This SocialTract Services Agreement (“Agreement”) is entered into the day of your signed agreement by and between SocialTract, a division of Z Squared Media, LLC, (“SocialTract”) and the “Customer”.
1. DEFINITIONS. “Services” means services such as the technology, integration, implementation, and customization services which Customer and SocialTract specify and agree in writing shall be provided by SocialTract; for clarity, fees for Professional Services are separate from and in addition to fees for Services.
2. SERVICES. Subject to the terms and conditions of this Agreement, SocialTract shall provide Services to Customer and Customer hereby engages SocialTract to provide the Services. This is not a technology license agreement and, except as otherwise provided in this Agreement, this Agreement grants Customer no right to use any proprietary software or hardware technology used by SocialTract to provide the Services. Customer and SocialTract may contract for additional services to be provided under this Agreement pursuant to an addendum to be executed by Customer and SocialTract. Any such addendum shall be governed by the terms hereof except as agreed in writing by the parties.
3. USE. The Services are being provided strictly for Customer’s and its Affiliates’ internal business purposes. Customer may not use the Services as a service for any third party (use of the Service as a service bureau is strictly prohibited). No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Services or any software used to provide the Services, in whole or in part, is granted.
4. TERM. This Agreement will become effective as of (and the Services shall start on) the Effective Date and, unless sooner terminated as provided in this Agreement, shall continue for a period of one (1) year (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive one (1) month periods.
5. PRICING; PAYMENT. The Services will be provided by SocialTract to Customer at the prices agreed by the parties in writing or, if not so agreed, at the prices set forth in your SocialTract Agreement as applicable for the Services selected by Customer. The prices are subject to change from time to time after the Initial Term of this Agreement. Failure by Customer to pay shall constitute a material breach of this Agreement. Customer shall pay a late fee of one and one-half percent (1½%) per month on all amounts due but not paid within thirty (30) days of the invoice date. SocialTract may, as a result of such late payment, among other remedies available to it, discontinue its provision of the Services to Customer in accordance with Section 14 below.
6. CONFIDENTIALITY. Customer acknowledges that the Services, any software used to provide the Services, and any other information provided to Customer by SocialTract incorporate confidential and proprietary information developed by, acquired by, or licensed to SocialTract (“SocialTract Confidential Information”). Customer and its Affiliates will take all reasonable precautions necessary to safeguard the confidentiality of the SocialTract Confidential Information. Neither Customer nor its Affiliates will make any unauthorized use of the SocialTract Confidential Information or disclose, in whole or in part, any part of the SocialTract Confidential Information to any individual or entity, except to those of Customer’s employees or consultants who require access for Customer’s authorized use of the SocialTract Confidential Information and agree to comply with the use and nondisclosure restrictions applicable to the SocialTract Confidential Information under this Agreement. Customer acknowledges that any unauthorized use or disclosure by it or its Affiliates of the SocialTract Confidential Information may cause irreparable damage to SocialTract. If SocialTract becomes aware of Customer’s breach or threatened breach of this Section, SocialTract may suspend any and all rights granted to Customer under this Agreement and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to SocialTract.
7. INDEMNIFICATION. Customer shall indemnify and hold SocialTract, and its officers, directors, employees, and agents, and their successors and assigns harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with (i) a breach of Customer’s obligations hereunder, (ii) any material breach of Customer’s representations and/or warranties contained herein, (iii) SocialTract’s use, in connection with its performance of the Services hereunder, of any email addresses, Customer end user information, or other information that SocialTract obtains from Customer or its Affiliates for purposes of providing the Services, (iv) any Materials or other content provided by Customer or its Affiliates, or (v) any data or information published, uploaded or otherwise transferred by Customer through its use of the Services.
8. CUSTOMER’S REPRESENTATIONS. Customer represents and warrants to SocialTract that:
a. Customer’s agreement to engage SocialTract to perform the Services hereunder does not violate any agreement or obligation between Customer and any third party.
b. No information Customer posts, uploads to, or submits through the Services or otherwise delivers to SocialTract, no information transmitted by Customer using the Services, and no performance by customer under this Agreement will infringe any copyright, patent, trade secret or other proprietary right held by any third party. Customer hereby grants to SocialTract a worldwide, royalty free, fully paid up, non-exclusive license to use the Materials as required for SocialTract to provide Services to Customer hereunder.
9. SOCIALTRACT’S REPRESENTATIONS AND WARRANTIES. SocialTract represents and warrants to Customer that SocialTract’s agreement to perform the Services hereunder does not violate any agreement or obligation between SocialTract and any third party.
10. CUSTOMER ACKNOWLEDGEMENTS. Customer understands that:
a. SocialTract may, at its sole discretion, refuse to process, provide Services for, or distribute any content or other posting or information provided by Customer or its Affiliates or services providers (“Material”) that contains information that SocialTract believes may be defamatory, infringing, or otherwise unlawful, or to a person to whom communications would be in violation of applicable laws.
b. SocialTract is a blog marketing service provider involved only in the creation of blog entries and communications regarding categories and keywords;
c. SocialTract will make best efforts that the content produced for the Customer is factual based on information found at industry/government sites and other relevant industry information. Customer does not hold SocialTract responsible for any inaccuracies in posted content. Additionally, Customer is solely responsible for any changes to page templates or functionality of the Customer’s blog site.
11. SOCIALTRACT OUTAGE POLICY. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT SOCIALTRACT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT SOCIALTRACT MAY OCCASIONALLY EXPERIENCE OUTAGES DUE TO INTERNET AND OTHER DISRUPTIONS THAT ARE NOT WITHIN SOCIALTRACT’S CONTROL OR THAT ARE OTHERWISE UNFORESEEN. ANY SUCH OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT BY SOCIALTRACT, AND SOCIALTRACT DISCLAIMS ALL LIABILITY RELATING TO SUCH OUTAGES.
12. FORCE MAJEURE. To the extent one of the parties hereto is prevented from performing any of its obligations hereunder due to circumstances reasonably beyond its control (including, but not limited to, the action or inaction of any governmental, civil or military authority; a strike, lockout or other labor dispute; or a fire, flood, war, riot, theft, earthquake or other natural disaster, acts of terrorism or other civil disturbance) and not involving such party’s negligence, such party shall not be liable to the other party for any losses or damages arising out of such non-performance. In the event a party hereto is prevented from meeting its obligations by such unforeseen circumstances, and such party is unable to provide assurances that recovery will occur within fifteen (15) days, or recovery fails to occur within fifteen (15) days, the other party hereto shall have the right to terminate this Agreement, effective upon delivery of written notice of the same to the other party, and no party shall be liable to any other arising out of such termination, except for obligations existing prior to such termination.
13. NOTICES. Any notice or correspondence required or permitted to be given or forwarded hereunder or by law shall be effective on receipt and shall be considered properly given if in writing and delivered personally or faxed with confirmation or sent by any commercially reasonable means of receipted delivery, addressed, with respect to Customer, to the address of Customer most recently provided in writing to SocialTract, and with respect to SocialTract, to the address of SocialTract appearing on its web site at the time of such notice.
14. TERMINATION. Either party shall have the right to terminate this Agreement prior to expiration of its term: (i) in the event of the other party’s material breach of any of the provisions hereof and the failure of the breaching party to cure such breach to the reasonable satisfaction of the non-breaching party within fifteen (15) days after receipt of written notice informing it of such material breach, (ii) in accordance with the provisions of Section 12 hereof, or (iii) in the event a petition seeking composition of creditors, the protection afforded by the United States Bankruptcy Code or benefit of other laws affecting the rights of creditors generally is filed by or against the other party and such petition remains unstayed or undismissed for a period of thirty (30) days. Upon termination of this Agreement, all Services provided to Customer hereunder will terminate. Promptly upon termination of this Agreement for any reason, Customer must return or destroy, as requested by SocialTract, all materials pertaining to the Services (including all copies thereof). SocialTract has the right to terminate the Agreement at any time if said relationship is not in the best interest of SocialTract.
15. OWNERSHIP. All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services provided hereunder, or otherwise used to perform the Services for Customer or its Affiliates hereunder, are and shall remain the sole and exclusive property of SocialTract, whether or not specifically recognized or perfected under applicable law. SocialTract shall own all rights, title and interest, including all intellectual property rights, in and to all Services and any improvements to the Services, including those recommended or suggested by Customer, or any new programs, upgrades, modifications or enhancements developed in connection with rendering the Services to Customer or its Affiliates, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such Services, refinements and improvements does not automatically vest in SocialTract by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to SocialTract all rights, title, and interest which Customer or its Affiliates may have in to such Services, refinements and improvements.
16. LICENSING. During the term of the Agreement, SocialTract agrees to license its technology platform and content to the Customer for usage in Customer’s marketing initiatives. Upon conclusion of the Agreement, Customer has full rights to use the content created for the Customer during the Agreement, but will not have rights to use the technology platform. If requested, SocialTract will send a separate file to the Customer containing the blog content developed during the Agreement.
17. NONEXCLUSIVITY. Customer acknowledges and agrees that SocialTract is in the business of providing blog marketing services, and that SocialTract may provide services to third parties, including competitors of Customer or its Affiliates, which are the same or similar to the Services provided to Customer or its Affiliates hereunder.
18. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED HEREUNDER BY SOCIALTRACT “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SOCIALTRACT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY EMPLOYEES OF SOCIALTRACT OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY SOCIALTRACT FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF SOCIALTRACT WHATSOEVER. THE UNIFORM COMMERCIAL CODE AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT SHALL NOT APPLY TO THIS AGREEMENT.
19. CUSTOMER TRADEMARKS. Upon receipt of Customer’s written authorization, SocialTract may use the trademarks and trade names of Customer in connection with its provision of the Services and in connection with the marketing by SocialTract of its services to third parties. Upon receipt of Customer’s written authorization, SocialTract may use specific examples generated by Customer in connection with the marketing by SocialTract of services to third parties. SocialTract shall comply with any reasonable written guidelines of Customer relating to usage of Customer’s trademarks or trade names. SocialTract shall discontinue use of Customer’s trademarks or trade names upon the expiration or termination of this Agreement, except as may be required to exhaust any marketing materials on hand at the time of such expiration or termination.
20. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to any jurisdiction’s conflict of laws principles, and all proceedings relating to the subject matter hereof shall be maintained exclusively in the courts situated in Cuyahoga County, Ohio. Customer hereby consents to personal jurisdiction and venue therein and hereby waives any right to object to the exclusive and personal jurisdiction of or venue in such courts.
21. WAIVER. The failure of a party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by one or both of the parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.
22. ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party, except as expressly set forth herein or to an individual or entity into which it has merged or which has otherwise succeeded to all or substantially all of the assets or business to which this Agreement relates or equity securities of the assignor, and which has assumed in writing or by operation of law, the assignor’s obligations under this Agreement.
23. INVALID PROVISIONS; SEVERABILITY. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibitive or enforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
24. ENTIRE AGREEMENT; GENERAL. This Agreement, including all associated proposals signed by Customer, represent the complete understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements, whether written or oral, between the parties. This Agreement may not be modified or amended, except by a written instrument executed by each of the parties hereto. This Agreement is for the sole benefit of the parties hereto and is not for the benefit of any third party. The parties hereto shall be deemed to be independent contractors hereunder, and as such, neither party shall be, nor hold itself out to be, an employee or agent of the other party. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement. Customer signature on this Agreement will constitute the legal, valid, and binding obligation of Customer, enforceable in accordance with its terms.
Terms
SocialTract Services Agreement
This SocialTract Services Agreement (“Agreement”) is entered into the day of your signed agreement by and between SocialTract, a division of Z Squared Media, LLC, (“SocialTract”) and the “Customer”.
1. DEFINITIONS. “Services” means services such as the technology, integration, implementation, and customization services which Customer and SocialTract specify and agree in writing shall be provided by SocialTract; for clarity, fees for Professional Services are separate from and in addition to fees for Services.
2. SERVICES. Subject to the terms and conditions of this Agreement, SocialTract shall provide Services to Customer and Customer hereby engages SocialTract to provide the Services. This is not a technology license agreement and, except as otherwise provided in this Agreement, this Agreement grants Customer no right to use any proprietary software or hardware technology used by SocialTract to provide the Services. Customer and SocialTract may contract for additional services to be provided under this Agreement pursuant to an addendum to be executed by Customer and SocialTract. Any such addendum shall be governed by the terms hereof except as agreed in writing by the parties.
3. USE. The Services are being provided strictly for Customer’s and its Affiliates’ internal business purposes. Customer may not use the Services as a service for any third party (use of the Service as a service bureau is strictly prohibited). No license or right to use, reproduce, translate, rearrange, modify, enhance, display, sell, lease, sublicense or otherwise distribute, transfer or dispose of the Services or any software used to provide the Services, in whole or in part, is granted.
4. TERM. This Agreement will become effective as of (and the Services shall start on) the Effective Date and, unless sooner terminated as provided in this Agreement, shall continue for a period of one (1) year (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive one (1) month periods.
5. PRICING; PAYMENT. The Services will be provided by SocialTract to Customer at the prices agreed by the parties in writing or, if not so agreed, at the prices set forth in your SocialTract Agreement as applicable for the Services selected by Customer. The prices are subject to change from time to time after the Initial Term of this Agreement. Failure by Customer to pay shall constitute a material breach of this Agreement. Customer shall pay a late fee of one and one-half percent (1½%) per month on all amounts due but not paid within thirty (30) days of the invoice date. SocialTract may, as a result of such late payment, among other remedies available to it, discontinue its provision of the Services to Customer in accordance with Section 14 below.
6. CONFIDENTIALITY. Customer acknowledges that the Services, any software used to provide the Services, and any other information provided to Customer by SocialTract incorporate confidential and proprietary information developed by, acquired by, or licensed to SocialTract (“SocialTract Confidential Information”). Customer and its Affiliates will take all reasonable precautions necessary to safeguard the confidentiality of the SocialTract Confidential Information. Neither Customer nor its Affiliates will make any unauthorized use of the SocialTract Confidential Information or disclose, in whole or in part, any part of the SocialTract Confidential Information to any individual or entity, except to those of Customer’s employees or consultants who require access for Customer’s authorized use of the SocialTract Confidential Information and agree to comply with the use and nondisclosure restrictions applicable to the SocialTract Confidential Information under this Agreement. Customer acknowledges that any unauthorized use or disclosure by it or its Affiliates of the SocialTract Confidential Information may cause irreparable damage to SocialTract. If SocialTract becomes aware of Customer’s breach or threatened breach of this Section, SocialTract may suspend any and all rights granted to Customer under this Agreement and shall be entitled to injunctive relief, without the need of posting a bond, in addition to all legal or equitable relief that may be available to SocialTract.
7. INDEMNIFICATION. Customer shall indemnify and hold SocialTract, and its officers, directors, employees, and agents, and their successors and assigns harmless from and against any claims, losses, damages, liabilities, costs or expenses of any nature (including reasonable attorney’s fees) suffered or incurred by any of them to the extent that such are caused by or arise in connection with (i) a breach of Customer’s obligations hereunder, (ii) any material breach of Customer’s representations and/or warranties contained herein, (iii) SocialTract’s use, in connection with its performance of the Services hereunder, of any email addresses, Customer end user information, or other information that SocialTract obtains from Customer or its Affiliates for purposes of providing the Services, (iv) any Materials or other content provided by Customer or its Affiliates, or (v) any data or information published, uploaded or otherwise transferred by Customer through its use of the Services.
8. CUSTOMER’S REPRESENTATIONS. Customer represents and warrants to SocialTract that:
a. Customer’s agreement to engage SocialTract to perform the Services hereunder does not violate any agreement or obligation between Customer and any third party.
b. No information Customer posts, uploads to, or submits through the Services or otherwise delivers to SocialTract, no information transmitted by Customer using the Services, and no performance by customer under this Agreement will infringe any copyright, patent, trade secret or other proprietary right held by any third party. Customer hereby grants to SocialTract a worldwide, royalty free, fully paid up, non-exclusive license to use the Materials as required for SocialTract to provide Services to Customer hereunder.
9. SOCIALTRACT’S REPRESENTATIONS AND WARRANTIES. SocialTract represents and warrants to Customer that SocialTract’s agreement to perform the Services hereunder does not violate any agreement or obligation between SocialTract and any third party.
10. CUSTOMER ACKNOWLEDGEMENTS. Customer understands that:
a. SocialTract may, at its sole discretion, refuse to process, provide Services for, or distribute any content or other posting or information provided by Customer or its Affiliates or services providers (“Material”) that contains information that SocialTract believes may be defamatory, infringing, or otherwise unlawful, or to a person to whom communications would be in violation of applicable laws.
b. SocialTract is a blog marketing service provider involved only in the creation of blog entries and communications regarding categories and keywords;
c. SocialTract will make best efforts that the content produced for the Customer is factual based on information found at industry/government sites and other relevant industry information. Customer does not hold SocialTract responsible for any inaccuracies in posted content. Additionally, Customer is solely responsible for any changes to page templates or functionality of the Customer’s blog site.
11. SOCIALTRACT OUTAGE POLICY. CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT SOCIALTRACT DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE AND THAT SOCIALTRACT MAY OCCASIONALLY EXPERIENCE OUTAGES DUE TO INTERNET AND OTHER DISRUPTIONS THAT ARE NOT WITHIN SOCIALTRACT’S CONTROL OR THAT ARE OTHERWISE UNFORESEEN. ANY SUCH OUTAGE SHALL NOT BE CONSIDERED A BREACH OF THIS AGREEMENT BY SOCIALTRACT, AND SOCIALTRACT DISCLAIMS ALL LIABILITY RELATING TO SUCH OUTAGES.
12. FORCE MAJEURE. To the extent one of the parties hereto is prevented from performing any of its obligations hereunder due to circumstances reasonably beyond its control (including, but not limited to, the action or inaction of any governmental, civil or military authority; a strike, lockout or other labor dispute; or a fire, flood, war, riot, theft, earthquake or other natural disaster, acts of terrorism or other civil disturbance) and not involving such party’s negligence, such party shall not be liable to the other party for any losses or damages arising out of such non-performance. In the event a party hereto is prevented from meeting its obligations by such unforeseen circumstances, and such party is unable to provide assurances that recovery will occur within fifteen (15) days, or recovery fails to occur within fifteen (15) days, the other party hereto shall have the right to terminate this Agreement, effective upon delivery of written notice of the same to the other party, and no party shall be liable to any other arising out of such termination, except for obligations existing prior to such termination.
13. NOTICES. Any notice or correspondence required or permitted to be given or forwarded hereunder or by law shall be effective on receipt and shall be considered properly given if in writing and delivered personally or faxed with confirmation or sent by any commercially reasonable means of receipted delivery, addressed, with respect to Customer, to the address of Customer most recently provided in writing to SocialTract, and with respect to SocialTract, to the address of SocialTract appearing on its web site at the time of such notice.
14. TERMINATION. Either party shall have the right to terminate this Agreement prior to expiration of its term: (i) in the event of the other party’s material breach of any of the provisions hereof and the failure of the breaching party to cure such breach to the reasonable satisfaction of the non-breaching party within fifteen (15) days after receipt of written notice informing it of such material breach, (ii) in accordance with the provisions of Section 12 hereof, or (iii) in the event a petition seeking composition of creditors, the protection afforded by the United States Bankruptcy Code or benefit of other laws affecting the rights of creditors generally is filed by or against the other party and such petition remains unstayed or undismissed for a period of thirty (30) days. Upon termination of this Agreement, all Services provided to Customer hereunder will terminate. Promptly upon termination of this Agreement for any reason, Customer must return or destroy, as requested by SocialTract, all materials pertaining to the Services (including all copies thereof). SocialTract has the right to terminate the Agreement at any time if said relationship is not in the best interest of SocialTract.
15. OWNERSHIP. All trademarks, service marks, patents, copyrights, trade secrets, know-how, and other proprietary rights in or related to the Services provided hereunder, or otherwise used to perform the Services for Customer or its Affiliates hereunder, are and shall remain the sole and exclusive property of SocialTract, whether or not specifically recognized or perfected under applicable law. SocialTract shall own all rights, title and interest, including all intellectual property rights, in and to all Services and any improvements to the Services, including those recommended or suggested by Customer, or any new programs, upgrades, modifications or enhancements developed in connection with rendering the Services to Customer or its Affiliates, even when refinements and improvements result from Customer’s request. To the extent, if any, that ownership in such Services, refinements and improvements does not automatically vest in SocialTract by virtue of this Agreement or otherwise, Customer hereby transfers and assigns (and, if applicable, shall cause its Affiliates to transfer and assign) to SocialTract all rights, title, and interest which Customer or its Affiliates may have in to such Services, refinements and improvements.
16. LICENSING. During the term of the Agreement, SocialTract agrees to license its technology platform and content to the Customer for usage in Customer’s marketing initiatives. Upon conclusion of the Agreement, Customer has full rights to use the content created for the Customer during the Agreement, but will not have rights to use the technology platform. If requested, SocialTract will send a separate file to the Customer containing the blog content developed during the Agreement.
17. NONEXCLUSIVITY. Customer acknowledges and agrees that SocialTract is in the business of providing blog marketing services, and that SocialTract may provide services to third parties, including competitors of Customer or its Affiliates, which are the same or similar to the Services provided to Customer or its Affiliates hereunder.
18. DISCLAIMER OF WARRANTIES. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED HEREUNDER BY SOCIALTRACT “AS IS” WITHOUT WARRANTY OF ANY KIND. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SOCIALTRACT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF THE SERVICES, WHETHER MADE BY EMPLOYEES OF SOCIALTRACT OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT, SHALL BE DEEMED TO BE A WARRANTY BY SOCIALTRACT FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF SOCIALTRACT WHATSOEVER. THE UNIFORM COMMERCIAL CODE AND THE UNIFORM COMPUTER INFORMATION TRANSACTION ACT SHALL NOT APPLY TO THIS AGREEMENT.
19. CUSTOMER TRADEMARKS. Upon receipt of Customer’s written authorization, SocialTract may use the trademarks and trade names of Customer in connection with its provision of the Services and in connection with the marketing by SocialTract of its services to third parties. Upon receipt of Customer’s written authorization, SocialTract may use specific examples generated by Customer in connection with the marketing by SocialTract of services to third parties. SocialTract shall comply with any reasonable written guidelines of Customer relating to usage of Customer’s trademarks or trade names. SocialTract shall discontinue use of Customer’s trademarks or trade names upon the expiration or termination of this Agreement, except as may be required to exhaust any marketing materials on hand at the time of such expiration or termination.
20. GOVERNING LAW; VENUE. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, without reference to any jurisdiction’s conflict of laws principles, and all proceedings relating to the subject matter hereof shall be maintained exclusively in the courts situated in Cuyahoga County, Ohio. Customer hereby consents to personal jurisdiction and venue therein and hereby waives any right to object to the exclusive and personal jurisdiction of or venue in such courts.
21. WAIVER. The failure of a party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by one or both of the parties of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter.
22. ASSIGNMENT. This Agreement shall inure to the benefit of, and shall be binding upon, both parties and their respective successors and permitted assigns. Neither party may assign or delegate this Agreement or any of its rights or duties under this Agreement without the prior written consent of the other party, except as expressly set forth herein or to an individual or entity into which it has merged or which has otherwise succeeded to all or substantially all of the assets or business to which this Agreement relates or equity securities of the assignor, and which has assumed in writing or by operation of law, the assignor’s obligations under this Agreement.
23. INVALID PROVISIONS; SEVERABILITY. Any provision of this Agreement which is prohibited and unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibitive or enforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provisions in any other jurisdiction.
24. ENTIRE AGREEMENT; GENERAL. This Agreement, including all associated proposals signed by Customer, represent the complete understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes any prior or contemporaneous agreements, whether written or oral, between the parties. This Agreement may not be modified or amended, except by a written instrument executed by each of the parties hereto. This Agreement is for the sole benefit of the parties hereto and is not for the benefit of any third party. The parties hereto shall be deemed to be independent contractors hereunder, and as such, neither party shall be, nor hold itself out to be, an employee or agent of the other party. The language used in this Agreement shall be deemed to be language chosen by both parties hereto to express their mutual intent, and no rule of strict construction against either party shall apply to rights granted herein or to any term of condition of this Agreement. Customer signature on this Agreement will constitute the legal, valid, and binding obligation of Customer, enforceable in accordance with its terms.