The below terms of service (these “Terms”), apply to marketing, consulting, content creation, and other services provided by Defiance Analytics LLC, a Delaware limited liability company (“Defiance”) to any client (“Client”) pursuant to any proposal, order, statement of work, or other description of services that references these Terms. Any of the foregoing documents describing services to be provided by Defiance to Client (“Services”) and compensation to be paid to Defiance for such Services is hereinafter referred to as a “Service Statement” and references below to “this Agreement” refer to an agreement (in each case) between Defiance and Client that includes the provisions of such a Service Statement as well as these Terms, as incorporated into the Service Statement by reference. In addition, Defiance and Client are each referred to below individually as a “Party” and collectively as the “Parties”.
In the event of any conflict between a Service Statement and these Terms, the Service Statement will control. Any modification to a Service Statement requires mutual agreement in writing by Client and Defiance to be effective. However, Defiance may modify any of these Terms at any time, in its sole discretion. Defiance will notify Client of any changes to these Terms that materially modify Client’s rights or obligations (“Material Modifications”) by Notice in accordance with Section 10.3 below. Any Material Modifications will be effective unless Client objects in writing within 10 business days of receipt of such notice. If Client timely objects to a Material Modification in writing, then Defiance may, in its discretion, either (a) decline to apply the Material Modification to the Terms as applied to Client or (b) terminate the Services and the applicable Agreement with Client upon at least 30 days’ prior written notice.
1. Defiance Services and Responsibilities.
1.1 Defiance Services. Defiance shall use commercially reasonable efforts to provide the Services to Client.
1.2 Defiance Personnel. Defiance shall be responsible for the payment of all compensation owed to the employees and contractors engaged by Defiance to provide the Services (“Defiance Personnel”), including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
1.3 Compliance with Laws. Defiance shall comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder. Without limiting the generality of the foregoing, each party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits materially necessary to conduct its business relating to the exercise of its rights and the performance of its obligations under this Agreement.
2. Client Obligations and Responsibilities.
2.1 Client shall:
(a) Provide copies of or access to Client’s information, documents, samples, products, logos, graphics, or other material as Defiance may require in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects; and
(b) Respond promptly to any Defiance request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Defiance to perform the Services in accordance with the requirements of this Agreement. Successful completion of the Services and meeting applicable deadlines are contingent upon Client’s timely provision of information or materials requested by Defiance. Defiance shall have no liability for any inability to provide Services to the extent caused by Client’s failure to provide such necessary information or materials, or failure to obtain and maintain any consents reasonably necessary from third parties for Defiance to perform its obligations hereunder.
(c) Client will not be relieved of any obligation to pay fees to Defiance for Services that were delayed or could not be performed due to Client’s failure to discharge its obligations under this Agreement.
2.2 Acceptance of Work.
(a) For the purposes of this Agreement, any Deliverable (as defined below) provided to Client under this Agreement (either partially or in full) will be considered accepted (an “Acceptance”) by Client upon Client’s written confirmation of Acceptance or if Client does not specify a valid reason in writing to Defiance for not accepting the Deliverable within three business days of Client’s receipt thereof. Further, if after Acceptance of any Deliverable in accordance with this Section 2.2, Client requests revisions to such Deliverable, Defiance and Client will agree upon the appropriate compensation for such revisions in a revised Service Statement or as otherwise mutually agreed.
3. Intellectual Property Rights; Ownership.
3.1 License to Certain Client Intellectual Property.
(a) For purposes of this Agreement, (i) “Client Materials” means all information, documents, samples, products, images, logos, data, or other material provided by Client to Defiance or any Third Party Service Provider in connection with the Services and (ii) “Intellectual Property Rights” means all trade secrets, trademarks, service marks, domain names, copyrights, patents, database rights, and other rights in intellectual or intangible property.
(b) Subject to and in accordance with the terms and conditions of this Agreement, Client grants Defiance and its affiliates and Third Party Service Providers a limited, non-exclusive, and royalty-free license under all applicable Intellectual Property Rights to use Client Materials solely to provide the Services to Client.
(c) Except for the license granted above, Client expressly reserves all right, title, and interest in and to all Client Materials. Any goodwill arising from the use hereunder by Defiance or any Third Party Service Provider of any trademarks, service marks, or other indicia of origin owned or licensed by Client shall inure to the benefit of Client.
3.2 Ownership of and License to Deliverables.
(a) Provided that Client shall have paid to Defiance any and all amounts due under this Agreement, and subject to Defiance’s rights in and to the Defiance IP, as set forth in Section 3.2(b), and the except for the Third-Party Materials, Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to all documents, work product, services, deliverable and other materials that are delivered to Client hereunder by or on behalf of Defiance developed or created in the course of performing the Services, including all Intellectual Property Rights therein (collectively, the “Deliverables”). Defiance acknowledges that Client shall own the copyrights in such Deliverables as a “work made for hire” for Client. To the extent any Deliverables nonetheless do not constitute a “work made for hire,” Defiance agrees to, and by way of present assignment hereby does, assign to Client all right, title, and interest in and to the Deliverables. At Client’s expense, Defiance shall execute such documents and take such other steps as may be necessary and reasonably requested by Client to assign, perfect, register, or enforce the rights assigned to Client in this paragraph.
(b) Notwithstanding anything to the contrary, Client acknowledges and agrees that Defiance has licensed, acquired, or developed prior to the commencement or independently of this Agreement, and is continually developing and refining, proprietary information, which may include, without limitation, ideas, concepts, frameworks, data, know-how, methodologies, analytical approaches, databases, business insights, products, software, algorithms and descriptions thereof, which may be embodied in many forms of media (collectively, the “Defiance IP”), which Defiance IP Defiance will be using in the course of providing the Services. Defiance and its Affiliates and licensors (as applicable) are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Defiance IP. Notwithstanding anything to the contrary, as between the Parties, all Defiance IP and all modifications, derivative works, and enhancements thereto made during the course of engagement with Client shall remain the sole and exclusive property of Defiance. Subject to Client’s obligation to pay for the Services provided hereunder, Defiance hereby grants Client a perpetual, limited, royalty-free, non-transferable (except in accordance with Section 10.9), non-sublicensable license to use, reproduce, distribute, transmit, and modify (including to create derivative works) any Defiance IP solely to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables, in each case solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables. All other rights in and to the Defiance IP are expressly reserved by Defiance. Defiance retains the right to use any general market research that it develops or collects in the course of this Agreement.
(c) In the course of providing the Services, Defiance may use certain third-party materials that are not proprietary to Defiance (collectively, the “Third-Party Materials”). Defiance hereby grants Client a perpetual, limited, royalty-free, non-transferable (except in accordance with Section 10.9), non-sublicensable license to use the Third-Party Materials to the extent incorporated in, combined with or otherwise necessary for the use of the Deliverables, in each case solely to the extent reasonably required in connection with Client’s receipt or use of the Services and Deliverables; provided, however, that the foregoing license will be subject to any additional terms, conditions, or limitations that may notified to Client by Defiance or the owner or licensor of such Third-Party Materials.
(d) Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to Client or any third party any Intellectual Property Rights in the Defiance IP or Third-Party Materials by implication, waiver, estoppel, or otherwise.
3.3 Client hereby grants Defiance a limited, royalty-free right and license to display the following on Defiance’s website, digital platforms, portfolio sites, social media, and other marketing channels, including presentations to prospective third party clients: (a) copy and other marketing content included in any Deliverables, (b) Client’s name and logo, and (c) a reasonable characterization of the results achieved by Client through use of the Services. For clarity, the foregoing will not give Defiance the right to share any Confidential Information of Client, including Client’s advertising budget.
4. Fees and Expenses; Payment Obligations.
4.1 Fees and Expenses.
(a) In consideration of the provision of the Services and the rights granted to Client under this Agreement, Client shall pay Defiance the fees set forth in each applicable Service Statement;
(b) Client shall pay Defiance for all necessary and foreseeable expenses, including travel, shipping costs, advertising, marketing spend and other costs incurred by Defiance in connection with and in furtherance of the performance of the Services that have been approved in advance by Client.
(c) Defiance shall issue invoices to Client in advance for amounts payable to third parties in connection with any marketing campaign, including for media placements. Client expressly understands, acknowledges and agrees that Defiance shall not be required to make any such payments unless and until Defiance has received the corresponding amounts from Client, and Defiance will not be liable for any media placements or other opportunities that are lost or forfeit due to late payment.
(d) Client shall be responsible for any and all costs and expenses that may be reasonably incurred as a result of any legal compliance requirements in connection with the Services provided hereunder, including but not limited to such costs and expenses charged by Client’s distributor.
4.2 Payment. Client shall pay all invoiced amounts to Defiance within seven (7) days after Client’s receipt of such invoice.
4.3 Taxes. All fees and other amounts payable by Client under this Agreement are exclusive of sales, use, value-added, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts payable. Client shall be solely responsible for the payment of any such amounts (excluding, for clarity, taxes imposed on Defiance’s net income or gross receipts).
4.4 Invoice Disputes. Client shall notify Defiance in writing of any dispute with an invoice (along with substantiating documentation) within seven (7) days from the date such invoice is received by Client. Client shall be deemed to have accepted all invoices for which Defiance does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in Section 4.2. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
4.5 Late Payments. Except for invoiced payments that Client is disputing under Section 4.4, Client shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of one and a half percent (1.5%) per month or the highest rate permissible under applicable law (the “Late Fee”). In addition to the Late Fee, Client shall also reimburse Defiance for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
4.6 Direct Buys. Any Direct Buys negotiated by Defiance will be executed by Defiance based on the Client’s prior approval in writing via email. Once the Client approves, the Direct Buy is binding to the Client. Defiance will never incur any cancellation penalty should the Client wish to cancel after approving the Direct Buy expense.
5. Representations and Warranties.
5.1 Defiance hereby expressly represents and warrants to Client that, to the knowledge of Defiance, none of the Services, Deliverables, or Client’s use thereof infringes or will infringe upon any Intellectual Property Rights of any third party, excluding any infringement or claim, litigation or other proceedings to the extent arising out of (i) any Client Materials or any instruction, information, designs, specifications, or other materials provided by Client to Defiance, (ii) use of the Deliverables in combination with any materials or equipment not supplied or specified by Defiance, if the infringement would have been avoided by the use of the Deliverables not so combined, and (iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Defiance. Defiance’s sole liability and Client’s sole and exclusive remedy for Defiance’s breach of this Section 5.1(C) are Defiance’s obligations and Client’s rights under Section 6.2
5.2 Client hereby expressly represents and warrants to Defiance that:
(a) it owns, or has license to permit Defiance to use, as contemplated hereunder, all Client Materials;
(b) none of the Client Materials or Client’s or Defiance’s use thereof infringes or will infringe upon any Intellectual Property Rights of any third party, and, as of the date hereof, there are no pending or to Client’s knowledge, threatened, claims, litigation, or other proceedings pending against Client by any third party based on an alleged violation of such Intellectual Property Rights; and
(c) the Client Materials and other information furnished by Client to Defiance will not contain any untrue statement of a material fact, or omit any material fact necessary to make the statement therein not false or misleading.
5.3 Client expressly understands, acknowledges and agrees that although certain of the Services may involve Defiance providing assistance to Client in formulating certain business and marketing strategies, including with respect to Client’s Intellectual Property Rights (collectively, “Client Actions”): (a) Defiance does not offer any legal advice, recommendations or counseling in connection with any legal matter, under any circumstances, and nothing Defiance does and no element of the Services should be construed as such; (b) Client shall ultimately decide whether or not to take any and all Client Actions; (c) Client shall at all times be fully responsible and liable for fulfilling and complying with any and all obligations, duties, restrictions and/or other requirements imposed by any Client Actions including, without limitation: (i) payment obligations arising in connection therewith; and (ii) any and all legal and/or regulatory requirements associated therewith; and (d) Defiance shall have no obligation or liability to Client in connection with any such Client Actions under any circumstances.
5.4 NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 5, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE), AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 5. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, DEFIANCE MAKES NO WARRANTY THAT THE MATERIALS, DELIVERABLES AND SERVICES WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE OR THAT DEFECTS WILL BE CORRECTED.
6.1 Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless Defiance, and its officers, directors, employees, agents, representatives, affiliates, parents, subsidiaries, successors, and permitted assigns (collectively, “Defiance Indemnified Party”), from and against any and all actions, losses, liabilities, liens, costs, or expenses of every kind, including attorneys’ fees and litigation costs, whether or not consequential or special in nature (collectively, “Claims”), which any Defiance Indemnified Party may suffer, incur or pay out, or which have or hereafter can, shall or may be asserted, directly or indirectly, against any Defiance Indemnified Party in whole or in part, by reason of, in connection with, or arising under the following:
(a) breach by Client or its personnel of any representation, warranty, covenant, or other obligations set forth in this Agreement;
(b) negligence or more culpable act or omission of Client or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
(c) Client’s unauthorized use of any Deliverables;
(d) allegations by a third party that any Client Materials or Defiance’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property Rights of a third party; and
(e) Client Actions.
6.2 Defiance Indemnification Obligations. Defiance shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns (collectively, “Client Indemnified Party”) from and against all Claims that any Client Indemnified Party may suffer, incur or pay out, or which have or hereafter can, shall or may be asserted, directly or indirectly, against any Client Indemnified Party by a third party by reason of the following:
(a) material breach by Defiance or its personnel of any obligations set forth in this Agreement;
(b) gross negligence or willful misconduct of Defiance or its personnel in connection with the performance of its obligations under this Agreement; and
(c) allegations by a third party that any of the Services or Deliverables infringe any Intellectual Property Rights of a third party arising under the laws of the United States.
6.3 Exceptions and Limitations on Indemnification.
(a) Notwithstanding anything to the contrary contained in this Agreement, Defiance shall have no obligation to indemnify or defend Client or any of its Representatives against any Claims arising out of or resulting, in whole or in part, from:
(i) any Client Actions or Client Materials or any instruction, information, designs, specifications, or other materials provided by Client in writing to Defiance;
(ii) Client’s use of the Deliverables in combination with any materials or equipment not supplied to Client or specified by Defiance in writing, if the infringement would have been avoided by the use of the Deliverables or Intellectual Property of Defiance not so combined;
(iii) any modifications or changes made to the Deliverables by or on behalf of any person other than Defiance;
(iv) Client’s willful, reckless or negligent acts or omissions; or
(v) Client’s failure to comply with any of its obligations set forth in this Agreement.
6.4 Indemnification Procedures. A party seeking indemnification under this Section 6 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
6.5 EXCLUSIVE REMEDY. EXCEPT FOR THE EQUITABLE REMEDIES AVAILABLE TO THE PARTIES SET FORTH IN SECTION 10.8, THIS SECTION 6 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF DEFIANCE AND THE SOLE AND EXCLUSIVE REMEDY OF CLIENT FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE DELIVERABLES OR THE SERVICES.
7. Limitation of Liability.
7.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT WILL DEFIANCE BE LIABLE TO CLIENT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 MAXIMUM LIABILITY. DEFIANCE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO DEFIANCE PURSUANT TO THE SERVICE STATEMENT IN CONNECTION WITH WHICH THE APPLICABLE CLAIM AROSE IN THE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to trade secrets, third-party confidential information, and other sensitive or proprietary information, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other party to be treated as confidential, as well as the terms of this Agreement (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 8 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 8 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to Section 9.3, promptly destroy all Confidential Information and copies thereof that it has received under this Agreement.
9. Term; Termination.
9.1 Termination for Cause.
(a) Either Party may terminate this Agreement, effective upon written Notice, to the other Party (the “Defaulting Party”) if the Defaulting Party:
(i) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure (other than a failure by Client to make timely payments (a “Payment Failure”), which is separately addressed in Section 9.1(b), the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
(ii) becomes insolvent or is generally unable to pay its debts as they become due;
(iii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law;
(iv) makes or seeks to make a general assignment for the benefit of its creditors;
(v) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
(vi) is dissolved or liquidated; or sold to another entity.
(vii) is unable to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event that lasts for more than ninety (90) days.
(b) Defiance may terminate this Agreement or any Service Statement, effective upon written Notice to Client, if:
(i) a Payment Failure by Client continues for seven (7) days after Client’s receipt of written notice of nonpayment;
(ii) within any twelve (12) month period, two (2) or more Payment Failures occur;
(iii) Defiance determines in its sole discretion that this Agreement is injurious to its legal or business interests.
9.3 Effect of Expiration or Termination.
(a) Expiration or termination of this Agreement will not affect any rights or obligations that:
(i) are set forth in Sections 3, 5.4, 6, 7, 8, 9.3, or 10; or
(ii) were incurred by the Parties prior to such expiration or termination, including all obligations of Client to pay for Services rendered or expenses incurred by Defiance prior to such expiration or termination.
(b) Upon the expiration or termination of this Agreement for any reason and the other Party’s written request, each Party shall promptly:
(i) destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
(ii) permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and
(iii) certify in writing to the other Party that it has complied with the requirements of this clause.
(c) Upon expiration or termination of this Agreement by Client for Cause, Defiance shall promptly deliver to Client all Deliverables (whether complete or incomplete) for which Client has paid and promptly return or destroy all copies of Client Materials in Defiance’s possession.
(d) In the period between written Notice of termination and such termination taking effect, the Parties shall continue to abide by the terms of this Agreement and comply with their respective obligations hereunder. In the event of termination, Client shall promptly reimburse Defiance for all non-cancellable expenses accrued by Defiance in connection with the performance of the Services
(e) Subject to Section 9.3(a), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies, or defenses under this Agreement, at law, in equity or otherwise.
10.1 Entire Agreement. These Terms, together with any Service Statement referencing these Terms and any attachment to such Service Statement expressly referenced therein, constitutes the sole and entire agreement of the Parties with respect to the Services provided for in such Service Statement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
10.2 Timely Claims. Except for claims for the payment of fees, no lawsuit or other action based upon or arising in any way out of this Agreement may be brought by either Party more than one year after the termination or expiration of the Service Statement in connection with which the claim arose; provided, however, that any claims asserted in good faith with reasonable specificity and in writing by Notice pursuant to Section 10.3 prior to the expiration of such period are not thereafter barred, and such claims survive until finally resolved.
10.3 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed
(a) if to Client, at the address set forth in the applicable Statement of Work (or, if none is provided therein, such other addresses as Defiance generally uses for correspondence with Client) or
(b), if to Defiance, at:Defiance Analytics LLC
78 SW 7th St.
Miami, FL, 33130
All Notices shall be delivered by email, personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only upon receipt by the receiving party. Either Party may modify its address(es) for receipt of Notice pursuant to this Section upon Notice to the other Party in accordance with this Section.
10.4 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
10.5 Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
10.7 Cumulative Remedies. Except as set forth in Section 6, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
10.8 Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other party; provided, however, that Defiance may assign this Agreement to an Affiliate, a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of Defiance’s assets. No assignment shall relieve the assigning party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
10.9 No Third-Party Beneficiaries. Except as otherwise expressly provided herein, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
10.10 Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of New York, United States of America, without giving effect to the choice-of-law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
10.11 Choice of Forum. Neither Party shall commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the courts of the State of New York, County of New York. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts of the State of New York, County of New York. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
10.12 Force Majeure. Other than for payment obligations arising hereunder, neither Party will be liable, or considered to be in breach of this Agreement, on account of such Party’s delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond such Party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a “Force Majeure Event”). If any such Force Majeure Event occurs, the affected Party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.
10.13 Relationship of Parties. Nothing in this Agreement creates, or is intended to create, or will be construed to create, any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Defiance is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
10.14 Counterparts; Electronically Transmitted Signatures. Any Service Statement may be executed in any number of separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all of which together shall constitute one and the same instrument. Any Service Statement may also be executed by .pdf with digital signatures sent by email which shall be deemed to have the same force and effect as original signatures.