Terms of Use

WHEREAS the Company has developed a software which provides a platform for distribution of online content, offerings, purchase, referrals, and other features for the Customer and is providing a subscription to the software, subject to certain consideration (the “Service”);

WHEREAS the Customer wishes to subscribe to the Service for the Customer or third-party Users of the Customer in accordance with the terms and conditions herein;

WHEREAS the Parties wish to evidence their contract in writing;

WHEREAS the Parties are duly authorized and have the capacity to enter into and perform this Agreement;

WHEREAS both the Parties affirm to understand all of the provisions contained in this Agreement, and in case either Party requires clarification as to one or more of the provisions contained herein, either Party has requested clarification or otherwise sought legal guidance.

The Company and the Customer shall individually be referred to as “Party” and collectively as “Parties”.

NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS

• “User(s)” means individuals or entities to which Customer has permitted access to the Software. User(s) includes, but not limited to, Customer’s employees, consultants, contractors, volunteers, clients, customers, guests, and other members of the public who access the Software pursuant to this Agreement.
• “Confidential Information” shall mean information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 5 of this Agreement.
• “Software” shall mean online software applications provided as a part of the Service.
• “Order Form” means the documents for placing orders pursuant to this Agreement that are entered into between the Company and the Customer from time to time, including addenda and supplements thereto.

2. GRANT OF LICENSE

• Conditioned on the provisions in this section and the other terms and conditions of this Agreement and payment of the applicable Fees, the Company hereby appoints the Customer, and the Customer hereby accepts, for the Term (unless terminated as provided in this Agreement), a non-exclusive, non-transferable, non-sublicensable license to provide the Service to its Users, at its own expense and using its own efforts with its own sales force. Without limiting the generality of the foregoing, Customer providing the Service to its Users must be done in accordance with the terms and conditions of this Agreement.
• The Software provided to the Customer pursuant to this Agreement shall be branded and accessible to the public under the Customer’s name or marks. The word “Powered by Zingify” shall appear in the splash screen and menu or settings section of the Software unless otherwise agreed by the Parties and additional fees paid by the Customer to the Company. Any other name, trademark, trade name, trade dress, designs and logos of the Company (the “Marks”) shall not appear on the Software, unless mutually agreed by the Parties in advance in a separate signed written authorization. No license, express or implied, is granted to the Customer for any of the Marks under this Agreement.

3. SERVICE DESCRIPTION

• 3.1. Responsibilities of the Company

  • The Service shall be made available by the Company subject to any unavailability caused by circumstances beyond the Company’s reasonable control, including any force majeure events, as contemplated in Section 11.1, and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within the Company’s possession or reasonable control, and denial of service attacks.
  • The Software provided to the Customer pursuant to this Agreement shall be branded and accessible to the public under the Customer’s name or marks. The word “Powered by Zingify” shall appear in the splash screen and menu or settings section of the Software unless otherwise agreed by the Parties and additional fees paid by the Customer to the Company. Any other name, trademark, trade name, trade dress, designs and logos of the Company (the “Marks”) shall not appear on the Software, unless mutually agreed by the Parties in advance in a separate signed written authorization. No license, express or implied, is granted to the Customer for any of the Marks under this Agreement.
  • The Service may be temporarily limited, interrupted, or curtailed due to maintenance, repair, modifications, upgrades or relocation. The Company shall attempt to notify the Customer of scheduled and unscheduled network outages that are expected to last more than four (4) hours and that may affect the Service. The Company shall be entitled to change the Service during the Term, provided that the Company will not materially reduce the capabilities provided by the Service. The Customer acknowledges that some features of capabilities of the Service are provided by third-party service providers such as server hosting, payment processors, and others. The Customer agrees that the Company has no control over these third-party service providers and waives any claim against the Company for damages to the Customer caused by these third-party service providers.
  • The Company shall ensure that the Service will be performed substantially in accordance with this Agreement.
  • The provisions of this clause shall not apply to the extent of any non-conformance which is caused by use of the Service contrary to the Company’s instructions, or modification or alteration of the Service by any party other than the Company or the Company’s duly authorized contractors or agents. If the Service does not conform with the foregoing undertaking, the Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in this clause.
  • The Company does not warrant that the Customer’s use of the Service will be uninterrupted or error-free; nor that the Service and/or the information obtained by the Customer through the Service will meet the Customer’s requirements; and is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and the Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
  • This Agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing products and services which are similar to those provided under this Agreement.
  • The Company warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.
  • The Company warrants that it is hosted on a secure and well-maintained cloud platform. The Company performs automated database backups.
  • The Customer will obtain and pay for cloud-based servers and data plan from a third-party hosting provider recommended by the Company. The Company will manage such servers on behalf of the Customer. In the event of a data breach of such servers Customer shall indemnify, defend, and hold Company harmless against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by the Company, arising out of or related to such data breach.
  • The Software and Service will be delivered through web browser based and mobile applications (“Apps”) compatible with Apple iOS© and Android© operating systems. The Apps will list the Company as the Apps developer. Apps shall be exclusively distributed through the Company’s developer accounts on the Apple and Google Play app stores and Company shall be listed as the App developer. The Customer acknowledges that the Apple app store and Google Play stores have internal policies and procedures to review and approve apps to be included in their app stores. The Company will use commercially reasonable efforts to have the Apps timely approved and published by the Apple app store and Google Play stores. The Customer acknowledges and agrees that the Company shall not be liable to the Customer for the rejection or delay in approval of the Apps by the Apple or Google Play app stores. The Customer waives any claims against the Company for damages or refund of fees paid if the decision of Apple or Google affects the availability of the apps.

• 3.2. Responsibilities of the Customer

  • The Customer shall maintain marketing and customer service standards that are appropriate to maintain high-quality service and to reflect favorably on the Customer’s and the Company’s reputation. The Customer shall provide Users with prompt, courteous, and efficient service and shall deal with Users honestly and fairly.
  • The Customer shall be responsible for all activities of its Users and the Customer shall: (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and shall notify the Company promptly of any such unauthorized access or use; and (ii) comply with all applicable local, state, federal and foreign laws in respect to providing and promoting the Service.
  • The Customer shall provide the Company with all necessary co-operation in relation to this Agreement.
  • The Customer shall provide the Company with all necessary information as may be required by the Company.
  • The Customer shall comply and ensure that the Users comply with all applicable laws and regulations with respect to its activities under this Agreement.
  • The Customer shall carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the Parties, the Company may adjust any agreed timetable or delivery schedule as reasonably necessary.
  • The Customer shall ensure that the Users obtain and shall maintain all necessary licenses, consents, and permissions necessary for the Company, its contractors and agents to perform their obligations under this Agreement, including, without limitation, the Service.
  • The Customer shall ensure that its network and systems comply with the relevant specifications provided by the Company from time to time.
  • The Customer shall ensure that the Users take reasonable steps to prevent unauthorized access to the Software, including, without limitation, by protecting its passwords and other log-in information. The Customer shall notify the Company immediately of any known or suspected unauthorized use of the Company software or breach of its security and shall use best efforts to stop said breach.

• 3.3. Restrictions

  • The Customer shall not (and shall not authorize any third party to): (i) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service, except to the extent that enforcement of the foregoing restriction is prohibited by applicable law; (ii) circumvent any user limits or other timing, use or functionality restrictions built into the Service; (ii) remove any proprietary notices, labels, or Marks from the Service (except to the extent the Customer is so permitted to for the purposes of re-branding the Service); (iv) frame or mirror any content forming part of the Service; or (v) access the Service in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the Service.

4. FEE AND PAYMENT

• Fees, rates or charges charged by the Customer to the Users for the Service shall be determined solely by the Customer. The Company shall have no authority or responsibility to determine such fees or other amounts, and the Company shall have no responsibility for billing or collecting such fees or any other amounts from Users. The Customer is solely responsible for payment to the Company for all fees for the Service. The Customer is solely responsible for processing and issuing refunds to its Users for the products and content it chooses to provide via the Service and Software. Customer will indemnify, defend, and hold Company harmless in regards to any refund claims of Users. In connection with such activities, the Customer will act in all respects for its own account and will be responsible for such matters as credit verification, deposits, billing, collection, bad debts and any unauthorized use of the Service by or on behalf of Users. The Company is obligated only to the Customer, with which it is in privity of contract, and not to Users, with whom the Company is not in privity of contract. Users are not to be deemed third-party beneficiaries of this Agreement.
• The Customer shall pay all Fees specified in all Order Forms pursuant to this Agreement. Except as otherwise specified in this Agreement or in an Order Form, (i) Fees are based on licenses purchased for the Service and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are nonrefundable, and (iii) the number of licenses purchased cannot be decreased during the relevant Subscription Term stated on the applicable Order Form. User subscription Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, Fees for user subscriptions added in the middle of a monthly period will be charged for that full monthly period and the monthly periods remaining in the Subscription Term.
• All payments under this Agreement shall be immediately paid and charged against Customer’s credit card on file with the Company. If that payment method fails, the Customer shall make payment in full within seven (7) days after the receipt of the notice of payment due. All amounts are payable in United States Dollars unless specified otherwise on the Order Form or Scope of Work. Any amounts not paid when due shall accrue interest at the lesser of 10% of the amount not paid per month or the maximum rate allowed by law. If the Customer has been delinquent in its payments, the Company may condition future subscription renewals and Order Forms on prepayment or payment terms shorter than those specified in this Section 4.3.
• If any amount owing by the Customer under this or any other agreement for the Service is seven (7) or more days overdue, the Company may, without limiting the Company’s other rights and remedies, accelerate the Customer’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend provision of the Service to the Customer and the Users until such amounts are paid in full. The Company will give the Customer at least seven (7) days’ prior notice that its account is overdue, before suspending the Service.
• Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonized sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with its purchases, pursuant to this Agreement. If the Company has the legal obligation to pay or collect Taxes for which the Customer is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, the Company is solely responsible for Taxes assessable against the Company, based on its income, property and employees.

5. CUSTOMER’S CONTENT

• Customer keeps the ownership of all content it creates and shares via the services provided by the company. Customer will upload and distribute content and material via the Service and Users may also upload, publish or display content and material to share with others via the Service (“Content”). Customer gives Company permission to make the Content available to Users. Customer represents and warrants that it has all the rights in relation to the Content that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
• In connection with Customer’s use of the Service, Customer grants and will grant the Company a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable (through multiple tiers), perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify, and otherwise use Content for the purpose of delivery, operations, improvements including any research and development of the Service in any form, medium or technology now known or later developed. This license includes the right for Company to make the Content available and sublicense rights to other entities and individuals who partner with the Company in the delivery of the Service, including the right to move Content to another platform. Company may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Use; (c) respond to claims that any Content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Company, its users and the public. The technical processing and transmission of Content may involve transmissions over various networks and changes to conform to technical requirements of connecting networks or devices.
• Customer is solely responsible if Content violates the intellectual property or personal rights of others. Customer agrees to pay all royalties, fees, and any other monies owed to any person by reason of any of the Content. Company is not obligated, but reserve the right, to remove or suspend, in whole or part, if the Content violates the rights of others. In the event that the Content causes a third-party intellectual property rights, Customer shall indemnify, defend, and hold Company harmless against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by the Company, arising out of or related to such intellectual property rights violation.

6. CONFIDENTIALITY AND NON-DISCLOSURE

• 6.1. Non-Disclosure

  • Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement.
  • A Party’s Confidential Information shall not be deemed to include information that: (i) is or becomes publicly known other than through any act or omission of the receiving Party; (ii) was in the other Party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the receiving Party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
  • Each Party shall hold the other’s Confidential Information in confidence, and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
  • Each Party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
  • Neither Party shall be responsible for any loss, destruction, alteration, or disclosure of Confidential Information caused by any third party.
  • The Customer acknowledges that details of the Service, and the results of any performance tests of the Service, constitute the Company’s Confidential Information.
  • This clause 5 shall survive termination of this Agreement.

• 6.2. Return of Written Materials

  • The Parties acknowledge that any such information will be shared for the sole purpose of determining if there is a basis for agreement between the Parties. Neither Party is hereby granting the other any right or license with respect to any shared information. If the Parties fail to reach agreement, each Party shall return to the other any written materials or information given to it (and copies made by it) or affix in writing that such materials or information has been destroyed. If agreement is not reached, any Party shall not use in any way for its benefit or any other person’s or entity’s benefit any such information or materials shared with it without the other Party’s written consent.

7. TERM AND TERMINATION

• The initial Term of this Agreement shall commence on the Effective Date noted above and continue thereafter for a period of 12 months (the “Initial Term”).
• Thereafter, this Agreement shall automatically renew for additional periods of 12 months (the “Renewal Term(s)”) unless either Party provides written notice of termination to the other Party at least forty-five (45) days prior the end of the Initial Term or respective Renewal Term, as applicable.
• The Company reserves the right to modify this Agreement and any of its other polices at any time at its sole discretion with no prior notice to the Customer.
• This Agreement may be terminated as follows: (i) if the Customer fails to make any payment due hereunder within seven (7) days after receiving written notice from the Company that such payment is delinquent, the Company may terminate this Agreement on written notice to the Customer at any time following the end of such period; (ii) if either Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching Party may terminate this Agreement on written notice at any time following the end of such thirty (30) day period; (iii) if either Party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due) or makes an assignment for the benefit of creditors, then the other Party may terminate this Agreement immediately upon notice; or (iv) without cause, with a ninety (90) day written notice. If the Customer terminates this Agreement, such termination shall not affect the Customer’s right to provide Users with the Customer’s own products and services that do not use or depend on the Service or any deliverables.

8. COPYRIGHT AND TRADEMARKS

• The Customer acknowledges and agrees that the Company owns and shall retain all intellectual property rights in the Software and Service. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Service.
• The Company confirms that it has all the rights in relation to the Service that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
• Except as specified herein, the Customer does not acquire any rights, express or implied, in the Subscribed Service or the Company Software, nor any right to transfer the Subscribed Service or the Company Software, in whole or in part. No license, right or Intellectual Property Right in any of the Company trademark, trade name or service mark is granted pursuant to this Agreement. For purposes of this Agreement, “Intellectual Property Rights” means, on a worldwide basis, any and all (i) rights associated with works of authorship, including, without limitation, copyrights, copyrightable rights, moral rights and mask work rights; (ii) trademark, service mark and trade name rights and any similar rights recognized under applicable law; (iii) trade secret rights and rights in Confidential Information; (iv) patents and patentable rights; (v) all rights with respect to inventions, discoveries, improvements, know-how, formulas, algorithms, processes, technical information and other technology; (vi) all other intellectual and industrial property rights of every kind or nature, whether arising by operation of law, contract, license or otherwise; and (vii) all international, national, foreign, state and local registrations, applications for registration and any renewals and extensions thereof (including, without limitation, any continuations, continuations-in-part, divisions, reissues, substitutions and re-examinations), all goodwill associated therewith, and all benefits, privileges, causes of action and remedies relating to any of the foregoing (including, without limitation, the exclusive rights to apply for and maintain all such registrations, renewals and extensions; to sue for all past, present and future infringements or other violations relating thereto; and to settle and retain all proceeds from any such actions).

9. SUPPORT SERVICES

• Customer will designate up to two contacts that will have access to support services from the Company. Company will provide support services to the designated contacts in a timely manner. Any support requests from Users are the sole responsibility of the Customer and not the Company.

10. RELATIONSHIP OF THE PARTIES

• Nothing contained in this Agreement shall be construed as creating any agency, legal representative, partnership, or other form of joint enterprise between the Parties. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.

11. DISCLAIMER OF WARRANTIES/LIMITATION OF LIABILITY

• WE ARE PROVIDING YOU THE SOFTWARE AND SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, COMPANY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, ACCURACY AND COMPLETENESS, UNINTERRUPTED OR ERROR-FREE SERVICE, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE.
• Under no circumstances will the Company, or it’s affiliates be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the Service, including but not limited to reliance on any information obtained from the Service; or that result from mistakes, omissions, interruptions, deletion of files or email, loss of or damage to data, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not limited to act of God, communication failure, theft, destruction or unauthorized access to the Company records, programs or Service.
• The Customer hereby acknowledges that this provision will apply whether or not the Company is given notice of the possibility of such damages and that this provision will apply to all services available from the Company and its affiliates
• Under no circumstances, under the terms of this Agreement, shall damages include loss of business, or loss of profits, whether based on breach of Agreement, breach of warranty, product liability, or otherwise, to any Party in privy to this Agreement, or any third party not so situated.
• The terms of this section shall survive the termination of this Agreement for whatever reason.

12. FORCE MAJEURE

• If by reason of failures of telecommunications or Internet service providers, labour disputes, riots, inability to obtain labour or materials, earthquake, fire or other action of the elements, accidents, governmental restrictions, earthquake, act of God, pandemic, epidemic or other causes beyond the control of the Company, the Company is unable to perform in whole or in part its obligations as set forth in this Agreement, then the Company shall be relieved of those obligations to the extent it is so unable to perform, and such inability to perform shall not make the Company liable to the Customer or third parties.

13. SEVERABILITY AND CONSTRUCTION

• Except as expressly provided to the contrary herein, each article, term, condition and provision of this Agreement shall be considered severable, and if, for any reason whatsoever, any such article, term, condition or provision herein is deemed to be invalid, illegal or incapable of being enforced as being contrary to, or in conflict with any existing or future law or regulation by any court or agency having valid jurisdiction, such shall not impair the operation or have any other effect upon such other articles, terms, conditions and provisions of this White Label SaaS Agreement, and the latter shall continue to be given full force and effect by the Parties hereto, and shall be construed as if such invalid, illegal or unenforceable article, term, condition or provision were omitted.
• All captions, titles, headings and article numbers herein have been inserted and are intended solely for the convenience of the Parties, and none such shall be construed or deemed to affect the meaning or construction of any provisions hereof, nor to limit the scope of the provision to which they refer.
• All references herein to the masculine gender shall include the feminine and neuter genders, and all references herein to the singular shall include the plural, where applicable.

14. NOTICES

• All notices required or submitted under this Agreement shall be given in writing and shall be personally delivered or mailed by registered mail, postage prepaid and return receipt requested, except in the event of a postal disruption, to the respective [PARTY NAME] at the following addresses, unless and until a different address has been designated by notice in writing to the other Party:

   

  To the Company:

  5214F Diamond Heights Blvd #3582 San Francisco, CA 94131,

  With copy to:

  58 Collett Street,
  Eight Mile Plains, QLD AUSTRALIA

  To the Customer:

  Via Customer’s registered email address on the Zingify or Masterdojo’s software account

15. LANGUAGE AND GOVERNING LAW

• This Agreement shall be governed by and construed and enforced in accordance with the laws of the California, United States of America, which law shall prevail in the event of any conflict of the Parties.
• The Parties hereto acknowledge that they requested that this Agreement and all related documents be drafted in English, that any notice to be given hereunder be given in English, and that any proceedings between the Parties relating to this Agreement be drafted in English.

16. NON-SOLICITATION

• The Customer agrees that during the entire Term of this Agreement, it shall not directly or indirectly, as principal, agent, owner, joint ventures, investor, or consultant, solicit or attempt to solicit or induce or encourage the departure or resignation of any of the employees or contractors working for the Company. The Customer understands and agrees that soliciting, inducing, or hiring the Company employees or contractors may result in serious damages for the Company’s business, and acknowledges that the Company may hold the Customer liable for any damages and may seek any legal or equitable relief available to the Company under applicable law.

17. NON-COMPETE

• During the Term, the Customer shall not: (i) directly or indirectly market, promote, or solicit Users or subscriptions for, supply, sell or resell any product or service in competition with the Service; (ii) have any controlling interest in any entity that markets, promotes, sells or provides any product or service in competition with the Service; (iii) enter into any agreements with any provider to resell, redistribute, sub-license or otherwise commercialize any product or service that competes with the Service; or (iv) display on its website or elsewhere any advertising or marketing materials of any provider of any product or service that compete with the Service. The Company shall have the continuing world-wide rights to market and sell the Service and any other products or services to any third parties, including but not limited to current, future, and potential Users.

18. INDEMNIFICATION

• Indemnification by the Company: If a third party makes a claim against the Customer that the Service infringes any patent, copyright or trademark, or misappropriates any trade secret, or that the Company’s negligence or willful misconduct has caused bodily injury or death, the Company shall defend the Customer and its directors, officers and employees against the claim at the Company’s expense, and the Company shall pay all losses, damages and expenses (including reasonable attorneys’ fees) finally awarded against such parties or agreed to in a written Settlement Agreement signed by the Company, to the extent arising from the claim. The Company shall have no liability for any claim based on (i) the Customer content, (ii) modification of the Service not authorized by the Company, or (iii) use of the Service other than in accordance with this Agreement. The Company may, at its sole option and expense, procure for the Customer the right to continue use of the Service, modify the Service in a manner that does not materially impair the functionality, or terminate the Subscription Term and repay to the Customer any amount paid by the Customer with respect to the Subscription Term following the termination date.
• Indemnification by the Customer: The Customer shall defend and/or settle at its expense, any claims, actions or proceedings against the Company and its affiliates and its and their officers, directors, employees and contractors to the extent arising out of or relating to (i) bodily injury or damage to tangible or real property, including death, caused by or arising out of any negligent act or omission of the Customer or those for whom the Customer is responsible for at law; (ii) the provision, use or failure of any product or service provided by the Customer; (iii) any representations or warranties made by the Customer in respect to the Service or any portions thereof beyond those authorized in this Agreement; (iv) any infringement or misappropriate of any intellectual property or other rights by any client data; (v) any violation of any law or regulation by the Customer or any of its affiliates or any of its or their officers, directors, employees, contractors or agents; or (vii) real or tangible property damage or bodily injury or death caused by the negligent or willful acts or omissions of the Customer or any of its affiliates or any of its or their officers, directors, employees, contractors or agents in connection with this Agreement, and the Customer shall pay all damages finally awarded by a court of competent jurisdiction to such third party against any of the Company, or any settlement amounts agreed by the Customer in writing; subject to the conditions that, the Company shall notify the Customer promptly of any claims, permit the Customer to control the defense and settlement of such claims (provided that the Company may participate with counsel of its own choosing, at its own expense), and assist the Customer, at the Customer’s expense, in defending or settling such claims. The Customer shall not be liable for any settlement amounts entered into by the Company without the Customer’s prior written approval.

19. WAIVER

• The failure of the Company to enforce a provision of this Agreement shall not be construed as a waiver or limitation of the Company’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.

20. ASSIGNMENT OF AGREEMENT

• This Agreement may not be assigned or otherwise transferred by any Party in whole or in part without the express prior written consent of the other Party. In the event any Party shall change its corporate name or merge with another corporation, assignment shall be mutually agreed upon by all Parties and the surviving or new corporation and any subsidiaries shall be similarly subject to the rights and obligations of this Agreement.

21. ENTIRE AGREEMENT

• This Agreement constitutes the complete and exclusive statement of the Agreement between the Parties regarding the products and services provided hereunder and supersedes any prior Agreements between the Parties with respect thereto.