Terms and Conditions

EQUISOLVE TERMS OF SERVICE

These terms of service (these “Terms”) govern your access to and use of the services that Equisolve, Inc. (“we” and derivatives thereof such as “us” and “our”) provide to each user of our services (“you” and derivatives thereof such as “your” or “Client”).  These services include website and mobile application design and development, installation, implementation, customization, consulting, hosting, DNS, servicing, updating, administration and newswire, webcasting and teleconferencing and such other services that we may perform from time to time under these Terms (collectively, the "Services").  Your access to and use of the Services are conditioned on your acceptance of, and compliance with, these Terms.  These Terms will become effective as of the date (the “Effective Date”) that we enter into a purchase order agreement with you as part of an accepted sales proposal that we make to you, which purchase order agreement may be automatically amended and supplemented from time to time to include additional products and services as requested by you (the “Purchase Order Agreement”).  By accessing or using the Services you agree to be bound by these Terms.  The singular term “Party” refers to either you or us and the plural term “Parties” refers to both of you and us.

1.  SERVICES

1.1  We will provide you with those Services described in a Purchase Order Agreement that are agreed upon by you and us.  Each Purchase Order will be in writing, signed by an authorized representative of each of our respective organizations, reference these Terms, and include:  (i) a unique name or number; (ii) a contact for each of us; and (iii) a description of the Services to be provided and may include applicable specifications, milestones, and specified deliverables (each a “Deliverable”).  Any Purchase Order Agreement entered into between us will automatically be a part of these Terms as if fully included within this document.  Except as otherwise provided in these Terms or the Purchase Order Agreement, you are responsible for providing all software, hardware, tools, internet access, licensing and supplies that are required for us to perform the Services.

1.2  The Purchase Order Agreement will specify the applicable charges, including the monthly fees and or set up and development fees that you are required to pay to us for the Services.

2.  FINANCIAL

2.1  Services Charges.

(a)  You have provided us with authorization to charge your credit card or invoice you on a monthly, quarterly or annual basis in advance of services for any and all  fees specified in the Purchase Order Agreement.  The aforementioned charges/invoices and obligations shall continue until the termination of the Purchase Order Agreement.  Amounts paid to us are nonrefundable regardless of whether our Services have been terminated.  We reserve the right to charge you interest of 1% per month (pro-rated for periods of less than one month) on amounts owed to us that have not been timely paid.  We reserve the right to increase our prices upon renewal (including automatic renewal) of our Purchase Order Agreement with you subject to reasonable advance notice to you.

2.2  No Incidental Expenses.  Except as otherwise specified in the Purchase Order Agreement, all of our expenses incurred in performing Services under the Purchase Order Agreement are included in the monthly charges described under Section 2.1(a) above.

2.3  Taxes. 

(a)  Each of us is responsible for any personal property taxes on property we own or lease, for franchise and privilege taxes on our respective businesses, and for taxes based on our respective net income or gross receipts.

(b)  You are responsible for any sales, use, excise, gross receipts, value-added, services, consumption, and other taxes and duties payable by you on any goods or services used or consumed by you where the tax is imposed on your acquisition or use of our goods or services and the amount of tax is measured by your costs in acquiring or using such goods or services. 

(c)  Each of us agrees to cooperate with each other to enable each to more accurately determine our own tax liability and to minimize such liability to the extent legally permissible.

3.  RELATIONSHIP MANAGEMENT

3.1  Account Management.

(a)  Equisolve Account Manager.  We will assign a manager (the “Equisolve Account Manager”) who will:  (i) manage the performance of our obligations under these Terms and the Purchase Order Agreement; (ii) serve as your primary point of contact for business matters pertaining to these terms and the Purchase Order Agreement; and (iii) cooperate with and answer queries from you. 

(b)  Equisolve Client Service Manager. We will assign a manager (the “Equisolve Client Services Manager”) who will:  (i) manage the day to day operations including; requests, tickets, updates and changes under these Terms and the Purchase Order Agreement; and (ii) cooperate with and answer queries from you. 

(c)  Client Program Manager.  The individual who signed the Purchase Order Agreement will serve as your primary point of contact with us for operational matters pertaining to these terms and the Purchase Order Agreement (the “Client Program Manager”).  Said individual can at anytime transfer such responsibility to another person within your orginazation by requesting the change in primary contact through our Help Desk.

3.2  Meetings.  While Services are being performed, the Equisolve Account Manager and Client Services Manager will be available upon your request to conduct regular review meetings during which each of us will work to ensure that work-in-progress (including to any Deliverables and milestones) will be achieved by scheduled completion dates.  Each of us will mutually determine any other meetings to be held between our respective representatives. 

3.3  Accounts. 

(a)  Upon entering into the Purchase Order Agreement, you were assigned an account (“Account”).  You acknowledge and agree that you do not have ownership or other proprietary interest in the Account.  Upon creating the Account, we asked you to provide us with certain personal information (e.g., name and email address). You represent that when you provided such personal information it was accurate, current and complete and if you are requested to provide additional information, such additional information will be accurate, current and complete information.  You agree to maintain and update such information to keep it accurate, current and complete.  You acknowledge that, if any information provided by you is untrue, inaccurate, not current or incomplete, we have the right to terminate your access to and use of the Services (or any portion thereof).  YOU ARE entirely responsible for maintaining the confidentiality of YOUR ACCOUNT, INCLUDING ANY password THEREFOR, and ALL ACCESS TO AND USE OF YOUR ACCOUNT, INCLUDING any and all USE OF THE SERVICES OR ANY PORTION THEREOF that ARE CONDUCTED through THE USE OF YOUR ACCOUNT EVEN IF A PERSON ACCESSES YOUR ACCOUNT WITHOUT AUTHORIZATION.  You agree that you will not share or otherwise provide your Account information to anyone and if you require another person to access your Account, you will request that we assign a username and password to such other person.  If you have reason to believe that your Account is no longer secure, you must: (i) promptly change your password, and (ii) immediately notify us of the problem by emailing us at help@equisolve.com (with the subject line: “Account Security Issues”).

(b)  You may choose to authorize others within your company or at a third party to have a user account. In doing such you are granting them full access and the ability to make or request changes, additions and deletions of any type to your account and services provided by us,  including without limitation; live content, structure, settings, preferences, accounting, data and shareholder communication. You agree that you will be liable for any and all actions taken by any person that you authorize to have a user account and that you will ensure that any such person fully complies with these Terms and the Purchase Order Agreement and you will indemnify, defend and hold us harmless for any damages that any such person may cause or for any breach by such person of these Terms or the Purchase Order Agreement.

4.  CONFIDENTIALITY

4.1  General.  If a Party (the “Recipient”) obtains access to Confidential Information of the other Party (the “Discloser”) in connection with the negotiation of or performance under the Purchase Order Agreement or these Terms, the Recipient agrees:  (a) not to directly or indirectly disclose the Confidential Information to any third party except as contemplated by the Purchase Order Agreement or these Terms; and (b) to use the Confidential Information only to perform its obligations and exercise its rights under the Purchase Order Agreement or these Terms.  If you are the Recipient, in addition to the foregoing, you will ensure that (i) your employees only be given access to Confidential Information to the extent necessary for such employees to perform their duties under the Purchase Order Agreement or these Terms; and (ii) any of your employees or agents who receive access to Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing, or disclosing Confidential Information, except as required to perform any obligations under the Purchase Order Agreement or these Terms.  The Recipient must use at least the same degree of care to protect the Confidential Information of the Discloser from unauthorized disclosure or access that the Recipient uses to protect its own Confidential Information, but not less than commercially reasonable efforts.  The Recipient must immediately notify the Discloser of any actual or suspected loss or unauthorized use, disclosure of or access to the Discloser’s Confidential Information of which it becomes aware and take all steps reasonably requested by the Discloser to limit, stop or otherwise prevent such loss or unauthorized use, disclosure or access.

4.2  Confidential Information.  “Confidential Information” means any of the following information that is clearly marked as confidential or that is otherwise obviously confidential information:  (a) all information about or belonging to the Discloser or a third party that is disclosed or otherwise becomes known to the Recipient in connection with the negotiation or performance of the Purchase Order Agreement or these Terms, in whatever form (whether tangible, intangible, electronic, oral or otherwise), whether disclosed before or after the Effective Date, and whether or not marked or otherwise designated as confidential; (b) all trade secrets, end user information and intellectual property owned or licensed by the Discloser; (c) all personal information about individuals contained in the Discloser’s records (including names, addresses, social security numbers, and credit card and other financial information) (“Personal Data”); (d) Equisolve-Owned Developed Material (as defined below) and Client-Owned Developed Material (as defined below) (collectively, “Developed Material”); and (e) any other information which would reasonably be considered confidential from its nature or from the circumstances surrounding its disclosure.  For the avoidance of doubt, Equisolve Confidential Information will include information relating to our customers, potential customers, suppliers, financial and business information, technological information, specifications, business and product plans. 

4.3  Exclusions. 

(a)  The obligations set forth in Section 4.1 above do not apply to Confidential Information in the following conditions (except for personal data to which such obligations will continue to apply):  (i) the information was previously rightfully known by the Recipient free of any obligation to keep it confidential; (ii) the information is or becomes publicly known through no wrongful act of the Recipient; (iii) the information is independently developed by the Recipient without reference to the Confidential Information of the Discloser; (iv) the information was, at the time of disclosure, in the public domain; or (v) the information was received from a third party that had a lawful right to disclose such information without any obligation to restrict its further use or disclosure.   

(b)  Notwithstanding the other provisions of Section 4.1 above, a Party may disclose Confidential Information pursuant to a subpoena, judicial or governmental requirement, or order, provided that the Recipient has given the Discloser (to the extent legally permissible) sufficient prior notice of such subpoena, requirement, or order to permit the Discloser a reasonable opportunity to object to the subpoena, requirement, or order and to allow the Discloser the opportunity to seek a protective order or other appropriate remedy.  A disclosure of Confidential Information under this Section 4.3(b) will not terminate the confidentiality obligations under these Terms with respect to such information. 

4.4  No Implied Licenses.  Nothing contained in this Section 4 will be construed as obligating a Party to disclose its Confidential Information to the other Party, or as granting to or conferring on a Party, expressly or impliedly, any rights or licenses to the Confidential Information of the other Party.  Nothing contained in this Section 4 will be construed as limiting or diminishing in any respect the scope of any licenses granted under these Terms. 

4.5  Injunctive Relief.  Each Party acknowledges that Discloser will be irreparably harmed if Recipient breaches or threatens to breach its obligations under these Terms and that Discloser would not have an adequate remedy at law in the event of an actual or threatened violation by Recipient of such obligations.  Therefore, Discloser will be entitled to seek an injunction or any appropriate decree of specific performance from the court for any actual or threatened violations of these Terms.

5.  INTELLECTUAL PROPERTY RIGHTS

5.1  Developed Material. 

(a)  Except as set forth in the applicable Purchase Order Agreement, after complete payment to us, you will own all worldwide Intellectual Property Rights in, and will have the exclusive right to Use (as defined below) worldwide, all Material that is created specifically for you, whether created solely by us or jointly with others (“Client-Owned Developed Material”).  All Deliverables created pursuant to a Purchase Order Agreement will be deemed to be created specifically for you unless otherwise stated in such Purchase Order Agreement.  All Client-Owned Developed Material will be works made for hire under the U.S. copyright laws and all Intellectual Property Rights in and title to each Client-Owned Developed Material will vest in you on the date such Client-Owned Developed Material is created.  At your request, we will promptly execute separate written assignments and do all things deemed necessary by you to enable you to register copyrights, or obtain any other forms of protection for any Client-Owned Developed Material in the United States and in other countries worldwide.  For purposes of clarification, Client-Owned Developed Materials may include domain names, subscriber data, website content, HTML, graphic design and mobile application content, app name, app store registration listing, and content, but does not include Equisolve Materials, Equisolve Confidential Information, Equisolve Content Management System, data feeds, and IR mobile application.  For purposes of these Terms, “Material” means all systems, software, technology, computer code, documentation, reports, notes, press releases, filings, tools, methods, methodologies, processes, procedures, workflows, inventions, forms, data, data formats, data compilations, program names, designs, drawings, videos and other material created, conceived, reduced to practice, furnished or made available in connection with or to be used pursuant to these terms or a Purchase Order Agreement and “Use” means to install, execute, load, operate, display, access, copy, support, maintain, configure, customize, modify, enhance, create derivative works of, grant sublicenses, make, have made, sell, offer to sell, import, distribute, and otherwise use or exploit.

(b)  We will own all Intellectual Property Rights in all Material created by us prior to your agreement to these Terms and we will also own all Intellectual Property Rights in all Material following your agreement to these Terms if such Intellectual Property Rights were not created specifically for you (“Equisolve-Owned Developed Material”) excluding any Client Material (as defined below) or Client-Owned Developed Material incorporated therein.  We hereby grant you and your Affiliates (as defined below) a nonexclusive, non-transferable, royalty-free license to Use only that Equisolve-Owned Developed Material needed to receive the benefits of the Services and the Deliverables during the Term.  For purposes of these Terms, “Affiliate” means, with respect to any entity, any other present or future entity which, directly or through one or more intermediaries, Controls, is Controlled by or is under common Control with such entity or its successors and, “Control” and its derivatives means with respect to any entity either:  (i) the ability to direct the management or policies of such entity, or (ii) the legal, beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest, if not a corporation) ordinarily having voting rights of such entity. 

5.2  Equisolve Material.  As between us and you, we (or, to the extent applicable, third party licensors), own all copyrights, patents, patent applications, mask works, trade names, logos, trademarks, service marks, trade secrets, moral rights and other proprietary and intellectual property rights of whatever nature (“Intellectual Property Rights”) in and to all Material (as defined below) that we create, furnish or make available in connection with the Purchase Order Agreement or these Terms (“Equisolve Material”).  Subject to any limitations or restrictions set forth in agreements between us and third party licensors, we will grant you a nonexclusive, non-transferable, royalty free license to operate, maintain, modify, enhance and prepare derivative works of, and otherwise use, in accordance with the Purchase Order Agreement and these Terms and for the sole purpose of receiving the Services from us, any Equisolve Material furnished to you pursuant to the Purchase Order Agreement or these Terms.  Unless otherwise set forth in the Purchase Order Agreement, your license to Equisolve Material hereunder is solely during the Term and expressly conditioned upon the appearance and reproduction of any trademarks, copyrights, or other proprietary notices as such appear on the Equisolve Materials, in the exact form and incorporated into any Deliverables and materials prepared for you hereunder.

5.3  Third Party Material

You agree that you will not use or disclose any proprietary Material of any third party (“Third Party Material”) unless you have a license to do so.  If you incorporate (or request that we incorporate) any Third Party Material into any Developed Material, you will immediately secure for us from the third party that owns the Third Party Material a nonexclusive, perpetual, irrevocable, royalty-free, paid-up, transferable, enterprise-wide, worldwide license to Use such Third Party Material in connection with the Developed Material (including derivatives thereof).  You acknowledge and agree that any stock photos or similar items utilized in the development of your website may only be used as licensed and not for any other purposes, including use in marketing or investor collateral (unless separately licensed for such purpose).

6.  DATA

6.1  Data is Client Property.  All of your data, including but not limited to web content and email subscriber information, that is provided by you or your visitors and used or stored by us in connection with the Services will be and remain at all times your sole property, and we do not have and will not obtain any right thereto or have any responsibility therefor.  You hereby grant us a nonexclusive license during the term of our engagement to utilize the data and Materials that you provide to us for purposes of providing the Services to you hereunder.

6.2  Data Feeds. All Data Feeds including but not limited to; stock quotes, historical quotes, stock charts, sec filings, financials, & press releases are part of the Equisolve Service and licensed for usage through Equisolve on behalf of our Clients.  Upon termination of Service, the data feeds will no longer function and no data feeds will be transferred to the client.

6.3  Mailing Lists.  Equisolve reserves the right to reject all or any part of an email list that you provide to us.  You agree that if we utilize your email list for a mailing at your request, that you will indemnify, defend and hold us harmless for any damages that we incur as a result of the utilization of the list in accordance with your request, including any liability arising out of the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003. In addition, if we import an emailing list and facilitate a mail campaign on your behalf and then receive complaints resulting from unsolicited emails or otherwise, we reserve the right to charge you a fee not to exceed $250 per hour to compensate us for handling such complaints.

6.4  Tracking Data.  You agree that we may utilize tracking data that we obtain as a result of persons visiting your website or mobile app in order to improve the services that we provide to you and our other clients and for other internal uses.  In addition, you agree that we may shares such tracking data with third party tracking companies, such as Google Analytics, for purposes of providing services to you hereunder and under our Purchase Order Agreement with you.

7.  WARRANTIES/REPRESENTATIONS

7.1  Authorization.  Each Party represents, warrants, and covenants to the other Party that:

(a)  it has the requisite corporate power and authority to enter into, and to carry out the transactions contemplated by, these Terms and any Purchase Order Agreement;

(b)  the execution, delivery, and performance of these Terms and the Purchase Order Agreement, and the consummation of the transactions contemplated by these Terms and the Purchase Order Agreement:  (i) have been duly authorized by the requisite corporate action on the part of such Party; (ii) will not conflict with or violate in any material manner any applicable law, rule, regulation, judgment, order, or decree of any government, governmental instrumentality, or court having jurisdiction over such Party; and (iii) will not constitute a material default under any material contract by which it or any of its material assets are bound, or an event that would, with notice or lapse of time or both, constitute such a default; and

(c)  there is no proceeding pending or, to the knowledge of the Party, threatened, which challenges or may have a material adverse effect on these Terms or the Purchase Order Agreement or the transactions contemplated by these Terms.

7.2  Ownership and Non-infringement.  You represent, warrant, and covenant that none of the Materials provided by you or on your behalf or used in connection with the performance of these Terms and the Purchase Order Agreement, nor the possession or use of any of the foregoing by us or third party users (as applicable), as permitted under these Terms, will infringe or misappropriate any Intellectual Property Right of any third party.  The representations, warranties and covenants set forth herein will not apply to the extent the infringement or misappropriation is caused by modifications of the affected item by us or our contractors, agents or representatives (other than you or your Affiliates or subcontractors), unless such modifications were recommended or authorized by you or your Affiliates or subcontractors.

7.3  Client Materials.  You authorize us to make changes (without the need for further authorization) to your corporate website, investor relations website, mobile application or other property of yours that is impacted by the provision by us of Services to you as contemplated by the Purchase Order Agreement and these Terms (“Client Material”).  Specifically, we are permitted (without the need for further authorization) to make changes to the Client Material to reflect any text, images or other items for use on your Client Material or to incorporate any public information disseminated by you or on your behalf or about you.  You are solely responsible for all Client Materials regardless of whether we have modified the Client Material in accordance with this Section 7.3.  You represent, warrant, and covenant that none of the Materials provided by you or on your behalf or used in connection with the performance of these Terms or the Purchase Order Agreement, nor the possession or use of any of the foregoing by us or third party users (as applicable), as permitted under these Terms, will be inaccurate, false and/or defamatory.  You further represent to us and upon each provision of Materials to us you will be deemed to be making a new representation to us that the Materials you submit to us are accurate and authentic Materials, that the dissemination of such Materials complies with all applicable laws; that the Materials do not violate or infringe upon any copyright, trademark, or service mark rights and other property rights, privacy rights, non-solicitation rights, intellectual property rights, confidentiality rights or other proprietary or contractual rights of any person or entity; and that the Materials do not contain any information which is libelous, defames or slanders any person or entity, which violates the intellectual property or confidentiality rights of any person or entity. You hereby agree to indemnify, defend and hold us harmless for any Losses that we incur as a result of either the breach of any representations or warranties made by you about the Materials in this Section 7.3 or otherwise or for any  Losses that we incur as a result of the dissemination of the Materials pursuant to our provision of the Services, including dissemination through the website that we create for you or through the issuances of press releases or other public dissemination of the Materials that we make on your behalf.

7.4  Representations.  Except as expressly set forth in these Terms or the Purchase Order Agreement or as required by law, you represent that you will not, directly or indirectly, in whole or in part: (i) copy any software, website, application or  any user manuals and technical documentation made generally available by us to our customers, including all modifications and additions thereto (collectively, “Documentation”), except as part of your permitted use pursuant to these Terms; (ii) cause or permit any reverse engineering, decompilation, modification, translation, disassembly of or attempt to determine any source code, algorithms, methods or techniques used or embodied in any software, website or application; (iii) sell, rent, lease, sublicense, distribute, disclose, publish, assign, pledge, grant a security interest in or otherwise transfer any rights in any software, website or application without our prior written consent; (iv) modify, or create derivative works based upon any our developed software, website, application or Documentation, in whole or in part; (v) permit third parties to access or use any software, website or application in any way, including without limitation via a timesharing, emulation, hosting, service bureau, interception, virtualization, or similar arrangement or environment; (vi) perform, or release the results of, benchmark tests or other comparisons of any software, website or application, with other software or hardware; (viii) remove or alter any digital rights management mechanism, or copyright, trademark, or other proprietary notices, legends, symbols, or labels appearing on or in any software, website, application or Documentation; (ix) do anything which may adversely affect our right, title or interest in or to the Services.

7.5  No Warranties.  OTHER THAN AS PROVIDED IN THESE TERMS, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, AND EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

8.  INDEMNITIES

8.1  General Indemnity.  Each Party agrees to indemnify, defend, and hold harmless the other, including its Affiliates, and third party users (as applicable), and their respective officers, directors, employees, agents, successors, and assigns, from any and all Losses (as defined below) and threatened Losses arising from or in connection with any third party claim to the extent such claim is based on or arises out of (a) the negligence or willful misconduct of a Party, its parent, subsidiaries, affiliates or assigns and their respective directors, officers, employees and agents; or (b) any breaches by a Party of the representations and warranties contained in or made pursuant to these Terms or the Purchase Order Agreement, including, without limitation, in Section 7.  For purposes of these Terms, “Losses” means all losses, liabilities, damages and claims, and all related costs and expenses (including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).

8.2  Infringement Indemnity.  You agrees to indemnify, defend, and hold us, our Affiliates, and third party users (as applicable), and their respective officers, directors, employees, agents, successors, and assigns, harmless from any and all Losses and threatened Losses arising from or in connection with any third party claim to the extent such claim is based on allegations which, if proven, would constitute a breach of any representation, warranty or covenant of yours under Section 7.2 (Ownership and Non-Infringement).

8.3  Indemnification Procedures.  With respect to third party claims, the following procedures will apply:

(a)  The indemnified Party will provide the indemnifying Party prompt notice of each such claim received by the indemnified Party; provided, however, that no failure to so notify the indemnifying Party will relieve the indemnifying Party of its obligations under these Terms except to the extent that the indemnifying Party can demonstrate actual prejudice attributable to such failure.

(b)  The indemnifying Party will have the right and authority to control and direct the investigation, defense, and settlement of such claim, provided that (i) the indemnified Party will be entitled to participate in the defense of such claim and to employ counsel at its own expense, and (ii) if a settlement imposes an obligation or restriction on the indemnified Party, or requires the indemnified Party to make an admission, the indemnifying Party will obtain the prior written approval of the indemnified Party (such approval not to be unreasonably conditioned, delayed, or withheld) before entering into any settlement of such claim.

(c)  The indemnifying Party will have no liability for settlements or agreements entered into without its prior written consent by the indemnified Party.

(d)  The indemnified Party will provide such cooperation and assistance as may be reasonably requested by the indemnifying Party in connection with the investigation, defense, or settlement of the third party claim at the indemnifying Party’s expense.

8.4  Subrogation.  If an indemnifying Party is obligated to indemnify an indemnified Party pursuant to this Section 8, the indemnifying Party will, upon payment of such indemnity in full, be subrogated to all rights of the indemnified Party with respect to the claims to which such indemnification relates.

9.  LIMITATION OF LIABILITY

9.1  General Intent.  Subject to the provisions of Section 9.1 below, it is the intent of the Parties that each Party is liable to the other Party for any actual damages incurred by the non-breaching Party as a result of the breaching Party’s failure to perform its obligations in the manner required by these Terms.

9.2  Liability Restrictions. 

(a)  EXCEPT AS PROVIDED IN SECTION 9.3 BELOW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  Except as provided in Section 9.3 below, a Party’s total liability to the other Party, whether in contract or in tort (including breach of warranty, negligence, and strict liability in tort) is limited to the amount paid or payable by such Party under these Terms or the applicable Purchase Order Agreement.

(b)  Without limiting the generality of the other provisions of this Section 8, you agree that we will not be liable for any Loss incurred by you (i) as a result of any interruption or cessation of Services for any reason, (ii) as a result of our action or failure to take any action included within the Services, including, for example, the posting, failure to post or improper posting of any press release, the improper modification or lack of modification of your website or mobile application to reflect updated information, or the posting or failure to post any SEC filing or any similar action or inaction, or (iii) as the result of any negligence or malfeasance by any third party that that we obtain information from or otherwise utilize to provide the Services, such as newswire services, webcasting services, teleconferencing services, cloud services, data providers, or domain registration or DNS services, even if the interruption or cessation described in (i) the action or failure to take action described in (ii) or the negligence or malfeasance described in (iii) results in a change in the stock price or market capitalization of your company, the unwanted termination of a significant planned transaction such as a merger or acquisition, or any other detrimental effect.

9.3  Exceptions.  The limitations of liability set forth in Section 8 will not apply with respect to:  (a) damages attributable to a breach of a Party’s confidentiality obligations under Section 4 (Confidentiality); or (b) damages attributable to a breach of Section 7.2 (Ownership and Non-Infringement).

9.4  Force Majeure.  Neither Party is liable for any default or delay in the performance of its obligations under these Terms or the Purchase Order Agreement:  (a) if and to the extent such default or delay is caused by fire, flood, earthquake, elements of nature or acts of God, riots, civil disorders, war, terrorism, rebellions or revolutions in any country, or any other similar cause beyond the reasonable control of such Party; and (b) provided the non-performing Party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the non-performing Party through the use of alternate sources, workaround plans or other means.  The affected Party will promptly notify the other Party of the circumstances causing its delay or failure to perform and of its plans and efforts to implement a work-around solution.  For as long as such circumstances prevail, the Party whose performance is delayed or hindered will continue to use all commercially reasonable efforts to recommence performance without delay.

10.  TERM AND TERMINATION

10.1  Term.  These Terms will become effective on the Effective Date and will continue in effect until terminated in accordance with the Purchase Order Agreement or as otherwise specified in this Section 10 (such period being the “Term”).  The term of each Purchase Order Agreement will be set forth in such Purchase Order Agreement.  

10.2  Termination By Us.   We may terminate for convenience these Terms and/or any Purchase Order Agreement, in whole or in part, upon written notice to you specifying the terminated Services and designating a termination date with reasonable advance notice.

10.3  Termination By You.  You may terminate these Terms and Services only as specified in the Purchase Order Agreement or if we commit a material breach and we fail to take reasonable steps designed to cure or prevent the reoccurrence of such breach within thirty (30) days after receipt of written notice thereof form you.

10.4  Transfer of Work Product; Return of Confidential Information.  Upon termination or expiration of these Terms or any Purchase Order Agreement for any reason, and at your request at any other times during the Term hereof, we will:  (a) deliver to you copies of any and all Deliverables and other work product created in connection with the Purchase Order Agreement; and (b) return to you, or provide you with written certification of destruction of, all Client Confidential Information, including all copies thereof, within our possession or control; provided, however, that with respect to any such work product, or Client Confidential Information that we will use for any surviving Purchase Order Agreement or transition assistance, the foregoing obligations are not effective until the applicable Purchase Order Agreement or transition assistance are completed or terminated.  Notwithstanding the foregoing, any Deliverables or other materials that we furnish to you upon termination or expiration of these Terms and any Purchase Order Agreement will be delivered in Equisolve’s standard export format. Upon your request, we may export your data and other materials and deliver them to you in a different format for an additional charge that we will advise you of at the time of your request. 

10.5  No Refund of Paid Amounts.  You will not be entitled to the return of any amounts paid to us for Services if there is an early termination of a Purchase Order Agreement. 

10.6  Effect of Termination.  Subject to your continued advance payment for Services, upon termination of Services for any reason, you will have a reasonable period of time, not to exceed thirty (30) days following the effective date of termination, in which to continue using Services until you can successfully transition to a substitute service.  You will use all reasonable efforts to complete any such transition as soon as is practicable.  Subject to your continued advance payment for Services during the transition period, we will provide all reasonable transition assistance requested by you.    We are not responsible for any damages or Losses that you incur in the event that we discontinue hosting your website as a result of your failure to pay to us any amounts owed to us.

11.  GENERAL

11.1  Assignment.  Except in the case of a change of control (whether by merger, consolidation, sale of stock, sale of all or substantially all assets or otherwise), which will not require our advance written consent,  you may not assign or otherwise transfer any of your rights or obligations under these Terms or the Purchase Order Agreement to any person or entity without our prior written consent, which will not be unreasonably withheld, conditioned or delayed.  We may freely assign or otherwise transfer the Purchase Order Agreement and these Terms, in whole or in part, without your consent, and the assignee or transferee may, without the your consent, assume our obligations under the Purchase Order Agreement and these Terms.  Any assignment or other transfer not in accordance with this Section is null and void.  Subject to the foregoing, these Terms are binding upon the successors and assigns of each Party.

11.2  Entire Agreement; Amendment.  These Terms and the Purchase Order Agreement entered into by the Parties pursuant hereto, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements with respect to the subject matter contained in these Terms or the Purchase Order Agreement.  No change, waiver, or discharge hereof will be valid unless in writing and signed by an authorized representative of the Party against which such change, waiver or discharge is sought to be enforced.  

11.3  Order of Precedence. If there is a conflict or ambiguity between these Terms and any Purchase Order Agreement, these Terms will prevail except as to provisions specifically identified in a particular Purchase Order Agreement as modifying or amending specified provisions of these Terms.  Any such modifications or amendments in a Purchase Order Agreement will control for purposes of that Purchase Order Agreement only.

11.4  Governing Law.  These Terms and the Purchase Order Agreement will be governed by and construed in accordance with the substantive laws of the State of Florida notwithstanding any choice of law rules that would apply the substantive law of any other jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and the Purchase Order Agreement.

11.5  Jurisdiction and Venue.  The Parties consent to the exclusive jurisdiction of the state and federal courts serving Fort Lauderdale, Florida.  The Parties further consent to the jurisdiction of any state or federal court located within a district that encompasses assets of a Party against which a judgment has been rendered for the enforcement of such judgment against the assets of such Party.  The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such proceeding brought in such a Florida court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

11.6  Publicity.  We may issue any press release or make any public announcement or marketing-related communication to third parties discussing our relationship with you without obtaining your consent unless otherwise specified in the Purchase Order Agreement.

11.7  Compliance with Laws. Each Party agrees at its cost and expense to obtain all necessary regulatory approvals applicable to its business, to obtain any necessary licenses or permits for its business, and to comply with all laws and regulatory requirements applicable to its business (or that of its Affiliates) or the performance of its obligations under these Terms or the Purchase Order Agreement.  Without limiting the generality of the foregoing, both Parties agree to comply fully with all relevant export laws and regulations of the United States to ensure that no information or technical data provided pursuant to these Terms or the Purchase Order Agreement is exported or re-exported directly or indirectly in violation of law.  In addition, each of the parties hereto agrees to comply with all applicable laws and regulations and, without limiting the generality of the foregoing, you will comply with the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 and other applicable laws relating to the use of electronic messaging systems to send unsolicited bulk messages and advertising indiscriminately (“SPAM”) and will not include a link to a website that we host for you in any electronic mail campaign that violates such act or other applicable law or that otherwise constitutes SPAM.

11.8  Notices.  All notices, requests, demands, and determinations under these Terms (other than routine operational communications), must be in writing, including by electronic mail, and delivered to a Party at its address as specified in the Purchase Order Agreement or to such other address as a Party has indicated to another Party in writing, including by electronic mail.

11.9  Relationship of the Parties.  We are performing the Services as an independent contractor.  Nothing in these Terms will constitute a partnership between or joint venture by the Parties.  We have the sole right and obligation to supervise, manage, direct and perform all work to be performed by our  personnel under these Terms and the Purchase Order Agreement.  Neither Party is an agent of the other and neither Party has any authority to represent the other as to any matters.

11.10  Use of Name or Marks. 

(a)  You give us permission during the Term to publish, cause to have published, or use (i) any name, service mark or trademark of yours in reference lists or for advertising and other promotion purposes related to the Services; and (ii) information that you are a client of ours for the Services.

(b)  Neither Party may remove any copyright or proprietary rights notice attached to or included on any tangible material provided by the other Party.  All such notices must be reproduced on any copies of such tangible material.

11.11  Severability.  If any provision of these Terms conflicts with the law under which these Terms are to be construed or if any such provision is held invalid by a court with jurisdiction over the Parties, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law.  The remainder of these Terms will remain in full force and effect.

11.12  Third Party Beneficiaries.  The Agreement is entered into solely between you and us and, except for the Parties’ indemnification obligations under these Terms, will not be deemed to create any rights in any third parties or to create any obligations of either us or you to any third parties.

11.13  Waiver of Default.  A delay or omission by either Party to exercise any right or power under these Terms will not be construed to be a waiver thereof.  A waiver by either Party of any of the covenants to be performed by the other or any breach thereof will not be construed to be a waiver of any succeeding breach thereof or of any other covenant in these Terms. 

11.14  Cumulative Remedies.  Except as otherwise expressly provided in these Terms, all remedies provided for in these Terms will be cumulative and in addition to and not in lieu of any other remedies available to either Party at law, in equity or otherwise.

11.15  Survival.  Any provision of these Terms which contemplates performance or observance subsequent to any termination of these Terms (including Sections 4.1 – 11, inclusive) will survive any termination of these Terms and continue in full force and effect.

11.16  Headings.  The section headings and the table of contents used herein are for reference and convenience only and will not enter into the interpretation hereof.