Terms of Service

“Available Data” means the aggregate collection or specific groupings (as applicable) of Available Segments and/or other information contained within the Data Catalog, the use of which is governed by the this Agreement.     

“Available Segments” means the specific Available Data elements, each as tied to NexusData Corp cookies, tags, mobile and/or device IDs, HEMs or other mutually agreed user designation, which may be used for the designated Authorized Applications.  

“Company Data” means data transmitted by Company via the NexusData Corp super pixel to the Platform for the usage of its functionalities, and the Services. The data set may include the following data attributes: online identifiers (such as advertising ID or cookie ID), offline identifiers (such as email address or phone number), consent preferences, browsing data, interest data, or sociodemographic data.  

“Company IDs” means Company’s cookie, mobile and/or device IDs, or other mutually agreed means of designating users.  

   

“Company Marks” means Company’s name and/or logo.  

   

“Confidential Information” means all information that one party discloses to the other that is marked confidential or would normally be considered confidential information under the circumstances. This includes, but is not limited to, the Data Catalog, Available Data, Company IDs, NexusData Corp IDs, marketing plans, proposals, pricing information, books and records of usage, any other proprietary information of the disclosing party, and the terms of this Agreement.  Confidential Information does not include information that is independently developed by the recipient, is rightfully disclosed to the recipient by a third party without confidentiality obligations, or becomes public through no act or omission of the recipient.  

   

“Custom Data” means custom data segments created by the use and/or enrichment of Company Data of or with the Available Data via the Platform.  

   

“Data Catalog” means the collection of Available Data and the NexusData Corp proprietary ID Graph, which may be provided in one or more different formats by NexusData Corp to Company, via the Platform.  

   

“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.  

   

“Platform” means the NexusData Corp proprietary platform and ID Graph through which Company receives digital marketing software or services that may include, but not be limited to, the dynamic purchase of targeting data or measurement/analytics services.  

   

“Platform User” means a Company employee or authorized user of the Platform.  

   

 “Security Program” means an information security program that has administrative, technical and physical safeguards appropriate for the company’s size and complexity, the nature and scope of its activities, and the sensitivity of the information received from the other party and that is sufficient to protect any Confidential Information disclosed by the other party.  

   

“Services” means those certain data and identity services identified and set forth in a Service Order issued subject to the terms and conditions of this Agreement and annexed hereto as Schedule A.  

   

“Third Party Platform” means the platform(s) through which Company provides digital marketing software or services that may include, but not be limited to, the dynamic purchase of media or measurement/analytics services.  

   

LICENSE.  

   

Grant & Rights. NexusData Corp grants Company a worldwide, non-exclusive, non-transferable license to access and use the Platform and Available Data solely for use in the designated Authorized Applications during the Term, and for no other purpose, subject to Company’s compliance with the terms of this Agreement. Company’s access and use of Available Data (as permitted and as applicable) by or for the use via the Third Party Platforms or through managed services, as contemplated in this Agreement and Service Order is permitted under this license but shall not be deemed to constitute a sublicense or transfer of such Available Data by Company to the any Third Party Platforms or any third party.  

This Agreement grants Company no title to or ownership of or license to the Available Data or Data Catalogue, and Company receives no rights to the Available Data or Data Catalogue other than those specifically granted to it by NexusData Corp pursuant to this Agreement.  

   

   

   

COMPANY DATA.  

Company grants NexusData Corp a limited, non-exclusive, non-sublicenseable, and non-transferable license to the Company Data for the specific provision of the Services as set forth in the applicable Service Order and subject to the terms and conditions of this Agreement, including the rights to: (a) receive and store the Company Data; (b) reproduce and make derivative works of the Company Data in accordance with the Company directives via the Platform; and (c) transmit the Company Data in accordance with Company’s instructions via the Platform.   

Company understands, acknowledges, and agrees that NexusData Corp will process and store any Company Data transmitted to NexusData Corp as a processor or subprocessor of Company in accordance with applicable privacy Laws, rules, and regulations.   

TERM & TERMINATION.  

Term.  The term of this Agreement shall commence on the Effective Date and shall continue therefrom, unless otherwise terminated by either Party in accordance with the terms of this Agreement, for a period of twelve (12) months, or as otherwise set forth in the applicable Service Order (“Term”).   

Termination.  If a Party is in default under this Agreement and fails to cure such default within thirty (90) days of written notice from the other Party specifying the nature of such default, the non-defaulting party may terminate this Agreement immediately by providing additional written notice of termination to the defaulting party. However, in the event a breach is not capable of cure, the non-breaching party may, in addition to any other right and remedy available at Law or equity, terminate this Agreement immediately upon written notice.    

Change in Law. The Parties acknowledge and agree that: (i) the state of the Law with respect to behavioral advertising, contextual advertising, cookies, personally identifiable information, cross-device targeting, and informational privacy is evolving; and (ii) subsequent to the Effective Date, new Laws or changes to existing applicable federal, state, and local Laws, rules, and regulations, and/or changes to the Digital Advertising Alliance (“DAA”) Interactive Advertising Bureau (“IAB”) and Network Advertising Initiative (“NAI”) Self-Regulatory Principles (each, a “Change in Law”) may hold that the collection and use of data and cookies, or other activities as contemplated under this Agreement and/or Service Order are no longer permissible. If, in NexusData Corp’s judgment, any Change in Law prohibits the delivery or use of any Available Data, NexusData Corp may terminate this Agreement immediately or upon the effective date of the legislation or regulations and Company shall immediately discontinue using all such Available Data.  

Upon the termination of this Agreement for any reason, each receiving Party shall destroy all Confidential Information (including complete deletion and the rendering as inaccessible of all Available Data) of the disclosing Party and any copies thereof and certify in a writing to be delivered to the disclosing Party within thirty (30) days thereafter that it has fully complied with the requirements of this Section. Notwithstanding the foregoing, a party may maintain one (1) copy of any Confidential Information solely for legal, regulatory, compliance and archival purposes only and not for any commercial purpose and such copy shall be maintained in a secure offline server. Upon termination, Company shall promptly pay to NexusData Corp any outstanding fees owed.  

   

AVAILABLE DATA USES & RESTRICTIONS  

  

  NexusData Corp will make available to Company the Data Catalog, and such Data Catalog shall be incorporated into this Agreement.  On a case-by-case basis, Custom Data may be provided to Company, and such information shall be considered within scope of the Data Catalog.  

    

The Data Catalog will be updated as needed by NexusData Corp, and the most current version will govern usage of Available Data.  Company representatives shall be immediately notified or provided with updated Data Catalogs when available.  Company agrees to obtain and utilize the most recent Data Catalog.  In its sole discretion, NexusData Corp may change any Available Data at any time, may choose to prevent distribution of Available Data, and may request that Company destroy and/or immediately discontinue any and all use and access to any Available Data (including Custom Data) at any time.  Where Available Data is being used for an active campaign, all reasonable commercial efforts will be made to continue to support Company’s needs through the end of the applicable campaign.  

   

   Any use of any Available Data not specifically provided for in this Agreement or designated within the most current Data Catalog as made available to Company or via mutually executed amendment as set forth in Section 14.14 hereof to this Agreement is hereby expressly excluded and outside the scope of this Agreement.  

  

  

Company will use best efforts to ensure it does not use or provide access to or use of Available Segments to any unauthorized third parties. Upon discovery that such access or use has been enabled, Company shall immediately (i) correct such error and (ii) provide NexusData Corp with written notice with details of such error including the name of the unauthorized third party and the dates, scope and extent of access/use.  

  

  

Audience Targeting & Analytics Uses.  Where the Authorized Application is for audience targeting, the Available Data may be used for related applications such as audience counts and associated campaign planning or reporting analytics for which Company is not specifically compensated.  Where Analytics are offered by Company on a Platform-fee, project or other paid-for basis, Company may only use Available Data for these purposes where such use is an Authorized Application and NexusData Corp is compensated for such use.    

  

  

Company may utilize, or permit the utilization by a Platform User, of Available Data for the purpose of excluding certain consumers from a campaign.  Notwithstanding the foregoing, Company shall not use or permit such use in a manner that results in an otherwise eligible consumer’s exclusion from a marketing campaign based on such consumer’s status in a protected class (e.g., race, gender, religion) but only to the extent that the product or service being marketed does not reasonably and inherently target consumers outside of such protected classes. For purposes of exclusion audience usage, Company shall report and pay to NexusData Corp the applicable fees for the actual targeted audience remaining and served ads after the excluded individuals have been suppressed.  

  

  

If a Platform User uses the Platform or Company’s services via a single account for the benefit of multiple Platform User clients, such as a publisher or agency, Platform User shall indemnify and hold NexusData Corp harmless from any and all third-party damages, claims and liabilities resulting from such Platform User’s inappropriate or unpermitted actions in breach of this Agreement.  

  

  

Without limiting other restrictions in this Agreement, Company agrees to the following specific restrictions.  Unless otherwise permitted in this Agreement, Company shall not: (i) “white label” any Available Data; not include Available Data in any kind of blind exchange environment; (ii) resell Available Data usage as other than as contemplated in this Agreement; (iii) redistribute data to any third-party other than to fulfill a specific client campaign, which shall require use of a select audience segment on a third party and only for a limited duration; (iv) create derivative segments or products or create new segments or new products from any Available Data; or (v) reveal any  domains to any of Company’s clients.  

  

  

Available Data may not be utilized in connection with the advertisement or marketing of products or services in connection with the establishment of an individual’s creditworthiness or eligibility for credit, insurance or employment; credit repair services; or the sale or exchange of any illegal or illicit products, including without limitation pornography, illegal drugs or illegal weapons.  

  

  

COMPLIANCE & INDUSTRY BEST PRACTICES.  

   

Each Party will comply with: (i) all privacy and data protection Laws, rules and regulations; (ii) with the Digital Advertising Alliance (“DAA”), Network Advertising Initiative (“NAI”), and/or Interactive Advertising Bureau’s (“IAB) published policies that are or may in the future be applicable to the Authorized Applications; and (iii) with applicable federal or state Laws or regulations as now or as hereafter become effective in connection with its use of the Available Data.  

Company agrees to the terms and conditions set forth below and agrees that any Platform Users of Company’s Platform, if applicable, will agree to the following in writing.  Upon any knowledge by Company of a Platform User’s violation of any of these provisions Company shall immediately cease providing access to and use of all Available Data by or for the benefit of such Platform User.  

All marketing communications distributed to consumers in connection with use of the Available Data shall: (a) be devoid of any reference to any selection criteria or presumed knowledge concerning the intended recipient (example: a marketing communication stating “Because you’re pregnant, you might like…” would be in violation); (b) be in compliance with all applicable Laws, rules and regulations; and (c) be in compliance with all applicable privacy policies and the principles and/or best practices set forth by the Federal Communications Commission, and Interactive Advertising Bureau, and any applicable data protection authorities.   

   

FEES.  

Pricing. Applicable pricing for Available Data shall be set forth in the annexed Exhibit A, and Company agrees to pay NexusData Corp the applicable fees incurred.   

Usage Reporting.  Company agrees that at all times it shall maintain current, accurate and complete books and records relating to its usage of the Available Data and all resulting payments due to NexusData Corp, which books and records shall be deemed Confidential Information.  Company’s reporting system is the system of record.  Each month, Company will provide usage reporting for Available Data within fourteen (14) days following the last day of the month the Available Data or other data was used (“Usage Report”).  In addition to the Usage Report, Company shall also provide a bandwidth report (“Bandwidth Report”) setting forth the total number of NexusData Corp super pixel fires at the end of each month.   

Payment.  NexusData Corp shall invoice Company monthly for fees due from Company based on the Company-provided monthly reporting.  Payment is due within seven (7) days of Company’s receipt of invoice, except in the event of a good faith dispute as to the calculation of the invoice.  Any undisputed amounts not paid within seven (7) days of receipt of invoice will accrue interest at a rate of one-half percent (.5%) per month or the maximum lawful rate, whichever is less.  If Company fails to make timely payments, NexusData Corp may, without limiting other any other remedies available to it, suspend Company’s right to utilize Available Data or enable Platform Users to utilize the Available Data until Company has made payment in full for any outstanding invoices, and Company shall reimburse NexusData Corp for all reasonable costs incurred by NexusData Corp in collecting late payments or interest, including reasonable attorneys’’ fee and court costs.   

Taxes.  Company shall pay all taxes (including sales, use, excise, value added, goods and services, turnover taxes, business taxes, consumption taxes, gross receipts taxes, withholding taxes, and any other taxes, charges, duties, fees, and levies of a similar nature) levied in connection with this Agreement (whether included on an invoice or identified during an audit), except taxes based upon NexusData Corp’s net income, corporate franchise, business license, payroll withholding or property taxes on NexusData Corp-owned assets.  NexusData Corp will collect taxes from Company only in jurisdictions where NexusData Corp has a nexus.  If NexusData Corp does not collect taxes for any reason, Company remains responsible for remitting taxes when appropriate to the applicable taxing authority as the consumer of the goods or services.  The Parties will cooperate with each other in connection with any audit, inquiry, trial, or appeal regarding taxes in connection with the Agreement, including any tax determination or exemption documentation at NexusData Corp’s sole cost and expense.  

CONFIDENTIAL INFORMATION  

Neither Party will use the other Party’s Confidential Information for any purpose other than as provided in this Agreement, and each receiving Party will: (i) hold the disclosing Party’s Confidential Information in strict confidence; (ii) not disclose such Confidential Information to any third party or use it for any purpose other than as specifically authorized by the disclosing Party; and (iii) employ all reasonable steps to protect the disclosing Party’s Confidential Information from unauthorized or inadvertent disclosure, including those steps that it takes to protect its own proprietary information.  Each receiving Party may disclose the disclosing Party’s Confidential Information only to those of its and its affiliates’ employees having a need to know and only to the extent necessary to enable the parties to adequately perform their respective responsibilities to each other.  Each receiving Party hereby undertakes to ensure the individual compliance of such employees with the terms hereof.  No copies of any Confidential Information may be made by a receiving Party except as necessary to perform its obligations pursuant to this Agreement. Notwithstanding the foregoing, a Party may maintain one (1) copy of any Confidential Information solely for legal, regulatory, compliance and archival purposes only and not for any commercial purpose. Confidential Information may not be translated into another format or language, or decompiled or reverse engineered without the disclosing Party’s prior written consent.  

Company agrees not to remove any Available Data identification, copyright or other proprietary notices from any Available Data or the Confidential Information of NexusData Corp. The Parties acknowledge and agree that a Party’s breach of this Section of the Agreement may result in irreparable harm and significant injury to the other and its clients that may be difficult to ascertain.  The non-breaching Party will have the right to seek an immediate injunction in the event of any breach of this Section 8 without posting bond, in addition to any other remedies that may be available to the disclosing Party at law or in equity.  

   

SECURITY PROGRAM & AUDIT.  

Each party must maintain and comply with a Security Program in performance of its obligations pursuant to this Agreement.  Company shall as soon as reasonably practical after discovery and subject to any reasonable restrictions placed on Company by any law enforcement agency in the process of conducting a related investigation, report to NexusData Corp any known unauthorized disclosure of NexusData Corp’s Confidential Information, including the full details of such disclosure, and take all such measures as may be necessary to prevent any further disclosure.  

NexusData Corp, or its designees (as and when applicable) may inspect and audit at their sole cost and expense no more than one (1) time in any twelve (12) month period, upon at least five (5) business days’ notice, any information relating to use, processing or display of Available Data in any location where the Available Data is being processed and/or used by Company, as well as those books, records and computer systems that specifically relate to information pertinent to Company’s compliance with the requirements of this Agreement and the possession, access or use of the Available Data and any fees due.  Any such audit shall be conducted in a manner intended to not unreasonably disrupt Company’s normal operating procedures.  

RESPONSIBLE DATA HANDLING.   

Each Party represents and warrants that it will comply with all applicable Laws, rules, regulations, directives and guidelines regarding the collection, use and disclosure of data collected from or about end users or specific devices which apply to the Services utilized hereunder (collectively, the “Rules”).  The term “Rules” shall include, without limitation, (a) all United States Federal Trade Commission rules and guidelines regarding the collection, use and disclosure of data from or about end users and/or specific devices; (b) all United States federal and state laws regarding data collection and data privacy, including, without limitation, the California Consumer Privacy Act (“CCPA”); (c) the Self-Regulatory Principles and guidance of the Interactive Advertising Bureau (“IAB”), and solely if applicable, the European Principles and guidance of the European Interactive Digital Advertising Alliance (“EDAA”), as each set of principles and guidance may be amended or supplemented, or as replaced or superseded, from time to time by the IAB and EDAA, or their respective successor entity; and (d) if applicable, the Rules of any other jurisdiction, including European Union General Data Protection Regulation (EU) 2016/679 (“GDPR”) and all amendments and updates to them or as replaced or superseded from time to time. Without limiting the Rules, Company shall promptly notify NexusData Corp in the event Company becomes aware if a breach of Company’s obligations set forth in this Section 10.  

   

WARRANTIES & DISCLAIMERS.  

Company warrants that: (i) it has the necessary equipment, computer capacity, software, programs and trained personnel to properly perform its obligations as described herein consistent with standard industry practices and in accordance with this Agreement and that it will perform its obligations in a professional and workmanlike manner.  

Each Party warrants that: (i) it is a duly formed company/corporation in good standing under the Laws of the state, country and/or region under which it was formed; (ii) it is qualified to transact business in the pertinent jurisdictions; (iii) it has full power and authority to enter into and perform the Agreement; (iv) the execution and delivery of this Agreement have been duly authorized; and (v) that neither this Agreement nor its performance under this Agreement violates any applicable Law, statute or regulation and does not breach any other agreement or covenant to which such Party is a party or is bound.  

Company represents and warrants that, where required by the Rules, Company, or the entity that collected any data, including device level data, if Company did not itself collect such data, has obtained legally compliant consent to the collection, use and disclosure of such information to allow NexusData Corp’s super pixel to further process such data in connection with the Services from each end user or specific device the device level data pertains to.    

EXCEPT AS OTHERWISE STATED IN THIS SECTION, NexusData Corp MAKES NO OTHER WARRANTIES EXPRESS OR IMPLIED HEREUNDER REGARDING ANY AVAILABLE DATA, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, CURRENCY, FITNESS FOR A PARTICULAR PURPOSE OR COMPLETENESS.  

   

LIMITATIONS OF LIABILITY.  

  

  

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF INCOME, REVENUE, PROFITS, OR GOODWILL, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  

  

  

NexusData Corp’S AGGREGATE LIABILITY TO COMPANY FOR DAMAGES THAT ARISE OUT OF OR ARE RELATED TO THIS AGREEMENT OR ANY APPLICABLE AMENDMENT OR DATA CATALOG SHALL BE LIMITED TO TWO TIMES THE AVERAGE MONTHLY FEES PAID BY COMPANY TO NexusData Corp UNDER THIS AGREEMENT.  

  

  

EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR DAMAGES RESULTING FROM THE UNAUTHORIZED ACCESS TO, OR IMPERMISSIBLE DISCLOSURE OF, A PARTY’S CONFIDENTIAL INFORMATION (EXCLUDING AVAILABLE DATA) SHALL NOT EXCEED THE GREATER OF: (A) US $250,000.00, OR (B) SIX TIMES (6X) THE AVERAGE MONTHLY FEES PAID BY COMPANY UNDER THIS AGREEMENT.  IF SUCH DAMAGES INCLUDE THE COST OF CONSUMER NOTIFICATION OR CREDIT MONITORING, A PARTY SHALL BE LIABLE FOR SUCH DAMAGES (SUBJECT TO THE FOREGOING LIMITATION) ONLY IF NOTICE OR CREDIT MONITORING IS REQUIRED BY LAW OR REGULATION.  

  

  

THE LIMITATIONS IN THIS SECTION: SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR TO DAMAGES RESULTING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT; AND SHALL APPLY REGARDLESS OF THE LEGAL THEORY OR FORM UNDER WHICH ANY ACTION IS BROUGHT.  

For purposes of this Agreement, “gross negligence” shall mean the intentional failure to perform a manifest duty in reckless disregard of the consequences.  Each Party shall have a duty to mitigate damages for which the other party is responsible.  

   

INDEMNIFICATION.  

  

  

Each Party agrees to indemnify and hold the other Party, its agents, and its employees harmless from and against any third-party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) that may arise against the indemnified Party as the result of; (i) the indemnifying Party’s failure to comply with all applicable Laws and regulations; (ii) the misappropriation or misuse of the indemnified Party’s Confidential Information by the indemnifying Party; or (iii) breach of a party’s obligations under this Agreement.  

  

  

Company shall indemnify and hold harmless NexusData Corp from any and all liability or expense (including reasonable attorneys’ fees and costs of investigation and defense) resulting from third-party claims related to: (i) any action taken by or on behalf of Company which is not expressly permitted by this Agreement; or (ii) any misuse or misappropriation of any Available Data by Company, its clients or related third-party processors or service providers acting on Company’s behalf (including misuse pursuant to a violation of applicable Law, rule or regulation).  

  

  

The indemnifying Party shall have the right to exercise reasonable control over any litigation within the scope of this indemnity; provided, however, that the indemnified party shall have the right to participate in any such litigation insofar as it concerns claims against it.  That right to participate includes the indemnified party’s right to select and retain counsel to represent it at the indemnified party’s own expense.  

  

  

GENERAL PROVISIONS  

  Headings.  The section headings used in this Agreement are intended for reference purposes only and shall not affect the interpretation of this Agreement.  

Counterparts.  This Agreement may be executed in counterparts (which may be exchanged via electronic mail, PDF, and/or facsimile), each of which shall be deemed an original, but which together shall constitute one and the same instrument.   

Waiver.  No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under this Agreement shall operate as a waiver thereof.    

Further Assurances. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.  

Remedies Not Exclusive.  Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at Law or in equity.  

Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision.  The illegality, invalidity, or unenforceability of such provision shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision, and this Agreement generally, shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.  The fact that any provision of this Agreement is held to be illegal, invalid or unenforceable in a particular jurisdiction shall have no effect upon the legality, validity, or enforceability of such provision in any other jurisdiction.  

Non-Exclusivity.  This Agreement is non-exclusive.    

No Strict Construction.  If an ambiguity or question arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring either Party by virtue of authorship of any of the provisions of this Agreement.  

Assignment.  Neither this Agreement, any Exhibit or any rights or licenses granted hereunder may be assigned, delegated or subcontracted by Company without the prior written consent of NexusData Corp, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void ab initio. This Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assignees.  Notwithstanding the foregoing, a Party may assign its rights, duties or obligations under this Agreement without the consent of the other Party in the event of a merger, acquisition or other change in control of its ownership.  

Independent Contractor Relationship.  The Parties are independent contractor and this Agreement does not create an agency, partnership, or joint venture relationship between the Parties.  Each Party has sole responsibility for its activities and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.   

Force Majeure.  Neither Party shall be liable for any failure or delay in the performance of any of their respective obligations if prevented from doing so by a Force Majeure Event.  “Force Majeure Event” means (i) floods, earthquakes, or other similar elements of nature or acts of God; (ii) riots, civil disorders, rebellions or revolutions in any country; or (iii) any other cause beyond the reasonable control of the non-performing Party, provided the non-performing Party is without fault in failing to prevent or causing such default or delay, and such default or delay could not have been prevented or circumvented by the non-performing Party through the reasonable use of alternate sources, workaround plans or other reasonable precautions.  

Notices.  All notices and other communications required or permitted to be given to a Party pursuant to this Agreement shall be in writing, and shall be deemed duly given (i) on the date delivered if personally delivered; or (ii) on the business day after being sent by Federal Express or another recognized overnight courier service which utilizes a written form of receipt for next day or next business day delivery in each case addressed to the applicable Party at the address set forth on the first page of this Agreement; provided that a Party hereto may change its address for receiving notice by the proper giving of notice.   

Governing Law/Jurisdiction/Venue/Legal Fees.  This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of New York.  For all such matters, each Party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts. The prevailing Party in any litigation shall be entitled to recovery of its reasonably attorneys’ fees from the other Party in addition to any other award of damages from the court.  

Entire Agreement.  This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof.  No modification of this Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.  

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date set forth above.