Modified February 12, 2019
1.1 “Account” means a moderator dashboard on the Platform that enables Account Owner to manage permissions for Account Users, Teams, Team Owners, Team Users and provides Account Owner access to Account Users on such Account’s Roster.
1.2 “Account Identity” means the branded identity of an Account on the Platform.
1.3 “Account Owner” means a person that sends Content Suggestions to Account Users on such Account’s Roster.
1.4 “Account Post” means a Content Suggestion publicly shared by an Account User on a Social Channel.
1.5 “Account User” means a person who receives Content Suggestions from an Account Owner for one or more Social Channels.
1.6 “Content Suggestion” means content provided by an Account Owner or Team Owner to an Account User or Team User on such Account Owner or Team Owner’s Roster for such Account User or Team User to consider sharing on one or more Social Channels.
1.7 “Deliverables” means all documents, reports, analyses, work product and other tangible materials that are created specifically for and delivered to Customer in connection with the performance of the Services, including any items identified as such in a Scope of Work.
1.8 “Platform” means the social media content posting tool and services offered by Opendorse through its online platform located at www.opendorse.com.
1.9 “Post” means a Content Suggestion publicly shared by an Account User or Team User on a Social Channel.
1.10 “Roster” means those Account Users or Team Users who have accepted an invitation from an Account Owner or Team Owner to receive content suggestions from such Account Owner or Team Owner.
1.11 “Scope of Work” means each Scope of Work entered into by the parties, an example of which is attached hereto as Exhibit A and incorporated herein by this reference.
1.12 “Services” means managed marketing services provided by opendorse pursuant to a Scope of Work, to include User Services, Campaign Services and/or Content Services.
1.13 “Social Channel” means a social account supported by the Platform now or in the future, including, but not limited to, Instagram, Facebook, and Twitter.
1.14 “Sponsored Post” means a Post that contains disclosure to comply with FTC Rules as defined in Section 4 below.
1.15 “Team” means a dashboard on the Platform that enables Team Owner to manage permissions for Team Users and provides Team Owner access to Team Users on such Team’s Roster.
1.16 “Team Identity” means the branded identity of a Team on the Platform.
1.17 “Team Owner” means a person that sends Content Suggestions to Team Users on such Team’s Roster.
1.18 “Team Posts” means a Content Suggestion publicly shared by a Team User on a Social Channel.
1.19 “Team User” means a person who receives Content Suggestions from a Team Owner for one or more Social Channels.
2. PLATFORM AND SUPPORT
2.2 Through the Customer’s account, during the Term, Customer is authorized to grant access to the Platform, subject to any limitations specified in the Master Subscription Agreement Order Form (“Order Form”), including limitations on the number of Accounts, Account Owners, Account Posts, Account Users, Teams, Team Owners, Team Posts and Team Users if any. Customer shall be required to pay additional fees for use in excess of the Subscription limits at the rates designated on the Order Form or as otherwise required by Opendorse, if not specified.
2.3 The number of Account Posts and Team Posts allotted to Customer’s Subscription on the Order Form shall reset at the end of the Initial Subscription Term (as noted on the Order Form) and each renewal term. At the end of the Term, any unused Account Posts or Team Posts shall be forfeited; however, if this Agreement is automatically renewed pursuant to Section 10.1 below, any unused Account Posts or Team Posts at the time of renewal will roll over to the renewal term and be available to Customer in addition to the number of Account Posts or Team Posts allocated to Customer’s Subscription for the renewal term.
2.4 If Customer and Opendorse indicate on the Order Form for Opendorse to perform any optional “Services” under such heading on the Order Form, Opendorse shall perform or obtain from others such Services at rates provided in the Order Form and outlined in a Scope of Work.
2.5 At the sole discretion of Opendorse, the Platform may be modified from time to time. Such updates will not trigger any changes to the fee structure unless otherwise agreed to by the parties hereto.
3. IDENTITIES; PERMISSIONS
3.1 Account Identities and Team Identities are fixed and may not be changed without the written consent of Opendorse, which consent may be granted or withheld in Opendorse’s sole discretion.
3.2 Customer acknowledges and agrees that Account Owners shall have permissions to invite Team Users to a Team’s Roster, assign Account Users to a Team’s Roster, send Content Suggestions to Team Users, view Content Suggestions sent by Team Owners, and view Team Posts through their Account. Such permissions shall be as further described and enabled on Account Owner’s administrative dashboard on the Platform.
4. CONTENT SUGGESTIONS
When Owner uploads a Content Suggestion to the Platform, Owner represents and warrants that (1) Owner or Customer owns or has rights to use the Content Suggestion, (2) the posting of the Content Suggestion by a User as a Post does not and will not violate any rights of any person or entity, and (3) the Content Suggestion, when posted by a User, complies with all applicable laws and regulations, including but not limited to, Section 5 of the Federal Trade Commission Act and the Federal Trade Commission’s Endorsement Guidelines (the “FTC Rules”). Customer agrees to indemnify and hold Opendorse and the Users harmless from and against any and all fines and penalties resulting from a violation of the FTC Rules.
5.1 opendorse shall provide the Services referenced in the Order Form to Customer as described in more detail in each Scope of Work in accordance with the terms and conditions of this Agreement.
5.2 opendorse shall not be obligated to provide Services until a Scope of Work has been approved by both parties in accordance with this Agreement, and each Scope of Work is hereby incorporated into this Agreement by this reference; provided that any term of this Agreement may be amended with respect to the Services provided under any individual Scope of Work by the terms of such Scope of Work.
5.3 Customer shall:
(a) cooperate with opendorse in all matters relating to the Services and appoint and, in its reasonable discretion, replace a Customer employee to serve as the primary contact with respect to this Agreement (or any individual Scope of Work) and who will have the authority to act on behalf of Customer with respect to matters pertaining to this Agreement;
(b) respond promptly to any opendorse request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for opendorse to perform Services in accordance with the requirements of this Agreement;
(c) provide such materials as opendorse may request, in order to carry out the Services, in a timely manner, and ensure that it is complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable Law in relation to the Services, in all cases before the date on which the Services are to start.
5.4 If opendorse’s performance of the Services under this Agreement is prevented or delayed by any act or omission of Customer, or their agents, subcontractors, consultants or employees, opendorse shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. RESTRICTIONS AND RESPONSIBILITIES
6.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure or algorithms of the Platform or the underlying software (“Software”); modify, translate, or create derivative works based on the Platform or Software (except to the extent expressly permitted by Opendorse or authorized within the Platform); use the Platform or Software for the benefit of a third party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Opendorse hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Platform.
6.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Platform or Software, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
6.3 Each party represents, covenants, and warrants that its performance under this Agreement, including but not limited to any use of the Platform, will be in compliance with all applicable laws and regulations. Each party hereby agrees to indemnify and hold harmless the other party against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing by the indemnifying party. Although Opendorse has no obligation to monitor Customer’s use of the Platform, Opendorse may do so (subject to the provisions of Section 8) and may prohibit any use of the Platform it believes may be (or alleged to be) in violation of the foregoing.
6.4 Customer represents, warrants and covenants that it and its authorized users have and will have the legal right to possess, store and transmit all Customer Data (as defined below) stored on and transmitted through the Platform.
6.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent (except those uses by Opendorse).
7. INTELLECTUAL PROPERTY AND RELATED RIGHTS
7.1 Except as otherwise set forth herein, Opendorse and its subcontractors and licensors are the sole and exclusive owners of all rights and interests in all (a) patents, patent applications; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights or moral rights; (d) trade secrets, know-how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether patentable or unpatentable; (e) all other intellectual, industrial, and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing (collectively “Intellectual Property”) and other proprietary rights and interests in and to the Platform and Software and any documentation or data related thereto. Opendorse shall own and retain all right, title and interest in and to (1) all improvements, enhancements or modifications to the Platform or Software, (2) any software, applications, inventions or other technology developed by Opendorse in connection with Additional Services or support, and (3) all Intellectual Property rights related to any of the foregoing. Customer acknowledges and agrees that Customer does not have, or acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease or other right or interest in or with respect to the Platform or any Intellectual Property in or to the Platform or Software other than as expressly provided in Section 7.3.
7.2 Subject to Customer’s compliance with the terms and conditions of this Agreement, including Customer’s payment of the Subscription Fees (as hereinafter defined), Opendorse hereby grants to Customer a limited, nonexclusive, non-transferable, non-sublicensable right during the Term to run, and permit up to the authorized number of Account Owners to use the Platform and the Software in accordance with the terms of this Agreement and Opendorse’s Terms of Services.
7.3 Notwithstanding anything in Section 7.1, Customer and its subcontractors and licensors shall own all right, title and interest in and to (a) any Intellectual Property existing prior to the effective date of this Agreement that was owned or developed by Customer or its licensees or subcontractors, (b) anything developed by Customer independent of its relationship with Opendorse, (c) Content Suggestions or other data uploaded through the Platform by Customer or otherwise provided to Opendorse in the course of using the Platform, including all Intellectual Property rights therein, provided to Opendorse as part of the Platform or through use of the Software, or (d) any other data or documents uploaded to the Platform by Customer, or one of Customer’s authorized users, (collectively, the “Customer Data”). The parties acknowledge and agree that, at all times, Opendorse is not and shall not be, the rightful owner of Customer Data, and shall not use Customer Data, except as expressly permitted by this Agreement, required by law, required to provide the services offered on the Platform to Customer or as otherwise authorized by Customer in writing.
7.4 Specifically subject to the provisions of Sections 7.3 and 8, Opendorse shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Platform, Software, and related systems and technologies (including, without limitation, anonymous and aggregated information concerning use of Customer Data in the Platform), and Opendorse will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Opendorse offerings, (ii) disclose such data solely in aggregate or other de-identified form in connection with its business, and (iii) share such data with any Permitted Parties. No rights or licenses are granted in the Customer Data except as expressly set forth herein.
7.5 Customer authorizes Opendorse to include the name and logo of Customer as a representative customer of the Platform, including display of the Customer’s name and logo on Opendorse’s website and in its marketing materials, provided that Customer may withdraw this authorization at any time in general or in any particular instance. Customer authorizes Opendorse to include representative works of Customer’s activity on the Platform in marketing materials and case studies.
8.1 Pursuant to this Agreement, each party (“Receiving Party”) may, from time to time, learn, receive, hold, or have access to (in written, oral or electronic form) Confidential Information from the other party (“Disclosing Party”). “Confidential Information” means any information, technical data, or know-how, whether or not a statutory “trade secret” of the Disclosing Party, including, but not limited to, that which relates to research, product plans, Intellectual Property, products, services, customers, employees, documents, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, or finances of the Disclosing Party. Confidential Information shall include, without limitation, the terms and conditions of this Agreement and all Customer Data other than Content Suggestions. The foregoing notwithstanding, Confidential Information shall not include any information which: (i) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; (iii) is obtained by the Receiving Party from a third party who has the right to disclose the same, or (iv) is independently derived by Receiving Party without recourse to any of the Confidential Information.
8.2 During the Term and at all times thereafter, the Receiving Party shall protect any Confidential Information received from the Disclosing Party: (i) by limiting use and disclosure of the same to its employees, and/or authorized agents or independent contractors to the extent necessary for them to perform the Receiving Party’s obligations in this Agreement; and (ii) by exercising reasonable care to prevent unauthorized use or disclosure, which shall in no event be less than the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure
8.3 Notwithstanding the foregoing, either party may disclose Confidential Information received hereunder: (i) pursuant to a mandatory discovery request, disclosure requirement, subpoena, court order or other order of a court, tribunal or government agency received by a party, in each case, only after the party receiving same has given prompt written notice thereof to the Disclosing Party; or (ii) to the Receiving Party’s own legal counsel or independent accountant who have a need to know such Confidential Information. In each of (i) and (ii) of this paragraph, the Receiving Party shall (a) consult with the Disclosing Party prior to the disclosure of any Confidential Information, and (b) cooperate in good faith with the Disclosing Party, at the Disclosing Party’s expense, with any reasonable effort to resist the production of Confidential Information, including obtaining a protective order or defending a motion to compel the production of Confidential Information.
9. PAYMENT OF FEES
9.1 Customer will pay Opendorse the then applicable fees described in the Order Form for access to the Platform and Additional Services provided in accordance with the terms of this Agreement, in accordance with the terms in the Order Form (the “Fees”). If Customer’s use of the Platform exceeds any Subscription Limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Opendorse reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Subscription Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Opendorse has billed Customer incorrectly, Customer must contact Opendorse no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Opendorse’s customer support department.
9.2 Opendorse may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Opendorse thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Customer’s access to the Platform. Customer shall be responsible for all taxes associated with the Platform and Additional Services other than U.S. taxes based on Opendorse’s net income.
9.3 Opendorse may choose to require Customer to maintain a valid and active payment method on file with Opendorse. If Customer links a payment method to Customer’s account, Customer authorizes Opendorse to collect fees due hereunder from the linked payment method in accordance with the terms hereof.
10. TERM AND TERMINATION
10.1 Subject to earlier termination as provided below, this Agreement is for the Initial Subscription Term specified in the Order Form. If the Initial Subscription Term is for 12 months or greater, the Agreement shall be automatically renewed for additional periods of the same duration as the Initial Subscription Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
10.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice (or without notice in the case of nonpayment), (a) if the other party materially breaches any of the terms or conditions of this Agreement (and, to the extent curable, fails to cure such breach within 30 days of the non-breaching party providing notice to the breaching party of such breach), (b) if the other party files a voluntary petition in bankruptcy or has an involuntary petition in bankruptcy filed against it, (c) if the other party is declared insolvent, makes an assignment for the benefit of creditors, appoints a receiver, conservator, or trustee to operate its business, or liquidates all or substantially all of its business assets, or the equivalent of any of the foregoing, or (d) in its performance hereunder, the other party recklessly or willfully violates applicable law.
10.3 Customer will pay in full for access to the Platform provided in compliance with this Agreement up to and including the last day on which access to the Platform is provided. Customer Data is preserved for the lifetime of Customer’s account unless intentional action is taken by an authorized user to delete information from the system. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
11. WARRANTY AND DISCLAIMER
Opendorse shall use reasonable efforts consistent with prevailing industry standards to maintain the Platform in a manner which minimizes errors and interruptions in the access to and operation of the Platform and shall perform the Additional Services in a professional and workmanlike manner. Opendorse further represents and warrants that the Platform and Software, including Customer’s use thereof, do not and will not infringe any United States patent, copyright, trademark, service mark or other Intellectual Property right of any third party. The Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Opendorse or by third-party providers, or because of other causes beyond Opendorse’s reasonable. HOWEVER, EXCEPT AS OTHERWISE SET FORTH HEREIN, OPENDORSE DOES NOT WARRANT THAT THE PLATFORM WILL BE ERROR FREE OR THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE PLATFORM AND ADDITIONAL SERVICES ARE PROVIDED “AS IS” AND OPENDORSE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR (A) BODILY INJURY OF A PERSON, (B) LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (C) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, NEITHER OPENDORSE, NOR ANY OF ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, SHALL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (i) FOR ERROR OR INTERRUPTION OF USE, (ii) FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (iii) FOR ANY INDIRECT OR NON-OBJECTIVELY MEASURABLE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. EXCEPT FOR (i) BODILY INJURY OF A PERSON, (ii) LIABILITY ARISING FROM GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (iii) LIABILITY ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL OPENDORSE’S TOTAL LIABILITY TO CUSTOMER UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID TO OPENDORSE BY CUSTOMER UNDER THIS AGREEMENT FOR THE 12 MONTH PERIOD PRIOR TO THE DATE OF THE CLAIM, IN EACH CASE, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.1 Subject to the limitations set forth in Section 12, Opendorse shall indemnify, defend and hold Customer harmless from and against any and all third party claims, losses, damages, suits, fees, judgments, costs and expenses (collectively, “Claims”) which arise out of or relate to a claim brought or sanction sought arising from allegations by third parties alleging that the Platform, Software or other services provided by Opendorse hereunder in accordance with this Agreement infringe any Intellectual Property right of any third party.
13.2 Customer shall indemnify and hold Opendorse and its employees, agents, representatives, officers, directors, and affiliates harmless from and against any all Claims which arise out of or relate to a claim brought or sanction sought arising from allegations by third parties alleging that a Content Suggestion violates any rights of any third party.
13.3 Subject to the limitations set forth in Section 12, each of Opendorse and Customer agrees to indemnify, defend, and hold harmless the other from and against any and all Claims which arise out of or relate to a claim brought or sanction sought by a third party as a result of any breach by it of this Agreement.
13.4 Promptly upon receipt by a person or entity entitled to indemnification under Sections 13.1 or 13.2 (for purposes of this Section 13.3, an “Indemnitee”) of notice of a third-party claim, the Indemnitee shall give written notice to the party from whom indemnification is sought pursuant hereto (for purposes of this Section 13.3, the “Indemnitor”). The Indemnitor will be required to defend such claim, and the Indemnitee will have the right to approve the counsel selected by Indemnitor to defend such claim. Furthermore, to assume the defense of such claim, the Indemnitor shall first have acknowledged in writing to the Indemnitee the Indemnitor’s obligation to indemnify the Indemnitee for the matter in accordance with this Agreement in accordance with Section 13.1 or 13.2 and provided reasonable proof of the Indemnitor’s ability to defend and pay the defense costs and claim amount. In the absence of such assurance in writing, the Indemnitee shall retain the right, but not the duty, to control the defense of such claim, without prejudicing in any way its right to recover damages in accordance with this Agreement. As soon as reasonably practicable, the Indemnitee will provide the Indemnitor with reasonable assistance and information required for the defense and/or settlement of the claim. If the Indemnitor fails to assume the defense of any third-party claim within the reasonable period of time, then the Indemnitee may assume the defense of any such third-party claim at the cost and expense of Indemnitor, subject to any limitations set forth in this Agreement. In any event, the Indemnitee shall have the right to participate in the defense of any claim for which it is requesting indemnification hereunder with its own counsel and at its own cost. Neither party shall settle a claim that imposes obligations on, or restricts the operations of, the other party without the written consent of such other party, which consent shall not be unreasonably withheld or delayed.
13.5 If the Platform or Software is, or in Opendorse’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property right, or if Customer’s use of the Software or Platform is enjoined or threatened to be enjoined, Opendorse may, at its option and sole cost and expense, (a) obtain the right for Customer to continue to use the Software and Platform materially as contemplated by this Agreement; (b) modify or replace the Software or Platform, in whole or in part, to make the Software or Platform non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software or platform will constitute Software or the Platform hereunder; or (c) terminate this Agreement, in in its entirety or with respect to the affected part or feature of the Platform, effective immediately on written notice to Customer, in which event: Opendorse shall promptly refund to Customer, on a pro rata basis, the share of any subscription fees prepaid by Customer for the future portion of the Term that would have remained but for such termination.
13.6 This Section 13 sets forth Customer’s sole remedies and Opendorse’s sole liability and obligation for any actual, threatened or alleged claims that this Agreement or any subject matter hereof (including the Platform and Software) infringes, misappropriates or otherwise violates any Intellectual Property rights of any third party.
14. DISPUTE RESOLUTION
14.1 All questions in dispute under this Agreement shall be submitted to mediation. On the written notice of either party to the other of the election to submit any dispute under this Agreement to mediation, each party shall designate their representatives and shall meet within ten (10) days after the service of the notice. The parties themselves shall then attempt to resolve the dispute within ten (10) days of meeting. Should the parties themselves be unable to agree on a resolution of the dispute, then the parties shall appoint a third party who shall be a competent and impartial party and who shall be acceptable to each party, to mediate the dispute. Any third-party mediator shall be qualified to evaluate the performance of both of the parties, and shall be familiar with the Company’s business. The third party shall meet to hear the dispute within ten (10) days of their selection and shall attempt to resolve the dispute within fifteen (15) days of first meeting. Each party shall pay the fees and expenses of the third-party mediator and such costs shall be borne equally by both parties.
14.2 opendorse and Customer acknowledge that from time to time, there may be conflicts, disputes and/or disagreements between them, arising out of or relating to the Platform, or this Agreement (hereinafter collectively referred to as “Disputes”) which may not be resolved through mediation. Therefore, opendorse and Customer agree that all Disputes shall be resolved by binding arbitration or litigation at the sole discretion and choice of Opendorse. If Opendorse chooses arbitration, the arbitration proceeding shall proceed in accordance with the Commercial Arbitration Rules of the AAA.
If Opendorse chooses arbitration or litigation, either may be commenced at any time prior to or after Customer’s access to the Platform has been terminated hereunder, provided that if arbitration or litigation is commenced prior to the expiration or earlier termination of this Agreement, the obligations of the parties under the terms of this Agreement shall not be altered by reason of the arbitration or litigation being conducted. Any arbitration hearings or litigation shall take place in Lincoln, Nebraska, the location of Opendorse’s home office.
The prevailing party in any arbitration or litigation relating to any Dispute shall be entitled to recover from the other party those reasonable attorney fees, costs and expenses incurred by the prevailing party in connection with the Dispute.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Opendorse’s prior written consent. Nothing herein shall prevent Opendorse from employing such subconsultants and other subcontractors as Opendorse may deem appropriate to assist in the performance of services under this Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by e-mail (with confirmation of transmission); the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Nebraska without regard to its conflict of laws provisions. The terms that expressly survive termination of this Agreement or that, by their nature, will not be fully performed during the Term, including but not limited to Sections 7, 8, 10, 12, 13 and this Section 15, shall survive the termination or expiration of this Agreement.