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Terms of Service
Table of Contents
Master Services Agreement
This Master Services Agreement governs your use of certain Services described in one or more Order Forms (as defined below) provided by Veritonic, Inc. (“Veritonic”). By accessing or using the Services or by executing an Order Form that references this Agreement, you signify that you have read, understood, and agree to be bound by this Agreement. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERM “YOU” OR “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
Veritonic may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change this Agreement, we will update the ‘last revised’ date at the top of this page. If there are material changes to this Agreement, we will notify you either by posting a notice of such changes prior to implementing the change or by directly sending you a notification. Your continued use of the Service after any such change constitutes your acceptance of the new Agreement. If you do not agree to any of these terms or any future Agreement, do not use or access (or continue to access) the Service. This Agreement applies to all Users.
- “API” means each Veritonic programming interface and any API Documentation or other API materials made available to Client by Veritonic.
- “Aggregate Data” means anonymized compilations and analyses of Client Data that is combined with data from numerous other clients.
- “Analyses” means reports, evaluations, benchmarking tests, studies, analyses and other work product from Aggregate Data.
- “Client Data” means the audio files or other data, including the personal data of Client’s viewers and end customers, inputted by Client or its Users for the purpose of using the Platform or facilitating Client’s use of the Platform and the Services.
- “Documentation” means user documentation that describes the principles of the operation or functionality of the Platform and that are embedded with such Platform (e.g., on-line help files).
- “Maintenance Services” means ongoing maintenance and technical support services for the Platform, as further described herein.
- “Order Form” means the ordering documents for purchases of Services hereunder, including addenda thereto, that are entered into between Client and Veritonic from time to time.
- “Platform” means Veritonic’s web-based Audio Intelligence Platform, including associated APIs.
- “Professional Services” means all implementation, training, configuration, data migration and import, consulting and professional services performed by or on behalf of Veritonic for Client pursuant to this Agreement.
- “Services” means providing Client with access to the Platform, Maintenance Services and Professional Services, collectively.
- “Subscription Term” means the period that Client has the right to use the Platform and associated Documentation as set forth in the applicable Order Form, including the Initial Term and any Renewal Terms.
- “Third Party Content” means all content including text, information, data, software, executable code, images, audio files, or video material in any medium or form that is owned by a third party and made available to Client by Veritonic through the Platform.
- “Users” means individuals who are authorized by Client to use the Platform and who have been supplied Veritonic-issued user identifications and passwords by Client. “Users” may include but is not limited to Client employees, consultants, contractors and agents.
- USE OF THE PLATFORM
- Order Forms.Client has no right to use the Platform unless and until one or more Order Forms are entered into with respect to the Platform and Client’s right to use any particular Platform is only valid during the period that both the applicable Order Form and the applicable Subscription Term are in effect.
- Use of the Platform.Subject to the terms and conditions of this Agreement, Veritonic hereby grants to Client and Client hereby accepts from Veritonic a limited, non-exclusive, revocable, non-transferable (except as permitted in Section 13.b (Assignability)), non-sublicensable right during the applicable Subscription Term to allow Users to use the Platform in accordance with the scope of use specified in the applicable then-valid Order Form.
- Use of the Documentation.Subject to the terms and conditions of this Agreement, Veritonic hereby grants to Client and Client hereby accepts from Veritonic a limited, non-exclusive, revocable, non-transferable (except as permitted in Section 13.b (Assignability)), non-sublicensable license during the applicable Subscription Term to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Users’ use of the Platform.
- Use Limitations.Client’s right to use the Platform is subject to and contingent upon Client’s compliance with the limitations on Client’s use of the Platform specified in this Agreement and in the applicable Order Form. Client agrees that it will not exceed the maximum allowed usage (e.g., library size, number of audio tests, storage or research team hours) for the Platform as specified in the applicable Order Form or Documentation (“Scope Limitations”).
- Reservation of Rights.Veritonic and its licensors retain all right, title, and interest to all software, products, works, and other intellectual property created, used, or provided by Veritonic for the purposes of this Agreement, including, but not limited to, the Platform and all Documentation. Veritonic shall own all right, title, and interest in and to all modifications or derivatives of, and improvements to, the Platform and all Documentation and any other part of the Services (created by either party). Client hereby makes all assignments necessary to provide Veritonic the ownership rights set forth in the preceding sentence.
- Client Data.Veritonic acknowledges and agrees that all rights, title and interest in and to Client Data are and shall remain the property of Client and all intellectual property rights including copyright, trademark, and trade secret rights in Client Data are and will remain the property of Client. Client hereby grants to Veritonic, throughout the term of this Agreement, the necessary rights or license to use, reproduce, promote, distribute, modify, publicly display and perform, cache, and transmit Client Data via the Platform solely as necessary for the purposes of this Agreement.
Client agrees that Veritonic may export any Client Data provided by Client or its end customers to any country in which Veritonic does business unless Client instructs Veritonic otherwise.
Client is solely responsible for collecting and providing Client Data to Veritonic. Client shall be responsible for the completeness, integrity, quality and accuracy of the Client Data. Veritonic does not and is not obligated to verify, authenticate, monitor or edit the Client Data for completeness, integrity, quality and accuracy or otherwise. Client agrees, in accordance with applicable law, to provide any notices, obtain any required consents and manage all opt-out or privacy related requests pertaining to the use of the Client Data for the Services provided by Veritonic hereunder, including those related to the collection, use, processing, transfer and disclosure of any personal data.
- Aggregate Data.Client agrees that Veritonic is free to disclose aggregate measures of Service usage and performance, and to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services. Client further agrees that Veritonic shall have the right (i) to create Aggregate Data, and (ii) to create Analyses. Veritonic shall have exclusive ownership rights to, and the exclusive right to use and distribute, such Aggregate Data and Analyses for any purpose, including, but not limited to advertising, marketing, and promotion of networking opportunities to other clients and prospective clients of the Services; provided, however, that Veritonic shall not distribute Aggregate Data and Analyses in a manner that is identifiable as Client Data
- Third Party Content.Unless otherwise set forth in an Order Form, Client may only use Third Party Content to produce anonymized compilations and analyses of such Third-Party Content for the purpose of assessing and analyzing the effectiveness of audio commercials.
- Tracking Technologies.Certain Services utilize tracking technologies including pixels , prefix urls and log files (collectively, “Tracking Technologies”) as part of the functionality of the Services. If Client deploys a Veritonic-provided Tracking Technology in an ad server, on Client’s website, or on other properties such as apps or related web domains that Client may control, such Tracking Technologies will transfer information about a viewer’s IP address and campaign ID to Veritonic, which Veritonic may share with survey vendors (each a “Survey Vendor”). The Survey Vendors may send survey invites to their panel member through a variety of methods. Client agrees that it is solely responsible for seeking consent and providing all appropriate and legally-required disclosures to its customers and end-users pertaining to the use of the Tracking Technology and the data collected from such Tracking Technology, and Client agrees that it will defend, indemnify and hold Veritonic harmless from and against any and all third party claims stemming from or related to the use of the Tracking Technology as provided herein. Client agrees that Veritonic may (a) use such information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services, and (b) use and disclose such data in aggregate or other de-identified form in connection with its business.
- Feedback.If Client provides any feedback to Veritonic concerning the functionality and performance of the Platform (including identifying potential errors and improvements), Client hereby assigns to Veritonic all right, title, and interest in and to the feedback, and Veritonic is free to use the feedback without payment or restriction.
- CLIENT’S RESPONSIBILITIES
- Account Credentials.Client will receive an initial administrator logon user identification, password, and web address (URL) for a website through which Client will use the Platform. The administrator logon user identification will be used by Client or Client’s designee to create and modify all other logon accounts for access to the Platform. Client is solely responsible for maintaining the confidentiality of the administrator and User logon user identifications, passwords and account information.
- Compliance and Use.Client shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Client Data and of the means by which Client acquired Client Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and all Documentation and immediately notify Veritonic in writing of any such unauthorized access or use or violation by Client or its Users of this Agreement, (iv) use the Platform only in accordance with the Documentation and (v) use the Platform and all Documentation in compliance with all applicable laws and government regulations, including, but not limited to, laws related to privacy (whether applicable within the United States, the European Union, or otherwise), intellectual property, consumer and child protection, obscenity, libel and defamation. If there is unauthorized use of the Platform or Documentation by anyone who obtained access to such Platform or Documentation directly or indirectly through Client, Client will take all steps reasonably necessary to terminate the unauthorized use. Client will cooperate and assist with any actions taken by Veritonic to prevent or terminate unauthorized use of the Platform or any Documentation. Client shall not (1) make the Services available to anyone other than Users, (2) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (3) use the Services to store or transmit malicious code, (4) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (5) attempt to gain unauthorized access to the Platform or its related systems or networks.
- Restrictions.Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Client shall not, and will not permit or authorize third parties to:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform or Documentation in any form or media or by any means; or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human- perceivable form all or any part of the Platform; or
- access all or any part of the Platform or Documentation in order to build a product or service that competes with the Services or the Documentation;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Platform or Documentation, or otherwise make the Platform or Documentation available to any third party (e.g., as a service bureau) except the Users;
- circumvent or disable any security or other technological features or measures of the Platform; or
- copy, modify, store, reproduce, display, distribute, or otherwise exploit or use the Third Party Content except as permitted hereunder.
- MAINTENANCE SERVICES
Provided that Client is in compliance with the terms and conditions of this Agreement, Veritonic will use commercially reasonable efforts to provide Client with technical support and updates for the Platform and to meet the service levels specified herein, in accordance with its standard practices, as amended from time to time. Subject to Client’s approval, Client agrees that Veritonic will have the right to charge for any support service resulting from problems, errors or inquiries not related to the Service or Platform. The Platform will be available ninety-nine percent (99%) of the time in a given month, excluding scheduled maintenance or, downtime resulting from unavailability of Client Data or unavailability of third-party services. Veritonic will inform Client, by email (or other prompt means if email is unavailable), of any service disruption, unless such disruption is of an insignificant nature (less than one (1) hour). Veritonic will use commercially reasonable efforts to restore service as soon as reasonably practicable and will inform Client by email (or other prompt means if email is unavailable) once service is restored. Technical support will be available by phone and email during weekday office hours from 8:00 a.m. to 6:00 p.m. Eastern time, Monday to Friday, and on email during non-office hours (including, weekends and US holidays). Veritonic, at its sole discretion, may plan scheduled maintenance which will be communicated by email to Client at least twenty-four (24) hours in advance with notice of how many hours of downtime are expected.
- PROFESSIONAL SERVICES
Professional Services may be provided pursuant to an Order Form or the parties may negotiate separate statements of work (each, an “SOW“), each of which shall be deemed a part of this Agreement. Each Order Form or SOW will specify the scope of work and specific terms of the project(s) to be performed by Veritonic. Travel expenses, including reasonable transportation, lodging and meal expenses incurred in relation to the provision of Professional Services will be reimbursed by Client and are in addition to the specified Professional Services fees. The normal work hours for Veritonic’s consultants are approximately 9:00AM to 6:00PM ET or other times mutually agreed to by Client and Veritonic.
- PAYMENT AND FEES
- Fees.Client will pay Veritonic the fees and any other amounts owing under this Agreement, plus any applicable sales, use, excise, or other taxes, as specified in the applicable Order Form or SOW. Fees are based on Services purchased and not on actual usage. Unless otherwise specified in the applicable Order Form or SOW, all amounts payable under this Agreement are denominated in U.S. dollars, and Client will pay all such amounts in U.S. dollars.
- Additional Users or Usage.Client may, from time to time during the Subscription Term for the Platform, to the extent specified in the applicable Order Form or in accordance with Veritonic’s then-current applicable policies, purchase rights to exceed some or all of the then-applicable Scope Limitations; provided, however, that Client acknowledges that certain Platform may not allow an increase of any or all elements of the applicable Scope Limitations.
- Renewal Fees.Veritonic will give Client at least 60 days’ notice (which may be by email) of any proposed increase in the Service fees or any new charges and fees prior to the end of the applicable Initial Term (as defined in Section 7.b) or any Renewal Term (as defined in Section 7.b). Client will only be entitled to discounts granted for a multi-year commitment if the applicable Renewal Term is for a period equal or greater than the then-current term (i.e., the Initial Term or then-current Renewal Term, as applicable). Service fees for Renewal Terms will be based on the then-current list price for the applicable Service. Press release discounts will not be applicable to the fees charged under any Renewal Term.
- Invoices and Payment Terms.The fees relating to access to the Platform or fees for exceeding Scope Limitations) (the “Subscription Fees”) for the Initial Term will be invoiced upon execution of the applicable Order Form and, for each Renewal Term, at the commencement of such Renewal Term. Fees for modifications to the Scope Limitations will be invoiced upon receipt of Client’s request for such purchase. Fees for Professional Services will be invoiced in advance, unless otherwise specified in an Order Form or SOW. Unless otherwise expressly set forth on the applicable Order Form or SOW, Client will pay all amounts due within 30 days of the date of the applicable invoice. When Client provides credit card information, Client authorizes Veritonic to charge such credit card for all Services for the Initial Term and all Renewal Terms in accordance with this Agreement and the applicable Order Form(s).
- Late Payments.Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Client will reimburse any costs or expenses (including, but not limited to, collection agency fees, reasonable attorneys’ fees and court costs) incurred by Veritonic to collect any amount that is not paid when due. In the event of default in the payment of any undisputed invoices, installments or interest for a period in excess of 60 days past their due date, Veritonic may, without notice or demand, declare the entire principal sum payable during the Term under all outstanding Order Forms and SOWs, immediately due and payable. If Client believes that Veritonic has billed Client incorrectly, Client must notify Veritonic thereof (in writing) no later than 60 days after the date of the invoice, otherwise the amount invoice shall be conclusively deemed correct by the parties. Amounts due from Client under this Agreement may not be withheld or offset by Client against amounts due to Client for any reason.
- Taxes.Other than net income taxes imposed on Veritonic, unless Client provides Veritonic with a valid tax exemption or a properly completed direct pay certificate, Client will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from this Agreement. Client will pay any additional taxes as are necessary to ensure that the net amounts received by Veritonic after all such taxes are paid are equal to the amounts that Veritonic would have been entitled to in accordance with this Agreement as if the taxes did not exist, regardless of whether such taxes were included on the initial applicable invoice to Client.
- TERM, RENEWAL AND TERMINATION
- Agreement Term.This Agreement will commence upon the effective date of any Order Form or SOW and continue until the Subscription Term for each Order Form or term of any SOW has expired or is otherwise terminated in accordance with the terms of the applicable Order Form or SOW unless this Agreement is terminated earlier as set forth herein.
- Order Form Term.The term for each Order Form shall commence on the effective date of the applicable Order Form (or, if no effective date is specified, on the date the Order Form has been executed by both Client and Veritonic) and shall be in effect for the term specified in the Order Form provided, that if no such term is indicated in the Order Form, the initial term shall be for one year (the “Initial Term”). The term of each Order Form will automatically renew for successive periods equal to the length of the Initial Term (each, a “Renewal Term”) unless a party provides the other party written notice 30 days in advance of the expiry of the Initial Term or then-current Renewal Term, as applicable, of its desire to amend the duration of the Renewal Term or terminate the Order Form. If Client terminates an Order Form prior to the completion of the Initial Term or then-current Renewal Term, as applicable, it will pay Veritonic any unpaid Subscription Fees under such Order Form for the remainder of the Subscription Term.
- SOW Term.Each SOW will be in effect for the time period specified on the applicable SOW.
- Termination for Material Breach.Either party may terminate this Agreement, an Order Form or SOW if the other party does not cure its material breach of this Agreement or the applicable Order Form or SOW within 30 days of receiving written notice of the material breach from the non-breaching party. At the non-breaching party’s election, such termination will apply only to the applicable Order Form or SOW and not to other Order Forms for or SOWs governed by this Agreement. Termination of this Agreement will terminate any then-outstanding Order Forms and SOWs. Termination in accordance with this Section 7.d will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Client fails to timely pay any fees, Veritonic may, without limitation to any of its other rights or remedies, suspend performance of all Services for Client until Veritonic receives all amounts due. In the event of termination as a result of Client’s failure to comply with any of its obligations under this Agreement, Client shall continue to be obligated to pay for Subscription Fees and fees for Professional Services rendered. Termination of the Agreement or any Order Form or SOW shall be in addition to and not in lieu of any equitable remedies available to Veritonic.
- Post-Termination Obligations.If an Order Form or SOW is terminated for any reason, (i) Client will pay to Veritonic any fees or other amounts that have accrued prior to the effective date of the termination pursuant to each such Order Form or SOW, (ii) any and all liabilities accrued prior to the effective date of the termination will survive, and (iii) Veritonic will destroy all Client Data. Notwithstanding the foregoing, upon written request from Client at least 14 days before the effective date of termination and subject and payment of a $1,000 transfer fee, Veritonic will provide Client with a copy of its Client Data.
- Survival.Sections 2.e (Reservation of Rights), 2.f (Client Data), 2.g (Aggregate Data), 2.h (Feedback), 6.a (Fees). 6.d (Invoices and Payment Terms), 6.e (Late Payments), 6.f (Taxes), 7 (Term, Renewal and Termination), 8 (Confidentiality), 9.b (Disclaimer), 11 (Limitations of Liability) and 12 (General) shall survive the termination of this Agreement.
- Definition.As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a party (“Disclosing Party“) to or by the other party (“Receiving Party“), whether orally, visually or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s “Confidential Information” includes Client Data; Veritonic’s “Confidential Information” includes the Platform, all Documentation, Third Party Content, and the product of all Services and Veritonic’s financial, security, architectural or similar information; and “Confidential Information” of each party shall include the terms and conditions of this Agreement and each Order Form and SOW, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by or on behalf of such party. However, “Confidential Information” does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- Protection of Confidential Information.Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party shall (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, Veritonic is also permitted to disclose Confidential Information of Client on a need to know basis to employees, contractors and agents of its direct and indirect parents, subsidiaries and sister entities. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
- WARRANTIES AND DISCLAIMER
- Warranties.Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
- Disclaimer.EXCEPT AS SET FORTH IN SECTION 9.a (Warranties), THE PLATFORM, ACCESS THERETO, THE DOCUMENTATION AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND VERITONIC AND ITS AFFILIATES AND AGENTS (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH THE PLATFORM IS ACCURATE, COMPLETE OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; (C) SHALL IN NO EVENT BE LIABLE TO CLIENT OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS OR INTERRUPTIONS OF THE PLATFORM, DOCUMENTATION OR SERVICES. VERITONIC EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CLIENT’S USE OF THE PLATFORM, DOCUMENTATION OR SERVICES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES. IN SUCH JURISDICTIONS, VERITONIC’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- MUTUAL INDEMNIFICATION
- Indemnification by Veritonic.Veritonic shall defend Client against any claim, demand, suit, or proceeding (“Claim“) made or brought against Client by a third party alleging that the use of the Platform as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify Client for any damages finally awarded against Client in connection with such Claim; provided, that Client (i) promptly gives Veritonic written notice of the Claim; (ii) gives Veritonic sole control of the defense and settlement of the Claim (provided that Veritonic may not settle any Claim unless the settlement unconditionally releases Client of all liability); and (iii) provides to Veritonic all reasonable assistance, at Veritonic’s expense.
- Exclusions from Obligations.Veritonic will have no obligation under this Section 10 for any infringement or misappropriation to the extent that it arises out of or is based upon (i) use of the Platform in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (ii) use of the Platform by Client for purposes not intended or outside the scope of the license granted to Client; (iii) Client’s failure to use the Platform in accordance with instructions provided by Veritonic, if the infringement or misappropriation would not have occurred but for such failure; or (iv) any modification of the Platform not made or authorized in writing by Veritonic where such infringement or misappropriation would not have occurred absent such modification.
- Mitigation of Infringement Action.If Client’s use of the Platform is, or in Veritonic’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under Section 10.a (Indemnification by Veritonic), then Veritonic will either: (i) procure the continuing right of Client to use the Platform; (ii) replace or modify the Platform in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Veritonic is unable to do either (i) or (ii), Veritonic will (iii) terminate Clien’s right with respect to the Platform and refund to Client all unused Subscription Fees pre-paid by Client with respect to such Platform.
- Limited Remedy.This Section 10 states Veritonic’s sole and exclusive liability, and Client’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Platform.
- Indemnification by Client.Client shall defend Veritonic against any Claim made or brought against Veritonic by a third party alleging that Client Data, or Client’s use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Veritonic for any damages finally awarded against Veritonic in connection with any such Claim; provided, that Veritonic (i) promptly gives Client written notice of the Claim; (ii) gives Client sole control of the defense and settlement of the Claim (provided that Client may not settle any Claim unless the settlement unconditionally release Veritonic of all liability); and (iii) provides to Client all reasonable assistance, at Client’s expense.
- LIMITATIONS OF LIABILITY
- Disclaimer of Indirect Damages.NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, VERITONIC WILL NOT HAVE ANY LIABILITY TOWARDS CLIENT FOR ANY DAMAGES CAUSED BY (i) THE USE OR INABILITY TO USE THE PLATFORM, DOCUMENTATION OR SERVICE, (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, (iii) ACCURACY OF DATA TRANSFERRED TO ANY OTHER SOFTWARE OR SERVICE, OR (iv) INSTANCES IN WHICH CLIENT DATA STORED OR COMMUNICATED THROUGH THE PLATFORM IS ACCESSED BY THIRD PARTIES THROUGH ILLEGAL OR ILLICIT MEANS; INCLUDING WITHOUT LIMITATION SITUATIONS IN WHICH CLIENT DATA IS ACCESSED THROUGH THE EXPLOITATION OF SECURITY GAPS, WEAKNESSES OR FLAWS THAT MAY EXIST. EXCEPT FOR LIABILITY ARISING OUT OF BREACHES OF SECTION 8 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- Cap on Liability.EXCEPT FOR LIABILITY ARISING OUT OF BREACHES OF SECTION 8 (CONFIDENTIALITY) OR SECTION 10 (MUTUAL INDEMNITY), IN NO EVENT SHALL EITHER PARTY’S AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY CLIENT HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE AMOUNT PAID BY CLIENT HEREUNDER IN THE THREE MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER SECTIONS ENTITLED “PAYMENT AND FEES” AND “TERM, RENEWAL AND TERMINATION”.
- Independent Allocations of Risk.EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY VERITONIC TO CLIENT AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
- Press Release.Immediately upon the execution of this Agreement, Veritonic may prepare and issue a mutually approved press release announcing this Agreement. A senior member of Client’s team will provide a quote for the press release within 7 days of the execution and delivery of this Agreement. Any future announcements which refer to the other party or its products must be approved by the other party prior to release. Client agrees to work in good faith with Veritonic in producing blog post, testimonial video, case study, telephone reference (up to 4 times/year), or other mutually agreeable communication. Client may withhold approval for contacts that are, or are likely to become, competitors of Client. Nothing contained herein shall waive or alter the parties’ rights and/or obligations with respect to Confidential Information.
- Video or Podcast Interview.After 60 days of service on the Platform, Client agrees to a video or podcast interview for Veritonic’s website or blog. The video or podcast will focus on Client’s business challenge and their decision making process regarding how they chose Veritonic to fulfill their needs. Veritonic reserves the right to edit the video or podcast interview in its discretion, and agrees to submit the video or podcast interview to Client for its approval which shall not be unreasonably withheld, delayed or conditioned.
- Client List.Client agrees that, subject to Client’s brand guidelines, Veritonic may include Client name and logo, in Veritonic’s lists of other customers of the Services, in printed or web-based marketing materials (including its website) and in Veritonic’s marketing presentations.
- Relationship.Veritonic will be and act as an independent contractor (and not as the agent or representative of Client) in the performance of this Agreement.
- Assignability.Neither party may assign performance of this Agreement or any of its rights or delegate any of its duties under this Agreement without the prior written consent of the other. Notwithstanding the preceding sentence, each party may assign this Agreement without the other party’s prior written consent in the case of a merger, acquisition or other change of control, and in such event this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
- Subcontractors.Veritonic may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Veritonic remains responsible for all of its obligations under this Agreement.
- Notices.All notices to a party shall be in writing to the appropriate party and shall be made either via email to the extent expressly permitted to be sent by email as set forth in this Agreement), conventional mail, overnight courier or facsimile. Notice sent via conventional mail, using registered mail, shall be deemed received four business days after mailing. Notice sent via email (to the extent expressly permitted) or facsimile or overnight courier shall be deemed received the second day after having been sent. Veritonic may broadcast notices or messages through the Platform or by posting notices or messages on Veritonic’s web site to inform Client of changes to the Services, or other matters of importance; Veritonic shall inform Client of such broadcast by e-mail addressed to Client’s system administrator.
- Force Majeure.Neither party shall be liable in damages or have the right to terminate this Agreement or any Order Form or SOW for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions (including the denial or cancellation of any export of other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected (including mechanical, electronic, internet service provider or communications failure).
- Dispute Resolution.Any and all disputes, controversy or claims related to or arising in connection with this Agreement shall first be referred to an executive of each of the parties for an informal resolution. If this informal resolution does not resolve the dispute within 30 days, the parties hereto agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. This provision shall not limit either party’s right for interim judicial relief, such as an injunction, an order of eviction, or similar actions. Any such arbitration shall proceed in accordance with the laws of the State of New York and the venue of any such Arbitration shall be held in New York, New York. Within ten calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity. If the parties do not agree on an arbitrator within ten calendar days, a party may petition the AAA in order to appoint an arbitrator. The decision of the arbitrator shall be final and binding and no party shall have rights of appeal. Each party shall bear its own costs and fees in connection with the arbitration, however, the arbitrator shall have the power to order one party to contribute to the reasonable costs and expenses of the other party, or to pay all or any portion of the costs of the arbitration.
- Waiver.The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
- Severability.Should any term and condition hereof be declared illegal or otherwise unenforceable, it shall be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
- Entire Agreement.This Agreement and the exhibits or attachments, if any, constitutes the entire agreement between the parties hereto regarding Client’s use of the Platform and receipt of all Services and supersedes and replaces all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. In the event of conflict between the terms of any Order Form or SOW and this Agreement, the terms of the Order Form or SOW will prevail. This Agreement shall apply to future purchases of products and services by Client from Veritonic. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Veritonic will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Client in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Veritonic specifically agrees to such provision in writing and signed by an authorized agent of Veritonic.
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