This Services and Subscription Agreement (this "Agreement") applies to each Order (as defined below) that references this Agreement, and is between Client Giant, Inc., ("Client Giant") and the customer or subscriber identified in an Order ("Customer"). Client Giant and Customer are referred to herein each individually as a "Party" and collectively the "Parties." The terms of this Agreement will apply to each Order beginning on the effective date of such Order and continuing for as long as the Order is in place.
This Agreement governs Customer's use of Client Giant's web-based client retention services and marketing and experiences and gifting platform, which provides various marketing and promotional features and certain other survey and analytics tools to its subscribers as well as automated gifting plans and situational gifting services and experiences (collectively, the "Services").
From time to time the Parties may enter into orders for Services either through a traditional purchase order or via Client Giant's online portal (each, an "Order") pursuant to which Customer may purchase Subscriptions (as defined below) to utilize the Services and/or for Plans (as defined below) for the applicable Subscription Term (as defined below) and at the pricing specified in the applicable Order. No Order is effective until expressly agreed by Client Giant in writing (including by electronic acceptance).
Subject to the terms and conditions of this Agreement and the payment of the fees set forth in the Order, Client Giant grants Customer a limited, non-exclusive, non-transferable right to access and use the Services via Client Giant's website (the "Site") during the applicable Subscription Term solely for its own internal purposes and any other purpose expressly set forth in the applicable Order (each, a "Subscription").
As part of a Subscription to the Services, Customer may choose to participate in a curated gifting program offered by Client Giant (each, a "Gifting Plan") pursuant to which Customer commissions Client Giant to select gifts or packages of gifts from a list maintained by Client Giant for delivery to third-parties ("Recipients") identified by Customer (each gift or set of gifts being a "Gift" or "Gifts"). Customer may also be provided the opportunity to utilize the Services to purchase Gifts for Recipients on a situational basis. The Services described in this Section are the "Gift Services."
Each Order may set out a term for the Subscription during which Customer will be provided access to and use of the Services (the "Subscription Term"). With respect to any Subscription for which an Order does not define a Subscription Term, the Subscription Term will continue until terminated by Customer or Client Giant as provided in this Agreement. At the end of a Subscription Term, the Subscription will automatically renew for successive periods equal to the Subscription Term unless a Party provides the other Party of its intent not to renew prior to the expiration of the then-current Subscription Term.
Customer will pay Client Giant the fees set forth in the Order for the Subscription or as displayed in the portal on the terms and at the times set forth therein. Client Giant may revise its fees at any time, provided that no change will be effective as to Services until the commencement of the next Subscription Term, provided that if there is no Subscription Term, the revised fees will become effective 30 days after Client Provides Customer with notice of such updated fees. All fees will be billed and must be paid in U.S. dollars.
Client Giant may bill Customer through an online billing account for purchases made by Customer. Customer will provide current, complete, and accurate purchase and account information for all purchases. Customer will promptly update account and payment information, including email address, payment method, and payment card expiration date, so that Client Giant can complete transactions and contact Customer as needed.
To the extent the Services are subject to recurring charges, Customer consents and authorizes Client Giant to charge Customer's payment method on a recurring basis without requiring Customer's prior approval for each recurring charge, until Customer notifies Client Giant of its cancellation. If a recurring charge fails, Customer be notified via email to rectify the payment method on the Client Giant portal.
Customer will be responsible for any federal, state and local sales, use, excise, ad valorem, value-added, and other similar type taxes and duties ("Taxes") imposed on the purchases of Services or Gifts by Customer. Each Party will be responsible for any personal property taxes on property it owns or leases, for franchise and privilege taxes on its business, and for taxes based on its income and receipts.
If provided in an Order, Client Giant may allow Customer to pre-pay certain amounts to Client Giant for use for fees for Services or situational Gifts (a "Pre-paid Account Balance"). In order to fund the Pre-paid Account Balance, Client Giant is hereby authorized by Customer to initiate electronic debit or credit entries through the ACH system to Customer's account designated in an Order or any other deposit account maintained by Customer wherever located. Customer may terminate this authorization by giving Client Giant thirty days prior written notice of termination. If fees are owed to Client Giant under this Agreement, Client Giant will have the right to utilize the Pre-paid Account Balance to satisfy any amounts owed and if and there is not a sufficient amount of money available on Customer's Pre-Paid Account Balance Client Giant may, in its discretion refuse to provide the requested Service or complete the requested sale. The Pre-paid Account Balance will not accrue interest and will remain in the Customer account at the end of the Subscription Term set forth in the Order.
Past due balances are subject to interest equal to the lower of 1.5% per month or the maximum rate allowed by law. Customer will be liable to Client Giant for all reasonable costs of third-party collection activity, including attorneys' fees, resulting from Customer's past due account.
Client Giant reserves the right to correct any errors or mistakes in pricing or invoicing, even if it has already requested or received payment.
Except as provided in Section 3, below, the purchases of Subscriptions or Gifts by Customer are non-cancellable. Additionally, the amounts paid or payable for Subscriptions, Gift Services and Gifts are final, non-cancellable and nonrefundable from the time of submission of the Order, regardless of the Gifts' expected or actual shipping date. Except for broken or defective Non-Conforming Gifts (as defined below), Gifts may not be returned or exchanged by Customer or any Recipient, and Client Giant will have no liability for the Gifts.
Subject to Customer's payment obligations in the last bullet of Section 1.6, Customer may terminate a Gifting Plan at any time upon 30 days' written notice to Client Giant.
Either party may terminate a Subscription that does not have a Subscription Term for Services other than a Gifting Plan at any time upon 30 days' written notice to the other Party.
Either Party may terminate this Agreement upon written notice to the other if there are no outstanding Orders under this Agreement.
Client Giant may terminate this Agreement and any outstanding Orders in the event of Customer's material breach of its obligations under the Agreement if such breach is not cured within 10 days of Customer's receipt of written notice of the breach that describes the breach in reasonably sufficient detail. The termination of this Agreement will terminate all Orders (and all Subscriptions).
Upon the date of the expiration or termination of a Subscription (the "Termination Date"), the rights and Subscriptions that were granted to Customer under this Agreement with respect to that Subscription will cease, and Customer will make payment to Client Giant for all unpaid Services up to the Termination Date within 30 days of the Termination Date. Sections 1.6, 2, 3.5, 3.6, 4, 6, 7, 8, 9.3, 10, 11, 12 will survive the expiration or termination of this Agreement.
Client Giant may suspend Customer's access to the Services if (i) amounts owed to Client Giant remain unpaid for 60 days; or (ii) Client Giant has reason to believe that Customer is using the Services in violation of the Agreement or in a manner that may result in harm to the Services, Client Giant or any other user of the Services, provided that such right will not obligate Client Giant to monitor or exert editorial control over Customer's use of the Services.
Client Giant acknowledges that as between the Customer and Client Giant, the data submitted, processed, or stored by Customer and Users using the Services (collectively "Customer Data") is owned exclusively by Customer. Customer is responsible for updating its own Customer Data and for its use of such data. Customer assumes sole responsibility for integrity of data inputted into the Services, whether through manual/direct entry or bulk import. Client Giant is not responsible for recognizing duplicate name(s), package(s), plan(s), or any other product or service ordered by Customer and will not issue refunds or credits if orders were placed/purchased incorrectly by Customer. Information regarding Client Giant's security and processing of Customer Data is located at https://www.clientgiant.com/privacy-policy/ (the "Privacy Policy").
The Services are not designed or maintained in manner to process, handle or protect any personally identifiable information or other sensitive data. Except for those limited categories of Essential Information (as such term is defined in the Privacy Policy) that are expressly identified in the Privacy Policy (or an Order in accordance with the terms of the Privacy Policy), Customer must not provide personally identifiable information to Client Giant or its Services and Client Giant will have no responsibility for any such personally identifiable information. In addition to its other indemnification obligations under this Agreement, Customer agrees that it will indemnify, reimburse, and hold harmless Client Giant from and for any loss, liability, or expenses incurred as a result of Customer's provision of personally identifiable information to Client Giant.
The Services constitute protected copyrighted material and valuable trade secrets of Client Giant. Accordingly, Customer will not: (i) allow or permit use of the Services by any third parties or persons other than its employees and agents who have a need to access the Services ("Users"); (ii) use or access the Services for the purpose of building a competitive product; (iii) copy, frame, modify or create any derivative works of the Services (or any component, part, feature, function, user interface, or graphic thereof) or the associated documentation, except with the prior written consent of Client Giant or to the extent such restriction is prohibited by applicable law; (iv) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Services is compiled or interpreted; (v) use the Services as part of a time-share, cloud services or service bureau or on a hosted basis for its own ASP or SAAS offerings; (vi) perform or disclose any benchmark or performance tests of the Services without Client Giant's prior written consent; (vii) perform or disclose any security testing of the Services or associated infrastructure without Client Giant's prior written consent including, but not limited to, network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing, or penetration testing; (viii) remove or modify any program markings or any notice of Client Giant's or its licensors' proprietary rights; (ix) use the Services in violation of applicable laws; (x) send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (xi) use the Services to stalk or harass anyone or to knowingly send Gifts to Recipients who do not wish to receive gifts; (xii) send or store malicious code in connection with the Services; (xiii) knowingly interfere with or disrupt performance of the Services or the data contained therein; (xiv) attempt to gain access to the Services or its related systems or networks in a manner not set forth in the applicable documentation for the Services; or (xv) cause or permit any Users or any other party to do any of the foregoing. Customer is responsible for its Users' compliance with the terms of this Section. Customer is responsible for maintaining the confidentiality of its Users' login information and is responsible for any use of the Services utilizing such information. Login credentials may not be used or shared by multiple individuals.
Except with respect to Gifts purchased by Customer in accordance with the terms of an applicable Order, Client Giant owns all right, title and interest in and to (i) the Services (and any and all configurations, developments, modifications, and derivative works of the Services); (ii) any work product, concepts, inventions, information, drawings, designs, programs, or software (whether developed by Client Giant or Customer, either alone or with others, and whether completed or in-progress) created as part of the Services; (iii) any materials provided by Client Giant to Customer or a User with respect to the Services, including but not limited to any documentation, software (whether in object code or source code form), proprietary data, or other proprietary information developed or provided by Client Giant or its suppliers, such as text, graphics (including the underlying web-presentation code of the Services), logos, button icons, images and any non-public know-how, methodologies, equipment, or processes used by Client Giant to provide the Services to Customer, and (iv) all patents, copyrights, moral rights, trademarks, trade secrets and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing (collectively "Client Giant Property"). This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Client Giant Property are transferred to Customer under this Agreement or otherwise as part of or in connection with the Subscription. Client Giant reserves all rights not expressly granted by this Agreement and no licenses are granted by Client Giant to any party, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. Any Client Giant Property related to Services will be deemed to constitute part of the Services and will be subject to all terms and provisions set forth in this Agreement or otherwise applicable to the Services, including terms and provisions related to use rights and restrictions, ownership and distribution of the Services. To the extent that Customer or any User owns or obtains any copyright, patent, trade secret, or any proprietary rights in and to the Client Giant Property, Customer hereby assigns to Client Giant, its successors and assigns, all right, title and interest in and to the Client Giant Property, including, but not limited to, all rights in and to any inventions, designs and intellectual property rights embodied in the Client Giant Property.
Each Party may have access to confidential or proprietary information of the other Party that the receiving Party knows or should know is the proprietary or confidential information of the disclosing Party: (i) because it is marked as confidential; (ii) because the disclosing Party orally advised the other Party of the information that is confidential; or (iii) by virtue of the character of the information or the circumstances surrounding its disclosure ("Confidential Information"). The Services are the Confidential Information of Client Giant. Each Party will protect the Confidential Information of the other Party using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care. The foregoing will not prevent either Party from disclosing Confidential Information which belongs to that Party or (a) is in or enters the public domain without breach of this Agreement and through no fault of the receiving Party; (b) the receiving Party was lawfully and demonstrably in possession of prior to first receiving it from the disclosing Party; (c) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the disclosing Party's Confidential Information; (d) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (e) is approved by the other Party for disclosure. If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, such Confidential Information may be disclosed pursuant to the requirement so long as the Party required to disclose the Confidential Information, to the extent permitted, provides the other Party with timely prior notice of the requirement and coordinates with such other Party in an effort to limit the nature and scope of such required disclosure. Upon written request at the termination of a Subscription, all documented Confidential Information (and all copies thereof) owned by the requesting Party will be returned to the requesting Party or will be destroyed, with written certification thereof being given to the requesting Party. The Parties acknowledge that disclosure of any Confidential Information would cause irreparable injury to the Party whose information is disclosed, which injury may be inadequately compensated in damages. Therefore, either Party will be entitled to injunctive relief against the other's breach or threatened breach of this Section as well as any other legal remedies that are available, without the need to post a bond.
Client Giant represents and warrants that the Services: (i) will operate in material compliance with their documentation; and (ii) do not and will not violate any applicable law, statute, ordinance, regulation, or treaty when used in accordance with their documentation.
Customer represents and warrants that, with respect to any Customer Data (including any information regarding any Recipient), databases, trademarks, trade names, service marks, logos and other similar indicia of origin or other materials provided or made available by Customer (the "Customer-Provided Materials"): (i) it has obtained all consents, authorizations or permissions necessary for Client Giant to access or use the Customer-Provided Materials ("Required Consents"); and (ii) the Customer-Provided Materials (a) do not and will not infringe or misappropriate the intellectual property rights of any third party; (b) do not and will not violate any applicable law, statute, ordinance, regulation or treaty; and (c) will not contain any viruses or other computer programming routines that could damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information of any person or entity. Customer further represents and warrants that to the extent it requests Client Giant to provide Services that involve Client Giant contacting Recipients, it will obtain all necessary consents and approvals from any Recipients to allow Client Giant to provide the Services and will comply with all local, state, and federal laws and regulations and will indemnify, defend and hold Client Giant harmless for any claims resulting from Customer's failure to do so.
EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF, AND CLIENT GIANT SPECIFICALLY DISCLAIMS, ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SUBSCRIBER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES. WITHOUT LIMITING THE FOREGOING, SUBSCRIBER SPECIFICALLY ACKNOWLEDGES THAT TANGO, ITS LICENSORS AND THEIR SUPPLIERS MAKE NO WARRANTY THAT CUSTOMER WILL ACHIEVE ANY PARTICULAR BUSINESS RESULTS BY USE OF THE SERVICES; THAT THE SERVICES WILL MEET SUBSCRIBER'S REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION; THAT ALL ERRORS WILL BE CORRECTED; THAT THE SERVICES WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK; OR THAT SUBSCRIBER'S SPECIFIC REQUIREMENTS WILL BE SATISFIED. SUBSCRIBER ASSUMES RESPONSIBILITY FOR THE USE OF, AND RESULTS OBTAINED FROM THE SERVICES.
Client Giant will indemnify, defend and hold Customer harmless from and against any and all claims, actions, proceedings, demands, judgments, losses, liabilities, costs and expenses (including reasonable attorneys' fees) ("Claims") arising from claims by any third party that Customer's use of the Services in accordance with this Agreement and the associated documentation infringes or misappropriates the intellectual property rights of such third party, provided that Client Giant will have no obligation to defend, indemnify and hold Customer harmless for claims of infringement if: (i) Customer or a User modifies the Services; (ii) Client Giant complies with the written designs or specifications supplied by Customer; (iii) Customer or a User combines the Services with any products or services not provided or licensed by Client Giant; (iv) Customer or a User fails to strictly adhere to Client Giant's instructions for the use and maintenance of the Services.
Customer will indemnify, defend and hold Client Giant harmless from and against any and all Claims by Customer, a User, or any third party that: (i) result from any failure by Customer to obtain any Required Consents; (ii) the Customer-Provided Materials infringe or misappropriate the intellectual property rights of such third party; (iii) relate to a use of predictive or analytical results; (iv) arise from Customer's breach of Sections 4.2, 5 or 8; or (v) relate to a Gift sent through Client Giant's Gift Services.
With respect to the indemnification obligations herein (i) the Party seeking indemnification (the Indemnified Party) will promptly notify the Party obligated to provide indemnification (the "Indemnifying Party") in writing promptly of any such Claim (provided that the Indemnifying Party will only be relieved of its obligations if and to the extent that it has been actually prejudiced by the failure to give notice as required); (ii) the Indemnifying Party will have sole control of the defense of any Claim and of all negotiations for its settlement provided that any settlement which requires any admission of liability, affirmative obligation or any contribution from the Indemnified Party must be approved in advance in writing by the Indemnified Party; and (iii) the Indemnified Party will cooperate with the Indemnifying Party in a reasonable way and at the Indemnifying Party's expense. The Indemnified Party may, at its expense and option, use counsel of its choosing in connection with the defense of any such claim.
EXCEPT FOR A BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8, INDEMNIFICATION AND DEFENSE OBLIGATIONS, OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR CUSTOMER'S BREACH OF SECTIONS 4.2 OR 5, OR MISAPPROPRIATION OF CLIENT GIANT'S INTELLECTUAL PROPERTY RIGHTS, OR FEES PAYABLE BY SUBSCRIBER: (A) NEITHER PARTY WILL HAVE ANY LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, OR INCIDENTAL DAMAGES; AND (B) THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY FOR ANY REASON AND UPON ANY CAUSE OF ACTION BROUGHT UNDER OR ASSOCIATED WITH THE SERVICES, WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO CLIENT GIANT FOR THE MOST RECENT ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE SUCH LIABILITY AROSE. THESE LIMITATIONS WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY REMEDY PROVIDED SHOULD FAIL OF ITS ESSENTIAL PURPOSES, OR FOR ANY CLAIM BY ANY THIRD PARTY. In addition to the foregoing limitations set forth in this Section 11, in the event a Customer's Gift or Gifts are lost, damaged, or otherwise do not conform with the terms of the applicable Gifting Plan or Order pursuant to which they were purchased or provided (together, a "Non-Conforming Gift"), Client Giant will, at its option, either replace the Non-Conforming Gift or reimburse the Customer for the purchase paid for such Non-Conforming Gift (the "Gift Replacement"). The Gift Replacement outlined in the foregoing sentence shall be Customer's sole and exclusive remedy with respect to any Non-Conforming Gift, and Customer hereby expressly waives any and all other remedies, at law, in equity, or otherwise, that it might otherwise have with respect to claims arising from or relating to a Non-Conforming Gift. The Parties agree that Client Giant has set the fees and entered into each Order in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.
There may be information on the Site that contains typographical errors, inaccuracies, or omissions, including descriptions, pricing, availability, and various other information. Client Giant reserves the right to correct any errors, inaccuracies, or omissions and to change or update the information on the Site at any time, without prior notice.
Client Giant reserves the right to change, modify, or remove the contents of the Site at any time or for any reason at our sole discretion without notice. However, Client Giant has no obligation to update any information on its Site. Client Giant also reserves the right to modify or discontinue all or part of its Site without notice at any time. Client Giant does not guarantee that its Site will be available at all times or at any particular times. Client Giant may experience hardware, software, or other problems or need to perform maintenance related to its Site, resulting in interruptions, delays, or errors. Client Giant will have no liability for any loss, damage, or inconvenience caused by Customer's inability to access or use the Services during any downtime or discontinuance of its Site. Nothing in this Agreement will be construed to obligate Client Giant to maintain or support the Site or to supply any corrections, updates, or releases in connection therewith.
Client Giant has not agreed to and does not agree to treat as confidential any suggestion or idea provided by Customer or its Users regarding the Service ("Feedback"), and nothing in this Agreement or in the Parties' dealings arising out of or related to this Agreement will restrict Client Giant's right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to Customer or its Users, or provide Customer or any User with any rights in the Services. Feedback does not include Customer Confidential Information or Customer Data.
The Site may contain (or you may be sent via the Site) links to other websites ("Third-Party Websites") as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software, and other content or items belonging to or originating from third parties ("Third-Party Content"). Such Third-Party Websites and Third-Party Content are not investigated, monitored, or checked for accuracy, appropriateness, or completeness by us, and Client Giant is not responsible for any Third-Party Websites accessed through the Site or any Third-Party Content posted on, available through, or installed from the Site, including the content, accuracy, offensiveness, opinions, reliability, privacy practices, or other policies of or contained in the Third-Party Websites or the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Websites or any Third-Party Content does not imply approval or endorsement thereof by us. If you decide to leave the Site and access the Third-Party Websites or to use or install any Third-Party Content, you do so at Customer's own risk, and you should be aware these Terms of Use no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Site or relating to any applications you use or install from the Site. Any purchases you make through Third-Party Websites will be through other websites and from other companies, and Client Giant takes no responsibility whatsoever in relation to such purchases which are exclusively between you and the applicable third party. You agree and acknowledge that do not endorse the products or services offered on Third-Party Websites and you shall hold us harmless from any harm caused by Customer's purchase of such products or services. Additionally, you shall hold us harmless from any losses sustained by you or harm caused to you relating to or resulting in any way from any Third-Party Content or any contact with Third-Party Websites.
Notices will be given in writing and may be delivered by U.S. mail, overnight delivery service, confirmed e-mail, or personal delivery to the intended recipient of the notice. Notice will be deemed delivered when received or one business day after deposit with an overnight delivery service for next day delivery, whichever is earlier. Notice will be provided to Customer at the address in an Order and to Client Giant at:
Client Giant may change its notice address by updating this Agreement at any time.
Except where specifically provided, termination of this Agreement will be without prejudice to any other rights that either Party may have at law or in equity.
If the performance of any part of this Agreement by a Party is prevented, hindered, delayed or otherwise made commercially unreasonable by reason of any causes beyond the control of the Party, including but not limited to flood or other natural disaster, riot, fire, judicial or governmental action, labor disputes, actions or failures of the hosting or internet service provider or of any telecommunications service providers or facilities in the chain of communication to and from Client Giant's server, sabotage or criminal interference with the server or Services or any other similar or dissimilar event or circumstances (a "Force Majeure Event"), the Party experiencing the Force Majeure Event will be excused from performance. The foregoing will not apply to the obligation to make payments of fees for the Services or related expenses. Each Party agrees to give the other prompt notice of the existence of a Force Majeure Event affecting the Party's performance.
The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among Client Giant, Customer or any User. Client Giant will perform the Services as an independent contractor. Neither Client Giant nor Customer is an agent of the other or is authorized to make any representation, contract or commitment on behalf of the other. No person not a party to this Agreement, including any ultimate recipient of a Gift, is an intended beneficiary of this Agreement, and no User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH SUBSCRIBER CAN SEEK RELIEF FROM CLIENT GIANT.
If a Party believes that the other is in breach of this Agreement, it will give immediate written notice to the other Party detailing the breach. The Parties will enter into good faith negotiations for a reasonable resolution of the complaint for a period of 30 days from the Party's receipt of the complaining Party's notice prior to instituting litigation or otherwise pursuing any legal remedies.
In the event the Parties are unable to resolve the dispute via good faith negotiations within 30 days, the Parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief described above arising out of or in connection with or relating to the Services, this Agreement, any Order, or the breach or alleged breach thereof, including disputes related to the interpretation, applicability, enforceability or formation of this agreement to arbitrate (collectively, "Other Claims"), exclusively by binding arbitration by the Judicial Mediation and Arbitration Services ("JAMS") under the JAMS Optional Expedited Procedures then in effect, except as provided herein). The arbitration will be confidential. JAMS may be contacted at www.jamsadr.com. Each Party will have the right to participate in the selection of the arbitrator, who may be selected by mutual agreement of the Parties or by the procedures provided by JAMS if the Parties are unable to agree on an arbitrator. Unless the Parties agree otherwise, the arbitrator shall be an attorney licensed to practice in the location where the arbitration proceedings will be conducted or a retired federal or state judicial officer who presided in the jurisdiction where the arbitration will be conducted. The arbitration will be conducted in Los Angeles, California. The language to be used in the arbitral proceedings will be English, unless otherwise agreed by the Parties. Payment of all filing, administration and arbitrator fees and costs will be governed by JAMS rules. The award rendered by the arbitrator may include a Party's costs of arbitration, its reasonable attorneys' fees and its reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either Party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of that Party's data security, Intellectual Property Rights, or other proprietary rights.
THE PARTIES AGREE THAT ANY AND ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS THE PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. SUBSCRIBER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. The dispute resolution procedure set forth in this Section will not operate to prevent a Party from seeking injunctive relief or apply to Customer's failure to make payments when due.
The Parties agree that the following disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (a) any disputes seeking to enforce or protect, or concerning the validity of, any of the intellectual property rights of a Party; (b) any dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (c) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any dispute falling within that portion of this provision found to be illegal or unenforceable and such dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.
This Agreement will be governed by the laws of the State of California without regard to any principle that would require the application of the laws of another jurisdiction.
In the event of any dispute between the Parties concerning the terms and provisions of this Agreement, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys' fees.
No waiver of any provision of this Agreement will be valid unless in writing and signed by the Party against whom such waiver is sought to be enforced, nor will failure to enforce any right hereunder constitute a continuing waiver of the same or a waiver of any other right hereunder. If any provision of this Agreement cannot be construed in a fashion that is lawful or is otherwise found void, then the Parties agree that the remaining provisions of this Agreement will continue in full force and effect as if said void provision never existed and as long as the removal of such void provision does not alter the intent of the Parties, including the economics of this Agreement.
Neither Party may assign its rights and obligations under this Agreement without the prior written permission of the other Party. Notwithstanding the foregoing, Client Giant may assign this Agreement in conjunction with a merger, consolidation, reorganization, sale of all or substantially all of its assets or similar transaction. This Agreement will be binding on each Party's successors and permitted assigns.
Customer consents to receive electronic communications, and agrees that all agreements, notices, disclosures, and other communications Client Giant provide to Customer electronically, via email, on the Site or otherwise, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY Client Giant OR VIA THE SITE. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.
This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. Electronic signatures or signature in the form of handwritten signatures in a facsimile transmittal or scanned and digitized images of a handwritten signature (e.g., scanned document in PDF format) shall have the same force and effect as original manual signatures.
The section headings used in this Agreement are for reference and convenience only and will not enter into the interpretation of this Agreement.
The relationship created by this Agreement is non-exclusive in all respects. This Agreement, together with any Orders (which are incorporated expressly herein), constitute the entire agreement between Client Giant and Customer with respect to the subject matter hereof and supersede all previous proposals, negotiations and other written or oral communications between the Parties with respect thereto. The Parties anticipate that they may provide or exchange purchase orders, acknowledgments, confirmations, invoices or other documents relating to the subscription to the Services, which may contain terms or conditions that are different from, or in addition to, this Agreement. Each Party objects to the inclusion of any different or additional terms by the other Party in any document or communications, which terms will be of no force or effect. To the extent that additional terms and conditions are linked to or are to be incorporated by hyperlink text, reference or otherwise in this Agreement, such terms are incorporated into this Agreement in their entirety by reference. To the extent there is any conflict or inconsistency between this Agreement and the terms of an Order, the terms of this Agreement will control and govern unless the Order specifically provides that it supersedes the terms of this Agreement with a specific reference to the Section to be superseded.