Master Software as a Service Terms and Conditions

Subscriber has entered into one or more written Exhibit A(s) with TapInfluence, Inc. (“Service Provider”) referencing these Master Software as a Service Terms and Conditions (these “Terms and Conditions”).
These Terms and Conditions together with each Exhibit A entered into by Subscriber and Service Provider form a separate legally binding agreement between Subscriber and Service Provider. All references to the “Agreement” include these Terms and Conditions and each Exhibit A entered into by Subscriber and Service Provider. All references to the “Exhibit A” will mean the applicable Exhibit A forming a part of each Agreement including these Terms and Conditions. Unless otherwise stated in an applicable Exhibit A, each Exhibit A referencing these Terms and Conditions forms a separate Agreement between Subscriber and Service Provider.

By entering into an Exhibit A referencing these Terms and Conditions, Subscriber agrees that all services set forth in that Exhibit A (“Services”), and all access to and use of the Platform (as defined below) in connection with those Services, will be governed by the Agreement formed by these Terms and Conditions and that Exhibit A.
Subscriber acknowledges and agrees that Subscriber has the full power and authority to enter into each Agreement including these Terms and Conditions and to bind Subscriber to that Agreement. Any Exhibit A forming part of an Agreement with these Terms and Conditions may be amended and executed in multiple counterparts, each of which will be deemed an original, but all of which together will constitute a part of the Agreement. No Exhibit A will be effective until mutually agreed to by Service Provider and Subscriber. Each Agreement, including these Terms and Conditions, supersedes any and all oral or written agreements or understandings between Service Provider and Subscriber as to the subject matter of that Agreement.

Table of Contents:
1. Definitions
2. Term
3. Fees
4. Services
5. Platform
6. Restrictions
7. Technical Support and Maintenance
8. Data
9. Branding
10. Payment
11. Termination or Suspension
12. Ownership
13. Performance and Disclaimer
14. Indemnification
15. Limitation of Liability
16. Data Privacy and Security
17. Confidentiality
18. Force Majeure
19. Advertising and Publicity
20. Governing Law
21. Notice
22. General


1. DEFINITIONS.All capitalized terms used in this Agreement will have the meanings given to them here or in each Exhibit A forming a part of this Agreement. All other terms used in this Agreement will have their plain English meaning as commonly interpreted in the United States.

2. TERM. The term of this Agreement will begin on the Subscription Start Date of the applicable Exhibit A forming a part of the Agreement. Unless earlier terminated as set forth herein, the term of this Agreement will continue until the Subscription End Date stated in that Exhibit A. Unless otherwise specified in the applicable Exhibit A, the term of this Agreement will thereafter automatically renew for successive additional renewal periods each equal to 12 months, unless either party notifies the other party of its intent not to renew the Agreement at least 30 days prior to the end of the then-current renewal period.

3. FEES. The fees in connection with this Agreement (“Fees”) are as stated in the applicable Exhibit A and are due and payable by Subscriber as specified in this Agreement. Additional Fees may be specified in connection with the Services obtained by Subscriber through the Platform, and such additional Fees are due and payable as specified in an Exhibit A.

4. SERVICES. All Services and other obligations of Service Provider under this Agreement will be as set forth in each applicable Exhibit A entered into between Subscriber and Service Provider referencing this Agreement. In addition, if the applicable Exhibit A includes service levels applicable to any Services, then those Services will be provided in accordance with the applicable service levels set forth in the Exhibit A (“Service Levels”). All Service Levels are subject to the terms and conditions of this Agreement. All Service Levels are solely between Service Provider and Subscriber. In the event of any failure by Service Provider to meet any applicable Service Level, Service Provider’s sole obligation, and the sole remedy of Subscriber, will be as expressly stated in the applicable Exhibit A. Service Provider will not have any obligation to provide Services or perform other obligations unless specified herein or in that Exhibit A. Upon Subscriber’s request and Service Provider’s agreement, Subscriber and Service Provider may enter into additional Orders under this Agreement.

5. PLATFORM.

5.1 Access and Use.
(a) Direct. The Services may include hosted software, provided as a “service” delivered through Service Provider’s web-based content creation and distribution platform (the “Platform”). The Platform enables engagement with online influencers (“Influencers”) and the generation and distribution of content created by those Influencers (“Posts”) through social media and other online channels. If an applicable Exhibit A includes Services to be provided through the Platform for direct use by Subscriber, then subject to compliance with the terms of this Agreement, during the term of this Agreement, Service Provider will provide Subscriber with a subscription to access the Services through the Platform solely for Subscriber’s internal business use.

(b) Agency. If an applicable Exhibit A includes Services to be provided through the Platform for use by Subscriber in providing services to clients or customers represented by Subscriber (each a “Subscriber Customer”), then subject to compliance with the terms of this Agreement, during the term of this Agreement, Service Provider will provide Subscriber with a subscription to access those Services through the Platform solely for the benefit of those Subscriber Customers.

5.2 Account. All Subscriber access to the Platform will be provided through a Subscriber account (an “Account”). Subscriber may enable authorized employees and contractors of Subscriber and any other named individuals set forth in the applicable Exhibit A (“Users”) to access the Platform through its Account. Each User will be required to establish his/her own user identification and password (“User ID”) through which the User may access the Platform. Each User ID is personal in nature and may be used only by that User. Subscriber is responsible for all access to and use of the Platform by each User and for compliance by each User with the terms of this Agreement (and any other agreement to which the User agrees in connection with the Platform). Subscriber will not allow any access to or use of the Platform by anyone other than Subscriber’s Users. Subscriber commits that all use of the Platform will be consistent with the terms, conditions and restrictions set forth in this Agreement. Subscriber will notify Service Provider immediately of any unauthorized access to or use of the Platform or if any User ID is lost, stolen, or otherwise compromised. Subscriber will remain fully responsible for all access to or use of the Platform or any Services through Subscriber’s Account.

6. RESTRICTIONS.
6.1 General. Subscriber acknowledges that the Platform and all software, hardware, databases, and other technology used by or on behalf of Service Provider to provide the Platform and Services (collectively, the “Technology”) and their structure and organization constitute valuable trade secrets of Service Provider and its providers. Subscriber will not, and will not permit any User, Subscriber Customer, or other third party to: (a) access or use the Technology except as expressly provided in this Agreement; (b) use the Technology in a manner that violates any applicable law or regulation or causes Service Provider to violate any applicable law or regulation; (c) damage, disable, overburden, or impair the Technology; (d) use automated scripts to collect information from or interact with the Technology; (e) alter, modify, reproduce, create derivative works of the Technology; (f) provide any third party access to the Technology (including by distributing, selling, loaning, leasing, licensing, or transferring rights), except for permitted Subscriber Customers as specified here; (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of the Technology; (h) attempt to circumvent or overcome any protection measures intended to restrict or prevent unauthorized access to the Technology; (i) monitor availability, performance or functionality of the Technology or perform any benchmarking, business intelligence, data mining, or competitive analysis of the Technology; or (j) interfere with the operation or hosting of the Technology.

6.2 Third Party Functionality. Platform may contain or include functionality and software provided or licensed by third-parties (“Third-Party Functionality”). For any Third-Party Functionality clearly indicated to be subject to the terms of a separate agreement (a “Third-Party Agreement”), the terms of the applicable Third-Party Agreement will apply to the Third-Party Functionality independent of the terms of this Agreement. All other Third-Party Functionality provided to Subscriber through the Platform may be used only under the terms of this Agreement. Nothing in this Agreement limits Subscriber’s rights under the terms of any such applicable Third-Party Agreement.

6.3 Performance Limits. All access to and use of the Services and Platform by Subscriber is subject to the performance tiers and other limitations and restrictions specified in the Exhibit A (“Performance Limits”). Subscriber agrees to access and use the Platform solely within the Performance Limits applicable to Subscriber. Subscriber acknowledges that the Platform may contain functionality limiting access and use of the Platform and Services to within applicable Performance Limits. Subscriber will take such precautions necessary to avoid any interruption or loss that may occur due to any attempt to operate the Platform outside of applicable Performance Limits.

7. TECHNICAL SUPPORT AND MAINTENANCE.
7.1 Technical Support. Service Provider shall provide the technical support as described in the Exhibit A (“Technical Support”). The Services Fees shall be inclusive of the fees for the performance of all Technical Support.

7.2 Maintenance. Service Provider shall use commercially reasonable efforts to provide maintenance for the Services (including, bug fixes, corrections, modifications, enhancements, upgrades, and new releases of the Services) to ensure the Services function in accordance with: (a) each Exhibit A; (b) the documentation applicable to the Services provided by Service Provider; (c) the representations and warranties set forth here; and (d) any applicable Service Level Standards (as defined below). The Services Fees shall be inclusive of the fees for such maintenance.

8. DATA.
8.1 Subscriber Data. Subscriber retains all rights, including all IPR (as defined below), in and to all data, information, and other content, including any text, files, images, graphics, illustrations, information, data, audio, video, photographs, completed program performance and analytics (“Data”) provided by Subscriber or any Subscriber Customer or User (“Subscriber Data”).

8.2 Influencer Data. Service Provider agrees to assign to Subscriber all rights, including all IPR, obtained or held by Service Provider in or to all Data provided or authored by any Influencer on behalf of Subscriber through the Services (“Influencer Data”). As a condition to such assignment, Subscriber agrees to provide each applicable Influencer with attribution as the author of such Influencer Data whenever such influencer Data is Used by Subscriber, whether through the Platform or otherwise.

8.3 Additional Responsibility. Subscriber grants Service Provider all rights and licenses in and to the Subscriber Data and Influencer Data necessary for Service Provider to provide the Services and perform its other obligations under this Agreement. Subscriber has all rights in and to all Subscriber Data necessary to permit Service Provider to provide the Services and perform its other obligations under this Agreement. Subscriber is liable for all costs, fees, liabilities, or damages related to any Subscriber Data and Influencer Data including any fees payable to Users, Influencers or other third parties or any liabilities arising from the copying, reproduction, publication, distribution, display, performance, modification, or other use (“Use”) of any Subscriber Data and Influencer Data. Except as expressly stated in this Agreement, Service Provider has no responsibility or liability for any Subscriber Data or Influencer Data, including any deletion, destruction, or loss of any Subscriber Data or Influencer Data, and Subscriber is otherwise solely responsible and liable for all Subscriber Data and Influencer Data. Subscriber agrees that the Subscriber Data and Influencer Data will not: (a) violate this Agreement, the Privacy Policy (as defined herein), or any other applicable Service Provider policy; (b) violate any applicable laws or regulations or cause Service Provider to violate any applicable laws or regulations; (c) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (d) constitute an infringement, misappropriation or violation of the IPR or other rights of any third party; (e) be illegal in any way or advocate illegal activity; (f) be false, misleading, or inaccurate; or (g) be considered, in the sole discretion of Service Provider, junk mail, spam, a part of a pyramid scheme, a disruptive commercial message or disruptive advertisement. Service Provider may, but is not required, unless otherwise stated by the applicable Exhibit A, to review Subscriber Data and Influencer Data. No such review will expand the responsibility or liability of Service Provider for any Subscriber Data or Influencer Data, unless expressly agreed to in writing by Service Provider.

8.4 Submissions. Service Provider has no responsibility or liability for any submission, response, comment, or other feedback provided or obtained from any third party in response to any Post (“Submissions”) or any Use of any Submissions.

8.5 Platform Data. Except for any Subscriber Data, Influencer Data, and Submissions, all other Data made available or provided through the Platform (“Platform Data”) is owned by Service Provider and its providers. Except as expressly set forth in this Agreement, Subscriber is granted no licenses or other rights in or to any Platform Data or any Use thereof.

9. BRANDING. Subscriber will identify and approve of all trademarks, service marks, trade names and other identifiers of Subscriber and applicable Subscriber Customers (“Subscriber Marks“) to be used by Service Provider and applicable Influencers in connection with providing the Services. Subscriber grants Service Provider a license, with a limited right of sublicense to Influencers generating and distributing Posts on behalf of Subscriber, to use the Subscriber Marks in connection with providing the Services under this Agreement. Subscriber has (or has obtained from each Subscriber Customer) all rights in and to all Subscriber marks necessary to permit Service Provider and each applicable Influencer to provide the Services and perform the other obligations under this Agreement. Service Provider agrees that the Subscriber Marks are and will remain the sole property of Subscriber and each applicable Subscriber Customer and that all use of any of the Subscriber Marks and all goodwill developed therein will inure solely to the benefit of Subscriber or the applicable Subscriber Customer. All use of the Subscriber Marks by Service Provider will comply with the terms of this Agreement and any reasonable trademark usage requirements provided by Subscriber to Service Provider in connection with this Agreement, provided that those limitations do not restrict Service Provider from performing the Services or its other obligations under this Agreement.

10. PAYMENT. Unless otherwise specified in the applicable Exhibit A, all Fees contained in the applicable Exhibit A are payable within 30 days of the date such Exhibit A is entered into by Service Provider and Subscriber. Subscriber will receive a 2% percent discount for payment of all Fees contained in Exhibit A if remitted to Service Provider within 10 days of receipt of invoice. Unless otherwise specified in the applicable Exhibit A, any Fees specified on the Platform are payable upon receipt of invoice. Service Provider will invoice all Fees to Subscriber. All Service Provider invoices are due in immediately available U.S. funds. Any discount for early payment specified in the applicable Exhibit A is applicable only to the Fees contained in that Exhibit A and is strictly limited to the terms stated in connection with such discount. If Subscriber has specified direct withdrawal from a bank account as an applicable payment mechanism under this Agreement, Subscriber grants Service Provider the right to debit the bank account provided to Service Provider for all Fees incurred under this Agreement. Subscriber is responsible for payment of all costs or fees associated with payment by wire transfer, or through third party invoicing or accounts payable service providers. Until paid in full, all past due amounts will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law. Unless otherwise specified, Service Provider may change any portion of any Fee by notifying Subscriber of the change in writing at least 30 days prior to the expiration of the then-current subscription period of this Agreement (or if the period is shorter than 30 days, at the start of the current period). All changes will take effect at the beginning of the next subscription period of this Agreement. If Service Provider requires use of collection agencies, attorneys, or courts of law for collection of any Fees, Subscriber will be responsible for those expenses. Subscriber will be responsible for all sales and use taxes, if any imposed on the Services provided under this Agreement (other than taxes resulting from Service Provider’s income or property).

11. TERMINATION OR SUSPENSION. This Agreement may be terminated by either party if the other party materially breaches any term of this Agreement and fails to cure the material breach within a period of 30 days following notice of such breach from the non-breaching party, and such notice shall describe the breach in reasonable detail. In addition, Service Provider may also temporarily suspend access to and use of the Platform and Services upon notice to Subscriber following any actual or suspected breach of this Agreement or applicable law or to prevent any other conduct deemed by Service Provider to be harmful, inappropriate, or detrimental to the Platform or to Service Provider. Service Provider will reinstate access to the Platform or Services, as applicable, following resolution of any such breach or conduct. Upon any termination or expiration of this Agreement: (1) all rights and license granted to Subscriber under this Agreement will terminate unless otherwise negotiated with the Service Provider and the respective Influencer; (2) Subscriber will immediately cease all use of and access to the Platform and Services; (3) all Fees then owed by Subscriber will become immediately due and payable; (4) Subscriber will immediately either return to Service Provider or, at Service Provider’s discretion, destroy all Service Provider Confidential Information (as defined below) in Subscriber’s possession or control. Following any termination or expiration of this Agreement (other than resulting from a failure to pay any Fees when due), Service Provider will use commercially reasonable efforts to store Subscriber Data and provide Subscriber with limited access to the Services to download copies of the Subscriber Data for 30 days (or any longer post-termination retention period specified in an applicable Exhibit A). After the foregoing retention period, Service Provider may delete any Subscriber Data held by Service Provider at any time. The following Sections will survive termination or expiration of this Agreement for any reason: 10 (Payment) 11 (Termination), 12 (Ownership), 14 (Indemnification), 15 (Limitation of Liability), 16 (Data Privacy), 17 (Confidentiality), 18 (Force Majeure), 19 (Advertising and Publicity), 20 (Governing Law), 21 (Notice), and 22 (General).

12. OWNERSHIP.Service Provider retains all right, title, and interest, including all IPR (as defined below), in and to the Platform, Services, Technology, Platform Data and any additions, improvements, updates, and modifications thereto. Subscriber acknowledges that Subscriber is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to Subscriber to use it apart from Subscriber’s right to access the Services under this Agreement. The Service Provider name, logo, and the product and service names associated with the Services are trademarks of Service Provider (or its third party providers), and no right or license is granted to Subscriber to use them. Unless otherwise provided in the applicable Exhibit A, any instructions, methods, techniques, inventions, conceptions, developments, discoveries, works of authorship, or other deliverables or work product that have been previously developed by Service Provider or arise from or relate to any Services provided under any Exhibit A (“Deliverables”), and all IPR therein or relating thereto, shall be solely owned by Service Provider. To the extent such Deliverables relate to the Services, such Deliverables will be included in the definition of “Services” for the purposes of this Agreement and provided to Subscriber under the terms of this Agreement as part of the Services. Any additional licenses or others rights of Subscriber in or to any Deliverables will be as set forth in the applicable Exhibit A. For purposes of this Agreement, “IPR” means any and all intellectual property and proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights in data or databases, and contract rights.

13. PERFORMANCE AND DISCLAIMER. Service Provider will provide Subscriber with access to and use of the Services and Platform in accordance with this Agreement. EXCEPT AS STATED IN THIS AGREEMENT, SERVICE PROVIDER MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SERVICES, PLATFORM, SOFTWARE, OR PLATFORM DATA AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, PLATFORM, OR PLATFORM DATA, INCLUDING ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

14. INDEMNIFICATION.
14.1 By Service Provider. Service Provider shall indemnify, defend, and hold harmless Subscriber and its officers, directors, employees, representatives, and agents (collectively, “Subscriber Indemnitees”) from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorney’s fees) that may be incurred in whole or in part by reason of any third party claim or action to the extent such claim or action alleges that the use or operation of the Platform by Subscriber in accordance with this Agreement infringes or misappropriates any third party copyright, trademark, or trade secret or that Service Provider knowingly infringed any third party U.S. patent in the development or operation of the Platform. If the Platform becomes, or if Service Provider believes that the Platform is likely to become, the subject of a claim of infringement or misappropriation, Service Provider may, in its sole discretion, replace or modify the Platform, procure for Subscriber the right to continue using the Platform, or terminate this Agreement and require Subscriber to immediately cease access to and use of the Platform. In the case of any such termination, Service Provider will refund to Subscriber any pre-paid portion of any Fees. Service Provider shall not be liable for any costs or expenses incurred by Subscriber in connection with any claim of infringement or misappropriation without Service Provider’s prior written authorization. Service Provider shall have no obligation under this Section 14.1 as to any claim or action arising out of or related to: (a) Subscriber’s failure to use the Platform in accordance with this Agreement, any documentation applicable to the Platform, or Service Provider’s instructions; (b) Subscriber’s modification of the Platform not specifically authorized in writing by Service Provider; (c) the combination of any portion of the Platform with any third party software, equipment, service, or data; and (d) any breach by Subscriber of this Agreement. THIS SECTION 14.1 STATES SERVICE PROVIDER’S ENTIRE LIABILITY AND SUBSCRIBER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS OR ACTIONS RELATING TO OR ARISING OUT OF THE PLATFORM OR SERVICES.

14.2 By Subscriber. Subscriber will indemnify, defend, and hold harmless Service Provider and its officers, directors, employees, representatives, and agents from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorney’s fees) that may be incurred in whole or in part by reason of any claim or action to the extent such claim or action directly or indirectly from: (a) any use by Service Provider or any Influencer of any Subscriber Marks; (b) any Use by Subscriber or any third party of any Subscriber Data or Influencer Data; or (c) any breach by Subscriber or any Subscriber Customer or User of this Agreement.

14.3 Mutual Indemnification. Each party will indemnify, defend, and hold harmless the other party and its officers, directors, employees, representatives, and agents from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorney’s fees) that may be incurred in whole or in part by reason of any claim or action to the extent such claim or action directly or indirectly from such party’s gross negligence or willful misconduct.

14.4 Procedure. Each party seeking indemnification from the other party under this Section will give the indemnifying party prompt notice of any claim subject to this Section, grant the indemnifying party sole control of the defense or settlement of any claim or action subject to indemnification, and provide the indemnifying party with reasonable cooperation and assistance, at the request and expense of the indemnifying party, in the defense or settlement of any claim or action subject to indemnification under this Section.

15. LIMITATION OF LIABILITY. Except in the case of (1) the obligations of each party under Section 14 (Indemnification), (2) a party’s breach of Section 17 (Confidentiality), or (3) a party’s breach of its obligations regarding the IPR of the other party: (a) neither party will be liable to the other party (or, in the case of Service Provider, to any Subscriber Customer or User) for any consequential, incidental, indirect, special, exemplary, or punitive damages of any kind, including any loss of use or access, loss of business or loss of revenue or profit, arising out of or in connection with this Agreement or the Platform or Services, whether in contract, tort, or otherwise, even if such party is aware (or should have been aware) of the possibility of such damages; and (b) the total cumulative liability of each party in connection with this Agreement, whether in contract, tort, or otherwise, will not exceed any amounts actually paid to Service Provider by Subscriber under the applicable Exhibit A under which such liability arose during the 3 month period immediately preceding the events giving rise to such liability.

16. DATA PRIVACY AND SECURITY. Service Provider shall establish and maintain a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (1) ensure the security and confidentiality of the Subscriber Data; (2) protect against anticipated threats or hazards to the security or integrity of the Subscriber Data; (3) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (4) ensure the proper disposal of Subscriber Data. All access to and use of the Services and use Platform is subject to Service Provider’s Privacy Policy (“Privacy Policy”), a current copy of which is available at www.tapinfluence.com/privacy. Service Provider and Subscriber agree to comply with the current terms of the Privacy Policy.

17. CONFIDENTIALITY. For purposes of this Agreement, the “Confidential Information” of each party means all nonpublic information disclosed or made available under this Agreement by that party to the other party, including regarding the business, finances, services or technology of that party. Any information about Influencers (including contact information) is the Confidential Information of the Service Provider. Confidential Information shall not include any information that the party receiving any information can demonstrate: (1) was already lawfully known to that party at the time of disclosure by the other party; (2) is disclosed to that party by a third party who had the right to make such disclosure without any confidentiality restrictions or other obligations as to the information disclosed; or (3) is, or through no fault of that party has become, generally available to the public. Each party agrees to protect the other party’s Confidential Information with the degree of care that such party uses to protect its own confidential information of like nature, but in no case less than reasonable care. Each party agrees that, except as expressly directed by the other party, it will not at any time during or after the term of this Agreement: (a) disclose any Confidential Information to any third party; (b) permit any third party to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (c) use any of the Confidential Information for any reason other than for the purposes of this Agreement. Notwithstanding the foregoing, each party will be allowed to disclose Confidential Information of the other party solely to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body of competent jurisdiction, provided that the party notifies the other party of such required disclosure promptly and in writing and cooperates with the other party in any lawful action to contest or limit the scope of such required disclosure.

18. FORCE MAJEURE. Neither party shall be liable for delays or any failure to perform the Services in this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control. Where Service Provider fails to use its best efforts to minimize such delays, the delays shall be included in the determination of any Service Level achievement. The delayed party must notify the other party promptly upon the occurrence of any such event, or performance by the delayed party will not be considered excused pursuant to this Section, and inform the other party of its plans to resume performance.

19. ADVERTISING AND PUBLICITY. Without limiting the obligations of Sections 9 and 12 above, any publicity concerning a party directly or indirectly in any advertisement, news release, or publication shall require the other party’s prior written approval.

20. GOVERNING LAW. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any proceedings relating to this Agreement, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado. Each party agrees that it will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court in the District of Colorado, U.S.A. or in state court in Denver, Colorado U.S.A., and Subscriber irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by Service Provider.

21. NOTICE. All notices permitted or required under this Agreement will be in writing, delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 5 business days after deposit in the mail, first class postage prepaid, or upon acknowledgment of receipt of electronic transmission. Notices from Service Provider to Subscriber may be sent to the electronic mail address associated with Subscriber’s Account or to the attention of an officer of Subscriber at the addresses set forth at the beginning of this Agreement (or such other physical address as Subscriber may specify in writing). Notices from Subscriber to Service Provider may be sent through the Services, or to an officer of Service Provider at Service Provider’s mailing address provided on the Platform (or such other address as Service Provider may specify in writing).

22. GENERAL. The parties are independent contractors and nothing in this Agreement will create an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation or commitment on behalf of the other party. No modification or amendment of this Agreement will be effective unless made in writing and signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. No term of this Agreement will be construed to confer any rights upon any third party or to create any third-party beneficiary rights. All remedies under this Agreement are cumulative with all other rights and remedies herein or in any other agreement between the parties or under applicable law. Nothing in this Agreement will limit either party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction. The parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of this Agreement. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations hereunder may be assigned, transferred, or delegated by either party in whole or in part, by operation of law or otherwise, without the prior written approval of the other party, except that either party may assign this Agreement without consent (1) to any of its affiliates or (2) to any third party pursuant to any merger, consolidation, sale of the stock, sale of all or substantially all of the business, or reorganization involving the assigning or transferring party, provided that prior to such assignment or transfer all such assignees and transferees agree in writing to be bound by the terms and conditions of this Agreement. Any attempt to assign or otherwise transfer this Agreement or the rights or obligations under this Agreement will be void. This Agreement will be binding upon, inure to the benefit of, and will be enforceable by and against, the successors, heirs, beneficiaries, personal representatives, and permitted assigns of each party. Any failure of Service Provider to perform or delay in the performance of Service Provider’s obligations under this Agreement due to any cause or event not reasonably within Service Provider’s control, including but not limited to casualty, labor dispute, failure of equipment or carriers or utilities, compliance with governmental authority or Act of God, shall not constitute a breach of this Agreement, and Service Provider’s performance shall be excused during such period of delay.