Terms of Service
The Subscription Agreement (the “Agreement”) between Tagxlabs, Inc. doing business as omniX labs (“omniX”) and the customer (“Customer”) sets forth the terms governing Customer’s subscription to omniX’s image recognition application offered as software as a solution (the “Application”) as specified in the order form (the “Order Form”) that is incorporated by reference. omniX and Customer may each be referred to as a “Party”, and together as the “Parties”.
omniX and Customer hereby agree as follows:
Table of Contents:
Only the Customer designated herein shall benefit from the use of the Application. Any business units, subsidiaries, affiliates, divisions, branches, or parent entities will each need to enter into separate Order Forms, unless Customer enters into an enterprise-wide Order Form. Customer will subscribe to use the Application for the period and at the price as specified in the applicable Order Form. Only those individuals specified in the Order Form (“Authorized Individuals”) employed or contracted by the Customer, shall be permitted to access and operate the Application on behalf of the Customer.The Customer’s right to use the Application designated in each Order Form is referred to as the “Subscription”. The nature of the particular services Customer will be receiving, the territory to which the services relate, the number of cameras, technical information, pricing, and other relevant matters will be shall be set forth in the Order Form.
2.PROVISION OF, AND RIGHT TO USE, THE APPLICATION.
(a) omniX grants the Customer a non-exclusive, non-transferable right to use the Application on the terms of this Agreement in accordance with the applicable documentation and any other restrictions or conditions contained herein, solely for the Customer’s internal business purposes. omniX reserves all rights not expressly granted to Customer. If any of Customer’s business units, subsidiaries, affiliates, divisions, branches, or parent entities, other than the Customer uses or receives the benefit of the use of any Application without an enterprise Order Form, at omniX’s sole option, Customer shall pay additional license fees for each such unauthorized additional users at the rate set forth in the Order Form, or omniX may terminate the Subscription on three (3) days written notice.
(b) Customer agrees that the Subscription depends upon Customer’s camera(s) that will capture images of vehicles, individuals and/or other objects captured by the camera(s) (the “Image Subjects”), that will transmit the images via the Internet (the “Video Feed”) to omniX’s for processing and analysis by the Application pursuant to the Subscription.
(c) Customer shall be responsible, or arranging, for the installation, if not already installed, cameras capable transmitting Video Feed with sufficient resolution and clarity to enable the Application to identify and classify the Image Subjects (the “Resulting Data”).Customer shall be responsible for the connectivity to the Application, which is accessible through the internet. Customer shall provide omniX with information in an Order Form for omniX to access and receive the Video Feed (e.g., IP Addresses, Camera MAC Addresses, RTSP path, video format, resolution quality, etc.) as well as information necessary for omniX to transmit the Resulting Data to Customer
(d) The Resulting Data relating will depend upon the quality of the Video Feed .omniX will provided representative samples of Video Feed. Based on the quality of the Video Feed, omniX will identify what information can be included in the Resulting Data. In addition to the functioning and technical capabilities of the camera, such factors include such things as: weather (e.g., snow, rain, fog, etc.), the distance of the camera from the Image Subjects, the speed at Image Subjects are moving (e.g., cars on highways), changes in ambient lighting, etc. The Resulting Data will be transmitted electronically as directed by Customer on a schedule that is mutually agreed and set out in the Order Form.
(e) The Application will have an availability rate of ninety-five percent (95%).Excluded from that availability rate are scheduled maintenance and outages due conditions and circumstance external to the Application, e.g., power outages (other than power to the Application), failures of the Video Feed, disruptions of connectivity to the Application, etc. If the Application fails to satisfy that availability rate in any month, Customer shall receive a service level credit of one percent (1%) of the monthly fee for each one percent (1%) below the availability rate of ninety-five percent (95%), up to a maximum credit of five percent (5%) for the month. The credit will be calculated based on the total fee that is due for the month in which the availability rate was not satisfied, and applied to the fee for the subsequent month.
3.RESTRICTIONS ON LICENSE GRANT.
Customer will not directly or indirectly, (i) use the Application to store or transmit computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs, (ii) use the Application to store or distribute any information, material or data that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the privacy or intellectual property rights of any third party, (iii) access or use the Application for purposes of monitoring their availability, performance or functionality, or for any other benchmarking the performance, functioning or operation of the Application; or to, in any way, compete with omniX, including, without limitation, for the purpose of designing and/or developing any competitive services, (iv) make the Application available to anyone other than or use the Application for the benefit of anyone other than the Customer, (v) sell, resell, rent, lease, offer any time sharing arrangement, service bureau or any service based upon, the Application, (vi) interfere with or disrupt the integrity or performance of the Application or interfere with or disrupt the integrity or performance of any third-party data contained therein, (vii) attempt to gain unauthorized access to the Application or any associated systems or networks or (viii) modify, make derivative works of, disassemble, decompile or reverse engineer the Application or any component thereof or apply any process, technique, or procedure, or make any attempt to ascertain or derive the source code to, or otherwise access any product or other data, materials, item, system or technology owned by omniX or its licensors. Without limiting the foregoing, Customer, Customer and Authorized Individuals will not use any web crawlers, robots or other computer programs or techniques to extract content from the servers hosting the Application in any manner.If any vulnerabilities in the Application come to the attention of Customer, omniX shall be promptly notified of the details of vulnerabilities in the Application that have been discovered, for avoidance of doubt the foregoing does not create an obligation to test or search for any vulnerabilities in the Application.
Customer understands and agrees that only the individuals licensed and paid for by the Customer may access the Application by omniX . The Customer is responsible for such individuals’ access to and use of the Application, and determining the appropriate level of access to the Application.Customer and each authorized individual will maintain as personal and confidential the user identification and all passwords used to access the Application, and are prohibited from transferring or sharing such information and from revealing it to any other person that is not permitted use the Application.If, in omniX’s judgement, Customer, the Customer or any of its authorized individual use the Application in violation of this Section 4, omniX may suspend the Customer’s access to, or the use or benefit of, the Application, provided omniX promptly notifies Customer of the reason for such suspension. Customer will be liable to omniX for all damages resulting from any breach of this Section 4.
5.1 Term. The term of a Subscription shall run for the period specified in the applicable Order Form, and shall automatically renew for a like time period at the end of the initial term and each renewal term thereafter, unless Customer gives written notice of non-renewal at least ninety (90) days in advance of the then upcoming renewal term.
5.2 Termination of Agreement. Either Party may terminate this Agreement at any time there is no outstanding Subscription.
5.3 Termination for Breach. Either Party may terminate this Agreement or an Order Form following a material breach and after giving at least thirty (30) days prior written notice of the breach and such breach is not cured within such thirty (30) day period.
5.4 Termination by omniX . omniX may suspend and/or terminate this Agreement and any Order Form if Customer fails to pay in a timely manner any amount due under any Order Form.
5.5 omniX’s Right to Alter Application. Customer acknowledges and agrees that omniX may, from time to time, and at omniX’s sole discretion, without materially changing or degrading the existing features, modify, enhance and/or expand the features and functionality of the Application. omniX may discontinue the Application or elements thereof, provided that omniX will provide thirty (30) days prior notice to Customer if such changes materially and substantially degrade the existing features and functionality of the Application. In such a case, Customer may terminate each applicable Subscription by providing written notice of its election to terminate each such Subscription, at least thirty (30) days prior to the date on which the change noticed by omniX is set to occur, with such termination to be effective at the end of the expiration of the initial term or the then current renewal term.
6.1 Fees. The fees for and relating to the Subscription shall be invoiced upon execution of this agreement. If the Subscription period is more than one year the annual fee will be paid in advance of the next subscription year, and no later than the anniversary of the Subscription. The Application shall become available to the Customer upon receipt of the fee in good and collectible funds.
6.2 Additional Cameras.Customer will notify omniX by email of additional cameras providing Video Fee, along with the appropriate information for omniX to access and receive the Video Feed and transmit the Resulting Data to Customer. Such emails shall be deemed to be addendums to an outstanding Order Form.For Subscription of less than one year, for camera’s that are added during a month, omniX will bill Customer for the full month and each additional month (or part thereof) for which the Subscription continues.For Subscriptions of one year or longer, omniX will bill Customer for orders for additional cameras received after the15th of the month starting with the next month, and orders received during the first fifteen days of a month will be billed in full for that month.
6.3 Refunds. All payments, when paid, are non-cancelable, non-contingent and non-refundable, except as provided in this Agreement.
6.4 Taxes. All fees due hereunder are exclusive of all taxes. Customer is responsible for paying all taxes levied upon its use and/or purchase of the Subscription.If Customer is required to withhold or pay for sales, use, value added or other similar taxes in any jurisdiction on amounts payable to omniX, such taxes shall be paid to omniX in addition to the fee. Nothing in this paragraph shall be construed to make Customer responsible for any general income or gross receipts tax due from and chargeable against omniX.
6.5 Changes to Fees. omniX may change the fees for the Subscription upon thirty (30) days notice prior to the renewal of the Subscription.
7.INTELLECTUAL PROPERTY RIGHTS.
7.1 Property Rights. As between the Customer and omniX, and as applicable omniX’s licensors, they retain all right, title and interest in and to the Application, including all intellectual property rights embodied therein and thereto; Customer does not acquire any rights with respect to the Application or the Resulting Data, by implication or otherwise, except for those expressly granted in this Agreement. omniX grants Customer a worldwide royalty free license to use the Resulting Data solely for its internal business purposes.Customer shall not sublicense the use of any of the Resulting Data.
7.2 Customer Data. As between Customer and omniX, Customer retains all right title and interest in and to all data and information submitted and transmitted by the Customer to the Application under this Agreement (the “Customer Data”), including all intellectual property rights therein and thereto, and omniX acquires no rights with respect to the Customer Data, by implication or otherwise, except for those expressly granted in this Section 7.2. Customer hereby grants to omniX, a non-exclusive, worldwide, perpetual, royalty-free, right and license (including the right to authorize and grant sublicenses) to use, store, reproduce, distribute and display the Customer Data in connection with (i) providing the Subscription, (ii) the improvement and operation of the Application, and (iii) omniX generating and creating statistical, analytical and reference data from Customer Data in anonymized form.
7.3 Suggestions. Customer hereby grants to omniX a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Application any suggestions, enhancement requests, recommendations or other feedback related to the Application that is provided by Customer, Customer and/or its authorized individuals.
8.WARRANTIES, REPRESENTATIONS AND OBLIGATIONS OF CUSTOMER.
8.1 Customer Obligations. The Customer shall use the Application solely in accordance with this Agreement, the applicable documentation and in full compliance with all applicable laws. Customer shall also be responsible for the compliance by the Customer and the authorized individuals accessing the Application and notify omniX promptly of any unauthorized access to the Application of which Customer becomes aware.
8.2 Authority, Compliance. Customer represents and warrants that (i) Customer has the ability and authority to enter into and perform its obligations under this Agreement and (ii) Customer will not, and will not allow anyone other than the Customer and its authorized individuals to use the Application; (iii) or to allow any use in a manner in violation of this Agreement.
9.omniX WARRANTY AND DISCLAIMER.
9.1 Authority. omniX represents and warrants that omniX has the power and authority to enter into and perform its obligations under this Agreement.
9.2 Compliant with Description. omniX represents and warrants that the Application provided will substantially conform to its description provided in any Order Form. Customer’s exclusive remedy for the breach of this warranty shall be the ability to terminate the agreement in accordance with Section 5 of this Agreement.
9.3 Acknowledgment. Customer acknowledges that the Internet consists of multiple interconnected networks that are independently owned and that are not subject to omniX’s control and that omniX does not warrant the Application against failure, malfunction, or cessation of Internet services or connectivity by Internet service providers or any of the networks that make up the Internet that may make the Application temporarily or permanently unavailable.Customer further acknowledges and agrees that electronic communications and databases are subject to errors, tampering and break-ins and that, notwithstanding omniX’s implementation of the safeguards, omniX does not guarantee or warrant that such events will not take place with respect to the Application.Customer agrees that and its authorized individuals shall follow all non- excessive access and security procedures related to the Subscription provided by omniX, from time to time; and. will not attempt, nor permit anyone to attempt, to circumvent or otherwise interfere in any way with omniX’s security precautions or measures.
9.4 DISCLAIMER. omniX PROVIDES ITS APPLICATION FOR INFORMATIONAL PURPOSES ONLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. omniX MAKES NO WARRANTY OR REPRESENTATION, OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, OF ANY KIND REGARDING THE APPLICATION, INFORMATION, OR RESULTS OBTAINED THROUGH THE USE OF THE APPLICATION, OR THAT THE APPLICATION WILL MEET ANY CUSTOMER REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, AND, omniX EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. USE OF THE APPLICATION ARE AT CUSTOMER’S SOLE RISK.
9.5 CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ITS USE OF ANY INFORMATION OBTAINED THROUGH THE APPLICATION OR ITS RELIANCE UPON SUCH INFORMATION. omniX DOES NOT WARRANT THAT OF ANY INFORMATION OBTAINED THROUGH THE APPLICATION IS COMPLETE, CORRECT OR RELIABLE, OR THAT APPLICATION WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTION.CUSTOMER AGREES THAT omniX SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY. COMPLETENESS OR USEFULNESS OF ANY INFORMATION OBTAINED THROUGH THE APPLICATION, OR FOR ANY USE OF SUCH INFORMATION. Because some jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to Customer. In that event, such warranties are limited to the minimum warranty scope and period allowed by applicable law.
10.LIMITATION OF LIABILITY.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 11 AND 12, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR AN ORDER FORM AND/OR ITS OR THEIR SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND EACH PARTY’S TOTAL LIABILITY FOR ANY CAUSE OF ACTION, CLAIM, DAMAGES, FEES, COSTS OR EXPENSES SHALL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO omniX FOR THE SUBSCRIPTION TO WHICH THE LIABILITY AROSE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AT ISSUE ACCRUED. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 10 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT, IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATION OF LIABILTIY SHALL NOT APPLY TO LIABLITY FOR PERSONAL INJURY, FRUAD AND
WILFULL MISCONDUCT. Because some jurisdictions do not allow or restrict limitations of liability in certain instances, portions of the above limitation may not apply to Customer, and the limitation of liability in such case shall be to the extent allowed by applicable law.
Customer agrees to indemnify, defend, and hold harmless omniX , its directors, officers, shareholders, employees and agents, and their respective successors, assigns, estates and heirs (the “omniX Indemnified Parties”) from and against any and all causes of action, losses, liabilities, claims, damages, obligations, fees, costs, expenses (including, without limitation, reasonable legal/attorney’s fees), brought by or owing to any third-party (collectively “Claims”) and arising from or related to (i) any wrongful act or omission of Customer, or its employees and agents; (ii) any breach of the warranties set forth in Section 8 of this Agreement; and, (iii) any use by Customer in violation of the terms of this Agreement or in violation of omniX’s acceptable use polices; provided, that omniX (a) gives Customer written notice of the claim; (b) grants Customer sole control of the defense and settlement of the claim (provided that Customer may not settle any Claim unless the settlement unconditionally releases omniX of all liability); and (c) provides to Customer all reasonable assistance, at Customer’s expense.Counsel selected by Customer to defendant any such claim shall be subject to the prior approval of omniX, which approval shall not be unreasonably withheld.If Customer fails to fulfill its indemnification obligation under this Section 11, omniX we be reimbursed for all costs and attorney’s fees incurred in connection with such claims, and the enforcement of Customer’s indemnification obligation.
omniX will defend at its own expense any action brought against Customer or their directors, officers or employees (the “Customer Indemnified Parties”) by a third-party to the extent that the action is based on a Claim, suit or proceeding that the Application infringe such third-party’s patent, copyright or trademark rights (“Infringement Claim”), and omniX will pay those costs and damages (including, but not limited, to legal/attorneys’ fees) finally awarded against Customer Indemnified Parties by a court of competent jurisdiction in any such action that are specifically attributable to such Infringement Claim, or those costs and damages agreed to in a monetary settlement of such action; provided, however, that Customer provide omniX with prompt notice of the Infringement Claim, sole control of defense and settlement of that Infringement Claim, and reasonable assistance regarding such Infringement Claim. If in omniX’s judgment there may be an Infringement Claim, omniX may, at its option: (i) purchase a license to permit the continued use of the Application; (ii) modify or replace the relevant Application with non-infringing services of substantially equivalent performance within a reasonable period of time; or (iii) terminate this Agreement and the Order Form immediately and reimburse Customer for any fees paid in advance for the Subscription that will not be performed due to such termination. Notwithstanding the forgoing, omniX will have no obligation under this section or otherwise with respect to an Infringement Claim based upon: (i) any use of the Application not in accordance with this Agreement or the documentation; (ii) any use of the Application in combination with other products, equipment, software or data not supplied by omniX; (iii) any use of any form of the Application other than the most current form made available to Customer; or (iv) any modification of the Application by any person other than omniX. This Section 12 states omniX’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for Infringement Claims. omniX will not be responsible for any amounts arising out of any compromise or settlement made by Customer without omniX’s prior written consent.
13.1 Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means any information which should be considered confidential by a party exercising reasonable business judgment and that is furnished or transferred hereunder by or on behalf of such a party, (the “Disclosing Party”), to the other party (“Receiving Party”), whether such information is or has been conveyed verbally or in written or other tangible form, including, but not limited to, trade secrets and technical, financial or business information, pricing, data, ideas, concepts or know-how. Confidential Information shall not include any information that (i) is in the public domain, other than by a breach of confidentiality, (ii) was known to the Receiving Party without any limitation on use or disclosure prior to its receipt from the Disclosing Party, (iii) is received from a third party without any obligation of confidentiality, (iv) was independently developed by the Receiving Party without use or reference to or reliance on any Confidential Information of the Disclosing Party, or (v) is made generally available to third parties by the Disclosing Party without restriction on disclosure.
13.2 Use of Confidential Information. A Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than to exercise or perform its rights or obligations under this Agreement. The Receiving Party shall not disclose, disseminate or otherwise communicate, in whole or in part, the Disclosing Party’s Confidential Information to any third party without the prior written consent of Disclosing Party, except that the Receiving Party may disclose Confidential Information (1) to its agents, independent contractors, attorneys and financial advisors who are subject to a duty of confidentiality that is no less restrictive than the duty of confidentiality set forth in this Section 13 (“Representatives”), or (2) pursuant to a court order or
subpoena or other legal process (in which case the Receiving Party shall provide prompt notice of receipt of the same to the Disclosing Party (unless prohibited by applicable law) to enable the Disclosing Party to apply for appropriate protective order or other relief). The Receiving Party further agrees that it shall take reasonable precautions to safeguard the Disclosing Party’s Confidential Information from disclosure and, at a minimum, use efforts commensurate with those the Receiving Party employs for protecting the confidentiality of its own Confidential Information which it does not desire to disclose or disseminate, but in no event less than reasonable care. Promptly upon the written request of the Disclosing Party, the Receiving Party shall return the Disclosing Party’s Confidential Information (and any and all copies thereof) to the Disclosing Party.
13.3 Remedies. Receiving Party agrees that Disclosing Party may be irreparably injured by a breach of the confidentiality provisions of this Section 13 and that Disclosing Party shall be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court to prevent breaches of the confidentiality provisions of this Agreement and to enforce specifically the terms and provisions hereof in any action instituted in any court having personal and subject matter jurisdiction, in addition to any other remedy to which Disclosing Party may be entitled at law or in equity in the event of any breach of the provisions hereof. Such remedies shall not be deemed to be the exclusive remedies for a breach of the confidentiality provisions of this Agreement but shall be in addition to all other remedies available at law or in equity.
13.4 Permitted Disclosure. In addition to the above, Customer agree that omniX may disclose certain Customer data/information to the extent that omniX believes such disclosure may be necessary to: (i) comply with law or with legal processes served on omniX ; (ii) bring legal action to defend and protect the rights or property of omniX , its customers or anyone else; (iii) act under exigent circumstances to protect the personal safety of its customers or the public; or (iv) administer its network to maintain performance of the Application for its customers.
Customer agrees that omniX and its Representatives may store, use and process: (i) Customer data in connection with omniX’s provisioning of the Subscription services, including Customer account administration, maintenance and support activities, billing and invoicing, omniX’s internal customer and market analysis and reporting, and to communicate to Customer regarding products and services of omniX; and (ii) Customer billing data in connection with omniX’s provisioning of the Subscription services, including Customer account administration, billing, invoicing and payment processing.In addition, omniX shall have the right to monitor and analyze uses for purposes of improving the Application and to ascertain compliance with this Agreement.
Customer agrees that omniX may: (i) publicly list Customer as a user on its website and in its marketing materials; (ii) subject to Customer’s prior approval, publicly announce the fact that Customer is using omniX’s Application; and (iii) subject to Customer’s prior approval as to content, form and use of trademark, publish and send out materials containing Customer’s name and trademark.
16.MAINTENANCE AND MODIFICATIONS.
omniX may from time to time interrupt or otherwise impact Service for routine maintenance.
omniX shall make reasonable efforts to minimize any interruptions of the Subscription. Each Party shall provide the other Party (and revise as necessary) a list of contacts for maintenance and escalation purposes.
17.1 Relationship of Parties. The Parties to this Agreement are independent contractors, and nothing in either agreement shall create or imply an agency relationship, joint venture or partnership between omniX and Customer.
17.2 Assignment. Neither party may assign its rights and obligations under this Agreement, either in whole or in part, without the express written consent of the other party; provided however, omniX may assign such rights and obligations to an acquiring or successor entity in connection with a merger or acquisition, including the sale of all or substantially all of the assigning party’s assets.
Any assignment in violation of this subsection 17.2 shall be void.
17.3 No Waiver. No waiver of any term or condition of this Agreement shall be construed as a waiver of any other term or condition, nor shall any waiver of any default under the same be construed as a waiver of any other default. No waiver or modification of any provision hereof or any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver or modification is sought to be enforced. No delay in exercising, no course of dealing with respect to, and no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
17.4 Severability. If any provision, or portion thereof, of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination shall not impair or affect the validity, legality or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereof, is hereby declared to be separate, severable and distinct and the Parties shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the Parties had the stricken provision remained.
17.5 Amendment. No amendment, modification, change or discharge of this Agreement shall be valid unless in writing and signed by both Parties.
17.6 Survival. The respective rights and obligations of the Parties hereunder shall survive the expiration or termination of this Agreement, regardless of the reasons for its expiration or termination, if they should by law or by their nature ordinarily be deemed to survive. Without limiting the foregoing, the provisions of Sections 7, 9 - 13, 15 and 17 shall survive any termination or expiration of this Agreement
17.7 Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, act of terrorism, act of cyber-warfare, act of war, labor dispute, act of God or any other cause or causes beyond the control of either party, that party shall be excused from such performance to the extent that it is prevented, hindered or delayed by such cause or causes. If such hindrance persists for a period of thirty (30) days or more, then either party shall have the right to terminate each applicable Subscription without penalty and/or liability.
17.8 Review by Counsel. The Parties have each had the opportunity to have legal counsel fully review and explain the legal and practical effect of this Agreement and with the knowledge of such advice, if any, and an understanding of the effect of this Agreement, the Parties hereto sign the same voluntarily.
17.9 Counterparts. Each Order Form, and by extension, this Agreement, may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
17.10 Notices. All notices, due under the terms of this Agreement shall be given in writing and sent by registered mail, reputable express courier service, or shall be delivered by hand to the addresses specified in the Order Form.
17.11 Dispute Resolution; Choice of Law; Venue.
The Parties shall negotiate in good faith and attempt to resolve any good faith dispute within thirty (30) days after the date that a Party gives written notice of such dispute to the other Party.In the event that the Parties are unable to reach an agreement within such thirty (30) day period (or such longer period as the Parties may agree) then either Party may initiate mediation.
If, after such negotiation, the dispute remains unresolved, either Party may require that a non-binding mediation take place. In such mediation, representatives of the Parties with authority to resolve the dispute shall meet for at least three (3) hours with a jointly selected mediator. If the Parties are unable to agree on a mediator, then either Party is hereby empowered to request the American Arbitration Association (“AAA”) to appoint a mediator. The mediator's fee and expenses shall be paid one-half by each Party. If the Parties fail to reach a resolution within thirty (30) days of initiating mediation, then the Parties shall resolve the dispute by arbitration. This Agreement and any dispute relating to it shall be governed by the laws of the State of New York.
Any dispute arising out of this Agreement shall be submitted to an arbitrator in a mutually agreeable location in the New York City Metropolitan area, USA.If the Parties cannot mutually agree on an arbitrator within sixty (60) days of written demand for arbitration, then either of the Parties may submit the dispute to the AAA for arbitration according to the Commercial Arbitration Rules of the AAA, and the AAA shall administer the binding arbitration. Judgment upon the award may be entered in any court having jurisdiction thereof. The arbitrator's award shall be detailed and set forth both as the legal and factual basis of the award. This agreement to arbitrate will be specifically enforceable by any court with jurisdiction thereof. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING IN ANY DISPUTE AND FOR ANY COUNTERCLAIM IN ANY WAY RELATED TO THIS AGREEMENT.
17.12 Entire Agreement. This Agreement constitutes the complete and exclusive statement of all mutual understandings between the Parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
17.13 No Third Party Beneficiaries. The Parties do not intend to create any third-party beneficiaries of this Agreement, and nothing in this Agreement is intended, nor shall anything herein be construed to create any rights, legal or equitable, in any person other than the Parties to this Agreement.