Introduction. Welcome to Simplecast. We’ve tried to keep things as clear as possible, but if you have any questions, please email us at email@example.com or firstname.lastname@example.org. We’re here to help. Audios Ventures, Inc., d/b/a Simplecast (“Simplecast”) is a podcast syndication and analytics platform (“Platform”) that offers groups or individuals a medium for publishing digital audio and digital content owned and/or created by them.
Definitions. The following are certain definitions used in this Agreement:
- “API Content” means the data and content provided or otherwise made available by or on behalf of Simplecast through or in connection with the Simplecast API.
- “Customer Content” means any content or data provided by or on behalf of Customer in connection with using the Simplecast Services.
- “Customer Service” means Customer’s service, website and/or application used in connection with the Simplecast API, including without limitation the Customer Application (defined below).
- “End User Content” means any content or data provided by or on behalf of Customer End Users in connection with using the Simplecast Services.
- “Law” means any and all applicable laws, treaties, conventions, directives, regulations, ordinances, and judicial decisions in courts and tribunals of competent jurisdiction that relate to the Simplecast Services or Customer Service or a party, including any subsequent amendments, modifications, and revisions thereto, or subsequent versions thereof.
- “Simplecast API” means the Simplecast application programming interface and any related scripts, widgets, embeddable snippets, and other tools provided in connection therewith.
- “Simplecast Data” means all data and information created, received, processed, or provided by Simplecast in performing the Simplecast Services, or that result from the operation of the Simplecast Services.
- “Simplecast Services” means, collectively the Platform, Simplecast Data, Simplecast API, and any other products, services, and applications provided by Simplecast pursuant to an applicable Service Order Form, and all features, tools, and services related thereto.
- “Simplecast Technology” means the API Content, Simplecast Services, and all ideas, concepts, inventions, systems, software, interfaces, tools, utilities, templates, forms, techniques, methods, processes, algorithms, know- how, trade secrets, and other technologies, implementations, and information used by Simplecast in providing the Simplecast Services.
- “Platform” means Simplecast’s proprietary platform and related software, applications, tools, features, and services.
- Service Order Forms. This Agreement will be implemented through one or more Service Order Forms entered into by Customer and referencing this Agreement (“Service Order Forms”), the terms of which are hereby incorporated into this Agreement by reference. In the event of any conflict between this Agreement and any Service Order Form, the applicable Service Order Form shall control but only to the extent of such conflict.
- No Other License. For clarity, this Agreement does not grant Customer a license to any Simplecast Services other than the Simplecast API.
- Integration. Customer will integrate the Simplecast API and display the API Content on the Customer Application in accordance with Simplecast’s Integration Requirements available on the Simplecast developer website or as otherwise provided by Simplecast to Customer.
- Support and Service Levels. Subject to the terms and conditions of this Agreement, Simplecast will use commercially reasonable efforts to provide Customer with technical support and updates for the Simplecast API and to meet the service levels specified below. Customer agrees that Simplecast shall (a) only be obligated to provide support service for problems, errors, or inquiries related to the Simplecast API and/or the integration of the Simplecast API with the Customer Service set forth herein and (b) will have the right to charge for any unreasonable levels of support service, provided that Simplecast shall provide Customer with written notice (email acceptable) of such charges prior to providing the applicable support service.
Limitations. Simplecast will not be responsible or liable for any failure in the Simplecast Services, including without limitation the Simplecast API, resulting from or attributable to (i) usage in excess of the usage for which Customer has ordered pursuant to an applicable Service Order Form; (ii) Customer’s failure to use any Simplecast Technology in accordance with this Agreement and the Integration Requirements (such documentation, the “Developer Documentation”); (iii) failures in any telecommunications, network, or other service or equipment that are not within Simplecast’s reasonable control; (iv) Customer’s or any Customer’s third party vendor’s products, services, negligence, acts, or omissions, including but not limited to Customer Service, Customer Content, End User Content and failures to deliver Customer Content or End User Content to Simplecast; (v) any failure to implement all updates issued by Simplecast; (vi) any alterations or additions to the Simplecast Technology not performed by or at the direction of Simplecast; (vii) failures in operation of the Simplecast Technology that are not reproducible by Simplecast; (viii) any force majeure or other cause beyond Simplecast’s reasonable control (such as unavailability of Customer Service or Customer Content); (ix) scheduled maintenance within the limits provided in this Agreement; (x) unauthorized access, breach of firewalls, or other hacking by third parties; or (xi) Customer’s restriction of access to the Simplecast Services, including without limitation through the Customer Service.
License to Simplecast. Customer hereby grants Simplecast a non-exclusive, non-sublicensable, royalty- free license to use, reproduce, perform, display, modify, distribute, and transmit (a) the Customer Content solely for the purpose of providing the Simplecast Services during the term of this Agreement and (b) aggregate any de- identified data derived from the Customer Content, in connection with the Services, including without limitation after the term of this Agreement.
- Customer Application and Customer Content. Subject to Simplecast’s (or its licensors’) ownership of the Simplecast Technology, Customer owns all rights, title, and interests (including all intellectual property and proprietary rights) in and to the Customer Application and Customer Content.
- Simplecast Technology. Simplecast (and its licensors) shall retain all rights, title, and interests (including all intellectual property and proprietary rights) in and to the Simplecast Technology. Except for the limited rights and licenses expressly granted to Customer hereunder, no other license to the Simplecast Technology is granted, and no other use is permitted.
- End User Content. Customer and Simplecast acknowledge and agree that Simplecast may use End User Content in connection with the Services, including without limitation as set forth in the Simplecast End User Terms.
General Learning. Customer agrees that Simplecast is free to use (including for research purposes) and disclose aggregate measures of Simplecast Data, Simplecast Services, and Simplecast Technology usage and performance, and to reuse all generalized knowledge, experience, know-how, works, and technologies (including ideas, concepts, processes, and techniques) related to or acquired during provision of the Simplecast Services under this Agreement (including without limitation, that which it could have acquired performing the same or similar services for another customer), provided that Simplecast may not use such data and information in a way that discloses the identity of Customer or Customer End Users or otherwise in a manner that is in breach of thie Agreement.
Suggestions. Simplecast shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Simplecast Services or Simplecast Technology any suggestions, enhancement requests, recommendations, or other feedback provided by Customer relating to the operation of the Simplecast Services or Simplecast Technology.
CONFIDENTIALITY. EACH PARTY AGREES THAT THE BUSINESS, TECHNICAL, AND FINANCIAL INFORMATION, THAT IS DESIGNATED IN WRITING AS CONFIDENTIAL, OR THAT A REASONABLE PERSON WOULD UNDERSTAND TO BE CONFIDENTIAL BASED ON THE NATURE OF THE INFORMATION OR CIRCUMSTANCES SURROUNDING ITS DISCLOSURE, SHALL BE THE CONFIDENTIAL PROPERTY OF THE DISCLOSING PARTY AND ITS LICENSORS (“CONFIDENTIAL INFORMATION”). CONFIDENTIAL INFORMATION DOES NOT INCLUDE INFORMATION THAT (I) IS PREVIOUSLY RIGHTFULLY KNOWN TO THE RECEIVING PARTY WITHOUT RESTRICTION ON DISCLOSURE PRIOR TO DISCLOSURE BY THE DISCLOSING PARTY; (II) IS OR BECOMES KNOWN TO THE GENERAL PUBLIC THROUGH NO ACT OR OMISSION ON THE PART OF THE RECEIVING PARTY; (III) IS RIGHTFULLY DISCLOSED TO THE RECEIVING PARTY WITHOUT CONFIDENTIALITY OBLIGATIONS BY A THIRD PARTY WITHOUT BREACH OF ANY SEPARATE NON-DISCLOSURE OBLIGATION; OR (IV) IS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY WITHOUT USE OF OR REFERENCE TO THE DISCLOSING PARTY’S CONFIDENTIAL INFORMATION. THE RECEIVING PARTY WILL PROTECT CONFIDENTIAL INFORMATION USING THE SAME DEGREE OF CARE THAT IT USES TO PROTECT ITS OWN INFORMATION OF A SIMILAR NATURE BUT NO LESS THAN REASONABLE CARE, AND WILL HOLD IN CONFIDENCE AND NOT USE OR DISCLOSE ANY CONFIDENTIAL INFORMATION EXCEPT SOLELY TO THE EXTENT NECESSARY TO PERFORM THE RECEIVING PARTY’S OBLIGATIONS OR EXERCISE ITS RIGHTS UNDER THIS AGREEMENT. THE RECEIVING PARTY SHALL NOT DISCLOSE THE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY EXCEPT TO ITS EMPLOYEES, CONSULTANTS, AND INDEPENDENT CONTRACTORS WHO NEED TO KNOW SUCH INFORMATION FOR THE PURPOSES SET FORTH HEREIN AND WHO ARE INFORMED OF THE CONFIDENTIAL NATURE OF SUCH INFORMATION AND ARE BOUND BY CONFIDENTIALITY OBLIGATIONS CONSISTENT WITH THOSE HEREIN (“REPRESENTATIVES”). THE RECEIVING PARTY SHALL BE RESPONSIBLE FOR ANY BREACHES OF CONFIDENTIALITY BY ITS REPRESENTATIVES. UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, ALL OF THE CONFIDENTIAL INFORMATION (INCLUDING ANY COPIES) WILL BE RETURNED TO THE DISCLOSING PARTY, AND RECEIVING PARTY WILL MAKE NO FURTHER USE OF SUCH MATERIALS. IF REQUIRED BY LAW, THE RECEIVING PARTY MAY DISCLOSE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY, BUT WILL GIVE ADEQUATE PRIOR NOTICE OF SUCH DISCLOSURE TO THE DISCLOSING PARTY TO PERMIT THE DISCLOSING PARTY TO INTERVENE AND TO REQUEST PROTECTIVE ORDERS OR OTHER CONFIDENTIAL TREATMENT THEREFOR. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY DISCLOSE A COPY OF THIS AGREEMENT TO ITS LEGAL, FINANCIAL, OR PROFESSIONAL ADVISORS OR POTENTIAL FINANCING SOURCES IN CONNECTION WITH A BONA FIDE DUE DILIGENCE INQUIRY FOR A POTENTIAL FINANCING, ACQUISITION, OR SIMILAR TRANSACTION.
- Fees. Customer agrees to pay Simplecast all fees and expenses in the amounts and at the times set forth in any applicable Service Order Form or schedule to this Agreement.
- Payment Terms. Simplecast will invoice Customer as set forth in the applicable Service Order Form. Unless otherwise set forth in an applicable Service Order Form, undisputed amounts are due within thirty (30) days of the invoice date; provided that any disputes must be made in good faith. Past due amounts shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by Law, whichever is less.
- Taxes. All payments required by this Agreement are exclusive of federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and Customer agrees to bear and be responsible for the payment of all such charges, excluding all taxes based upon Simplecast’s income or gross receipts.
Limited Warranty and Disclaimers.
- General. Each party represents and warrants that: (i) it is a duly organized and validly existing under the Laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions, and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery, and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment, or understanding, oral or written, to which it is a party or by which it may be bound.
- Simplecast. Simplecast warrants to Customer that the Simplecast API, when used in accordance with this Agreement, (i) will substantially perform in accordance with the Developer Documentation; and (ii) will not contain any viruses, Trojan horses or other disabling technology. Simplecast’s sole obligation and Customer’s exclusive remedy in respect of any breach of this warranty is to, at Simplecast’s discretion, replace or repair the nonconforming portion of the Simplecast API to bring it into conformance. If Simplecast fails to repair or replace such portion within thirty (30) days of notice of such nonconformance or, if in Simplecast’s sole discretion it determines that repair or replacement is impracticable, either party may terminate this Agreement or the applicable Service Order Form, with Simplecast providing Customer with a pro-rated refund of any fees prepaid for use of the Simplecast API not completed by the termination effective date.
- Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, SIMPLECAST DOES NOT WARRANT THAT THE SIMPLECAST API WILL MEET CUSTOMER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR-FREE. THE SIMPLECAST API IS PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, SIMPLECAST HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SIMPLECAST API AND SIMPLECAST SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
- Customer Indemnification. Customer agrees to defend, indemnify, and hold harmless Simplecast, its officers, directors, shareholders, employees, agents, affiliates, parent, and subsidiary companies against any and all costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded in a settlement or by a court, arising from (i) any third party claim or allegation relating to or arising out of any aspect of the Customer Content, Customer Service or End User Content; (ii) any breaches of Customer’s agreements or terms with Customer End Users; or (iii) any third party claim or allegation relating to or arising out Customer End Users’ use of the Customer Service.
- Simplecast Indemnification. Simplecast agrees to defend, indemnify, and hold harmless Customer, its officers, directors, shareholders, employees, agents, affiliates, parent, and subsidiary companies against any and all third party costs, claims, damages or expenses incurred (and reasonable attorneys’ fees in connection therewith), as well as amounts finally awarded to third parties in a settlement or by a court, arising from (i) any third party claim or allegation relating to or arising out of any aspect of the Simplecast Technology; or (ii) Simplecast’s breach of its representations or warranties.
- Procedures. Any claim for indemnification hereunder requires that (i) the indemnified party provides prompt written notice of the claim and reasonable cooperation, information, and assistance in connection therewith, and (ii) the indemnifying party shall have sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not make any settlement that requires a materially adverse act or admission by the indemnified party or imposes any obligation upon the indemnified party without the indemnified party’s written consent (such consent not to be unreasonably delayed, conditioned or withheld).
- If any part of the Simplecast Technology becomes or, in Simplecast’s opinion, is likely to become the subject of an infringement claim or any other injunction preventing its use as contemplated herein, Simplecast may, at its option (i) obtain for Customer the right to continue using the Simplecast Technology or (ii) replace or modify the Simplecast Technology so that such services or technology become non-infringing without substantially compromising their principal functions. If (i) and (ii) are not reasonably available to Simplecast, then Simplecast may (iii) terminate this Agreement upon written notice to Customer and refund to Customer any Fees that were pre- paid for the then current term, prorated for the remainder thereof.
- Exclusions. Simplecast shall have no liability or obligation hereunder with respect to any claim to the extent based upon (i) use of any Simplecast Technology by or on behalf of Customer or Customer End Users in an application or environment or on a platform or with devices for which it was not designed or contemplated, (ii) modifications, alterations, combinations or enhancements of the Simplecast Technology not created by or for Simplecast, (iii) any Customer Content or End User Content, or (iv) Customer’s continuing allegedly infringing activity after being notified thereof or its continuing use of any version after being provided modifications that would have avoided the alleged infringement.
- Entire Liability. The foregoing states the entire liability of Simplecast, and Customer’s exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Simplecast Services or Simplecast Technology, any part thereof or its use or operation.
Limitation of Liability. EXCEPT IN EACH CASE FOR A BREACH OF EITHER PARTY’S OBLIGATIONS UNDER PRIVACY AND PROPRIETARY RIGHTS SECTIONS OR THE INDEMNIFICATION OBLIGATIONS UNDER THE CONFIDENTIALITY SECTION, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS, OR SERVICES; (II) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS AND GOODWILL; OR (III) DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID TO SIMPLECAST HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE OCCURRENCE GIVING RISE TO SUCH LIABILITY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Term and Termination.
- Term. This Agreement shall continue in effect for the period set forth in the Service Order Form, unless the Agreement is terminated in accordance with this provision.
- Suspension; Discontinuance. Simplecast may suspend Customer’s or any Customer End User’s use of the Simplecast API or any API Content at any time if Simplecast believes, in its sole discretion, that Customer or such Customer End User has violated this Agreement or any other Agreement between Simplecast and Customer in the case of Customer, or the End-User Terms in the case of Customer End Users or if Simplecast is required to do so by applicable law, rule, regulation, court order, or governmental authority. Simplecast may change or discontinue the availability of some or all parts of the Simplecast API or API Content at any time for any reason, provided that unless the change or discontinuance is required to apply with applicable law, rule, or regulation or except as otherwise expressly set forth herein, Simplecast will notify Customer of any change or discontinuance that would substantially and adversely affect the services provided to Customer, Simplecast will provide Customer with notice of such change at least thirty (30) days prior to such change or discontinuance. Furthermore, if Simplecast determines or reasonably believes Customer is in breach of any of its obligations under this Agreement, Simplecast may upon notice to Customer (email acceptable) also impose limits on certain features and services or restrict Customer’s access to the Simplecast API, API Content or Simplecast Services. Simplecast will provide prior notice of the exercise of rights pursuant to this Section if and to the extent practical and commercially reasonable.
- Termination. This Agreement may be earlier terminated by a party if the other party materially breaches a provision of this Agreement and fails to cure such breach within thirty (30) days (ten days in the case of non- payment) after receiving written notice of such breach from the non-breaching party.
- Effects of Termination. Upon any expiration or termination of any Service Order Form or this Agreement, all corresponding rights, obligations, and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive; (ii) Customer’s, and therefore Customer End Users’, rights to access or use the Simplecast API and all API Content shall cease, and Customer shall immediately stop using and making available the Simplecast API and any API content; and (iii) the Limitations, Proprietary Rights, Confidentiality, Payments, Limited Warranty and Disclaimers, Indemnification, Limitation of Liability and General Provisions shall survive. Simplecast reserves the right to block, disable or otherwise terminate access to the Simplecast API and/or API Content upon any termination or expiration of this Agreement. In the event that Simplecast does not immediately block, disable or otherwise terminate such access, Customer shall be responsible for continued payment obligations associated with any Customer use after the termination or expiration effective date at the then- current rate for such product or service.
- Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Each party also hereby waives any right to a jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover from the other party its costs and expenses (including reasonable attorneys’ fees) incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
- Dispute Resolution. In accordance with the procedures outlined below, any action, dispute, claim or controversy of any kind, whether in contract or tort, statutory or common law, legal or equitable, or under any Law, now existing or hereafter arising under or in connection with, or in any way pertaining to, this Agreement (“Dispute”) will be resolved expeditiously, amicably, and at the level within each party’s organization most knowledgeable about the Dispute. The parties do not intend for these procedures to supplant the routine handling of inquiries and complaints through informal contact with customer service representatives or other designated personnel of the parties. Throughout the Dispute resolution process, each party will continue to perform its obligations under this Agreement.
- General. The complaining Party’s representative will notify the other party’s representative in writing of a Dispute, and the non-complaining Party will exercise good faith efforts to resolve the matter as expeditiously as possible. In the event that such matter remains unresolved ten (10) business days after the delivery of the complaining party’s written notice, senior representatives of each Party will confer in an effort to resolve the Dispute. If they are unable to reach a resolution of the Dispute, it will be resolved by binding arbitration in accordance with the terms of this provision, except as otherwise set forth below. A Party who fails or refuses to submit to arbitration following a lawful demand by any other party will bear all costs and expenses incurred in compelling arbitration of any Dispute.
- Governing Rules. Arbitration proceedings will be administered by the American Arbitration Association (“AAA”) and conducted in accordance with the AAA Commercial Arbitration Rules, or such other administrator and rules as agreed by the parties. If there is any inconsistency between the terms of this Agreement and any such rules, the terms in this Agreement will control. The arbitration will be conducted at a mutually-agreed upon location in the jurisdiction whose Law governs this Agreement, or as selected by the administrator if no agreement can be reached (“Arbitration Location”). The parties hereby waive any claim of forum non conveniens. All Disputes submitted to arbitration will be resolved in accordance with the Federal Arbitration Act (Title 9 of the United States Code).
- No Waiver; Provisional Remedies. The parties agree that pursuing arbitration of a Dispute will not limit a party’s right to seek provisional or ancillary remedies,including injunctive relief, attachment or the appointment of a receiver, from a court of competent jurisdiction in the Arbitration Location or elsewhere, whether before, after or during any Dispute resolution activity. The exercise of any such remedy will not waive the right of any party to compel arbitration or referral under this Dispute provision.
- Arbitrator Qualifications and Powers; Awards. Arbitrators must be active members of the official licensing organization for attorneys in the Arbitration Location or retired judges of the judiciary of the Arbitration Location, with expertise in the substantive Law relating to the subject matter of the Dispute. Arbitrators are empowered to resolve Disputes by summary rulings in response to motions filed prior to the final arbitration hearing. Arbitrators: (i) will resolve all Disputes in accordance with the substantive Law that governs this Agreement, excluding any applicable conflicts or choice of Law provisions; (ii) may grant any remedy or relief that a court of the jurisdiction whose Law governs this Agreement could order or grant and such ancillary relief as is necessary to make effective any such award (but in no event will the arbitrator have the authority to award damages that exceed the scope of this Agreement); and (iii) will have the power to award recovery of all costs and fees, to impose sanctions and to take such other actions as they deem necessary to the same extent a judge could pursuant to the rules of civil procedure in the jurisdiction whose Law governs this Agreement. Any Dispute in which the initial amount in controversy is Five Million Dollars ($5,000,000), or its equivalent, or less may be decided by a single arbitrator. Any Dispute in which the initial amount in controversy exceeds Five Million Dollars ($5,000,000), or its equivalent, will be decided by majority vote of a panel of three arbitrators; provided however, that all three arbitrators must actively participate in all hearings and deliberations.
- Judicial Review. Notwithstanding anything to the contrary in this Agreement, in any arbitration relating to the ownership of intellectual property rights or in which the amount in controversy exceeds Five Million Dollars ($5,000,000), or its equivalent, the arbitrators will be required to make specific, written findings of fact and conclusions of Law.
- Miscellaneous. To the maximum extent practicable, the arbitrators and the parties will take all action required to conclude any arbitration proceeding within 180 days of the filing of the Dispute. No arbitrator or other party to an arbitration proceeding may disclose the existence, content, or results thereof, except for disclosures of information by a party required in the ordinary course of its business, by Law, or to the extent necessary to exercise judicial review rights as set forth herein.
- Fees. In all Disputes, the prevailing party is entitled to recover its reasonable legal counsel fees (including, if applicable, reasonable charges for in-house counsel), and other legal expenses from the non-prevailing party.
- Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non- breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.
- Notices. All notices under this Agreement will be in writing and delivered to the parties at their respective addresses stated in a Service Order Form or at such other address designated by written notice. Customer hereby consents to delivery of notices via the email account associated with Customer’s registration information or through the Simplecast Services.
- Force Majeure. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (except payment obligations) due to any cause beyond its reasonable control, the affected party shall give written notice thereof to the other party and its performance shall be extended for the period of delay or inability to perform due to such occurrence.
- Publicity. Customer hereby consents to inclusion of its name and logo in customer lists that may be published as part of Simplecast’s marketing and promotional efforts. From time to time upon Simplecast’s request, Customer agrees it will provide reasonable cooperation and assistance in connection with such efforts (such as, for example, by acting as a reference, issuing press releases, and writing testimonials and case studies with statements attributed to a named employee of Customer). Simplecast may issue a press release concerning the arrangements under this Agreement between Customer and Simplecast, which will be provided to Customer for review and approval, which approval will not be unreasonably withheld or delayed. Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation or sponsorship, except as expressly set forth in this Agreement, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed.
- Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, without the prior written consent of the other party; provided, however, that either party may, without such prior written consent, assign this Agreement in its entirety to such party’s successor in interest in connection with a merger, acquisition, consolidation, or reorganization of such party, or the sale of substantially all stock or assets of such party; provided further, that (i) such assigning party shall be responsible for the performance of its obligations under this Agreement through the date of such assignment and (ii) notwithstanding the foregoing, Customer shall not assign this Agreement, in whole or in part, to any Simplecast direct competitor without Simplecast’s prior written consent. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties hereto.
- Independent Contractors. The parties shall be independent contractors under this Agreement, and nothing herein will constitute either party as the employer, employee, agent, or representative of the other party, or both parties as joint venturers or partners for any purpose.
- Federal Government End Use Provisions. Simplecast provides the Simplecast API and API Content, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Simplecast API or API Content include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227- 7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Simplecast to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.