This Agreement is presented to You on the first login. By clicking « I Agree », you affirm that you are of legal age, have read this Agreement and understood it. You also affirm that you are fully able and competent to enter into the terms, conditions, obligations, affirmations, restrictions, representations and warranties set forth by this Agreement, and to abide by and comply with said Agreement. Should you refuse one, multiples or all terms of this Agreement, you are hereby compelled to terminate the Services.
Additional Modules mean access to additional Services modules that may be licensed by Customer for an additional fee.
Authorized User or User means an end user for whom Customer has paid the appropriate access fees and has assigned an identification number for access by such employee or third party vendor providing services on behalf of Customer from a specified computer device to the Services for Customer’s own internal business purposes. If and when an Authorized User no longer has access to the Services, Customer may allow an alternate Authorized User to assume the initial Authorized User’s identification number and access the Services in place of the initial Authorized User.
Basic Support conditions designate the attached document describing support resources availability outlined in the Basic Support Document.
CMS (Content management system) means Adways’ web-accessed CMS called « Adways Studio », located at the following URL or any successor site: Document1 https://users.adways.com.
Documentation means the Authorized User text, video and/or graphical documentation, user guides and login instructions, related to the Services and made available by Adways to Customer in printed format or in electronic format available on the CMS which is intended by Adways for use as Authorized User operating manuals and instructions to facilitate the use of the Services.
Order Form document produced by Adways and presented to the Customer, testifying the Customer’s subscription to the Service.
Services or Service means
· Access to Adways Studio and dashboard via a login interface https://users.adways.com
· Number of customer and manager accounts according to the Order Form
· Transfer of Customer Data via Amazon Web Services
· a CMS (the back office) and interactive videos (the front office); made available through the CMS by Adways to and its Authorized Users. (Services may also include Additional Modules to the extent ordered by Customer to Adways).
Service Level Agreement means the CMS availability and maintenance Services outlined in the SLA Document
Third part applications designates a selection of software compatible with the Services and edited by other software providers.
Subject to the terms and conditions of this Agreement, Adways hereby makes the purchased Services available to Customer and its Authorized Users during the subscription term.
2.2 Service Scope and Restrictions.
(a) Unless otherwise specified in the applicable Agreement, (i) Services are purchased as subscriptions and may be accessed by no more than the specified number of Authorized Users in the Order Form, (ii) additional Authorized User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional Authorized User subscriptions are added, and (iii) the added Authorized User subscriptions will end on the same date as the then-existing subscriptions. Authorized User subscriptions are for designated end users only and cannot be shared or used by more than one Authorized User but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Services.
(b) As of the Effective Date, Adways uses Amazon web service servers for the purpose of maintaining administrative, physical, and technical safeguards to protect the security, confidentiality and integrity of the Customer data, if any, stored on the CMS. Amazon web service’s related terms and obligations can be found below and on the CMS. Adways will not (a) modify any Customer data, (b) disclose Customer’s data except if legally or judicially compelled subject to the confidentiality terms contained herein or as expressly permitted in writing by Customer, or (c) access or use Customer’s data for any purpose except to provide the Services and prevent or address service or technical problems, or at Customer’s request in connection with Customer support matters.
Customer has no right to assign, transfer, sublicense or otherwise distribute the Services to any third party other than as expressly permitted under this Agreement. Customer shall not, and shall not permit anyone, to (a) modify, disassemble, decompile or reverse engineer or otherwise attempt to determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services or any portion of the Services nor permit any third party to do so; or (b) copy the Services.
2.3 Proprietary Rights. Customer shall not delete or alter the copyright, trademark, and other proprietary rights notices of Adways and its logo appearing in connection with the Services, Documentation and CMS. Customer shall not acquire any rights in the Services, the Documentation and CMS, except as expressly provided in this Agreement. Customer will not (a) make the Services available to anyone other than Authorized Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit malicious code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein or used therewith, or (f) attempt to gain unauthorized access to the Services, the CMS or their related systems or networks.
2.4 Adways Intellectual Property. Adways or its contractors has and will retain all right, title, and interest in and to the Services, the CMS and the Documentation and methodologies, equipment or processes used by Adways to provide the Services to Customer, including, without limitation, all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, the « Adways Intellectual Property »). No portion of such Adways Intellectual Property shall be deemed a « work for hire » and Adways will not be restricted in any way with respect thereto. To the extent that, by operation of law or otherwise, rights to such Adways Intellectual Property do not vest in Adways, Customer agrees to assign to Adways all of Customer’s rights, title, and interest in and to such Adways Intellectual Property.
Customer acknowledges that Adways is in the business of providing Services and that Adways shall have the right to use Adways Intellectual Property in connection with providing Services to third parties. Adways will grant to Customer a nonexclusive, nontransferable license during the term of this Agreement to use the Adways Intellectual Property solely in connection with its business on the same terms and conditions under which Adways licenses the Services to Customer hereunder. Notwithstanding anything to the contrary in this Agreement, Adways will not be prohibited or restricted at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services or otherwise during the Term, not uniquely applicable to Customer.
2.5 Ownership of Customer Data, Customer Applications, Customer Content and Customer Intellectual Property.Customer or its contractors have and will retain all right, title, and interest in and to and shall be the sole owner of all Customer applications, Customer data, Customer software and Customer intellectual property as well as any Customer content uploaded by Customer through the Services and included in the videos, as well as anything created by Customer (or any third party on Customer’s behalf) through the Services and/or the CMS including interactive features created within the content (all, the « Customer IP ») that Customer may store in or otherwise convert through or in connection with the Services or otherwise use in connection with this Agreement; provided that Adways may use and disclose Customer data derived from Customer’s and its Authorized Users’ use of the CMS and Services (i) as necessary for Adways to perform its obligations under this Agreement, and (ii) as part of its business operations, to use anonymous aggregate statistics about Services for internal reporting and marketing, (iii) if required by court order, law or governmental agency. Customer hereby grants to Adways a royalty-free license during the term to use, copy, reproduce, display, and transmit the Customer IP solely as required to provide the Services and related support Services, if any, contemplated by this Agreement.
2.6 Responsibility regarding Uploaded Content.
i. In order to function according to its design, Adways’ CMS requires the upload of Content (Uploaded Content) by the Authorized User. This Content can be produced by the Customer or by a Third Party. In any case, by uploading Content, the User affirms and/or warrants that he has or owns necessary licenses, rights, consents, permissions, patents, trademarks, copyright or any other form of propriety right to use the Content. The Customer also warrants that he is allowed to use the personal data that can be found in the Content he uses. Usage of said content includes but is not restricted to : uploading (to Adways CMS), modifying, enriching (with Adways CMS), hosting (on Adways’ Servers and/or the Customer own servers and/or Third Party’s servers used by the Customer) and broadcasting. The Customer is responsible for the Content he uploads, its accuracy, integrity reliability, right of use thereof and legality. The Customer hereby agrees that he will not be using and/or enriching and/or hosting on Adways servers and/or broadcasting Content for which the Customer does not have the appropriate proprietary right and/or written consent of the original owner. Furthermore, Adways cannot be held responsible for the consequence of using and/or enriching and/or hosting and/or broadcasting such Content, or Content that is deemed inappropriate, or violates any law. Adways reserves the right to delete any content hosted on its server, should they be deemed to violate the present Agreement.
ii. Adways guaranties that the Customer retains all ownership rights of Content uploaded, used, modified, enriched, hosted and broadcasted using Adways Services as they are defined in the present Agreement. The Customer grants Adways a worldwide, non-exclusive, irrevocable, transferable, royalty-free, perpetual license to use any published Content posted and/or published by the Customer for marketing purposes including but not limited to : use on Adways Website, sales material, publicity effort. This license includes any kind of use or reproduction through any known or future technology, including any future applications and through any media channel.
3. PAYMENT TERMS
3.1 Service Fees.
(a) Except for a free trial, Customer shall pay a fee for the right to use the Service that may be based : (i) on the number of videos published (« License Fee ») (ii) or on a performance index based on the number of impression or click to action (« Performance Fee ») (iii) or a mix of both. The modality is defined between Adways and the Customer at the moment of purchase on an Order Form. Adways will invoice Customer separately for License Fees, on a yearly fees and Performance Fees, at the end of the campaign unless otherwise stated on the Order Form. Customer shall pay all invoices within thirty (30) days of receipt.
(b) Customer shall pay for Professional Services at the rates set forth in the applicable Statement of Work. Payment terms shall be set forth in the Statement of Work. All invoices shall be paid within thirty (30) days of receipt.
(c) Payments shall be made in dollars (USD) or euros (EUR) according to Customer place of signature at Adways’ address (or to an account specified by Adways), in full without set-off, counterclaim or deduction. Past due amounts shall, upon five (5) days written notice to Customer of non-payment, bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. Customer agrees to reimburse Adways for all costs (including reasonable attorneys’ fees) incurred by Adways in collecting late payments.
(d) In addition to its other rights and remedies, Adways may suspend Customer’s access to the Service in the event that Customer is not current in payment of fees owed to Adways. Adways shall reinstate Customer’s access upon receipt of all past due amounts.
(e) The Fee does not include applicable transaction taxes. If Service Provider is required to pay any federal, state, county, local or value added tax (VAT), Sales and Use Tax, Goods and Services Tax (GST) or similar applicable taxes by law, based on the Services provided, Service Provider shall ensure that Fees are invoiced to Company in accordance with applicable rules so as to allow Company to reclaim such value-added and/or similar tax from the appropriate government authority.
4. CUSTOMER RESPONSIBILITIES
4.1 Customer’s Responsibilities and Authorized Users’ Access to the Services.
(a) Customer’s rights to use the Services and Documentation is limited to those expressly granted in this Agreement and shall terminate automatically upon the termination or expiration of this Agreement for any reason. Adways reserves all rights not expressly granted to Customer under this Agreement.
(b) Customer is solely responsible for maintenance of the security of all passwords and other access protocols required in order to access the CMS and all Customer data and other Customer IP loaded or otherwise used through the CMS. Customer has the sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of Customer IP. Customer is solely responsible for the development, content, and use of Customer data and other content.
(c) Customer acknowledges that transmission of data over the Internet involves unique transmission risks that cannot be fully secure against access by third parties. Customer further acknowledges that Adways recommends use of various security options available with the Services, but that Adways has no duty or responsibility to ensure Customer complies with its recommendations. Customer agrees that Adways shall not be responsible for any loss, alteration or corruption of Customer IP that occurs during or as a result of converting Customer data or other Customer IP or in transmitting Customer IP via the Internet. Except to the extent of Adways’ negligence or willful misconduct, Customer will be solely responsible for any loss, alteration or damage to Customer IP, or its system environment, including, without limitation, to the extent caused by (i) the actions of Customer’s employees, consultants or agents to whom Customer has provided access to the Services and system environment; or (ii) the conduct of any third party that has accessed the Services using Customer’s passwords through no fault of Adways.
(d). Customer acknowledges and agrees that Customer will be responsible for all acts and omissions of Authorized Users, and any act or omission by such Authorized Users which, if undertaken by Customer, would constitute a breach of this Agreement. Customer shall undertake reasonable efforts to make all such Authorized Users aware of the provisions of this Agreement as applicable to such Authorized Users’ use of the Services and CMS, and shall cause such Authorized Users to comply with such provisions. Customer will be responsible for the accuracy, quality and legality of its data and its acquisition and use the Services only in accordance with the Documentation and applicable laws and government regulations.
(e) Customer agrees not to use the CMS and Services in any manner not legal under the laws of the jurisdictions of which it is subject for or purposes unrelated to this Agreement. Customer agrees not to (i) knowingly use the CMS and Services to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind, including, but not limited to Customer IP, (ii) send or store material and/or Customer IP containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iii) do any act that may interfere with or disrupt the integrity or performance of the CMS or the data contained therein; or (iv) attempt, whether directly or by any Authorized User or other Customer employee, contractor or agent to gain unauthorized access to the CMS, Services or related systems or networks. Customer will indemnify Adways for all damages resulting from such responsibilities.
4.2 Monitoring by Customer. Customer shall regularly monitor the use of the Services by its Authorized Users to ensure that the Services are being used in accordance with the terms of this Agreement and shall immediately terminate access and use by any person who violates the terms of this Agreement. Adways reserves the right to terminate access to any individual in the event of such violation, in addition to its other remedies. Customer shall remove user access as appropriate when such users no longer need access.
4.3 Authorized Support Contacts. Customer shall appoint the number of authorized support contacts as communicated in writing to Adways for all matters related to the Services, Authorized Users and access to the CMS.
4.4 Third Party Legal Terms. The use of the CMS may imply connections and interoperability with Third Party applications, such as video providers and other web applications embeddable within the CMS. Such use of Third Party Applications is subject to agreement to their legal terms, the Customer acknowledges such legal terms.
5. REPRESENTATIONS AND WARRANTIES
5.1 Mutual Representations, Warranties and Covenants. Each party represents, warrants and covenants that: (a) it has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach of any other Agreement to which it is a party or by which any of its assets or properties is bound or affected, and (c) this Agreement has been duly executed and delivered by such party and constitutes the valid and binding Agreement of such party, enforceable against such party in accordance with its terms.
5.2 Adways Representation and Warranty; Disclaimer of Warranties. Adways represents, warrants and covenants to Customer that the Services and the CMS, and Customer’s use of the Services and CMS as allowed hereunder, do not and will not infringe upon the rights of any third party. The warranties set forth in this section 5 are in lieu of, and Adways disclaims, all other warranties, express, implied or statutory, including but not limited to those of merchantability, non-infringement, accuracy, error-free or uninterrupted service, and fitness for a particular purpose. Except as explicitly provided herein, the services and other services, if any, are provided « as is. »
6.1 Definition. « Confidential Information » means: (a) all Services featured in the Services; (b) Documentation; and (c) all information, whether in written, verbal, graphic, video, electronic or any other form, of Adways or Customer, that is identified at the time of disclosure or observation as being confidential or proprietary, or is otherwise reasonably identifiable as confidential information of the disclosing party. Confidential Information shall include (i) all information relating to Adways’ or Customer’s current or future product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, Customer employee data, research, development or know-how and (ii) Customer data hosted on the CMS or used through the Services.
6.2 Exclusions. Confidential Information does not include information that: (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (e) is disclosed with the prior written approval of the disclosing party.
6.3 Use and Disclosure Restrictions. Neither party shall use the other party’s Confidential Information except for internal purposes related to the performance of this Agreement, and neither party shall disclose such Confidential Information to any third party except to officers, directors, employees, agents, consultants and advisors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees and consultants). However, each party may disclose Confidential Information of the other party: (a) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (b) on a confidential basis to legal or financial advisors who agree to be bound by this Section 7. Within seven (7) days of the disclosing party’s request, the receiving party shall cease to use and shall return all originals, copies, summaries, notes and extracts of the Confidential Information, to the extent such materials are in the control or possession of the receiving party.
6.4 The parties agree and acknowledge that any violation or threatened violation of the confidentiality provisions herein will cause irreparable injury to the disclosing party and that, in addition to any other remedies that may available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages or to post be a bond. In the event of litigation, the prevailing party may recover court costs and reasonable attorney’s fees.
7.1 Adways Indemnity. Adways agrees to indemnify, defend and hold Customer, its employees, stockholders, affiliates and officers harmless from any cost, liability or loss relating to (i) any breach of Adways’ representations, warranties, obligations or responsibilities under this Agreement and (ii) any claim by a third party that the Services, the CMS and/or the Documentation or Customer’s use of the Services, the CMS and/or the Documentation under this Agreement and accessed and used within the scope of this Agreement, infringes a third party’s intellectual property rights(an « Indemnity Claim« ), provided that Customer: (a) notifies Adways in writing within thirty (30) days of the date that Customer becomes aware of the existence of the Indemnity Claim (provided that the failure to promptly notify shall only relieve Adways of its obligation to the extent it can demonstrate material prejudice from such failure) and (b) in the case of a third party claim: (i) grant Adways sole control of the defense and settlement of the Indemnity Claim (provided that prior written consent of Customer to any settlement shall be required); and (ii) provides Adways, at Adways’s expense, with all reasonable assistance, information and authority required for the defense and settlement of the Indemnity Claim.
7.2 Remedies; Injunctions. In addition to the foregoing indemnification obligation, if Customer’s use of the Services hereunder is, or in Adways’s opinion is likely to be, enjoined as an infringement or misappropriation of any third party intellectual property right under the laws of the United States, Customer’s sole and exclusive remedy, and Adways’s entire liability shall be, at Adways’s sole option and expense, either: (a) to procure for Customer the right to continue to use the Services under the terms of this Agreement; (b) replacement or modification of the Services so that it is non-infringing and substantially equivalent in function to the enjoined Services; or, if neither of the foregoing options is commercially reasonable, or (c) terminate this Agreement in whole or in part.
7.3 Exclusions. Notwithstanding the terms of Section 7.1, Adways will have no liability for any claim of any kind relating to the Services to the extent the Services are not accessed and/or used in accordance with Adways instruction or this Agreement and/or it results from the combination, operation or use by Customer of the Services with equipment, devices or software or Services not supplied or approved by Adways to the extent such a claim would have been avoided if the Services was not accessed or used in such combination.
7.4 Sole Remedy. The foregoing provisions of this section 7 set forth Adways’s sole and exclusive obligations, and Customer’s sole and exclusive remedies, with respect to infringement of intellectual property rights of any kind.
7.5 Customer Indemnity. Customer agrees to indemnify, defend and hold Adways, its employees, stockholders, affiliates and officers harmless from any cost, liability or loss relating to (i) any breach of Customer’s representations, warranties, obligations or responsibilities under this Agreement, (ii) any claim by any third party that any Customer IP infringes a third party’s intellectual property rights; (iii) any claim that the Customer IP or use in connection with the Services violates applicable laws and regulations; (iv) any claim related to Customer’s misuse of the Services or use outside the United States of America; provided that Adways: (a) notifies Customer in writing within thirty (30) days of the date that Adways becomes aware of the existence of any such breach (provided that the failure to promptly notify shall only relieve Customer of its obligation to the extent it can demonstrate material prejudice from such failure); and (b) in the case of a third party claim: (i) grants Customer sole control of the defense and settlement of the claim; and (ii) provides Customer with all reasonable assistance, information and authority required for the defense and settlement of the claim.
8. LIMITATION OF LIABILITY
8.1 Total Liability. Except with respect to Adways’ indemnification obligation or breach of confidentiality obligations, Adways’ cumulative liability to Customer, from all causes of action and all theories of liability under this agreement shall be limited to and shall not exceed the amounts paid or required to be paid to Adways by customer pursuant to this agreement for licenses granted for the six (6) month period immediately preceding the date of the accrual of the claim.
8.2 Exclusion of Damages. Except for a breach of section 2 or a party’s indemnification obligation pursuant to section 7, in no event shall either party be liable to the other party for any indirect, incidental, consequential or punitive damages (including loss of use, data, business or profits) arising out of or in connection with this agreement or the use or performance of the hosting environment, services or services, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), product liability or otherwise, and whether or not either party has been advised of the possibility of such loss or damage.
8.3 Basis of Bargain. The parties expressly acknowledge and agree that Adways has set its prices and entered into this Agreement in reliance upon the limitations of liability specified in this Agreement, which allocate the risk between Adways and Customer.
9.1 Termination for Breach.. Each party may terminate this Agreement if the other party breaches any material termof this Agreement and fails to cure such breach within thirty (30) days after receiving written notice, except in the case of Customer’s failure to pay fees when due, which must be cured within ten (10) business days after receipt of written notice from Adways.
9.2 Termination for Insolvency. Adways may terminate this Agreement if Customer becomes the subject of any voluntary or involuntary petition in bankruptcy or any voluntary or involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. Upon the occurrence of any of the foregoing events, Customer shall provide Adways with written notice of such petition and/or proceeding within ten (10) days of the filing of such petition (the » Notice Period« ). In the event Customer fails to provide Adways with such notice within the Notice Period regardless of Customer’s knowledge of such petition and/or proceeding, this Agreement shall terminate automatically and immediately upon expiration of such Notice Period.
9.3 Effect of Termination. Upon any termination of this Agreement: (i) all licenses and rights granted hereunder shall terminate and Adways shall no longer provide any additional Services and/or Documentation to Customer; provided that notwithstanding any expiration or earlier termination, any content created by Customer through the Services shall remain intact and non-compromised and shall continue to be used by Customer with all interactive features for a period of three (3) months without additional cost to Customer and, thereafter for as long as Customer elects hosting by Adways in exchange of additional fees, (ii) each party shall promptly return to the other party or, at the other party’s request, destroy any Confidential Information of the other party, in all forms and types of media, and provide the other party with an officer’s written certification, certifying to such party’s compliance with the foregoing and (iii) Adways shall immediately cease all use of any Customer IP. Upon receipt of all undisputed fees due through the date of expiration or termination, Adways shall return to Customer text files of all Customer data in its possession, if any. Customer acknowledges that if Adways receives Customer data after the expiration or termination of this Agreement, Adways shall destroy such data in a secure manner.
9.4 Non exclusive Remedy. Termination of this Agreement by either party shall be a nonexclusive remedy for breach and shall be without prejudice to any other right or remedy of such party.
9.5 Survival. The rights and obligations of the parties that by their sense and context are intended to survive termination shall so survive, including those contained in Sections 2 (Services), 3 (Payment Terms), 5.2 (Disclaimer of Warranties), 6 (Confidentiality), 7 (Indemnification; Limitation of Liability), 8 ( Limitation of Liability), 9.3 (Effect of Termination) and 10 (General) of this Agreement.
10.1 No Assignment. Neither party may assign or otherwise transfer this Agreement, in whole or in part, without the other party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent shall be null and void.
10.2 Governing Law; No Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflict of law provisions. The international convention for the sale of goods shall not apply to this Agreement. For purposes of all claims brought under this agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in New York, France. Each of the parties hereto hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or related to this agreement or the transactions contemplated hereby.
10.3 U.S Government end users. Not applicable
10.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of this Agreement shall be enforced to the maximum extent permissible and the other provisions of this Agreement shall remain in full force and effect.
10.5 Waiver. Neither party shall by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the other party of any of the provisions of this Agreement. Further, the waiver by either party of a particular breach of this Agreement by the other party shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions of this Agreement.
10.6 Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered by hand delivery, overnight delivery by a courier that has the ability to track deliveries and confirm receipts or by deposit in the U.S. mail as certified mail, return receipt requested, postage prepaid, and addressed to the party at the address noted above (unless by such notice a different address shall have been designated in writing).
10.7 Force Majeure. Neither party shall be responsible for any failure or delay in its performance under this Agreement (except payment obligations) due to causes beyond its reasonable control that makes performance commercially impractical (« Force majeure Event « ), including:
1. Circumstances beyond a party ‘s reasonable control such as war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus, or denial of service attacks;
2. Major telecommunications or Internet failure outside of a party ‘s control;
3. Acts or omissions of Customer, its employees, or its agents, including, without limitation, custom scripting or coding, any negligence, willful misconduct, or use of the Services outside the scope of this Agreement; and
4. scheduled maintenance conducted between the hours of 9 PM and 9 AM in the Eastern Standard Time Zone and Customer is notified at least twenty-four (24) hours in advance of such scheduled maintenance.
10.8 Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement shall not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party shall have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
10.9 Publicity and Reference. With the exception of Customer existing published content, Adways may not use Customer’s name and/or marks for any purpose (including without limitation, marketing purposes) without the prior written consent of Customer in each instance (consent via email is acceptable).
10.10 Entire Agreement. References to the « Agreement » include all schedules and attachments. This Agreement contains the complete understanding and Agreement of the parties and supersedes all prior or contemporaneous Agreements or understandings, oral or written, relating to the subject matter herein.
10.11 Authority. Each party executing this Agreement on behalf of any entity executing this Agreement hereby represents and warrants that he, she or it is duly authorized and has full authority to execute and deliver this Agreement.
10.12 Headings. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section.
10.14 Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which will be considered an original, but all of which together will constitute a single instrument. Notwithstanding the foregoing, this Agreement will not be effective until signed by both parties hereto. Signatures provided by facsimile or in PDF format shall be deemed enforceable and shall be given the same force and effect as the original.