Platform Terms and Conditions

Effective as of April 2016

The following Platform Terms and Conditions (“Platform Terms”) are a part of the Principal Terms Form (which, together, constitute the “Agreement”) and shall apply to the named entity on the Principal Terms Form (the “Client”) that requests the Services and/or uses the Gimbal Platform (as each such term is defined below and in the Principal Terms Form) as made available by Gimbal, Inc. The Agreement also includes by this reference, the online Terms of Use (“TOU”) and the Gimbal Privacy Policy1. Definitions.

  • 1.1. “Advertisements” means the advertising creative (including, without limitation, product or service descriptions, trade names, trademarks, advertising copy, offer copy, designs, images, graphics, audio, video, or other information or materials) provided by or received from Client or its representatives (or Advertisers) to be displayed, transmitted, or published through an advertisement(s) by the TMM Platform or a Media Publisher, and whether related to products, services, or programs of Client or an Advertiser.
    1.2. “Advertisers” means Client’s customers and clients.
    1.3. “Affiliates” means with respect to any entity or person, separate entities or persons controlling, controlled by or under common control with such entity or person.
    1.4. “Authorized User(s)” means up to the permitted number (per the Principal Terms Form) of Client’s designated employee(s) given access by Client to the TMM Platform.
    1.5. “Channel” means the vertical, industry, or audience segment identified in the Principal Terms Form.
    1.6. “Advertiser Data” means the records or data received or collected by TMM from Client (or its Advertiser(s)) that includes PII or other marketing or usage data on a customer(s) of Client (or its Advertiser(s)) that TMM uses to enrich and profile.
    1.7. “Documentation” means the user documentation and any other marketing, operating, development, or reference materials associated with the Services or TMM Platform, as supplied or provided by TMM to Client, as well as any Updates thereto.
    1.8. “Program Data” means TMM match or analysis data or records about consumer(s) leveraging TMM proprietary data or derived data as compiled by TMM through the use of its proprietary modeling, aggregating, scoring, optimizing, or overlaying.
    1.9. “Media Publisher” means the third party publisher(s), transmitter, or operator retained by TMM (on behalf of Client) to facilitate the publication, delivery, transmission, or placement of the Advertisements.
    1.10. “Performance Reports” means data regarding the performance of a campaign gathered as a result of publication, delivery, transmission, or placement of an Advertisement pursuant to an Order and shall include, without limitation, data related to online delivery through the TMM Platform of an Advertisement.
    1.11. “Personally Identifiable Information” or “PII” means data that is used by a Party to identify or contact a person, including name, address, telephone number, or e-mail address, and also includes any other data, such as, but not limited to, anonymous identifiers, demographic or behavioral data, when such data is linked to PII and identifies a person to the Party holding such data.
    1.12. “Response Data” means the data regarding response information, order, sales, shipping, and customer information received, generated, or processed in response to an Advertisement(s).
    1.13. “Services” means, in addition to providing access to and use of the TMM Platform, the particular advertising or data matching, analytical, cross-device linking, monetization, consulting, management, or placement services (as further specified on the Principal Terms Form) to be provided by TMM pursuant to this Agreement.
    1.14. “TMM Platform” means the TMM’s data and technology driven solution, as made available by TMM, together with any Updates.
    1.15. “Territory” means the countries or regions identified in the Principal Terms Form.
    1.16. “Updates” mean any updates, enhancements, improvements, additions, or modifications that TMM would make available to its customers.

2. Services. During the Term of this Agreement and so long as Client pays the applicable Revenue (as set forth in the Principal Terms Form), fees, and/or costs, TMM will provide the Services to Client and/or its Advertisers. TMM shall use commercially reasonable efforts to provide the Services and TMM Platform, subject to required and emergency maintenance, failure of third-party networks and communications facilities, and events of force majeure. Further details for Service implementation or the campaign for an Advertisement(s) shall be set forth in one or more orders as mutually agreed upon by the Parties (each an “Order” to be attached to the Principal Terms Form. To the extent Client requests from TMM additional support, training, or other programming work relating to the TMM Platform that is otherwise beyond TMM’s stated obligations in this Agreement or in a current Order, TMM may provide such support, training, or programming work, in its sole discretion, at its standard time and materials rates or such other pricing and terms as agreed to by the Parties in writing and subject further to the terms of this Agreement and a new Order reflecting such mutually agreed upon pricing and terms. Unless otherwise agreed to by the Parties, Client acknowledges and agrees that all Services and/or Performance Reports and/or Program Data shall be deemed accepted upon receipt. The Parties also acknowledge and agree that (a) each Order shall be deemed to incorporate the terms and conditions of this Agreement, (b) the terms and conditions of this Agreement shall prevail over any inconsistent terms and conditions set forth in any Order, and (c) the termination of this Agreement shall terminate any and all outstanding Orders. As applicable to the Services, TMM will use good faith efforts to have Advertisements placed in accordance with the applicable Order. Any actions by Client to adjust or make changes using the TMM Platform, or other changes/adjustments made by Client in writing, shall automatically be incorporated into the Order upon being accepted by TMM. But, unless otherwise agreed to by the Parties and so long as TMM complies with the terms and conditions of this Agreement, TMM has the right to (i) control and direct the means, manner, and method by which the Services are performed, (ii) utilize subcontractors, Affiliates, or agents to perform the Services, (iii) perform the Services at any place or location and at such time as TMM may determine reasonable, and (iv) have the right to perform services for others during the Term of this Agreement. TMM will comply with all applicable laws, rules, and regulations in its performance under this Agreement. TMM shall post and make accessible its Privacy Policy from its website home page that reflects its current data use and privacy practices, and complies with applicable U.S. laws and regulations. TMM shall maintain Advertiser Data and Response Data (received from Client) as the Confidential Information of Client, and shall afford it confidential treatment in accordance with this Agreement.
3. Advertisements. TMM reserves the right, in its sole discretion, to refuse or delay Services for any Advertisement that (a) does not conform to the guidelines set forth in this Agreement and/or the applicable Order; (b) does not conform with TMM’s technical or formatting specifications provided to Client; (c) is not received in a timely manner; or (d) is otherwise deemed to be inappropriate per the terms of this Agreement, which such inappropriate grounds shall include, without limitation, content regarding use of alcohol, tobacco or illegal substances; nudity, sex, pornography, or adult-oriented content; expletives or inappropriate language; content promoting illegal or unethical activity, racism, hate, “spam,” mail fraud, pyramid schemes, credit-repair or advice not permitted under law; content that is libelous, defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful; content which includes diversionary links, exit “pops” or any other element which distracts from the primary Advertisement content; content which may bring TMM and/or its Affiliates negative publicity, or any other content deemed inappropriate by TMM. Moreover, TMM reserves the right to reject or cancel Services for any Advertisement that violates the obligations of Client under this Agreement or any further editorial guidelines in an Order or which TMM, in its sole discretion, believes is lacking a “value-add” to end-users or where the Advertiser already has a business relationship with TMM. In accordance with this Agreement, a decision by TMM to not publish or not place any requested Advertisement does not constitute a breach of this Agreement nor otherwise entitle Client or Advertiser to any legal remedy, provided an appropriate refund will be made for any prepayment by Client for the applicable portion of the Campaign that was not displayed. TMM agrees to not make any modifications to the substantive content of Advertisement(s) without Client’s approval and mutual agreement on the extent of the changes to be made by TMM at Client’s direction. TMM’s use of Advertisements does not alter or waive Client’s responsibilities and liabilities set forth in this Agreement regarding an Advertisement, the Advertiser Data, or the Response Data.

4. Client Obligations.

  • 4.1. Compliance with Applicable Laws. Client will comply with all applicable laws, rules, and regulations in its performance under this Agreement.
  • 4.2. Privacy.
  • 4.2.1. Data. In accordance with the Principal Terms Form, Client may provide Advertiser Data or Response Data to TMM in order for TMM to provide the Services. The Advertiser Data or Response Data as collected, provided, or made available in connection with this Agreement shall be in compliance with the self-regulatory guidelines promulgated by the Digital Advertising Alliance (DAA) and the Network Advertising Initiative (NAI). All Advertiser Data or Response Data provided by Client to TMM must be on individual consumers that have an address within the Territory.
    4.2.2. Privacy Policy. Client shall have and maintain, and shall require its Advertisers (utilizing the Services) to have and maintain, an easily accessible privacy policy, the content of which shall be consistent with the TMM Privacy Policy (with respect to Advertiser Data or Response Data and the Services to be provided by TMM), shall comply with all applicable laws and regulations, and which shall be linked conspicuously from the Client’s (and/or its Advertiser(s)’s) website home page(s) and/or application(s)) with a link that contains the word “Privacy.” Client and its Advertiser(s) shall fully comply with its respective privacy policy. Client’s (and its Advertiser(s)’s) shall maintain a link in the footer of each web page or application it controls where data is collected for this Service that is separate and apart from the privacy policy link. This link shall be labeled either “AdChoices” or “Ad Privacy” and link directly to the section of a privacy policy that (a) discloses how such entity collects, uses, and shares PII; (b) discloses that advertising partners may collect or receive information from users of the website and/or application(s) how such data may be used, (c) discloses that cross-device data collection is taking place and the purpose of cross-device data collection; (d) disclose a means for individuals to opt-out (in both browsers and mobile applications) of data collection activities that may be conducted under this Agreement, (e) accounts generally for collection, receipt, and use by TMM of any data (including PII) under this Agreement and with respect to the Service, and (f) contain the following language, or language substantially similar thereto (namely, “Our advertising partners may use information about your visits to this and other websites and/or mobile applications across your various devices, in order to associate devices and browsers together and provide content and advertisements about goods and services of interest to you across those various devices. If you would like more information about this practice, the companies participating in the Digital Advertising Alliance Self-Regulatory program, and choices with respect to these participating companies, please: (1) visit http://www.aboutads.info/choices/; and (2) download the DAA “AppChoices” application, available for iOS and Android, to learn how to opt out of having your information collected in mobile apps.”).
    4.2.3. Opt-Outs. In addition to the obligations set forth above, Client shall disclose to registered visitors of Client’s (and its Advertiser(s)’s) website(s) that registration data (including email addresses) will be shared with select third party partners for advertising purposes, and that some of these partners may combine this information with other data for such purposes. Client (and its Advertiser(s)) will acquire such individual’s permission for such use of data. If Client provides PII to TMM as a part of the Program Data, Advertiser Data or Response Data, Client (or its Advertiser(s)) shall make a link to an opt out (as designated by TMM) with respect to such transfers available from the disclosure described in this section.
  • 4.3. Cooperation. In addition to any other obligations, representations, covenants, or responsibilities stated herein or in an Order, Client acknowledges and agrees that successful implementation of this Agreement and the Services, as made available under this Agreement, shall require Client’s reasonable and timely cooperation and that any failure by Client to fulfill its obligations may cause delays in the fulfillment by TMM of its obligations under this Agreement. Accordingly, on a reasonable basis, Client shall furnish TMM with any relevant information that pertains to the Services in a timely manner, including, without limitation, all relevant Advertiser Data and/or Response Data to each Advertisement that is the subject of the Services in the form and format reasonably requested by TMM. Client shall also reasonably cooperate with any designated TMM team member(s) in the process of information gathering, design, implementation, integration, testing, or delivery of the Services. In addition, Client will engage in meetings as reasonably necessary, and communicate with TMM team member(s) as reasonably needed by TMM, whether verbally and/or in writing. Client acknowledges and agrees that TMM will be relieved of its obligations under this Agreement to the extent that they are affected by Client’s failure to fulfill its obligations under this Agreement.
  • 4.4. Authorized Users.
  • 4.4.1. Usage Requirements. As between the parties, Client is solely responsible for all actions or omissions of its Authorized Users and the activities and adjustments made by Authorized Users via the TMM Platform. As a part of complying with this Agreement, use of the TMM Platform by Authorized Users is and shall be governed by TMM’s TOU and Privacy Policy. TMM may set other access requirements and require the use of login or registration credentials in order to access the TMM Platform. Client shall treat any such login or registration information as the Confidential Information of TMM. Client also agrees to undertake the following: (a) use the TMM Platform only for Client’s or its Advertisers own marketing purposes, (b) provide TMM with reasonable assistance in the implementation and on-going maintenance of the TMM Platform by Authorized Users, (c) take such steps as reasonably necessary to protect the TMM Platform from unauthorized use, reproduction, copying, or third party access, including, using commercially reasonable efforts to maintain the confidentiality and limited use of user I.D.’s and passwords for Authorized Users, and (d) keep TMM reasonably informed as to any problems encountered with the TMM Platform. If Client learns that any Authorized User has breached any provision of this Agreement or the TOU, Client will immediately notify TMM and will also provide such reasonable assistance to TMM as it reasonably requests in enforcing this Agreement or the TOU. TMM reserves the right to suspend or terminate Client’s or any Authorized User’s access to the TMM Platform if Client or an Authorized User fails to comply with this Agreement or otherwise uses the TMM Platform in a manner that exceeds good faith use or constitutes an excessive usage burden on TMM until such time as such failure or unauthorized use has been cured or TMM terminates this Agreement for breach. In such event, TMM shall be relieved of its obligations under this Agreement during the period of suspension and shall not be found to be in breach of this Agreement for such relief.
    4.4.2. Access Requirements. Client shall be responsible for obtaining, paying for, and providing any necessary facilities, software, equipment, hardware, or communication services necessary to access the TMM Platform. In addition, Client may not (a) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, create derivative work of, alter, license, sublicense, market, or commercially exploit the TMM Platform or TMM’s Performance Reports and/or Program Data (or any part thereof) in any manner not expressly permitted by this Agreement; (b) erase or remove any proprietary or intellectual property notice contained in or on the TMM Platform or TMM’s Performance Reports and/or Program Data; or (c) use or permit use of the TMM Platform or TMM’s Performance Reports and/or Program Data (or any part thereof) for or by any person or entity (including Client’s Affiliates and Advertisers) other than Authorized Users.
    4.4.3. Data Management. Client will use commercially reasonable efforts to prevent unauthorized access, use, alteration, abuse, theft, or misappropriation of TMM Performance Reports and/or Program Data and shall hold the TMM Performance Reports and/or Program Data in confidence as the Confidential Information of TMM in accordance with this Agreement. Notwithstanding any other term or condition in this Agreement, Client shall (a) provide access to the TMM Performance Reports and/or Program Data only to its employees, contractors and agents to whom access is required and only to the extent necessary for proper use hereunder; and (b) ensure that the TMM Performance Reports and/or Program Data resides only at computer facilities of Client or its authorized contractor or agent, and that any use of TMM Performance Reports and/or Program Data with respect to a future Advertisement must be for solicitation and ad copy by Client or its Advertisers that are in good taste and integrity in compliance with all applicable laws and regulations. Client further agrees that it will not use or disclose TMM Performance Reports and/or Program Data for any purpose that would cause the following laws, as amended from time to time, or similar, laws, to apply to TMM: (i) Fair Credit Reporting Act, (ii) Children’s Online Privacy Protection Act, (iii) Health Insurance Portability and Accountability Act, (iv) Financial Service Modernization Act (a.k.a. the Gramm-Leach-Bliley Act), (v) Fair and Accurate Credit Transactions Act. TMM may impose restrictions on the use of the TMM Performance Reports and/or Program Data to manage the integrity thereof and TMM’s access to its data sources in light of issues concerning privacy, good taste, and other consumer related issues. Company shall strictly comply with all data use restrictions on the TMM Performance Reports and/or Program Data now or hereafter imposed by TMM upon written notice.
  • 4.5. Delivery.
  • 4.5.1. Data. For certain Services, Client may contribute Advertiser Data or Response Data to the TMM Platform. With respect to any Advertiser Data or Response Data, Client will not provide TMM with any data segments associated with an individual’s status as a person under the age of eighteen (18). Client will also not provide TMM with any data segments constituting “sensitive data” under the DAA Self-Regulatory Principles, including without limitation bank account or social security number. In using the Services, Client will supply TMM with PII and/or identifier(s) that represent specific individuals and specific households.
  • 4.5.2. Advertisements. Client will provide the Advertisements in the form and format requested by TMM.
  • 4.5.3. Rights Clearance. Client must obtain (or have its Advertiser(s) obtain) at its (or their) sole expense, and provide TMM with reasonable proof thereof (when requested by TMM), all necessary consents, rights, permissions, and clearances required for TMM to use an Advertisement(s) and any Advertiser Data or Response Data for the purposes contemplated by this Agreement, including any necessary consents or licenses from third parties or individual consumers.
  • 4.5.4. Accuracy. As between TMM and Client, Client acknowledges and agrees that Client is solely responsible for ensuring the accuracy, timeliness, or completeness of any Advertisement, Advertiser Record, or Response Data.
  • 4.5.5. Removal & Refusal. License acknowledges and agrees that TMM shall not be obligated to incorporate into the TMM Platform any information or materials whose technical requirements cannot be integrated within the parameters designated by TMM. TMM also reserves the right to refuse any information or materials that do not arrive in a timely fashion (per stated TMM guidelines for delivery of materials (if applicable)). If TMM learns that any Client content, information, or materials are the subject of any claim by a third party of a violation of any right, TMM may remove or ask Client to remove immediately such content, information, or materials. If Client fails to comply or objects to such compliance, TMM may terminate this Agreement immediately.
  • 4.6. Advertisement Placement. Client understands and agrees that TMM displays Advertisements using a variety of data points collected from TMM. In the event TMM incurs any costs or expenses or establishes any credit line in accordance with an Order prior to the date of termination or expiration of this Agreement, Client shall remain solely responsible for the payment of such costs, expenses, or remaining credit balance. Each Order shall otherwise set forth any mutually agreed upon parameters for placement of any Advertisement(s) through the TMM Platform or with a Media Publisher(s). Upon request, Client agrees to provide written confirmation of TMM’s agency relationship with respect to the placement of an Advertisement(s) with a Media Publisher(s). Moreover, Client acknowledges and agrees that TMM may require Client to establish a direct relationship with a particular Media Publisher to facilitate payment of amounts owed to or establishment of a credit line with such Media Publisher.
  • 4.7. White Labeling. If Client is permitted to engage in White Labeling per the Principal Terms Form, the following additional obligations shall apply to its performance under this Agreement.
  • 4.7.1. Client Marketing Efforts. Client shall, at its own expense, use commercially reasonable efforts to actively promote, market, and sell the TMM Platform to its Advertisers and in any event will devote at least the same level of resources to marketing the TMM Platform as it devotes to the other products or services that it markets. TMM shall provide Client with Documentation for this purpose. Client agrees to conduct its marketing, promotion, and sales activities in a manner that avoids deceptive, misleading, or unethical practices that are or might be detrimental to TMM or the public. Client may not modify the Documentation. Client also agrees not to include any representations, warranties or guarantees, whether express or implied, to Advertisers or others with respect to the specifications, features, or capabilities of the TMM Platform (or the Services or TMM Performance Reports and/or Program Data) other than those stated in writing in the Documentation or other materials provided by TMM.
  • 4.7.2. Ordering. For each order with an Advertiser, Client shall only use an order form, API, or Documentation promulgated by and acceptable to TMM. Any order or agreement with TMM is subject to acceptance by TMM. Further, Client will otherwise be responsible for managing the relationship with, and facilitating the provision of Services to, each Advertiser. Client will enter into an agreement for the Services directly with each Advertiser (“Resale Agreement”). Each Resale Agreement must require and provide for separate invoicing for fees and charges due and payable for the Services. In no event may Client enter into a Resale Agreement that establishes an expectation, right or obligation that TMM, whether directly or indirectly, will provide Services, training, customer support, particular service levels or technical support to any Advertiser or other person or entity without the prior written approval of TMM. Client will be solely responsible for setting the fees and for invoicing and collecting payment from Advertisers.
  • 5. Payment Terms.
  • 5.1. Invoicing and Payment. Unless otherwise set forth in the Principal Terms Form, TMM shall invoice Client monthly for all fees or expenses and Client shall make payment monthly for any amounts owed under this Agreement. Without set-off, withholding, or negative pledge, Client will pay any and all amounts owed to TMM within thirty (30) of the date of the invoice from TMM or on a monthly basis within thirty (30) days of the end of such calendar month (i.e., within thirty (30) days of the last day of the prior month). Client will be solely responsible for paying the amounts due under this Agreement to TMM in a timely manner, regardless of whether Client has collected such amounts from its Advertiser(s). Payment shall be forwarded to the address or account for TMM set forth in the Principal Terms Form or as otherwise designated by TMM. Payments shall be made in U.S. Dollars, free of any currency control or other restrictions, by wire transfer. Client understands and agrees that timely payment of all amounts shall be and shall remain a pre-condition to TMM providing the Services under this Agreement. Accordingly, in the event that Client is fifteen (15) or more days late in making any payment due to TMM, (a) TMM may at its sole discretion suspend further performance of Services under this Agreement; (b) Client agrees to pay interest on any past due amounts at the rate of one and one half percent (1.5%) (or the maximum amount permitted by law, whichever is greater) per month until paid in full; and/or (c) TMM has the right, in its sole discretion, to terminate this Agreement in accordance with its terms and all amounts due to TMM shall immediately become due and payable in full. In addition, Client shall be liable to TMM for any collection costs (including attorneys’ fees) or any costs incurred or commitments made by TMM per an Order with respect to any action taken with or by TMM or a Media Publisher on Client’s behalf.
  • 5.2. Revenue Share. TMM shall be entitled to and shall be paid a percentage of the Revenue as set forth in the Principal Terms Form. Unless otherwise agreed, the computation of any Revenue amounts owed under this Agreement shall be performed respectively by TMM or Client on the last day of each calendar month during the Term. The impressions, click-throughs and other end user actions counted by the ad server(s) and/or systems utilized by TMM as a part of the TMM Platform shall be used as the sole basis for calculating the Revenue, and Client shall otherwise be responsible for communicating such measurements to Advertiser as being the official, definitive count of record.
  • 5.3. Renewal Period & Additional Licensing Fees. TMM may generally increase any fee in its sole commercial discretion after any designated Initial Service Period set forth in the Principal Terms Form. In the event Client exceeds the scope of the license granted above, and in addition to any other rights or remedies available to TMM, Client shall pay the then-standard fees (as designated by TMM) for the excessive use of the TMM Platform and such fees shall become immediately due and payable to TMM. Client, however, may add other Authorized Users or obtain additional (permitted) license rights from TMM upon TMM’s prior written consent, which it may withhold in its sole discretion, so long as Client pays any required additional fees as specified by TMM.
  • 5.4. Expenses. Except as otherwise agreed to by the Parties, each Party to this Agreement will bear its respective fees and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement and any ancillary negotiations or discussions to be had by the Parties in connection with this Agreement.
  • 5.5. Taxes. Payments are exclusive of all applicable taxes. Client shall be responsible for and shall pay all taxes, duties and levies of any kind imposed by any governmental entity with respect to the transactions contemplated under this Agreement, including interest and penalties thereon (exclusive of taxes on TMM’s net income). Client shall provide copies of any and all exemption certificates to TMM if Client is entitled to any exemption. All payments due to TMM under this Agreement shall be made without any deduction or withholding, unless such deduction or withholding is required by any applicable law of any relevant governmental revenue authority then in effect.
  • 5.6. Accounting. Each Party will keep current, complete, and accurate records regarding its obligations under this Agreement as required for the calculation of amounts owed for the Services and/or the calculation of Revenue, and will otherwise use commercial best efforts to compile such records to enable full and timely calculation of amounts owed to TMM. Without limitation of the foregoing and with respect to any permitted white labeling under this Agreement, Client will maintain separate invoicing for any fees owed for the Services.
  • 5.7. Reporting. With each payment for Revenue owed to TMM, Client will provide a corresponding report reflecting the computation of the Revenue.
  • 5.8. Audit. Subject to the treatment of any disclosed information as the Confidential Information of the disclosing Party, each Party agrees to allow the other Party through its designated representative (as described below) to review, audit, and inspect a Party’s records and reports required by this Agreement in order to confirm the accuracy of the amounts owed by each respective Party under this Agreement. Any such audit shall be conducted no more than once each year during the Term of this Agreement and the year immediately following the date of termination or expiration. Any audit shall be conducted during regular business hours at a Party’s designated facilities and only of the relevant records and reports related to the calculation of the amounts owed under this Agreement to the other Party on no less than ten (10) days prior written notice and in manner that minimally disrupts a Party’s normal business operations. Any audit shall be conducted by an independent certified public accountant selected by each Party and acceptable to the other Party, with such acceptance not to be unreasonably withheld. If either Party and its representative’s review, audit, or inspection reveals any underpayments, then the Party at fault shall within thirty (30) days after notice thereof pay the other Party the full amount of the underpayment and any accrued late fees as specified herein, running from the date payments should have been made had the corresponding payment reports been accurate. If either Party’s underpayment for any monthly period exceeds ten percent (10%) of total amount due for such period, then Party owing the late payment shall also reimburse the other Party for all reasonable costs of the audit.
  • 6. Term & Termination.
  • 6.1. Term. Effective as of the Effective Date of the Principal Terms Form, this Agreement shall continue for the duration of the Initial Service Period set forth in the Principal Terms Form and shall thereafter renew automatically for successive twenty-four (24) month periods (upon expiration of Initial Service Period), unless either Party provides the other Party notice of its intent to not renew this Agreement within thirty (30) days of the end of the Initial Service Period or the then-current twenty-four (24) month renewal period. The Initial Service Period and any and all renewal periods shall together be the “Term” of this Agreement.
  • 6.2. Termination. Notwithstanding the foregoing, this Agreement may be terminated earlier by written notice from one Party to the other Party in the following circumstances: (a) if the other Party breaches or fails to observe or perform any material term or condition of this Agreement and does not cure such breach or failure within thirty (30) days after written demand or (b) as permitted by applicable bankruptcy law, if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws (or if a petition in bankruptcy is filed against such other Party and is not dismissed within forty-five (45) days after the filing), or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party.
  • 6.3. Termination of an Order. Client may terminate an Order for convenience upon providing TMM with ninety (90) days notice. Termination of an Order for convenience under circumstances that do not give rise to termination of this Agreement (above) shall not result in termination of this Agreement.
    6.4. Effect of Termination. Client agrees that it shall remain responsible for the payment of any amounts owed for any Services or the TMM Platform up to the date of termination of this Agreement or any Order. Moreover, within thirty (30) days of the termination of this Agreement or of an individual Order, Client shall pay to TMM all amounts, including any late fees or related charges or costs, due for or related to the Services or TMM Platform. Upon termination or expiration of this Agreement or an Order, TMM shall cease all work under this Agreement or such Order. Upon termination or expiration of this Agreement for any reason, all rights and licenses granted hereunder to Client and any Authorized User shall immediately terminate and Client shall immediately cease all use of TMM’s property or materials, including, without limitation, the TMM Platform. Immediately upon the termination of this Agreement, each Party shall return to the other Party all tangible copies of the other Party’s Confidential Information then in such Party’s possession or control, which, shall include, without limitation, the return or destruction by Client of Documentation or Performance Reports and/or Program Data and the destruction by TMM of any separate records identifying any PII contained within the Advertiser Data or Response Data, although TMM shall be entitled to retain the Response Data in aggregate form in accordance with this Agreement. If requested by TMM, Client shall provide written confirmation of its compliance with the obligations set forth in this section. Except as expressly set forth herein, neither Party shall incur any liability whatsoever for any damage, loss, or expenses of any kind suffered or incurred by the other (or for any compensation to the other) arising from or incident to any termination or cancellation of this Agreement by such Party, which complies with the terms of this Agreement whether or not such Party is aware of any such damage, loss, or expenses. The provisions of Sections 1, 5, 6.4, 7, 8, 9, 10.3.3, 10.3.4, 10.4, 10.5, 11, and 12 shall survive termination or expiration of this Agreement.
  • 7. Representations and Warranties.

    • 7.1. Client Representations & Warranties. Client warrants and represents that (a) Client has the corporate power and authority to enter into this Agreement and perform all of its obligations hereunder; (b) it is the owner of or is licensed to use and make available to TMM for use in accordance with this Agreement the entire content and subject matter contained in the Advertisements, Advertiser Data, or Response Data including, without limitation, (i) the names, likeness, signature, voice and/or pictures of persons; (ii) any copyright material, trademarks, service marks, logos, and/or depictions of goods, services or packaging; and (iii) any testimonials or endorsements contained in any Advertisement submitted to TMM; (c) the Advertisements shall not contain any adware, spyware, malware, viruses, Trojan horses or other malicious components; (d) no Advertisement is targeted to children under the age of thirteen (13) and/or offers products or services that are illegal for minors to buy, possess, or participate in, and Advertiser and Client shall at all times be compliant with COPPA (“Children’s Online Privacy Protection Act”); (e) Client’s signatory to this Agreement has the authority and has been duly authorized to execute this Agreement on behalf of Client; (f) Client’s execution, delivery, and performance of this Agreement does not and will not violate any agreements between Client and any other party; (g) Client shall comply with all applicable laws and controlling authority with respect to Client’s performance under this Agreement; (h) the Advertisements are factually accurate and do not contain any content that is false, misleading, defamatory, offensive, criminal, fraudulent, deceptive, or unlawful or which misrepresents, ridicules or attacks an individual or group on the basis of age, color, national origin, race, religion, sex, sexual orientation or handicap; or (i) the Advertiser Data, Response Data and Advertisements (including TMM’s use thereof under this Agreement) shall not violate any applicable law (including, without limitation and as applicable, the CAN-SPAM Act, the Video Privacy Protection Act, the Fair Credit Reporting Act, the Gramm-Leach-Bliley Act, or the Health Insurance Portability and Accountability Act) or controlling authority or any rights of any third party (including, but not limited to, any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or contractual right or federal or state laws governing email).
    • 7.2. TMM Representations & Warranties. TMM warrants and represents that (a) it shall comply with all applicable laws and controlling authority with respect to its performance of the Services under this Agreement; (b) TMM’s signatory to this Agreement has the authority and has been duly authorized to execute this Agreement on behalf of TMM; and (c) it has the corporate power and authority to enter into this Agreement and perform all of its obligations hereunder.
    • 7.3. Disclaimer. EXCEPT FOR THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TMM EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF INTERFERENCE WITH ENJOYMENT OF INFORMATION, NON-INFRINGEMENT, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. MOREOVER, CLIENT ACKNOWLEDGES AND AGREES THAT TMM DOES NOT WARRANT THAT THE TMM PLATFORM WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET CLIENT’S REQUIREMENTS OR MEET ANY LEGAL OR CERTIFICATION STANDARD. FURTHER, CLIENT UNDERSTANDS AND AGREES THAT INVENTORY OR PLACEMENT ON OR THROUGH THE TMM PLATFORM IS SUBJECT TO AVAILABILITY AND IS NOT GUARANTEED, AND CLIENT SHALL NOT REPRESENT TO ANY ADVERTISER OR PROSPECTIVE ADVERTISER THAT ANY INVENTORY OR AD PLACEMENT ON THE TMM PLATFORM IS GUARANTEED. TMM ALSO DOES NOT WARRANT OR GUARANTEE CONVERSION RATES, PAY-UP RATES, RESPONSE RATES OR ABILITY TO CONVERT THE RESPONSES INTO SALES OR OTHER ACTIONS. IN ADDITION, TMM DOES NOT WARRANT OR GUARANTEE THE PROFILE OR DEMOGRAPHICS OF ANY END USER OR RESPONDENT. MOREOVER, TMM DOES NOT GUARANTEE TO MATCH COLORS, TEXT, PHOTO IMAGE OR SCREEN DESIGN. IF THIS DISCLAIMER OF WARRANTY IS HELD TO BE UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION IN ANY MANNER, THEN ALL EXPRESS AND/OR IMPLIED WARRANTIES MANDATED BY SUCH COURT SHALL BE LIMITED IN DURATION TO A PERIOD OF THIRTY (30) DAYS FROM THE COMMENCEMENT OF THE INITIAL LICENSE PERIOD FOR THE TMM PLATFORM AND NO WARRANTIES SHALL APPLY AFTER THIS 30-DAY PERIOD.

    8. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY OR THEIR RESPECTIVE PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES UNDER THIS AGREEMENT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, DATA OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AS BETWEEN THE PARTIES HERETO, CLIENT SHALL RETAIN AT ALL TIMES EDITORIAL CONTROL OVER AND SHALL REMAIN OTHERWISE RESPONSIBLE FOR THE CONTENT OF ANY ADVERTISEMENT AND TMM SHALL HAVE NO LIABILITY FOR SUCH EDITORIAL CONTROL OR CONTENT. TMM SHALL ALSO NOT BE RESPONSIBLE FOR ANY ADVERTISEMENTS NOT RECEIVED IN A TIMELY MANNER, AND CLIENT ACKNOWLEDGES THAT ANY DELAYS IN PROVIDING MATERIALS OR INFORMATION FOR AN ADVERTISEMENT(S) MAY DELAY THE FULFILLMENT OF TMM’S OBLIGATIONS UNDER THIS AGREEMENT. IN ADDITION, TMM SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACTIONS OR INACTIONS OF A MEDIA PUBLISHER OR RESPONSIBLE FOR ANY CONTRACTUAL RELATIONSHIP BETWEEN CLIENT AND A THIRD PARTY, INCLUDING ANY ADVERTISER. CLIENT ACKNOWLEDGES AND AGREES THAT TMM SHALL ALSO NOT BE A PARTY TO ANY TRANSACTION BETWEEN ANY PERSON OR ENTITY PURCHASING ANY PRODUCT OR SERVICE FROM CLIENT OR AN ADVERTISER(S). ALL ASPECTS OF ORDERS FOR THE PRODUCTS OR SERVICES FROM CLIENT (OR ITS ADVERTISER(S)), INCLUDING, BUT NOT LIMITED TO, PRICES, PURCHASE TERMS, PAYMENT TERMS, BILLING, TRANSACTION FULFILLMENT, CUSTOMER SERVICE AND WARRANTIES, SHALL BE SOLELY THE RESPONSIBILITY OF CLIENT (OR ITS ADVERTISER(S)) AND BETWEEN SUCH ADVERTISER AND CLIENT. WITHOUT LIMITING ANY OF THE FOREGIONG OR THE OTHER TERMS AND CONDITIONS IN THIS AGREEMENT, TMM’S AGGREGATE LIABILITY FOR ANY CLAIMS, DAMAGE, OR LIABILITY ARISING OUT OF OR RESULTING FROM THIS AGREEMENT, OR TMM’S PERFORMANCE UNDER OR FULFILLMENT OF ANY DUTIES OR OBLIGATIONS PER THIS AGREEMENT, SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO TMM UNDER THE APPLICABLE ORDER DURING THE [SIX (6)] MONTHS PRIOR TO THE DATE THE APPLICABLE CAUSE OF ACTION AROSE AND TMM’S INDEMNIFICATION OBLIGATIONS SHALL NOT EXCEED $1,000,000 FOR ANY AND ALL CLAIMS BROUGHT AGAINST COMPANY.

    9. Indemnification.

    • 9.1. Client Indemnification. Client agrees to indemnify, defend and hold harmless TMM, its parent and Affiliates, and their respective officers, directors, agents, employees, successors and assigns from and against any and all damages, loss, liability, subpoena, claim, action and investigation (including any by state, local, federal, or national government official or agency), obligation, judgment deficiency, penalty, fine, expenses, fees, including reasonable attorneys’ fees, due to or arising out of (a) Client’s breach of this Agreement, including, without limitation, any Order(s); (b) actions or omissions taken by TMM on behalf of Client pursuant to an Order; (c) the content or subject matter of the Advertisements, Advertiser Data, or Response Data provided by Client (including, but not limited to, (i) allegations that such content or subject matter violates the rights of a third party, is defamatory or obscene, or violates applicable law, rule, regulation or controlling authority, or (ii) allegations that an Advertiser Data or the Response Data violates privacy rights or principles; or (d) any products or services supplied, provided or advertised by Client or its Advertisers.
    • 9.2. TMM Indemnification. TMM agrees to indemnify, defend and hold harmless Client and its successors and assigns from and against any and all damages, loss, liability, claim, action (including any by state, local, federal, or national government official or TMM), obligation, judgment deficiency, penalty, fine, expenses, fees, including reasonable attorneys’ fees, due to or arising out of TMM’s breach of this Agreement. In no event, however, shall TMM’s indemnification obligations extend to or cover any claim, loss or damages caused or alleged to be caused by information, products or services supplied, provided or advertised by Client.
    • 9.3. Indemnification Procedures. The indemnified Party will promptly notify the indemnifying Party of all claims (subject to the indemnification responsibilities herein) of which it becomes aware (provided that a failure or delay in providing such notice will not relieve the indemnifying Party’s obligations except to the extent such Party is prejudiced by such failure or delay), and will: (a) provide reasonable cooperation to the indemnifying Party at the indemnifying Party’s expense in connection with the defense or settlement of all claims; and (b) be entitled to participate at its own expense in the defense of all claims. The indemnified Party agrees that the indemnifying Party will have sole and exclusive control over the defense and settlement of all claims; provided, however, the indemnifying Party will not acquiesce to any judgment or enter into any settlement, either of which imposes any obligation or liability on the indemnified Party without its prior written consent. The foregoing consent requirement, however, shall not be required for any settlement that involves only the payment of monetary damages by the indemnifying Party and in which such event does not otherwise prejudice or affect the indemnified Party.

    10. Proprietary Rights.

    • 10.1. Appointment. If White Labeling is permitted by the Principal Terms Form, TMM hereby appoints Client, on a nonexclusive, nontransferable, and non-sublicenseable basis, to act as its channel partner for the TMM Platform, and Client hereby accepts such appointment. Client may sell, license, and market the TMM Platform to Advertisers through the Channel in the Territory.
    • 10.2. License Grants from TMM.
      • 10.2.1. TMM Platform Access and Use. Subject to the terms and conditions of this Agreement, TMM hereby grants to Client during the Term of this Agreement, and Client hereby accepts from TMM, a non-exclusive right and license to access and use, and allow Authorized Users to access and use, the TMM Platform for the purpose of facilitating the distribution and display of Advertisements on behalf of Client or its Advertisers.
      • 10.2.2. TMM Performance Reports and/or Program Data. So long as Client pays TMM the required fees and costs set forth herein, TMM hereby grants to Client during the Term the right to use for internal business purposes the TMM Performance Reports and/or Program Data and any other report deliverables provided by TMM to Client under this Agreement only to the extent necessary to analyze and measure the effectiveness of online advertising campaigns.
      • 10.2.3. White Labeling. Subject to the terms and conditions of this Agreement, and for the purposes of providing Advertisers with access to the TMM Platform if White Labeling is permitted by the Principal Terms Form, TMM hereby grants to Client, during the Term of this Agreement, and Client hereby accepts a nonexclusive right and license to market and promote the TMM Platform to Advertisers in the Channel and the Territory using the trademarks owned by Client. In connection with the foregoing, TMM will cooperate with Client to make available a white labeled version of the TMM Platform that will be branded with Client’s designated trademarks (the “White-Labeled Service”).
    • 10.3. License Grants from Client.
      • 10.3.1. License to Website Data. Client hereby grants to TMM a worldwide, royalty-free license to allow TMM access to visitor information from Client’s (or its Advertiser(s)’s) digital location sites (e.g., web sites or mobile applications) owned or operated by Client (or its Advertiser(s)) that are identified in an Order.
      • 10.3.2. License to Advertisements. During the Term of this Agreement, Client hereby grants to TMM a worldwide, royalty-free license to use, reproduce, publicly display, create derivative works from or modify, reformat, transmit, and distribute the Advertisements through the TMM Platform and in connection with TMM’s performance of the Services under this Agreement.
      • 10.3.3. License to Advertiser Data. During the Term of this Agreement, Client hereby grants to TMM a worldwide, royalty-free license to use Advertiser Data as necessary for TMM to provide the Services under this Agreement. Specifically, in order to permit TMM to perform the Services, Client will send or provide access to TMM a file containing particular PII. In addition, Client hereby grants to TMM a worldwide, royalty free, irrevocable, and perpetual license to use the Advertiser Data for any TMM internal or business purpose (including as a part of TMM’s predictive modeling database, for internal data modeling and analysis, and for use in TMM’s products and services for any third party) so long as TMM does not use the Advertiser Data in a manner that identifies Client or an Advertiser.
      • 10.3.4. License to Response Data. During the Term of this Agreement, Client hereby grants to TMM a worldwide, royalty-free license to access, collect, add to, and use Response Data as necessary for TMM to provide the Services under this Agreement. In addition, Client hereby grants to TMM a worldwide, royalty free, irrevocable, and perpetual license to use the Response Data for any TMM internal or business purpose in aggregate form (including as a part of TMM’s predictive modeling database, for internal data modeling and analysis, and for use in TMM’s products and services for any third party).
    • 10.4. Ownership.
      • 10.4.1. Personally Identifiable Information. All PII included in any Advertiser Data or Response Data that is provided by Client to TMM shall be, as between TMM and Client, the property of Client or its Advertiser(s), subject to the license rights in the Advertiser Data and Response Data as set forth herein. All PII collected by TMM in connection with operation of the TMM Platform and independent of the Advertiser Data or Response Data shall become the property of TMM.
      • 10.4.2. TMM’s Rights. The Agreement is otherwise not a sale of the TMM Platform nor is it a transfer or assignment of any intellectual property or other proprietary rights in the TMM Platform. Except for the rights expressly granted herein and subject to Client’s rights in the Advertiser Data or Response Data and Advertisement(s), TMM or its licensors shall own and otherwise reserve all other rights, including, without limitation, in and to the Performance Reports and/or Program Data and TMM Platform, and any other intellectual property, content, materials, algorithms, methods, and other intangible or technology assets used or made available by TMM, including any enhancements, modifications, design changes, or improvements to the foregoing, including any resulting from suggestions from Client, without payment of additional consideration. Accordingly, and without limitation of the foregoing, Client will not (and will not attempt to) (a) use the TMM Platform or TMM Performance Reports and/or Program Data (or any other report or TMM data) to replicate any element of the Services or allow or enable any third party to do so, (b) make the TMM Performance Reports and/or Program Data or any other report available to any person or entity that provides products or services that compete with the Services, (c) allow any third party or person, other than Client’s Authorized Users, to access, review, or use the Services (including the TMM Platform), TMM Performance Reports and/or Program Data or any other report or data provided by TMM, or (d) alter, modify, copy, translate, reverse engineer, decompile or disassemble the Services or any portion(s) thereof or creating derivative works therefrom, tamper with or using any workaround to interfere with the proper working of the Services or any security measure used by the Services, or (e) attempt to derive any data from, or otherwise reverse engineer the TMM Performance Reports and/or Program Data it receives from TMM in in order to derive personal information from, or merge personal information with, any non-personal information provided by TMM.
      • 10.4.3. Client’s Rights. Except for the rights expressly granted herein, Client shall own and otherwise reserves all other rights, including, without limitation, all rights in and to its Advertisement(s), Advertiser Data, and Response Data.
      • 10.4.4. Third-Party Materials. All third party content, software, and materials are subject to the terms and licenses prescribed by the third party vendors.
    • 10.5. Advertising and Permissible References. TMM may refer to Client by name and to the existence of this Agreement as required by applicable law. Moreover, Client agrees that TMM may use Client’s name to disclose that it is a client of and channel partner for TMM’s products and services in TMM’s advertising, promotion, and similar public disclosures with respect to the Services; provided, however, that such advertising, promotion, or similar public disclosures shall not indicate that Client in any way endorses TMM’s products, without prior written permission of Client. Except for the foregoing, neither Party shall issue any press release or other public statement regarding the subject matter hereof unless the other Party has previously approved it. Moreover, except for the foregoing, neither Party shall use, without the other Party’s prior written consent, the trade names, logo, trademarks or service marks of the other Party.

    11. Confidentiality.

    • 11.1. Confidential Information. “Confidential Information” means (a) non-public, sensitive, or confidential business or technical information of either Party including, but not limited to, information relating to either Party’s products, services, plans, designs, costs, pricing, payments made or fees payable pursuant to this Agreement, finances, marketing plans, business opportunities, personnel, research, development or know-how; (b) any information designated by either Party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; and (c) the terms of this Agreement or an Order.
    • 11.2. Confidential Treatment. Each Party agrees it will (a) not disclose to any third party or use the Confidential Information disclosed to it by the other Party except in furtherance of each Party’s respective obligations under this Agreement or as otherwise expressly permitted in this Agreement; and (b) take all reasonable measures to maintain the confidentiality of all such Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own Confidential Information and which will limit disclosure and access only to those employees and contractors with a need to know in order to perform each Parties’ respective obligations under this Agreement. Confidential Information does not include information that (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving Party lawfully knew prior to receiving such information from the disclosing Party; (iv) the receiving Party develops independently without use of the disclosing Party’s Confidential Information, or (v) the receiving Party must disclose in accordance with applicable law, provided that the receiving Party gives the disclosing Party notice of such disclosure obligation in order to provide the disclosing Party with an opportunity to limit such disclosure or seek a protective order preventing or minimizing such use or disclosure. Moreover, although TMM will treat all Advertiser Data or Response Data as the Confidential Information of Client, Client acknowledges and agrees that TMM shall be permitted to disclose or use such Advertiser Data or Response Data to the extent it is disclosed in aggregated form and in a manner that does not identify any PII.
    • 11.3. Incidents. In the event of an actual, threatened or suspected breach in the security of Confidential Information in the other Party’s possession, or any of the other party’s data handling and submission obligations and representations, each Party will take those steps reasonably necessary to prevent or halt such activity. Each Party will promptly notify the other party of any actual breaches.

    12. Miscellaneous.

    • 12.1. Notices. All notices and other communications in connection with this Agreement shall be in a writing and shall be sent to the respective Parties at the addresses set forth in this Agreement, or to such other addresses as may be designated by the Parties in writing from time to time in accordance with this section, by registered or certified mail, postage prepaid, or by express courier service, service fee prepaid. All notices shall be deemed received (a) immediately upon delivery, if hand-delivered, (b) five business days after posting, if delivered by mail, or (c) the next business day after delivery by express courier service, if delivered by express courier service. In addition to the foregoing, TMM may provide Client with information about the TMM Platform in electronic form, i.e., via an email address that Client provides or through a website that TMM identifies. Notice in electronic form will be deemed given as of the date of transmission. But, notice of termination may be given in writing only.
    • 12.2. Relationship of Parties. Notwithstanding anything to the contrary herein, the Parties to this Agreement are independent contractors and under no circumstances shall any of the employees of one Party be deemed to be employees of the other Party for any purpose.
    • 12.3. Non-Solicitation. TMM has proprietary relationships with the Media Publishers and others that participate on and through the TMM Platform. With the exception of reasonably documented, pre-existing relationships with direct publishers or networks, or relationships entered into in the ordinary course of Client’s business, during the Term of this Agreement and for a period of six (6) months thereafter, Client agrees not to solicit, induce, recruit or encourage, directly or indirectly, any Media Publisher that Client knows, or has reason to know, is a Media Publisher in the TMM Platform for the purpose of obtaining the placement or hosting of advertising in any form without the express, written consent of TMM. In the event that Client violates this provision, Client shall pay TMM the amount TMM would have earned had the Advertiser used TMM to place the advertisements, as liquidated damages and not as a penalty.
    • 12.4. Governing Law. This Agreement (including all Orders) will be governed by the laws of the State of California. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in the State of California. Accordingly, TMM and Client agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such action or proceeding.
    • 12.5. Dispute Resolution. Prior to either Party commencing any litigation arising out of the performance of this Agreement, the Parties agree to appoint a representative to meet by phone or in person for the purpose of endeavoring to resolve in good faith any disputes between them. If a dispute has not been settled after thirty (30) days of good-faith negotiation, then either Party may commence litigation against the other. Nothing herein, however, shall preclude a Party from seeking at any time emergency injunctive relief in the event of an action or omission by the other Party that is likely to cause irreparable harm to it in the reasonable opinion of the Party seeking the emergency remedy. TMM and Client also agree that all such actions shall be tried by the court sitting without a jury and the Parties hereto hereby irrevocably waive their rights to any such trial by jury. In any action or proceeding to enforce, interpret, or determine the applicability or enforceability of any provision of, this Agreement, or for monetary or other relief as a result of the alleged breach of this Agreement, or otherwise arising from or under this Agreement, the prevailing Party shall be entitled to recover from the other Party its attorneys’ fees and costs incurred in prosecuting or defending such action or proceeding.
    • 12.6. Injunctive Relief. In accordance with the express limitations on liability set forth in this Agreement, each Party reserves the right to seek all remedies available at law and in equity for violations of this Agreement. The Parties agree that any breach of either Party’s obligations regarding the other Party’s Confidential Information or intellectual property or non-solicitation, would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a Party’s obligations of the foregoing without the necessity of showing any actual damage or posting a bond, the aggrieved Party will be entitled to seek injunctive relief, in addition to any other remedies to which it may be entitled.
    • 12.7. Non-Assignability. Client may not assign this Agreement (including, without limitation, by operation of law) without TMM’s prior written consent, and any assignment in violation with this provision is void. All terms and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted transferees, successors, and assigns.
    • 12.8. Force Majeure. Except for obligations to make payment hereunder, neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by events or conditions beyond that Party’s reasonable control including, without limitation, acts of God, any governmental body or failure of software or equipment of third parties.
    • 12.9. Severability & Waiver. If any part of this Agreement is held to be unenforceable by a court of competent jurisdiction, the unenforceable part shall be given effect to the greatest extent possible and the remainder shall remain in full force and effect. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provisions of this Agreement. Failure to insist on strict compliance with the terms and conditions of this Agreement shall not be considered a waiver of such terms and conditions, which either Party may enforce at a later time.
    • 12.10. Entire Agreement. This Agreement, which shall include each Order, shall be deemed to have been drafted equally by both Parties and constitutes the entire agreement between Client and TMM with respect to the subject matter hereof and supersedes all prior agreements, proposals, representations, claims, or communications, whether written or oral, regarding the subject matter contained herein. Unless otherwise agreed to herein, no modification of this Agreement shall be binding unless in writing and signed by Client and TMM.
    • 12.11. Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.