Last Modified: August 20th, 2021
This Cloud Services Agreement (this “Agreement”) is a binding contract between you (the
“Customer”) and GDIRECT, LLC, a Delaware limited liability company, dba MISSIONAL
MARKETING (the “Provider”). This Agreement governs Customer’s access to and use of the Cloud
Services (as defined in Section 1(b)).
THIS AGREEMENT TAKES EFFECT WHEN CUSTOMER CLICKS THE [“I ACCEPT”] BUTTON BELOW (the “Effective Date”). BY CLICKING ON THE “I ACCEPT” BUTTON BELOW CUSTOMER (A)
ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTANDS THIS AGREEMENT; (B) REPRESENTS AND WARRANTS THAT CUSTOMER HAS THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS
AGREEMENT FOR AN ORGANIZATION, THAT CUSTOMER HAS THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPTS THIS AGREEMENT AND AGREES THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS.
IF CUSTOMER DOES NOT AGREE TO THESE TERMS, PLEASE SELECT THE “I DECLINE” BUTTON BELOW. IF CUSTOMER DOES NOT ACCEPT THESE TERMS, CUSTOMER SHALL NOT ACCESS OR USE THE CLOUD SERVICES.
1. DEFINITIONS
(a) “Authorized User” means Customer and Customer’s employees, consultants, members, contractors, and agents (i) who are authorized by Customer to access or use the Cloud Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Cloud Services has been purchased hereunder.
(b) “Cloud Services” means the services provided by Provider under this Agreement that are reflected in the Customer’s order.
(c) “Customer Data” means, other than Aggregated Statistics and Provider IP, information, data, and other content, in any form or medium, that is collected, downloaded, submitted, posted, or otherwise transmitted, directly or indirectly, by or on behalf of Customer or any other Authorized User through the Cloud Services.
(d) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Cloud Services provided by Provider to Customer either electronically or in hard copy form/end user documentation relating to the Cloud Services.
(e) “Provider IP” means the Cloud Services, the Documentation, and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes, without limitation, Aggregated Statistics, Provider provided content, and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Cloud Services.
(f) “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third-parties and are incorporated into or accessible through the Cloud Services.
2. ACCESS AND USE
2.1. Provision of Access. Subject to and conditioned on Customer and its Authorized Users payment of Fees (as defined in Section 5) and compliance with all terms and conditions of this Agreement, Provider hereby grants Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Cloud Services during the Term (as defined in Section 12.1) for Customer’s internal business operations by Authorized Users in accordance with the terms and conditions herein. If necessary for provision of the Cloud Services to Customer, Provider shall provide Customer initial passwords and access credentials to allow Customer and its Authorized Users to access the Cloud Services.
2.2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license for Customer and its Authorized Users to use the Documentation during the Term solely for Customer’s internal business purposes in connection with use of the Cloud Services.
2.3. Downloadable Software. Use of the Cloud Services may require or include use of downloadable software. Provider grants Customer a non-transferable, non-exclusive, non-assignable, limited right for Authorized Users to use downloadable software Provider provides as part of the Cloud Services. Any Third-Party Products that consist of downloadable software are subject to the terms of Section 3.5.
2.4. Use Restrictions. Customer shall not, and shall not permit any Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (iv) remove any proprietary notices from the Cloud Services or Documentation; or (v) use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation, or rule.
2.5. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Cloud Services and collect and compile data and information related to Customer’s use of the Cloud Services to be used by Provider in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Cloud Services (“Aggregated Statistics”). As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Cloud Services. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information as provided in Section 6.
2.6. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third-party any intellectual property rights or other right, title, or interest in or to the Provider IP.
2.7. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any other Authorized User’s access to any portion or all of the Cloud Services if: (i) Provider reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any other Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer or any other Authorized User is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Provider’s provision of the Cloud Services to Customer or any other Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Cloud Services; or (iii) in accordance with Section 5 (any such suspension described in Section 2.7(i)-(iii) being a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Cloud Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Cloud Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including for any loss of use of the Cloud Services or profits), or any other consequences that Customer or any other Authorized User may incur because of a Service Suspension.
3. CUSTOMER RESPONSIBILITIES
3.1. Acceptable Use Policy. The Cloud Services may not be used for unlawful, fraudulent, offensive, or obscene activity, as further described and set forth in Provider’s acceptable use policy (“AUP”) located at https://missionalmarketing.com/aup, as may be amended from time to time, which is incorporated herein by reference. Customer also agrees to be bound by the acceptable use policies of any third-party services and Third-Party Products utilized by Provider in the provisions of the Cloud Services including, without limitation, those of Amazon Web Services®, WP Engine®, and SiteGround® as may be amended from time to time, which are likewise incorporated herein by reference as part of Provider’s AUP. Customer shall comply with all terms and conditions of this Agreement, all applicable laws, rules, and regulations, and all guidelines, standards, and requirements of Provider, including the AUP.
3.2. Account Use. Customer is responsible and liable for all uses of the Cloud Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer and will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Cloud Services and shall cause Authorized Users to comply with such provisions.
3.3. Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Cloud Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics. Customer shall ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. Customer is solely responsible for the development, content, operation, maintenance, and use of Customer Data.
3.4. Passwords and Access Credentials. If Provider provides Customer password and access credentials to Cloud Services, Customer is responsible for keeping Customer passwords and access credentials associated with the Cloud Services confidential. Customer will not sell or transfer them to any other person or entity. Customer will promptly notify Provider about any unauthorized access to Customer passwords or access credentials.
3.5. Third-Party Products. The Cloud Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Cloud Services by website link or by other formats. If Customer does not agree to abide by the applicable terms for any such Third- Party Products, then Customer shall not be permitted to access or use such Third-Party Products. Customer’s failure or refusal, whether by itself, or by and through Provider, to allow access and integration with Third-Party Products, may limit functionality of certain Cloud Services under this Agreement.
4. CLOUD SERVICES AND SUPPORT
4.1. Cloud Services. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Cloud Services identified on a Customer order and invoice available at all times.
4.2. Support. This Agreement does not entitle Customer to any support for the Cloud Services.
4.3. Scheduled Downtime. Provider reserves the right to schedule Cloud Services downtime to conduct routine Cloud Services maintenance. Provider shall endeavor to provide at least twenty-four (24) hours’ advance written notice to Customer for any scheduled maintenance when able, or as soon as commercially reasonable. Provider shall use commercially reasonable efforts to limit scheduled Cloud Services downtime to off-peak and non-business hours.
5. FEES AND PAYMENT.
Customer shall pay Provider the fees for the respective Cloud Services as described in Customer’s order and invoice (“Fees”). Customer shall make all payments hereunder in United States Dollars on or before the due date. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of one and one-half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Provider may suspend, in accordance with Section 2.7, Customer’s and all other Authorized Users’ access to any portion or all of the Cloud Services until such amounts are paid in full. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
6. CONFIDENTIAL INFORMATION.
From time to time during the Term, Provider and Customer may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” at the time of disclosure (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third-party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. PRIVACY POLICY.
Provider complies with its privacy policy available at https://missionalmarketing.com/privacy-policy (“Privacy Policy”) which is incorporated herein by this reference, in providing the Cloud Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Cloud Services, Customer and its Authorized Users acknowledge that Customer and its Authorized Users have reviewed and accepted the Privacy Policy, and Customer and its Authorized Users consent to all actions taken by Provider with respect to Customer and its Authorized Users’ information in compliance with the then-current version of the Privacy Policy.
8. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK.
As between Customer and Provider, (a) Provider owns all right, title, and interest, including all intellectual property rights, in and to the Cloud Services and (b) Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. If Customer or any of Customer’s employees, contractors, or agents sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Cloud Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between Customer and Provider governing such Feedback. All Feedback is and will be treated as non-confidential. Customer hereby assigns to Provider on Customer’s behalf, and shall cause all Customer employees, contractors, and agents to assign, all right, title, and interest in, and Provider shall be free to use, without any attribution or compensation to Customer or any third-party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
9. LIMITED WARRANTY AND WARRANTY DISCLAIMER
9.1. Limited Provider Warranty. Provider warrants that the Cloud Services will conform in all material respects to the service description provided on Customer’s order and invoice when accessed and used by Customer in accordance with the Documentation. Provider does not make any representations or guarantees regarding uptime or availability of the Cloud Services. The remedies set forth in Section 2.7 and Section 4 are Customer’s sole remedies and Provider’s sole liability under the limited warranty set forth in this Section 9.1. THE FOREGOING WARRANTY DOES NOT APPLY TO, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY PRODUCTS.
9.2. Customer Warranty. Customer warrants that Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data and that both the Customer Data and Customer use of the Cloud Services are in compliance with the AUP.
9.3. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 9.1, THE CLOUD SERVICES ARE PROVIDED “AS IS” AND PROVIDER SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER OR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD-PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. INDEMNIFICATION
10.1. Provider Indemnification
10.1.1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Provider Losses”), incurred by Customer resulting from any third-party claim, suit, action, or proceeding (each a “Provider Third-Party Claim”) that the Cloud Services, or any use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights including, U.S. patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the Provider Third-Party Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Provider Third-Party Claim.
10.1.2. If such a Provider Third-Party Claim is made or either party reasonably anticipates such a Provider Third-Party Claim will be made, Customer agrees to permit Provider, at Provider’s sole discretion, to (A) modify or replace the Cloud Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 10.1.2 sets forth Customer’s sole remedies and Provider’s sole liability and obligation for any actual, threatened, or alleged Provider Third-Party Claims that the Cloud Services infringe, misappropriate, or otherwise violate any intellectual property rights of any third-party.
10.1.3. This Section 10.1 will not apply to the extent that any such Provider Third-Party Claim arises from Customer Data or Third-Party Products.
10.2. Customer Indemnification.
Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider and its managers, members, officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses arising from or relating to any third-party claim, suit, action, or proceeding (each a “Customer Third-Party Claim”) (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights; (ii) that Customer’s or any of its Authorized Users breached any third-party service or Third-Party Product’s agreements or contract to which Provider is bound; or (iii) based on Customer’s or any Authorized User’s negligence or willful misconduct or use of the Cloud Services in a manner not authorized by this Agreement; provided that Customer may not settle any Customer Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Customer Third-Party Claim or to participate in the defense thereof by counsel of its own choice and Customer paying Provider’s reasonable attorneys’ fees and costs.
11. LIMITATIONS OF LIABILITY.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The exclusions and limitations in this Section 11 do not apply to the parties’ obligations under Section 10.
12. TERM AND TERMINATION
12.1. Term. The term of this Agreement begins on the Effective Date and continues until terminated (the “Term”). Cloud Services shall automatically renew monthly unless earlier terminated pursuant to this Agreement’s express provisions or either party gives the other party written notice of non-renewal at least five (5) days prior to the expiration of the Term.
12.2. Termination.
In addition to any other express termination right set forth in this Agreement:
12.2.1. Provider may terminate this Agreement, for any reason upon ten (10) business days’ notice to Customer. Customer may terminate this Agreement for any reason upon five (5) business days’ advance notice.
12.2.2. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, which notice shall identify the breach, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured ten (10) days after the non-breaching party provides the breaching party with written notice of such breach;
12.2.3. Provider may terminate this Agreement without notice to Customer for any infringement of Provider IP by Customer or for any reason giving rise to a right of Service Suspension without provided a right to cure and without waiving any other rights of Provider under this Agreement; or
12.2.4. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
12.3. Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and Confidential Information and return or destroy, at the option of Provider, all Provider IP and Confidential Information possessed by, maintained by, or under the control of, Customer including, without limitation, removal of all Provider IP from Customer’s and its Authorized Users’ Google®, Facebook®, TikTok®, Snapchat®, Pinterest®, Instagram®, Nextdoor®, and Twitter® accounts. Customer shall provide a written certification in a form provided to Customer by Provider upon termination that all Provider IP has been removed from all Customer and all its Authorized Users’ media and that all Provider IP has either been destroyed or returned to Provider at the option of Provider. Customer acknowledges and agrees that its failure to adhere to this Section 12.3 is a material breach of this Agreement for which there is no adequate remedy at law entitling Provider to equitable relief for breach of this Section, including injunctive relief, which a court of competent jurisdiction and sitting in equity may provide as a remedy for such material breach. No expiration or termination of this Agreement will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
12.4. Survival. Sections 5, 6, 10, 11, 12, 14, 15, 16, and 17, and any right, obligation, or required performance of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
13. MODIFICATIONS.
Customer acknowledges and agrees that Provider has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Customer will be notified of modifications via electronic mail at the electronic mail address provided at commencement of the Cloud Services by Customer. Customer is responsible for reviewing and becoming familiar with any such modifications. Customer’s continued use of the Cloud Services after the effective date of the modifications will be deemed acceptance of the modified terms.
14. EXPORT REGULATION.
The Cloud Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer shall not, directly, or indirectly, export, re-export, or release the Cloud Services or the software or technology included in the Cloud Services to or make the Cloud Services or the software or technology included in the Cloud Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, regulation, or rule. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Cloud Services or the software or technology included in the Cloud Services available outside the United States.
15. GOVERNING LAW AND JURISDICTION.
This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Arizona in each case located in the city of Phoenix, County of Maricopa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
16. FORCE MAJEURE.
Provider shall not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Provider’s reasonable control, including acts of God, pandemics, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
17. INDEPENDENT CONTRACTORS; NON-EXCLUSIVE RIGHTS.
Provider and Customer are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Provider reserves the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third-party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
18. NO THIRD-PARTY BENEFICIARIES.
Except as otherwise set forth herein, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
19. CONSTRUCTION.
The headings of sections herein are included solely for convenience of reference and shall not control the meaning or interpretation of any of the provisions of this Agreement. The definitions given for any defined terms in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or other subdivision. The words “including” and “include” and other words of similar import are deemed to be followed by the phrase “without limitation.” The word “shall” means “has a duty to.” The word “or” is not solely exclusive. References to any particular statute, regulation or law means such statute, regulation or law applicable to this Agreement and as amended from time to time, including any successor legislation thereto. A provision of this Agreement designating a “business day” means any day except any Saturday, any Sunday, or any day which is a U.S. federal legal holiday or any day on which banking institutions are authorized or required by U.S. federal law or other governmental action to close. A provision that does not designate a “business day” is a calendar day and means any day of the seven (7) day week. If any date for performance falls on a Saturday or Sunday, then it shall be automatically extended to the immediately following Monday. If any date for performance falls on a U.S. federal legal holiday or any day on which banking institutions are authorized or required by U.S. Federal law or other governmental action to close, then it shall be automatically extended to the next regular business day.
20. MISCELLANEOUS.
This Agreement constitutes the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to Provider must be sent to its corporate headquarters address available at https://missionalmarketing.com/contact/ and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by Provider. Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from Provider. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Cloud Services. Customer agrees that any notices, agreements, disclosures, or other communications that Provider sends to Customer electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by Provider with respect to a breach of this Agreement by Customer or others does not constitute a waiver and will not limit Provider’s rights with respect to such breach or any subsequent breaches. This Agreement is personal to Customer and may not be assigned or transferred for any reason whatsoever without Provider’s prior written consent and any action or conduct in violation of the foregoing will be void and without effect. Provider expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.