MarcomGather™ TERMS & CONDITIONS

These Terms & Conditions (“Terms & Conditions”) are entered into by and between PTI Marketing Technologies, Inc. dba MarcomCentral (“MarcomCentral”) and the Customer identified in the executed MarcomGather Order Request (“Order Request”) that references these Terms & Conditions. The Order Request and these Terms & Conditions are referred to collectively as the “Agreement” or “Subscription Agreement.”

Capitalized terms used but not defined in these Terms & Conditions have the meanings given to them in the Order Request.  If there is a conflict of terms between the Subscription Agreement and these Terms & Conditions, the former shall prevail.

Definitions

Assets” are digital files accessible within the MarcomGather Software where Customer’s End Users and Sys Admins can upload, download, organize, tag, store, and search data, by various metadata, keywords, type of content and/or file.  

End User” is a user with the right to create and control access to authorized Assets under Customer’s subscription plan. , including users who contribute Assets and users who view and use Assets.  Customer’s Sys Admin(s) can designate any user with a registered MarcomGather login as an End User.    If Customer opts to “auto-provision” users, any user who registers for a MarcomGather login (i.e., email address and password) using an email address on a Customer Domain will automatically be designated as an End User.

MarcomGather Software” is MarcomCentral’s product for internet-delivered digital asset management software for marketing teams.

Sys Admin” is a user who can designate other users as End Users or additional Sys Admins, establish certain limits on how Assets covered by Customer’s subscription plan can be shared, and re-assign the ownership of Assets among End Users.

1. MarcomGather Software. This Agreement governs Customer’s use of the MarcomGather whether Customer accesses it from MarcomCentral’s Web site with the primary domain name http://www.Marcom.com (the “Site”), from MarcomCentral’s applications and Web sites, or from any other application or access point MarcomCentral makes available to Customer. Subject to these Terms & Conditions, MarcomCentral will make the MarcomGather Software  available to licensed End Users throughout the Subscription Term set forth in the Subscription Agreement.

2. Fees and Payment; Term & Renewals.

2.1 Fees. Customer will pay the fees for the MarcomGather Software specified in the Subscription Agreement, including the Subscription Fee and any applicable fees (collectively, “Subscription Fees”). All Subscription Fees are nonrefundable once paid except as expressly otherwise provided in this Agreement.

2.2 Payment. Unless otherwise provided in the Subscription Agreement, all amounts under this Agreement are payable in U.S. dollars. Subscription Fees are due and payable as set forth in the Subscription Agreement.  MarcomCentral may charge a late fee of one and one-half percent (1.5%) per month on past due amounts. The fees payable under this Agreement do not include local, state, or federal taxes or duties of any kind; all such taxes will be assumed and paid by the Customer, except for taxes based on MarcomCentral’s income or receipts as further set forth below. Customer will send payments to the payment address specified in the Subscription Agreement (or a successor address of which MarcomCentral notifies Customer) or, if the Subscription Agreement allows for payment via electronic funds transfer, using the account and routing information provided by MarcomCentral.

2.3 Taxes.  MarcomCentral’s prices as reflected in Customer Agreement are exclusive of all applicable Taxes associated with the marketing, sales, distribution and delivery of any products or software subscriptions ordered hereunder. For purposes of this Agreement, “Taxes” shall mean all taxes imposed by an applicable government authority, including but not limited to sales, use, stamp-duty, excise, value-added, withholding and similar taxes and all customs, duties or other governmental impositions, but excluding taxes calculated on MarcomCentral’s net income in the United States.  Customer shall pay all applicable Taxes associated with the sale and delivery of all Products and subscriptions and any collection costs, penalties and interest, associated with the Taxes.  If Customer is required under applicable law to withhold any part of the payment due MarcomCentral under this Agreement, then Customer shall increase such amount payable to MarcomCentral such that MarcomCentral receives the same amount that it would have received absent such withholding.  MarcomCentral collects additional taxes from Customers for the provision of Internet services and software when required by law.  These taxes will appear on invoices detailing payments and fees paid by the Customer.  Customers may provide certificates of exemption if applicable.   

3. Use of MarcomGather; Restrictions.

3.1 Customer Users. MarcomCentral will provide user logins for Customer’s Sys Admins and End Users (as such terms are defined in the Subscription Agreement). Collectively, Sys Admins and End Users are referred to in this Agreement as “Customer Users.” Each login (i.e., email address and password) may be used only by a single, individual Customer User.  Subject to appropriate registration of users using MarcomCentral’s access management and user configuration practices, Customer may re-assign licenses as needed throughout the Term.  Sys Admin logins and access right may not be given by Customers to third parties without the express permission of MarcomCentral.  Customer may designate its (or its corporate affiliates’) employees or independent contractors as its Customer Users; provided, that (a) Customer remains responsible for all use and misuse of the MarcomGather Software that occurs under Customer Users’ login credentials and  for any breach of this Agreement by any Customer Users, (b) Customer agrees to notify MarcomCentral of any unauthorized access or use of which Customer becomes aware, and (c) all usage of the MarcomGather Software by Customer Users is subject to the pricing terms and limitations set forth in the Subscription Agreement (for example, limits on the number of licensed Customer Users and amount of data storage).

3.2 U.S. Government End Users.  With respect solely to U.S. Government end users, the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth therein.

3.3 Permitted Use. Among other features, the MarcomGather Software enables Customer and its Customer Users to store and manage digital Assets in a hosted database where Customer Users can (a) access, upload, download, organize, tag, store and search Assets as database content and files, and (b) share database Assets with other users. MarcomCentral hereby grants Customer a worldwide, non-exclusive, non-transferable right to access to MarcomGather and use the MarcomGather Software during the term of this Agreement to (i) create, submit , edit and delete Assets, (ii) invite other users to view, submit content to, and/or edit Assets, and (iii) otherwise use the Assets, web forms, reports, and other features and functionality of the MarcomGather Software for Customer’s marketing and internal business purposes, all subject to the terms and conditions of this Agreement.

3.4 Prohibited Use. Customer will not (and will ensure that Customer Users do not): (a) “frame,” distribute, resell,  or permit access to the MarcomGather Software by any third party other than for its intended purposes (for example, by sharing Assets for the MarcomCentral System with unlicensed users); (b) permit multiple Customer Users to access the MarcomGather Software using shared login credentials (i.e., a shared email address and password); (c) use the MarcomGather Software other than in compliance with applicable federal, state, and local laws; (d) interfere with the MarcomGather Software or disrupt any other user’s access to the MarcomGather; (e) reverse engineer, attempt to gain unauthorized access to the MarcomGather, or attempt to discover the underlying source code or structure of the MarcomGather; (f) submit to the MarcomGather Software any content or data that is false, misleading, defamatory, threatening, offensive, or infringing of intellectual property rights, or that contains unsolicited mass mailings or any form of “spam” in violation of applicable State and Federal laws governing commercial e-mail communications; (g) use the MarcomGather Software to create Assets incorporating content or content requests which pose security and privacy risks, including without limitation credit card, payment information (including credit card information) or other personal information such as personal health information (“PHI”, as defined by HIPAA regulations) or the MarcomCentral Privacy Policy set forth in section 8 below; (h) submit to the MarcomGather Software any routine, device, malware or other undisclosed feature, including a so-called time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap or back door or software routine, that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which  is intended to provide unauthorized access or to produce unauthorized modifications; or (i) use any robot, spider, data scraping or extraction tool or similar mechanism with respect to the MarcomGather.

4. Customer Content.

4.1 Ownership of Customer Content; Representation. As between the parties, Customer retains all right, title and interest in any and all data, files, attachments, text, images, personally identifiable information, and other content that Customer or a Customer User uploads or submits to Customer’s Assets (collectively, “Customer Content”). Customer Content includes data and content submitted to Assets, document templates or similar features of the MarcomGather. Customer represents and warrants that it has all rights, permissions and consents necessary (a) to submit all Customer Content to MarcomCentral, (b) to grant MarcomCentral the limited rights to use Customer Content set forth in this Agreement, and (c) for any transfer of Customer Content or Assets from one End User to another.

4.2 Use of Customer Content by MarcomCentral. Customer agrees that MarcomCentral may use the Customer Content to make the MarcomGather Software and its features available to Customer in accordance with this Section 4, including without limitation by making Customer Content available for viewing, download and modification by Customer Users and, if chosen by Customer Users using the settings available through the MarcomGather Software, by third parties. The MarcomGather Software includes features that permit Customer Users to view, modify, collaborate on, and share Assets, permit Sys Admins to set certain limits on how Assets can be shared.     MarcomCentral will have no liability for any distribution, publication, use, display or disclosure of Customer Content by Customer Users via the MarcomGather Software, including without limitation Customer Content which violates security or privacy regulations (including without limitation the MarcomCentral Privacy Policy set forth in section 8 below).  MarcomCentral may distribute or make available Customer Content to MarcomCentral’s service providers who act on MarcomCentral’s behalf in providing the MarcomGather Software to Customer Users; provided that (a) such service providers are subject to confidentiality obligations substantially as protective of the Customer Content as this Agreement and (b) MarcomCentral will be responsible for any breach of this Agreement by such service providers in connection with provision of the MarcomGather Software.

4.3 Security of Customer Content. MarcomCentral will provide the MarcomGather Software in accordance with its the Privacy Policy set forth in the Order Request; provided, that MarcomCentral will in any event maintain at least commercially reasonable administrative, technical and procedural safeguards designed to safeguard the Customer Content from unauthorized access, disclosure or  loss.

4.4 Treatment of Customer Content at Termination. After termination or expiration of this Agreement, MarcomCentral will retain customer data for 90 days to allow the customer to export out their Assets if desired or required. After the defined time frame of 90 days, per the MarcomCentral records retention policy, all data will be deleted.

5. MarcomCentral APIs, Third Party Applications, and Pre-Release Applications.

5.1 MarcomCentral APIs. MarcomCentral, at its sole option,  may make certain application programming interfaces (APIs), API access tokens, HTML scripts, data import tools, user interfaces or other software available to Customer as part of the MarcomGather Software and related security management (collectively, “MarcomCentral APIs”). Subject to payment for MarcomCentral APIs under an Order Request, MarcomCentral will grant  Customers a non-exclusive, non-transferable license, only during the Term, for Customer Users to use any such MarcomCentral APIs solely to access and use the MarcomGather.  Customer agrees not to distribute, disclose or make available the MarcomCentral APIs to any third party or, unless Customer is a registered user of MarcomCentral’s Development Platform and has accepted MarcomCentral’s Development Program Agreement, to distribute, disclose or make available any software application or Web site that incorporates or calls the MarcomCentral APIs.

5.2 MarcomCentral Trial Applications. As used in this Agreement, the term “MarcomGather” excludes any Pre-Release, Alpha or Beta test versions, or “MarcomCentral Trial” Applications that MarcomCentral may separately make available to Customer (“Trial Applications”). Trial Applications are experimental, trial applications that may “break” or cease to be available at any time. MarcomCentral may remove or suspend access to Trial Applications at any time. Trial Applications are not required in order to use the MarcomGather Software and are not part of the MarcomGather, even if Customer elects to integrate them with the MarcomGather. Separate terms and conditions accompanying the Trial Applications may be posted at the time of use or registration, and shall govern in the event of a conflict of terms with this section.  TRIAL APPLICATIONS ARE AVAILABLE ONLY ON AN “AS IS” BASIS. MARCOMCENTRAL MAKES NO WARRANTY AS TO THE ACCURACY, RELIABILITY, COMPLETENESS, USEFULNESS, NON-INFRINGEMENT, AVAILABILITY OR QUALITY OF ANY TRIAL APPLICATIONS OR THE CONTENT MADE AVAILABLE THROUGH TRIAL APPLICATIONS, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, FOR THE TRIAL APPLICATIONS, INCLUDING WITHOUT LIMITATION   IMPLIED   WARRANTIES   OF   MERCHANTABILITY,  FITNESS   FOR   A   PARTICULAR   PURPOSE,   AND  NON-INFRINGEMENT. THE FOREGOING DISCLAIMER APPLIES EVEN IF CUSTOMER INTEGRATES TRIAL APPLICATIONS WITH THE MARCOMGATHER.

5.3 Third Party Applications. MarcomCentral may make available to Customer certain third party software applications (“Third Party Applications”) for use in connection with the MarcomGather. These Third Party Applications are not part of the MarcomGather, and this Agreement does not apply to such Third Party Applications, even if Customer elects to integrate Third Party Applications with the MarcomGather. Each Third Party Application is made available exclusively in accordance with the terms and conditions of the end user license agreement accompanying it and any notifications regarding its availability and use provided by MarcomCentral.  MarcomCentral has no liability whatsoever with respect to Third Party Applications.

6. Term and Termination.

6.1 Term; Renewal Term. This Agreement begins on the Effective Date set forth in the Subscription Agreement and will remain in effect through the Subscription Term for the period set forth in the Subscription Agreement (the “Initial Term”).  Unless otherwise provided in the Subscription Agreement, the Agreement will automatically renew after the Initial Term for successive renewal terms (each a “Renewal Term”) unless a party elects not to renew in accordance with Section 6.2 below.  Collectively, the Initial Term and any Renewal Terms are referred to in this Agreement as the “Term.”  MarcomCentral may raise the Subscription Fee for Renewal Terms upon written notice to Customer (including via email) at least 30 days in advance of the Renewal Term.; MarcomCentral agrees to limit price increases to any Renewal Term Subscription Fee, for items paid for under the initial Subscription Agreement, to 5% above the price applicable to the current Term.

6.2 Non-Renewal at Term. Either party may terminate this Agreement, effective as of the end of the then-current Term (including the Initial Term and any Renewal Term), by giving the other party at least thirty (30) days’ prior written notice of non-renewal.

6.3 Termination on Cessation of Service.  MarcomCentral shall have the right, upon ninety (90) days written notice to Customer, to terminate this Agreement without any liability to Customer and Customer Users, if MarcomCentral decides to cease offering the MarcomCentral System for general availability.   If Customer has prepaid for a term of service under this Agreement beyond the resulting termination date, MarcomCentral agrees to refund a pro-rated portion of such payment to Customer for the remaining, unused term of service.

6.4 Termination for Cause. Either party may terminate this Agreement immediately if the other party breaches any material provision and fails to cure its breach within thirty (30) days after receiving the other party’s written notice identifying the breach. In addition, MarcomCentral may discontinue Customer’s access to the MarcomGather Software immediately if (a) Customer fails to make a payment for more than fifteen (15) days following its due date, or (b) Customer has (or MarcomCentral reasonably suspects that Customer has) breached Section(s) 3.1, 3.3 or 3.4 or misappropriated or infringed MarcomCentral’s intellectual property or proprietary rights in the MarcomGather.

6.5 Effect of Termination. Upon expiration or termination of this Agreement for any reason: (a) all rights and obligations of the parties under this Agreement will cease, except that the following sections of the Agreement will survive any such termination or expiration: 2 (with respect to undisputed amounts that are accrued but unpaid as of the effective date of termination), 4.1, 4.4, 6.4, 7, 8, 9.1, 10.1, 10.3, and 11 through 15; (b) notwithstanding any provision of any surviving section, Customer will have no further right to use the MarcomGather; and (c) Customer will not be entitled to any refund of fees paid, except that if Customer terminates the Agreement for MarcomCentral’s uncured breach pursuant to Section 6.4, Customer will be entitled to a pro rata refund of prepaid, unused Subscription Fees.

7. Ownership of the MarcomGather.

7.1 MarcomGather and Documentation. As between the parties, MarcomCentral retains all right, title and interest in and to (a) the MarcomGather Software and the technology and software used to provide it, and all intellectual property and proprietary rights therein; and (b) all electronic and print documentation and other content and data (excluding Customer Content) made available through the MarcomGather. Except for Customer’s license to access and use the MarcomGather Software set forth in this Agreement, nothing in this Agreement licenses or conveys any of MarcomCentral’ s other intellectual property or proprietary rights to anyone, including Customer.

7.2 Feedback. Customer agrees that MarcomCentral will have a perpetual right to use and incorporate into the MarcomGather Software any feedback or suggestions for enhancement that Customer or a Customer User provides to MarcomCentral concerning the MarcomGather Software (“Feedback”), without any obligation of compensation.

8 Privacy. MarcomCentral provides the MarcomGather Software in accordance with its Privacy Policy (referenced on the Order Request), as it may be updated from time to time and made available for public reference (“Privacy Policy”). Customer acknowledges by entering into this Agreement that Customer Users’ use of the MarcomGather Software is governed by the Privacy Policy.

9. Confidentiality.

9.1 Confidential Information; Restrictions on Use and Disclosure. As used herein, the “Confidential Information” of  a party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party may designate as confidential at the time of disclosure to the other party (“Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. The terms and conditions of this Agreement are the Confidential Information of each party, Customer Content is Customer’s Confidential Information (subject to Section 9.2), and the MarcomCentral APIs are MarcomCentral’s Confidential Information. Except as expressly permitted in this Agreement, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this Agreement (including, in the case of MarcomCentral, to provide the MarcomGather). Notwithstanding the foregoing, the Receiving Party  may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not  prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party’s breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party’s breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party’s breach of any obligation owed to the Disclosing Party.  Disclosures of Confidential information or data made pursuant to court order or applicable whistleblower statutes or regulations shall be excepted from claims of breach under this Agreement, provided they are made with appropriate notice and subject to each party’s right to seek appropriate limitations on public disclosure in legal proceedings before the court.  The Receiving Party will return or destroy all Confidential Information upon the Disclosing Party’s request after the termination or expiration of this Agreement and (if requested by the Disclosing Party) certify such return or destruction in writing.

9.2 Use and Disclosure of Customer Content. The MarcomGather Software is designed to facilitate creation, collaboration and sharing of Customer Content among Customer Users and (if licensed as Customer Users) third parties. Accordingly, notwithstanding Section 9.1 (Confidential Information) or any provision of any separate nondisclosure agreement entered into by the parties, MarcomCentral may distribute and disclose Customer Content to third parties as permitted in Section 4.2.

10. Representations and Warranties; Disclaimer.

10.1 General. Each party represents and warrants that it has the necessary authority to enter into this Agreement.

10.2 Limited Warranty for MarcomGather. MarcomCentral represents and warrants that the MarcomGather Software will operate substantially as described in the online documentation made available with the MarcomGather, and will provide support in conformity with its standard MarcomGather Service Level.

10.3 Disclaimer. Customer acknowledges that, as an internet-delivered software application, the MarcomGather Software may experience periods of downtime, including but not limited to scheduled maintenance. Accordingly, EXCEPT FOR  THE LIMITED WARRANTIES IN SECTION 10.2, MARCOMCENTRAL MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE MARCOMGATHER SOFTWARE, INCLUDING ITS DOCUMENTATION, ANYAPIS, OR ANY DATA OR CONTENT MADE AVAILABLE THROUGH THE MARCOMGATHER SOFTWARE, WHETHER EXPRESS OR IMPLIED. MARCOMCENTRAL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, AND ACCURACY. MARCOMCENTRAL DOES NOT WARRANT THAT THE MARCOMGATHER SOFTWARE WILL BE ERROR-FREE OR OPERATE WITHOUT INTERRUPTIONS OR DOWNTIME.

11. Liability Limitation; Damages Exclusion. EXCEPT FOR LIABILITY ARISING FROM BREACH OF SECTION 9 (CONFIDENTIALITY), SECTION 12 (INDEMNIFICATION FOR THIRD PARTY CLAIMS), AND/OR FROM THE INFRINGEMENT OR MISAPPROPRIATION BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS (COLLECTIVELY, “EXCLUDED LIABILITY”), NEITHER PARTY OR ANY OF ITS DIRECTORS, OFFICERS OR EMPLOYEES WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, FOR ANY CLAIM OF ANY NATURE ARISING UNDER THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR EXCLUDED LIABILITY, NEITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT WILL EXCEED THE SUBSCRIPTION FEE PAID.

12. Indemnification for Third Party Claims.

12.1 By MarcomCentral. Subject to the limitations set forth in this section, MarcomCentral will defend, indemnify and hold harmless Customer and its corporate affiliates, directors, officers, employees, successors, assigns, representatives and agents from and against any loss or liability arising from a third party claim, demand, or action, and all resulting damages, settlement amounts, penalties, costs and expense, to the extent such third party claim, demand or action alleges that the MarcomGather Software, when used by Customer in compliance with this Agreement, (a) infringes or violates any intellectual property or other proprietary right of any third party; or (b) arises from any breach of any warranty or term of this Agreement by MarcomCentral.  In no event, however, shall MarcomCentral be obligated under this section to the extent any such infringement or violation arises from (a) use of the MarcomGather Software in combination with technology or services not provided by MarcomCentral or (b) Customer Content.

12.2 Notice of Infringement Claim:  Upon receipt of actual notice of any demand, claim, suit or proceeding against Customer from a third party that contends that  the MarcomGather Software infringes any United States or European Union patent or copyright or misappropriates any trade secret of a third party (an “Infringement Claim”), Customer shall provide prompt written notice of such Infringement Claim to MarcomCentral and will authorize MarcomCentral to have sole control over the defense and/or settlement of such Infringement Claim; however, MarcomCentral shall not settle any Infringement Claim without the prior written approval of Customer.  Upon MarcomCentral’s written request, Customer will provide reasonable cooperation in the defense and/or settlement of the Infringement Claim.  If Customer complies with all of the requirements above, then MarcomCentral will: (i) defend the Infringement Claim at its expense; (ii) pay any damages and costs awarded in a judicial proceeding or binding dispute resolution proceeding against Customer (or payable by Customer pursuant to a settlement agreement) arising out of the Infringement Claim; and (iii) reimburse Customer for reasonable costs and expenses incurred by Customer to provide the cooperation requested by MarcomCentral pursuant to this section.

12.3 Limitation of Infringement Liability: In addition to the limitations given above, MarcomCentral will have no obligation to indemnify Customer regarding an Infringement Claim if the Infringement Claim arose from: (i) Customer’s use of the MarcomCentral System not in accordance with the Agreement or for purposes not intended by MarcomCentral; (ii) any use of the MarcomCentral System in combination with other product(s), equipment, software, or data not supplied by MarcomCentral, if but for such combination, the MarcomCentral System would not be subject to such Infringement Claim; or (iii) any modification of the MarcomCentral System by anyone other than MarcomCentral (other than fields configurable by Customer Users within the MarcomCentral System application). 

12.4 By Customer. Customer will defend, indemnify and hold harmless MarcomCentral and its corporate affiliates, directors, officers, employees, successors, assigns and agents from and against any third party claim, demand or action, and all resulting damages, settlement amounts, penalties, costs and expenses, that arises out of or relates to Customer Content (except to the extent such claim arises from MarcomCentral’s misappropriation of Customer Content for use outside the scope of and in violation of this Agreement), including without limitation claims that Customer Content infringes or violates any intellectual property or proprietary right of a third party, violates any confidentiality obligation owed to a third party, or violates any applicable law.

12.5 Conditions. The indemnifying party’s obligations under this section are contingent on the indemnified party: (a) promptly providing written notice of the claim to the indemnifying party, (b) giving the indemnifying party sole control of the defense and settlement of the claim, and (c) providing the indemnifying party, at the indemnifying party’s sole expense, all reasonable assistance requested in connection with such claim. In no event will an indemnified party be liable for any settlement that admits any fault of or imposes any monetary liability on an indemnified party without its prior written consent.

13. Independent Contractors. Each party is an independent contractor with respect to this Agreement and may not act on behalf of nor bind the other party.  The provisions of this Agreement will not be construed to establish any form of partnership, agency or joint venture of any kind between Customer and MarcomCentral.  All persons furnished by either party to accomplish the intent of this Agreement will be considered the furnishing party’s employees or agents and the furnishing party will be solely responsible for compliance with all laws, rules and regulations with respect to those employees and agents, including without limitation laws regarding employment, hours of labor, working conditions, workers’ compensation, payment of wages, and withholding and payment of all applicable taxes of any nature.

14. Non-Solicitation.  During the Term and for a period of one (1) year thereafter, Customer will not (a) hire or attempt to hire any of MarcomCentral’s employees or consultants or (b) solicit, induce, recruit or encourage any of MarcomCentral’s employees or consultants to terminate their relationship with MarcomCentral.  Excluded from this section is any open or public solicitation or recruiting by a party which his responded to by employees or consultants of the other party or done with the notice and consent of the other party.

15. Force Majeure. Neither party is liable for delay or default under this Agreement if caused by conditions beyond its reasonable control (e.g., interruptions due to war, weather, related technology malfunctions, or acts of God).  In the event either party is excused from performance pursuant to the foregoing sentence, then such party shall take all reasonable actions to resume, or provide alternative performance of its obligations hereunder, as soon as feasible. Notwithstanding any legal standards established at law or by court decision, the parties agree to discuss and come to reasonable business accommodation for business interruptions directly caused by pandemic.

16. Governing Law; Dispute Resolution. This Agreement is governed by the internal laws of the State of Delaware, without regard to its conflicts of law rules, and each party hereby consents to exclusive jurisdiction and venue in the state and federal courts located in New Castle County, Delaware for any dispute arising out of this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.

17. Assignment. Subject to the Notices provision set forth below, upon prior written notice either party may assign this Agreement to any third party acquiring all or substantially all such party’s assets or equity securities, without any requirement to obtain written consent for such assignment; otherwise, neither party may assign this Agreement to a third party without the written consent of the other party in advance.  This Agreement will bind and benefit the parties, their successors, and their permitted assigns.

18. Notices. Except where this Agreement permits notice via email, all notices under this Agreement must be in writing and sent via nationally recognized delivery service with tracking and signature verification, or via registered U.S. mail. Notices will be deemed given five (5) business days after being sent.  Notices must be addressed: if to MarcomCentral, to ATTN: Legal Affairs, 201 Lomas Santa Fe Drive, Suite 300, Solana Beach, CA  92075; and support and technical notices may be sent via email with the written consent of the other party (e.g., as specified in a Statement of Work signed by the Parties or incorporated in a written agreement, such as a Service Level Agreement), using the email address provided with such consent; and, if to Customer, to Attn: Contracts Administration at the address set forth on the Subscription Agreement (and, for notices permitted to be sent via email, to the email address set forth on the signature page).

19. Entire Agreement; Amendment; Waiver; Interpretation. This Agreement (including the Subscription Agreement, Commercial Terms, Terms & Conditions, and Exhibits) represents the entire agreement between MarcomCentral and Customer with respect to Customer’s use of the MarcomGather Software and the related matters set forth in it. As between MarcomCentral and Customer, this Agreement expressly supersedes (i) any terms or conditions stated in any prior written documentation, including but not limited to a Customer purchase order, order documentation or similar document, whether submitted or executed before or after the Subscription Start Date set forth in the Subscription Agreement, (ii) any online agreement for the MarcomGather Software that Customer or a Customer User may have accepted, or may accept in the future, in the course of using the MarcomGather, and (iii) any other contemporaneous or prior agreements or commitments regarding the MarcomGather Software or the other subject matter of this Agreement. This Agreement may be modified only in a written amendment or agreement executed by an authorized representative of each party.  The waiver of any provision of this Agreement will be effective only if in writing signed by an authorized representative of each party, and no such waiver will operate or be construed as a waiver of any subsequent term.  The waiver of any breach of any provision of this Agreement will be effective only if in writing, and no such waiver will operate or be construed as a waiver of any subsequent breach.  If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions herein will remain in full force and effect and will be conformed to a valid and enforceable provision to meet the intent of the parties to this Agreement.