BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX
INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN SERVICE ORDER
THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS
AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF
A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE
THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE
TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR"
SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE
SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on March 24, 2021. It is effective between You and Us as of the date of You accepting this Agreement.
“Acquirer” means the bank and financial institutions that hold licenses with the Payment Networks and with whom the Processor has contracted in order to provide the Payments Services.
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means Martingale Media, LLC services or functionality that may be made available to You to try at its option at no charge or discounted charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Cardholder Data” means the personal information associated with a consumer’s payment card account, and has the same meaning as defined in PCI-DSS, including the Primary Account Number (PAN), or the PAN plus any of the following: cardholder name; expiration date; or service code.
“Content” means information obtained by Martingale Media, LLC from publicly available sources or third party content providers and made available to You through the Services, Beta Services or pursuant to an Service Order, as more fully described in the Documentation.
“Data Security Guidelines” means all Rules, standards, guidelines, practices or procedures recommended or required by the applicable Payment Networks with respect to data security or protection of cardholder data, as such may be amended from time to time, including without limitation PCI-DSS and PA-DSS.
“Documentation” means the applicable Service’s documentation, and its usage guides and policies, as updated from time to time.
“Load Balancing” means the practice of splitting Your transactions into separate merchant accounts or legal entities with the intent of reducing the volume of each resulting merchant account being low enough so that the Payment Networks’ acceptable thresholds for fraud and/or chargebacks are not breached. This can involve deception with regards to Your direct or indirect ownership or control of each of these resulting merchant accounts and/or cardholders being billed by multiple legal entities when they have only contracted with one. Load Balancing is a breach of the Rules.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-Martingale Media, LLC.com Application” means a Web-based, mobile, offline or other software application functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.
“Service Order” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into a Service Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“PA-DSS” means the Payment Application Data Security Standards.
“Payment Network” means the organization which owns the brands and sets the rules under which a payment card service (e.g. credit, debit, charge, prepaid, signature, PIN debit, chip and PIN or other card types that present different acceptance requirements).
“Payments Services” means services enabling transmission of transaction data to support authorization, clearing and settlement of transactions, and to manage refunds, risk management tools and related functions.
“Processor” means a payments processor with whom We contract in order to provide the
Payments Services. Currently, such Processor is Paysafe Payment Processing Solutions, LLC.
“PCI-DSS” means the Payment Card Industry Data Security Standards.
“Purchased Services” means Services that You or Your Affiliate purchase under a Service Order.
“Rules” means the bylaws, operating rules, regulations, requirements, policy statements, guidelines, bulletins, notices, and similar documents of Acquirer, Processor, Visa, Mastercard, American Express, Discover, and any other applicable Payment Network, as in effect from time to time.
“Services” means the products and services that are ordered by You under a Service Order or provided to You under a free trial, and made available online by Us, as described in the Documentation. Services also include the Payments Services.
“User” means an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has been provisioned), and to whom You (or, when applicable, Us at Your request) have supplied a user identification and password (for Services utilizing
authentication). Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Martingale Media, LLC company described below (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have signed Service Orders.
“Your Data” means electronic and cardholder data and information submitted by or for You to the Services, excluding Non-Martingale Media, LLC Applications.
2. OUR RESPONSIBILITIES
- Provision of Purchased Services. We will (a) make the Services available to You pursuant to this Agreement and the applicable Service Orders, (b) provide applicable Martingale Media, LLC standard support for the Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, NonMartingale Media, LLC Application, or denial of service attack.
- Protection of Your Data. We will maintain administrative, physical, and
technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with this Agreement, or (c) as You expressly permit in writing. For the avoidance of doubt, You acknowledge and consent to the sharing of Your Data with Processor and Acquirer in order to provide You with the Payments Services.
- Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
- Beta Services. From time to time, We may make Beta Services available to
You at no charge or a discounted charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non-
MARTINGALE MEDIA, LLC Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. USE OF OUR SERVICES
- Unless otherwise provided in the applicable Service Order or Documentation, (a) Services and access to Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
- Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Service Orders and Documentation. Unless otherwise specified, (a) a quantity of permissible users may be stipulated in a Service Order, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Service Order, a User identification may only be reassigned to a new individual replacing one
who will no longer use the Service or Content. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Service Order for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with this Agreement.
Your Responsibilities With Respect to the Services and Content. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Service Orders, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use or any suspected unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Service Orders, the Rules and applicable federal and state laws, statutes, regulations, ordinances or operating rules, (e) comply with terms of service of any Non-Martingale Media, LLC Applications with which You use Services or Content.
- Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of, anyone other than You or Users, unless expressly stated otherwise in an Service Order or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service or Non-Martingale Media, LLC Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Martingale Media, LLC Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or thirdparty data contained therein, (f) attempt to gain unauthorized access to any
Service or its related systems or networks, (g) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Service Order, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, frame or mirror any part of any Service, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Service in order to build a competitive product or service or to benchmark with a Non-Martingale Media, LLC product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). Any use of the Services in breach of this Agreement, Documentation or Service Orders, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
4. USE OF PAYMENTS SERVICES
- Your Responsibilities With Respect to Transactions. You will: (a) submit all of Your customer transactions to the respective Payment Networks within the timeframes after the related purchase prescribed by the respective Rules; (b) notify Us prior to changing Your payment application software (including any change in versions of such software), and provide the new payment application name and version number prior to submitting any transaction utilizing the new payment application or new version; (c) grant Us any and all necessary consents to have access to Your transaction records; and (d) not engage in Load Balancing.
- Your Responsibilities With Respect to Cardholder Data. To the extent you have access to Cardholder Data, you will: (a) abide by the Data Security Guidelines; (b) provide proof of Your compliance with the Data Security Guidelines, as applicable, on an annual or quarterly basis as Acquirer may require; (c) notify Us immediately in writing of any (i) change in Your compliance with Payment Network Rules, (ii) change to Your PCI-DSS compliance status, (iii) known or suspected security breach; (d) notify Us of all third parties who have access to Cardholder Data on your behalf; (e) submit to and cooperate with any audit required by a Payment Network in connection with a breach or suspected compromise of Cardholder Data or any other breach of Data Security Guidelines; (f) be responsible and liable for any charges imposed by the Payment Network if it suspects or determines that You were responsible for a disclosure of Cardholder Data or other transaction information or other breach of Data Security Guidelines; (g) store all material containing Cardholder account numbers or imprints in an area limited to selected personnel and render all data unreadable prior to discarding; (h) not retain or store magnetic-stripe data verification data subsequent to authorization of a transaction; and (i) indemnify and hold Us harmless from and against any and all claims, demands, damages, judgments, fines, penalties, costs, liabilities and expenses suffered or incurred by Us as a result of Your suspected or actual noncompliance with Data Security Guidelines, Your failure to maintain equipment and software that complies with Data Security Guidelines, or any other data compromise for which You are responsible, as determined by Processor, Acquirer, a Payment Network, Us, or a court of competent jurisdiction, which results in disclosure of Cardholder Data or other transaction information.
5. NON-MARTINGALE MEDIA, LLC.COM PROVIDERS
- We or third parties may make available third-party products or services, including, for example, Non-Martingale Media, LLC Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any NonMartingale Media, LLC provider, product or service is solely between You and the applicable Non-Martingale Media, LLC provider. We do not warrant or
support Non-Martingale Media, LLC Applications or other Non-Martingale Media, LLC products or services, whether or not they are designated by Us as
“certified” or otherwise, unless expressly provided otherwise in an Service Order.
- Non-Martingale Media, LLC Applications and Your Data. If You choose to use a Non-Martingale Media, LLC Application with a Service, You grant Us
permission to allow the Non-MARTINGALE MEDIA, LLC Application and
its provider to access Your Data as required for the interoperation of that NonMARTINGALE MEDIA, LLC Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-MARTINGALE MEDIA, LLC Application or its provider.
c. Integration with Non-MARTINGALE MEDIA, LLC Applications. The
Services may contain features designed to interoperate with Non-
MARTINGALE MEDIA, LLC Applications. To use such features, You may be required to obtain access to such Non-MARTINGALE MEDIA, LLC
Applications from their providers, and may be required to grant Us access to Your account(s) on such Non-MARTINGALE MEDIA, LLC Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other
compensation, if for example and without limitation, the provider of a Non-
MARTINGALE MEDIA, LLC Application ceases to make the Non-
MARTINGALE MEDIA, LLC Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
- You will pay all fees specified in Service Orders. Except as otherwise specified herein or in an Service Order, (i) fees are based on Services subscriptions purchased and not actual usage, (ii) payment obligations are noncancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
- Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Service Order for the initial subscription term and any renewal subscription term(s) as set forth herein. Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Service Order. If the Service Order specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Service Order. Unless otherwise stated in the Service Order, invoiced charges are due net 30 days
from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
- Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Service Orders on payment terms shorter than those specified herein.
- Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has been declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with this Agreement for billing notices, before suspending services to You.
- Payment Disputes. We will not exercise Our rights under this Agreement above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the
- Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
- Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
- Reservation of Rights. Subject to the limited rights expressly granted
hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
- Access to and Use of Content. You have the right to access and use applicable Services subject to the terms of applicable Service Orders, this Agreement and the Documentation.
- License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Your Data, and any Non-MARTINGALE MEDIA, LLC Applications and program code created by or for You using a Service or for use by You with the Services, as reasonably necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-MARTINGALE MEDIA, LLC Application or such program code.
- License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
- Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Service Orders (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
- The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Service Order to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Service Order to a subcontractor or Non-MARTINGALE MEDIA, LLC Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
- Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9.REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
- Each party represents that it has validly entered into this Agreement and has the legal power to do so.
- Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Service Orders and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-MARTINGALE MEDIA, LLC Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your
exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
- EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER
PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH
PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE
OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
10. MUTUAL INDEMNIFICATION
- Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim
Against You, provided You (a) promptly give Us written notice of the Claim
Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no
longer claimed to infringe or misappropriate, without breaching Our warranties under “MARTINGALE MEDIA, LLC Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from a NonMARTINGALE MEDIA, LLC Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Service Orders.
- Indemnification by You. You will defend Us and our representatives and agents, including Processor and Acquirer, (collectively, the “Martingale Indemnitees”) against any claim, demand, suit or proceeding made or brought against the Martingale Indemnitees by a third party (a) alleging that any of Your Data infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Your use of the Services or Content in violation of the Agreement, the Documentation, Service Order, the Rules, applicable federal or state law, regulation, or ordinance, or any order, judgment, decision, recommendation, rule, policy or guideline issued by any government or court of competent authority (each a “Claim Against the Martingale Indemnitees”), and You will indemnify the Martingale Indemnitees from any damages, attorney fees and costs finally awarded against the Martingale Indemnitees as a result of, or for any amounts paid by the Martingale Indemnitees under a settlement approved by You in writing of, a Claim Against the Martingale Indemnitees, provided We (a) promptly give You written notice of the Claim Against the Martingale Indemnitees, (b) give You sole control of the defense and settlement of the Claim Against the Martingale Indemnitees (except that You may not settle any Claim Against the Martingale Indemnitees unless it unconditionally releases the Martingale Indemnitees of all liability), and (c) give You all reasonable assistance, at Your expense.
- Exclusive Remedy. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
11. LIMITATION OF LIABILITY
- Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE
LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS
AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT
EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR
AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE
LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST
INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING
LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT
OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT
OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
b. Exclusion of Consequential and Related Damages. IN NO EVENT WILL
EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING
OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST
PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL,
INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION
OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT
OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN
IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS
AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. TERM AND TERMINATION
- Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.
- Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Service Order.
- A party may terminate this Agreement for cause (i) upon written notice to the other party, (ii) upon written notice to the other party for a material breach of this Agreement that remains uncured for a period lasting longer than ten (10) business days, or (iii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
- Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11(c)(i) or 11(c)(ii), We will refund You any prepaid fees covering the remainder of the term of all Service
Orders after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 11(c)(ii) or 11(c)(iii), You will pay any unpaid fees covering the remainder of the term of all Service Orders. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
- Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any of Your Data, and as provided in the
Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
- Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary
Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual
Indemnification,” “Limitation of Liability,” “Refund or Payment upon
Termination,” “Your Data Portability and Deletion,” “Removal of Content and
Non-MARTINGALE MEDIA, LLC Applications,” “Surviving Provisions” and
“General Provisions” will survive any termination or expiration of this Agreement.
- WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND
- Who You are contracting with under this Agreement is Martingale Media, LLC, a Colorado Limited Liability Company. You should direct notices under this Agreement to Jonathan Bishoff. The laws of the State of Colorado shall govern this Agreement and the courts located in Denver County, CO shall have exclusive jurisdiction over any disputes arising hereunder.
- Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
- Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
- No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other Martingale Media, LLC.com company. Subject to any permitted Assignment under this Agreement, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
- GENERAL PROVISIONS
- Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
- Anti-Corruption. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not
violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at 3457 Osage Street, Denver CO 80211.
- Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted, except that We may unilaterally amend this Agreement upon written notice to You if there is a change in any Rule that would make a provision of this Agreement in conflict with such Rule or applicable law, where such amendment is intended to conform and/or be compatible with the changed Rule or applicable law. The parties agree that any term or condition stated in
Your purchase order or in any other of Your order documentation (excluding Service Orders) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Service Order, (2) this Agreement, and (3) the Documentation.
- Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Service Orders), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
- Third-Party Beneficiaries. With the exception of Paysafe Payment Processing Solutions LLC, Woodforest National Bank and BBVA, there are no third-party beneficiaries under this Agreement.
- No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
- If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.