THIS AGREEMENT (this "Agreement") effective as of the date ("Effective Date") indicated in the first Service/Product Order is entered into by and between Gemnote ("Company") and the customer identified in the first Service/Product Order attached hereto ("Customer").
Subject to the terms and conditions of this Agreement, during the term of this Agreement, Company shall provide to Customer the services and products described in the Service/Product Order (the "Service/Products"). For time to time, the parties may add new Service/Product Orders, which, upon execution by both parties, will the subject to the terms and conditions of this Agreement.
Compliance with Law
Customer acknowledges that Company exercises no control over the content of the information passing through the Customer’s websites and that it is the sole responsibility of Customer to ensure that the information it transmits and receives complies with all applicable laws and regulations.
The Service/Products are for use by Customer only and not for resale to any third party.
Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers, technology, and products, including the terms and conditions of this Agreement ("Confidential Information"). Confidential Information will include, but not be limited to, each party's proprietary software, vendor information, and customer information. Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and shall take reasonable precautions to protect the confidentiality of such information.
Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
Warranties by Customer
(a) Customer's Business
Customer represents and warrants that Customer's Service/Products, products, materials, data, and information used by Customer in connection with this Agreement as well as Customer’s and its permitted customers’ and users’ use of Service/Products (“Customer’s Business”) does not as of the Purchase Date, and will not during the term of this Agreement operate in any manner that would violate any applicable law or regulation.
(b) Breach of Warranties
In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties herein, in addition to any other remedies available at law or in equity, Company will have the right to immediately, in Company’s sole discretion, suspend any related Service/Products if deemed reasonably necessary by Company to prevent any harm to Company or its business.
Warranties and Disclaimers by Company
The services/products are provided on an “as is” basis, and customer’s use of the service/products is at its own risk. Company does not make, and hereby disclaims, any and all other express or implied warranties, including, but no limited to warranties of merchantability, fitness for a particular purpose, non-infringement and title, and any warranties arising from a course of dealing, usage or trade practice. Company does not warrant that the Service/Products will be uninterrupted, error-free, or completely secure.
Company will not be liable to Customer for any lost revenue, lost profits, replacement goods, loss of technology, rights or Service/Products, incidental, punitive, indirect or consequential damages, loss of data, or interruption of Customer’s Business, even if Company is advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
Company’s maximum aggregate liability to customer related to or in connection with this agreement will be limited to the total amount paid by Customer to Company hereunder for the prior 12 month period.
Basis of the Bargain; Failure of Essential Purpose
Customer acknowledges that Company has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose.
Company's Indemnification of Customer
Company shall indemnify, defend and hold Customer harmless from and against any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Losses") resulting from any claim, suit, action, or proceeding (each, an "Action") brought against Customer alleging the infringement of any third party registered U.S. copyright or issued U.S. patent resulting from the provision of Service/Products pursuant to this Agreement (but excluding any infringement contributory caused by Customer’s Business); or within 30 days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
This Agreement will be effective commencing on the Effective Date, and continuing indefinitely thereafter unless and until terminated according to the provisions of this Section 8. The Agreement will automatically renew for additional terms of one year each.
(a) For Convenience
Either party may terminate this Agreement for convenience upon written notice at any time during which no Service/Product Order is in effect.
(b) For Cause
Either party will have the right to terminate this Agreement, or the applicable Service/Product Order, if the other party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same, except in the case of failure to pay fees, which must be cured within five days after receipt of written notice from Company. Either party may terminate this Agreement if: (i) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (ii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within 60 days of filing.
Liability for Termination
Neither party will be liable to the other for any termination or expiration of this Agreement in accordance with its terms.
Effect of Termination
Upon the Effective date of expiration or termination of this Agreement: (a) Company may immediately cease providing Service/Products hereunder; (b) any and all payment obligations of Customer under this Agreement will become due immediately; (c) within 30 days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
The following provisions will survive any expiration or termination of the Agreement: Sections 2, 3, 4, 5, 6, 7, 8.3, 8.4, 8.5, and 9.
Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
Governing Law; Dispute Resolution, Severability; Waiver
This Agreement is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. Any dispute relating to the terms, interpretation or performance of this Agreement (other than claims for preliminary injunctive relief or other pre-judgment remedies) will be resolved at the request of either party through binding arbitration. Arbitration will be conducted in Alameda County, California, under the rules and procedures of the American Arbitration Association ("AAA") The parties will request that AAA appoint a single arbitrator. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Company, except that Customer may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent will be void. Company may assign this Agreement in whole or part. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, if to Company, to the address below, and if to Customer, to the address indicated the Service/Product Order, or at such other address as may hereafter be furnished in writing by either party hereto to the other. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
Relationship of Parties
Company and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between Company and Customer. Neither Company nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
Entire Agreement; Counterparts
This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.
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