This AimLogic Master Service Agreement (the “Agreement") is entered into by andbetween SB Cap, Inc., dba AimLogic, a California Corporation (“AIMLOGIC”) andClient, as defined in the concurrently executed Service Order. AIMLOGIC and Client are referred to hereincollectively as the “Parties” and each singularly as a “Party”. This agreement is effective as of the date ofthe last signature on the accompanying Service Order (the “Effective Date”).
Whereas, AIMLOGIC is in the business of developing and selling a wide rangeof digital productsand services, which are described on the individualpages for each service, accessible at https://aimlogic.com, including, but not limited to, ConquestLOGIC, StealthLOGIC,VisitorLOGIC, LeadLOGIC, and SocialLOGIC (the "Products" and"Services”):
Whereas, Client is in the business of providingservices or products to their customers (each a "Customer"); Whereas, Clientdesires to market services or products to the general public (each a "ProspectiveCustomer"); Whereas, AIMLOGIC desires to appoint Clientsas a User of the Products and Services to their Prospective Customers,
Now, therefore, in consideration of the abovedeclarations and the mutual covenants and conditions set forth herein,and other good and valuable considerations, the receipt of which ishereby acknowledged, the Parties agree as follows:
1. APPOINTMENT. AIMLOGIC herebyappoints Client as an authorized user(“User”) of its Products andServices forthe use and benefit of Client. Except as expressly set forthherein, AIMLOGIC shall have no responsibility with respect to any of Client'sCustomers.
2. SERVICE ORDERS;PRICING.
A. Service Orders. The procedure for ordering Productsand Services pursuant to this Agreement shall be as follows:AIMLOGIC shall prepare an ordersetting forth in detail the products and services to be ordered("Order"). Upon receipt of an Order of Product and Services, theClient shall place a service order ("ServiceOrder(s)") in accordance with the terms and conditions of thisAgreement. Service Orders must be submitted to AIMLOGIC by Client and shallspecify: (i) the product, service, programs, and quantity being ordered; and (ii) a receipt date.The Parties agree that the terms and conditions of anyService Order shall be governedby the terms and conditionsof this Agreement and that the Service Order is expressly incorporated in thisAgreement. In the event of a conflict between the terms of this Agreement andan Order or Service Order, this Agreement shall govern.
B. Acceptance of Service Order. Service Orders delivered to AIMLOGIC shall be deemedto have been accepted by and bindingupon AIMLOGIC, unless AIMLOGICadvises Client in writing of a rejection of a Service Order, in whole or in part, withinfive business (5) days of its delivery. Notwithstandingthe foregoing, AIMLOGIC reserves the right to refuse, cancel, or delay anyService Order placed by Client andaccepted by AIMLOGIC when Client is delinquent in payments for more than thirty (45) days or whenClient has failed to perform any materialobligation under this Agreement. In the event AIMLOGIC is unable to fill any Service Order due to circumstancesoutside of its control, it shall promptly notify Client, and Client shall havethe right, in its reasonable discretion, to cancel the subject Service Order,and AIMLOGIC shall return any pre-paid fees to Client.
C. Invoices and PaymentTerms. AIMLOGICshall send Client invoices via email for thenext month’s services, as well as anycosts incurred, between the 8th and 12th of each month. Client should review the statementcarefully and adviseAIMLOGIC promptly if Client has any questionsabout an invoice. If Client fails to disputea charge withinten (10) days of receiving the invoice, Client will be deemed to have accepted the invoice as accurate. All questions, disputes, and objections regardingAIMLOGIC’s Servicesmust be in writingand emailed to AIMLOGIC within ten (10) days of delivery of the invoice.
D. PaymentOptions. Unless the Parties agree otherwise,payment in full is due and must be received by AIMLOGIC within 20 days ofdelivery of the invoice to Client. Client may pay amounts owing hereunder by (i) credit card; (ii) ACH (i.e.,electronic debit from Client’s bank account); (iii) wire transfer; or (iv)check. A 3% administrative fee isapplied to payments made by any method other than ACH. Unless Client is in default of its paymentobligations under this Agreement, or unless the Parties agree to differentpayment terms in writing, AIMLOGIC will not change the payment terms herein.
E. Automatic ACH/Credit CardPayment. Client may choose to pay byautomatic ACH or automatic credit card payment on a monthly basis, in whichcase no security deposit pursuant to Section 2(F) is required. If Client elects to pay by automaticACH/credit card payment, unless a timely written objection is received,AIMLOGIC will automatically bill Client’s ACH account or credit card on thefollowing business day following the expiration of Client’s ten-day period to dispute an invoice. AIMLOGICwill impose a minimum administrative fee of $100 if any payment by Client isreturned unpaid. If at any time, Clientdoes not have an active ACH account or credit card with available funds to payAIMLOGIC’s invoice(s), Client agrees to immediately pay amounts owed by checkor wire transfer. AIMLOGIC retains itsright to terminate Services should client fail to timely pay any invoice.
F. Security Deposit: If Client does not elect to make paymentby automatic ACH or credit card pursuant to Section 2(E), Client agrees to payAIMLOGIC a security deposit amounting to one month of Client’s contractedservices upon execution of the accompanying ServiceOrder. Client's Depositwill be held by AIMLOGICuntil notice of cancellation and credited towards the final billingto Client upon the terminationof this Agreement. The Deposit will bear no interest and will not be maintainedin a segregated or Client trust accountand may be combined with AIMLOGIC's general funds and accounts.The amount of the Depositdoes not constitute anestimate or limitation on the total fees and costs to be incurred. AIMLOGICreserves the right to terminate this Agreement if it determines an increasedlevel of Services requires an increase in the Deposit, and the increasedDeposit is not promptly paid by the Client as requested. If this Agreement isterminated, AIMLOGIC will apply the Deposit to all outstanding fees and costsowed and then return the balance to Client.
G. Prices. The Servicesand Product pricingwill be as set forth within the Service Order submitted by Client.
H. Taxes. Client shall be responsible for anynational, state, or local sales, use, value-added or other tax, tariff, duty,or assessment levied or imposed by the United States, or any foreigngovernmental authority arising out of or related to any of the transactionscontemplated by this Agreement, other than taxesbased upon AIMLOGIC's income and property.Client must pay directly or reimburseAIMLOGIC for the amount of such sales, use, value-added, or other tax, tariff,duty, or assessment which AIMLOGIC is at any time obligated to pay or collect.
I. Maintenance and Updates. AIMLOGIC shall provide program, services,pixel maintenance and updates, including bug fixes and error corrections, to Client in accordance with AIMLOGIC’s standardmaintenance policies, which AIMLOGIC may change from timeto time in the ordinary course of its business ("Maintenance").
J. Late Fees; Interest. All amounts owed by Client not paid within thirty(30) days of the invoice delivery date will be subject to a late charge in theamount of ten percent (10%) of the amount owed, which Client agrees representsa reasonable estimate of the damages AIMLOGIC would suffer as a result of suchlate payment. Further, Client agrees to pay a service charge of one percent(1%) per month on all past due balances.
3. INSTALLATION AND ACCEPTANCE.
A. AIMLOGIC shall implementServices and Products for use by Clientor, at the request of Client, assistClient with the implementation, training, and setup of programs and services for Client.
B. AIMLOGIC will, upon completion of an executed ServiceOrder, set up the initial welcome call, which will start the installationprocess. During this meeting, AIMLOGIC will determine the course of action foreach campaign, Service, or Product selected, review all terms and conditions of the Agreement, and start the initial ad design development provided Client’s Service or program requiressuch actions.
C. AIMLOGIC will requestaccess to Client companylogos and creative information, which will fall under section7A of this Agreement.
D. AIMLOGIC will ask for read-only access to the Client googleanalytics account. This information will be utilized for theoptimization of your campaigns and services, along with reviews that will beset up by the Client.
4. ACCESS TO DASHBOARD AND DATA SERVICES.
A. AIMLOGIC may configure and make its online Dashboardavailable to Client (the "Dashboard")for use by Clients. The Dashboard may bewhite labeled as a Clientservice provided you are part of our affiliates program.Client will be required to registeron the Dashboard and identify a username and password. AIMLOGIC will provideClient with a username and password.
B. The AimLogic Pixels may provide certain Informationabout Client's website visitors under our VisitorLogic program ("Pixel Information") to AIMLOGIC. AIMLOGICwill match the Pixel Information with data elements(i.e., personal information) in AIMLOGIC'sdatabase ("Matched Data Elements").The Matched Data Elements will be provided to Client through the Dashboard, and AIMLOGIC grants Client a license touse such Matched Data Elements solely for Client's internal business purposes,provided such use is strictly in compliance with applicable laws andregulations. Subject to the terms of this Agreement (including the payment offees when due), AIMLOGIC will use commercially reasonable efforts to providethe services described in this Section 4. B (the “Services").
C. Neither AIMLOGIC norClient may use the aggregated Matched Data Elementsof a Client for any purpose other than to provide theServices. For clarity (and without limiting the foregoing), neither AIMLOGICnor Client may sell the aggregated Matched Data Elements delivered to Client toany other person, even if such person specifically requests personalinformation about visitors to such Client's website.However, nothing herein prohibits AIMLOGICfrom use of the individual data elements in its databaseto provide Services or otherwise in its business, even if thoseindividual data elements are also incorporated into the Matched Data Elements.
D. In its agreements with Client employees, Client shallensure that Employees do not transfer the Matched Data Elements to thirdparties unless the transfer is solely to provide services to Clients or itsaffiliates.
E. Each Party shallnotify the other Party in writing as soon as possibleand without unreasonable delay after it has either actual or constructive knowledge of an act orbreach that may compromise thesecurity, confidentiality, or integrity of any personal information.Notification may be delayed as required by law. SuchParty will cooperate with law enforcement in accordance with applicable law. Such Party will promptlytake appropriate actionto mitigate such risk or potential problemat its expense.
5. PROPRIETARY RIGHTS.
A. AIMLOGICIntellectual Property Rights. AIMLOGIC owns all rights, titles, and interests,as related to all Products and Services offered, including, but not limited to,trademarks and trade secrets embodied in our Patented and Patent-pendingalgorithms (collectively, "AIMLOGICIntellectual Property Rights"). Unless expressly grantedin this Agreement, Client nor any Customershall not acquire, and shall not claim, any right, title, or interest inany AIMLOGIC Intellectual Property Rights. Client shall not reverse engineer orotherwise use AIMLOGIC’s technologies or the AIMLOGIC Intellectual PropertyRights to create any product or service which is competitive with AIMLOGIC’s products and services. Breach of this section would materiallydamage and cause irreparable harm to AIMLOGIC; therefore, AIMLOGIC shall beentitled to injunctive relief, including without limitation specificperformance, to remedy or prevent the breach of threatened breach of thissection, without the obligation to post a bond and in addition to any otherremedy available at law or equity.
B. Client Intellectual Property Rights. AIMLOGICacknowledges and agrees that all intellectual propertyrights owned by Client prior to entering into this Agreement andduring the Term are the sole and exclusive property of Client. AIMLOGIC shallnot acquire any right, title, orinterest under this Agreement in any patent, copyright, trademark, or otherintellectual property rights of any kind ofClient. No implied license, patent, copyright, or other intellectual propertyrights of Client is granted under this Agreement or otherwise.
6. LICENSE. Subject tothe terms and conditions of this Agreement, during the Term, AIMLOGIC hereby grantsto Client access to Products and Services providedby AIMLOGIC. Affiliates will have the limited abilityof a non-exclusive and non-transferable license to sell, offer to sell, sub-license, license, anddistribute products and services to Customers. The license grant herein shallterminate upon termination of this Agreement.
7. CONFIDENTIAL INFORMATION.
A. Confidential Information.
1. The Parties acknowledge and agree that during theTerm, each may receive Confidential Information from the other Party. "Confidential Information" shall mean, with respect to a Party,all information which: (i) gives that Party some competitive business advantage or the opportunity of obtaining such advantage, or the disclosure of which could bedetrimental to the interests of thatParty; or (ii) which is (A) marked "Confidential" or"Proprietary" or another similar marketing, (B) known by the Partiesto be considered confidential or proprietary, or (C) should be known orunderstood to be confidential or proprietary by an individual exercisingreasonable commercial judgmentin the circumstances. Client Confidential Information includes all Client Prospective Customers' data and data of Prospective Customersand visitors of Customers' websites. AIMLOGIC Confidential information includesall Products and Services provided.
2. Confidential Information does not include informationto the extent that such information: (i) is generally known to the public byany means other than a breach of the obligations of a receivingParty; (ii) was previously known to the receiving Party asevidenced by its written records;(iii) is rightly received by the receiving Party from a third party, not under an obligation of confidentiality; or (iv) is independently developed by thereceiving Party without reference to or use of the other Party's ConfidentialInformation.
3. Some programs provided will include a provision ofprotection for website conquering; if the website conquering product isselected as the Client’s campaign option, then additional protections areallotted to the Client. AIMLOGIC will not release any information on website conquestactivity to any organization outside of AIMLOGIC and Client.Client's activity will fall under section7A of this Agreement.
B. Use of ConfidentialInformation; Standard of Care. The receiving Party shall maintain theConfidential Information in confidence and disclosethe Confidential Information only to its employees, consultants, and agents, including independent contractorsand third-party outsourcers who have a need to know such ConfidentialInformation in order to fulfill the business affairs and transactions betweenthe Parties contemplated by this Agreement and who are under confidentialityobligations no less restrictive as this Agreement, or otherwise as necessary toperform this Agreement. The receiving Party shall protect Confidential Information by using the same degreeof care as receiving Partyuses to protect its own information of a like nature, but no less than a reasonable degree of care, to preventthe unauthorized use, disclosure, dissemination, orpublication of the Confidential Information. The receiving Party agrees not touse the disclosing Party's Confidential Information for its own purpose or forthe benefit of any third party without the prior written approval of the disclosing Party. The receiving Party shallpromptly return or certify the destruction of all copies of ConfidentialInformation upon request by the disclosing Party or upon the expiration orearlier termination of this Agreement.
C. Equitable Relief. Thereceiving Party hereby agrees andacknowledges that any breach orthreatened breach of this Agreementregarding the treatment of Confidential Information may resultin irreparable harm to the disclosing Party forwhich there may be no adequateremedy at law. In addition to other remedies provided by law or at equity, in such an event, the disclosing Party shallbe entitled to seek an injunction, without bond, preventing any further breachof this Agreement by the receiving Party.
8. NON-SOLICITATION OF CUSTOMERS. For those under an AffiliateAgreement and for a period of 30 days from the date of termination, AIMLOGICagrees that it shallnot call upon or solicitany Customer who is orwas serviced in whole or inpart by Client with the intent of selling or attempting to sell or provide productsor services related to AIMLOGIC. In the event the affiliate violates any termsof this Agreement, the right of non-solicitation will be voided.
9. INSURANCE. During the Term, each Party shallmaintain Commercial GeneralLiability Insurance with a minimum limit of not less than $1 million per occurrenceand Cyber Liability Insurance with a minimum limit of not less than $1 millionper occurrence. Each Party shall provide the other Party with thirty (30) days’prior written notice of any change or cancellation in any applicable insurancepolicies.
10. WARRANTY.
A. Compliance with Laws.
1. AIMLOGIC represents and warrants that, at the time of installation,and so long as there is an activeService Order, each item of Product and Service will comply withall applicable federal and state laws, rules, regulations, and standards.
2. Each Party represents and warrants that it hascomplied with and will always comply with all applicable laws regarding thecollection, retention, use, and protection of PersonalInformation. "Personalinformation" in this Agreement means any information that can be used on its own or withother information toidentify, contact, or locate an individual.Such information includes but is not limited to the individual's name,phone number, physical address, email address, credit score, vehicleregistration, and location.
B. General. EachParty represents and warrants to the other Party that: (i) it has the power toenter into this Agreement and toperform its obligations hereunder; (ii) this Agreement has been duly executedand delivered by such Party and is a valid and binding obligation of such Party enforceable in accordancewith its terms; and (iii) the execution, delivery, and performance of this Agreement by such Party will not conflictwith, result in a breach of, or constitute a default under any of the terms,conditions, or provisions of any agreement or arrangement to which the Party isa party or which is binding upon such Party.
C. Virus and Programming Limitations. AIMLOGIC represents and warrantsthat: (i) any Product or Service provided under this Agreement will not, at thetime of installation, containany virus, malware, or any otherdisabling code installed or inserted by AimLogic; and (ii) during the Term,AIMLOGIC will not install or insert any virus,malware, or any other disabling code or take any action which would permit AIMLOGIC or anythird party to interfere with Client's use of Products or Services or Client’s systems.
D. DISCLAIMERS.
1. THE LIMITED WARRANTIESREFERRED TO IN THIS SECTION 10 ARE THE ONLY WARRANTIES, EXPRESS OR IMPLIED,THAT AIMLOGIC MAKES WITH RESPECT TO THE PRODUCTS AND SERVICES. AIMLOGIC SPECIFICALLY DISCLAIMS ALL OTHER IMPLIEDWARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE ANDNON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
2. EXCEPT AS EXPRESSLY SETFORTH HEREIN, THE PRODUCTS AND THE SERVICES ARE PROVIDED "AS-IS" ANDWITH ALL DEFECTS. AIMLOGIC DOES NOT WARRANT THAT THE MATCHEDDATA ELEMENTS ARE ACCURATE OR THAT THE PIXEL INFORMATION WILL RETURNANY MATCHED DATA ELEMENTS.
11. INDEMNIFICATION.
A. GeneralIndemnification. Client and its Affiliates agree to indemnify,hold harmless and defend AIMLOGIC, its officers, directors, employees, agents,and third-party suppliers or affiliates, at Client’s expense, against any andall third-party claims, actions, proceedings, and suits brought againstAIMLOGIC or any of its officers, directors, employees, agents, third-party suppliers or affiliates, andpay all related liabilities, damages, settlements, penalties, fines, cosets orexpenses (including, without limitation, reasonable attorneys’ fees and otherlitigation expenses) incurred by AIMLOGIC or any of its officers, directors,employees, agents, third-party suppliers or affiliates, arising out of relatingto: 1) Client or its affiliate’s breach of any term or condition of thisAgreement, including any representations and warranties; 2) Client or itsaffiliate’s fraudulent or malicious use of the Services; 3) Client or itsaffiliate’s violation of any contractual rights or tort rights of any thirdparty; or 4) Client or its affiliate’s violation of applicable laws, rules, orregulations in connection with the Services.
B. IPInfringement. If an injunction is obtained against Client for the use of Productsor Services by reason of an infringement against a third party's intellectual property rights, or if sucha third-party claim causes Client's use of the Product or Service to bematerially endangered or disrupted (in AIMLOGIC's reasonable discretion),AIMLOGIC will: (i) replace the Product or Service, without additional charge,with an equally suitable, compatible, functionally equivalent, and non-infringing product;(ii) modify the Product or Service to avoid the infringement whilemaintaining the equivalent functionality; (iii) obtain a license for Client to continue to use the Product or Serviceconsistent with the license granted hereunder and pay for any additional fee(s)required for such license; or (iv) if none of the foregoing alternatives arecommercially feasible despite AIMLOGIC's reasonable efforts, AIMLOGIC mayterminate the license and grant a refund to Client of all fees paid under thisAgreement amortized over 30 day period on a straight-line basis. This Section11 is the Client's sole and exclusive remedy in the event of a claim ofinfringement of a third party's intellectual property rights.
12. LIMITATION OF LIABILITY.
A. NEITHER AIMLOGIC, NOR ANY OF ITS THIRD PARTYSUPPLIERS, WILL BE LIABLE TO CLIENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL,CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA, OR LOSSOF GOODWILL), OR PUNITIVE DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OFCONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANYSTATUTORY DUTY, INDEMNITY OR CONTRIBUTION OR OTHERWISE.
B. AIMLOGIC’S MAXIMUM LIABILITY ARISING OUT OFOR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF: 1) ANYFEES PAID TO AIMLOGIC PURSUANT TO THE ORDER THAT IS THE SUBJECT OF THE CLAIM INTHE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM; OR 2) $1,000.00. THE EXISTENCE OF ONE OR MORE CLAIMS DOES NOTINCREASE AIMLOGIC’S LIABILITY.
13. THIRD PARTYREFERRALS.
A. Client, on behalf of itself and its affiliates, hereby: (a) consents to AIMLOGICs and its affiliates’ affiliation with Third-Party Referral Sources as a source of Third Party Referrals; and (b) acknowledges and agrees that AIMLOGIC mayaccept Third-Party Referrals from Third Party Referral Sources, without anyliability or duty to inquire whether such Third Party Referrals violate orresult in a breach by any of the Third Party Referral Sourcesof any Third PartyRestrictions to which any of the Third Party Referral Sourcesare subject. Acceptance by AimLogic of any ThirdParty Referral is expressly conditioned upon and subject to the release by Client or Affiliateof any liability or duty of inquiry by AimLogic to any of the Third PartyReferral Sources or Client or Affiliate regarding possible breaches of anynon-competition or non-solicitation obligations which may be owed by the Third Party ReferralSources arising from or relating to any of the Third Party Referrals(collectively, "Third Party Restrictions").
14. TERM.
The initial term of thisAgreement is sixty days from Client’s execution of the accompanying ServiceOrder (the "Initial Term").
15. TERMINATION.
A. Terminationfor Breach. If either Party believes the other to be in breach of this Agreement,said Party shall issue notice to curethe breach within 30 days of notice of the breach. Such termination shall be effectiveimmediately and automatically upon the expiration of theapplicable 30 day notice periodwithout further notice or action by either Party should the breach not be curedduring the notice timeframe. Termination shall be in addition to any otherremedies that may be available to the non-breaching Party.
B. Termination for Convenience. Parties may choose to cancel this Agreementor any Service Order by providing writtennotice of cancellation. Thenotice will take effect 60 days after receiving notification on the last day ofthe month. Notice of cancellation will be effective on the last day of themonth in which the 60-day noticeends. Example: Notice given 01/22 would be seen as an effective cancellation date of 3/31.
C. Program Adjustment. Depending on the structure of Client's campaign, Client may have the option to reduce its spending withinits campaigns. To initiate such a request, Client must provide writtennotice via email to the AimLogic VP of Operations, at sbiondo@aimlogic.com, and thisrequest must be received at least 30days prior to the first day of the followingmonth for it to take effect.
D. Pause of Services. Any pausing of Client’s Services will act asa termination for convenience pursuant to Section 15(B), except that if Clientreinitiates Services within nine months of Client’spause/termination of Services, AIMLOGIC will apply any amounts incurredpursuant to Section 15(B) as a credit to Client’s continued Services afterreinitiating Services. For example, if Client gives notice of its desire topause/terminate services on May 15 for the month beginning June 1, AIMLOGICwill hold the 60-day cancellation invoiced amounts pursuant to Section 15(B)for June and July as a credit. If Clientreinitiates services by March 1 (i.e.,within nine months of its pause/termination of Services), AIMLOGIC will applythe 60-day cancellation invoiced amounts pursuant to Section 15(B) as a creditfor Client’s ongoing Services. If Clientdoes not reinitiate services within nine months, the 60-day credit will beforfeited.
16. GENERAL TERMS.
A. IndependentContractors. Nothing in this Agreement, and no course of dealing between theParties, shall be construed to create orimply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Partyand the other Party's employees or agents, with the exception to anaccompanying affiliates agreement. Neither AIMLOGIC nor Client has the authorityto bind the other, incur any liability, or otherwise act on behalfof the other. Each Party shall be solelyresponsible for payment of itsemployees' salaries (including withholding of income taxes and socialsecurity), worker compensation, and all other employment benefits.
B. Assignment.Except as set forth herein, no Client may assign this Agreement or the obligations contained herein, nor maythat Client delegate its duties except upon receipt of the other Party'swritten approval. Only AIMLOGIC may, however, without such prior written consent,assign and delegate this Agreement to: (i) such Party's Affiliate; (ii) asuccessor resulting from a sale of all or substantially all such Party'sassets; or (iii) a successor resulting from a reorganization (including inbankruptcy) or a merger with another entity.
C. Notices. Unlessotherwise agreed to by the Parties,all notices shall be deemed effective when received and made in writing by either (i) registeredmail, (ii) certified mail, return receiptrequested, (iii) overnight mail, or (iv) email, addressed to the Party to benotified at the following address or to such other address as such Party shallspecify by like notice hereunder:
SB Cap. Inc.
4944 Cass Street
Suite 910
San Diego, CA 92109
invoice@aimlogic.com
Either Party, bywritten notice to the other pursuant to this Section 15(C) may change itsaddress or designees for receiving such notices.
D. Force Majeure. NeitherParty shall be liable hereunder for any failure or delay in the performance of its obligations under this Agreement if such failureor delay is onAccount of causes beyond its control, includinglabor disputes, civil commotion,war, fires, floods, inclementweather, governmental regulations or controls, casualty, government authority,strikes, or acts of God, in which event thenon-performing Party shallbe excused from its obligations for the period of the delay and fora reasonable time thereafter (Force MajeureEvent"). Each Party shall immediately notify the other party of theoccurrence of such Force Majeure Event (describing the circumstances causing suchfailure or delay of performance to a reasonable level ofdetail and giving an estimate of when performance willrecommence and shall perform (or recommence performing) its obligations as soonas, and to the extent, reasonably possible, including through the use ofalternative sources, workarounds, and plans. Each Party should use reasonableefforts to notify the other Party of the occurrence of such an event withinthree (3) business days of its occurrence.
E. Arbitration; Governing Law;Venue. Anyclaim, dispute, or controversy of whatever nature (“Claim”) arising out of orrelating to this Agreement or Client’s use of Products or Services shall beresolved by final and binding arbitration. The arbitration shall be conducted by and submitted to a singlearbitrator (“Arbitrator”) selected from and administered by the San Diego,California office of JAMS in accordance with its then-existing ComprehensiveArbitration Rules & Procedures. Thearbitration hearing shall be held in San Diego, California. This Agreement shall be governed by andconstrued under the laws of the state of California, consistent with the FederalArbitration Act, without reference to its conflict of law principles. The Arbitrator shall be authorized to awardcompensatory damages, but shall NOT be authorized to award non-economicdamages, such as for emotional distress, or pain and suffering or punitivedamages. Each party shall bear its ownattorneys’ fees and costs arising out of arbitration, and shall pay an equalshare of the fees and costs of the Arbitrator and JAMS. Judgment on the award may be entered by anycourt of competent jurisdiction in California. By agreeing to this arbitration provision, the Parties understandthat they are waiving certain rights and protections which may otherwise beavailable if a Claim were determined by litigation in court, including, withoutlimitation, the right to seek or obtain certain types of damages precluded bythis arbitration provision, the right to a jury trial, certain rights ofappeal, the right to bring a claim as a class member in any purported class orrepresentative proceeding, and the right to invoke formal rules of procedureand evidence.
F. Survival. The provisions of this Agreement which by their sense and context, shouldsurvive any termination of expiration of thisAgreement, including, without limitation, Sections 4(C), 5, 7, 8, 10, 11, 12,and 15 shall so survive.
G. Authorized Signatories. It is agreedand warranted by Client that the individual signingthis Agreement on behalf of Clientis authorized to execute this Agreement. No further proof of authorizationshall be required.
H. Consent to Agreement. Clientacknowledges that signing the accompanying Service Order(s) constitutes consentto this Agreement, including agreement to all terms and conditions set forth herein.
I. Severability. If any provisionor portion of this Agreement shall be held by a court of competent jurisdiction to be illegal,invalid, or unenforceable, the remaining provisions or portions shallremain in full force and effect.
J. Third-Party Beneficiaries. No third partiesshall have any right to enforceany provision of this Agreement, even if it isindirectly benefited by it.
K. Counterparts. This Agreement may be executedin one or more counterparts, each of which will be deemed to be an original,but all of which together will constitute one and the same instrument, withoutthe necessity of production of the others.
L. Entire Agreement; Modification; Waiver. This Agreementis the entire Agreement betweenthe Parties with respect to the subject matter and supersedes any prioragreement or communications between the Parties, whether written or oral. ThisAgreement may be modified only by a written amendment signed by an authorizedrepresentative of Client on the one hand, and Scott Biondo of AIMLOGIC on theother hand. No waiver of any term or right in this Agreement shall be effectiveunless in writing, signed by Scott Biondo. Thefailure of eitherParty to enforceany provision of this Agreement shall not be construedas a waiver or modification of such provision orimpairment of its right to enforce such provision thereafter.
.png)
.svg)
.svg)
