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Terms & Conditions
SUBSCRIPTION AND LICENSE AGREEMENT
This SUBSCRIPTION AND LICENSE AGREEMENT (the “Agreement”) by and between Feathr, Inc., a Delaware corporation with an address at 104 N Main St Suite 600, Gainesville, FL 32601 (hereafter, “Feathr”), and agreeing entities on behalf of itself and its affiliated entities (hereafter, “Client”).
WHEREAS, Feathr offers technology and digital tools (collectively the “Technology” and further specified below) to provide user’s with certain marketing automation, analytics and campaign management services (the “Services” as further specified below) to facilitate sales, marketing, donor management and analytics relating to conferences, seminars, events, fundraising initiatives, donor outreach and development, member acquisitions and member engagement and
WHEREAS, Feathr and Client desire to enter into this Agreement for the purpose of setting forth the terms and conditions pursuant to which Feathr will permit Client to access and use the Technology and receive the Services.
NOW WHEREFORE, in consideration of the mutual benefits and obligations set forth below (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows:
Definitions:
“Account” means a Client account for accessing the Feathr Marketing Automation Platform.
“Ad” means any unit of messaging and communication that Feathr delivers on behalf of the Client. Including but not limited to: display creative advertisements, landing pages, forms, and emails that are targeted to an end user through the Service.
“Applicable Law” means any applicable federal, state or foreign laws or regulations or any industry self-regulatory rules or guidelines (including without limitation, the Interactive Advertising Bureau Guidelines, Standards & Best Practices, the NAI Code of Conduct, and the DAA Self-Regulatory Principles for Online Behavioral Advertising) that relate to a party’s obligations under this Agreement.
“Campaign Data” means performance and measurement data made available through the Feathr Marketing Automation Platform that relates to Client’s Ad campaigns launched through the Service.
“Client Content” means all logos, trademarks, images, graphics, text, and other materials included by Client in the Ads provided to Feathr for use with the Services.
“Documentation” means reference documents, support service guidelines, policies, or technical material relating to the Service or Technology that are provided by Feathr to Client.
“External Platform” means third-party technology, including but not limited to CRMs, marketing tools, fundraising tools, member management tools, etc. that our clients may integrate with Feathr.
“Feathr Marketing Automation Platform” means the various web pages and web applications operated by Feathr, which include, but are not limited to, https://app.feathr.co and https://l.feathr.co, to which Feathr provides access to Client pursuant to this agreement, as well as the dashboard, and tools that Client has access to pursuant to this Agreement in order to (i) monitor web traffic, track behavior of users, import or export data to External Platforms (as is consistent with the Documentation); and (ii) create, launch, monitor, pause, and stop Ad campaigns.
“Feathr Materials” means the Feathr Marketing Automation Platform, Technology, Documentation, visual interfaces, graphics, design, compilation, computer code, and all other elements of the Service, including related modifications and derivative works.
“Order” means a document executed by both parties that specifies the type of Services to be provided to Client by Feathr, the duration of the Services, fees, and other details.
“Network” means a group of publishers, ad networks, ad exchanges, email service providers, third party data providers, and other ad inventory sources that Feathr has partnered with to provide the Services.
“Service” means the particular service offerings requested by Client through the Feathr Marketing Automation Platform or through the execution of an Order and agreed to by Feathr.
“Service Data” means data (and each component of such data) that is collected by Feathr from end users through the use of a pixel (or other script or code) installed on Client’s website, integrations with External Platforms or other mutually agreed upon means, including any data obtained from third parties while providing the Services.
“Technology” means the Feathr Marketing Automation Platform, the Feathr super pixel (or other script or code) and all other Feathr proprietary technology that allows Feathr to provide the Services.
“Property” means the Client publication, live event, virtual event, seminar series, membership organization, fundraising initative, branding initative, marketing plan, communication plan, or newsletter Client wishes to use the Feathr platform for.
1. The Feathr Services.1.1 The Services. Client may choose to receive any combination of available Services by indicating the same through the Feathr Marketing Automation Platform or an Order. In order to receive the Services, Client may need to register an Account with Feathr. Client represents and warrants that all information provided in registering for an Account will be complete and accurate and that throughout the Term Client will update its Account information in the event any of the relevant information changes. Client will keep its Account login information confidential and assumes full responsibility for any and all use of the Services authorized through Client’s Account unless Client has provided Feathr with notice that its Account has been compromised. Client may not assign or otherwise transfer its Account to any other person or entity.
1.2 Requirements. Client shall comply with all technical requirements for use of the Service or Technology communicated by Feathr to Client via Documentation. These technical requirements may include, but are not limited to: (i) including tags, pixels, script, or code supplied by Feathr on Client’s website; (ii) serving Ads to various websites and ad exchanges, delivery of landing pages, fulfillment of emails accessible to Client but not available to Feathr; and (iii) supplying appropriate Client Content necessary for Feathr to provide the Service. If Client delays, or fails to comply with the technical requirements, Feathr may be delayed or unable to provide the Service and will have no liability to Client for such failure or delay in providing the Service.
1.3 Support. Unless otherwise agreed upon by Feathr and the Client in an applicable Order, Feathr has no obligation to provide updates or other support for the Technology or Service.
1.4 Modifications. Feathr may make changes or modifications to the Service at any time. In the event any such change to the Service is material, Feathr will provide Client with at least thirty (30) days prior written notice identifying the nature of the change. If Client does not wish to continue to use the modified Service, Client’s sole remedy is to terminate the Agreement or the relevant Service by providing written notice to Feathr, and Feathr will refund to Client any prepaid amounts for Services not performed prior to the termination date.
1.5 Display of Ads. Client acknowledges and agrees that in performing the Services, Feathr has absolute discretion as to where and how often Ads will be displayed within the Network. Client acknowledges and agrees that this may mean that Ads will be displayed alongside advertisements of competitors or on websites or mobile applications that Client considers undesirable. Feathr will use commercially reasonable efforts not to display Ads on websites or mobile applications that Feathr determines to be pornographic, defamatory, obscene or illegal in nature. If Client notifies Feathr in writing that Ads are being displayed on a website that is pornographic, defamatory, obscene or illegal, Feathr will use commercially reasonable efforts to remove such Ads.
1.6 Third Party Terms; Third Party Sites. Certain parts of the Service require the creation of a user account with third parties in order to provide their products or services on the Feathr Marketing Automation Platform. Feathr will identify those products and services to Client and Client will review any applicable terms set by the third-party before participating in any part of the Service to which such terms apply. Client agrees that if Client requests a part of the Service that requires agreement to third-party terms and conditions then Feathr may accept the third party terms and conditions as Client’s agent but solely where necessary for Feathr to perform Services requested by Client. Links to or copies of any such terms will be provided upon request. Client further acknowledges that the use of the Services may require Feathr to transfer information and data with third-party sites. Client agrees that Feathr may, as reasonably required in connection with the performance of the Services, share such information and data with any third party with whom Feathr has a contractual relationship to provide the requested product, service or functionality on behalf of Feathr users and customers.
1.7 Feathr License Grant. Subject to the terms of this Agreement, and as long as Client pays all of the fees to Feathr as described hereunder, Feathr grants Client a limited, non-exclusive, non-transferable, right and license, during the Term to: (i) to access and use the Feathr Materials solely for Client’s internal business purposes, in connection with its receipt of the Services; (ii) to integrate the pixel (or other script or code) into Client’s website if Client has elected to receive web-related Services; or (iii) to integrate the pixel (or other script or code) through other mutually agreed upon means.
1.8 Client License Grant. During the Term, Client grants Feathr a worldwide, royalty-free, transferable license to use, distribute, reproduce, adapt (with respect to sizing or as specifically requested by Client), publicly perform, and publicly display the Client Content in Ads on the Network in connection with Feathr’s performance of the Services under the Agreement.
1.9 Feathr Marketing Automation Platform Content. All content, excluding Client Content, included as part of the Feathr Marketing Automation Platform, such as text, graphics, logos, images, as well as the compilation thereof, and any software used in the Feathr Marketing Automation Platform, is the property of Feathr and protected by copyright and other laws that protect intellectual property and proprietary rights. Client agrees to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto.
1.10 Restrictions. Except as expressly provided above, no other right to access or use the Feathr Materials is granted under this Agreement, and Client shall not attempt to access or use the Feathr Materials other than for its intended purposes. Client shall not: (i) reverse engineer, disassemble, decompile, or design around the Feathr Materials; (ii) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third-party the Feathr Materials; (iii) access or use the Feathr Materials to create derivative works or to build a competitive product or service; (iv) send or store material containing software viruses, worms, Trojan horses or other harmful or malicious computer code, files, scripts, agents or programs; or (v) do or omit, or suffer to be done or omitted, any act or thing, which may impair Feathr’s rights in and to the Feathr Materials. Feathr expressly reserves and retains all other rights in and to the Feathr Materials not expressly granted herein. Client agrees that it will not use the Services for any purpose that is unlawful or prohibited by this Agreement. Client may not use the Feathr Marketing Automation Platform or any Technology in any manner which could damage, disable, overburden, or impair the Services or interfere with any third-party’s use and enjoyment of the Service. If Client significantly exceeds the average bandwidth usage, as reasonably determined by Feathr, of other Feathr users, Feathr shall notify Client accordingly, and if Client fails to remedy such use within ten (10) days of such notice, Feathr reserves the right to disable Client’s Account and/or throttle bandwidth. Client shall not obtain, or attempt to obtain, access to any materials or information through any means not intentionally made available or provided to Client through the Feathr Marketing Automation Platform. Furthermore, Client acknowledges that Feathr does not permit the collection of social security numbers, credit card information, or any private medical information through the Feathr Materials. Collection of such data without written express consent from Feathr can result in termination of Client’s account.
2.1 Communication Services. The Feathr Marketing Automation Platform may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, and/or other message or communication facilities designed to enable Client and its users to communicate with the public at large or with a select group (collectively, “Communication Services”).
2.2 User Conduct. Client agrees to not use the Communication Services to post, send or receive messages and material that are improper, illegal or offensive. Without limiting the generality of the foregoing, Client agrees that it will not use the Communication Services to: (i) defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others; (ii) publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful topic, name, material or information; (iii) upload files that contain software or other material protected by intellectual property laws (or by rights of privacy of publicity) unless you own or control the rights thereto or have received all necessary consents; (iv) upload files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another’s computer; (v) advertise or offer to sell or buy any goods or services for any business purpose, unless such Communication Service specifically allows such messages; (vi) conduct or forward surveys, contests, pyramid schemes or chain letters; (vii) download any file posted by another user of a Communication Service that you know, or reasonably should know, cannot be legally distributed in such manner; (viii) falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded, restrict or inhibit any other user from using and enjoying the Communication Services; (ix) violate any code of conduct or other guidelines which may be applicable for any particular Communication Service; (x) harvest or otherwise collect information about others, including e-mail addresses, without their consent; or (xi) violate any applicable laws or regulations.
2.3 Monitoring; Removal. Feathr has no obligation to monitor the Communication Services and Client is solely responsible for the content submitted through the Communication Services. However, Feathr reserves the right to review materials posted to the Communication Services and to remove any materials in its sole discretion. Feathr reserves the right to immediately terminate Client, or any Client user’s access to any or all of the Communication Services, for a violation of this Section 2. Feathr reserves the right at all times to disclose any information uploaded or transmitted through the Communication Services as necessary to satisfy any Applicable Law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in Feathr’s sole discretion.
3. Ownership.
3.1 Feathr Materials. Client recognizes and agrees that the Feathr Materials furnished or made available to Client by Feathr hereunder, are, as between Client and Feathr, the exclusive property of Feathr, and any copyright, trademark, patent, trade secret or other intellectual property or proprietary right belongs to Feathr. Client does not acquire any right, title or interest in or to the Feathr Materials or other materials furnished or made available hereunder except the limited and temporary right to access and use them as provided by this Agreement.
3.3 Submissions. Feathr does not claim ownership of the materials Client or Client users provide via the Communication Services or otherwise submitted on the Feathr Marketing Automation Platform. By posting, uploading, inputting, providing or submitting any information, materials or data through the Feathr Marketing Automation Platform, including without limitation through Communication Services, Client grants Feathr, our affiliated companies and necessary sub-licensees, with permission to use the information, materials or data in connection with providing the Services pursuant to this Agreement. Client represents and warrants that it owns or otherwise has sufficient rights to any information, materials or data submitted to the Feathr Marketing Automation Platform to grant the rights provided herein.
3.4 Service Data and Campaign Data. Feathr is the sole owner of the Campaign Data and may use the Campaign Data for any purpose allowed by Applicable Law. Feathr grants Client a non-exclusive, perpetual, irrevocable, royalty-free, fully paid, transferable, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify and otherwise exploit the Campaign Data in any manner allowed under Applicable Law. Client shall be the sole owner of all Service Data and may use the Service data for any purpose allowed by Applicable Law. Client grants Feather a non-exclusive, fully-paid, non-transferable, right and license to use and exploit the Service Data for the sole and exclusive purpose of fulfilling Feathr’s obligations under this Agreement. Upon expiration or termination of this Agreement, Feathr will hand over to Client all Service Data and return or destroy any Client Content or personal data provided by Client and confirm the deletion of all such data from its systems except such copies as may be subject to Feathr’s data protection and handling procedures. Notwithstanding the foregoing, nothing herein shall be interpreted as preventing Feathr from using any Service Data in an aggregated and de-identified form after the termination of the Agreement, provided that such de-identified and aggregate data shall not allow for the identification of Client or any client end user.
4.1 Confidential Information. Each party agrees to maintain the confidentiality of all non-public materials, information, business, technical or financial data and other related, proprietary and/or confidential documents or information provided by the other party (“Confidential Information”). Each party agrees to (i) protect the Confidential Information of the other party with no less than the same degree of care it would exercise to protect its own Confidential Information, (ii) not use the other party’s Confidential Information for any purpose other than as reasonably necessary to fulfill the terms of this Agreement, (iii) not disclose any part of the other party’s Confidential Information to any third person without the prior consent of the other party, and (iv) insure that its employees, subcontractors and other personnel agree to assume the obligations set forth in this Section 4 (provided that, for avoidance of doubt, each party hereby agrees that it shall be responsible for any violation of the terms of this Agreement by its employees, subcontractors and other personnel). Confidential Information does not include any information which was: (i) generally available to the public at the time of disclosure, or later available to the public other than through an unauthorized release by a party; (ii) already known to the non-disclosing party prior to disclosure pursuant to this Agreement; or (iii) obtained at any time lawfully from a third-party under circumstances permitting its use or disclosure to others. Should either party become legally compelled to disclose any portion of the Confidential Information of the other party in connection with a lawsuit or similar proceeding, such party shall (A) give the other party prompt notice of that fact, including in its notice the legal basis for the required disclosure and the nature of the Confidential Information that must be disclosed, (B) cooperate fully with the other party in obtaining a protective order or other appropriate protection relating to the disclosure and subsequent use of such Confidential Information, and (C) disclose only that portion of such Confidential Information that is legally required to be disclosed. Upon expiration or termination of this Agreement, each party agrees to return to the other party any Confidential Information of the other party it may have in its possession. Additionally, each party acknowledges and agrees that, in the event of a breach or threatened breach of this Section, the other party may have no adequate remedy in damages and, accordingly, shall be entitled to injunctive relief against the other party’s breach or threatened breach without having to post bond.
4.2 Privacy. Without limiting the generality of the foregoing, Client’s and Client’s user’s use of the Feathr Marketing Automation Platform is subject to Feathr’s Privacy Policy.
4.3 Client Data Privacy Responsibilities. Client will comply with all Applicable Laws that relate to individual third party privacy and publicity rights, and will be solely responsible for the operation of all websites and applications owned or operated by Client when Client uses the Service. Client will include clear and conspicuous notice consistent with Applicable Law on its websites, mobile and tablet applications that (i) discloses (and, where legally required, obtains consent to) its practices with regard to cookies, targeting and online behavioral advertising, specifically addressing its data collection, use and disclosure practices (including that by visiting Client’s site third parties may place cookies on end user browsers for this purpose, the types of data that may be collected for targeted advertising, and data collected may be used by third parties to target advertising on other sites or applications based on the end users’ online activity); and (ii) informs users that they may opt-out from receiving targeted advertisements from Feathr by visiting the NAI website opt-out page here: http://www.networkadvertising.org/choices/ or the DAA opt-out page here: http://www.aboutads.info/ or, for EU users, the EDAA opt-out page here: http://youronlinechoices.eu/. Unless explicitly agreed to by Feathr, and in compliance with all local and federal privacy laws, Client will not send personally identifiable information or personal data to Feathr through the pixel or otherwise.
4.4 Feathr Data Privacy Responsibilities. If and to the extent the Service Data or Campaign Data contains any personal data of individuals located in the European Economic Area and such Service Data or Campaign Data has been provided to Feathr by Client, Client will be the data controller of such information. Client will use reasonable efforts to cooperate with Feathr in responding to regulatory or data subject inquiries received by Feathr about Client’s collection and processing of the Service Data or Campaign Data containing personal data from individuals located in the European Economic Area. Client will not provide any personal data of individuals located in the European Economic Area to Feathr, unless prior notice is provided to Feathr and Feathr and Client enter into an agreement for the appropriate transfer, protection and handling of any personal data of individuals located in the European Economic Area.
4.5 FEATHR WILL HAVE NO LIABILITY IN CONNECTION WITH, AND CLIENT SHALL INDEMNIFY, DEFEND AND HOLD FEATHR HARMLESS WITH RESPECT TO CLIENT’S FAILURE TO PROVIDE NOTICES REQUIRED BY APPLICABLE LAW TO ITS END USERS REGARDING ITS PRIVACY PRACTICES OR FOR FEATHR’S COLLECTION, USE OR DISCLOSURE OF SERVICE DATA AS CONTEMPLATED IN THIS AGREEMENT.
5.1 Fees. Client agrees to pay Feathr those fees (the “Fees”) set forth in each applicable Order or expressly authorized through Client’s Account. Feathr reserves the right to increase its Fees for the applicable Services and such increases shall apply to the next applicable Term, provided Feathr gives Client written notice of its intent to increase Fees at least thirty (30) days prior to the end of the then current Term.
5.2 Payment. Client hereby authorizes Feathr to collect the Fees via invoice and pre-authorized ACH or credit card payment, including convenience fees in the case of credit card payment. Payment shall be due upon receipt. All unpaid balances due will accrue interest at 1.5% per month. Client agrees to provide accurate and current payment information during the Term of the Agreement. Client shall be liable for any overdraft fees, bank charges or fines resulting from insufficient funds or exceeding authorized payment levels of the payment method authorized by Client. In the event collection efforts are required to obtain payment of amounts due, to the extent permitted by law, Client agrees to pay all court costs, private process server fees, investigation fees or other costs and reasonable attorney’s fees incurred. All payment obligations will survive termination or expiration of this Agreement.
5.3 Third Party Media. For any Ad delivery that requires purchase of third party media on behalf of Client, Client is required to maintain a funded account balance from which those purchases are debited or furnish a credit card to be billed weekly for the purposes of media fee payment. Crediting of Client’s media balance can be completed via check, wire-transfer, or other form of generally acceptable transfer payment.
6. Term and Termination.6.1 Term. This Agreement shall commence on the Effective Date and shall continue for the period identified in the Order (the “Term”) unless terminated earlier as set forth herein. Thereafter, the Agreement will automatically renew for additional twelve (12) month periods unless either party provides notice of non-renewal sixty (60) days prior to the end of the then current term. (The initial Term and any renewal Terms are collectively referred to herein as the “Term”).
6.2 Termination. Either party may terminate this Agreement for any reason by providing written notice to the other party at least sixty (60) days in advance of the end of the then current term. Moreover, either party may terminate this Agreement in the event (i) the other party materially breaches this Agreement and does not cure such breach within thirty (30) days after written notice from the non-breaching party setting forth the nature of the material breach; or (ii) the other party becomes insolvent, makes a general assignment for the benefit of creditors or fails to pay its debts as and when they become due, or voluntary or involuntary proceeding in bankruptcy or receivership are commenced, by or against the non-terminating party and are not dismissed within thirty (30) days.
6.3 Effect of Termination. Upon termination of this Agreement for any reason, Client shall immediately discontinue all use of the Feathr Materials and Technology from Client’s properties. Thereafter, Client shall have no further right, license or privilege to access, or use the Feathr Materials. Client shall be obligated to pay all Fees for Services performed prior to the date of termination. No fees will be refunded to Client if the Agreement is terminated early due to a material breach of the Agreement by Client or Feathr terminates this Agreement pursuant to Section 6.2(ii). Any provision of this Agreement, which by its terms imposes continuing obligations on the parties or would reasonably be expected to survive termination of the Agreement, shall survive the expiration or termination of this Agreement.
7. Warranties; Limit of Liability.7.1 Limited Warranties. Feathr and Client each represent, warrant and covenant to the other that: (i) it is in good standing in the state of its organization and qualified to do business in every jurisdiction in which it is required to be qualified; (ii) it has full power and authority to enter into this Agreement; (iii) the execution and performance by it of its obligations under this Agreement will not constitute a breach of any other agreement or a violation of any ordinance, statute, law, or regulation to which it is a party or by which it is bound; (iv) as of the Effective Date and until termination or expiration of the Term, it is and will remain in compliance with and abide by all Applicable Law.
7.2 Availability. Feathr will make commercially reasonable efforts to provide availability of the Technology and Feather Customer Data and Personalization Platform. From time to time, however, and as may be necessary to maintain the proper operation of the Technology and Feathr Marketing Automation Platform, Feathr may disable the Technology and/or Feathr Marketing Automation Platform for repairs, upgrades or routine maintenance. Feathr will use commercially reasonable efforts to minimize the impact of any downtime on Client.
7.3 Feathr Warranties. Feathr hereby represents and warrants that (a) the Technology shall be free from material defects upon delivery; (b) the Technology shall operate and be available in accordance with the specification provided by Feathr to Client; and (c) the Technology, as delivered, will be free from viruses and other malicious or harmful code. In the event of a breach of (a)-(b) herein, Client’s exclusive remedy shall be to have Feathr promptly modify, repair or replace the Technology so that it conforms to the warranty.
7.4 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY STATED ABOVE, THE SERVICES, TECHNOLOGY AND ANY OTHER FEATHR MATERIALS ARE PROVIDED TO CLIENT “AS IS” AND WITHOUT ANY WARRANTY, GUARANTY, CONDITION, COVENANT OR REPRESENTATION, EXPRESS, IMPLIED OR STATUTORY. ALL WARRANTIES, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, CURRENCY, ACCURACY OR OTHER ATTRIBUTES, OR FROM A COURSE OF DEALING OR USAGE OF TRADE ARE SPECIFICALLY DISCLAIMED. FEATHR DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE, OR THAT THE SERVICE WILL BE TOTALLY SECURE.
7.5 LIMITATIONS. EXCEPT FOR A BREACH OF THE CONFIDENTIALITY OBLIGATIONS OR PURSUANT TO THE INDEMNIFICATION OBLIGATIONS HEREIN, EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL FEES PAID (OR OTHERWISE DUE AND PAYABLE) BY CLIENT TO FEATHR FOR THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY; AND IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY.
8. Indemnification.8.1 By Feathr. Feathr agrees to indemnify, defend and hold harmless Client, and Client’s officers, directors, or employees from and against any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) for third-party claims relating to, or arising from, any claim that the Technology or Services violate the intellectual property rights of any third-party or that Feathr has violated any Applicable Laws. In the event of such third-party claim, Client shall give Feathr the right, at its own cost, to assume the exclusive defense and control of any matter subject to indemnification. Client will promptly notify Feathr of such a claim, and fully cooperate with Feathr, at Feathr’s expense in asserting any available defenses. Without limiting the foregoing, if Feathr, in its reasonable discretion, believes that the Technology or Services are likely to be subject to a valid claim of intellectual property infringement, Feathr shall have the right, in its exclusive discretion and sole expense, to (i) obtain for Client the right to continue to use the Technology or Services; or (ii) modify or replace the Technology or Services with an alternative, non-infringing solution that performs all of the same material functionality. If Feathr is unable, in its reasonable discretion, to accomplish (i) or (ii), Feathr may terminate this Agreement and refund all amounts paid by Client to Feathr for Services not performed prior to the date of termination.
8.2 By Client. Client agrees to indemnify, defend and hold harmless Feathr, and Feathr’s officers, directors, or employees from and against any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) for third-party claims relating to, or arising from, any claim that the Client Content violates any rights of a third party, any claim that Client’s collection or distribution of personal information to Feathr violates Applicable Laws, or Client’s violation of any Applicable Laws, rules or regulations. In the event of such a third-party claim, Feathr shall give Client the right, at Client’s cost, to assume the exclusive defense and control of any matter subject to indemnification. Feathr will promptly notify Client of such a claim, and fully cooperate with Client, at Client’s expense and immediately cease all use of the Client Content giving rise to the indemnification claim.
9.1 Entire Agreement; Waiver. This Agreement represents the complete agreement between the parties with respect to the subject matter hereof, and may only be amended by a writing executed by both parties. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same or any other provision of the Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
9.3 Relationship of the Parties. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party, nor its agents have any authority of any kind to bind the other party in any respect whatsoever. The parties will be deemed to be independent contractors with respect to each other and accordingly each party is responsible for its own taxes and withholding obligations.
9.4 Severability. If any provision of this Agreement shall be held invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions hereof shall not be affected thereby, and the parties shall agree to adopt a valid, legal and enforceable provision as similar as possible to the original provision at issue.
9.5 Force Majeure. Neither party shall be liable for any failure or delay in performance of its obligations due to causes beyond the reasonable control of the party, including but not limited to, war, sabotages, insurrection, riot or other acts of civil disobedience, act of government affecting the terms hereof, acts of terrorism, accident, failure of telecommunications or internet service, power outages, severe weather, fire, explosion, hurricane or other acts of God.
9.6 Assignment; Parties in Interest. This Agreement may not be assigned (by operation of law or otherwise) or transferred, in whole or in part, by either party without the prior written consent of the other party; provided, however, that either Party shall be entitled to assign this Agreement, without the prior written consent of the other Party, to an affiliate of such Party or to any successor corporation or other legal entity which succeeds as a going concern to the business presently conducted by such Party pursuant to a merger, consolidation or sale of all or substantially all of its assets, if such successor corporation assumes in writing such party’s obligations hereunder. Except as specifically provided herein, this Agreement is not intended to and does not create any rights in favor of any person or legal entity not a party hereto.
9.7 Notice. The parties consent to receive electronic communications and both parties expressly agree that all agreements, notices, disclosures and other communications that are required to be given under this Agreement may be done electronically, including without limitation, via e-mail or the Feathr Marketing Automation Platform and that such communications shall satisfy the applicable legal requirement.
9.8 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
9.9 Taxes. Feathr's media, software, and/or services may or may not be subject to sales tax based on the client’s physical billing location.