Terms and Conditions
Effective Date: August 1, 2021
TERMS AND CONDITIONS
These Terms and Conditions (“Terms and Conditions”) are part of and shall govern the Master Services Agreement (“Agreement” or “MSA”) between Remora and it's Clients (as identified in the MSA). In connection with this Agreement, Remora and Client have simultaneously entered into a certain Master Services Agreement. Any reference in these Terms and Conditions to the “Agreement” shall be deemed to be a reference to the MSA entered into between the parties, including these Terms and Conditions, taken as a whole. In consideration of the mutual covenants set forth herein, Remora and Client agree as follows:
Definitions.In addition to the terms defined elsewhere in this Agreement, as used in this Agreement, the following terms shall have the following meanings:
- “MSA” means the Master Services Agreement entered into between Client and Remora.
- “Aggregated Statistics” means data and information related to Client’s use of the Services that is used by Remora in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.
- “Client Data” means any personally identifiable information and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by a website visitor to Client. Non-personally identifiable information such as Aggregated Statistics is not considered “Client Data.”
- “Client IP” means all intellectual property provided to Remora by Client in connection with Remora’s provision of the Services. For the avoidance of doubt, Client IP includes any information, data, or other content provided to Remora to complete its work, including, but is not limited to, the Client’s company logos, trade dress, images, videos, and contextual website content.
- “Remora IP” means the Services, the Documentation, and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, Remora IP includes any information, data, or other content derived from Remora’s monitoring of Remora Services but does not include Client Data or Client IP.
- “Documentation” means Remora’s user manuals, handbooks, and guides relating to the Services provided by Remora to Client either electronically or in hard copy form.
- “Services” means the software-as-a-service offering described in Exhibit A attached to the MSA.
- “Deliverables” means all documents, work product and other services and materials that are delivered to Client under this Agreement or prepared by or on behalf of Remora in the course of performing the Services.
- “Third-Party” means any company, person, or entity other than the parties bound by this Agreement.
- “Third-Party Products” means any third-party software or products integrated with Remora’s Services by Client request or by Remora of its own accord.
- “Third-Party Resources” means third-party search engines, directories or other web sites that Remora may submit references to on Client’s behalf.
- “Intellectual Property Rights” means copyrights, patents, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, trade dress, trade names, logos, together with all of the goodwill associated therewith, derivative works, and all other rights.
- “Confidential Information” means sensitive information about either party’s business affairs, plans, products, intellectual property, trade secrets, and proprietary information.
- “Feedback” means communications sent to Remora by Client suggesting changes to Remora’s Intellectual Property, including without limitation, new features or functionality relating thereto, or any comments, questions, or recommendations.
Support Related Definitions.
- “Change Request” means Client website change requests.
- “Feature Request” means a Client request that would require Remora to design and build a new feature that involves custom coding or custom artwork elements.
- “Issue” means a problem causing a degradation of service for website users or for Client staff.
- “Incident” means an Issue that causes website downtime or inventory accessibility problems.
Support Related Expectations.Client expects Remora to respond to its requests to make changes and updates to the website in a timely and professional manner. Once a Client request is escalated to an Issue or an Incident by Remora it takes priority and is resolved first and before pending Change Request or Feature Requests. Remora warrants to Client that it will make its commercially reasonable efforts to respond in a timely manner and that Client can expect the following response times.
Change RequestsRemora responds to Client within ten (10) business hours.
Feature RequestsRemora responds to Client within two (2) business days.
IssuesRemora responds to Client within five (5) business hours.
IncidentsRemora responds to Client within two (2) business hours. Remora is open Monday through Friday from 9am-6pm EST.
Invoicing and Payment; Late Charges; Taxes.
FeesClient shall pay Remora the fees (“Fees”) as set forth in Exhibit B attached to the MSA without offset or deduction. Client shall make all payments hereunder in United States dollars on or before the due date set forth in this Agreement. If Client fails to make any payment when due, without limiting Remora’s other rights and remedies: (i) Remora may charge interest on the past due amount at the rate of twelve percent (12%) per annum; (ii) Client shall reimburse Remora for all costs incurred by Remora in collecting any late payments or interest, including legal fees, and court costs; and (iii) if such failure continues for twenty (20) days or more, Remora may suspend Services and Client’s and its Authorized Users’ access to any portion or all of the Services until such past due amounts are paid in full.
Invoicing and PaymentRemora shall issue invoices to Client monthly on or around the 20th day of each month for the Fees for the next month’s Services. Client shall pay all properly invoiced amounts due to Remora no later than the first (1st) day of the month immediately after the invoice is issued, except for any amounts disputed by Client in good faith, with no right of setoff. Partial months of service will be pro-rated and invoiced on the next month. Client shall provide Remora prompt written notice of any disputed amount, explaining the dispute in reasonable detail. Remora and Client shall work together to resolve disputes in a timely manner. All payments hereunder shall be in United States dollars and made by check, credit card, or wire transfer.
Late Charges; InterestAny payment which is not paid within ten (10) calendar days of the due date shall bear interest, calculated daily and compounded monthly, at the lesser rate of 12% per annum or the highest rate permissible under applicable law. Client shall also reimburse Remora for all reasonable costs incurred in collecting any late payments and applicable interest charges, including, without limitation, legal fees. In addition to all other remedies available under this Agreement or at law (which Remora does not waive by the exercise of any rights hereunder), Remora shall be entitled to suspend the provision of any Services if Client fails to pay any Fees when due hereunder.
TaxesClient shall be 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 entity on any amounts payable by Client hereunder.
Access and Use.
Provision of AccessSubject to and conditioned on Client’s payment of Fees (as defined in the MSA) and compliance with all other terms and conditions of this Agreement, Remora hereby grants Client a non-exclusive, non-transferable right and license to access and use the Services during the Term (as defined below), solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal use. Remora shall provide to Client the necessary passwords and network links or connections to allow Client access to the Services. The total number of Authorized Users will not exceed the number set forth in Exhibit A attached to the MSA, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder. In no event shall any Authorized User share his or her password with any other person and any violation of the forgoing shall constitute a breach of this Agreement by Client.
Documentation LicenseSubject to the terms and conditions contained in this Agreement, Remora hereby grants to Client a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Client’s internal business purposes in connection with its use of the Services.
Use RestrictionsClient shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users or other persons to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain unauthorized access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the 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.
Reservation of RightsRemora reserves all rights not expressly granted to Client 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 Client or any third-party any intellectual property rights or other right, title, or interest in or to Remora IP.
Aggregated StatisticsNotwithstanding anything to the contrary in this Agreement, Remora may monitor Client’s use of the Services and collect and compile Aggregated Statistics. As between Remora and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Remora. Client acknowledges that Remora may compile Aggregated Statistics based on Client Data input into the Services. Client agrees that Remora 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 Client’s Confidential Information.
GeneralClient is responsible and liable for all uses of the Services and Documentation resulting from access provided by Remora, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client 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 Client will be deemed a breach of this Agreement by Client. Client 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 Services and shall cause Authorized Users to comply with such provisions. Client understands that these Terms and Conditions are subject to change and that the most up to date version of these Terms and Conditions will be posted on the Remora website. It is the Client’s responsibility to review and understand the Terms and Conditions.
Third-Party ProductsRemora may from time to time integrate its Services with Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions. If Client does not agree to abide by the applicable terms for any such Third-Party Products, then Client should not install, request for Remora to install, or use such Third-Party Products.
- All non-public, confidential or proprietary information of either party (“Confidential Information”), including, but not limited to, this Agreement, the Terms and Conditions, information about such party’s business affairs, products, services, methodologies, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, or otherwise learned by the Receiving Party in connection with this Agreement, and whether or not marked, designated, or otherwise identified as “confidential,” is confidential, solely for use in performing this Agreement and may not be disclosed or copied unless authorized by the Disclosing Party in writing. The Receiving Party shall protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (ii) is obtained by the Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (iii) the Receiving Party establishes by documentary evidence, was in its possession prior to the Disclosing Party’s disclosure hereunder; or (iv) is required to be disclosed under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction.
- The Receiving Party shall be responsible for any breach of this Agreement caused by any of its employees, contractors, agents, or representatives. At any time during or after the term of this Agreement, at the Disclosing Party’s written request, the Receiving Party shall promptly return, and shall require its representatives to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information. Each party’s obligations under this Agreement will survive termination or expiration of this Agreement for a period of two (2) years, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
Intellectual Property Ownership, Feedback.
- All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of Remora in the course of performing the Services (collectively, the “Deliverables”), except for any Confidential Information (as defined in the MSA) of Client, is owned exclusively by Remora and the ownership shall remain with Remora during and following the termination of this Agreement. Remora will have the exclusive rights in making any derivative works from any of its work, practices, coding, or programming arising out of the Services.
- Client shall retain all its Intellectual Property Rights in any text, images or other components Client owns and delivers to Remora for use on the website that is developed under this Agreement. Any domain name registered on Client’s behalf will be registered in Client’s name for both the billing and administrative contacts and Client shall be responsible for renewing Client’s domain name(s).
- Both parties acknowledge and agree that, except as specifically set forth in this Agreement, neither party shall acquire under this Agreement any rights of use or ownership with respect to any trade names, trade dress, trademarks, service marks, commercial symbols, copyrightable material, designs, logos and/or any other intellectual property of the other party or its licensors, and all such intellectual property shall remain the property of its respective owner.
- If Client or any of its employees or contractors sends or transmits any communications or materials to Remora by mail, email, telephone, or otherwise, suggesting or recommending changes to Remora’s IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Remora is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Client hereby assigns to Remora on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Remora is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Remora is not required to use any Feedback.
Representations, Warranties, and Covenants.
MutualEach party represents and warrants to the other party that as of the Effective Date: (i) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its formation; (ii) it has the full right, power, and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (iii) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will violate or conflict with or result in any breach of or default under any provision of any contract or agreement of any kind to which such party is a party or by which such party is bound or to which any property or asset of such party is subject; and (iv) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
ClientClient represents to Remora and unconditionally covenants and guarantees that (i) any elements of text, graphics, photos, designs, trademarks, or other artwork furnished to Remora for inclusion in the website are owned by Client, or that Client has permission from the rightful owner to use each of these elements, and will hold harmless, protect, indemnify, and defend Remora from any liability (including legal fees and court costs), including any claim or suit, threatened or actual, arising from the use of such elements furnished by Client; (ii) it will not reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas or algorithms of any Intellectual Property Rights of Remora or create or attempt to create derivative works there from; and (iii) it shall not accept or use the website or services to create a competitive product, or permit a third-party to use the website to create a competitive product.
Indemnification.Client agrees to indemnify, defend, and hold harmless Remora and its past and present officers, directors, employees, agents, professional advisors, lawyers, distributors, licensees, successors, and permitted assigns 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 and costs, incurred by Remora, arising out of or resulting from any claim of a third-party arising out of or occurring in connection with: (i) damage to real or tangible, personal property resulting from Client’s willful, fraudulent or negligent acts or omissions; or (ii) Client’s negligence, willful misconduct, or material breach of this Agreement, including but not limited to material breach of any representation or warranty made by Client in this Agreement. Client shall indemnify, hold harmless, and, at Remora’s option, defend Remora from and against any Losses resulting from any Third-Party Claim that the Client Data or Client IP, or any use of the Client Data or Client IP in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights and any Third-Party Claims based on Client’s or any Authorized User’s (iii) negligence or willful misconduct; (iv) use of the Services in a manner not authorized by this Agreement; (v) use of the Services in combination with data, software, or technology not provided by Remora or authorized by Remora in writing; or (vi) modifications to the Services not made by Remora, provided that Client may not settle any Third-Party Claim against Remora unless Remora consents to such settlement, and further provided that Remora will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
Limited Warranty; Disclaimer.Remora warrants that it shall perform the Services in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services and in compliance with all applicable laws and shall devote adequate resources to meet its obligations under this Agreement. Remora (i) MAKES NO REPRESENTATIONS OR WARRANTIES EXCEPT FOR THOSE SET OUT ABOVE; AND (ii) DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES OF NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. CLIENT ACKNOWLEDGES THERE ARE INHERENT RISKS IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF CLIENT PRIVACY AND PROPERTY, INCLUDING CONFIDENTIAL INFORMATION. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES SHALL BE DELIVERED BY REMORA AND ACCEPTED BY CLIENT “AS IS” AND “AS AVAILABLE.” Remora’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of the limited warranty set out in this Section. If Remora cannot reperform the Services within a reasonable time (no more than 30 days) after Client’s written notice of such breach, Remora in its sole discretion as to amount, shall refund to Client a portion of the Fees previously paid by Client corresponding to the defective Services. Client acknowledges that Remora will not be responsible for Client’s failure to achieve any specific results, productivity, or any other measurable performance metric other than those expressly set forth in the Services described on Exhibit A attached to the MSA. Client acknowledges that Remora shall have no responsibility for any third-party disrupting, intruding in part or in whole on all or any part of the Services performed for Client’s website and Remora is not responsible for any lost files or any other loss that may occur in the operation of the website developed and implemented under the terms this Agreement. Remora does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit A attached to the MSA. REMORA STRICTLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCTS. THE REMORA IP IS PROVIDED “AS IS” AND REMORA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. REMORA 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. REMORA MAKES NO WARRANTY OF ANY KIND THAT THE REMORA IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE.
Limitations of Liability.IN NO EVENT WILL REMORA BE LIABLE TO CLIENT OR ANY THIRD-PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES,OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER REMORA WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. REMORA ASSUMES NO LIABILITY FOR ANY DAMAGE, THEFT OR LOSS TO CLIENT’S PROPERTY (INCLUDING, WITHOUT LIMITATION, CLIENT DATA) RESULTING FROM THE ACTS OR OMISSIONS OF ANY THIRD-PARTY, INCLUDING, WITHOUT LIMITATION, ANY UNAUTHORIZED PHYSICAL OR NON-PHYSICAL ACCESS. ANY SUCH DAMAGE OR LOSS WILL BE THE EXCLUSIVE RESPONSIBILITY OF CLIENT OR THE THIRD-PARTY WHO CAUSED SUCH LOSS OR DAMAGE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY REMORA OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN. IN NO EVENT WILL REMORA’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, AND OTHERWISE EXCEED ONE TIMES THE TOTAL AMOUNTS PAID TO REMORA BY CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Sole Remedy.THIS AGREEMENT SETS FORTH CLIENT’S SOLE REMEDIES AND REMORA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.
Services Disclaimer.Client acknowledges the following with respect to the Services provided pursuant to this Agreement: Remora accepts no responsibility for policies of third-party search engines, directories or other web sites (collectively, “Third-Party Resources”) that Remora may submit to with respect to the classification or type of content it accepts, whether now or in the future. Client’s website or content may be excluded or banned from any Third-Party Resource at any time by action of a Third-Party Resource. CLIENT AGREES NOT TO HOLD REMORA RESPONSIBLE FOR ANY ALLEGED DAMAGE TO CLIENT’S WEBSITE, BRAND, DOMAIN, OR CONTENT OR ANY LIABILITY FROM ACTIONS TAKEN BY ANY THIRD-PARTY RESOURCE AS A RESULT OF THE IMPLEMENTATION OF THE SERVICES PERFORMED BY REMORA ACCORDING TO THE TERMS OF THIS AGREEMENT.Client acknowledges that many of the resources that Remora may employ pursuant to this Agreement are competitive in nature. Client further acknowledges that Remora’s past performance is not indicative of any future results Client may experience. Remora reserves the exclusive right, for the duration of the Term of this Agreement, to approve or disapprove any design or coding strategies, whether requested by Client or anyone presently employed by Client, that are considered by Remora to be detrimental to the website and the provision of Services by Remora under this Agreement.
Independent Contractor Status.The parties intend that the relationship between them created under this Agreement is that of an independent contractor only. Neither party is to be considered an agent or employee of the other party for any purpose whatsoever. The details of the method and manner for performance of the Services by Remora shall be under its own control, Client being interested only in the results thereof. Remora shall be solely responsible for supervising, controlling, and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Client the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Remora shall be responsible for all state, federal and local taxes, including estimated taxes, social security, workers’ compensation insurance, disability insurance, if any, and any other similar forms of payment, as well as all employment reporting, for Remora and/or any of Remora’s employees or agents, if any. The provisions of this Section shall expressly survive the termination or expiration of this Agreement.
Prohibitions.Unless expressly and specifically authorized in writing by the other party in advance, each party is prohibited from engaging in any of the following: (i) incurring any debt or obligation on behalf of the other party; (ii) entering into any contract, arrangement, or transaction which binds the other party to any extent or creates any obligation on the other party; and/or (iii) utilizing the other party’s name, credit, reputation, goodwill, resources, and/or assets for any purpose without the prior and explicit written approval of such party.
Use of Material for Promotional Purposes.Client grants Remora the right to use the work Remora produces in connection with the performance of the Services for Remora’s own promotional purposes and/or to cross-link it with other advertising developed by Remora. Client further grants Remora the right to use Client’s trade names and trademarks in Remora’s advertising and marketing materials and to list, reference or otherwise identify Client as a Client of Remora in Remora’s advertising and marketing materials.
Review of this Agreement; Advice of Counsel.Each party hereto confirms that such party has had the opportunity to read, review and consider all of the provisions of this Agreement, and to discuss this Agreement with whomever such party desired, including lawyers of such party’s own choosing, and if such party has not consulted with a lawyer, such party acknowledges having had the opportunity to have done so and that such party chose voluntarily and knowingly not to consult with a lawyer, with respect to this Agreement and all matters related thereto. The parties each confirm that they understand the provisions of this Agreement and its final and binding effect on them and that they are entering into this Agreement freely, voluntarily, and without duress or coercion.
Suspension.Notwithstanding anything to the contrary in this Agreement, Remora may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if Remora reasonably determines that (i) there is a threat or attack on any of Remora’s IP; (ii) Client’s or any Authorized User’s use of Remora’s IP disrupts or poses a security risk to Remora’s IP or to any other Client of Remora; (iii) Client, or any Authorized User, is using Remora’s IP for fraudulent or illegal activities; (iv) subject to applicable law, Client 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 (v) Remora’s provision of the Services to Client is prohibited by applicable law. Remora shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. Remora shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. REMORA WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS), OR ANY OTHER CONSEQUENCES THAT CLIENT OR ANY AUTHORIZED USER MAY INCUR AS A RESULT OF A SERVICE SUSPENSION.
Termination.In addition to any other express termination rights set forth in this Agreement: Remora may terminate this Agreement, effective on written notice to Client, if Client: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Remora’s delivery of written notice thereof; or (ii) breaches any of its obligations. Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; or either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay its debts as they become due; (ii) 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; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) 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.
Effect of Expiration or TerminationUpon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of Remora’s IP and, without limiting Client’s obligations, Client shall delete, destroy, or return all copies of the Remora IP. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.
Survival.Section 1 (Definitions), Section 4 (Notice), Section 6 (Access and Use), Section 7 (Client Responsibilities), Section 8 (Confidential Information), Section 9 (Intellectual Property Ownership; Feedback), Section 10 (Representations, Warranties, and Covenants), Section 11 (Indemnification), Section 12 (Limited Warranty; Disclaimer), Section 13 (Limitations of Liability), Section 14 (Sole Remedy), and Section 23 (General) shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or termination of this Agreement.
SeverabilityIf any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to modify this Agreement to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
WaiverNo waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
AssignmentClient may assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, only upon thirty (30) days’ prior written notice to Remora and written consent from Remora, such consent not to be unreasonably withheld. Any assignee must assume all of Client’s rights or obligations here under being assigned and shall be bound by the terms and conditions of this Agreement. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
Further AssurancesEach party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions contemplated hereby.
Entire AgreementThis Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third-party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Successors and AssignsThis Agreement is binding on and inures to the benefit of the parties and their respective successors and permitted assigns.
No Third-Party BeneficiariesNo waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Equitable ReliefEach party acknowledges and agrees that a breach or threatened breach by such party of any of its would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages, or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that maybe available at law, in equity, or otherwise.
Governing Law and Submission to JurisdictionThis Agreement shall be governed by and construed in accordance with the Master Services Agreement entered into between Remora and Client without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the jurisdiction identified in the MSA entered into between the Remora and Client, and each party irrevocably: (a) submits to the exclusive jurisdiction of such courts; and (b) waives any objection to such courts based on venue or inconvenience. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
Waiver of Jury TrialEACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS, OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Force MajeureIn no event shall Remora be liable to Client, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement if and to the extent such failure or delay is caused by any circumstances beyond Remora’s reasonable control, including but not limited to acts of God, natural disaster, flood, fire, earthquake, hurricane, explosion, war, terrorism, invasion, riot or other civil unrest, pandemic, epidemic, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
HeadingsThe headings of the Sections of this Agreement are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.
Strict ConstructionThe language used in this Agreement shall be deemed to be in the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any party.
Legal FeesIn the event of a dispute arising out of this Agreement, each party shall be responsible for all costs and expenses, including reasonable legal fees, incurred by such party.
Amendment and Modification; Periodic UpdateRemora reserves the right, at its sole discretion, to update, change or replace any part of this Agreement by posting updates and changes to its website. It is Client’s responsibility to check Remora’s website periodically for changes. Client’s continued use of or access to Remora’s website or the Services following the posting of any changes to this Agreement constitutes acceptance of those changes.