This MANAGED WHITE LABEL APPLICATION AGREEMENT (the “Agreement”) is between you, the customer, as stated and executed in the first Order Form referring to this Agreement (“Client” or “You”) and the FanHero entity or any FanHero Affiliate that owns the FanHero Platform that you are accessing, using, or licensing are collectively referred to herein as the “Company” or “we”. If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you” means your entity and you are binding your entity to this Agreement. Company may modify this Agreement from time to time, subject to the terms in Section 21 (Changes to this Agreement) below. Each party may be individually referred to as a “Party” or collectively referred to as the “Parties”. The “Effective Date” of this Agreement is such date defined as the Effective Date in the Order Form between the Company and the Client associated with this Agreement.
WHEREAS, Company is in the business of licensing the FanHero Platform;
WHEREAS, Client desires to license and utilize the FanHero Platform for the purposes of distributing content to its audience;
WHEREAS, Client desires to enter into an agreement with Company for the purpose of enabling the distribution, streaming, and monetization of Client Content;
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:
1. DEFINED TERMS. The following capitalized terms as used in this Agreement shall have the meaning set forth below. Other terms are defined throughout this Agreement shall have the meanings respectively ascribed to them.
“Additional Services” means any work provided by Company to, or on behalf of, Client that is beyond the scope of this Agreement. Additional Services may include, but are not limited to, custom programming work, consulting, and related services to be provided at the request of Client as agreed upon between the Parties.
“Affiliate” means any entity which (i) controls, (ii) is controlled by, or (iii) is under common control with another entity. An entity shall be deemed to control another entity if it has the power to direct or cause the direction of the management or policies of such company, whether through the ownership of voting securities, by contract, or otherwise.
“Audience” means the global addressable market in terms of reachable people that are potential consumers of Client Content. “Audience” may include users from an existing user base, members, general users, social media followers, fans, and any other generic audience from nature. “Audience” may also include people, leads, prospects, and customers generated in connection to Company’s marketing efforts.
“FanHero Platform” means the Company’s digital streaming platform and all applications and modules that encompass such platform and support the ability to deploy the White Label Application. “FanHero Platform” also means the platform developed, integrated, hosted, managed, or maintained by the Company including, but not limited to, services, source code, object code, third-party modules, software based upon, and technology infrastructure relating to or otherwise incorporating the video streaming platform. “FanHero Platform” definition also includes any intellectual property and third-party modules, including any existing or planned web applications, or any other software application, and all revisions, corrections, enhancements, modifications, and updates thereto. “FanHero Platform” also means the solution containing a series of unique instance(s), module(s), or channels developed, integrated, hosted, and otherwise managed by the Company that may be uniquely branded in a manner associated with Client for the purposes of incorporating the Client Content to be delivered to End Users, and any and all revisions, corrections, enhancements, modifications, and updates thereto.
“Cloud Server(s)” means one or multiple computer or software servers or services, including physical, virtual, clustered, dedicated, shared, in software or other format, or any other form of server or server infrastructure including, but not limited to, web, API, cloud, application, database, routing, gateway, service, orchestration, video, streaming, analytics, business intelligence, machine learning, versioning, testing, SaaS, PaaS, BaaS, continuous integration, or any other related server or server technology comprising the cloud infrastructure utilized for the purpose of running the White Label Application and the FanHero Platform.
“Cloud Server Fee” means the monthly fee charged by Company to Client related to or arising from any Cloud Servers.
“Cloud Storage” or “Data Storage” means the total amount of cloud storage, calculated in terms of gigabytes (GB) utilized or reserved, to operate or store data, files, Client Content or digital storage utilized in connection with the White Label Application.
“Cloud Storage Fee” or “Data Storage Fee” means the fee charged by Company to Client in connection to Data Storage
“Client” includes the individual, agent or entity executing the Order Form on behalf of Client (and the CTAC incorporated herein by reference), or authorized by Client, as appropriate, to engage in the transactions contemplated herein on Client’s behalf, including accessing the FanHero Platform and posting, editing or deleting any Client Content.
“Client Content” means the content (digital or otherwise) set forth in the Order Form including, but not limited to, games, videos, images, photos, text, audio, live matches, news coverage, second screen, raw footage, generic content, or any other media content acquired, developed, accrued, owned, rented, leased or produced for which Client is the authorized legal representative, owner, or rights holder with full rights to license, sub-license, trade, and otherwise distribute, stream, and monetize, and for which Client desires to enter into this Agreement with the Company for the purposes of disseminating, distributing, streaming, or monetizing through the Distribution Channels.
“CTAC” means the Client Terms and Conditions which are the legal terms under which the Client accesses and uses the White Label Application and the FanHero Platform, and which are incorporated herein by reference. The CTAC is available on FanHero’s Website at www.fanhero.com, and may be changed, amended or updated from time to time, in FanHero’s sole discretion.
“Data Transfer” means the utilization or consumption of inbound or outbound data, data traffic, or bandwidth, calculated in terms of gigabytes (GB), for all data transferred in connection to the White Label Application.
“Data Transfer Fee” means the fee charged by the Company to Client in connection to Data Transfer.
“Digital Channel(s)” means a standard or branded channel or channels provided by the Company for Client, utilizing the White Label Application, for the purpose of streaming and disseminating Client Content.
“Digital Channel Fee” means the monthly fee charged by the Company to Client related to or arising from Digital Channel(s).
“Distribution Channels” means any and all channels through which Client Content may be distributed or commercialized to End Users and consumers including (a) the White Label Application, and (b) the FanHero Platform.
“Distribution Network” means any and all networks or channels through which the White Label Application and the FanHero Platform may be offered globally to End Users and consumers, including, but not limited to (a) the world wide web, (b) third-party network infrastructure and cloud hosting services companies, (c) any internet service providers or other intermediaries or governing authorities, and (d) application marketplaces such Apple’s App Store or Google’s Play Store.
“End User(s)” means any of the Audience or any other person or entity that has registered, purchased, downloaded or otherwise acquired access to the White Label Application or the FanHero Platform.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the White Label Applications and FanHero Platform, whether provided by Client, End Users or third parties.
“Intellectual Property Rights” means any unpatented inventions, patented applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property, derivatives thereof, and forms of forms of protection of a similar nature anywhere in the world. The term “Intellectual Property Rights” specifically includes all software coding and processes comprising the FanHero Platform on a global basis.
“Live Streaming Hours” means the total number of video encoding or transcoding hours utilized in connection to the White Label Application.
“Live Streaming Hours Fee” means the fee charged by Company to Client in connection to Live Streaming Hours.
“Managed” means that the White Label Application shall be hosted, maintained, and managed by the Company without the need to release any source code or object code to Client.
“Marketplace” means any utilization by Client of the FanHero Platform or the White Label Application in a manner or form that is consistent with a physical or virtual marketplace, or by (a) enabling or providing access to third parties, (b) engaging in the distributing or monetization of third-party information, content, or material directly or indirectly including through licensing or partnership, or (c) engaging in revenue-sharing activities with third-parties for the purpose of distributing or monetizing such content.
“Monthly Active User(s)” or “MAU” means any user or person, whether identifiable or not, that accesses the White Label Applications or FanHero Platform, licensed to Client, at a minimum of one time during a period of 30 days for any duration of time without minimums.
“Monthly Active User Fee” means the monthly fee charged by Company to Client associated with the number of Monthly Active Users utilizing the White Label Application.
“Monthly Paying User(s)” or “MPU” means the total number of paying customers or paying End Users for a given calendar month associated with the White Label Application.
“Monthly Paying User Fee” means the monthly fee charged by Company to Client associated with the number of Monthly Paying Users of White Label Application.
“Territory” means the geographic region, such as a country or continent, for which Client Content can be distributed through the FanHero Platform.
“Order Form” means a document or a series of documents executed by Client containing the deliverables associated with this Agreement, a job, task, or project to be completed by the Company and the economic terms between the Parties that is accepted by the Company and jointly agreed upon between the Parties.
“White Label Application(s)” means the solution containing a series of unique instance(s) or module(s) of the FanHero Platform that may be uniquely branded in a manner associated with Client and is licensed to Client for the purposes of incorporating the Client Content to be delivered to End Users, and any and all revisions, corrections, enhancements, modifications and updates thereto. White Label Applications may include mobile applications, web applications, web portal applications, streaming media device applications, analytics and intelligence portals, and other software or applications.
2. PURPOSE; AUTHORIZATION; END USERS; ADMINISTRATIVE USERS; USAGE.
2.1. General. This Agreement provides the terms and conditions pursuant to which the Company shall manage, operate, license, develop, and host White Label Applications for mobile, web, and streaming media device access through the Distribution Network for use, by Client and End Users.
2.2. Authorized Representative of White Label Applications. Client hereby authorizes the Company to place, deploy, oversee and manage White Label Applications in the Distribution Network. Client acknowledges and agrees that it is subject to and shall abide by any agreements that are necessary for the placement of the White Label Application in the Distribution Network. The violation of the terms of any such agreements by Client will be deemed to be a violation of this Agreement. Client further agrees to be bound to the Company in the same manner and to the same extent that the Company is bound by the terms of any agreements in place with the Distribution Network.
2.3. Authorized Representative of Client Content. Client understand, acknowledges, and agrees that by placing, uploading, or publishing Client Content to White Label Application, Client Content will be available in Distribution Channels. Client acknowledges and agrees that it is subject to and shall abide by any agreements that are necessary for the placement and distribution of the Client Content in the Distribution Channels. The violation of the terms of any such agreements by Client will be deemed to be a violation of this Agreement. Client further agrees to be bound to the Company in the same manner and to the same extent that the Company is bound by the terms of any agreements in place with the Distribution Channels.
2.4. End Users. Subject to the terms and conditions of this Agreement, Client may grant its End Users access to the White Label Applications. Client may not permit End Users to use the White Label Applications for purposes unrelated to supporting Client’s own offerings.
2.5. Administrative Users. “Administrative Users” means Client-authorized representatives who have been granted special privileges for the purpose of performing management and administrative duties by accessing the White Label Application(s) administrative tools or applications (“Administrative Tools”). Only Administrative Users may access and use the Administrative Tools provided as part of the White Label Applications for purposes of performing management or administrative tasks including management of End Users, management of Client Content or performing similar administrative duties. Some modules of the White Label Application may allow Client to designate different types of Administrative Users. Client is responsible for compliance with this Agreement by all Administrative Users, including what Administrative Users do with the Client Content and any User Data available to Client.
3. USE OF WHITE LABEL APPLICATIONS; UPGRADES.
3.1. Client Access Rights. Subject to the terms and conditions of this Agreement, Company grants Client access to a Managed, non-exclusive, non-sublicensable, and non-transferable license to use the White Label Applications during the Term for the purposes set forth herein, in accordance with this Agreement and all applicable laws, rules and regulations.
3.2. Restrictions. Except as otherwise expressly permitted in this Agreement, Client will not: (a) reproduce, modify, adapt or create derivative works of any part of the White Label Applications; (b) rent, lease, distribute, sell, sublicense, transfer, or provide access to the White Label Applications to a third party; (c) use the White Label Applications for the benefit of any third party; (d) incorporate the White Label Applications into a product or service Client provides to a third party; (e) interfere with any license key mechanism in the White Label Applications or otherwise circumvent mechanisms in the White Label Applications intended to limit Client’s use; (f) reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the White Label Applications, except to the extent expressly permitted by applicable law (and then only upon advance notice to the Company); (g) remove or obscure any proprietary or other notices contained in the White Label Applications; (h) use the White Label Applications for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the White Label Applications; or (j) encourage or assist any third party to do any of the foregoing.
3.3. Number of Instances. Company agrees to deploy the number of White Label Application instances set forth in the Order Form.
3.4. No Marketplace Policy. White Label Application usage shall be limited to the distribution and monetization of Client Content. Client understands, acknowledges, and agrees not to use White Label Application as a Marketplace.
3.5. Platform Upgrades. Client understands, acknowledges, and agrees that the FanHero Platform is a technology solution that will continue to be extended, enhanced, improved and that from time to time Company will perform software changes and upgrades affecting the FanHero Platform. Company reserves the right to make changes to the FanHero Platform from time to time including but not limited to improvements, enhancements, and upgrades.
4.1. Responsibilities of Company.
4.1.1. Development of White Label Applications. Client hereby engages Company to develop, manage, maintain, perform integrations, or development, customize, and host the White Label Applications utilizing the FanHero Platform, to the specifications set forth in the Order Form. Company shall use its commercially reasonable efforts to develop the White Label Applications in accordance with the timeline and specifications set forth in the Order Form.
4.1.2. Hosting. Following completion of the development, customization, and deployment of the White Label Applications and throughout the Term, Company will host the White Label Applications through various third-party service providers, which are part of the Distribution Network.
4.1.3. Maintenance of the White Label Applications. During the Term, Company shall monitor and manage the performance of the White Label Applications, providing maintenance and upgrades as such are developed for the FanHero Platform.
4.1.4. Delivery of White Label Applications. The timeline for development of White Label Applications through the Distribution Network timeline may be impacted by the timing of the receipt of all required content from Client by the Company development team, including but not limited to (i) Client Content, including logos and key design elements, (ii) critical development integrations between the FanHero Platform the Client’s systems, (iii) the approval by Client of the White Label Applications prototypes, and (iv) Client’s branding and marketing assets.
Company will work diligently with Client in order to deliver the White Label Applications for submission to the Distribution Network within the average time frame set forth in the Order Form. Client acknowledges and agrees that Company’s performance shall be limited to that of submitting the White Label Applications for approval by each member of the Distribution Network and that such approval process is subjective, unique to each Distribution Network, and outside of Company’s control. The Distribution Network can accept or reject any such submissions. Company will work diligently with Client and make every reasonable effort to facilitate the approval of the White Label Applications by the Distribution Network.
4.2. Responsibilities of Client.
4.2.1. Consultation and Review. During the development process, Client will consult with Company and provide all required assistance to communicate clearly and promptly concerning all input needed for the development of the White Label Applications.
4.2.2. Client Content. During the development process and throughout the Term, Client shall provide all necessary Client Content in accordance with this Agreement. All Client Content shall be provided promptly and in formats requested by Company. Client represents, warrants, and agrees that Client possesses all licenses, rights, releases and other necessary and supporting documentation required to publish, display, explore, and monetize, directly or indirectly, all Client Content on the White Label Applications in accordance with the terms of this Agreement and as required by law. Client understands, acknowledges, and agrees that any and all claims in connection to Client Content including but not limited to copyright, wrongful distribution, breach of license, defamation, wrongful doing, infringement are the sole responsibility of Client. Client further acknowledges and agrees to release Company from any and all claims arising from or in direct or indirect connection to the Client Content.
4.2.3. Use of FanHero Platform by Client; Conduct of Client. Following release of the White Label Applications via the Distribution Network, the Client shall be responsible for using the White Label Applications for its designed purposes by posting Client Content through the FanHero Platform and promoting, supporting and encouraging the use of the White Label Applications by its Audience. Client understands, acknowledges, and agrees to release the Company from any and all claims associated to the success, revenue generation, or any expected results, monetary or otherwise, in connection to White Label Application and the Company expressly declines any representation or warranty regarding the performance of the White Label Application in generating success, revenue or End Users.
4.2.4. Client Systems and Cooperation. During the Term, Client shall be responsible for providing and maintaining its own hardware, systems and other technology necessary to perform its obligations pursuant to this Agreement and shall provide the Company with access to its hardware, systems and other technology (including internet access service) as necessary for the Company to support the White Label Applications and the FanHero Platform. Client further agrees to provide all cooperation and assistance as the Company may reasonably request to enable the Company to exercise its rights and perform its obligations in connection with this Agreement.
5. TERM. The Term of this Agreement is set forth in the Order Form.
5.1. Termination. This Agreement may be terminated:
5.1.1. By either Party upon giving written notice to the other Party, if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of notice thereof in writing by the Party initiating termination hereunder.
5.1.2. Immediately by Company upon the uncured material breach by Client of the terms of this Agreement or the CTAC.
5.2. Effect of Termination. Upon termination of this Agreement: (i) Company shall immediately cease hosting of the White Label Applications; and (ii) any licenses and right to access the White Label Applications and the FanHero Platform granted pursuant to this Agreement shall be terminated. Client shall have the right to download, keep and use copy of the Electronic Records (as defined in Section 8, below), for 30 days following termination. Company shall have no responsibility to maintain, segregate or provide any Electronic Records longer than 30 days following termination.
6. FEES & COMPENSATION.
6.1. Fees and Revenue Sharing. Company and Client shall be compensated for any fees and revenue sharing at the rates and according to the schedule set forth in the Order Form.
6.2. Payment and Taxes. All payments between the Parties required to be made in accordance with this Agreement shall be made in U.S. Dollars. Any taxes of any kind or nature due to any taxing authority (including, but not limited to, local, state, federal or foreign taxing authority) shall be the sole and exclusive responsibility of the Party receiving the related payment. The paying Party shall not deduct or withhold any such taxes from any payment due to the receiving Party unless such withholding is mandated by a taxing authority of competent jurisdiction and after notice to the other Party. All accounting for transactions pursuant to this Agreement shall be done in U.S. Dollars and Company shall not be responsible for foreign exchange rate fluctuations. Client acknowledges that third-party companies comprising the Distribution Network may withhold taxes and other fees pursuant to their policies, applicable tax laws and their compensation structures and that such amounts represent expenses that are a deduction against the Project Revenue realized.
6.3. Additional Services. Subject to this Agreement, Client may purchase Additional Services from the Company from time to time, which the Company will provide to Client pursuant to the applicable Work Order. Additional Services may be subject to additional cost, policies, and terms as specified by the Company, as agreed to by the Parties.
6.3.1. Company Deliverables. Company will retain all right, title and interest in and to any materials, deliverables, modifications, derivative works or developments that Company provides in connection with any Additional Services (“Company Deliverables”). Client may use any Company Deliverables provided or made available to Client only in connection with the White Label Applications, subject to the rights and restrictions set forth herein.
6.3.2. Client Materials. Client agrees to provide the Company with reasonable access to Client’s materials, systems, personnel or other resources (including Client’s instances of White Label Applications) as reasonably necessary for the Company’s provision of Additional Services (“Client Materials”). If Client does not provide the Company with timely access to Client Materials, the Company’s performance of Additional Services will be tolled until Client provides all access as necessary for the Company to perform the Additional Services. Client retains its rights to Client Materials, subject to Company’s ownership of any underlying White Label Applications, Company Deliverables or the FanHero Platform and related technology. Company will use Client Materials solely for purposes of performing the Additional Services. Client represents and warrants to have all necessary rights in the Client Materials to provide them to the Company for such purposes.
7. INTELLECTUAL PROPERTY.
7.1. Company is and shall at all times remain the owner of the Distribution Channels and all Intellectual Property Rights related thereto.
7.2. Client is, and shall at all times remain, the owner of all Client Content and Intellectual Property Rights related thereto.
7.3. Ownership and Feedback. The White Label Applications are made available on a limited access basis, and no ownership right to any software or technology related to or arising from the White Label Applications, FanHero Platform, or owned, leased, or licensed by the Company is conveyed to Client, irrespective of the use of terms such as “purchase” or “sale”. Company and its Affiliates have and retain all right, title, and interest, including all Intellectual Property Rights, in and to FanHero Platform. From time to time, you may choose to submit Feedback to the Company. Client grants the Company a non-exclusive, perpetual, royalty-free license to use the Feedback and the Company may, in connection with any of its products or services, freely use, copy, disclose, license, distribute, and exploit any Feedback, regardless of the source or manner of acquisition of the Feedback, in any manner without any obligation, royalty, or restriction based on any Intellectual Property Rights or otherwise. No Feedback will be considered confidential, and nothing in this Agreement limits the Company’s ability to independently use, develop, evaluate, or market products or services, that are based upon or in any way incorporate Feedback.
8. DATA AND SPONSORSHIP CONTENT. Client acknowledges that the Company will capture certain data, metrics and information from Client and the End Users of the White Label Applications, in the course of selling, hosting and maintaining the White Label Applications on its systems or via the Distribution Network (the “Electronic Records“). Company will provide Client with access to the Electronic Records related to the White Label Applications, including analysis thereof (“User Data”) for use by Client in managing the White Label Applications. Subject to all applicable rules and regulations, User Data may be exported by Client and shall be the property of Client or provided to Client by the Company upon request.
9. CONFIDENTIALITY. Except as necessary to further the purposes set forth herein, the Parties agree to keep the details of this Agreement confidential and all the information, User Data and details obtained as result of this Agreement confidential and to, at all times, adhere to applicable laws, rules and regulations.
10. WARRANTY AND LIMITATIONS; INCORPORATION OF TERMS AND CONDITIONS.
10.1. The person or entity executing the Order Form (and by incorporation, this Agreement and the CTAC) on behalf of the Client (the “Signer”) represents and warrants to the Company that it has all necessary rights, power and authority to represent Client for all matters hereunder and to bind Client to the terms and conditions of this Agreement, the CTAC, and the Order Form.
10.2. Signer represents and warrants to Company that it is authorized by Client to negotiate all economic terms herein or in the Order Form.
10.3. Company and Client each represent and warrant to the other that: (i) such Party has the full corporate right, power and authority to enter into this Agreement and to perform the acts required of it hereunder; (ii) the execution of the Order Form (and be incorporation, this Agreement and the CTAC) by such Party, and the performance by such Party of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such Party, the Order Form, CTAC and this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms.
10.4. This Agreement incorporates by reference all terms and conditions of (a) any agreements necessary to access the Distribution Network, (b) any agreements necessary to access the Distribution Channels, and (c) the CTAC necessary to access the FanHero Platform and utilize the White Label Applications.
11.1. Company Indemnification. Company shall indemnify, defend, and hold harmless the Client Indemnitees against any claim (“Client Claim”) that the technology underlying the White Label Applications and the FanHero Platform (excluding third party software) infringes a United States copyright, trademark, issued and valid patent, or other intellectual property right of a third party (except for those claims for which Client is required to indemnify Company, below); with further details contained in the CTAC. Company shall not indemnify Client or be liable for any claims hereunder if the finding of infringement is based on: (i) any misrepresentation by Client; (ii) the Client Content, (iii) the combination, operation, or use of White Label Application and the FanHero Platform with hardware, data, software, or technology not in conformance with this Agreement if the claim would have been avoided by use of other technology that conforms with this Agreement; or (iv) modifications to White Label Applications and the FanHero Platform if such modifications were not made by the Company or were not in accordance with the Client’s directions or instructions. “Client Indemnitee(s)” as used herein, means Client, any Affiliate of Client, and any officers, directors, employees, agents, successors, and assigns of the foregoing. THIS PARAGRAPH STATES THE ENTIRE OBLIGATIONS OF THE COMPANY FOR COPYRIGHTS, TRADEMARKS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS.
11.2. Client Indemnification. Client shall indemnify, defend, and hold harmless the Company Indemnitees against any claim or action brought against a Company Indemnitee by or on behalf of any of Client or the End Users or by or on behalf of any other person or third party if such claim or action arises for any reason whatsoever, out of the use of White Label Applications, the Client Content (including any claims regarding a copyright infringement arising from or related to the Client Content), User Data (to the extent that the use or handling thereof is in violation of any applicable laws, rules and regulations) and the FanHero Platform, to the extent such use is not in accordance with the terms of this Agreement., with further details contained in the CTAC. “Company Indemnitee(s),” as used herein, means the Company and any of its third-party providers with respect to White Label Applications and the FanHero Platform, any Affiliate of the Company or such third-party provider, and any officers, directors, members, employees, agents, successors, and assigns of the foregoing.
12. LIMITATION OF LIABILITY. EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER OR NOT FORESEEABLE OR ALLEGED TO BE BASED ON BREACH OF WARRANTY, CONTRACT, NEGLIGENCE OR STRICT LIABILITY, ARISING UNDER THIS AGREEMENT OR THE CTAC. LOSS OF DATA, OR ANY PERFORMANCE UNDER THE AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT PAID BY CLIENT TO COMPANY WITHIN 90 DAYS PRIOR TO THE CLAIM. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD-PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, EQUIPMENT, OR HARDWARE OBTAINED FROM THIRD PARTIES. “EXCLUDED CLAIMS” MEANS (1) AMOUNTS OWED BY YOU UNDER ANY ORDER FORM, (2) EITHER PARTY’S EXPRESS IDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, (3) CLIENT’S BREACH OF SUBSECTION 4.2.2 (CLIENT CONTENT), (4) EITHER PARTY’S BREACH OF THIS AGREEMENT IN CONNECTION TO CLAIMS REGARDING COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGMENET, OR (5) EITHER PARTY’S BREACH OF THIS AGREEMENT IN CONNECTION TO EXCLUSIVITY.
13. NOTICE. Any notice required to be given by either Party to the other under this Agreement shall be in writing and shall be deemed to have been delivered if sent electronically via email with an electronic response confirmation by the receiving Party or by certified mail return receipt requested or overnight courier service and addressed to the other Party at the address shown in this Agreement, or such other address as either Party may from time to time provide in writing to the other Party.
14. FORCE MAJEURE. If either Party to this Agreement shall be prevented, hindered or delayed in the performance or observance of any of its obligations hereunder by reason of any act of God, natural disaster, war, riot, act of terrorism, civil commotion, explosion, fire, government action, epidemic, or other circumstance beyond its reasonable control, and such delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the Party through the use of alternative sources or means, then such Party shall be excused from further performance or observance of the obligation so affected for as long as such circumstances shall prevail and such Party uses its diligent efforts to recommence performance or observance whenever and to whatever extent possible. The Party so delayed shall immediately notify the other Party and describe the circumstances causing such delay. Notwithstanding the foregoing, any of Client’s monetary obligations under this Agreement and any Order Form shall remain in effect.
15. ASSIGNMENT. Neither Party may assign this Agreement without the prior written consent of the other Party, provided that either Party may assign without such consent to: (i) an Affiliate; or (ii) to a successor pursuant to a merger or a sale of all or substantially all of its assets to which this Agreement relates. This Agreement shall be binding upon and inure to the benefit of each Party’s successors or assigns.
16. GOVERNING LAW; VENUE AND SUBMISSION TO JURISDICTION. All questions concerning the construction, validity and interpretation of this Agreement will be governed by and construed in accordance with the laws of the State of Florida, United States, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Florida. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in Orange County, Florida, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
17. CONFLICT RESOLUTION. Client and Company agree that any disputes between the Parties shall be resolved first through mediation and then through litigation in Orange County, Florida, United States. Both Parties waive any right to a jury trial. The specific process governing this section is detailed in the CTAC.
18. COUNTERPARTS AND GOVERNING LANGUAGE. The Parties may execute the Order Form (and be incorporation, this Agreement and the CTAC) in multiple counterparts, each of which constitutes an original as against the Party that signed it, and all of which together constitute one agreement. The signatures of both Parties need not appear on the same counterpart. The delivery of signed counterparts by facsimile or e-mail transmission that includes a copy of the sending Party’s signature is as effective as signing and delivering counterpart in person. This Agreement may be translated into a language other than English for the convenience of Client. In such case, only the English language Agreement shall govern.
19. SEVERABILITY. The unenforceability or invalidity of any clause in this Agreement shall not have an impact on the enforceability or validity of any other clause. Any unenforceable or invalid clause shall be regarded as removed from this Agreement to the extent of its unenforceability and invalidity. Therefore, this Agreement shall be interpreted and enforced as if it did not contain the said clause to the extent of its unenforceability and invalidity.
20. WAIVER. The waiver of compliance at any time with respect to any of the provisions, terms, or conditions of this Agreement shall not be considered a waiver of such provision, term, or condition itself or of any of the other provisions, terms, or conditions hereof or bar its enforcement at any time thereafter.
21. CHANGES TO THIS AGREEMENT. We may modify the terms and conditions of this Agreement from time to time, with notice given to Client by email, through the FanHero Platform or through Company’s website. Together with such notice, we will specify the effective date of the modifications.
22. ENTIRE AGREEMENT. This Agreement, the Order Form, the CTAC and any related written agreements incorporated by reference collectively represent the only agreements governing the relationship between the Parties hereto and supersedes any and all other agreements, written or oral.
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