) all Confidential Information in its possession; provided, however, each Party shall be permitted to retain one copy of the other Party’s Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes provided that any such retained information shall remain subject to the Agreement for the period so retained. SMT shall not be obligated to retain copies of Client Content or any data belonging to Client after termination of the Agreement. SMT shall however allow Client access to such Client Content so that Client is able to secure a copy of the same for a period of no greater than ten (10) business days following actual termination.
Survival. The provisions of the Agreement that, by their terms, require performance after the termination or expiration of the Agreement, or have application to events that may occur after the termination of the Agreement, will survive the termination of the Agreement, including Sections 2.3, 3.3, 3.4, 4, 5, 8 – 10, and 12.
3.4
4. FEES AND PAYMENTS
4.1
Fees and Taxes. Client agrees to pay SMT the Fees. Fees shall be agreed by the Parties in a Work Order or Insertion Order. Each Party shall be responsible for paying taxes applicable on its income and/or revenue generated under this Agreement as per the applicable laws of the irrespective jurisdictions. In the event that any amount payable hereunder is subject to deductions or taxes pursuant to the introduction of new legislation or amendment of existing laws, the Parties will mutually agree to tax-related adjustments in writing as an amendment to this Agreement.
4.2
Payments. SMT will invoice all Fees to Client, and Client will pay each invoice within the time period set forth in a Work Order or InsertionOrder. Any invoiced amounts not disputed in good faith by Client and remaining unpaid by the due date will accrue a late charge in the amount of the lesser of (a) one and one-half percent (1.5%) per month, or (b) the highest rate allowable by law, computed from the applicable due date. Client shall have thirty (30) days from the date of receipt of the invoice to query or dispute Fees after which time such invoice shall be deemed accepted by Client and no further query or dispute may be raised by Client. Client shall reimburse SMT for all reasonable expenses related to collections, including but not limited to reasonable attorneys’ fees.
5. INTELLECTUAL PROPERTY RIGHTS
5.2
SMT Rights. As between SMT and Client, SMT owns and will retain all right, title and interest in all Products, Services, SMT’s Background Works and SMT Confidential Information, and all Intellectual Property Rights therein. SMT reserves all rights not expressly granted in the Agreement.
5.1
Client Rights. As between Client and SMT, Client owns and will retain all right, title and interest in all Client Content, Client’s Background Works, Developed Works, Client Data (defined below), and Client Confidential Information, and all Intellectual Property Rights therein. Subject to the terms and conditions of the Agreement, Client grants to SMT a nonexclusive revocable license during the term of the Agreement for the express, limited use of copying, distributing, displaying, making, and modifying Client Content to perform the Services and provide the Products.
5.3
Client Data. SMT acknowledges and agrees that Client shall own all data made available by Client to SMT, including Client Content, information about an End User, and any information collected by Client outside the Services and/or Products (e.g., through pixels, tags, cookies, beacons, SDKs, and similar technologies that maybe placed by Client including on its client’s advertisements) (“Client Data”). Subject to the terms and conditions of the Agreement, Client grants to SMT a nonexclusive revocable license during the term of the Agreement for the express, limited use of copying, distributing, displaying and modifying Client Data to perform the Services and provide the Products to Client and/or its designated clients and for no other purposes.
5.4
SMT Data. Client acknowledges and agrees that SMT shall own all data generated in connection with use of and access to the Products andServices, including data collected in connection with providing Products andServices requested by end consumers, and data which would have been generated regardless of Client’s use of the Products or receipt of the Services, but expressly excluding any and all Client Data (“SMT Data”). Subject to the terms and conditions of the Agreement, SMT grants to Client a nonexclusive revocable license during the Term of the Agreement to use, copy, distribute, display and modify SMT Data to use each Product and Service as permitted by a Work Order.
5.5
Aggregated Data. Client acknowledges and agrees that SMT shall have an irrevocable, worldwide, non-exclusive, royalty-free and perpetual license to use, reproduce, distribute, display and store aggregated statistics aboutClient’s use of the Services and Products for business purposes such as operating, maintaining, improving, developing and providing new Products andServices; provided, however, SMT shall not publicly disclose or distribute any such data unless such data is in an anonymized, aggregated form that would not permit a third party to identify such data as associated with Client (“Aggregated Data”).
Feedback. Client may provide SMT with feedback, comments, or suggestions from time to time (collectively, “Feedback”). Client acknowledges and agrees that: (a) any Feedback shall not be deemed Confidential Information, (b) SMT shall have no obligation to review, consider, or implement any Feedback, and (c) SMT may use Feedback for any purpose without any obligation to Client, including any attribution toClient.
5.6
6. REPRESENTATIONS AND WARRANTIES
6.2
Mutual Representations and Warranties. Each Party represents and warrants that (i) it has the full power and authority to enter into and perform its obligations under theAgreement and to make the grant of rights contained herein ; (ii) it has duly authorized execution and delivery of the Agreement and the officer or individual who has signed it on its behalf; (iii) its execution and delivery of the Agreement and the performance of its obligations under the Agreement do not and will not conflict with or result in a breach of or a default under its organizational instruments or any other agreement, instrument, order, law, or regulation known to be applicable to it or by which it may be bound; and(iv) the Agreement constitutes its valid and legally binding obligation, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, or other laws of general application relating to or affecting the enforcement of creditors’ rights and except as enforcement is subject to general equitable principles.
6.1
SMT Representation and Warranties. SMT represents, warrants and covenants that: (a) it either owns or has all necessary rights to provide the Products and Services in accordance herewith, and grant the licenses as set forth herein; (b) the Products,Services, and the provision and use thereof do not and will not violate the rights of any third parties (including intellectual property, proprietary, or privacy rights), (c) all Services will be provided in a professional and workmanlike manner, in accordance with industry standards. Notwithstanding the foregoing representations and warranties, SMT makes no guarantee that the Services and Products will achieve results satisfactory to Client.
6.3
Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6 OR OTHERWISE IN THIS AGREEMENT, (A) SMT DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT),(B) THE PRODUCTS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. SMT DOES NOT MAKE, AND EXPRESSLY DISCLAIMS, To the extent permitted by applicable law, ALL WARRANTIES WITH REGARD TO THIRD PARTY MATERIALS,AND (C) SMT DOES NOT GUARANTEE THAT PRODUCTS OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT SMT WILL CORRECT ALL ERRORS. CLIENT ACKNOWLEDGES THAT SMT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE PRODUCTS AND SERVICES MAY BE SUBJECT TO LIMITATIONS,DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NEITHER SMT NOR ANY OF ITS LICENSORS OR OTHER SUPPLIERS WARRANT OR GUARANTEE THAT THERE WILL BE NO UNAUTHORIZED ALTERATION, THEFT OR DESTRUCTION OF CLIENT’S OR ANY END USER’S DATA, FILES OR PROGRAMS. THE PARTIES ACKNOWLEDGE THAT SMT IS NEITHER A DESIGNER, MANUFACTURER, NOR RESELLER OF ANY OF CLIENT’S PRODUCTS OR SERVICES,EITHER BY ITSELF OR IN PARTICIPATION WITH ANY OTHER PERSON OR ENTITY. ACCORDINGLY, SMT MAKES NO REPRESENTATION,WARRANTY, ENDORSEMENT OR CERTIFICATION REGARDING THE SAFETY, EFFECTIVENESS,QUALITY, CHARACTER, OR FITNESS OF ANY CLIENT’S PRODUCTS OR SERVICES.CLIENT SHALL BE SOLELY RESPONSIBLE FOR ALL OF ITS PRODUCTS AND SERVICES AND ALL MATTERS ARISING IN CONNECTION WITH THEIR SALE, MARKETING, DISTRIBUTION,LICENSING, USE, AND OPERATION.
6.4
Beta Services. SMT may offer Client and Client may choose to expressly accept access to beta services that are being provided prior to general release (“Beta Services”). Client understands and agrees that (a) the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at Client’s sole risk, (b) use of Beta Services is on a voluntary and optional basis, (c) no technical support or other services will be provided with regard to Beta Services, and (d) all Beta Services are offered “AS IS” and “AS AVAILABLE.” To the extent permitted by applicable law, SMT disclaims all liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise for and in connection with Beta Services.
7. COMPLIANCE
7.2
Each Party shall in connection with the Agreement comply with all laws, regulations, and other rules having equivalent force which are applicable to that Party’s performance under the Agreement.
7.1
Each Party shall maintain accurate records including records relevant to the use of any Product or Services or other materials or in relation to the calculation of any Fees.
8. CONFIDENTIALITY
8.1
Obligations. Each Party shall, in respect of the Confidential Information of the other Party:
8.1.1
keep such Confidential Information strictly confidential and not disclose or make available any part of such Confidential Information to any person except as permitted by or as required for the performance of its obligations under the Agreement;
8.1.2
take all reasonable steps to prevent unauthorized access to anduse of such Confidential Information; and
8.2
use such Confidential Information solely to exercise rights and fulfill obligations under the Agreement.
8.1.3
Permitted Disclosures. Each Party may disclose relevant ConfidentialInformation of the other Party to the following who have a need to know such information on the following terms:
8.2.1
its employees, officers, subcontractors and representatives who require it for such Party to perform its obligations under the Agreement on the condition that it obligates all such persons or entities to protect such Confidential Information to at least the same extent as required under this Section 8; and
8.2.2
its auditors and professional advisors who are bound by professional duties of confidentiality solely for the purposes of providing professional advice.
Each Party is responsible for the acts and omissions of the employees, officers, subcontractors, representatives, auditors and professional advisors with regard to the other Party’s Confidential Information as though such acts and omissions were the acts and omissions of the Party receiving such information.
8.3
Exceptions. The restrictions in this Section 8 do not apply to any information to the extent that it:
8.4
Obligated Disclosure. The receiving Party may disclose the other Party’s Confidential Information if required by law or by a court of competent jurisdiction or by any regulatory body or in accordance with the rules of any recognized stock exchange (in which case the Party required to disclose shall (i) use commercially reasonable efforts to limit the disclosure and maintain confidentiality to the maximum extent possible and (ii) timely inform, to the extent permitted by law, the other Party of all such proceedings so that the other Party may attempt by appropriate legal means to limit such disclosure.
8.3.1
is or comes within the public domain other than through a breachby the receiving Party of this Section 8; or
8.3.2
is in a Party’s possession (without restriction) before receipt from the other Party under the Agreement; or
8.3.3
is lawfully received from a third party (without a known restriction); or
8.3.4
is independently developed by a Party without access to or use of the other Party’s Confidential Information.
9. INDEMNIFICATION
9.1
Client Indemnity. Client shall indemnify, defend and hold harmless SMT and its affiliates, and each of their officers, directors, members, employees, agents, successors and permitted assigns from and against all actions, liabilities, damages, losses, judgments, sanctions, expenses and costs(including settlement costs, fines, penalties, expenses and reasonable outside attorneys’ and expert witness fees) (“Losses”) arising out of a third-Party claim, proceeding or action (“Claim”) arising out of or relating to:
9.1.1
allegations of infringement, misappropriation or other violation of such third Party’s Intellectual Property Rights by (i) SMT’s use of anyClient Content as permitted by the terms of the Agreement or (ii) any other use by SMT of Client’s advertisements, products or services under the Agreement;
9.1.2
Client’s or an End User’s use of the Products or Services in violation of the Agreement, applicable laws, rules or regulations;
9.1.4
SMT’s provision of Products or Services pursuant to Client’s or an End User’s designs, requirements, instructions or specifications, including assertions regarding any violation or alleged violation of applicable law based on such instructions, specifications (if any) or any Client Content; and/or
9.1.3
Client’s or an End User’s combining any Product or Service with any materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property not provided or otherwise authorized by SMT; and/or
9.1.5
manufacturing, marketing, sale, handling, use, storage or shipment of any of Client’s or an End User’s products or services (including, without limitation, claims arising from personal injuries and property damage).
9.2
SMT Indemnity. SMT shall indemnify, defend and hold harmless Client against allLosses arising out of a Claim arising out of or relating to
9.2.1 such third party’s Intellectual Property Rights by Client’s use of any Service and/or any Product as permitted by the terms of the Agreement; and
9.2.2 SMT’s indemnification obligations will not apply to the extent a Claim is based on: (a) Client’s designs, instructions, requirements or specifications; (b) Client Content; (c) any combination of Products with materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property not provided or otherwise authorized by SMT; (d) Client or any End User’s use of the Service, or Products other than in accordance with the terms of the Agreement; and/or (e) Client’s unauthorized modification of any Product; and/or (f) materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property developed and/or owned by a third party.
9.2.1 such third party’s Intellectual Property Rights by Client’s use of any Service and/or any Product as permitted by the terms of the Agreement; and
9.2.2 SMT’s indemnification obligations will not apply to the extent a Claim is based on: (a) Client’s designs, instructions, requirements or specifications; (b) Client Content; (c) any combination of Products with materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property not provided or otherwise authorized by SMT; (d) Client or any End User’s use of the Service, or Products other than in accordance with the terms of the Agreement; and/or (e) Client’s unauthorized modification of any Product; and/or (f) materials, services, content, code and software libraries, programming, systems, processes, products or intellectual property developed and/or owned by a third party.
9.3
Procedures. The indemnified Party will provide the indemnifying Party with reasonably prompt written notice of Claims, except that failure to give prompt notice will relieve the indemnifying Party of its indemnity obligations only to the extent the delay caused material prejudice; permit the indemnifying Party to answer and defend Claims; and provide the indemnifying Party with reasonable information and assistance to help the indemnifying Party defend Claims at the indemnifying Party’s expense. Any indemnified Party will have the right to employ separate counsel and participate in the defense of anyClaim at its own expense. Neither Party will stipulate, admit, or acknowledge any fault or liability on the part of the other without prior written consent.The indemnifying Party will not settle any Claim or publicize any settlement without the other Party’s prior written consent, which consent shall not be unreasonably withheld or delayed.
9.4
Infringement Remedy. In addition to its indemnification obligations underSection 9.2 above, if any Product, or part thereof, is, or in SMT’s opinion may, violate the rights of a third party, SMT at its sole and exclusive discretion shall at its expense promptly: (i)procure the right for Client to continue using the applicable Product, or part thereof, (ii) replace the Product, or part thereof with a non-infringing equivalent; or (iii)modify the Product, or part thereof to make it non-infringing so long as the modifiedProduct satisfies the requirements of the Agreement. If SMT does not promptly comply with (i),(ii) or (iii) and/or if Client’s use of any Product is enjoined, then SMT will have the right to terminate without liability the Agreement upon notice, in whole or in part, including any Work Order and Insertion Order.
9.5
This Section 9 sets out the entire liability of both Parties and the sole remedy of each Party, except as otherwise provided herein, with respect to the infringement of a third party’s Intellectual Property Rights and any Claims relating to the indemnities given in this Section 9.
10. LIMITS ON LIABILITY
10.1
SUBJECT TO SECTION 10.2 BELOW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING FINANCIAL LOSS, LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OR GOODWILL), WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE AGREEMENT REGARDLESS OF WHETHER THE LIABILITY IS BASED ON BREACH OF CONTRACT,TORT, STRICT LIABILITY, BREACH OF WARRANTIES OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. ADDITIONALLY, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY WILL EXCEED THE AMOUNT PAID OR PAYABLE BY CLIENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD FOR THE WORK ORDER GIVING RISE TO THE LIABILITY.
10.2
THE LIMITATIONS ON LIABILITY SET FORTH IN SECTION 10.1 DO NOT APPLY TO LIABILITY ARISING FROM (I) A PARTY’S DUTY TO INDEMNIFY THE OTHER FOR THIRD-PARTY CLAIMS UNDER THE AGREEMENT; (II) A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 OR A PARTY’S PRIVACY AND SECURITY OBLIGATIONS UNDER SECTION 11 OF THE AGREEMENT;AND/OR (III) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. TO THE FULLEST EXTENT PERMITTED BY LAW,NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR THE TYPES OF LIABILITY LISTED IN THIS SECTION 10.2 WILL EXCEED TWO TIMES THE AMOUNT PAID OR PAYABLE BY CLIENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD FOR THE WORK ORDER GIVING RISE TO THE LIABILITY.
11. PRIVACY AND SECURITY
11.3
Each Party shall comply with all applicable privacy and data protection laws, and regulations; has a posted privacy policy that is in compliance with applicable laws; and adheres to such privacy policy in the performance of its obligations under the Agreement. To the extent applicable, with respect to Client Data, SM operates as a Processor and Service Provider, and to the extent that applicable privacy and data protection laws (e.g., the General Data Protection Regulation 2016/679 (“GDPR”) require, the Parties shall sign a data processing agreement. Data transfers, as applicable, between SM and Client shall occur using SM’s systems or those of SM’s subprocessors no other methods shall be accepted.
11.2
11.1
SMT will implement and maintain commercially reasonable administrative, physical, and technical safeguards.
Client Data, including personally identifiable data (if any),to SMT in connection with the Products and Services ; (b) be responsible the accuracy, appropriateness and legality of Client Data; (c) be responsible for all logins and passwords related to any Client accounts with SMT and for all activity occurring under or in connection with such accounts, including all EndUser accounts; and (d) use commercially reasonable efforts to prevent unauthorized access to or use of Products and Services, and notify SMT in writing (email sufficient) promptly of learning of any unauthorized access or use.
12. general
12.1
Publicity. Neither Party will use, publicize, or issue any press release which includes the name, trademarks, or other proprietary identifying symbol of the other Party without the prior written consent of the other Party; provided, SMT may include Client and its logo on SMT’s list of selected clients.
12.2
Email. Each Party consents on its own behalf and on behalf of each of its employees, and in the case of Client, its End Users, to receive emails and other electronic messages, including commercial electronic messages, from the other Party, or any employee of the other Party, for or in relation to the Agreement.
12.3
Notices. All notices to be sent by one Party to the other in connection with the Agreement (except for the service of court proceedings)will be in writing and delivered personally, by special delivery post (or equivalent service offered by the postal service from time to time), by recognized carrier, or by email with a confirmed receipt to the addresses of each Party as set out on the Work Order or as otherwise notified in accordance with the provisions of this Section 12.3. Notices will be deemed to have been duly given: if delivered personally, upon delivery; if sent by post or carrier, two business days after the date of sending; if sent by email, when received.
12.5
Assignment. Neither Party may assign or otherwise transfer theAgreement or any of its rights or obligations under it without the prior written consent of the other Party (such consent not to be unreasonably withheld, delayed or conditioned), except that a Party may assign the Agreement to any of its Affiliates and in the event of a merger, asset sale, reorganization or other change of control with respect to the business to which the Agreement relates without the other Party’s prior consent.
12.4
Severability. If any part of the Agreement is found to be invalid or unenforceable by any court or other competent body, such invalidity or unenforceability will not affect the other provisions of the Agreement and such other provisions will remain in full force and effect. The invalid or unenforceable provision shall be modified to the extent necessary to reflect the original intent of the Parties as closely as possible, within the bounds of the law.
12.6
Force Majeure. Neither Party will be liable for any delay or failure in the performance of its obligations under the Agreement to the extent such delay or failure is due to causes beyond its reasonable control, including but not limited to any act of government or state, civil commotion, terrorism, fire, flood, explosion, industrial action or organized protest by third Parties, natural disaster, war, embargo, pandemic or epidemic, failure of payment systems, failure of internet or third party computer systems, or any other event beyond the reasonable control of the Party (“Force Majeure Event”). The Party affected by a ForceMajeure Event shall notify the other Party in writing of such event as promptly as practicable after its occurrence and shall use due diligence, where practicable, to minimize the effects of or end any such event so as to facilitate the resumption of full performance of the Agreement. In the event Client claims a Force MajeureEvent in the delay or failure to pay Fees due under the Agreement, SMT may suspend performance for the duration of such Force Majeure Event, or terminate the Agreement or the affected Work Order and Insertion Order by providing notice to Client if suchForce Majeure Event lasts for five (5) business days or longer. In the event SMT claims a Force Majeure Event and is not able to resume obligations for more than thirty (30) days, thenClient may terminate the Agreement or the affected Work Order by providing notice to SMT.
12.7 Waiver. If either Party fails to exercise a right or remedy that it has or which arises in relation to the Agreement, such failure will not prevent that Party from exercising that right or remedy subsequently in respect of that or any other incident. A waiver of any breach or provision of the Agreement will only be effective if it is made in writing and signed on behalf of the Party who is waiving the breach or provision. Any waiver of a breach of any term of the Agreement will not be deemed a waiver of any subsequent breach and will not affect the enforceability of any other term of the Agreement.
12.7 Waiver. If either Party fails to exercise a right or remedy that it has or which arises in relation to the Agreement, such failure will not prevent that Party from exercising that right or remedy subsequently in respect of that or any other incident. A waiver of any breach or provision of the Agreement will only be effective if it is made in writing and signed on behalf of the Party who is waiving the breach or provision. Any waiver of a breach of any term of the Agreement will not be deemed a waiver of any subsequent breach and will not affect the enforceability of any other term of the Agreement.
12.8
Governing Law. The Agreement will be governed by, and construed in accordance with, the laws of the State of Colorado (without regard to its conflict of law provisions) and applicable U.S. federal law. The Colorado CountyCourt for the 2nd Judicial District (Colorado) and the United States DistrictCourt for the District of Colorado shall have exclusive jurisdiction over all claims and matters which may arise out of or in connection with the Agreement, and the Parties consent to the jurisdiction of such courts.
12.9
Entire Agreement; Amendment. The Agreement constitutes the complete, entire and exclusive statement of the Parties’ understanding with respect to the subject matter thereof and supersedes all previous agreements between the Parties relating to the same subject matter. Each Party has executed the Agreement, without reliance upon any promise, representation or warranty other than those expressly set forth in the Agreement. Neither of the Parties shall be bound by, or liable to the other Party for, any representation, promise or inducement (other than fraudulent misrepresentations) made by it or by any agent or person on its behalf which is not expressly contained in the Agreement. In the event of any conflict between the terms of these Terms and a WorkOrder or Insertion Order, the terms of these Terms will prevail unless otherwise expressly provided in these Terms or specified in a Work Order or Insertion Order. No amendment to the Agreement will be effective unless set forth in a writing signed by each Party.
12.10
Relationship. The Parties are independent contractors. The Agreement does not create an exclusive relationship between the Parties. Neither Party, without the prior written consent of other Party, may enter into any contract or commitment in the name of or on behalf of the otherParty or bind the other Party in any respect whatsoever. Client shall be fully responsible and liable for all acts and omissions of End Users, and any act or omission of an End User that would be a breach of the Agreement will be deemed to be a breach byClient.
12.11
Counterparts. The Agreement (and each Work Order and InsertionOrder) may be executed in one or more counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. The Agreement (and each Work Order and Insertion Order) may be executed and delivered electronically (including, without limitation, by means of an electronic service such as DocuSign or e-mail exchange of executed PDF reproductions of the Agreement) with the same force and effect as if it were executed and delivered by the Parties simultaneously in the presence of one another. The Parties may not dispute the validity of the Agreement (or any WorkOrder or Insertion Order) on grounds of it having been executed electronically.
12.12
Third Party Beneficiaries. Except for SMT’s affiliates, and the ability of theParties listed in Section 9 to enforce their rights to indemnification, theAgreement is solely for the benefit of the Parties and their respective permitted successors and assigns and nothing in the Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
12.13
Interpretation. In the Agreement:
12.13.1
any reference to a statutory provision includes a reference to any modification, amendment or re-enactment of it from time to time;
12.13.2
references to sections, clauses, exhibits, attachments, addenda, and schedules are to the Agreement, or part thereof, as applicable;
12.13.3
the singular includes the plural and vice versa;
12.13.4
the headings are for ease of reference only and will not affect the construction or interpretation of the Agreement;
12.13.5
where any matter is to be agreed, such agreement shall be set forth in writing signed by both Parties unless otherwise expressly indicated herein; and
12.13.6
wherever the words “including”, “include”, “includes” or “included” are used they shall be deemed to be followed by the words “without limitation” unless the context otherwise requires.