This Epictions Master Services Agreement (“Agreement”) governs Customer’s acquisition and use of Epictions Services. If the Customer registers for a free trial for Epictions services, this Agreement will also govern that free trial.

By accepting agreement, either by clicking a box indicating their acceptance or by executing a Service Order Form that references this Agreement, Customer agrees to the terms of this Agreement.

If the Customer is entering into this Agreement on behalf of a company or other legal entity, the Customer represents that Customer has authority to bind such entity and its affiliates to these Terms and Conditions, in which case the “Customer” shall refer to such entity and its affiliates. If the Customer does not have such authority, or if the Customer does not agree with these Terms and Conditions, the Customer must not accept this Agreement and may not use Epictions services.

Customer may not access the Epictions Services if the Customer is Epictions’ direct Competitor, except with Epictions’ prior written consent. In addition, Customer may not access the Epictions Services for purposes of monitoring their availability, performance or functionality, or any other benchmarking or competitive purposes.

This Agreement was last updated on Mar 18, 2016. It is effective between Customer and Epictions as of the date Customer accepts this Agreement.

NOW THEREFORE, the Parties agree as follows:

 

1. DEFINITIONS

a) “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

b) “Epictions” or “Supplier” means Epictions Transmedia, Inc.

c) “Customer” means the company or other legal entity for which Customer us accepting this Agreement, and Affiliates of that company or entity. If Customer is an agency purchasing Epictions Services on behalf of the Customer’s clients, the term “Customer” shall include such clients, provided that Customer shall be responsible for such client’s compliance with Customer’s obligations under this Agreement, for any breach of those obligations by such clients, and for payment for Epictions Services purchases on behalf of such clients.

d) “Epictions Service” or “Epictions Services” means the products and services offered by the Supplier under the name “Epictions,” “EpicBeat”, “EpicBeat Plus”, “EpicSuite”, “EpicEnterprise”, “Epicenter,” or successor branding, that the Customer orders under a free trial or a Service Order Form and the Supplier makes available online via password-protected customer login, including associated offline components, as described in the User Documentation. “Epictions Services” exclude Third-Party Platforms, Indexed Content, and Non-Epictions Applications.

e) “Purchased Epictions Services” means Epictions Services that the Customer or Customer’s Affiliates purchase under a Service Order Form, as distinguished from those provided pursuant to a free trial.

f) “Indexed Content” means information, including but not limited to links, posts, and excerpts, that has been obtained by the Supplier or on Supplier’s behalf from publicly available sources, and data derived therefrom, including but not limited to reports, summaries, graphs and charts.

g) “Third-Party Platform” means a third-party system for which the Customer uses the Epictions Services or from which the Supplier receives Indexed Content for the Epictions Services, such as Google Analytics, Facebook, Twitter, LinkedIn, or YouTube.

h) “Non-Epictions Applications” means online applications and offline software products that are provided by entities or individuals other than the Suppliers and are clearly identified as such, and that interoperate with the Epictions Services.

i) “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

j) “Service Order Form” means the online, digital or physical documents for placing orders for Epictions Services hereunder that are entered into between the Customer and the Supplier or any of Supplier’s Affiliates from time to time, including addenda and supplements thereto. By entering into a Service Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Service Order Forms shall be deemed incorporated herein by reference.

k) “User Documentation” means the Supplier’s training, help, how-to and explanatory materials that assist Users in using the Epictions Services, as such materials may be updated from time to time accessible via log-in to the Epictions Services or otherwise as made available by the Supplier.

l) “Users” means individuals who are authorized by the Customer to use the Epictions Services, for whom subscriptions to a Epictions Service have been ordered, and who have been supplied user identifications and passwords by the Customer (or by the Supplier at Customer’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents, and third parties with which the Customer transacts business.

m) “Customer Data” means any electronic data or information submitted by the Customer or for the Customer to the Purchased Epictions Services, or is collected and processed by the Customer or for the Customer, using the Purchased Epictions Services, excluding Indexed Content.

 

2. PURCHASED EPICTIONS SERVICES

a) The Customer and its Affiliates may order Epictions Services by executing the applicable Service Order Forms. Service Order Forms become effective when fully executed by both Parties. The Services ordered are provided subject to the Agreement. These Terms & Conditions also apply to any and all subsequent Service Order Forms executed by the Parties, even when these Terms & Conditions are not explicitly referenced. Unless otherwise agreed by the Parties, any conflict between a Service Order Form and these Terms & Conditions will be resolved in favor of the Service Order Form.

b) Supplier shall make the Purchased Epictions Services available to the Customer pursuant to this Agreement and the applicable Service Order Form(s) during each subscription term. The Customer agrees that purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by the Supplier regarding future functionality or features.

c) Unless otherwise specified in the applicable Service Order Form: (i) Epictions Services are purchased as subscriptions and may be accessed only in accordance with the applicable Service Order Form(s); (ii) additional quantities and Services may be added by executing additional Service Order Form(s). Any User-based subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Epictions Services.

 

3. FREE TRIAL

Epictions may make one or more Epictions Services available to the Customer on a trial basis, including Beta Services (collectively “Trial Epictions Services”) free of charge until the earlier of (a) the end of the free trial period for which the Customer registered or is registering to use the applicable Trial Epictions Service or (b) the start date of any Purchased Epictions Services ordered by the Customer.

Customer obligations with regards to Customer Data shall apply to data submitted to or collected through the Trial Epictions Services, which data is not Indexed Content. Additional trial Terms and Conditions may appear on the trial registration web page or other trial registration document entered into by the Customer. Any such additional Terms and Conditions are incorporated into this Agreement by reference and are legally binding.

If the Customer elects to use the Epictions Services for the trial period and does not purchase a subscription before the end of the trial period, Customer’s trial subscription for the Epictions Services will expire at the end of the trial period and shall not auto-renew. Any data entered into the Trial Epictions Services by the Customer or received by the Customer in connection with the Customer’s use of the Trial Marketing Services, and any customizations that may be made to the Trial Epictions Services by the Customer during the free trial period, will be permanently lost unless the Customer purchases a subscription to the same Epictions Services as those covered by the trial before the end of the trial period.

Notwithstanding Section 10 (Warranties, Exclusive Remedies, and Disclaimers), during the free trial the Trial Epictions Services are provided “as-is” without any warranty and support.

Customer must review the User Documentation during the trial period so that the Customer becomes familiar with the features and functions of the Trial Epictions Services before the Customer makes the purchase.

 

4. USE OF EPICTIONS SERVICES

a) Supplier Responsibilities.

i. Supplier shall: (i) provide basic support for the Purchased Epictions Services to the Customer at no additional charge, and/or upgraded support if purchased; and (ii) use commercially reasonable efforts to make the Purchased Epictions Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which Supplier shall give at least 8 hours notice online via the Epictions Services or via email), or (b) any unavailability caused by circumstances beyond Supplier’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, failures, downtime or delays by an Internet service provider, hosting provider, or Third-party Platform, Non-Epictions Application, or denial of service attacks.

ii. Supplier shall maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Supplier shall not: (a) modify Customer Data; (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by the Customer; or (c) access Customer Data except to provide the Epictions Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters.

b) Customer Responsibilities.

i. Customer shall: (i) be responsible for Users’ compliance with this Agreement; (ii) be responsible for the accuracy, quality and legality of Customer Data and of the means by which the Customer acquires Customer Data; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Epictions Services, and notify the Supplier promptly of any such unauthorized access or use; and (iv) use the Epictions Services only in accordance with the User Documentation and applicable laws and government regulations.

ii. Customer shall not: (i) make the Epictions Services available to anyone other than Users; (ii) sell, resell, rent, or lease the Epictions Services; (iii) use the Epictions Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iv) use the Epictions Services to store or transmit Malicious Code; (v) interfere with or disrupt the integrity or performance of the Epictions Services or third-party data contained therein; or (vi) attempt to gain unauthorized access to the Epictions Services or their related systems or networks.

iii. Additionally, Customer shall not:(i) use the Epictions Services for the purpose of serving as a factor in establishing an individual’s eligibility for credit, employment or insurance, or for any other consumer-initiated transaction as defined in the U.S. Fair Credit Reporting Act; (ii) submit to the Epictions Services or use the Epictions Services to collect, store or process any of the following types of sensitive individually identifiable information, including, without limitation: (a) social security numbers, passport numbers, driver’s license numbers, taxpayer numbers, or other government-issued identification numbers, (b) Protected Health Information (as defined in the U.S. Health Insurance Portability and Accountability Act of 1996 and regulations thereunder, as amended, “HIPAA”) or similar information under other comparable laws or regulations, or (c) financial account numbers (including without limitation credit or debit card numbers, or any related security codes or passwords, bank account information, or Non-Public Information (as defined in the Gramm-Leach-Bliley Act of 1999, as amended, “GLBA”) or similar information under other comparable laws or regulations. If the Epictions Services are configured by or for the Customer to use cookies and/or other tracking technologies for Customer purposes, then Customer shall be solely responsible: (A) for assessing whether such technologies can be used in compliance with applicable legal requirements, and (B) for providing notice and or obtaining consent, as may be required by law, for such use of cookies and/or other tracking technologies.

c) Usage Limitations.

i. Epictions Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls the Customer is permitted to make against Supplier’s systems, or other usage limits. Any such limitations are specified in the User Documentation or a Service Order Form. Epictions Services may provide real-time information to enable the Customer to monitor Customer’s compliance with such limitations. If the Customer purchases Epictions Services subject to usage limits and the Customer routinely exceed those limits, the Supplier may work with the Customer to seek to reduce the usage so that it conforms with such limits and if the Customer is unable or unwilling to abide by applicable usage limits, after the Supplier has provided notice of such excess usage, the Supplier may require the Customer to execute a Service Order Form for additional Epictions Services and/or invoice the Customer for excess usage. In such event, the Customer hereby agrees to execute such additional Service Order Forms and/or pay such additional invoices, as applicable.

 

5. INDEXED CONTENT & THIRD-PARTY PLATFORMS

a) Indexed Content: Supplier does not own or control Indexed Content. Indexed Content shall not be considered Customer Data or “Customer Data” under any circumstances, including pursuant to the terms of any such other agreement entered into between the Customer and the Supplier for non-Epictions services. Indexed Content may be indecent, offensive, inaccurate, unlawful, or otherwise objectionable. Supplier shall have no obligation to preview, verify, flag, modify, filter, store or remove any Indexed Content, even if requested to do so, although Supplier may do so in Supplier’s sole discretion. INDEXED CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. Customer’s use of Indexed Content is at Customer’s sole risk, and Supplier shall not be liable to the Customer or any third party based on Indexed Content.

b) Third-Party Platform Access and Interactions: Customer shall enable the Epictions Services to access Customer’s Third-Party Platform accounts and any websites operated by the Customer or on Customer’s behalf with respect to which the Customer uses the Epictions Services. Subject to the terms of this Agreement, the Customer acknowledges and agrees that the Supplier may access, collect, process, and/or store information or content, regardless of whether such content is Customer’s Data or Indexed Content, from such Third-Party Platform accounts and/or websites in connection with providing the Epictions Services. Except for the Supplier’s obligations with respect to Customer’s Data, Supplier shall not be responsible or liable for: (i) any content provided by the Customer, Customer’s Users or any third party to any Third Party Platform or other website, and any content accessed by the Customer, Customer’s Users or any third party from any Third-Party Platform or other websites; (ii) any interactions or communications between the Customer and/or Customer’s Users and any third parties through any Third-Party Platform or other websites; or (iii) any transactions relating to a separate agreement or arrangement between the Customer or Customer’s Users and any Third-Party Platform provider or website.

c) Termination for Unavailability of Certain Third-Party Platforms: If the operator of any Third-Party Platform ceases making its Third-Party Platform or its Indexed Content available for use with the Epictions Services on reasonable terms, with the intent not to resume making it available for use with the Epictions Services on reasonable terms, then the Customer may notify the Supplier of Customer’s termination of any Epictions Service subscriptions that have become substantially unusable as a result thereof. Such Epictions Service subscriptions shall terminate effective 30 days after such notice unless availability of such Third-Party Platform or Indexed Content for use with the Epictions Services has resumed during the 30-day period. In the event of any such termination, Supplier shall refund to the Customer any prepaid fees covering the remainder of the term of the terminated Epictions Services subscriptions after the effective date of termination. Except as provided above, any unavailability of any Third-Party Platform or Indexed Content for use with the Epictions Services shall not entitle the Customer to any termination right, credit, refund or other compensation.

d) Acquisition of Non-Epictions Products and Services: Supplier or third parties may from time to time make available to the Customer third-party products or services, including but not limited to Non-Epictions Applications and implementation, customization, and other consulting services. Any exchange of data between the Customer and any non-Epictions provider, is solely between the Customer and the applicable non-Epictions provider. Supplier does not warrant or support non-Epictions products or services, whether or not they are designated by Epictions as “certified” or otherwise, except as expressly stated otherwise in a Service Order Form. Subject to the Integration with Non-Epictions Applications, no purchase of non-Epictions products or services is required to use the Epictions Services except a supported computing device, operating system, web browser, and Internet connection.

e) Integration with Non-Epictions Applications: The Epictions Services may contain features designed to interoperate with Non-Epictions Applications. To use such features, the Customer may be required to obtain access to such Non-Epictions Applications from their providers. If the provider of any such Non-Epictions Application ceases to make the Non-Epictions Application available for interoperation with the corresponding Epictions Service features on reasonable terms, the Supplier may cease providing such Epictions Service features without entitling the Customer to any refund, credit, or other compensation, subject to Termination for Unavailability of Certain Third-Party Platforms.

 

6. TERM & TERMINATION

a) The Term of this Agreement is set forth in the applicable Service Order Form and automatically renews for successive terms of equal duration unless either Party notifies the other of its intent to terminate at least sixty (60) days prior to the expiration of the applicable Term. These Terms & Conditions shall apply as long as a Service Order Form continues to be effective. Termination of an individual Service Order Form shall not terminate any other Service Order Form.

b) Customer may terminate their subscription to Epictions Service(s) by either utilizing the cancellation facility made available through Epictions websites or by notifying Epictions in writing.

c) If the Customer terminates their subscription, Customer will not be entitled to a refund after billing has occurred for the subscription period or any renewal period. Epictions will, however, refund subscription fees (on a pro rata basis) when Epictions has terminated the Customer’s subscription before the end of a subscription period or, if applicable, a renewal period.

d) In case of material breach of the Agreement by either Party, the breaching Party shall be provided thirty (30) days to cure the said breach failing which the non-breaching Party can terminate this Agreement.

e) On termination herein: (i) all payments due to the Supplier shall forthwith fall due and payable; (ii) the Supplier shall deliver the Services as it stands to the Customer; and (iii) the Parties shall terminate utilizing either Parties Confidential Information.

 

7. FEES & PAYMENT

a) Except as otherwise specified herein or in a Service S, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term stated on the Service Order Form.

b) Customer will provide Epictions with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Epictions. If the Customer provides credit card information to Epictions, Customer authorizes Epictions to charge such credit card for all Epictions Services listed in the Service Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section X (Terms of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Service Order Form. If the Service Order Form specifies that payment will be by a method other than a credit card, Epictions will invoice the Customer in advance and otherwise in accordance with the relevant Service Order Form. Unless otherwise stated in the Service Order Form, invoiced charges are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Epictions and notifying Epictions of any changes to such information.

c) All fees are as set forth in the applicable Service Order Form, and shall be invoiced at the beginning of the calendar month, and shall be paid by the Customer within fifteen (15) days on receipt of invoice unless otherwise specified in the respective Service Order Form.

d) Epictions is entitled to increase or decrease the Subscription Fees at the start of each renewal period upon 30 days’ prior notice to the Customer.

e) Epictions is entitled to change the details of services, features, and functionalities offered under a subscription plan. Customer may notify the Supplier of Customer’s termination of any Epictions Service subscriptions that have become substantially unusable as a result thereof. Such Epictions Service subscriptions shall terminate effective 30 days after such notice.

f) In case of failure to remit the fees within the prescribed period of time, then, without limiting Supplier’s rights or remedies, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Supplier may condition future subscription renewals and Service Order Forms on payment terms shorter than those specified in Section 6(b).

g) If any amount owing by the Customer under this or any other agreement for Supplier’s services is 30 days or more overdue, the Supplier may, without limiting Supplier’s other rights and remedies, accelerate the Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Supplier’s services to the Customer until such amounts are paid in full. Supplier will give the Customer at least 7 days’ prior notice that the Customer’s account is overdue before suspending services to the Customer.

h) Unless otherwise stated, the Supplier’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with purchases hereunder. If the Supplier has the legal obligation to pay or collect Taxes for which the Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides the Supplier with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the Supplier is solely responsible for taxes assessable against the Supplier based on the Supplier’s income, property and employees.

 

8. CONFIDENTIALITY AND CONFIDENTIAL INFORMATION

a) On receiving Confidential Information (defined herein below), the receiving Party agrees: (i) the information is claimed to be confidential and it will not disclose the information to any third party without the written approval of the disclosing Party, (ii) not to disclose or use any of such Confidential Information for any purpose except as necessary and consistent with the terms of this Agreement, (iii) to limit the use of and access to such Confidential Information to only those employees who have a need to know, protect the information from disclosure in the same manner that it would protect its own similar information, and (iv) that it will immediately notify the Supplier in writing of any unauthorized disclosures and/or use thereof. For the purpose of this Agreement, Confidential Information shall not include any information which: (i) is already known to the receiving Party or is publicly available at the time of disclosure; (ii) becomes known to the general public through no act or omission of the receiving Party in breach of this Agreement; (iii) is disclosed to the receiving Party by a third party who is not, to the knowledge of the receiving Party, in breach of an obligation of confidentiality; (iv) was or is independently developed by the receiving Party without use of the Confidential Information disclosed herein; or (v) is disclosed pursuant to a court order, provided the receiving Party, at the request of the disclosing Party, uses reasonable efforts to limit such disclosure to the extent requested.

b) Except as specifically agreed between the Parties, this Agreement does not confer any right, title, ownership or license in the software used to perform the Services or any documentation or otherwise. The Supplier is the sole and absolute owner of its own Confidential Information.

c) Nothing herein permits the Supplier to attempt to duplicate, reverse engineer, or decompile in any way the Confidential information or the designs, features, and technology during the term and following the termination hereof.

d) For the purpose of this Clause 3, “Confidential Information” shall mean all written or oral information, proprietary to a Party, including source code, object code, customer lists, employee lists / policies, samples, models, data, designs, programs, drawings, tools, concepts, formulae, algorithms, processes, technical specifications, synchronization interfaces, material prepared by the Supplier including derivative works. All data, information, material by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential.

 

9. OWNERSHIP OF INTELLECTUAL PROPERTY

a) Subject to the limited rights expressly granted hereunder, the Supplier reserves all rights, title and interest in and to the Epictions Services, including all related intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.

b) As between the Customer and the Supplier, the Customer shall own all Customer Data, including all reports, statistics, and other data to the extent generated solely from the Customer Data, and all intellectual property rights therein; provided, however, that during the term of this Agreement, the Customer grants to the Supplier a worldwide, non-exclusive, royalty-free license to aggregate or compile the Customer Data with other data, including the customer data of other Epictions customers so long as such aggregation or compilation omits any data that would enable the identification of the Customer, Customer’s Customers, or any individual, company or organization (“Aggregated Data”). The Supplier shall have a worldwide, perpetual, royalty-free license to use, modify, distribute and create derivative works based on such Aggregated Data, including all reports, statistics or analyses created or derived therefrom. Additionally, the Customer grants to the Supplier the right to access Customer Data to provide feedback to the Customer concerning the Customer’s use of the Epictions Services.

c) The Supplier shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Epictions Services any suggestions, enhancement requests, recommendations, or other feedback provided by the Customer, including Users, relating to the operation of the Epictions Services.

d) The Customer shall not:

i. display, distribute or make available the Indexed Content to any third party; provided such restriction does not apply to (a) aggregations of Indexed Content which do not reveal individual Mentions, or (b) content retrieved directly from the content provider’s website rather than from the Epictions Services;

ii. copy, modify, or create derivative works based on Indexed Content except to create aggregations of Indexed Content which do not reveal individual Mentions;

iii. permit any third party to access the Epictions Services except as permitted herein or in a Service Order Form;

iv. create derivative works based on the Epictions Services except as permitted herein;

v. copy, frame, or mirror any part or content of the Epictions Services, other than copying or framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes;

vi. reverse engineer the Epictions Services;

vii. access the Epictions Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Epictions Services.

 

10. REPRESENTATIONS AND WARRANTIES

The Parties represent and warrant that:

a) It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and has been fully authorized by all requisite corporate actions to do so.

b) It will perform its obligations under this Agreement in compliance with all applicable and enforceable laws, ordinances and regulations.

c) It will provide such cooperation as the other Party reasonably requests in order to give full effect to the provisions of this Agreement.

d) The Customer further warrants and represents that:

i. The Services provided herein are free from any patent, copyright, trade mark or other intellectual property right infringement and the said Services and / or the grant of the license to use by the Supplier does not infringe the rights of any third party.

ii. The Supplier will not be liable for any delay, loss of data/ information or other failure of performance during the scheduled downtime. THE Services ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTIES OF ANY KIND. THE SUPPLIER MAKES NO WARRANTIES AS TO THE AVAILABILITY OF UNINTERRUPTED, ERROR FREE, COMPLETELY SECURE, MERCHANTIBILITY OR FITNESS, VIRUS FREE SERVICES. FURTHER NO WARRANTY AS TO THE ABILITY TO MEET THE SATISFACTION OF THE CUSTOMER’S REQUIREMENTS IS PROVIDED HEREIN. The Supplier will not be liable for any delay, down time, loss of data/ information or other failure of performance, if the cause or circumstances for the same is beyond the reasonable control of the Supplier, but will use reasonable efforts to correct any performance problem brought to its attention. The Supplier will not be responsible for incidental, consequential, or any other damages arising out of or in connection with the service or materials provided hereunder.

iii. The above warranties are contingent upon the proper installation and use of the deliverables and do not apply to supplies and consumables, or to defects or failures due to (i) accident, neglect or misuse; (ii) failure or defect of electrical power, external electrical circuitry, air conditioning or humidity control; or (iii) any person other than Supplier or its representative authorized by Supplier modifying, adjusting, repairing or servicing any deliverable.

 

11. MUTUAL INDEMNIFICATION

The breaching Party hereby indemnifies, hold harmless & undertakes to defend the non-breaching Party, its affiliates and their respective employees, officers and directors against all awarded claims including but not limited to reasonable direct damages, costs, and expenses as a result of such claim with regard to:
i. The extent that Services or any content infringes any third party’s Intellectual Property rights.

ii. Any claim on account of an alleged breach of confidentiality and security of which has occurring as a result of acts of omissions or commission directly attributable to the breaching Party.

 

12. LIMITATION OF LIABILITY

Neither Party shall have any liability to the other, with respect to its obligations under this Agreement or otherwise, for loss of goodwill, or for special, indirect, consequential or incidental damages, whether in tort or in contract, even if advised of the possibility of such damages. In any event, Supplier’s liability for any reason and upon any cause of action whatsoever arising under or out of this Agreement or in any way related to Customer shall be limited to the amount of the total fees actually paid by Customer for the Services or deliverables in question as of the date on which such cause of action accrues.

 

13. MISCELLANEOUS

a) Entire Agreement and Amendments. This Agreement is the entire agreement between the Parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only by written agreement executed by all Parties hereto.

b) Independent Contractors, Third Party Beneficiaries, and Subcontractors. The Parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate the other Party. Except if expressly stated, no third party is a beneficiary of this Agreement.

c) Governing Law and Forum. This Agreement shall be governed by the laws of the State of California, excluding both its body of law relating to conflicts of law and the United Nations Convention on Contracts for the Sale of Goods. In any legal action to enforce the terms of this Agreement, or arising out of an obligation to pay money subject to this Agreement, the prevailing party shall be awarded all court costs and reasonable attorneys’ fees incurred.

d) Assignment. This Agreement binds and inures to the benefit of the parties hereto and their respective permitted successors and assigns. This Agreement is not assignable, delegable, sublicenseable or otherwise transferable by any party in whole or in part without the prior written consent of the other party (or parties), however, Supplier shall have the right to assign or subcontract all or any part of this Agreement.

e) No Waivers, Cumulative Remedies. A party’s failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at law or in equity, are cumulative and nonexclusive.

f) Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions.

g) Notices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party.

h) Publicity. Except as required by law, no press release or other statements in connection with work performed under this Agreement intended for use in the public media, having or containing any reference to a Party shall be made by either Party without approval of the other Party. All statements, if any, by the Parties shall describe the scope and nature of their participation accurately and appropriately. Notwithstanding the above, the Supplier shall be permitted to display the Customer as a customer on its website and other corporate presentations.

 

14. CONTACT

For any questions or feedback, please contact Epictions at support@epictions.com.