TERMS AND CONDITIONS
The Customer wishes to receive from Reach Studios, and Reach Studios wishes to provide to the Customer the services contemplated hereunder on the terms and subject to the conditions set forth herein. Now therefore, in consideration of the mutual representations, warranties, covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
ARTICLE 1. DESCRIPTION OF SERVICES
1.1 Submission of Service Orders. To order any service provided by Reach Studios (each a “Service”), each of which may rely on Reach Studios proprietary software (collectively the “Software”), Customer may submit a written request for such Service in the form designated by Reach Studios from time to time (each a “Submitted Order”). The Submitted Order shall include a description of the Service, the non-recurring charges and monthly recurring charges for the Service, and any terms and conditions which are specific to the Service (the “Specific Terms”). Each Service Order (as defined in Section 2.1 below), together with this Agreement shall be a separate and independent agreement, and each Service Order shall fully incorporate this Agreement as though fully set forth therein. The Initial Service Term of a Service Order shall mean the duration of time for which Services are ordered as specified in the Service Order and as measured from the date all ordered services are delivered. In the event no term is specified in the Service Order, the Initial Service Term shall be from the Effective Date through twelve (12) months from the date all ordered services are delivered. The term of a Service Order shall commence on the Service Commencement Date (as defined in Section 2.1), shall continue for the Initial Service Term and shall automatically renew for the duration of the Initial Service Term unless terminated by either Reach Studios or Customer upon no less than ninety (90) days and no more than one hundred twenty (120) days prior written notice to the other (the “Service Term”).
1.2 Acceptance by Reach Studios. In the event Reach Studios determines, in its sole discretion, to accept a Submitted Order, Reach Studios will deliver written notice of such acceptance to the Customer (the “Acceptance Notice”). A Submitted Order which has been accepted in writing by Reach Studios shall be a “Service Order”. Reach Studios’ obligations to deliver Services to Customer pursuant to a Service Order shall commence on the date of the Acceptance Notice associated with such Service Order.
1.3 Application of Terms. Each Service Order is hereby incorporated into and subject to the terms of this Agreement. The Summary of Services language in a Service Order provides an overview of Reach Studios’ services, which are more fully described herein; provided, however that in the event of any conflict among the documents comprising this Agreement, the order of priority shall be: (i) the Service Order including any relevant Specific Terms; (ii) the terms and conditions set forth in this Agreement; and (iii) any publicly filed tariff governing the Service (or a successor document in the event of detariffing). Notwithstanding the foregoing sentence, (a) all rights conferred on Reach Studios under this Agreement with respect to any matter or event shall be additional to the rights conferred on Reach Studios under the Specific Terms with respect to that matter or event; and (b) no Service Order or Specific Terms shall vary any of Customer’s indemnification obligations or Reach Studios’ limitations of liability under this Master Service Agreement.
1.4 Credit Approval and Deposits. Delivery of Service may be subject to credit approval by Reach Studios, and in such event shall be contingent on Customer’s delivery of credit information satisfactory to Reach Studios. Reach Studios may require Customer to make a deposit or deliver another form of security as a condition to Reach Studios’ acceptance of any Service Order, or as a condition to Reach Studios’ continuation of Service. Deposits will be held by Reach Studios as security for payment of fees incurred under Customer’s Service Orders. Upon expiration or termination of a Service Order, Reach Studios shall credit the amount of Customer’s deposit to Customer’s account and shall refund to Customer any remaining credit balance.
1.5 Description of API Services. Pursuant to the terms of an accepted Service Order, Reach Studios will provide Customer with access to Reach Studios’ application program interface (“API”) for the purpose of delivering disposition information related to email records (in plain text or encrypted formats) submitted by Customer via such API. “Disposition information” may include, without limitation, association of such email with complaints, unsubscribes, FBLs, interest categories, demographic categories, and other information.
1.6 Description of Data Management Services. Pursuant to the terms of an accepted Service Order, Reach Studios will provide data management Services on behalf of Customer, including without limitation a) receiving and sending data via HTTP, API, batch FTP upload, or other mutually agreed method; b) data segmentation; c) data encoding or encryption; d) data manipulation, including data matching, data appends, and other data association; e) and other data management tasks as may be defined by the parties or as reflected in the applicable Service Order.
ARTICLE 2. BILLING AND PAYMENT
2.1 Commencement of Billing. Reach Studios will provide Customer with written or verbal notice upon implementation of any Service ordered pursuant to a Service Order (the “Service Commencement Date”). Billing shall commence on the Service Commencement Date.
2.2 Service Fees. The Service Order will set forth any applicable non-recurring fees and recurring fees for the Services. Unless otherwise expressly specified in the Service Order, any non-recurring charges shall be invoiced by Reach Studios and due from Customer on the Service Commencement Date. In the event a Service Order requires Reach Studios to install additional equipment, infrastructure, or other materials in the provisioning of the Services, pre-payment of non-recurring charges related to such Service Order may be a condition of the effectiveness of such Service Order. In the event Customer fails to pay any non-recurring charges within the time period specified in a Service Order, (i) such failure to pay shall constitute an Excused Outage (as defined below) for purposes of installation of the Service; (ii) Reach Studios may revise the date that the Service will be available to Customer as set forth in the Service Order or any other written notice from Reach Studios to Customer (the “Customer Commit Date”); (iii) Reach Studios may suspend installation of the Service until receipt of such non-recurring charges; and/or (iv) Reach Studios may terminate this Agreement. If Customer requests and Reach Studios approves (in its sole discretion) any changes to the Service Order including, without limitation, the Service installation date or Service Commencement Date, additional non-recurring charges and/or monthly recurring charges not otherwise set forth in the Service Order may apply. An “Excused Outage” shall mean any outage, unavailability, delay or other degradation of a Service related to, associated with or caused by (a) scheduled maintenance events, (b) Customer actions or inactions, (c) Customer-provided power or equipment, (d) any third party including without limitation Customer’s end users, Reach Studios’ third party network providers, traffic exchange points controlled by third parties, or any power, equipment or services provided by third parties, (e) non-payment by Customer; or (f) a Force Majeure Event as defined in Section 5.1.
2.3 Payment of Invoices. Reach Studios shall invoice Customer monthly in advance for Services to be provided to Customer during the next calendar month; provided however that charges that are dependent upon usage of a Service shall be billed monthly in arrears, and initial invoices may be issued on the Service Commencement Date. Invoicing for partial months shall be prorated based on the calendar month. All invoices are due ten (10) calendar days from the date of invoice. Unless otherwise specified on the particular invoice, all payments shall be due and payable in U.S. Dollars. Past due amounts shall accrue interest at a rate of One and a Half Percent (1.5%) per month or the highest rate allowed by law, whichever is lower, beginning from the date first due until paid in full. Customer shall pay all collections costs incurred by Reach Studios, including without limitation reasonable attorney’s fees. All payments will be applied first to any past due amounts, including, but not limited to, late fees, increased security deposit, collection costs and attorney’s fees; second, to any Services billed in arrears; third, to any Services billed in advance; and finally, to any other fees or Services, whether or not noted in any invoice, which have been incurred during the billing cycle.
2.4 Taxes and Fees. All Service fees are net of Applicable Taxes (as defined below). Except for taxes based on Reach Studios’ net income, Customer shall be responsible for all applicable taxes that arise in any jurisdiction, including, without limitation, value added, consumption, sales, use, gross receipts, excise, access, bypass, franchise or other taxes, fees, duties, charges or surcharges, however designated, imposed on, incident to, or based upon the provision, sale or use of the Service (collectively “Applicable Taxes”). If Customer is entitled to an exemption from any Applicable Taxes, Customer is responsible for presenting Reach Studios with a valid exemption certificate in a form reasonably acceptable to Reach Studios. Reach Studios will give effect to any valid exemption certificate provided in accordance with the foregoing sentence to the extent it applies to any Service billed by Reach Studios to Customer following Reach Studios’ receipt of such exemption certificate.
2.5 Regulatory and Legal Changes. In the event of any change in applicable law, regulation, decision, rule or order that materially increases the costs or other terms of delivery of Service, Reach Studios and Customer will negotiate in good faith the revised fees to be charged to Customer in order to reflect such increased costs. In the event that the parties are unable to mutually agree upon the revised fees within thirty (30) days after Reach Studios’ delivery of written notice of such increased costs, (a) Reach Studios may pass such increased costs through to Customer, and (b) if Reach Studios elects to pass such increased costs through to Customer, Customer may terminate the affected Service without termination liability pursuant to Section 2.7 or Section 2.8 hereunder by delivering written notice of termination no later than thirty (30) days after the effective date of such rate increase.
2.6 Disputed Invoices. In the event Customer reasonably disputes any portion of a Reach Studios invoice, Customer must pay all amounts not in dispute as set forth above and provide Reach Studios with a written request for billing adjustment (in a form reasonably requested by Reach Studios) together with all supporting documentation within thirty (30) days from the date of the invoice or Customer’s right to billing adjustment shall be waived. In the event of a billing dispute the parties shall promptly resolve the dispute by mutual agreement or by arbitration pursuant to Section 5.14. Any disputed amounts due and owing to Reach Studios after resolution of such dispute shall be paid to Reach Studios plus accrued interest pursuant to Section 2.3. In the event any past due amount is not paid in full within three (3) business days of written notification by Reach Studios, Customer shall be considered in material breach of this Agreement and be subject to the remedies pursuant to Section 3.3.
2.7 Service Order Termination. Customer may terminate a Service Order by providing thirty (30) days prior written notice to Reach Studios (a “Termination Notice”). Customer shall pay Reach Studios a Termination Fee (as defined below) in the event a) Customer delivers a Termination Notice terminating the Service Order prior to the end of the Service Term; or b) a Service Order is terminated by Reach Studios due to a material breach of such Service Order or this Agreement, including without limitation non-payment by Customer pursuant to such Service Order. The Termination Fee shall be equal to the sum of (i) the costs incurred by Reach Studios in returning the resources used to provide the Services (e.g. IP addresses) to a condition suitable for use by third parties; (ii) any third party cancellation or termination charges incurred by Reach Studios related to the installation and/or termination of the Service Order; (iii) any unpaid non-recurring fees of the cancelled Service Order (including any non-recurring fees that were waived by Reach Studios at the time of the Service Order); and (iv) One Hundred Percent (100%) of the monthly recurring fees calculated from the effective date of termination through the end of the Service Term. Customer agrees that the fee under this Section 2.8 is not a penalty fee, but the actual amount of the contract due and payable upon termination. Customer hereby waives any and all rights or remedies that might otherwise be granted under applicable state or federal laws to reduce any cancellation fee or termination fee. This paragraph shall survive any expiration or termination of this Agreement.
2.8 Fraudulent Use of Services. Customer shall be responsible for all fees attributable to Customer with respect to any Service, even if such fees are incurred as the result of a third party’s fraudulent or unauthorized use of such Service.
ARTICLE 3. TERM AND TERMINATION
3.1 Term. The term of this Agreement shall commence on the Effective Date and shall continue for such time as there is at least one Service Term in effect (the “Initial Term”). At the end of the Initial Term, the term of this Agreement shall automatically renew on a month-to-month basis until i) a new Service Order is entered into between the parties (in which event the Initial Term of this Agreement shall continue until the expiration of the Service Term) or ii) terminated by either party upon thirty (30) days prior written notice to the other party. Except as otherwise set forth herein, Reach Studios shall deliver the ordered Services for the entire duration of the Service Term, and Customer shall pay all charges for delivery thereof through the end of the Service Term. Notwithstanding anything herein to the contrary, in no event shall Customer be permitted to terminate this Agreement during such time as there is at least one Service Term in effect. Termination of an individual Service Order shall not constitute termination of this Agreement.
3.2 Default By Customer. If (i) Customer makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorgani¬zation, arrangement, adjustment, composition, liquidation, dissolution or similar relief not discharged within thirty (30) days; (ii) an invol¬untary petition in bankruptcy, other insolvency protection against Customer is filed and not dismissed within sixty (60) days; (iii) Customer fails to make any payment required hereunder when due, and such failure continues for a period of five (5) business days after the due date, (iv) Customer fails to observe and perform any material term of this Agreement (other than payment terms) and such failure continues for a period of thirty (30) days after written notice from Reach Studios; (v) a third party vendor to Reach Studios providing services material to the delivery of the Services to Customer terminates such services due to Customer’s use of the Services; or (vi) Customer’s use of the Services materially exceeds Customer’s credit limit, and Customer fails to provide adequate security for payment of the Services, as determined in Reach Studios’ sole discretion, within one (1) business day of written notice thereof by Reach Studios, then Reach Studios may: (a) termi¬nate this Agreement and any Service Order, in whole or in part, without prior notice, in which event Reach Studios shall have no further duties or obligations thereunder, and/or (b) pursue any remedies Reach Studios may have under this Agreement, at law or in equity.
3.3 Remedies Upon Default by Customer. If Customer fails to cure any default in Section 3.2 within the time specified, then until such time that either Customer has paid the outstanding balance in a form of payment immediately available to Reach Studios, or Customer has cured the default to Reach Studios’ satisfaction and in Reach Studios’ sole discretion, Reach Studios shall have the right to deny access to any and all resources used to provide Services contracted by Customer, and require in full the payment for any rent, service, or equipment that was provided for free or whose price was reduced as a business incentive or credit against normal charges. In the case of Section 4.2(iii), Reach Studios shall have the right to disconnect any Services if the default continues for more than five (5) days beyond the initial cure period. Customer hereby waives any rights or remedies that might otherwise be granted under applicable state laws.
3.4 Default By Reach Studios. If (i) Reach Studios makes a general assignment for the benefit of its creditors, files a voluntary petition in bankruptcy or any petition or answer seeking, consenting to, or acquiescing in reorgani¬zation, arrangement, adjustment, composition, liquidation, dissolution or similar relief; (ii) an invol¬untary petition in bankruptcy, other insolvency protection against Reach Studios is filed and not dismissed within sixty (60) days; or (iii) Reach Studios fails to observe and perform any material term of this Agreement in violation of the provisions herein and such failure continues for a period of thirty (30) days after written notice from Customer; then Customer may: (a) terminate this Agreement and/or any Service Order, in whole or in part, in which event Customer shall have no further duties or obligations thereunder, and (b) subject to Section 5.1, pursue any remedies Customer may have under this Agreement, at law or in equity.
ARTICLE 4. LIABILITIES AND INDEMNIFICATION
4.1 Indemnification Obligations. Customer shall defend, indemnify and hold Reach Studios harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including legal costs, court costs and attorney’s fees incurred by Reach Studios) incurred, or sustained by any third party arising out of or in connection with or by reason of (a) Customer’s breach of or non-compliance with this Agreement, (b) Customer’s violation of any law relating to using the Services, (c) the use of the Services by Customer or any third party in any way (whether with or without the authorization and/or permission of Customer), (d) any picture, material, content, statements, goods or services offered, published, circulated, sold or otherwise made available by Customer or any third party to any person in the course of the use of any Service, (e) Customer’s acts or omissions in using, displaying or distributing any internet links obtained from the Services or elsewhere, including but not limited to Customer’s use of internet links via email distribution, (f) any violation or alleged violation by Customer of any rights of another, including breach of a person’s or entity’s intellectual property rights, (g) any damage to any equipment operated or used, or any disruption or interference with the provision or operation of any Service arising from the installation and/or use of any equipment by Customer or any other third party (whether with or without the authorization and/or permission of Customer), (h) the enforcement by Reach Studios of any rights against Customer under this Agreement and/or any proceedings commenced by Reach Studios for such purpose or (i) Customer’s gross negligence or willful misconduct (the “Reach Studios Claims”). Reach Studios shall defend, indemnify and hold Customer harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorney’s fees and court costs) incurred, or sustained by third parties, including but not limited to customers, as a result of (a) Reach Studios’ breach of or non-compliance with this Agreement, (b) Reach Studios’ violation of any law relating to providing the Services, or (c) Reach Studios’ gross negligence or willful misconduct (the “Customer Claim(s)”). The Customer Claims and Reach Studios Claims shall together be the “Claims”. Should any Claim give rise to a duty of indemnification under this Agreement, the party seeking indemnification shall promptly notify the other party, and the party to be indemnified shall be entitled, at its own expense, and upon reasonable notice to other party, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce either party’s obligations to indemnify or hold the party to be indemnified harmless. Neither party shall settle any Claim without the party to be indemnified’s prior written consent. In the context of this section, the terms “Reach Studios” and “Customer” shall include officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors. The indemnification provisions contained herein shall survive the termination of this Agreement.
4.2 No Special Damages. Notwithstanding any other provision hereof, Reach Studios shall not be liable in any way to Customer whether in contract, tort (including negligence or breach of statutory duty) or otherwise for any direct, indirect, incidental, special, consequential, exemplary or punitive damages (including without limitation, damages for lost profits, lost revenues or the cost of purchasing replacement services) sustained or incurred by Customer howsoever caused or arising (i) from any performance, breach or failure to perform by Reach Studios under any Service Order or this Agreement; (ii) any defect, deficiency, breakdown or failure of any Reach Studios Service, or the incompatibility or unsuitability of any Reach Studios Service in relation to or in conjunction with any other system or equipment, (whether used or operated by Customer or any other person); (iii) any defect or deficiency in or the breakdown or failure of any equipment or system (whether or not maintained or operated by Reach Studios or any other person) howsoever arising; (iv) any defect, deficiency or deterioration in the quality of any signal or data transmitted as part of any Service; (v) any loss, corruption or deletion of any data or information (whether belonging to, provided or stored by Customer or otherwise) transmitted to or stored in any system or equipment (whether or not maintained or operated by Reach Studios, Customer or any other person), howsoever caused or arising; (vi) any Force Majeure Event (as defined in Section 5.1 below); or (vii) any error, omission or inaccuracy in any information provided by Reach Studios whether to Customer or any person and whether in any publication or as part of or in connection with any Service or otherwise. NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, EXCEPT THOSE EXPRESSLY SET FORTH HEREIN.
4.3 Limitation of Liability. Reach Studios’ entire liability to Customer whether in contract, tort (including negligence or breach of statutory duty) or otherwise for any and all losses, damages or liabilities caused or arising from any breach, failure or default of Reach Studios to perform any of its obligations or duties to Customer (whether arising under this Agreement or at law) with respect to any Service shall not in aggregate exceed the amount equal to only those fees with respect to the Services which are prescribed and imposed with reference to any time frame or interval (but not usage) for the period of three (3) months immediately preceding such breach, failure or default on the part of Reach Studios or, if the amount of the fees for such period is zero, the amount equal to the total amount of the fees paid by Customer to Reach Studios for the same period. No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action shall be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.
ARTICLE 5. GENERAL TERMS
5.1 Force Majeure. Neither party shall be liable, nor shall any credit allowance or other remedy be extended, for any failure of performance or equipment due to causes beyond such party’s reasonable control (other than a failure to comply with payment or security obligations), including without limitation: acts of God, fire, explosion, vandalism, cable cuts, storms or other similar catastrophes; any law, orders, regulations, direction, action or request of the United States government, or of any other government, including state and local governments having jurisdiction over either of the parties, or of any department, agency, commission, court, bureau, corporation or other instrumentality of any one or more of said governments, or of any civil or military authority; national emergencies; acts of terrorism, insurrections, riots, wars, or strikes, lockouts, work stoppages or other labor disputes or difficulties (a Force Majeure Event”). In the event Reach Studios is unable to deliver a Service as a result of a Force Majeure Event, Customer shall not be obligated to pay Reach Studios for the affected Service for so long as Reach Studios is unable to deliver such affected Service.
5.2 Assignment and Resale. Customer may not assign its rights and obligations under this Agreement or any Service Order without the express prior written consent of Reach Studios. Reach Studios may upon seven (7) days written notice to Customer assign this Agreement in whole or in part with all terms and conditions remaining in effect. This Agreement shall apply to any permitted transferees or assignees. Notwithstanding any assignment by Customer, Customer shall remain liable for the payment of all charges due under each Service Order. Customer may resell the Service to third parties (each an “End User”), provided that in such event (i) any such End User agrees that such Service is provided pursuant to and governed by the terms and conditions of this Agreement; (ii) Customer shall be jointly and severally liable for all claims and liabilities arising under this Agreement related any Service used or delivered on behalf of an End User; (iii) any event of default under this Agreement by any End User shall also be deemed an event of default by Customer; (iv) any reference to Customer in this Agreement shall be deemed a reference to the applicable Customer End User; and (v) Customer shall indemnify, defend and hold Reach Studios harmless from claims made against Reach Studios by such End Users. This Section 5.2 shall survive any termination or expiration of this Agreement.
5.4 Data Protection. During the performance of this Agreement, it may be necessary for Reach Studios to transfer, process and store data associated with the Services. Customer hereby consents that Reach Studios may transfer, store and process such data, and use such data for its own internal purposes and as allowed by law.
5.5 Contents of Communications. Reach Studios shall have no liability or responsibility for the content of any communications transmitted via the Services, and Customer shall defend, indemnify and hold Reach Studios harmless from any and all claims (including claims by governmental entities seeking to impose penal sanctions) related to such content or for claims by third parties relating to Customer’s use of the Services. Reach Studios provides only access to the Internet; Reach Studios does not operate or control the information, services, opinions or other content of the Internet. Customer agrees that it shall make no claim whatsoever against Reach Studios relating to the content of the Internet or respecting any information, product, service or software ordered through or provided by virtue of the Internet.
5.6 Publicity. Neither party shall have the right to use the other party’s or its affiliates’ trademarks, service marks or trade names or to otherwise refer to the other party in any marketing, promotional or advertising materials or activities. Neither party shall issue any publication nor any press release relating to any contractual relationship between Reach Studios and Customer, except as be required by law or agreed between the parties in writing. Reach Studios reserves the right to provide any customer or potential customer bound by a nondisclosure agreement access to a list of Reach Studios customers and a description of the Services purchased by such customers. Customer consents to such disclosure, including the listing of Customer’s name and the Services purchased by Customer (financial terms relating to the purchase of Services shall not be disclosed).
5.7 Confidentiality. Customer understands and agrees that the terms of this Agreement are confidential and proprietary to Reach Studios, and under no circumstances shall Customer disclose the terms or nature of this Agreement to any third party. During and prior to the course of this Agreement, Customer will be exposed to proprietary or confidential information of Reach Studios (the “Confidential Information”), which shall include without limitation oral, written, and machine-readable information, not generally known in the relevant trade or industry, obtained from Reach Studios which falls within any of the following general categories: (a) information constituting trade secrets of Reach Studios or its vendors or licensors; (b) information relating to existing or contemplated products, services, technology, designs, processes, formulae, computer systems, computer software, reports, algorithms and research or developments of Reach Studios or its vendors or licensors; (c) information relating to the manner and method by which business is conducted, including but not necessarily limited to internal documents, handbooks, policies, forms, plans, requirements, processes, procedures, sales or marketing methods or practices, price lists, the names of contractors, employees, advisors, directors, or other involved personnel; (d) information marked “Confidential”, “Restricted”, “Internal Use Only” or “Proprietary”; and (e) information obtained from other parties by Reach Studios that is protected under non-disclosure agreements. Except as otherwise permitted by express, written consent signed by Reach Studios, Customer agrees to keep the Confidential Information in the strictest confidence, and shall not use any Confidential Information or the concepts therein for its own benefit or for the benefit of a third party or for any purpose other than the purpose for which such Confidential Information is disclosed. Furthermore, Customer shall keep confidential any materials that constitute, relate to, or derive from any Confidential Information, and all such materials shall be returned to Reach Studios or be destroyed to Reach Studios’ satisfaction upon written request by Reach Studios. Customer’s obligation to protect the Confidential Information shall remain in full force and effect during the term of this Agreement and for three years afterward unless otherwise agreed in writing. Notwithstanding the foregoing, Reach Studios agrees that Customer shall have no obligation with respect to any information which Customer can establish a) was already known to Customer prior to disclosure by the other party, b) was or becomes publicly known through no wrongful act of Customer or a third party, c) was rightfully obtained by Customer from a third party without similar restriction and without breach hereof, d) was used or disclosed by Customer with the prior written authorization of Reach Studios, e) was disclosed pursuant to the requirement or request of a governmental agency, which disclosure cannot be made in confidence, provided that in such instance, Customer shall first give to Reach Studios reasonable notice of such requirement or request, or f) was disclosed pursuant to the order of a court or quasi judicial body of competent jurisdiction or a lawfully issued subpoena, provided that Customer shall take reasonable steps to obtain an agreement or order that, to the greatest extent possible, this Agreement will be applicable to all disclosures under the court order or subpoena. Notwithstanding anything contained herein to the contrary, if Customer is unintentionally exposed to any of Reach Studios’ Confidential Information, Customer agrees that it shall not, directly or indirectly, disclose, divulge, reveal, report or transfer such Confidential Information to any person or entity or use such Confidential Information for any purpose whatsoever.
5.8 Software and Service Restrictions; US Export Control. Customer acknowledges that Reach Studios has proprietary relationships with various affiliates, publishers, providers and other third-parties (collectively, “Reach Clients”). During the term of this Agreement and for one (1) year following termination or expiration of this Agreement, Customer agrees not to circumvent Reach Studios’ relationships with Reach Clients or otherwise solicit, purchase, contract for or obtain services similar to the services performed by Reach hereunder from any Reach Client that is known, or should reasonably be known, by Customer to have such a relationship with Reach Studios. Customer agrees that monetary damages for its breach, or threatened breach, of this section will not be adequate and that Reach Studios shall be entitled to: (A) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; and (B) any and all other remedies available at law and in equity.
5.9 Governing Law. This Agreement shall be governed by the laws of the State of Texas, U.S.A., without regard to its choice of law rules. Customer hereby submits to the exclusive jurisdiction of Harris County, Texas with respect to any and all claims and disputes between Reach Studios and Customer relating to or arising from this Agreement.
5.11 Modification. This Agreement, and any Service Schedule or Service Order, may only be modified or supplemented by a written instrument, executed by a duly authorized representative of each party. Without limiting the generality of the foregoing, any handwritten changes to a Service Order shall be void unless acknowledged and approved in writing by a duly authorized representative of each party.
5.12 Arbitration. Any dispute, controversy or claim arising out of or related to this Agreement (other than any default by Customer that is not cured within the applicable time periods set forth elsewhere herein) shall be resolved in accordance with the procedures set forth in this Section 5.14. Prior to submitting the dispute to arbitration, the parties agree to attempt, in good faith, within a commercially reasonable period of time not to exceed thirty (30) days unless extended by mutual agreement of the parties, to resolve such dispute through negotiations between senior management of the parties. Any unresolved dispute shall be finally settled by binding arbitration in Harris County, TX under its then-current commercial arbitration rules. The dispute shall be heard and determined by a single arbitrator who shall be an attorney with experience in telecommunications law. The arbitrator shall issue a reasoned decision in support of the award. The decision and award rendered by the arbitrator shall be final and conclusive. Judgment upon the award rendered by the arbitrator may be entered and enforced in any court of competent jurisdiction. The cost of the arbitration, including the fees and expenses of the arbitrator, and administrative fees, shall be shared equally by the parties unless the award provides otherwise; however, the prevailing party shall in all events recover its reasonable attorney’s fees from the non-prevailing party. In no event shall the arbitrator have the power to award any punitive, consequential, indirect, exemplary damages or other damages in excess of the limitations of liability set forth herein. Notwithstanding the foregoing, claims for preliminary injunctive relief may be brought in a state or federal court in the United States, subject to Section 5.11 herein.
5.13 Audit Rights. During the term of this Agreement and for a period of twenty-four (24) months thereafter, Customer shall preserve and maintain any books and records associated with performance-based fees paid for Services (the “Performance-Based Fees”). Reach Studios shall have the right, at its own expense, to access the books and records of Customer as may be reasonably necessary to verify the accuracy of the Performance-Based Fees and any records or other data used to calculate the Performance-Based Fees. Such audit shall be conducted a) by an independent certified public accountant; b) upon no less than thirty (30) days prior written notice; c) during ordinary business hours; and d) in a manner that does not unreasonably disrupt Customer’s operations. In the event the audit report by such independent certified public accountant (the “Audit”) shows any underpayment of fees, Customer shall make payment to Reach Studios in an amount equal to the amount of such underpayment. In the event such underpayment exceeds five percent (5%) of the Performance-Based Fees for the period audited, Customer shall also pay the reasonable fees and expenses of the independent accountant performing the audit. In the event the Audit shows any overpayment by Customer, Reach Studios shall pay to Customer the amount of such overpayment. Payments by either party pursuant to this section shall be made by wire transfer within thirty (30) days of issuance of the Audit.
5.14 Relationship of the Parties. The relationship between Customer and Reach Studios shall not be that of partners, agents, or joint ventures for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, without limitation, for federal income tax purposes.
5.15 No Waiver. Failure to enforce at any time the provisions of this Agreement by either party shall not operate or be construed as a waiver of any prior or subsequent breach of the same or other provisions, nor in any way affect the ability of either party to enforce each and every such provision.
5.16 Non-Solicitation. During the Term and for a period of twenty-four (24) months thereafter, Customer shall not solicit, induce, or attempt to solicit or induce any officer, director, employee, agent or consultant of the Company or any of its subsidiaries, affiliates, strategic partners, successors or assigns to terminate his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for any reason. Customer shall not solicit, induce, or attempt to solicit or induce any customers, clients, vendors, suppliers or consultants then under contract to the Company or its subsidiaries, affiliates, strategic partners, successors or assigns, to terminate his, her or its relationship with the Company or its subsidiaries, affiliates, strategic partners, successors or assigns for any reason.
5.17 Severability; Survival. If any provision of this Agreement is held in whole or part to be unenforceable for any reason, such provision shall be deemed amended to conform to the laws of the applicable jurisdiction to be valid and enforceable. If it cannot be so amended without materially altering the intention of the parties, the provision will be stricken but the remaining provisions of this Agreement will be severable and remain in full force and effect. The provisions of this Agreement that by their nature are meant to survive the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
5.18 Joint Product. The parties acknowledge that this Agreement is the joint work product of the parties. Accordingly, this Agreement shall not be constructed or interpreted against either party based on authorship.
5.19 Third Party Beneficiaries. This Agreement shall be binding upon, inure solely to the benefit of and be enforceable by each party and their respective successors and assigns hereto, and nothing in this Agreement, express or implied, is intended to or shall confer upon any thirty party any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
5.20 Attorney’s Fees. Should a dispute arise between Reach Studios and Customer, all expenses including reasonable attorneys’ fees and costs shall be awarded to the prevailing party.
Customer acknowledges they have read these Terms and Conditions, understands them and agrees to honor the above Terms and Conditions. Please print a copy of these Terms and Conditions for your records.