1.2. “Beta Tester” means a party using the Skubana Services in a manner authorized by Skubana, where some or all of the particular services accessed by that party have not been fully released to all of Skubana’s Customers.
1.3. “Customer” means the party using the Skubana Services, including as a Beta Tester.
1.4. “Customer Agreement” means the documentation whether physical or on-line confirming an order with Skubana which sets out the requested Service, the Term, payment schedule and payment due dates as agreed between the parties.
1.5. “Documentation” means all materials, including drawings, diagrams, specifications, documentation, product descriptions, training manuals and user manuals that Skubana provides (either online or hard copy) to assist and define Customer’s use of the Services.
1.6. “Fees” means the monies due from Customer to Skubana as consideration for the Services and licenses in the Agreement and all charges or fees imposed by third parties on Skubana in connection with the Services including without limitation application programming interface (API) fees.
1.7. “GMV” or “Gross Merchandise Value” means the sum equal to the value of Customer’s products processed for sale using any Service (for example, sold on a Network Site or Customer’s e-commerce website). GMV excludes shipping, sales tax, and, where applicable, VAT and GST, if the Network Site itemizes these amounts. GMV is calculated at the time of completion of checkout by a buyer except for (a) sales on Network Sites (for example, deal sites) where the value of the items sold is calculated based on a negotiated price between Customer and the Network Site, and (b) sales on eBay, where GMV is determined at the time a prospective buyer commits to buy an item for a fixed price or, in the case of an auction, at the close of the auction. For purposes of calculating GMV, GMV is converted to the appropriate currency stated in the Agreement on a daily basis (using Greenwich Mean Time (GMT) as the standard time) applying the applicable rates at http://www.currencysystem.com/currencyserver/feeds/ or a similar service that Skubana reasonably designates from time to time.
1.8. “Intellectual Property Rights” means patents, patentable rights, copyright, design rights, utility models, trademarks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and rights to apply for or register the same (present, future and contingent), and including all renewals, extensions, revivals and all accrued rights of action);
1.9. “Insolvency Event” means: in relation to a corporate entity, any of the following events:
1.9.1. the company commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws;
1.9.2. anyone commences an involuntary case against the company under title 11 of the United States Code or the corresponding provisions of any successor laws and either (A) the case is not dismissed by midnight at the end of the 60th day after commencement or (B) the court before which the case is pending issues an order for relief or similar order approving the case;
1.9.3. a court of competent jurisdiction appoints, or the company makes an assignment of all or substantially all of its assets to, a custodian (as that term is defined in title 11 of the United States Code or the corresponding provisions of any successor laws) for the Company or all or substantially all of its assets; or
1.9.4. the company fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so.
1.11. “Marks” means any word, symbol or device, or any combination, used or intended to be used by a party to identify and distinguish the party’s or its third party licensor’s products or services from the products or services of others, including without limitation trade names, trademarks, service marks and logos. “Customer Marks” refer to any Marks of Customer and includes third party marks Customer may provide to Skubana or that are incorporated in Product Information. “Skubana Marks” refers to Marks of Skubana.
1.12. “Product Information” means all information and materials related to Customer products that Customer provides or uploads to Skubana or otherwise stores in the Skubana Platform, or that Customer directs Skubana to collect on Customer’s behalf, including without limitation image files, text, templates, product descriptions, prices, Customer Marks, URLs and any other related information.
1.13. “Representatives” collectively means the affiliates, directors, officers, employees, permitted assigns and agents of a party.
1.14. “Skubana” means Skubana, LLC, located at 2015 Jones Road, Fort Lee, NJ 07024 and 524 Broadway, New York, NY 10012.
1.15. “Services” means the services to be provided by Skubana, including without limitation any licensed software, code, or functionality, including but not limited to customer’s access to the Skubana Platform.
1.16. “Skubana Platform” means the cloud-based service provided by Skubana to its Customers.
1.17. “Technology” means, collectively, the Skubana Platform and Services, Documentation, functionality, URLs and integrations that enable Customer access to the Skubana Platform, analytics, transaction information, all content in, and work product resulting from, the Services, and any software or technology incorporated in or made available by Skubana through the Skubana Platform or Services, expressly excluding Product Information and Customer Marks unless otherwise stated in a writing signed by the parties.
1.18. “Term” means the period of the Agreement stated in the Customer Agreement, and includes the Initial Term and all Renewal Terms as defined in the Customer Agreement.
1.19. “User” means the individuals employed by You or otherwise working for You at Your direction, for whom a subscription has been ordered and who are authorized by You to access and use the Service, including You; and
1.20. “You” or “Your” refers to the Customer.
1.21. “We” or “Our” refers to Skubana.
1.22. “Website” means Skubana.com or such other website or mobile access point from which Skubana may make the Service available.
1.23. “Business Day” means a day other than a Saturday, Sunday or a public holiday in the state or territory in which the Service is to be supplied.
1.24. “Business Hours” means 09:00 to 18:00 Eastern Standard Time on a Business Day;
2. LICENSE/TERMS OF SERVICE/ RESTRICTIONS.
2.1. Skubana agrees to use commercially reasonable efforts to provide the Services to Customer. Skubana may subcontract the performance of the Services and subcontractors shall be included in the term “Skubana” and shall not be considered third parties under the Agreement. Skubana remains responsible to Customer for the actions of Skubana’s subcontractors.
2.2. Skubana grants the Customer a limited, non-transferrable, non-exclusive license to use and access the Service solely for Customer’s internal business purposes, provided that Customer shall not: (a) license, sub-license, sell, resell, rent, lease, transfer, assign, distribute or otherwise exploit the terms of this license or make the Service available for access or use by any person(s) other than the Users, save as for is expressly permitted by the Agreement or authorized by Skubana; (b) use the Service to process any data unlawfully or for any third party; (c) allow any unauthorized access to, or use of, the Service; (d) modify, adapt, decipher, decompile, reverse engineer or otherwise attempt to determine any programming or the source code associated with the Service except as otherwise expressly permitted by law; (e) use the Service in an unlawful manner including, but not limited to, the infringement of any third party or Skubana Intellectual Property Rights or use of the Service in breach of any third party’s privacy rights; (f) use the Service in a manner that interferes or disrupts with the provision of the Service by Skubana to third parties; (g) use the Service to upload, store or transmit any malicious code or other similar harmful software such as viruses, malware or trojan horses; (h) use the Service to make any transmission, display or publication of any material which is of a defamatory, offensive, abusive or menacing character to any other person; or (i) use the Service for any transmission, display or publication of any material in breach of any law dealing with privacy or data protection in any country. You must notify Us immediately in the event that You become aware of any unauthorized access to or use of the Service, or of any attempted unauthorized access to or use of the Service.
2.3. Email Support. Skubana shall provide Customer with support services via email only, to be rendered only during the hours of 9 am to 5 pm Eastern Time. Any additional support services requested by the Customer, including telephonic support services, shall be subject to additional fees, and shall only be provided upon written agreement signed by the parties.
2.4. Intellectual Property Ownership. Customer owns its Product Information and Customer Marks. Skubana (or its licensors) exclusively owns all right, title and interest in and to the Technology. Customer hereby assigns to Skubana all Intellectual Property rights in the Technology that Customer may have acquired by law or otherwise. Customer shall not challenge, directly or indirectly, any of Skubana’s (or its licensors’) rights stated in the Agreement.
2.5. Except as expressly stated in the Agreement, no licenses or rights are granted by Skubana and nothing in the Agreement implies any license to Customer in the Technology. No rights to any source code are granted and Customer shall not itself, or through any third party, reverse engineer, disassemble, decompile or otherwise attempt to derive source code or design information regarding any Technology and is not permitted to make any modifications to Technology. Customer agrees: (a) all Customer product listings and transactions must be routed through the Skubana Platform and/or Services; (b) any transaction that Customer concludes through the Skubana Platform and/or Services, whether or not it is processed by the Skubana Platform and/or Services, is subject to inclusion in the calculation of GMV, notwithstanding anything in the Agreement to the contrary; and (c) Customer is obligated to record the transactions in the Skubana Platform or notify Skubana of any transactions not recorded in the Skubana Platform for any reason whatsoever. Customer may not remove or obscure any copyright, patent, trademark, trade secret or similar proprietary notice affixed to any Technology. Customer agrees that the underlying structure, sequence, organization and source code of the Technology are valuable trade secrets of Skubana and shall remain strictly confidential. Customer may not use, and may not allow others to use, the Technology for any purpose not expressly detailed in the Agreement. Customer may not use the Technology for the purpose of bringing an Intellectual Property claim against Skubana or for the purpose of developing a product or service, or helping another develop a product or service, that is competitive with the Technology. Skubana has the right to audit Customer’s compliance with this Section.
2.6. Skubana Platform Features and Functionality. Skubana may access, monitor, remove content within, or disable Customer access to the Skubana Platform or Services if (a) Skubana, in its sole discretion, believes it may incur liability because of Customer Product Information, (b) Skubana is required to do so by law, government order or other legal process or (c) to enforce the terms of the Agreement. In its sole discretion, Skubana may change any design, layout, content, features or functions of the Technology without notice. If the changes reduce functionality and materially adversely impact Customer’s use of the Skubana Platform of Services, then Customer’s sole and exclusive remedy is to terminate the Agreement by providing at least thirty (30) days prior written notice. Skubana may temporarily suspend the Skubana Platform, or any Services or both, for maintenance from time to time. Skubana will give advance notice of maintenance, unless, in Skubana’s sole discretion, it is impractical to do so.
2.7. Other Sites and Services. Skubana is not responsible for content supplied by third parties, or for actions Customer takes in reliance on that content. Skubana has no liability to Customer for failures based on services not provided by Skubana.
2.8. Documentation Licenses. Skubana grants Customer the non-exclusive right to use the Documentation solely in conjunction with Customer’s use of the Services. Skubana and any applicable third parties reserve all rights in their respective Documentation.
2.9. In order for a Customer to subscribe to the Service, each account must be connected to an individual person. In the circumstance where the Customer is organization, each account must be assigned to an individual employee at that organization. Skubana cannot and will not accept any subscriptions where accounts are registered or run through automated methods.
2.10. Customers must provide their full legal names, a valid email address and any other information requested by Skubana in order to complete the signup process and license.
2.11. Customers are responsible for maintaining the security of their account login information (username & password). Skubana cannot and will not be liable for any loss or damage from failure to comply with this security obligation. Customers must notify Skubana immediately in the event of loss of the Customer’s username or password.
2.12. Customers are responsible for ensuring that their Users comply with the terms of this Agreement and that their Users do not access or use the Service in breach of this Agreement.
2.13. Where Customers have signed up for a subscription account, they may not transfer their concurrent license to use and access the Service to any third party;
2.14. Customers may not use their accounts for any illegal or unauthorized purpose. Customers must not, during their use of the Service, violate any laws in their jurisdiction (including, but not limited to copyright laws).
3. Right to Monitor. Skubana recognizes and confirms that the information from Customers contained in and processed by the Service may be confidential. In the normal provision of the Service Skubana will not access or monitor Customers’ accounts. However, Skubana reserves the right to utilize such access in order to support, manage and protect the integrity of the Service (including but not limited to preventing illegal activity, uploading of virus infected files or questionable material and for general customer support).
4. Modifications to the Service and Prices. In order to fulfill its obligations in managing and upgrading the Service, Skubana may at any time amend the Service and any documentation relating thereto for any reason including, but not limited to: legal, technical, or business considerations.
5. Code and Data Ownership
5.1. Any data entered in a Customer’s live account database or uploaded to the Service remains Customers at all times and can be exported by Customer as needed.
5.2. Skubana does not pre-screen any Customer-supplied or User-supplied content, but reserves the right to refuse or remove any content available via the Service. Customer acknowledges and accepts that Skubana is not obliged to monitor such any Customer-supplied or User-supplied content as a standard part of the Service provided.
5.3. Skubana houses all programming associated with the Service on servers that are either owned by Skubana or leased by Skubana from third parties. Unauthorized distribution of any software or programming associated with the Service without prior consent is strictly prohibited and includes placing our software or programming on any physical or virtual servers or mediums without the written consent of Skubana.
5.4. The underlying Skubana software and computer code will not be accessible to any Customers or Users.
6. Data Loss & Backups
6.1. Skubana will not accept under any circumstances the liability for any loss of customer data whether that be through general use, hacking or server failure.
6.2. Skubana makes daily backups of the subscription account data and the server itself.
7. CUSTOMER OBLIGATIONS.
7.1. Product Information. Customer represents and warrants that the Product Information (a) is owned (or validly licensed for all uses required under the Agreement) by Customer or is in the public domain, (b) does not constitute defamation, libel, or obscenity, (c) does not result in any consumer fraud, product liability, or breach of contract or cause injury to any third party and (d) does not contain any viruses, Trojan horses, worms, spyware, time bombs or other forms of malware or computer programming routines that are intended to interfere with or disrupt the Skubana Platform. Subject to the terms of the Agreement, Customer grants Skubana all rights to use the Product Information. Customer is responsible for providing all Product Information in local languages and for providing buyer support in those local languages, unless expressly stated in a writing signed by the parties. Upon request from Customer, Skubana shall provide Customer’s most recent backup of the Product Information to Customer, if available.
7.2. Load Restrictions. Customer must not place an unreasonable or disproportionately large load on the Skubana Platform as determined by Skubana in its sole discretion (including without limitation the number of keywords and SKUs processed by the Skubana Platform), and Skubana may limit or restrict Customer’s access if Customer’s activities unreasonably or disproportionately burden any portion of the Skubana Services.
7.4. Compliance with Laws. Customer covenants to Skubana that at all times during the Term it complies with all applicable laws, rules and regulations and codes as updated from time to time related to Customer’s performance of its obligations under the Agreement and activities that Customer undertakes in connection with its use of the Skubana Services including without limitation those governing the online sale of goods and services, those governing anti-bribery and anti-corruption, including without limitation the U.K. Bribery Act 2010 and the U.S. Foreign Corrupt Practices Act of 1977 (FCPA), respectively, and U.S. export controls and trade sanctions and economic embargoes.
7.5. Spam/Unsolicited Email/Prohibited Activities. Customer is prohibited from using for, or involving the Skubana Platform or any Service with, spamming or sending any unsolicited emails or information to any person or entity. For emails that do not violate the Agreement that are sent through the Skubana Platform or any Service, Customer must provide a way for buyers and consumers to request that Customer stop sending emails that a buyer or consumer previously opted to receive. Customer covenants to Skubana that Customer will not engage in the activities prohibited in this Section or any other portion of the Agreement. In addition to all remedies available at law or in equity, Skubana may immediately terminate or suspend the Agreement or the Services or both if Customer uses the Services for purposes prohibited in this Section or any other portion of the Agreement.
7.6. Fulfillment/Shipment/Inventory/Taxes. Customer is responsible for fulfilling all its buyers’ orders. Customer agrees to ship all products within a commercially reasonable time after Customer has received payment for the products. As between Skubana and Customer, title and risk of loss remains with Customer at all times. Customer is solely responsible for maintaining inventory levels sufficient to support its sales of products and comply with the Federal Trade Commission (FTC) “Mail or Telephone Order Merchandise Rule” set forth in 16 CFR Part 435 as updated from time to time. Customer is responsible for identifying the products it offers through a Network Site that are subject to sales, use, VAT, GST, and/or similar taxes and providing the applicable rates and information to Skubana. Customer shall apply, or advise Skubana to apply, the rates required by applicable law and Customer shall determine and pay all taxes applicable to these products.
7.7. Customer Assistance. Customer shall use commercially reasonable efforts to perform all acts and to make, execute and deliver all documents, data, and access credentials that Customer needs to perform or provide in order for Skubana to provide the Services.
8. Beta Testing
8.1. Skubana may offer people the opportunity to be Beta Testers of the Service or new features or versions of the Service from time to time. If You subscribe to the Service as a Beta Tester for a period of time (“Beta Test Period”), the length of any such Beta Test Period may vary and will be indicated at the time You register for Your subscription.
8.2. You will be notified when Your Beta Test Period will expire. If Your Beta Test Period expires and You have not subscribed to a paid subscription to the Service, You will still be able to access some of the Service (very limited features), but You will no longer be able to manage orders, view inventory reports, etc.
8.3. If You subscribe to the Service as a Beta Tester, You are reminded of the limits of Skubana’s warranties, and the limitations of Skubana’s liability, set forth in Sections 13 and 14 of the Agreement.
9.1. FEE PAYMENT. The Implementation Fee is due immediately upon the execution of the Customer Agreement. Thereafter, Skubana shall invoice Customers on a monthly basis, on or about the last day of each month, for work performed during that month, and all payments are due immediately by automatic payment processing. If the automatic payment processing fails, Skubana may demand payment and disable Customer as described above. Any late payments shall bear an additional charge of 1½% per month, or the maximum rate permitted by law, whichever is less, from the original due date until Skubana receives payment in full. Customer shall pay all costs of collection (including reasonable attorney’s fees) that Skubana incurs to recover Fees. Any invoice not disputed within three (3) business days is deemed accepted. In addition to the Fees under the Agreement, Customer agrees to pay all applicable taxes related to the activities contemplated by the Agreement, including without limitation any sales, use or ad valorem taxes, and excluding taxes based upon Skubana’s net income. Customer is responsible for: (a) identifying to Skubana its main tax location where Customer will access the Skubana Platform or Service, and (b) remitting all applicable taxes to the appropriate local, state, national and international authorities. Customer shall reimburse Skubana for any taxes, interest and penalties levied against Skubana if Customer fails to remit. Where obligated by applicable law, Skubana will, for the benefit of Customer, collect all applicable local, state, national or international taxes that are owed as a result of Customer’s use of the Skubana Platform or Service, and remit collected taxes to the appropriate taxing authority based on Customer’s main billing address of record.
9.2. FEE CHANGES. In its sole discretion, Skubana reserves the right to raise or modify its Fees, or change its Fee terms in any manner, to be effective at the start of a Renewal Term. If Customer does not wish to renew the Agreement under the new Fee terms, Customer may terminate at the end of the then-current Term in accordance with Section 11 of the Agreement. Email communication is sufficient notice for the Fee changes stated in this Section.
9.3. EFFECT OF BREACH. If Customer breaches the Agreement, the full balance due under the remaining Term of the Agreement shall immediately become due.
10. MARK LICENSES. Each party hereby grants to the other a limited, non-exclusive, non-assignable, non-transferable license, without right to sublicense, to use its Marks in connection with the Services. Marks must be reproduced as exact copies and all use of the Marks is subject to the licensor’s usage guidelines as revised from time to time and available from the licensor. The licensee of the Marks acknowledges and agrees that all right, title and interest in the licensor’s Marks is exclusively owned by the licensor, its licensors, or a third party and that all use of licensor Marks inures to the benefit of licensor. Licensee shall not assert any Intellectual Property rights in the licensor Marks or in any element, derivation, adaptation, variation or name thereof. Licensee shall not contest the validity of, or licensor’s ownership of, any of the licensor Marks. Licensee shall not, in any jurisdiction, adopt, use, or register, or apply for registration of, whether as a corporate name, trademark, service mark or other indication of origin, or as a domain name, any licensor Marks, or any word, symbol or device, or any combination confusingly similar to any of the licensor Marks. Licensee may not alter licensor Marks in any manner, or use licensor Marks in any manner that may dilute, diminish, or otherwise damage licensor’s rights and goodwill in its Marks. Licensee may not use licensor Marks in any manner that implies sponsorship or endorsement by licensor of licensee services and products other than those expressly authorized by licensor.
11. TERM AND TERMINATION.
11.1. See Customer Agreement.
11.2. Termination for Cause. The Agreement may be terminated other than at the end of a Term upon written notice to the other party as follows: (a) by a party if the other party has materially breached the Agreement and the breaching party has not cured the breach within thirty (30) days after written notice of the breach (provided, however, that where the breaching party is diligently pursuing the cure but cannot cure within thirty (30) days, the foregoing will not apply), (b) by Skubana in the event of a payment default, (c) by Skubana if it is party to a merger, acquisition or similar transaction in which the other party to the transaction requires termination of similar agreements, (d) as may be stated in a writing signed by the parties, (e) by Skubana for Customer’s breach of the license, restrictions and limitations found in Section 2, or for breach of Section 7, (f) by Customer, if the Service is unavailable or inaccessible to Customer and its Users for either (a) more than three (3) consecutive days; or (b) more than five (5) days in any thirty (30) day period as a result of the fault or failure of Skubana, and (g) by a party, to the extent permitted by law, if the other party suffers an Insolvency Event..
11.3. Termination without Cause. Either party may terminate the Agreement, with or without cause, at least thirty (30) days before the end of the Initial Term or any Renewal Term, which shall be effective at the end of such Interim or Renewal Term.
11.4. Effect of Expiration or Termination. Upon expiration or termination of the Agreement, the licenses granted under the Agreement terminate immediately. The following Sections survive its expiration or termination: 1.0, 2.4, 9 (solely to the extent that Fees are owed), 12.3 and 13 through 16 and any other provision or partial provision which by its nature would reasonably survive the termination of the Agreement.
12. Skubana’s Warranties:
12.1. Skubana warrants that it has the right to provide the Service and any accompanying materials as contemplated under this Agreement and that each of the foregoing, and their provision in accordance with the terms of this Agreement, does not and will not infringe the Intellectual Property Rights or other rights of any third party; that the Service will operate and function as described on the Website; and the Service will be provided with all due care, skill and diligence and by means of appropriately qualified and skilled personnel.
12.2. Skubana does not warrant that the Service supplied hereunder shall be free from computer viruses. Skubana relies upon the provider of its hosting service for virus checking, and accepts no responsibility for any failures on the hosting service’s part.
12.3. DISCLAIMER OF WARRANTIES BY SKUBANA. THE SERVICE (INCLUDING ANY SOFTWARE AND DOCUMENTATION) IS PROVIDED HEREUNDER “AS IS.” SKUBANA MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE TECHNOLOGY OR SKUBANA MARKS. SKUBANA DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE TECHNOLOGY AND SKUBANA MARKS INCLUDING WITHOUT LIMITATION ANY WARRANTIES AGAINST INFRINGEMENT AND IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT THE TECHNOLOGY WILL OPERATE UNINTERRUPTED, DEFECT-FREE OR ERROR-FREE. SKUBANA MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE TECHNOLOGY’S LOCALIZATION TO A PARTICULAR MARKET INCLUDING WITHOUT LIMITATION LOCAL LANGUAGE, LOCAL SUPPORT OF TAXES, PAYMENT OR SHIPPING CARRIERS. SKUBANA MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH ANY MODULE OR FROM ANY NETWORK SITE, FLEX FEED DESTINATION, OR THIRD PARTY INTERFACE.
12.4. By Customer:
13.1. Customer’s Indemnification. Subject to Section 13.3 (Requirements of Indemnification), Customer indemnifies, defends and holds harmless Skubana and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees), of whatever type or nature incurred by Skubana by reason of a third party claim or assertion brought against Skubana and its Representatives arising out of or related to: (a) Customer’s failure to comply with or breach of Sections 2, 7 or 10 of the Agreement, (b) Customer products listed, supplied or sold using the Services including without limitation Intellectual Property infringement claims and product liability claims, Customer Marks, ad content, and Product Information, (c) any gross negligence or willful misconduct of Customer or its employees or agents and (d) misappropriation or fraud related to buyer information (personal or otherwise) or buyer funds.
13.2. Skubana Indemnification. Subject to Section 13.3 (Requirements of Indemnification) and Section 14 (Liability Limitation), Skubana indemnifies, defends and holds harmless Customer and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including reasonable attorney’s fees) of whatever type or nature incurred by Customer by reason of a third party claim or assertion brought against Customer and its Representatives, arising out of or related to: (a) Customer’s authorized use of the Skubana Platform infringing on the Intellectual Property rights of a third party in the territory in which Services are provided, (b) Customer’s authorized use of Skubana Marks (not a third party licensor’s marks) infringe upon a U.S. trademark and (c) any gross negligence or willful misconduct of Skubana or its employees or agents in the course of providing the Services.
13.3. Requirements of Indemnification. In order for the indemnification obligations of the indemnifying parties to apply, the indemnified parties must promptly provide the indemnifying party with notice in writing of any claim, promptly tender the control of the defense and settlement of any claim to the indemnifying party (at the indemnifying party’s expense and with indemnifying party’s choice of counsel), and cooperate fully with the indemnifying party (at the indemnifying party’s request and expense) in defending or settling the claim including without limitation providing any information or materials necessary for the defense. The indemnifying party shall only be liable to the indemnified party for the amount of damages as determined in a final, non-appealable order of a court of competent jurisdiction or paid by way of settlement, but the indemnifying party shall have no liability for any settlement made by an indemnified party without the indemnifying party’s prior written consent, which may be withheld in the indemnifying party’s sole discretion. The indemnifying party will not enter into any settlement or compromise of any claim without the indemnified party’s prior consent if the settlement would require admission of fault or payment by the indemnified party.
13.4. Exclusions and Infringement Remedies. Upon Skubana’s sole determination that the use of the Skubana Platform infringes upon the rights of any third party, Skubana may, at its sole discretion and own cost and expense, either: (a) procure the right for Customer to continue to license the Skubana Platform, (b) modify the Skubana Platform in such a way that the use thereof does not infringe on the rights of third parties, or (c) terminate the Agreement by notice to Customer and refund any Fees paid in advance for the license to use the Skubana Platform remaining (on a pro rata basis) after the termination date, if any. Skubana shall have no liability or obligation with respect to any infringement claim if the infringement is caused by: (i) a modification made by Customer to an item, software, or Service supplied by Skubana or a modification made by Skubana at Customer’s request, (ii) use of the Skubana Platform in an application or environment other than as intended under the Agreement, (iii) Customer’s unauthorized use of the Skubana Platform, (iv) Skubana acting in accordance with Customer’s specifications or guidelines, or (v) the combination, operation or use of the Skubana Platform with other third party product(s) not supplied by Skubana. Customer indemnifies, defends and holds harmless Skubana and its Representatives from and against all obligations, actions, suits, claims, demands, settlements, judgments, damages, losses, liabilities, costs and expenses (including without limitation reasonable attorney’s fees) arising out of or related to any of the circumstances stated in this Section. The remedies stated in this Section 13 are the SOLE AND EXCLUSIVE remedies of Customer for the infringement of third party Intellectual Property rights by Skubana.
14. LIMITATIONS ON SKUBANA’S LIABILITY
14.1. LIABILITY LIMITATION. UNDER NO CIRCUMSTANCES WILL SKUBANA BE LIABLE FOR: LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF CONTRACTS; LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR CONSEQUENTIAL OR INDIRECT LOSS OR SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES (INCLUDING, FOR THE AVOIDANCE OF DOUBT, WHERE SUCH LOSS OR DAMAGE IS ALSO OF A CATEGORY OF LOSS OR DAMAGE ALREADY LISTED), WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY YOU OR ANY USER OR ANY THIRD PARTY ARISING OUT OF ANY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY CONDITIONS OR OTHER TERM, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, OTHER LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. SKUBANA IS NOT LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR THE FAILURE OF A PERSON TO ENTER INTO A TRANSACTION BY MEANS OF CUSTOMER’S USE OF THE SKUBANA PLATFORM, ANY MODULE (OR OTHER SOFTWARE LICENSED) OR THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL SELECTION OF PARTIES WITH WHOM CUSTOMER DOES BUSINESS, AND FOR TERMS AND CONDITIONS OF CUSTOMER’S AGREEMENTS WITH THOSE PARTIES AND WITH NETWORK SITES AND FLEX FEED DESTINATIONS. SKUBANA HAS NO RESPONSIBILITY FOR THE QUALITY OR AVAILABILITY OF GOODS OR SERVICES PROVIDED BY CUSTOMER, ANY BUYER’S ABILITY TO PAY, ANY THIRD PARTY’S COMPLIANCE WITH THE TERMS OF A TRANSACTION, OR FOR ANY INJURY, LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY THE GOODS OR SERVICES OBTAINED BY A BUYER OR SOLD BY CUSTOMER THROUGH USE OF THE SERVICES.
14.2. LIABILITY CAP. NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, IN NO EVENT WILL SKUBANA OR ITS SUPPLIERS BE LIABLE FOR DAMAGES, EXPENSES, COSTS, LIABILITIES, SUITS, CLAIMS, RESTITUTION OR LOSSES, THAT EXCEED, IN THE AGGREGATE, THE AMOUNT OF FEES PAID BY LICENSEE FOR THE SERVICE IN THE FIRST TWELVE (12) MONTHS OF ACCESS TO THE SERVICE.
14.3. IN ADDITION TO THE LIMITATIONS ON LIABILITY SET FORTH ABOVE, IF CUSTOMER IS A BETA TESTER, CUSTOMER AGREES THAT USE OF BETA-STAGE SERVICES IS INHERENTLY RISKY, CUSTOMER AGREES THAT CUSTOMER IS USING THE BETA-STAGE SERVICE AT ITS OWN RISK, AND CUSTOMER AGREES THAT SKUBANA WILL HAVE NO LIABILITY WHATSOEVER TO ANYONE FOR ANY DAMAGE ARISING FORM THE USE OF THE BETA-STAGE SERVICE, EXCEPT TO THE EXTENT SUCH DAMAGE AROSE FROM SKUBANA’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
15. Confidential Information means any information directly or indirectly disclosed by one party to the other party, in writing, orally or by inspection of tangible objects, which is designated as “Confidential,” “Proprietary” or a similar designation. Information communicated orally is considered Confidential Information only if designated as Confidential Information upon disclosure and confirmed by the discloser in writing no later than twenty (20) days thereafter. The Skubana Platform and the related Documentation and visual interfaces, buyer information, pricing, any negotiated terms of the Agreement and market strategies, are Skubana’s Confidential Information without need to mark or designate the information as confidential or proprietary. A party receiving Confidential Information shall not disclose it to any third party, provided, however, that Skubana may share Customer’s Confidential Information with Skubana’s related entities, agents, and third parties for the purpose of carrying out its rights and responsibilities under the Agreement. Each party shall keep the other party’s Confidential Information confidential using the same degree of care it uses to protect its own confidential information, but no less than reasonable care. Confidential Information does not include any information that: (a) is or becomes publicly available through no action or inaction of the receiving party, (b) is already in the receiving party’s possession at the time of disclosure and is not subject to confidentiality obligations, (c) the receiving party obtains from a third party without a breach of the third party’s obligations of confidentiality, (d) the receiving party independently develops without use of the disclosing party’s Confidential Information, or (e) a party agrees in writing is free of restrictions. If either party receives a subpoena or other validly issued judicial process requesting, or is required by a government agency to disclose the other party’s Confidential Information, the receiving party shall notify the disclosing party, unless doing so would violate the subpoena or process, and, upon the disclosing party’s request shall reasonably cooperate to seek confidential treatment or to obtain an appropriate protective order to preserve the confidentiality of the Confidential Information at the disclosing party’s expense. All confidentiality obligations survive the Term for three (3) years. The parties agree that breach of this confidentiality obligation will cause irreparable damage that cannot be fully remedied through the payment of monetary damages and that the injured party has the right to obtain injunctive relief for any such breach or threatened breach, in addition to any other remedies available at law or in equity. For the avoidance of doubt, the terms offered specifically by Skubana to Customer, including but not necessarily limited to pricing and durational terms, are the Confidential Information of Skubana and may not be disclosed by Customer except in accordance with this provision.
16. GENERAL PROVISIONS.
16.1. The parties acknowledge and agree that the Agreement does not in any way limit either party’s right at any time to independently develop, market, license, or otherwise distribute, any product in any manner that it chooses. Customer may use the Skubana logos and pre-approved copy to carry out its rights and responsibilities under the Agreement, including references to Customer’s relationship with Skubana by posting the logo and approved copy to Customer’s corporate website. Requests to Skubana shall be submitted in accordance with the notice provision herein, and and Skubana shall respond to such requests within five (5) business days. Either party may make disclosures as required by law as reasonably advised by its legal counsel without the consent of the other party and in such event, the disclosing party will provide at least five (5) business days prior written notice of such disclosure unless prohibited by law. Neither party may assign the Agreement without the other party’s prior written consent, except that: (a) either party may assign the Agreement without the other’s consent in the case of a reorganization, merger, consolidation, or sale of all or substantially all of its assets, and (b) Skubana may assign the Agreement without Customer’s consent to Skubana’s affiliates or subsidiaries. The parties are independent contractors. The Agreement and invoices arising under it constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any and all prior or collateral negotiations, proposals, agreements and understandings, whether oral or written, relating to the subject matter of the Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or reference in the Agreement shall not be binding. Except as otherwise stated in the Agreement, any amendments to the Agreement must be in writing and executed by the parties. Upon acceptance by Skubana, these changes may result in additional Fees, which are calculated as of the date of the change, invoiced upon receipt of notice from Customer, and payable in accordance with Section 9 (Payment). The changes, as memorialized by an invoice, shall become part of the Agreement. If any provision of the Agreement is held or made invalid or unenforceable for any reason, the invalidity will not affect the remainder of the Agreement and the severed provision shall be interpreted to be consistent with the Agreement. The failure of either party at any time to require performance of any provision shall not waive or affect the right at a later time to enforce any provision. Section headings are for reference purposes only and in no way affect the meaning or interpretation of the Agreement. All Exhibits referenced in the Agreement are incorporated into the Agreement by reference. To the extent the terms of a subsequent writing signed by the parties conflict with the terms of the Agreement, the terms of the subsequent writing control. Each party represents and warrants to the other party that it is NOT relying on any promises, guarantees and/or assurances of the other party that are NOT otherwise expressly contained in the Agreement.
16.2. Any notice required or permitted by the Agreement shall be in writing and deemed delivered if delivered (a) by personal delivery when delivered, (b) by overnight courier upon written verification of receipt, (c) by telecopy or facsimile transmission when confirmed by telecopy or facsimile transmission report, (d) by certified or registered mail, return receipt requested, upon verification of receipt or (e) by email notification as long as “NOTICE” or “LEGAL NOTICE” appears in the subject line of the email and the email is set up to show a delivery confirmation. Notices must be sent to the contacts and address in the Agreement, or any new address provided by the permitted notice methods. Customer may not claim, and hereby waives, any defense of lack of sufficient notice for Customer’s failure to provide Skubana its current contact information.
16.3. Governing Law and Dispute Resolution. The parties agree to treat the subject matter and existence of a dispute confidential and to resolve all disputes with respect to the Agreement promptly by negotiating in good faith. If a dispute is not resolved within fifteen (15) days of complaint, either party may request negotiation between executives with authority to resolve the matter. If the matter is not resolved within thirty (30) days of a party’s request for negotiation, either party may initiate judicial proceedings (these time limitations do not apply if a statute of limitations will expire or if the party is seeking injunctive relief). The laws of the state of New York, without regard to its conflicts of laws provisions, govern the Agreement. Each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the applicable courts located in New York, New York, for purposes of any action, suit or proceeding arising out of or relating to the Agreement and agrees that service of any process, summons, notice or document by registered mail or the equivalent to the address stated in the Agreement is effective service of process for any action, suit or proceeding brought against the party under the Agreement.
16.4. Force Majeure. Neither party shall be liable for failure to perform, or the delay in performance of, any of its obligations under the Agreement other than payment if, and to the extent that, the failure or delay is caused by events beyond its reasonable control including without limitation acts of the public enemy or governmental body in its sovereign or contractual capacity, war, fire, floods, strikes, epidemics, quarantine restrictions, unavailability of the Internet, civil unrest or riots, acts of terrorism, transportation delays, freight embargoes or unusually severe weather. The affected party shall use commercially reasonable efforts to avoid or remove the causes of non-performance or delay, and shall continue performance whenever the causes are removed. If any non-performance or delay continues for more than thirty (30) days, the Agreement may be terminated by the unaffected party without liability upon written notice to the affected party.