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These Platform Terms of Service (the “TOS” or “Terms of Service”) together with an Order Form referencing them (together with this TOS, “the Agreement”), govern the relationship between Alley Lede Inc., a Delaware corporation (“Company” or “Lede”) and a publisher who uses the Platform and is named on an Order Form (“Customer” or “Client”). Company and Customer are sometimes referred to jointly as the “parties” or singularly as a “party.”

RECITALS

WHEREAS, Company is in the business of providing software services, including, its proprietary managed software application and service product called Alley Lede™ or other name(s) as determined by the Company (the “Lede Platform” or the “Platform”); and

WHEREAS, Customer desires to obtain access to the Platform and other Services with respect to certain of its information technology needs; and Company wishes to provide the Services to Customer, each on the conditions set forth in these Terms of Service.

NOW, THEREFORE, the parties agree as follows:

  1. SERVICES

    1. Purpose. These Terms of Service, together with an Order Form referencing them, are the primary agreement which shall govern the relationship between the parties, and sets forth the terms and conditions under which Company agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for the Platform (which may include applicable documentation thereto, and programming and user interfaces therefor) to Authorized Users (as defined herein), as further set forth in the Order Form and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Subscription Services, the “Services”) related to Customer’s access to, and use of, such Subscription Services and the Platform, as further set forth in the Order Form.

      Company will configure the Platform for Client and, subject to earlier termination of the Service Termt, support the Platform for the Site (as defined herein) for the Service Term (as set forth in the Order Form), subject to the terms herein.

      The “Service Term” is the period beginning on the date of Launch for the period set forth in the Order Form for the Customer’s website(s) identified in the Order Form (the “Site” or “Website”), subject to these Terms of Service. “Launch” shall mean the date that the Site is publicly available for users to access content available through the Site.

    2. The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Company shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the Platform, and (ii) Customer the Professional Services, as applicable. Subject to the terms and conditions of this Agreement, during the Term, Company hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non-transferable, worldwide license to access and use the Platform, solely for internal business purposes as set forth herein.

    3. Subscription Services. An Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, with respect to the Platform, user limitations, fees, subscription term and other applicable terms and conditions.

    4. Professional Services. An Order Form shall specify and further describe the Professional Services to be provided in accordance with the representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.

    5. Changes to Platform. Company may, in its sole discretion, make any changes to the Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Company’s products or services to its customers, (b) the competitive strength of, or market for, Company’s products or services, (c) the Platform’s cost efficiency or performance, or (ii) to comply with applicable law.

  2. PLATFORM ACCESS AND AUTHORIZED USER

    1. Administrative Users. During the configuration and set-up process for the Platform, Customer will identify an administrative username and password for Customer’s Company account.

    2. Authorized Users. Customer may allow Customer’s employees and/or independent contractors to use the applicable Platform on behalf of Customer as “Customer Users”, subject to any restrictions set forth herein or required in writing by Company from time to time. Additionally, if applicable to the Platform, Customer may allow such number of designees and, subject to Company’s written consent, of its vendors (“Vendors” and together with Customer Users, “Authorized Users”), and their personnel, to access the Platform in connection with such Vendor’s activity with Customer through the Platform.

    3. Authorized User Conditions to Use. As a condition to access and use of the Platform, (i) each Authorized User shall agree to abide by the terms of Company’s end-user terms of use which it may adopt from time to time, (ii) Authorized Users shall agree to abide by these Terms of Service such as may be applicable to use of the Platform, and as may be amended from time to time (the “Applicable TOS”), and, in each case, Customer shall ensure such compliance, and (iv) Authorized Users shall abide by the terms of any third-party’s terms of service as required by Company’s vendors and/or affiliates. Customer shall immediately notify Company of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User.

    4. Account Responsibility. Customer shall be responsible for (i) all uses and users, including, but not limited to Authorized Users and permitted Vendors, of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Company account, passwords (including but not limited to administrative and user passwords) and files. Company is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.

  3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES

    1. Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform or any software, documentation or data related to the Platform (“Software”); (ii) modify, translate, or create derivative works based on the Platform or any Software; or (iii) use any Software or the Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Company, and Customer will comply with Section 4 with respect thereto.

    2. Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, each Platform, Software, and the Services in full compliance with this Agreement, the Applicable TOS, if any, and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any additional terms of use or other policies relating to a Platform provided by Company, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. Company may suspend Customer’s account and access to the Platform and performance of the Services at any time and without notice if Company believes that Customer is in violation of this Agreement. Although Company has no obligation to monitor Customer’s use of the Platform, Company may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.

    3. Cooperation. Customer shall provide all cooperation and assistance as Company may reasonably request to enable Company to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing Company with such access to Customer’s premises and its information technology infrastructure as is necessary for Company to perform the Services in accordance with this Agreement.

    4. Training and Education. Customer shall use commercially reasonable efforts to cause Authorized Users to be, at all times, educated and trained in the proper use and operation of each component of the Platform such Authorized Users utilize, and to ensure that each Platform is used in accordance with applicable manuals, instructions, specifications and documentation provided by Company from time to time.

    5. Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including modems, hardware, computer systems, software, operating systems, networking, and the like.

    6. Restrictions on Export. Customer may not remove or export from the United States or allow the export or reexport of the Software or anything related to the Platform, Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.

  4. CONFIDENTIALITY

    1. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Company includes non-public information regarding features, functionality and performance of the Platform and Software. Confidential Information of Customer includes non-public data provided by Customer to Company to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by the Platform for Customer (“Customer Data”). The terms and conditions of the Order Form provided to Customer, including all pricing and related metrics, are Company’s Confidential Information.

    2. Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party who did not have an obligation to maintain confidentiality of such Confidential Information, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.

    3. Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.

    4. Compelled Disclosure. Notwithstanding Section 4(c), the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.

    5. Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.

  5. PROPRIETARY RIGHTS

    1. Ownership; Certain Responsibilities of Customer. Customer shall own all right, title and interest in and to the Customer Data, and Customer shall be responsible in all respects (i) to Customer’s subscribers and other persons who utilize their website, platform, applications and/or services, and any other persons providing such data to Customer (collectively, the “End Users”, and each, an “End User”), and (ii) with respect to content generated or placed on the Platform by Authorized Users and/or End Users.

      Customer shall require that each of its End Users are subject to terms and conditions (“Customer TOC”) that Customer and/or End Users, are responsible for in all respects with respect to Customer Data and content published by Customer, including, but not limited to content created by End Users that is published by Customer. In addition, any such Customer TOC shall include provisions that provide that End User shall have no claim against the provider(s) of the software and any other digital platforms used by Customer.

      Company shall own and retain all right, title and interest in and to (i) the Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all of its right, title and interest in such Services IP to Company.

    2. Customer Data License. Customer hereby grants to Company a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use Customer Data to provide the Services to Customer hereunder and as necessary or useful to monitor and improve the Platform, Software and the Services during the Term.

    3. No Other Rights. No rights or licenses are granted except as expressly set forth herein.

  6. FEES & PAYMENT

    1. Fees. Customer will pay Company the then-applicable fees described in the Order Form, as may be amended from time to time, in accordance with the terms set forth therein (“Fees”), including, for the avoidance of doubt, any fees incurred through Customer’s use of a Platform exceeding a services capacity parameter specified on the Order Form or other writing mutually agreed by Company and Customer.

    2. Reserved.

    3. Payment. Except as set forth in the Order Form, Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the distribution date of the invoice. Unpaid amounts hereunder 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. In addition to any other remedies available, Company may suspend Services in the event of payment delinquency.

    4. Payment Disputes. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Company’s applicable Account Manager.

    5. Taxes. Customer shall pay, and shall be liable for, all taxes relating to Company’s provision of the Services hereunder.

    6. No Deductions or Setoffs. All amounts payable to Company hereunder shall be paid by Customer to Company in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.

  7. TERM AND TERMINATION

    1. Term. This Agreement shall remain in effect until its termination as provided in this Agreement (the “Term”). The Term, which shall include the Service Term, shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least sixty (60) days, but not less than thirty (30) days, prior to the expiration of the then current Term. For the avoidance of doubt, a termination of the Term shall be a termination of the Service Term, and the termination of the Service Term shall be a termination of the Term.

    2. Termination. This Agreement may be terminated early as follows:

      1. By the Company: (A) if Client breaches any representation, warranty or covenant in the Agreement or fails to fulfill any obligation under this Agreement, and Client fails to cure such breach, to the extent curable, to Company’s reasonable satisfaction within thirty (30) days after the delivery of Company’s written notice of such breach, (B) for convenience on no less than ninety (90) days written notice, or (C) if Client (I) changes its revenue model or means of calculating Revenue, (II) ceases to use the Platform for journalistic purposes or modifies its journalistic model in a manner substantially different from the form at the time of the Launch of the Site utilizing the Platform, or (III) upon a Change of Control (defined herein) of Client, Company may terminate the Agreement on no less than thirty (30) days written notice to Client.

        “Change of Control” means (A) a transaction or series of related transactions in which any “person” or “group” (within the meaning of Section 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended), becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) directly or indirectly, of more than 50% of the outstanding voting securities of the Client having the right to vote for the election of members of the Client’s board of managers or board of directors, as applicable, and the transaction (or series of related transactions) is at arm’s length with a third-party that is not beneficially owned or controlled by Client, (B) any reorganization, merger or consolidation of the Company, other than a transaction or series of related transactions in which the holders of the voting securities of the Client outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of the Client or such other surviving or resulting entity or (C) a sale, lease or other disposition of all or substantially all of the assets of the Client.

      2. By the Client: if Company breaches any representation, warranty or covenant in the Agreement or fails to fulfill any obligation under this Agreement, and Company fails to cure such breach, to the extent curable, within thirty (30) days after the delivery of Client’s written notice of such breach.

      3. At the conclusion of the Term, provided that Client has paid all amounts due Company through such time, Company will provide Client a data export of its content on request as an XML file with links to any uploaded images, or in another file format that the Parties mutually agree upon. Company will not be obligated to provide Client a copy of the Platform or Software code at any time.

    3. Effect of Termination. Except as otherwise provided herein, upon the effective date of termination of the Agreement Customer shall immediately cease all use of, and all access to, the Platform and any other Subscription Services and Company shall immediately cease providing the Professional Services. If Company terminates this Agreement pursuant to Section 7(b), all Fees that would have otherwise become payable had this Agreement remained in effect until expiration of its current Term (without earlier termination) will become immediately due and payable.

    4. Survival. Sections 3(a), 4-6, 7(b), 7(c), 7(d), 8(b) and 9–17 shall survive any termination or expiration of the Agreement. All other rights and obligations shall be of no further force or effect.

  8. WARRANTY AND DISCLAIMER

    1. Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement. Additionally, Customer warrants that (i) Customer owns or has a license to use and has obtained all consents and approvals necessary for the provision and use of all of the Customer Data that is placed on, transmitted via or recorded by a Platform and the Services; (ii) the provision and use of Customer Data as contemplated by this Agreement and each Platform and the Services does not and shall not violate any Customer’s privacy policy, terms of-use or other agreement to which Customer is a party or any law or regulation to which Customer is subject to; and (iii) Customer Data shall not include social security numbers or other government-issued identification numbers, financial account numbers, credit card or debit card numbers, credit report information or other personal financial information, health or medical information or other information that is subject to international, federal, state, or local laws or ordinances now or hereafter enacted regarding data protection or privacy, including, but not limited to, the Health Insurance Portability and Accountability Act, the Health Information Technology for Economic and Clinical Health Act, the Fair Credit Reporting Act, the Children’s Online Privacy Protection Act and the Gramm-Leach-Bliley Act. For the avoidance of doubt, debit and credit card numbers as supplied by End Users to Customer in connection with the use of the Platform may only be stored in an authorized and secure third-party payment processing system such as Stripe.

    2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THIRD PARTY PROPERTY OR SERVICES PROVIDED BY THIRD PARTY TECH PROVIDERS AND/OR OTHER THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN COMPANY AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORM, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  9. INDEMNITY

    1. Indemnification by Company. Company shall defend and indemnify Customer against any claim, suit, demand, or action made or brought against Customer by a third party alleging that the Services, or Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any Platform or Service (i) not supplied by Company, including, but not limited to Third-Party Property (as defined herein) and Audience Service Providers (as defined in the Order Form) (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery, or granting of access, by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement or applicable law. If, due to a claim of infringement, a Platform is held by a court of competent jurisdiction to be or is believed by Company to be infringing, Company may, at its option and expense (A) replace or modify such Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (B) obtain for Customer a license to continue using such Platform, or (C) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for such Platform. This Section states Customer’s sole and exclusive remedies for claims of infringement.

    2. Indemnification by Customer. Customer shall defend, indemnify and hold the Company, and each of its principals, managers, officers, members, equity holders, officers, directors, agents, employees, consultants, subsidiaries, parents, affiliates, successors and assigns (the “Company Indemnified Parties”) harmless from and against any liability, losses, damages, third-party claims, charges, costs (including, but not limited to, reasonable attorneys’ fees and costs) of any kind incurred, suffered or sustained (the “Indemnified Liability”) by any and all of the Company Indemnified Parties by reason of (i) the Customer Data or other Customer materials infringes any intellectual property rights of such third party, (ii) the Customer’s breach of any representations, warranties or covenants contained herein or by reason of any claim of any such breach, except to the extent the Indemnified Liability is a direct result of Company’s gross negligence, willful misconduct, or breach of the terms herein, (iii) Customer’s violation of applicable law, (iv) any claim with respect to content created, displayed or utilized by the Customer on or through the Website and/or Platform, or (v) any claim brought by an End User.

  10. LIMITATION OF LIABILITY

    IN NO EVENT SHALL (a) COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER AND VENDORS HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM(S) (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (b) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

  11. GOVERNING LAW AND DISPUTE RESOLUTION

    This Agreement shall be governed in all respects by the substantive laws of the State of New York without regard for conflict of law principles and any cause of action shall only be brought in the Courts of the State of New York within and/or servicing New York County, New York. Each of the parties hereby irrevocably (a) consent to the jurisdiction of the Courts of the State of New York, for all purposes in connection with any action or proceeding that arises under, or relates to this Agreement, (b) waive all objections as to venue and any and all rights they may have to seek a change of venue with respect to any such action or proceedings, and (c) waive the right to trial by jury in any action that may be brought hereunder. Each party hereto irrevocably consents to service of process via (i) nationally-recognized (in the United States) overnight courier, and (ii) sending an e-mail concurrently with such process being sent via overnight courier to the e-mail address of the other party set forth herein. Service of process shall be effective upon two (2) business days after completing both (i) and (ii). Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law.

  12. THIRD PARTY TECHNOLOGY PROVIDERS

    Company may, from time to time, host and/or maintain the Platform using a third party technology service provider (“Third-Party Tech Providers”) and Customer acknowledges that Company cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.

  13. PUBLICITY

    Customer agrees that Company may identify Customer as a customer or client and use Customer’s logo and trademark in Company’s promotional materials. Notwithstanding anything herein to the contrary, Customer acknowledges that Company may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.

  14. NOTICES

    All notices and other communications pursuant to this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered, by Federal Express (or comparable overnight mail service), postage/delivery costs prepaid to the other party at the address set forth in this Agreement (or at such other address as shall be given in writing by either party to the other) or by e-mail (if to Company: info@joinlede.com; if to Customer: as set forth on the Order Form). A party hereto shall be deemed to have received a notice (a) upon the applicable party sending an e-mail with such notice to the e-mail address of the other party set forth herein prior to 5:00 p.m. New York, NY time, and if sent after, the following business day, or (b) one (1) business day after being sent via nationally-recognized (in the United States) overnight courier or via hand delivery if sent within the United States, and two (2) business days if sent from outside the United States.

  15. FORCE MAJEURE

    Company is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, pandemic, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.

  16. ASSIGNMENT

    Except as expressly stated otherwise herein, Customer may not assign or otherwise transfer (whether by operation of law, merger, consolidation, change of control or otherwise) this Agreement or any rights or obligations hereunder without the written consent of Company, except that Customer may, without such consent, assign or transfer this Agreement to a purchaser of all or substantially all of its assets in an arm’s length transaction for fair value or to a successor organization by merger, consolidation, change of control, conversion or otherwise. Any assignment or transfer, or attempted assignment or transfer, in violation of this Agreement is void ab initio. This Agreement is binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.

  17. GENERAL PROVISIONS

    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.

    Company may update the provisions of these Terms of Service after providing a minimum of 30 days notice to Customer.

    This Agreement, including all schedules, exhibits, annexes and addenda hereto and thereto 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.

    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 authority of any kind to bind the other party in any respect whatsoever.

    The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (a) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (b) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (c) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (d) derivative forms of defined terms will have correlative meanings.

  18. DELIVERABLES

    Company owns the Platform, the Services, and all software, modifications and configurations of each thereto, whether for general use or for Customer’s use, and intellectual property in connection therewith. For the avoidance of doubt, with respect to any other Professional Services of Company hereunder, Company shall retain sole and exclusive ownership of all right, title and interest in its work papers, proprietary information, processes, methodologies, know-how and software, including such information as existed prior to the delivery of Professional Services and, to the extent such information is of general application, anything which Company may discover, create or develop during our provision of services for Customer (collectively, “Company Property”). To the extent any components of the Platform contain the proprietary information of a third party, or otherwise incorporate third-party software, products or services, Third Party Tech Providers including, but not limited to, open source software or other software subject to a public license (collectively, “Third-Party Property”), Customer shall not own any interest in the Third-Party Property and Customer further agrees to comply with such third party’s terms of licenses and other agreements which such third party may require Customer to enter into and shall have no claim against Company in connection with such Third-Party Property or other third-party software, products, services or licenses.

  19. ADDITIONAL CUSTOMER RESPONSIBILITIES

    1. Customer shall furnish sufficient personnel, facilities and resources in connection with Company’s engagement. Customer shall cause all levels of its employees and contractors to cooperate fully and timely with Company. Customer shall designate an employee or employees with sufficient authority who will make or obtain all management decisions with respect to this Agreement on a timely basis.

    2. Customer represents and warrants that any and all technology, code, information or materials provided by Customer to Company in connection with Company’s performance of the Services, or utilized in connection with the Platform, including without limitation, product materials, product and business information of Customer, intellectual property, marks and software programs (collectively, “Customer Materials”), together with all intellectual property rights therein, are and shall be owned by and shall be the sole and exclusive property of Customer, or Customer shall have the right to provide such materials for the use in connection with the Services and Platform. Customer hereby grants to Company a royalty-free, worldwide, nonexclusive, limited license to use the Customer Materials for the sole purpose of the performance of the Services under this Agreement. Customer further represents and warrants that all Customer Materials shall be true and accurate, and Company shall be able to rely on such materials, statements or information without further investigation.

    3. Customer also agrees that all assumptions set forth in this Agreement are or shall, as applicable, be accurate and agree to provide Company with such further information Company may need and which Company can rely on to be accurate and complete. Company shall be entitled to rely on all of Customer’s decisions and approvals and Company shall not be obligated to evaluate, advise on, or confirm, or reject such decision and approvals.

    4. Customer shall promptly evaluate the adequacy and results of Services in connection with this Agreement and shall let Company know immediately of any problems or issues that Customer identifies or perceives in the Services at any time. The success of Company’s engagement is dependent upon full openness, communications and cooperation. The fulfillment of these responsibilities is critical to the success of the engagement. The successful delivery of the Services, and the fees charged, are also dependent on Customer’s timely and effective completion of its responsibilities, the accuracy and completeness of the assumptions, and timely decisions and approvals by Customer. Customer shall be responsible for any delays, additional costs, or other liabilities caused by or associated with any deficiencies in the assumptions or in carrying out its responsibilities.