TERMS AND CONDITIONS
- Customer Data. All electronic data or information submitted by the Customer and stored by Market Genie connection with the use of the Software.
- Designated Systems. The computer systems and hardware located at the address of Customer specified in the Sales Order, which shall meet the minimum technical specifications recommended by Market Genie, as amended from time to time and provided to Customer.
- Documentation. The technical manuals, instructions, user information, training materials, and other documentation that accompany the Software and contain its technical specifications, as may be amended from time to time.
- End User. Any individual or entity to which any access to or utilization of any portion of the Software has been made available in connection with this Agreement.
- Integrated Content. The software, data, and other materials and information integrated or included with the Software, including any of the pricing and other information provided by automobile part manufacturers, OEMs and other third party suppliers.
- New Release(s). All error corrections, patches and other modifications to the Software that Market Genie makes generally available on a commercial basis at no additional charge to any other end users of the Software that are under a contract with Market Genie for the same level of Support Services purchased by Customer hereunder. For avoidance of doubt, “New Releases” shall not include any new software products, including enhancements, extensions, and new versions of the Software or significant New Releases of the Software which contain substantial new capabilities, either of which are made generally available on a commercial basis as separate price listed options or as additions to the Software.
- Sales Order. A sales quotation prepared by Market Genie and submitted to Customer (“Quote”), which constitutes an offer from Market Genie to sell to Customer the Software and Services for the prices indicated on the Quote. Such Quote shall be valid through a date specified (or if no such date, thirty days following date of delivery of quote to Customer) (collectively, the “Expiration Date”) after which it shall be null and void. Upon execution and return by Customer prior to the Expiration Date, such Quote shall become and be referred to herein as a binding Sales Order in accordance with Section 2.1 of this Agreement and shall become a part of this Agreement and be attached hereto as Exhibit B.
- Services. All hosting services set forth in any Sales Order covered by thisAgreement (“Hosting Services”), all professional services set forth in any Sales Order coveredby this Agreement (“Professional Services”), and all support and maintenance services set forthin the Support Services Exhibit attached as Exhibit A hereto and incorporated herein by reference (“Support Services”); collectively.
- Software. The computer programs, in object or executable-code versions only, provided to Customer under this Agreement. The term “Software” includes all modifications, enhancements, extensions, and new releases of the Software, including any New Releases.
- Sales Orders, Services, and Delivery.
- Quotes and Sales Orders. The prices being offered to Customer shall be as set out in the Quote. If the Quote is acceptable, Customer may sign the Quote and return it to Market Genie prior to the Expiration Date. Upon Customer’s timely acceptance, execution and return of a Quote in accordance with this Section 2.1, the Quote shall constitute a binding Sales Order, automatically incorporated into this Agreement by reference. No other document shall be required to effect a legally binding purchase under this Agreement. If any conflict or inconsistency arises or exists between this Agreement and a Sales Order, the Sales Order shall govern.
- Services. Market Genie shall provide the Services described in any Sales Order covered by this Agreement. Customer agrees to provide Market Genie with reasonable access and use of Customer’s applications, programs, data, internet, intranet, and other network resources in order to perform the Services without interference. In some instances, this may entail providing Market Genie with access to such network resources remotely. If, as a result of Customer’s failure to provide Market Genie with the access or assistance as described above, or for any other reason within the Customer's reasonable control, the deadline for performing the Services (as mutually agreed by both parties prior to performing the Services) is extended, Market Genie reserves the right to charge Customer at Market Genie’s then-current hourly rates for all Services performed beyond that deadline. If either Party proposes a change to the scope of the Services set forth in the Sales Order, the other Party will reasonably and in good faith consider and discuss with the other Party the proposed change. Upon agreement of a proposed change, if the changes are significant and substantial in nature, Market Genie reserves the right to require that the additional work be committed to writing in a new Sales Order. Further, Customer acknowledges that any requested additional work from Market Genie may increase costs and extend any applicable schedules set prior to the change request. Customer acknowledges that ownership of and title in and to all intellectual property rights, including patent, trademark, service mark, copyright, and trade secret rights, in the Services and any products or tangible results, if applicable, developed or provided by or on behalf of Market Genie to Customer under a Sales Order, including any program or other application that is designed to integrate and be used with the Software, whether developed independently by Market Genie or jointly with Customer or by Customer, are and shall remain exclusively with Market Genie. Unless otherwise set forth in the applicable Sales Order, Customer does not acquire any interest, right, or title in or to any work product associated with the Services.
- Delivery of Software. Unless otherwise specified in an applicable Sales Order or the event that Customer receives Hosting Services under a Sales Order, all Software will be delivered FOB Market Genie’s facility or electronically sent. Shipments will be directed to the address set forth in the applicable Sales Order. Unless specified in writing by Customer, Market Genie will select the mode of shipment and the carrier. Market Genie shall include shipping and insurance charges on invoices to Customer, which shall be Customer’s sole responsibility. Market Genie will use reasonable efforts to meet Customer’s requested delivery schedules, but reserves the right to refuse, cancel, or delay shipment when Customer’s credit is impaired, when Customer is delinquent in payments or fails to meet other delivery, credit, or financial requirements reasonably established by Market Genie, or when Customer has otherwise failed to perform any material obligation of this Agreement.
Invoicing and Payment.
- Fees. All fees and charges (other than expenses) will be set forth in the applicable Sales Order. Except as otherwise provided, all fees, charges, and expenses must be paid within thirty days of the date of an invoice. All amounts are payable in US Dollars in accordance with the instructions provided in the invoice or other instructions provided by Market Genie in writing. Without prejudice to its other rights and remedies, if Market Genie does not receive any payment by its due date, Market Genie may assess a late payment charge on the unpaid amount at the rate of 1.5% per month or the highest rate allowed under applicable law, whichever is more. Customer shall reimburse Market Genie for all reasonable costs related to any proceedings to collect any past-due amounts, including without limitation attorneys’ fees and expenses.
- Taxes. All charges under this Agreement are stated exclusive of any applicable taxes, duties, fees, and other assessments of whatever nature imposed by governmental authorities, and Customer is solely responsible for, and shall pay or reimburse Market Genie for such.
- Early Termination. The Parties acknowledge that all fees and charges set forth in the applicable Sales Order contemplate the use of the Software, Services, and other products and services specified in that Sales Order for the full term of the Agreement. Accordingly, in the event that this Agreement terminates prior to the end of the then-current term for any reason other than an uncured material breach by Market Genie, Customer agrees to pay Market Genie all fees and charges that would have otherwise been due to Market Genie pursuant to Section 3.1 had the Agreement continued until the end of the then-current term. The Parties agree that this is a fair allocation of risk in light of the fees and charges specified in the applicable Sales Orders.
Software License and Hosting Services.
- Customer Software License. Subject to the terms and conditions of this Agreement, Market Genie hereby grants Customer a non-exclusive, non-transferable, revocable (but only as provided herein) license to use the Software identified on any approved Sales Order attached hereto and all Documentation related thereto for the term set forth in the Sales Order, solely by End Users in the ordinary course of Customer’s business. All rights to the Software not granted herein are expressly reserved and retained by Market Genie or its licensors. Market Genie reserves the right to change the features of any Software, provided that any such changes will not materially degrade the functionality of such Software. If Customer provides Market Genie with comments, suggestions, or other input regarding the Software, Market Genie will have an unrestricted, worldwide, royalty-free right to use those comments, suggestions, or other input for any purpose and in any manner, and to authorize others to do so.
- Software Categories. The Software falls into two categories. Some of the Software may be made available to Customer through the Hosting Services, if set forth in the applicable Sales Order; Customer may access and use such Software only through the Hosted Services. With respect to any Software that is made available to Customer without the Hosting Services, whether as a perpetual license or otherwise, Customer may install and activate such non-hosted Software only on the Designated Systems; provided that Customer may reproduce one additional copy of such non-hosted Software solely for archival purposes or reinstallation and reactivation, in the event of a network failure or system malfunction, on the same Designated System that such non-hosted Software was previously installed and activated.
- Hosting Services. Customer will take reasonable steps to maintain the secrecy of all of its usernames and passwords related to the Hosting Services, and to not release any such usernames or passwords to any third parties. Both Parties will take reasonable and customary measures common in the IT industry to secure their systems from virus, hacker, and denial of service attacks, and Customer further agrees that MARKET GENIE may immediately slow down or cut off service to Customer if necessary to temporarily halt an attack originating with or through Customer until such time as Customer takes corrective action.
- Third Party Licenses. Customer acknowledges and agrees that MARKET GENIE’s ability to grant the rights and licenses granted to Customer under this Agreement, including any rights and licenses to the Integrated Content and the Hosting Services, may be contingent upon rights, titles, and licenses (“Third Party Licenses”) being obtained by MARKET GENIE from third parties and remaining unchanged and in full force and effect throughout the term of this Agreement and thereafter. Should any one or more Third Party Licenses be cancelled, terminated, rescinded, not renewed, or, as applicable, changed, Customer’s rights to use all or, as applicable, the affected portions of the Software, the Integrated Content, or the Hosting Services, as applicable, shall automatically and without notice terminate or, as applicable, change to the extent necessary or appropriate under the applicable Third Party License, which termination or change shall not constitute a breach by MARKET GENIE of any of its obligations under this Agreement.
- se Restrictions. Customer shall not, and Customer shall require any End-Users to not: (i) transfer, assign, export, or sublicense the Software except as specifically set forth herein, or its license rights thereto, to any other person, organization or entity, including through rental, timesharing, service bureau, subscription, hosting, or outsourcing the Software; (ii) use the Software on hardware other than Designated Systems or for any unauthorized purpose; (iii) attempt to create any derivative version thereof; (iv) remove or modify any marking or notice on or displayed through the Software or Documentation, including those related to MARKET GENIE’s or its licensors’ proprietary rights in and to the Software or Documentation, as applicable; or (v) de-compile, decrypt, reverse engineer, disassemble, or otherwise reduce same to human-readable form.
- Compliance with License. MARKET GENIE shall have the right to inspect and audit Customer’s facilities, computer systems, networks, books, and records at any time during the Term and within one year after termination or expiration of this Agreement to verify Customer’s compliance with the terms and conditions of this Agreement. MARKET GENIE may report the results of such inspection and audit, and assign such right to inspect and audit, to its licensors and suppliers.
- Customer Data. As between Customer and MARKET GENIE, Customer is solely responsible for the selection and design of Customer’s business controls and the implementation of those controls within Customer’s organization on the access and use, and the security of Customer Data transmitted in connection with the Software and the Hosting Services (these controls also include any procedures necessary to safeguard the integrity and security of Customer Data from access by unauthorized personnel). Customer understands that the use of the Software may involve the transmission of Customer Data over the Internet and over various networks, only part of which may be owned or operated by MARKET GENIE, and that MARKET GENIE takes no responsibility for data that is lost, altered, intercepted, or stored without Customer’s authorization during the transmission of any data whatsoever across networks whether or not owned or operated by MARKET GENIE. Customer Data is the property of the Customer. Customer may request a copy of the Customer Data during the term of the Agreement and for thirty days following the termination of the Agreement. MARKET GENIE may charge a reasonable fee for the time and materials required to provide the Customer Data to the Customer.
- Warranties, Disclaimers, and Exclusions.
- Mutual. Each Party represents and warrants that the Party’s execution, delivery, and performance of this Agreement: (a) have been authorized by all necessary corporate action; (b) do not violate the terms of any law, regulation, or court order to which such Party is subject or the terms of any agreement to which the Party or any of its assets may be subject; and (c) are not subject to the consent or approval of any third party.
- MARKET GENIE Warranties. MARKET GENIE represents that the Services will be carried out with reasonable care and skill and performed in a timely, workmanlike, and cost effective manner using properly trained staff familiar with the functions and operation of the Software. MARKET GENIE warrants that for a period of ninety calendar days after delivery of the Software (the “Warranty Period”), the Software will perform substantially in accordance with the specifications set forth in the then-current Documentation (the “Software Warranty”). In the event of a non-conformance of the Software, occurring and reported to MARKET GENIE within the Warranty Period, and after the Warranty Period upon payment of the applicable fees for Support Services, MARKET GENIE will correct such error in accordance with the processes and procedures set forth in Exhibit
A. Notwithstanding the foregoing, any Integrated Content shall be subject only to the warranty, if any, provided by the licensor of such Integrated Content.
- Software Remedy and Exclusion. CUSTOMER’S SOLE REMEDY UNDER THE SOFTWARE WARRANTY IS LIMITED TO THE REPLACEMENT, REPAIR, OR REFUND, AT MARKET GENIE’S OPTION, OF DEFECTIVE SOFTWARE. NOTWITHSTANDING THE PROVISIONS OF SECTION 5.2 ABOVE, THE SOFTWARE WARRANTY EXCLUDES, AND MARKET GENIE SHALL HAVE NO OBLIGATION TO REMEDY, ANY SOFTWARE DEFECTS CAUSED OR MATERIALLY CONTRIBUTED TO BY: (i) ALTERATION, REPAIR OR MODIFICATION OF THE SOFTWARE BY ANY PERSON OR ENTITY OTHER THAN MARKET GENIE WITHOUT MARKET GENIE’S WRITTEN CONSENT; (ii) CUSTOMER’S IMPROPER STORAGE, MISHANDLING, ABUSE, OR MISUSE OF THE SOFTWARE; (iii) CUSTOMER’S USE OF THE SOFTWARE WITH EQUIPMENT OTHER THAN THE DESIGNATED SYSTEMS; AND/OR (iv) DAMAGE BY FIRE, EXPLOSION, POWER FAILURE, OR ANY ACT OF NATURE.
- Customer or Third Party Caused Problems. MARKET GENIE reserves the right to charge Customer at MARKET GENIE’s then-current hourly rates for any troubleshooting, break/fix, or other services required for MARKET GENIE to correct problems caused by Customer or any third party, including problems caused by: (i) Customer’s hardware, software, networks, or host systems or the combination; (ii) Customer’s misuse of the Software or the Services; and (iii) Customer’s failure to complete tasks, or deliver identified deliverables, in accordance with the agreed project plan. MARKET GENIE will notify Customer of its determination and will provide a summary of the root cause analysis. For the avoidance of doubt, MARKET GENIE shall not be obligated to perform the Support Services with any third party software and MARKET GENIE is not responsible or liable for any components, products, or services obtained from third party vendors, or the actual or alleged breach by Customer of any of the terms or policies of a third party vendor.
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MARKET GENIE AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE SOFTWARE, INTEGRATED CONTENT, SERVICES, DELIVERABLES, OR OTHER PRODUCTS INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MARKET GENIE AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE, SERVICES, DELIVERABLES, OR OTHER PRODUCTS WILL BE UNINTERRUPTED, SECURE, ACCURATE, TIMELY, VIRUS-FREE, OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR DELIVERABLES OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES HA VING INVESTIGA TED THE SOFTW ARE AND HAS DETERMINED THA T THE SOFTW ARE AS DESCRIBED IN APPLICABLE DOCUMENTATION IS SUITABLE FOR CUSTOMER’S PURPOSES. CUSTOMER FURTHER ACKNOWLEDGES THAT THE SOFTWARE IS A BUSINESS TOOL THE CORRECTNESS AND USABILITY OF WHOSE OUTPUT IS CUSTOMER’S RESPONSIBILITY.
- Confidential Information. Any financial and/or business information that a Party discloses (the “Discloser”) to the other Party (the “Recipient”) in connection with this Agreement, regardless of the form or manner in which the information is disclosed or learned, including software code (object and source), documentation (including manuals, training materials, and presentations), functionality, inventions, algorithms, specifications, improvements, developments, applications, know- how, customer names and information, trade secrets, and/orideas.
- Limitations. Recipient may use Confidential Information of the Discloser only for the purposes of exercising Recipient’s rights and fulfilling Recipient’s obligations under this Agreement. Recipient shall use the same degree of care, but no less than a reasonable degree of care, to protect against the unauthorized disclosure or use of Discloser’s Confidential Information as it uses to protect its own confidential information of a similar type. Recipient shall disclose Confidential Information of Discloser only to its employees or independent contractors who have a need to know for the above stated purpose, and who are bound by obligations of confidentiality no less restrictive than the terms of this Agreement.
- Exceptions. Recipient’s obligation under this Agreement to treat information as Confidential Information does not apply to information that: (i) is already known to Recipient at the time of disclosure and was not obtained, directly or indirectly, from Discloser; (ii) is independently developed by Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is obtained by Recipient from another source without a breach of any obligation of confidentiality owed by that source to Discloser; or (iv) is or becomes part of the public domain through no wrongful act of Recipient or any party that obtained the information from Recipient. If Recipient is served with a subpoena or other legal process, court, or governmental request or order requiring disclosure, or is otherwise required by law or securities exchange requirement to disclose, any of Discloser’s Confidential Information, Recipient shall, unless prohibited by law, promptly notify Discloser of that fact and cooperate fully (at Discloser’s expense) with Discloser and its legal counsel in opposing, seeking a protective order, seeking to limit, or appealing the subpoena, legal process, request, order, or requirement to the extent deemed appropriate by Discloser. Recipient may comply with the subpoena or other legal process or requirement after complying with the foregoing sentence, but only to the extent necessary for compliance.
- MARKET GENIE Indemnification. MARKET GENIE shall indemnify, defend, and hold harmless Customer from and against any action brought against Customer: (a) alleging that the Software infringes a valid U.S. patent, copyright, or trademark of any third party; or (b) for personal injury or death arising out of MARKET GENIE’s gross negligence or willful misconduct. Notwithstanding the foregoing, MARKET GENIE shall have no obligation to Customer to the extent any claim is caused by: (i) the combination, operation, or use of the Software with other software, hardware, or third party equipment where the Software otherwise would not itself be infringing; (ii) any modification or alteration of the Software in any way by, at the request of, or on behalf of Customer, whether or not permitted under this Agreement; or (iii) use of the Software in any form other than the current unaltered version or release of the Software. If any of the Software becomes or, in the opinion of MARKET GENIE, may become the subject of a claim of infringement, MARKET GENIE may, at its option: (x) procure for Customer the right to use such Software free of any liability; (y) replace or modify such Software to make it non-infringing; or (z) if neither (x) nor (y) is commercially feasible, to terminate this Agreement on written notice to Customer, in which case MARKET GENIE will pay Customer a prorated refund of the fees paid for the applicable Software. This Section sets forth the exclusive remedy of Customer with respect to any claims of infringement and misappropriation.
- Customer Indemnification. Customer shall indemnify, defend, and hold harmless MARKET GENIE, and its licensors and suppliers, and its and their officers, directors, employees, representatives, and agents, from and against any action brought against such person: (a) arising out of any use of the Software, including by any End User (except to the extent such claims are subject to MARKET GENIE’s obligations under Section 7.1); or (b) for personal injury or death arising out of Customer’s gross negligence or willful misconduct.
- Procedure and Limitations. The indemnified Party shall promptly notify the indemnifying Party in writing of any claims, suits, actions, hearings, or proceedings for which it may seek indemnification under Section 7.1 or 7.2 above. The indemnified Party shall permit the indemnifying Party to assume and control the defense of any action; provided, however, the indemnifying Party shall not enter into any settlement or compromise, or consent to the entry of any judgment admitting any liability, without the prior written consent of the indemnified Party, which consent shall not be unreasonably withheld. The indemnified Party shall have the right to participate in the defense of any such claims, suits, hearings, actions, or proceedings with counsel of its own choosing, at its own expense.
Limitations of Liability and Damages.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF THE SOFTWARE, LOSS OF PRIVACY, DOWNTIME, AND COSTS OF SUBSTITUTE SOFTWARE OR SERVICES) ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE OR NON-USE OF THE SOFTWARE OR SERVICES.
- Limitation of Damages. NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL MARKET GENIE’S TOTAL LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO MARKET GENIE HEREUNDER DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS. Each Party acknowledges and agrees that the warranty disclaimers and liability and remedy limitations in this Agreement are material, bargained for provisions of this Agreement and that fees and consideration payable hereunder reflects these disclaimers and limitations.
Term and Termination.
- Term. Unless otherwise terminated as specified in this Agreement, the initial term of this Agreement will commence on the Effective Date and continue for the period set forth in the applicable Sales Order. If the applicable Sales Order does not set forth a term of this Agreement, this Agreement will continue for a period of one year. Thereafter, this Agreement will automatically renew for successive one-year terms, unless one Party notifies the other Party in writing at least sixty days prior to the end of the initial term or the then-current one-year renewal term that it elects to have the Agreement expire at the end of that term. Notwithstanding the foregoing, subject to Section 9.2 below, Customer’s right to use any Software that is specifically designated as perpetually-licensed on the applicable Sales Order shall continue in perpetuity.
- Termination by Breach. Either Party may, by written notice to other Party, terminate this Agreement, in whole or in part, in the event that the other Party: (a) materially breaches this Agreement and such breach is incapable of cure or, with respect to a material breach capable of cure, the other Party does not cure such breach within thirty days after receipt of written notice of such breach; or (b) terminates or suspends its business activities, becomes insolvent, undertakes liquidation, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver, or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes. Notwithstanding the foregoing, MARKET GENIE may, by written notice to Customer, terminate this Agreement, in whole or in part, in the event that Customer fails to pay any amount due to MARKET GENIE within fifteen days after MARKET GENIE gives Customer written notice of such non-payment.
- Force Majeure. Notwithstanding anything to the contrary in this Agreement, except for Customer’s obligations to pay amounts due under this Agreement, neither Party will be deemed to be in default of any provision of this Agreement for any delay, error, failure, or interruption of performance due to any act of God, terrorism, war, insurrection, riot, boycott, strike, or other labor or civil disturbance, interruption of power service, interruption of communications services, problems with the Internet, epidemic, act of any other person not under the control of such Party, or other similar cause. The Party subject to any of the foregoing events shall give the other Party reasonable written notification of any resulting material or indefinite delay.
- Effect of Termination. Unless this Agreement is terminated by MARKET GENIE for cause under Section 9.2 above (subject to provisions in this Agreement that survive the termination of this Agreement), Customer’s right to use any perpetually-licensed Software shall continue in perpetuity. If this Agreement is terminated by MARKET GENIE for cause under Section 9.2 above, Customer shall: (i) immediately cease using the Software, regardless of whether that Software was perpetually-licensed or for a license term; (ii) return or (at MARKET GENIE’s option, exercised by written notice to Customer) destroy all copies, partial or complete and wherever stored or available, of the Software, and all Documentation and other tangible materials, irrespective of media and location; and (iii) certify to MARKET GENIE in writing within one month after such termination or expiration that Customer has fully complied with subsections (i) and (ii) above.
- Survival. The following provisions of this Agreement will survive expiration or termination of this Agreement: Sections 3, 4.6, 4.7, 4.8, 5.3, 5.4, 5.5, 6, 7, 8, 9.4 and 10.
- MARKET GENIE and Customer are each independent contractors and neither party shall be, nor represent itself to be, the franchiser, partner, broker, employee, servant, agent, or legal representative of the other party for any purpose whatsoever. Neither party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party, or to bind the other party in any manner or thing whatsoever. Customer may not sublicense, assign, or transfer this Agreement, or any rights and obligations under this Agreement, in whole or in part, without MARKET GENIE’s prior written consent. Any attempted assignment in violation of this Section shall be void. Notwithstanding the foregoing, this Agreement shall be binding upon, and inure to the benefit of, 45 the permitted successors and assigns of each Party. MARKET GENIE reserves the right to subcontract part or all of the Services, provided, however, that doing so shall not relieve MARKET GENIE of any of its obligations under this Agreement. This Agreement, and all matters related thereto, shall be governed exclusively by the laws of the Commonwealth of Pennsylvania, without regard to conflicts of laws provisions. Any controversy, or claim arising out of, or related to this Agreement, or breach thereof, shall be settled by mandatory arbitration, to be held in Philadelphia, Pennsylvania, in accordance with the rules of the JAMS Arbitration Association and the decision of the arbitrator(s) shall be binding on the parties thereto. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any and all prior oral or written communications, proposals, representations, and agreements. It may be amended only by mutual agreement expressed in writing and signed by both parties, and any attempted amendment in violation of this Section shall be void. The waiver or failure of either party to exercise in any respect any right provided under this Agreement shall not be deemed a waiver of such right in the future or a waiver of any other rights established under this Agreement. Each of MARKET GENIE’s licensors of the Integrated Content shall be a third party beneficiary of the Agreement with regard to infringement of its Integrated Content, a breach of its intellectual property rights, and the enforcement of the terms of this Agreement. Except as expressly set forth in this Section, this Agreement does not and is not intended to confer any rights or remedies upon any person other than the Parties. Should any term or provision of this Agreement be held to any extent unenforceable, invalid, or prohibited under law, then such provision shall be deemed restated to reflect the original intention of the parties as nearly as possible in accordance with applicable law and the remainder of this Agreement. When used herein, the words “includes” and “including” and their syntactical variations shall be deemed followed by the words “without limitation.” This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. An electronically signed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.