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QuPid Mobile Leads Platform Licensing
Terms and Conditions
Unless otherwise provided herein, all provisions of these Terms apply to Company regardless of the
Services specified on the Cover Sheet.
- 1. Definition As used in this Agreement, the following terms have the following meanings.
- a. “Ad Inventory” means location-verified or location-enhanced mobile advertising space made available by a publisher to the QuPid Mobile Leads Platform for the insertion of Ad For purposes of this definition, a publisher may be an application developer or an exchange or other entity offering Ad Inventory.
- b. “Ads” means any material that promotes a brand, products, or services, and shall include, without limitation, graphic and video ads, interstitial ads, ad banners, badges, buttons and text lin
- c. “Advertiser” means a direct or indirect advertiser, media buyer, ad agency or other provider of Ad
- d. “Affiliate” means, as to any entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity.
- e. “Campaign Data” means any data such as, but not limited to, mobile device IDs, that QuPid Mobile Leads in its sole and exclusive discretion shares with Company that is related to or derived from a campaign run by QuPid Mobile Leads on behalf of Company or its Advertisers, excluding User Data and Performance D
- “End User” means any individual that uses a mobile device or other Internet interface to view or interact with an Ad in connection with the QuPid Mobile Leads Platform.
- g. “Intellectual Property Right” means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and
mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing) anywhere in the world, that exist as of the Effective Date or hereafter come into existence, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation.
- h. “Managed Services” means services provided by QuPid Mobile Leads to Company under this Agreement, pursuant to which Company may work with QuPid Mobile Leads in the fulfillment of mobile advertisement campaigns on behalf of Advertisers working with Company.
- i. “Performance Data” means statistical data that QuPid Mobile Leads collects during delivery of Ads related to such delivery, such as clicks and secondary action
- j. “User Data” means any data that QuPid Mobile Leads collects during delivery of Ads or performance of its rights or obligations under this Agreement, other than Performance Data, including the End User device information, an End User’s session-based browsing behavior, precise location data, demographic information, number of impressions, http header information, and any other data that QuPid Mobile Leads may collect regarding End Use
- “User Volunteered Data” means any personally identifiable information of End Users collected by Company or its Advertiser.
- l. “QuPid Mobile Leads Platform” means QuPid Mobile Leads’s proprietary technology platform that enables, among
other things, real time bidding for the purchase of Ad Inventory.
- 2. Bidding Process.
Company represents and warrants that all its bidding criteria or campaign instructions provided to the QuPid Mobile Leads Platform or as otherwise specified by QuPid Mobile Leads are true and correct and that all bids or campaign instructions provided to the QuPid Mobile Leads Platform will be bona fide bids or instructions for the purchase of Ad Inventory. Company shall not submit bids or instructions for the purpose of analyzing or studying the behavior of the auction process or any other aspect of the QuPid Mobile Leads Platform. Company acknowledges and agrees that (i) transactions on the QuPid Mobile Leads Platform occur in real time, and bids and offers may compete simultaneously against multiple other bids and offers, (ii) the highest bid may not win an auction, (iii) Company is solely responsible for accurately providing all applicable advertising campaign data, including without limitation bidding criteria and campaign instructions, to the QuPid Mobile Leads Platform, (iv) QuPid Mobile Leads and sellers of Ad Inventory have the right to exclude Company or any or all of Company’s clients or Advertisers from bidding on the Ad Inventory at any time for any reason, (v) QuPid Mobile Leads makes no guarantee or warranty regarding any transaction that does or does not occur through or in connection with the QuPid Mobile Leads Platform, and (vi) QuPid Mobile Leads makes no guarantee regarding the level of impressions of Ads, the timing of delivery of such impressions or the amount of any payment to be made or due hereunder.
- 3. Managed Service. The provisions of this Section 3 shall apply to Company if Company has elected to purchase the Managed Service as indicated on the Cover Sheet.
- a. Campaign Fulfillmen Company will obtain Managed Services through the portal made available to Company by QuPid Mobile Leads at the URL set forth on the Cover Sheet as the Online IO URL or such other URL as is designated by QuPid Mobile Leads (the “Campaign Submission Tool”). The terms that govern Company’s use and QuPid Mobile Leads’s delivery of the Managed Services are the terms set forth on the Campaign Submission Portal (the “Portal Terms”), available at the address designated on the Cover Sheet. In the event of a conflict between any provision in the Portal Terms and any other provision of this Agreement, the provision in the Portal Terms will prevail. QuPid Mobile Leads will ensure that Company campaigns go live within 48 hours from the time QuPid Mobile Leads has received from Company all required information related to the campaign including, but not limited to a completed order submission.
- b. Suppor
- Company will be solely responsible for all interactions with its Advertisers regarding the Managed Services. At all times during the term of this Agreement, Company agrees to maintain a staff of sales and technical support personnel sufficient to meet the needs of Advertisers and will be responsible for ensuring that such personnel are properly trained.
- QuPid Mobile Leads will provide Company only, and not any Advertiser or other customer of Company, with support for the Managed Services as follows: QuPid Mobile Leads will use commercially reasonable efforts to (i) respond to all Company inquiries regarding Managed Services within a 24 hour period (excluding holidays and weekends), (ii) have technical issues resolved within a 48 hour period (excluding holidays and weekends), (iii) make reports for all Company advertising programs available by 12:00 AM EST time on a daily basis, and (iv) ensure that Company campaigns go live within 48 hours from the time QuPid Mobile Leads has received from Company all required information related to the campaign including, but not limited to a completed order submission.
- 4. Relationship Terms
- a. Relationship with Third Parties. If Company places bids on, or places Ads in, Ad Inventory on behalf of Advertisers Company shall be solely responsible for all aspects of dealing with such Advertisers (g., selling, collection of payment, client service), content and placement of Ads, and handling all inquiries of any type or nature. Company will not make or publish any representations, warranties or guarantees on behalf of QuPid Mobile Leads concerning the features, performance or functionality of the QuPid Mobile Leads Platform or the Managed Services, other than presenting current information that has been published by QuPid Mobile Leads or expressly approved by on officer of QuPid Mobile Leads in writing in advance.
- b. Restriction Company shall have no rights or licenses with respect to the QuPid Mobile Leads Platform or any services except as expressly provided in this Agreement and QuPid Mobile Leads reserves all rights not explicitly granted herein. Company shall not, and shall not allow any third party to (i) sell, sublicense, loan, lease, distribute, transfer, or otherwise make available to any third party all or any portion of the QuPid Mobile Leads Platform, (ii) reproduce, modify, prepare derivative works of, alter, translate, adapt, reverse engineer, reverse compile, or disassemble any component of the QuPid Mobile Leads Platform, (iii) modify, remove, or obscure any proprietary notices or legends that appear on the QuPid Mobile Leads Platform or during the use and operation thereof, (iv) interfere with or disrupt the QuPid Mobile Leads Platform or any part thereof, or create an undue burden on the QuPid Mobile Leads Platform, (v) generate queries, or impressions of or clicks on Ads through any automated, deceptive, fraudulent or other invalid means (including click spam, robots, macro programs, and Internet agents), (vi) encourage or require End Users to click on Ads through offering incentives or any other methods that are manipulative, deceptive, malicious or fraudulent, (vii) access or use the QuPid Mobile Leads Platform in order to create or attempt to create a similar or competitive service or product, or (viii) use the QuPid Mobile Leads Platform for any purpose other than as specifically authorized in Section 2.a. Company will not share any authentication or passwords or let any other party use its access to the QuPid Mobile Leads Platform, and agrees to implement commercially reasonable security measures to protect against the unauthorized access to and use of the QuPid Mobile Leads Platform. Company shall be responsible for the activities of any person or entity accessing the QuPid Mobile Leads Platform by means of the access provided by QuPid Mobile Leads to Company pursuant to this Agreement, whether authorized by Company or not. QuPid Mobile Leads may monitor Company’s use of the QuPid Mobile Leads Platform to ensure that Company complies with this Agreement.
- c. Modification; Acce
Company understands and agrees that from time to time the QuPid Mobile Leads Platform may be inaccessible, unavailable or inoperable for any reason, including, without limitation: (i) equipment malfunctions, (ii) periodic maintenance procedures or repairs that QuPid Mobile Leads may undertake from time to time, or (iii) causes beyond the control of QuPid Mobile Leads or that are not reasonably foreseeable by QuPid Mobile Leads, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, the unavailability, operation, or inaccessibility of websites or interfaces, network congestion or other failures.
- d. License to Ads. During the Term, Company hereby grants QuPid Mobile Leads a non-exclusive, royalty- free, fully paid, worldwide license, with the right to sublicense to third party service providers and contractors, solely to perform its obligations under the Agreement, to use, reproduce, distribute, create derivative works of, modify, publicly perform and publicly display the Ads, to display, route and place Ads on Ad Inventory, and to display Ads within any visual interface to the QuPid Mobile Leads Platform.
to any Ads that Company submits or that QuPid Mobile Leads discovers in performing its obligations under this Agreement, if in its sole opinion, QuPid Mobile Leads suspects or has reason to suspect, that the Company, Ads or any other material are any way involved in activities that violate any local, state, national or international law or regulation.
- 5. Ownership; Data; Privacy and Security
- a. Ownership. As between the parties, QuPid Mobile Leads owns and retains all right, title and interest in and to the QuPid Mobile Leads Platform, Performance Data, User Data, any tools or resources that QuPid Mobile Leads may use or make available to Company in connection with providing the Managed Services or other services pursuant to this Agreement, and any materials created, developed or provided by QuPid Mobile Leads in connection with this Agreement, including all Intellectual Property Rights related to each of the foregoing. As between the parties, Company retains all Intellectual Property Rights in each Ad and User Volunteered Data.
Except as explicitly set forth herein, neither party may use the other party’s trademarks, service marks, trade names, logos, or other commercial or product designations for any purpose whatsoever without the prior written consent of the other party. If Company elects to provide QuPid Mobile Leads any suggestions, comments, improvements, ideas or other feedback or materials related to the QuPid Mobile Leads Platform (collectively, “Feedback”), Company agrees to assign and hereby does assign all right, title and interest including, but not limited to, all Intellectual
Property Rights, in and to such Feedback to QuPid Mobile Leads and agrees to assist QuPid Mobile Leads, at QuPid Mobile Leads’s expense, in perfecting and enforcing such rights.
- b. User Data and Performance Data. Except as otherwise expressly provided herein, Company may not collect, retain, use or disclose any User Data or Performance D For any User Data or Performance Data collected by Company in connection with delivery of an Ad for which Company has bid on and won the applicable auction and impressed an Ad in compliance with all of its obligations under this Agreement, or Campaign Data which QuPid Mobile Leads may in its sole discretion provide to Company, QuPid Mobile Leads grants to Company, for the term of the Agreement, a limited, world-wide, royalty-free, personal, non-transferable, revocable license, without the right to sublicense, to use such specific User Data or Performance Data for solely and exclusivelyfor its internal business purposes so long as (i) such collection, retention, use or disclosure is in compliance with this Agreement and all applicable privacy policies, laws, rules, regulations, and industry self-regulatory regimes relating to the collection, retention, use and disclosure of such data, (ii) as to any User Data, Company obtains (or it is obtained on Company’s behalf) any applicable consents, authorizations, and clearances from End Users that may be required in connection therewith, (iii) no use is made to identify or re-identify any End User, and (iv) all use is solely through the QuPid Mobile Leads Platform or directly in connection with this Agreement. Company may not use Campaign Data or any derivatives created therefrom (i) to build or supplement profiles, (ii) to build or supplement an index of geographical points of interest, (iii) to make, havemade, use or sell for any purpose any product or other item using, incorporating or derived from Campaign Data, or (iv) in connection with a mobile advertising campaign, or otherwise to target mobile advertising, except with QuPid Mobile Leads, unless an officer of QuPid Mobile Leads has given express written consent to permit such use in a campaign with a third party.
- c. User Volunteered Data. If Company enables the collection of any User Volunteered Data through Ads, Company must expressly disclose to each individual End User that such collection occurs, and is solely on behalf of Company (and not QuPid Mobile Leads). As between QuPid Mobile Leads and Company, QuPid Mobile Leads will not have any ownership of User Volunteered Data and Company will be responsible for its collection and any use of User Volunteered Data by Company or any third party.
fact that precise location data is to be transferred to or collected by third party advertising companies, (D) instructions for accessing and using a tool for providing or withdrawing consent to the collection or transfer of precise location data, and (E) a disclosure that describes a choice mechanism(s) or setting that allows consumers to exercise choice (e.g., the DAA Choice Page, AppChoices) with respect to data collected and used by third parties. Company agrees that nothing in this Agreement or any suggestions, edits or proposed language provided by QuPid Mobile Leads relating to end user notices, consents, terms or otherwise shall constitute legal advice. Company shall obtain the independent advice of counsel in connection therewith.
- 6. Payments
- a. Fees and Invoice Need to update with our information
- b. Determination of Fee QuPid Mobile Leads will measure the number of impressions, inquiries, conversions, clicks, offers, installations, or other actions taken by third parties in connection with Ads, and all winning bid prices, through the QuPid Mobile Leads Platform, and all Fees will be based on such determination. (add information on deliverables?)
- d. Disputed Invoice In the event Company reasonably and in good faith disputes any Fees set forth on any invoice or record of payment issued by QuPid Mobile Leads, Company must notify QuPid Mobile Leads in writing, setting forth the reasons for such dispute and the amount of such dispute (a “Dispute Notice”), no later than 15 days following the receipt of the invoice or record of payment. Upon receipt of a Dispute Notice, both Parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within 15 days. Upon resolution of the dispute by the Parties, additional agreed amounts due from Company, if any, in relation to the applicable invoice must be remitted to the other within ten days following such resolution. If the dispute remains unresolved 45 days after the date of the invoice at issue, either party may declare the other party in breach of this Agreement and pursue any or all legal remedies available to it.
- 7. Term and Termination
- a. Ter The term of this Agreement shall start on the Effective Date and continue for a period of one year following the Effective Date unless earlier terminated as provided herein, and shall automatically renew for successive one year terms unless either party gives written notice of such party’s intent not to renew at least 60 days prior to the start of any renewal term (the
“Term”). **add content about grandfather pricing with signed long term agreement etc.
- b. Effect of Termination. **Need to rewrite under this Agreement before such termination or expiration will become immediately due and payable, all licenses granted herein shall terminate and Company shall discontinue all use of the QuPid Mobile Leads Platform, the Managed Services and the Campaign Submission Portal and all Confidential Information will be returned to the disclosing party or at the election of the disclosing party, destroy
- 8. Representations and Warranties.
Each party represents, warrants and covenants to the other party that (a) it has the full power and authority to enter into and perform this Agreement, (b) the execution of this Agreement and the performance of its obligations under this Agreement do not violate any other agreement to which it is a party, and (c) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement and this Agreement constitutes a legal, valid and binding obligation when executed and delivered. Each party shall comply with all applicable laws, regulations and other legal requirements of, and shall at its sole expense obtain and maintain the governmental authorizations, registrations and filings required by any jurisdiction in connection with the execution or performance of this Agreement.
- 9. Confidentiality
- a. Definition. “Confidential Information” means any and all information that is disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, that if disclosed in writing or tangible form is marked as “Confidential” or with some similar designation, or if disclosed orally, is identified as being proprietary and/or confidential at the time of disclosure, or that under the circumstances and nature of the information should reasonably deemed to be confiden Without limiting the foregoing and regardless of whether identified as being proprietary and/or confidential, Confidential Information of QuPid Mobile Leads includes all features, functionality, documentation and technical materials relating to the QuPid Mobile Leads Platform.
- b. Use and Disclosure Restrictions. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations as expressly permitted by this Agreemen Each party shall not disclose the other party’s Confidential Information to any third party, and shall only disclose such Confidential Information to those of its employees, contractors and agents that need to know such Confidential Information for the purposes of this Agreement, provided that each such employee, contractor or agent is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective of Confidential Information as those set forth in this Agreement. Each party will use all reasonable efforts to maintain the confidentiality of all Confidential Information of the other party in its possession or control, but in no event less than reasonable care. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement and cooperates with the disclosing party, at the disclosing party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the terms and conditions of this Agreement as required under applicable securities regulations on a confidential basis to current or prospective investors or acquirers of such party. The foregoing obligations will not apply to any information that the receiving party can demonstrate with competent evidence (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party, (ii) was rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality as shown by the contemporaneous records of the receiving party, (iii) is independently developed by the receiving party without use of, reference,or access to the disclosing party’s Confidential Information as shown by the written records of the receiving party, or (iv) the receiving party rightfully obtains from a third party that had the right to make such disclosure without an obligation of confidentiality.
- c. Public Announcements. Any public announcements regarding this Agreement or the services to be provided hereunder shall be subject to prior written approval of the other party, which shall not be unreasonably withheld or delay
- d. Return of Confidential Information. The receiving party will return to the disclosing party or destroy all Confidential Information of the disclosing party in the receiving party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the disclosing party or upon the expiration or termination of the Agreemen Upon request of the disclosing party, the receiving party will certify in writing signed by an officer of the receiving party that it has fully complied with its obligations under this Section 9.d.
- e. Injunctive Relie The parties agree that any breach of this Section 9 will cause irreparable harm to the disclosing party for which monetary damages will be inadequate. Accordingly, the disclosing party will be entitled to seek and, if granted, obtain and enforce injunctive or other equitable relief (in addition to any other remedies available to it) to remedy any threatened or actual breach of this Section 9.
- 10. Indemnification
- a. Scope. Company shall indemnify, defend and hold QuPid Mobile Leads and its directors, officers, employees and Affiliates (each an“Indemnified Party”) harmless from and against any claims, actions, damages, losses, liabilities, judgments, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) breach of Company’s representations, warranties or obligations set forth in this Agreement including, but not limited to the failure to have all necessary rights in Company Data; (ii) any Ads served in connection with this Agreement or the content thereof, including without limitation Company’s failure to secure all rights, title and interest necessary to display the Ads through the QuPid Mobile Leads Platform or the Managed Services, any allegation that the content, or that the services, products or goods being advertised in the Ads violate any applicable law or regulation, or any allegation that the Ads infringe upon, violate or misappropriate any Intellectual Property Rights, or slander, defame or libel any person, or any rights of privacy or publicity, (iii) any statements, representations or warranties made by Company regarding the QuPid Mobile Leads Platform, QuPid Mobile Leads or its products or services that exceed or are in any way different than public written statements made by QuPid Mobile Leads, or (iv) Company’s failure to provide and maintain accurate information in the QuPid Mobile Leads Platform or the Campaign Submission Portal at all tim
- b. Procedure. QuPid Mobile Leads shall (i) promptly notify Company in writing of any claim implicating the foregoing indemnification obligations, (ii) grant Company sole control of the defense and/or settlement of the claim, provided that Company will not acquiesce to any judgment or enter into any settlement that imposes any obligation or liability on any Indemnified Party without its express prior written consent, and (iii) provide Company, at Company’s expense, with all assistance, information and authority reasonably required for the defense and/or settlement of the claim. QuPid Mobile Leads may at its election and expense participate in the defense of any action.
- 11. Disclaimer of Warranties and Limitation of Liability
- a. Disclaimer of Warrantie EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE. THE QUPID MOBILE LEADS PLATFORM, THE MANAGED SERVICES, AND ALL OTHER TECHNOLOGIES, DATA, MATERIALS AND DOCUMENTATION PROVIDED BY QUPID MOBILE LEADS IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. QUPID MOBILE LEADS AND ITS SUPPLIERS, LICENSORS AND PARTNERS DO NOT WARRANT THAT THE QUPID MOBILE LEADS PLATFORM, THE MANAGED SERVICES OR THE FUNCTIONS CONTAINED THEREIN IN WILL BE CORRECT, UNINTERRUPTED, ERROR-FREE, COMPLETELY SECURE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT DEFECTS WILL BE CORRECTED. THE QUPID MOBILE LEADS PLATFORM AND THE MANAGED SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. QUPID MOBILE LEADS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. QUPID MOBILE LEADS DOES NOT WARRANT THE RESULTS OF USE OF THE QUPID MOBILE LEADS PLATFORM OR THE MANAGED SERVICES.
EACH PARTY ACKNOWLEDGES THAT IT HAS RELIED ON NO REPRESENTATIONS OR WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS AGREEMENT.
- b. Limitation of Liability.
- EXCEPT FOR A BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY, ANY LICENSE GRANTS OR RESTRICTIONS, ANY INFRINGEMENT OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR ANY WILFUL OR INTENTIONAL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES RELATING TO LOST DATA AND/OR LOST PROFITS, ARISING FROM OR RELATING TO THE QUPID MOBILE LEADS PLATFORM, THE MANAGED SERVICES OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- EXCEPT FOR A BREACH OF THE OBLIGATIONS OF CONFIDENTIALITY, ANY LICENSE GRANTS OR RESTRICTIONS, ANY INFRINGEMENT OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, ANY INDEMNITY OBLIGATION OR ANY WILFUL OR INTENTIONAL MISCONDUCT, EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE QUPID MOBILE LEADS PLATFORM, THE MANAGED SERVICES AND THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED IN PAYMENT BY QUPID MOBILE LEADS FROM COMPANY UNDER THIS AGREEMENT IN THE SIX MONTHS PRECEDING THE CIRCUMSTANCES THAT GAVE RISE TO THE CLAIM AT ISSUE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS AMOUNT. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. COMPANY ACKNOWLEDGES AND AGREES THAT THIS SECTION 11.b IS AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT, IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
- 12. Miscellaneous
- a. Relationship of the Partie The parties are independent contractors with respect to one other. This Agreement does not create and shall not be construed as creating a partnership, joint venture, or employment relationship between the parties. Neither party shall have, and shall not represent to any third party that it has, any right to obligate or bind the other party in any manner whatsoever. Nothing in this Agreement shall give, or is intended to give, any rights of any kind to any third party.
- b. Assignment. Neither party may assign or delegate any of its rights or obligations under this Agreement without the express prior written consent of the other party, and any attempt to do so in contravention of this provision shall be null and void, except that QuPid Mobile Leads may assign its rights and obligations under this Agreement without such consent in connection with any merger (by operation of law or otherwise), consolidation, reorganization, change in control or sale of all or substantially all of its assets related to this Agreement or similar transaction, to be effective upon notice to Company. This Agreement inures to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successo
- c. Waiver. A waiver of any provision of this Agreement will only be valid if provided in writing and will only be applicable to the specific instance and occurrence so waiv The failure by either party to insist upon the strict performance of this Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term herein. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
- d. Construction. Section headings are for reference purposes only and should not be used in the interpretation of this Agreem No provision of this Agreement will be construed against
either party as the drafter thereof. Each party has had the opportunity to consult with counsel in the negotiation of this Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality or enforceability of the remaining provisions of this Agreement,
and such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law.
- e. Notice All notices and other communications required or permitted to be given under this Agreement shall be given in writing. Notices to QuPid Mobile Leads shall be sent to QuPid Mobile Leads, Inc., firstname.lastname@example.org. Notices to Company shall be sent to the address indicated as the Principal Place of Business on the Cover Sheet or the email address indicated as the Contact Email on the Cover Sheet. Notices shall be sent by certified mail, delivered by a nationally recognized courier service, delivered by hand, or sent by email, and are deemed to have been received when they are delivered by courier, hand delivered, or emailed, or five business days after the date of mailing. Either party may change its address by giving notice of the new address to the other party in writing.
- Governing Law; Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without reference to conflicts of laws principles that would require the application of the laws of a different jurisdiction. The parties agree that the federal and state courts in Boston, MA will have exclusive jurisdiction and venue under this Agreement, and each party irrevocably submits to such jurisdiction exclusively and the parties hereby waive all defenses based upon forum non conveniens, improper venue, or personal jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party. Notwithstanding the foregoing, either party has the right to apply to any court of competent jurisdiction or provisional relief, including pre-trial attachments, a temporary restraining order, temporary injunction, permanent injunction and/or order of
specific performance, as may appear reasonably necessary to preserve the rights of either party.
- g. Entire Agreement and Language. This Agreement, including the Cover Sheet and any Exhibits attached hereto or incorporated herein, constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior and/or contemporaneous discussions, contracts and representations, whether oral or written and whether or not
executed by QuPid Mobile Leads and Company. This Agreement or any part or provision hereof shall not be deemed waived, amended, or modified by either party unless such waiver, amendment or modification is in writing and executed by authorized representatives of both parties. This Agreement shall be executed in English and any other language versions shall be for
- h. Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original and all of which together will constitute the same instrument, and may be executed by facsimile or electronic signatur
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