Terms of Service
This Terms of Service, including all Order Forms, addenda, exhibits and schedule which by this reference are incorporated herein (collectively, this “Agreement”), is between Market Me, LLC (“Market Me”) and the customer (“Customer”) whose name appears on the Order Form regarding the Market Me Services and is effective as of the Effective Date set forth on the Oder Form. Market Me and Customer are each referred to individually as a “party,” and collectively as the “parties.”
PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THE MARKET ME SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO CUSTOMER. IF CUSTOMER DOES NOT AREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE MARKET ME SERVICES.
Customer represents and warrants that: (a) Customer is of legal age to form a binding contract; (b) has the right, authority and capacity to agree to and abide by this Agreement; and (c) is not a person barred from using the Market Me Services under the laws of any applicable jurisdiction.
This Agreement governs Market Me’s provision of the Market Me Services and Customer’s access to and use of the Market Me Services. This Terms of Service contains general terms and conditions applicable to all such Market Me Services. Order Forms contain additional terms specific to the Market Me provided thereunder. The parties agree as follows:
“Data” means the raw data Customer uploads or submits to Market Me and the resulting data from the processing of such raw data using the Market Me Services.
“Deliverables” means the work product and other materials that are specified in an Order Form for delivery to Customer in the course of performing the Market Me Services.
“Feedback” means all suggestions, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to Market Me related to the Market Me Services.
“Internal Purposes” means internal business use within Customer’s systems, networks, and devices, as well as testing and evaluation of the Market Me Services in order to provide Feedback to Market Me. Such purposes also include use of Market Me Services as part of services Customer provides to third party clients (“Clients”), so long as the product is not incorporated into a Customer, Client or other third-party product or software.
“Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.
“Order Form” means each mutually agreed upon order on Market Me’s Order Form template that specifies the Market Me Services, including the type or quantity of items, including the number of seats or users, the fees for such items and any additional terms applicable to the use of such items.
“SaaS Platform” means everything at https://goempathic.com/, and related services located in the http://www.mrkt-me.com/ domain and subdomains, including software, code, algorithms, hosted services, and web interfaces.
“User” is a distinct named user permitted by Customer to access the Market Me Services defined by an email address and tied to a specific Customer billing account. Customer is responsible for all use of the Market Me Services by Users.
2. LICENSE GRANT.
Customer’s use of the Market Me Services is subject to and governed by the terms and conditions in this Agreement, including those in the applicable Order Form. In the event of a conflict between the terms in an Order Form and this Agreement, the terms in the Order Form shall control with respect the Market Me Services provided under such Order Form. Subject to and conditioned on Customer’s compliance with the terms and conditions of this Agreement and those in the applicable Order Form, Market Me grants Customer a non-exclusive, non-sublicensable, non-transferable, revocable, limited license during the Term to use the Market Me Services in a secure location, only for the Internal Purposes.
3. LICENSE RESTRICTIONS.
a. Restrictions. Except as expressly authorized in this Agreement or by Market Me, Customer will not, and will not permit any third party to: (i) access or use the Market Me Services for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Market Me Services (except as required to run the Market Me Services and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the Market Me Services; (iv) rent, lease, loan, resell, transfer, sublicense, display or distribute the Market Me Services to any third party; (v) use or offer any functionality of the Market Me Services on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the Market Me Services, or “frame” or “mirror” the Market Me Services on any other server, or wireless or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer the Market Me Services or otherwise attempt to derive the Market Me Services source code, algorithms, methods or techniques used or embodied in the Market Me Services; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Market Me Services, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Market Me Services; (ix) interfere with or disrupt servers or networks connected to any website through which the Market Me Services provided; (x) use the Market Me Services to collect or store personal data about any person or entity; (xi) use the Market Me Services to build a similar or competitive product or service; (xii) use the Market Me Services to transmit Malicious Code or (xiii) use the Market Me Services for any illegal, unauthorized or otherwise improper purposes.
b. Other Parties. Any employee, consultant, contractor or agent hired to perform services for Customer may operate the Market Me Services on Customer’s behalf solely under these terms and conditions, provided that: (i) Customer is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer; (ii) such use is only in connection with Customer’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iv) Customer remain fully responsible and liable for any and all acts or omissions by such third parties related to this Agreement.
c. Immediate Termination. Any violation of this Section 3 by Customer shall be a material breach of this Agreement and Market Me may immediately terminate this Agreement without notice.
a. Definition. “Confidential Information” means information that either: (i) is designated as confidential by the Discloser (as defined below) at the time of disclosure; or (ii) would reasonably be understood by the Recipient (as defined below), given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date. Confidential Information of Market Me also includes the Market Me Services and the existence and terms and conditions of this Agreement.
b. Use of Confidential Information. A party which receives Confidential Information under this Agreement (“Recipient”) may not use the Confidential Information from the party which discloses Confidential Information under this Agreement (“Discloser”) in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement.
c. Disclosure of Confidential Information. Recipient will: (i) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and (ii) not divulge any Confidential Information to any third party (other than to employees or contractors as set forth below). Any employee or contractor given access to any Confidential Information must have a legitimate “need to know” such Confidential Information for use specified in Section 2 and Recipient will remain responsible and liable for each such person’s compliance with this Agreement.
d. Confidentiality Period. Irrespective of any termination of this Agreement, Recipient’s obligations with respect to Confidential Information under this Agreement expire 5 years from the date of receipt of the Confidential Information (except with respect to any trade secrets and Data where such obligations will be perpetual).
e. Exclusions. This Agreement imposes no obligations with respect to information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (d) is developed by Recipient without use of the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.
f. Return or Destruction of Confidential Information. Upon termination of this Agreement or written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return or destroy the Confidential Information and all copies, notes or extracts thereof to Discloser within seven (7) business days of such request or termination.
5. TERM AND TERMINATION.
a. Term. This Agreement will be effective from the earlier of (i) the earliest Effective Date specified in an outstanding Order Form, and (ii) the date on which Customer first installed, downloaded or accessed a copy of the Market Me Services, and shall continue until terminated, as set forth below (the “Term”).
b. Termination. The Term of this Agreement shall remain effective until each Order Form has expired or unless terminated earlier as set forth herein. Either Party may terminate this Agreement, with or without cause, by providing the other party with written notice of non-renewal at least thirty (30) days prior the end of the Initial Term or a subsequent Renewal Term, each as defined in the Order Form. For the avoidance of doubt, written notice of non-renewal must be provided with respect to each outstanding Order Form in order to terminate this Agreement.
c. Effect of Termination. Immediately upon termination, (i) all Order Forms and licenses granted under this Agreement will immediately terminate and Customer will immediately cease all use of the Market Me Services; (ii) Customer will destroy the Market Me Services in its possession, or upon request by Market Me, return to Market Me the Confidential Information that is in its possession or control; and (iii) any and all of Customer’s payment obligations under each Order Form will immediately become due. Upon Market Me’s request, Customer will certify in writing that Customer has returned or destroyed all copies of Market Me’s Confidential Information. Sections 1, 3 – 12, and 14 – 16, will survive termination of this Agreement. Neither party shall be under any obligation to enter into an agreement after termination or expiration of this Agreement.
d. Suspension. Market Me reserves the right at any time to modify, suspend, or discontinue the Market Me Services (or any portion thereof) with or without notice, and Market Me shall not be liable to Customer or any third party for any such modification, suspension or discontinuance.
a. The Market Me Services are licensed, not sold, and Market Me, its suppliers or its licensors, retains and reserves all rights not expressly granted in this Agreement. Market Me, its suppliers or its licensors own all worldwide right, title and interest in and to the Market Me Services, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing (collectively, “Intellectual Property Rights”).
b. Customer is, and shall be the sole and exclusive owner of all right, title and interest in and to the Deliverables and the parties hereto agree that the Deliverables are hereby agreed to as a “work made for hire” (as defined in 17 U.S.C. §101) for the benefit of Customer. If, for any reason, the Deliverables do not constitute a “work made for hire,” then the Company hereby irrevocable assigns to the Customer, in each case without additional consideration, all right, title and interest throughout the world in, including all related Intellectual Property Rights, the Deliverables.
c. Except as expressly stated in this Agreement, Market Me does not grant Customer any Intellectual Property Rights in the Market Me Services. If Market Me provides any third party and open source software (“OSS”), it will be aggregated and provided as object code in a separate library, but shall not be considered part of the Market Me Services. Use of such open source software is subject to the applicable open source license provided with the OSS. Customer agrees to comply with all open source software licenses. Customer will not distribute the Market Me Services or combine it with any other software which would result in an obligation to license the aggregate software in any manner. The Market Me Services are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions.
a. Fees and Expenses. Customer shall pay all agreed upon fees for the Market Me Services as set forth in the applicable Order Form (“Fees”) and in accordance with terms set forth in such Order Form.
b. Payment Terms. Customer will pay Fees fifteen (15) days after the invoice date. Customer shall provide Market Me with complete and accurate billing contact information including a valid email address. All payments to Market Me are non-refundable except as otherwise expressly provided in the applicable Order Form. All payments will be made in United States dollars via electric funds transfer, as per the instructions of Market Me. Market Me may invoice parts of an Order Form separately or all in one invoice. Any discounts, interests and taxes invoiced to an Order Form shall be allocated equally to each Market Me Service and licenses provided under such Order Form.
c. Late Payments. If Customer fails to pay any past due invoice, Market Me may revoke or suspend the Market Me Services until such time as Customer brings its account completely current. Market Me may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. If Customer is delinquent in its payments for two (2) consecutive months, Market Me may, upon written notice to Customer, modify the payment terms to require full pre-payment of any or all Order Forms (both currently contracted and in the future), or require other assurances to secure Customer’s payment obligations hereunder.
d. Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Market Me Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Market Me’s net income, and Customer shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If Customer is legally required to withhold any amounts to be paid to Market Me, Customer will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to Market Me on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit Market Me to establish Market Me’s right to a credit for such taxes against Market Me’s income tax liability. Customer shall provide Market Me with such assistance as Market Me shall reasonably request in connection with any application by Market Me to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.
Customer agrees to provide Market Me with Feedback. Market Me, in its sole discretion, may or may not respond to Customer’s Feedback or promise to address all of Customer’s Feedback in the development of future features or functionalities of the Market Me Services or any related or subsequent versions of such Market Me Services. Customer assigns, at no charge, all rights, title and interests in Feedback to Market Me, and agrees that Market Me is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Customer. Customer warrants that the Feedback does not infringe any copyright or trade secret of any third party, and that Customer has no knowledge of any patent of any third party that may be infringed by the Feedback (including any implementation thereof recommended by Customer). Customer further warrants that its Feedback is not subject to any license terms that would purport to require Market Me to comply with any additional obligations with respect to any Market Me Services that incorporates Customer’s Feedback.
b. Data Warranty and Obligations. Customer represents, warrants and agrees that Customer has all rights to provide the Data and other materials that Customer provides or makes available to Market Me. Customer acknowledges and agrees that it is solely responsible for all Data and for its conduct while using the Market Me Services. Customer acknowledges and agrees that: (i) it will evaluate and bear all risks associated with its use and distribution of all Data; (ii) it is responsible for protecting and backing up the Data; (iii) it is responsible for protecting the confidentiality of all Data in its possession and control; and (iv) under no circumstances will Market Me be liable in any way for the content of any Data, including, but not limited to, any errors or omissions in any Data, or any loss or damages or any kind incurred as a result of Customer’s use, deletion, modification, or correction of any Data. Customer has full discretion and control on how to store, protect, remove or delete any Data on the Market Me Services and Market Me shall have no liability for any damages caused by such deletion or removal of or failure to store or protect Data.
a. Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.
b. Disclaimer. EXCEPT AS SET FORTH IN SECTION 10.A., MARKET ME DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. MARKET ME SPECIFICALLY DOES NOT WARRANT THAT THE MARKET ME SERVICES OR DELIVERABLES WILL MEET CUSTOMER’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE MARKET ME SERVICES OR DELIVERABLES WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CUSTOMER PROVIDES THE DATA ON AN “AS IS” BASIS AND PROVIDES NO GUARANTEE OF THE ACCURACY OF THE DATA PROVIDED TO MARKET ME. Market Me is not obligated to support, update or upgrade the Market Me Services or Deliverables.
c. Beta Disclaimer. ALL MARKET ME SERVICES LABELED ALPHA, BETA, PRE-RELEASE, TRIAL, PREVIEW OR SIMILARLY (“Beta Services”) ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS, AND CUSTOMER’S USE OF SUCH BETA SERVICES IS AT ITS SOLE RISK. Market Me has no obligations in connection with or in the course of providing the Beta Services. Any expectations and estimates regarding Beta Services are based on factors currently known and actual events or results could differ materially. Market Me does not assume any obligation to update any Beta Services. In addition, any information about Market Me’s roadmap outlines Market Me’s general product direction and is subject to change at any time without notice. It is for informational purposes only and shall not be incorporated into this Agreement or any contract or other commitment. Market Me undertakes no obligation either to develop the features or functionality provided in the Beta Services, or to include any such feature or functionality in a future release of the Market Me Services. Customer expressly acknowledges that the Beta Services have not been fully tested, and may contain defects or deficiencies which may not be corrected by Market Me. The Beta Services may undergo significant changes prior to release of the corresponding generally available final version.
a. Claims Against Customer. Market Me will defend, at its own expense, and hold Customer harmless against any claim, suit or action brought against Customer by a third party to the extent that such claim, suit or action arises from an allegation that the Market Me Services or Deliverables, when used as expressly permitted by this Agreement, infringes the intellectual property rights of such third party (“Customer Claim”), and Market Me will indemnify Customer from liability incurred by Customer to the extent arising from such Customer Claim. If Market Me receives prompt notice of a Customer Claim that, in Market Me’s reasonable opinion, is likely to result in an adverse ruling, then Market Me may (i) obtain a right for Customer to continue using the Market Me Services at issue; (ii) modify such Market Me Services to make it non-infringing; (iii) replace such Market Me Services with a non-infringing version; or (iv) provide a reasonable depreciated or pro rata refund of amounts pre-paid for the allegedly infringing Market Me Services.
b. Market Me Indemnity Limits. Notwithstanding the foregoing, Market Me will have no obligation under Section 11.a. or otherwise with respect to any infringement claim based upon: (i) any use of the Market Me Services or Deliverables not expressly permitted under this Agreement; (ii) any use of the Market Me Services or Deliverables in combination with products, equipment, software, or data not made available by Market Me if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (iii) any modification of the Market Me Services or Deliverables by any person other than Market Me or its authorized agents or subcontractors (collectively, “Excluded Claims”). Market Me will have no obligation under Section 11.a. or otherwise with respect to any claim based upon the use by Customer of any Data uploaded or accessed through the Market Me Services or Deliverables to the extent such claim is not based on the Market Me Services or Deliverables itself. Section 11.a. states Market Me’s sole liability and Customer’s exclusive remedy for all third party claims.
c. Claims Against Market Me. Customer will defend, at its own expense, and hold Market Me harmless against any claim, suit or action against Market Me brought by a third party to the extent that such claim, suit or action arises from (i) Customer’s failure to comply with or violation of any applicable law or regulation, (ii) Customer’s infringement of any third party’s Intellectual Property Right, (iii) Customer’s use of any Data, (iv) Customer’s products or services, (v) Customer’s relationship with, communications with, or provision of products or services to Clients, whether or not such relationship, communications or provision of products or services is facilitated by the Market Me Services, or (vi) Excluded Claims (each, a “Market Me Claim”), and Customer will indemnify Market Me harmless from liability incurred by Market Me that is specifically attributable to such Market Me Claim or those costs and damages agreed to in a monetary settlement of such Market Me Claim.
d. Procedure. The foregoing obligations are conditioned on the party seeking indemnification: (i) promptly notifying the other party in writing of such claim; (ii) giving the other party sole control of the defense thereof and any related settlement negotiations; and (iii) cooperating and, at other party’s request and expense, assisting in such defense. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim.
12. LIMITATION OF LIABILITY.
a. IN NO EVENT WILL MARKET ME BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, DATA, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE MARKET ME SERVICES OR DELIVERABLES. WITHOUT LIMITING THE FOREGOING, MARKET ME WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE MARKET ME SERVICES, ITS FUNCTIONS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON OR ANY DELETION, CORRUPTION OR DAMAGE OF DATA ON OR THROUGH THE MARKET ME SERVICES OR DELIVERABLES. MARKET ME’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDER FORMS, WILL BE LIMITED TO AND WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).
b. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. COMPLIANCE WITH LAWS.
Customer will comply fully with all applicable laws, including all applicable laws relating to bribery or corruption, and export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the Market Me Services or Deliverables. Customer represents and warrants that it is not (a) located in, or a resident or a national of, a restricted country; or (b) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further represents and warrants that it shall not export, re-export, ship, or transfer the Market Me Services or Deliverables to any restricted countries or restricted end users or use the Market Me Services or Deliverables in any restricted countries or for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. Customer understands that the requirements and restrictions of the Export Laws may vary depending on the specific Market Me Services or Deliverables and may change over time, and that, to determine the precise controls applicable to the Market Me Services or Deliverables, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations.
14. CHOICE OF LAW.
This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction. The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
a. ALL CLAIMS (AS DEFINED ABOVE) SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CUSTOMER MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CUSTOMER’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
b. The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Customer agrees that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
c. WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CUSTOMER HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
d. Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or Intellectual Property Rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.
e. If Market Me implements any material change to this Section 15, such change shall not apply to any claim for which Customer provided written notice to Market Me before the implementation of the change. The prevailing party shall recover its reasonable attorneys’ fees, expert fees, costs including arbitration costs and fees.
All notices required or permitted under this Agreement hereto will be in writing and delivered in person, by email to the address designated in the applicable Order Form, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise. Any attempt to assign this Agreement other than as permitted herein shall be null and void. Customer acknowledges that Market Me may assign, subcontract or delegate any of its rights or obligations under this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Market Me Services and Deliverables, including Confidential Information, and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. This Agreement is limited to the use of Market Me Services, Deliverables, Data and Confidential Information and as such, this Agreement is separate from and shall have no effect on any other agreement Customer may have with Market Me. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. For the purposes of this Agreement, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” Any prevention of or delay in performance by Market Me hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.
The duly authorized representatives of Customer and Market Me have read the foregoing and all documents incorporated therein, and agree and accept such terms effective as of the Effective Date.