ZYPE MASTER TERMS AND CONDITIONS
(a) Zype shall make available to Customer the Zype software as a service as described in the applicable Zype authorized Platform Order (“Platform Order”) and such other incidental services, resources, technology, functions, upgrades, enhancements, and documentation as required for proper performance and usage thereof or generally made available in connection with the Zype software as a service (collectively, “Services”) that are provided by Zype using the Zype Platform. Project requirements, if any, related to Zype’s performance or delivery requirements and Customer receipt or use of the Services shall be described by Zype in writing in advance to Customer as part of such Platform Order. Unless otherwise set forth in the Platform Order, the Services do not include any professional services or third party technology that is licensed between Customer and a third party licensor under separate terms. Zype may in its sole discretion (i) from time-to-time during the term of this Agreement modify, change, enhance, correct or upgrade the Services (including addition of features and functionality thereto and removal of features and functionality therefrom).
(b) Zype will provide hosting services and technical support for the Services, pursuant to the Service Level Terms, if any, as set forth in the Platform Order. The “Zype Platform” is a proprietary SaaS based system, including, without limitation, software components and APIs, for managing and controlling the encoding, metadata, and delivery of content, and any and all updates and upgrades thereto, together with associated documentation.
2. FEES AND PAYMENT ITEMS.
(a) Fees. Unless otherwise specified in a Platform Order, all one time fees for configurations and/or integration will be billed and due immediately upon acceptance
of the Platform Order. Fees for Services will be billed on an annual, quarterly, or monthly basis as specified in the Platform order, with the first payment due upon receipt, and subsequent payments billed at the next period and due upon receipt Any additional fees for services outside the scope of the Platform Order, for example video requests or utility service overages will be billed in arrears and due thirty (30) days from the invoice date. Customer shall pay interest in respect of any amounts which are not paid by its due date at a rate per annum of five percent (5%) calculated on a daily basis on the daily outstanding balance
from such due date plus all reasonable expenses and fees of collection.
(b) Method of Payment. At all times during the term of this Agreement, Customer agrees to provide Zype with a valid method of payment (such as credit card or
bank wire information) to be held on file by Zype. If at any time such method of payment becomes invalid, Zype will notify Customer and Customer will have five (5) days to update the method of payment information. If Customer fails to update the method payment
information within five (5) days of such notice, Zype may, in its sole discretion, suspend all Services until such information is updated. Zype will charge any fixed recurring fees (such as platform fees) automatically every month, unless otherwise agreed to in a Platform Order.
(c) Default. In the event Customer fails to pay any outstanding fees within fifteen (15) days of the due date, Zype may, in its sole discretion, suspend all
Services until the fees are paid in full. If the delinquent fees are not paid within thirty (30) days of the due date, Zype may, in its sole discretion, disable Customer’s account and demand payment of the entire annual fee. If all outstanding fees are not
paid within thirty-five (35) days of the due date, Zype will engage a collections service to recover the remaining fees owed by Customer.
(d) Taxes. Customer shall pay all taxes, tariffs and transportation costs relating to, or incurred under, this Agreement (including any sales, use, excise or
value added taxes), exclusive of taxes based on or measured by Zype’s net income, unless Customer is exempt from the payment of such taxes and provides Zype with acceptable evidence of such exemption.
(a) Term. Unless earlier terminated in accordance with the rights set forth in this Agreement, this Agreement shall commence as of the Effective Date, and remain in effect until all Platform Orders hereunder have expired or terminated. The initial term for the Services shall be as specified in the applicable Platform Order (the “Initial Term”). Except as otherwise specified in an Platform Order, the term for the Services will automatically renew for additional periods equal to the expiring Services term or one year (whichever is shorter), unless either Party gives the other Party written notice of non-renewal at least 30 days before the end of the relevant Service term. The Services pricing during any automatic renewal term will be the same as that during the immediately prior term unless Zype provides written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
(b) Termination for Default: Either party has the right to terminate this Agreement (or any Platform Order), in whole or in part, if the other party breaches or is in default of any material obligation hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within fifteen (15) business days after receipt of written notice from the non-defaulting party or within such additional cure period as the non-defaulting party may authorize. If Zype terminates due to a default by Customer, Zype may terminate without liability to Customer, and Customer will pay any unpaid fees covering the remainder of the term of all Platform Orders. In no event will termination relieve Customer of its obligation to pay any fees payable to Zype for the period prior to the effective date of termination.
(c) Termination for Bankruptcy: If Customer becomes insolvent, takes any step leading to its cessation as a going concern, fails to pay its debts as they become due, or ceases business operations, then Zype may immediately terminate this Agreement. If Zype terminates due to this section 3(c), Zype may terminate without liability to Customer, and Customer will pay any unpaid fees covering the remainder of the term of all Platform Orders. In no event will termination pursuant to this section 3(c) relieve Customer of its obligation to pay any fees payable to Zype for the period prior to the effective date of termination.
(d) Effects of Termination; Survival. Upon termination of this Agreement, all rights and licenses granted hereunder shall cease, except as otherwise provided in this Agreement. Those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue, and payment. Customer shall not be relieved of its obligation to pay any monies due or to become due as of or after the date of expiration or termination of this Agreement.
4. OWNERSHIP OF ZYPE IP.
Except as set forth in Sections 5 and 6 below, the parties agree that Zype shall exclusively own and retain all Intellectual Property Rights in and to “Zype IP”, defined as the i) the Zype Platform; ii) the Services; iii) all works of authorship, inventions, technology, software programs, source code, object code, annotated code, applications, processes, tools, reports, manuals, supporting materials, drawings, diagrams, flowcharts, business rules, and concepts (“Technology”), any of which existed prior to the Effective Date of this Agreement, whether created by or for Zype (“Pre-Existing Materials”); iv) all Technology developed by or for Zype subsequent to the Effective Date independent of Customer IP, v) Zype’s business, templates, documents, materials, technology, trademarks, software, source code, applications, integration, management, publishing and promotion methods, website(s), modifications, updates and enhancements; vi) all ideas, know-how, feedback and information relating to the Zype Platform that are learned through the Services provided under this Agreement; and vii) all modifications and improvements to the Zype IP that are developed by Customer alone or together with Zype or any other party using or based on Zype Confidential Information either during the Term of this Agreement, or after the Effective Date, other than modifications and improvements specifically indicated as being owned by Customer as set forth in an written agreement signed by both parties and executed by an officer of Zype. The term “Intellectual Property Rights” means copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contractual rights of non-disclosure, all applications, registrations, and issuances of the foregoing, rights of priority based on the foregoing, and any and all other intellectual property or proprietary rights, however arising, throughout the world.
5. RIGHTS GRANTED AND RESTRICTIONS.
(a) Use. Zype grants Customer a non-exclusive, non-transferable (except as set forth herein), limited right to access and use the Services ordered in a Platform Order subject to the terms of this Agreement and each applicable Platform Order and solely for managing Customer’s video content and applications as specified in a Platform Order. Customer may allow its employees, contractors and end users, as applicable and as authorized by Customer in accordance with this Agreement and each applicable Platform Order (collectively, “Users”) to use the Services for this purpose. Customer is responsible for the Users’ compliance with this Agreement and all applicable Platform Orders. Customer agrees to take all reasonable steps to prevent unauthorized use, access, copying or disclosure of the Services and Zype IP; and (iii) ensure that all such all data, documents and comments he/she may post or submit in connection with the Services complies with all applicable laws, regulations and authority; that the content is not defamatory or indecent; and that the content will not infringe the intellectual property or data privacy rights of any third party. Customer agrees to accept all patches, bug fixes, updates, maintenance and services packs (collectively, “Patches”) necessary for the proper function and security of the Services. Zype is not responsible for performance or security issues encountered with the Services that result from the failure to accept the application of Patches.
(b) Restrictions on Use. Except as otherwise expressly provided in this Agreement, no other license or right shall be deemed granted or implied with respect to the Services or Zype IP. Except as otherwise expressly allowed in this Agreement, Customer shall not (i) make any Services or Zype IP available to, or use any of the Services or Zype IP for the benefit of, anyone other than Customer and its Users (unless such access is expressly permitted in a Platform Order); (ii) sell any of the Services or Zype IP in whole or in part or in any form or manner or by any means whatsoever; (iii) copy, reproduce, repackage, retransmit, transfer, modify, adapt, store for subsequent use for any purpose, resell, license, sublicense, distribute, service bureau, rent or lease any of the Services or Zype IP in whole or in part or in any form or manner or by any means whatsoever; (iv) use the Service or Zype IP in an illegal or inappropriate manner (as determined by Zype in its sole discretion); (v) attempt to gain unauthorized access to any Services or Zype IP in whole or in part; (vi) permit access to or use of any Services or Zype IP in a way that circumvents a contractual usage limit, (vii) reverse engineer, decompile, disassemble or otherwise attempt to derive the human readable, source code version of any of Zype’s Intellectual Property; (viii) remove any proprietary notices of Zype or third parties found on or in the Services and Zype IP; (ix) access any Services or use any Zype IP to develop or assist any third party with the development of any product or service that is generally competitive with the Services; or (x) post comments on blogs, in chat rooms, or anywhere online which Zype deems in its sole discretion to be inappropriate or disparaging (in which case you hereby authorize Zype to remove the comment on your behalf or a User’s behalf). Nothing herein will be construed as granting Customer, by implication, estoppel or otherwise, any license or other right to any Intellectual Property Rights of Zype or its licensors except for the rights and license expressly granted herein. Zype and its licensors retain all rights not so granted.
(c) Open Source. Certain components of the Services may be subject to open source or free software licenses (Open Source Software). Some of the Open Source Software is owned by third parties. Depending on the terms of the applicable open source licensing agreement, the Open Source Software may not subject to the terms and conditions of Section 4 or 5. Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits Zype or grants Zype rights that supersede the terms and conditions of any applicable end user license for the Open Source Software.
6. CUSTOMER OBLIGATIONS AND MATERIALS.
(a) Customer IP. Customer exclusively owns and retains all right, title, and interest in and to i) its business, Technology, trademarks, and websites and all other Intellectual Property Rights in materials that are developed and owned by Customer prior to the Effective Date of this Agreement (“Customer Pre-Existing Materials”); ii) all software programs, including source code for such programs, text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content or material that reside in, or run on or through the Services that are developed by Customer independently and that are not based on the Zype IP; and iii) all work product set forth in a Statement of Work hereunder, signed by both parties, that does not incorporate the Zype IP, and that is specifically identified as being owned by Customer (“Customer Work Product”) (items (i) – (iii), collectively, “Customer IP”). Customer exclusively owns and retains all Intellectual Property Rights, title, and interest in and to each of the Customer IP. Customer grants to Zype a non-exclusive, fully paid license to use, process, and transmit the Customer IP for purposes of performing the Services.
(c) Customer understands that Zype may use, retain, and publish Collected Data to operate the platform, provide data analytics to customers and integrate with 3rd party services such as ad networks and transaction processors. Customer hereby grants Zype a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to the Collected Data to use, reproduce, modify, publish, edit, distribute, perform data analytics, integrate with 3rd party services and make derivative works in any form, media or technology, whether now known or hereafter developed, for use in connection with the services and platform. To be clear Zype can use the Collected Data (i) to provide the Services, (ii) meet its obligations hereunder, (iii) disclose, sell, assign, lease, combine Collected Data with other data, or otherwise provide the Collected Data to third parties both during the term and after the term of this Agreement.
(d) Customer Obligations. Customer agrees that it shall (i) provide Zype with reasonable co-operation in relation to this Agreement, including but not limited to those required for the Services; (ii) provide Zype with access to such information as may be reasonably required by Zype in order to render the Services, including but not limited to Customer IP; (iii) comply with all applicable Laws and regulations with respect to its activities under this Agreement; (iv) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, Zype may adjust agreed timetables or delivery schedules affected by the delay and only as reasonably necessary; (v) provide network and systems that comply with the commercially reasonable standards; (vi) be responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Zype’s data centers.
7. USER ACCESS AND PASSWORDS.
Customer is responsible for (i) identifying users with approved access to Zype; (ii) providing Zype with sufficient information to identify and authenticate its Users; (iii) controlling against unauthorized access by Users and for maintaining the confidentiality of usernames, passwords and account information; and (iv) all activities that occur under Customer’s or User’ access to the Services. Customer must promptly notify Zype in the event it becomes aware of misuse of any User password, unauthorized access or any other event or action that may reasonably impair the Services. ZYPE IS NOT RESPONSIBLE FOR ANY ERRORS OR INACCURACIES THAT OCCUR IN THE USER AUTHENTICATION PROCESS ARISING OUT OF OR RELATING THE INFORMATION PROVIDED BY CUSTOMER FOR PURPOSES OF IDENTIFYING AND AUTHENTICATING USERS.
(a) As used herein, the term “Confidential Information” shall mean all non-public information that may disclosed either before or after the execution of this Agreement, whether written or oral, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential. Confidential Information shall include Zype IP, Customer IP and other information deemed proprietary or confidential by the party disclosing the Confidential Information (the “Disclosing Party”), and all record-bearing media containing or disclosing such information.
(b) A party receiving Confidential Information (“Receiving Party”) shall not directly or indirectly, at any time, without the prior written consent of the Disclosing Party, use or disclose the Confidential Information or any part thereof in a manner detrimental to the other party or for any use other than necessary for the performance of that party’s obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information. Receiving Party agrees to and shall take all necessary steps to protect the confidentiality of the Confidential Information.
(c) The term Confidential Information does not include information which: (i) has been or becomes published and publicly available or is now, or in the future, in the public domain without breach of this Agreement or breach of a similar agreement by a third-party; (ii) prior to disclosure hereunder, is properly within the legitimate possession of the Receiving Party which can be verified by independent evidence; (iii) subsequent to disclosure hereunder, is lawfully received from a third-party having rights therein without restriction of third-party’s or the Receiving Party’s rights to disseminate the information and without notice of any restriction against its further disclosure; (iv) is independently developed by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information which can be verified by independent evidence; or (v) is disclosed pursuant to a requirement of a governmental entity or the disclosure of which is required by law.
(d) If Receiving Party is requested by a court, governmental entity or other third-party to disclose any Confidential Information, it will promptly notify Disclosing Party to permit Disclosing Party to seek a protective order or take other appropriate action. Receiving Party will also cooperate in Disclosing Party’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information and shall only disclose the part of the Confidential Information as is required by law to be disclosed and Receiving Party will use its best efforts to obtain confidential treatment therefor.
(e) Confidential Information shall not, without the prior written consent of the Disclosing Party, be disclosed to any person or entity other than employees or agents of Receiving Party who need to know the Confidential Information and in those instances only to the extent justifiable by that need. The Receiving Party shall ensure that all such entities and personnel comply with the terms of this Agreement. The Receiving Party shall be responsible for any breach of this Agreement by its employees and/or agents and by any other person to whom the Receiving Party has disclosed the Confidential Information.
(f) Receiving Party agrees to and shall take all necessary steps to protect the confidentiality of the Confidential Information, including without limitation, by marking (where appropriate) the Confidential Information with the words “CONFIDENTIAL,” limiting access to the Confidential Information, maintaining the Confidential Information in a secure location, assuring and confirming the return of copies of the Confidential Information from any recipients of the Confidential Information upon completion of such recipients’ activities relating to the evaluation or use of the Confidential Information. The Receiving Party shall notify the Disclosing Party immediately, and cooperate with the Disclosing Party, upon Receiving Party’s discovery of any loss or compromise of the Confidential Information.
(g) Receiving Party acknowledges that the Confidential Information is the exclusive property of and belongs solely to the Disclosing Party and shall not claim otherwise for any purpose.
(h) Receiving Party agrees to return to the Disclosing Party, destroy and/or permanently delete, at Disclosing Party’s discretion, and certify in writing its destruction, permanent deletion and/or return, all written, tangible or otherwise accessible material in any form (including electronic media such as computer diskettes, CD-ROM, electronic copies or any material resident in the hard or external drive of any computer) containing or reflecting any Confidential Information (including all copies, summaries, excerpts, extracts or other reproductions) promptly following the Disclosing Party’s request.
(i) In addition to any other rights and remedies available to Disclosing Party hereunder or at law, Receiving Party acknowledges and agrees that due to the nature of the Confidential Information its confidentiality obligations to Disclosing Party hereunder are of a unique character and agrees that any breach of such obligations may result in irreparable and continuing damage to Disclosing Party for which there may be no adequate remedy in damages. Notwithstanding anything to the contrary in this Agreement, Disclosing Party will be authorized and entitled to seek injunctive relief, without the necessity of posting a bond or other security, even if otherwise normally required, and/or a decree for specific performance, and such further relief as may be proper from a court with competent jurisdiction.
9. REPRESENTATIONS, WARRANTIES & DISCLAIMERS.
(a) Warranties. (i) Each party warrants that at all times that it has the right and full power and authority to enter into this Agreement and each Platform Order, and it is duly organized and validly existing and in good standing under the laws of the state of its incorporation or formation; (ii) Each party represents that it will comply with all laws and regulations applicable to its provision, or use, of the Service, as applicable; (iii) Zype represents and warrants it owns the Services, that Services will operate in substantial conformity with the then current version of the applicable documentation provided by Services, and that it will provide the Services in a manner consistent with general industry standards; (iv) Customer represents that it owns the Customer IP and that the Customer IP does not infringe any third party Intellectual Property Rights.
(b) Disclaimers. EXCEPT AS OTHERWISE SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND ZYPE MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER, USER OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE SERVICES OR THE ZYPE IP INCLUDING WITHOUT LIMITATION THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, SPECIFICATIONS OR EXPECTATIONS, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH CUSTOMER MATERIAL OR ANY OTHER HARDWARE, SOFTWARE, SYSTEMS SERVICES OR DATA NOT PROVIDED BY ZYPE. ZYPE SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MAKE THE SERVICES AVAILABLE 24 HOURS A DAY SEVEN DAYS A WEEK. ZYPE DOES NOT GUARANTEE THAT THE SERVICES WILL BE OPERABLE AT ALL TIMES OR DURING ANY DOWN TIME (i) CAUSED BY OUTAGES TO ANY PUBLIC INTERNET BACKBONES, NETWORKS OR SERVERS, (ii) CAUSED BY ANY FAILURES OF CUSTOMER’S EQUIPMENT, SYSTEMS OR SERVERS, (iii) FOR SCHEDULED MAINTENANCE, OR (iv) FOR ANY EVENTS OF FORCE MAJEURE, AS DESCRIBED IN SECTION 12(h).
(c) Remedies. For any breach of the warranty in Section 9(a)(iii),Customer’s exclusive remedy and Zype’s entire liability shall be the correction of the deficient services that cause the breach of warranty. If the failure is not so corrected, then Customer may: (a) extend the time for Zype to correct such failure (if correction is commercially practical); (b) receive an appropriate, agreed-upon reduction in, or refund of, the fees; or (c) terminate the Agreement.
10. LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE OTHER, AND ZYPE SHALL NOT BE LIABLE TO USERS FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), HOWEVER IT ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, TORT OR OTHER ACTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY AND REGARDLESS OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN VIOLATED, EXCEED THE AGGREGATE FEES AND CHARGES PAID BY CUSTOMER TO ZYPE UNDER THE AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CLAIM ACCRUED. EACH PARTY AGREES THAT IT WILL UNDER NO CIRCUMSTANCES BRING AN ACTION OR SUIT, FILE ANY CLAIM, OR INITIATE ANY PROCEEDING, AGAINST THE OTHER FOR AN AMOUNT GREATER THAN SUCH SUM.
(a) “Losses” means losses, liabilities, damages, fines, penalties, settlements, judgments, costs and expenses, including reasonable attorneys’ fees and expert fees, and interest (including taxes) arising out of a third party claim.
(b) Indemnity by Zype. Zype will indemnify, defend and hold harmless Customer and Customer’s officers, directors, employees, successors and assigns (the “Customer Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by a Customer Indemnified Party or to which a Customer Indemnified Party becomes subject, resulting from, arising out of, or relating to: (i) any material breach by Zype of this Agreement and/or any of its obligations and representations hereunder, or (ii) injury or death, or damage to any property caused by or arising from the negligent acts or omissions of Zype in connection with performance of the Agreement.
(c) Indemnity by Customer. Customer will indemnify, defend and hold harmless Zype and its officers, directors, employees, successors and assigns (the “Zype Indemnified Parties”) from and against, any Losses suffered, incurred or sustained by a Zype Indemnified Party or to which a Zype Indemnified Party becomes subject, resulting from, arising out of, or relating to: (i) any material breach by Customer of this Agreement and/or any of its obligations and representations hereunder, including, without limitation, confidentiality,Section 5 and Section 6, (ii) Customer’s failure to pay and discharge any Taxes (including interest and penalties) for which Customer is responsible pursuant to the provisions of this Agreement, or injury or death, or damage to any property caused by or arising from the negligent acts or omissions of Customer in connection with performance of the Agreement.
(d) Remedies for Infringement. Should any Zype IP become or, in Zype’s opinion, be likely to become the subject of any infringement claim, Zype shall have the right, at its sole discretion and at its expense, to either procure for Customer the right to continue using or receiving the Zype IP, replace or modify the Zype IP so it becomes non-infringing, or remove the questionable Zype IP. This Section states Zype’s entire liability, and Customer’s sole and exclusive remedy for Intellectual Property Rights claims relating to or arising out of any Zype IP, other than the indemnification obligations set forth herein should Zype forego this right. Zype shall have no obligation to Customer for indemnification with regard to any claim of infringement to the extent that the Zype IP infringement claim or allegation is based on: (1) a modification made by an entity other than Zype or its designee; (2) a violation by Customer of this Agreement; or (3) the inclusion of any Customer IP or third party materials in any Zype IP.
(e) Indemnification Procedures. If any third-party claim is commenced against a person or entity entitled to indemnification under this section (the “Indemnified Party”), notice thereof shall be given to the party that is obligated to provide indemnification (the “Indemnifying Party”) as promptly as practicable. If, after such notice, the Indemnifying Party will acknowledge that this Agreement applies with respect to such claim, then the Indemnifying Party will be entitled, if it so elects, in a notice promptly delivered to the Indemnified Party, but in no event less than ten (10) business days prior to the date on which a response to such claim is due, to immediately take control of the defense and investigation of such claim, at the Indemnifying Party’s sole cost and expense. The Indemnified Party will cooperate, at the cost of the Indemnifying Party, in all reasonable respects with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim and any appeal arising therefrom; provided, however, that the Indemnified Party may, at its own cost and expense, participate, through its attorneys or otherwise, in such investigation, trial and defense of such claim and any appeal arising therefrom. No settlement of a claim that involves a remedy other than the payment of money by the Indemnifying Party will be entered into without the consent of the Indemnified Party. After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such claim, the Indemnifying Party will not be liable to the Indemnified Party for any legal expenses incurred thereafter by such Indemnified Party in connection with the defense of that claim. If the Indemnifying Party does not assume full control over the defense of a claim subject to such defense as provided in this Section, the Indemnified Party will have the right to defend the claim in such manner as it may deem appropriate, at the cost and expense of the Indemnifying Party.
(a) Governing Law and Venue. This Agreement and all disputes arising hereunder and/or relating hereto will be governed and interpreted in accordance with the laws of the State of New York without reference to conflicts of laws principles. Jurisdiction and venue for all disputes hereunder shall be in the state or Federal courts located in New York, New York and the parties hereby irrevocably consent to such jurisdiction and venue.
(b) Dispute Resolution. In the event of any dispute or claim arising out of or relating to this Agreement, the parties shall first attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by confidential mediation under the CPR Mediation Procedure currently in effect. Unless otherwise agreed, the parties will select a mediator from the CPR Panels of Distinguished Neutrals. If the parties are unable to resolve the dispute by confidential mediation, the dispute shall then be submitted to binding arbitration in accordance with the Rules for Non-Administered Arbitration of the International Institute for Conflict Prevention and Resolution (the “IICPR”) and judgment upon the award rendered may be entered in any court having jurisdiction thereof. Unless otherwise agreed all mediation and arbitration will take place in Manhattan County, New York.
(c) Notices. Unless otherwise stated, all notices, consents or approvals hereunder will be in writing and will be deemed to have been given and received when (a) delivered personally or by courier; (b) received by certified or registered mail, return receipt requested, postage prepaid; or (c) sent by email or confirmed facsimile transmission; in Zype’s case, at Zype, 145 West 28th Street 4th Floor New York, NY 10001 and in Customer’s case, at the email address provided by Customer upon registration for the Services or at any address provided by Customer upon registration.
(d) Entire Agreement; Severability; Modification. This Agreement, including any Platform Orders is the entire agreement of the parties, and supersedes all prior agreements and communications between the parties with respect to the subject matter of this Agreement, and represents the complete integration of the parties’ agreement. In interpreting and construing this Agreement, the fact that one or the other of Zype or Customer may have drafted this Agreement or any provision hereof shall not be given any weight or relevance, both parties having had an opportunity to review and negotiate the terms hereof. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the remaining provisions shall not be affected or impaired. This Agreement may be modified only by a written agreement executed by an authorized representative of the party against whom the modification is asserted.
(e) No Waiver. The failure of a party in any one or more instances to exercise any right or privilege arising out of this Agreement shall not preclude it from requiring that the other party fully perform its obligations or preclude it from exercising such a right or privilege at any time.
(f) Independent Contractors. Zype and the Customer shall each act as independent contractors. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties.
(g) Assignment. This Agreement shall not be assigned or transferred in whole or in part by either party without the prior written consent of the other, provided that either party may assign this Agreement without prior written consent in connection with a public offering of its securities or in a sale of all or substantially all of its assets to which this Agreement relates or by way of merger, consolidation, or similar transaction. Any purported assignment or transfer in violation of this Section shall be void. Nothing in this Agreement shall be construed as permitting a trustee or purchaser in bankruptcy to assume this Agreement without the written consent of the other party. Subject to the foregoing restrictions, this Agreement will bind and benefit the parties and their successors and permitted assigns.
(h) Force Majeure. Except for the obligation to pay sums due hereunder, neither party shall be responsible for delays or failures in performance of this Agreement resulting from acts beyond its reasonable control. Termination under this Section will not relieve Customer of its obligation to pay for Services rendered prior to the date the event of force majeure arose. Zype will make commercially reasonable efforts to re-establish Services as soon as possible in the event of a Force Majeure event.
(i) Marketing. Neither party will issue any publicity or general marketing communications concerning this relationship without the prior written consent of the other party, which consent will not be withheld unreasonably; provided, however, that Zype shall have the right to use Customer’s name and logos in general marketing materials related to the Services.
(j) Competition. Customer acknowledges and agrees that Zype may, without limitation, accept agreements from, grant licenses to other persons, firms, corporations, or other entities, including entities that compete with Customer, for Services and products, on any terms Zype deems appropriate.
(k) Export Control. Each party to this Agreement agrees to comply with all relevant export laws and regulations of the United States and other countries to assure that no Confidential Information or any portion thereof is exported, directly or indirectly, in violation of such laws. Services, technology, and technical data received by Customer from Zype shall be deemed and treated by Zype as being classified under Export Control Classification Number EAR99 on the Commerce Control List of the U.S. Export Administration Regulations for purposes of export from the United States, unless Zype clearly marks such technical data to the contrary and supplies alternative export control information. Customer agrees to indemnify, defend and hold harmless Zype Indemnified Parties against any and all liability under U.S. export control laws, regulations and requirements in connection with export or re-export of the technical data received from Zype if the technical data from Zype is not clearly marked with alternative export control information
(l) Rule of Interpretation. (i)The term “including” (in all of its forms) means “including, without limitations” unless expressly stated otherwise; (ii) Any headings set forth in this Agreement are solely for convenience or reference and do not constitute a part of this Agreement, nor do they affect the meaning, construction or effect of this Agreement; (iii) All references to a number of days mean calendar days, unless expressly stated otherwise; (iv) The schedules, exhibits, or Platform Orders subject to this Agreement shall be deemed to be a part of this Agreement and are incorporated by reference herein; (v) No documents exchanged or course of dealings by the parties shall be deemed to modify or amend any of the terms of the Agreement unless in writing and signed by an authorized representative of both parties; (vi) In the event of an inconsistency, ambiguity, contradiction or conflict between the terms of this Agreement, , exhibits or Platform Order and any amendments to any of the foregoing, such documents shall be interpreted in the following order of precedence: (1) the terms of any amendment to this Agreement shall take precedence, (2) followed by the terms of this Agreement, unless a Platform Order expressly states that it overrides a specific provision of this Agreement, with reference to the provision of this Agreement that is to be overridden; (iii) followed by the terms of any schedules and then exhibits to this Agreement.