These terms and conditions create a contract (the “Agreement”) between you (the “Client”), and Casters Holdings, Inc. dba Fyllo, located at 433 West Van Buren Street, Suite 200, Chicago, IL 60607 (“Fyllo”). Fyllo and the Client may be individually referred to as a “Party” and collectively referred to as the “Parties.” This Agreement governs the Client’s access to and use of the Fyllo Sites and Service(s). To the extent there is a conflict between the language of this Agreement and the language of the SOW (as defined below), the language of the SOW shall prevail.
This Agreement shall be effective on the date of your acceptance of this Agreement (the “Effective Date”).
THIS AGREEMENT WILL BE DEEMED IMMEDIATELY ACCEPTED IF CLIENT EITHER: (I)EXECUTES AN SOW OR OTHER CONTRACT WITH FYLLO OR ITS AFFILIATES THAT REFERENCES THIS AGREEMENT OR (II) BY UTILIZING, RECEIVING OR OTHERWISE GAINING BENEFIT FROM THE FYLLO SITES OR SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “CLIENT” OR “CLIENTS” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICE(S).
Except to the extent expressly provided otherwise herein, the following definitions shall apply in the Agreement and any applicable SOW(s):
“Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control of the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.
“Aggregate Anonymous Data” means any information or data, including Client Data, that is aggregated and anonymized so that the data itself is not personally identifiable.
“Confidential Information” means any information or material that is disclosed by a Party to the other Party, and which is identified, either verbally or in written form, as “confidential” or “proprietary” or which, given the nature of the information or material, should reasonably be understood to be confidential or proprietary, including but not limited to all information (appearing in whatever medium) relating to intellectual property, trade secrets, business plans, sales and marketing methods, customers and customer lists, personally identifying information, data, designs, financial information, forecasts, inventions, know-how, methods, market analysis, patents, pricing, products, prerelease offerings, procedures, programs, research and development, security policies and processes, source and object code, strategies and other works of authorship of the Disclosing Party. The party disclosing Confidential Information is the “Disclosing Party” and the party receiving Confidential Information is the “Receiving Party.” Confidential Information does not include information that (i) became publicly known through no fault of the Receiving Party, (ii) was properly and lawfully known to the Receiving Party, without restriction, prior to disclosure by the Disclosing Party, (iii) became properly and lawfully available to the Receiving Party through a third party, or (iv) was independently developed by the Receiving Party.
“Content” means any information, data or features provided by Fyllo which is contained within or provisioned with the Service.
“Client Data” means any information, data or material that is submitted by the Client or to the Client’s Subscription by any non-Fyllo party during the term of this Agreement.
“Effective Date” means the date on which the Client accepts this Agreement by one of the methods of acceptance defined in the introduction hereto, thereby evidencing Client’s agreement with the terms and conditions herein, and the date upon which this Agreement goes into legal effect between the Parties.
“Force Majeure Event” means an event, or series of related events, that is outside the reasonable control of the Party affected and includes, but is not limited to, internet failures, failures of any public communications network, hacker attacks, denial of service attacks, virus or malicious software attacks/infections, power failures, industrial disputes, changes in law, disasters (either man-made or natural, including pandemics), explosions, fires, riots, terrorist attacks, wars, and any governmental interference (whether legal or not).
“Fyllo Sites” means all websites to which this Agreement is posted, including without limitation hellofyllo.com.
“Insertion Order” means the digital media order form, representing the commitments from the Client to use Fyllo’s Services for the purpose of purchasing placements across media publishers for the Client’s advertising.
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registered or unregistered, arising from common law or statute, including any application or right of application for such rights, including but not limited to copyrights, trademarks, trade secrets, know-how, patents, database rights, trade names, service marks, unfair competition rights, and confidential information rights.
“Malicious Code” means computer code, files, scripts, agents, or programs designed to do harm, or to use the application in a way that was not intended, including, for example, viruses, worms, time bombs, Trojan horses, and the like.
“SOW” means, when applicable, a form containing the additional terms of the Subscription(s) or an Insertion Order, not already included in this Agreement, which details delivery fees, charges, contact representatives and the like. “SOW”, as used herein, shall also mean any online order made by a Client through a Fyllo Site or for a Service provided by Fyllo or its Affiliates (each also a “Self Service Product”). Any use of a Self Service Product shall also be subject to the Self Service Terms, as may be amended from time to time (currently located at https://hellofyllo.com/self-service-terms). When a Party enters into an SOW and/or this Agreement, it agrees, for itself and its Affiliates, to be bound to the terms herein as if they were original Parties hereto.
“Service(s)” means any software application(s) that Fyllo provides to the Client or has an obligation to provide to the Client, under this Agreement, any applicable SOW, and pursuant to the terms of the Client’s Subscription(s) set forth therein.
“Subscription” means the license, as defined in Section 2.1 of this Agreement, that Fyllo grants to the Client (i) to use a specific set and number of features of the Service(s) (the “Subscription Plan”); (ii) for a specific period of time (the “Subscription Period”); (iii) by a specified number of Users; and (iv) for a fee determined in accordance with Section 11 of this Agreement. The Subscription Plan, the Subscription Period, the number and type of Users, and the amount and terms of the fee referenced in this definition shall be set forth in applicable SOW(s). “Subscription(s)” shall include in its meaning the terms, conditions, and privileges associated with Client’s use of the Service.
“Trusted Vendor” means a vendor assessed, approved, and engaged by Fyllo who can competently provide services to Fyllo and be trusted with access to limited Client Data as necessary in order to fulfill one or more specific functions within the Services. Trusted Vendors are approved on a case-by-case basis, are obligated to comply with industry-standard security frameworks or pass a security evaluation, and agree to confidentiality covenants no less restrictive than those contained in this Agreement.
“User” means no more than one (1) individual person who is authorized by the Client to use the Service, under the terms of the Client’s Subscription, and to whom the Client has supplied a User Account. Such Users may be employees, contractors, consultants, agents, or other third parties. Fyllo reserves the right to remove any unauthorized User at any time.
“User Account” means (i) the user identification, password, and any associated software user data and profile the Client provides to a User and (ii) the accompanying authority to access and use the Client’s Subscription. Each User Account shall be associated with no more than one (1) User.
2. FYLLO RESPONSIBILITIES
2.1 Subject to the terms and conditions of this Agreement, Fyllo agrees (i) to provide the Service to the Client and grants to the Client a limited, non-exclusive, non-transferable, non-sublicensable, revocable, worldwide license to use the Service, according to the terms and conditions of all included Subscriptions, solely for the Client’s own business purposes; and (ii) to provide to the Client commercially reasonable technical support via telephone and email as defined in the Client’s Subscription Plan.
2.2 All rights not expressly granted herein to the Client are reserved by Fyllo.
3. CLIENT RESPONSIBILITIES
3.1 The Client is responsible for all activity occurring during the Client’s use of the Service, including that of its Users. All such activity must comply with all terms of this Agreement, any applicable SOW(s), and any applicable local, state, national and international laws, regulations and treaties (collectively “Laws”) governing the Client’s use of the Service, including all applicable Laws relating to export restrictions, data privacy, international communications and transmission of technical or personal data. The Client shall: (i) use reasonable efforts to prevent unauthorized access or use of the Service, including the use of associated User Accounts, by employees, Users, and any third parties; (ii) use the Service and Content only in accordance with this Agreement, any SOW(s), and any other guidance given by Fyllo; (iii) notify Fyllo within twenty-four (24) hours of any unauthorized use or any other known or suspected breach of security pertaining to the Service or the Content; and (iv) use reasonable efforts to immediately stop any unauthorized copying or distribution of Content beyond the intended use as defined herein, that is known or suspected by the Client, its employees, third parties or its Users.
3.2 The Client shall not (i) sell, resell, transfer, sublicense, or assign the license granted to it by Fyllo under this Agreement (except pursuant to a permitted assignment wherein Fyllo expressly agrees in writing to the Client’s assignment of this Agreement); (ii) distribute or otherwise commercially exploit or make available to any third party the Service or Content, in whole or in part, in any way; (iii) modify or make derivative works based upon the Service or the Content; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions, or graphics of the Service, or (c) copy any ideas, features, functions, or graphics of the Service.
If Client is in the business of providing legal services to customers outside the scope of this Agreement, this Section 3.2 does not preclude Client from using the Service and Content to benefit Client’s customers in the ordinary course of business.
3.3 The Client is prohibited from interfering in any way with the normal operation of the Service or the Content, by means including but not limited to: (i) denial of service attacks; (ii) vulnerability scanning; (iii) port scanning; (iv) penetration testing and attempts; (v) anything illegal under applicable Laws; and (vi) use or transmission of any Malicious Code.
4. INTEGRATING FYLLO WITH THIRD-PARTY APPLICATIONS
4.1 The Client may integrate its Fyllo account with approved third-party software applications, introduced from a source other than Fyllo. The Client acknowledges and agrees that integrating its Fyllo account with a third-party application does not by virtue make Fyllo a party to any relationship among the Client, its Users, and the entity providing any such third-party software application. Any claim brought pursuant to such relationship will fall under the right of Fyllo to be indemnified by the Client for any claim brought by a third-party in accordance with Section 15.1 of this Agreement.
4.2 By using a third-party software application, the Client instructs and grants permission to Fyllo to allow the entity providing any such application to access Client Data as required for the interoperation of such third-party software application with the Service. Fyllo is not responsible for any disclosure, modification, deletion, or other processing of Client Data resulting from access by the entity providing such third-party software application.
4.3 Any integration of the Client’s Fyllo account with third-party software applications remains the full responsibility of the Client including, but not limited to, data transfers and any processes that result from the integration. Fyllo does not act as an intermediary between Client and the third-party application and holds no legal involvement in such relationships.
5. ADVERTISING MATERIALS
For Client’s using Fyllo’s Services for the purpose of purchasing advertising placements across media publishers, the following terms apply in addition to the terms of the applicable Insertion Order:
5.1 The Insertion Order is governed by version 3.0 of the AAAA/IAB Standard Terms and Conditions available at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf (the “IAB Terms”). The two blanks at Section XIV shall be Illinois and Cook County, respectively. Sections IV(c) and V-VII of the IAB Terms shall not apply to the Insertion Order.
5.2 For Clients using Fyllo’s advertising and media buying Services, Client grants to Fyllo a non-exclusive right to access, use, reproduce, display/perform and store Client Data pursuant to the Client’s insertion order. Fyllo will not use Client data to reverse engineer or in a manner that contradicts or extends beyond the scope of the Client’s Insertion Order.
7. DATA PROTECTION
7.1 Fyllo agrees to implement and maintain appropriate and commercially reasonable technical, physical, and administrative security controls reasonably designed to protect the confidentiality, integrity and availability of Client Data.
7.2 If Fyllo becomes aware of any actual unlawful or unauthorized loss, disclosure, alteration of, or access to Client Data processed in the Service (each a “Security Incident”), Fyllo will promptly notify the Client of each Security Incident and take reasonable steps to mitigate the effects of the Security Incident(s).
7.3 The Client agrees that Fyllo may make Client Data available to Trusted Vendors, who are engaged by Fyllo for the specific, limited purpose of helping to provide the Service. Trusted Vendors are bound by data security and privacy covenants no less restrictive than those contained in this Agreement.
8.1 The Receiving Party agrees to hold in confidence and not use, disclose, publish, release, transfer or otherwise make available to anyone Confidential Information of the Disclosing Party, except as necessary to carry out the terms of this Agreement, or as expressly authorized by the Disclosing Party in writing, and agrees to limit access to Confidential Information of the Disclosing Party to employees and contractors of the Receiving Party who have: (i) a need to know the Confidential Information in order to carry out the terms of this Agreement and (ii) signed agreements containing confidentiality and data security protections no less stringent than those herein.
8.2 If the Receiving Party is compelled by Law to disclose Confidential Information of the Disclosing Party, the Receiving Party agrees, to the extent allowed by applicable Laws, to give the Disclosing Party immediate notice of the compelled disclosure. The Receiving Party further agrees to give reasonable assistance to the Disclosing Party, to the extent legally permitted, and at the Disclosing Party’s expense, in any contest by the Disclosing Party to the compelled disclosure.
9. OWNERSHIP AND USE OF CLIENT DATA
Fyllo does not own Client Data submitted as part of the Service. The Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and intellectual property ownership or right to use of all Client Data, and Fyllo is not responsible or liable for the deletion, correction, alteration, destruction, damage, loss, or failure to store any Client Data. The Client agrees to indemnify and hold Fyllo harmless from any damage, loss, claim, complaint (legal or customer), demand, or cause of action for any issue arising from Client Data deletion, damage, use or misuse, except to the extent that Fyllo is solely responsible for deletion or damage not related in any way to Client’s breach of the Agreement.
The Service enables the Client to download the Client Data during the term of the Subscription in a structured, commonly used, and machine-readable format, by way of the reporting features of the Service. The Client may also download the Client Data from the Service only if a renewal order for its Subscription is placed within thirty (30) days of the termination of this Agreement. The Client acknowledges and agrees that Fyllo has no obligation to retain Client Data beyond thirty (30) days after termination of this Agreement for any reason. No later than one hundred and eighty (180) days from termination of this Agreement for cause or no cause, Fyllo will delete and remove all Client Data without liability. Upon termination for cause, Client’s right to access or use Client Data and the Service immediately and automatically ceases.
The Client acknowledges Fyllo has the right to use Aggregated Anonymous Data to: (i) compile statistical and performance information related to the provision and operation of the Service, and (ii) make such information available to use and to supplement the Service. However, Fyllo’s access to Client Data and User information shall not be disclosed at the individual identifiable level for any commercial purposes not related to the Service. Fyllo retains all Intellectual Property Rights in the Aggregated Anonymous Data and such data shall be deemed as Fyllo Property (as defined below).
10. INTELLECTUAL PROPERTY OWNERSHIP
Fyllo solely owns all right, title and interest, including all Intellectual Property Rights, in and to the Fyllo intellectual property, including but not limited to, its technology, the Content, the Service, the platform, the name, the logos, the websites and any suggestions, ideas, enhancement requests, feedback, recommendations or any other information provided by the Client, the Users or any other party relating to the Service and Aggregated Anonymous Data (collectively “Fyllo Property”). This Agreement does not convey any Intellectual Property Rights of ownership to the Client in the Fyllo Property. The Client may not use, copy, reproduce, replicate, distribute, transfer, sell, or license, in whole or in part, any part of the Fyllo Property except as expressly set forth in this Agreement.
The Client shall own all right, title and interest, including Intellectual Property Rights, in and to its technology, products, services, websites, name and logos. This Agreement does not convey any Client Intellectual Property Rights of ownership to Fyllo.
Fyllo respects the Intellectual Property Rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found at http://www.copyright.gov/legislation/dmca.pdf, Fyllo will respond expeditiously to claims of copyright infringement committed using the Services and/or the Fyllo Sites if such claims are reported to Fyllo’s designated DMCA Agent. If you are a copyright owner or an agent thereof, please notify us of the alleged copyright infringement taking place on or through Fyllo Sites by contacting our designated agent. Our designated agent’s contact information is:
433 W. Van Buren Street, Suite 200
Chicago, IL 60607
Such notice must include the following:
• Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);
• Reasonably sufficient details to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);
• Your contact information so that we can contact you (for example, your address, telephone number, email address);
• A statement that you have a good faith belief that the use of the allegedly infringing material is not authorized by the copyright owner, its agent, or the law;
• A statement, under penalty of perjury, that the information in the notification is accurate and that you are the owner or are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
• Your physical or electronic signature.
Upon receipt of the DMCA notice, Fyllo will take whatever action it deems appropriate, in its sole discretion, including removal of the content at issue from the Fyllo Sites. It is Fyllo’s policy, in appropriate circumstances, to terminate the accounts of Users who are repeat infringers or are repeatedly charged with infringement.
11. PAYMENT AND FEES
11.1 The Client shall pay all fees and charges for the agreed-upon Subscription Period, as set forth in any applicable SOW(s) and/or, if applicable, as stated on any Fyllo Site, which have been incorporated herein by reference. Payments must be made in advance for the complete Subscription Period, unless otherwise agreed to mutually in writing. Fyllo reserves the right to modify its fees and charges, in its sole discretion, upon thirty (30) days prior written notice to the Client. Notice may be provided by email, sent to the email address provided by the Client. In no event will any increase in fees be more than five percent (5%) in any given year. Any increases in charges (which are separate from fees) will be determined by Fyllo in its sole discretion. All payment obligations are non-cancellable and all amounts paid are non-refundable. The Client is responsible for paying all applicable fees and charges for the entire Subscription Period. The Client remains responsible for paying all such fees and charges whether or not the Service is used and even in the event that this Agreement is terminated by either Party (except in the event of termination by Fyllo for convenience) before the scheduled end of any current applicable Subscription Period. All pricing terms are Fyllo’s Confidential Information.
11.2 Unless otherwise provided for in applicable SOW(s), the Service and the Content are licensed as Subscriptions for the Subscription Period indicated, whether that is for a month, a single year, or any other period of time stated. The Client may upgrade its Subscription during the Subscription Period, in which case the fee for the upgraded Subscription will be prorated for the remaining portion of the current Subscription Period.
11.3 At all times during the existence of this Agreement, Client will provide Fyllo with valid name, address, and bank account information necessary and sufficient for Fyllo to utilize Automatic Clearing House (ACH) to obtain Client’s monthly or annual Subscription payments at all times during the existence of this Agreement. The Client is responsible for providing complete and accurate billing and contact information to Fyllo and notifying Fyllo in writing (via email) immediately or within 24 hours of any changes to such information.
11.4 If any invoiced amount is not received by Fyllo by the due date, then without limiting Fyllo’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, and/or (b) Fyllo may condition future Subscription renewals and SOWs on payment terms that are different than those specified in Section 11.3.
11.5 Fyllo’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature (collectively, “Taxes”). The Client is responsible for paying all Taxes associated with Client’s Subscriptions purchased hereunder. Each Party is responsible for taxes based on its own net income, corporate franchise, business license, property, and employee payroll.
11.6 The Client understands that the written notice required before Client may cancel the Subscription will vary according to the payment method used to pay the Subscription fees, in accordance with the provisions of Section 12, below.
12. AUTOMATIC RENEWAL, CLIENT CANCELLATION, AND TERMINATION UPON EXPIRATION
This Agreement commences on the Effective Date and continues for the duration of the Subscription Period identified in an applicable SOW (“Initial Subscription Period”), unless another term is agreed to in writing by both Parties.
UPON THE EXPIRATION OF THE INITIAL SUBSCRIPTION PERIOD, THE AGREEMENT WILL AUTOMATICALLY RENEW FOR SUCCESSIVE PERIODS (EACH, A “RENEWAL SUBSCRIPTION PERIOD”) EQUAL IN DURATION TO THE INITIAL SUBSCRIPTION PERIOD.
Each Renewal Subscription Period will be charged to the Client at the then-current fees (subject to the limitations on increases in fees described in Section 11). The Client may terminate this Agreement, including the Service and all applicable Subscriptions, by notifying Fyllo in writing within 30 days, prior to the end of the then-current Subscription Period (whether it be the Initial Subscription Period or a Renewal Subscription Period) that Client intends to cancel. Upon termination of this Agreement for any reason, Client’s license to use the Service immediately terminates fully.
The notice requirements applicable to cancellation by the Client shall vary according to the current method of payment the Client uses to pay the applicable fees and charges required by this Agreement and any applicable SOW(s). In the event the Client pays for its Subscription by a credit card submitted via the Service, the Client shall provide at least one (1) day advance written notice via email to Fyllo that it intends to terminate this Agreement. In the event the Client pays for its Subscription by any other method of payment not submitted via the Service, the Client shall provide at least sixty (60) days advance written notice to Fyllo via email.
The Client understands and acknowledges that cancellation of the Service shall have the effect of terminating this Agreement, and that the Client remains wholly responsible for the payment of any and all applicable Subscription fees for the current Subscription Period.
In addition to any other rights granted to Fyllo herein, Fyllo reserves the right to suspend or terminate this Agreement and the Client’s access to the Service if the Client’s account is not paid when due. The Client will continue to be charged for the suspended or terminated Subscription until the balance of invoices due and owing is paid in full. The Client acknowledges and agrees that Fyllo has no obligation to retain Client Data if the Client’s account is more than thirty (30) days delinquent in being paid in full.
13. TERMINATION FOR CONVENIENCE
Fyllo may, in its sole discretion, terminate this Agreement, at any time, for any or no reason, with thirty (30) days written notice to the Client. In the event that Fyllo opts to terminate this Agreement pursuant to this Section 13, Fyllo shall provide a refund to the Client of the fees prepaid by the Client on a pro-rata basis for the remaining period of the then-current term as of the date of the termination.
14. REPRESENTATIONS AND WARRANTIES
14.1 Each Party represents and warrants that (i) it has the legal right and authority to enter into and perform this Agreement; (ii) the execution and delivery of this Agreement have been duly authorized; (iii) the Agreement does not violate any law, statute, or regulation; (iv) its Confidential Information has been legally obtained; (v) it will otherwise comply with all applicable laws, rules, and regulations. Each Party further represents and warrants that (i) its performance hereunder will not violate any agreement or obligation between it and any third party; and (ii) the Service and Content (in the case of Fyllo) and Client Data (in the case of the Client) will not infringe, misappropriate, or violate the intellectual property, privacy, or publicity rights of any third party.
14.2 Fyllo represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform satisfactorily under normal use and circumstances.
14.3 The Client represents and warrants that it has and will not falsely identify itself nor provide false information to gain access to the Service, that its billing information is correct and that it will keep such information up-to-date with Fyllo, and that it will utilize the Service in accordance with all applicable Laws, this Agreement and any and all other guidelines Services as provided by Fyllo. To the maximum extent provided by applicable Laws, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any applicable SOW(s).
15. MUTUAL INDEMNIFICATION
15.1 The Client shall indemnify and hold Fyllo and its parent organizations, Affiliates, subsidiaries, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorney’s fees and costs such as expert witness costs, witness costs and the like) arising out of, or in connection with (i) claims alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a claim which, if true, would constitute a violation by the Client of the Client’s representations and warranties above, or (iii) a claim arising from the breach by the Client or the Client’s Users of this Agreement, provided in any such case that Fyllo (a) gives prompt written notice of the claim to the Client; (b) gives the Client sole control of the defense and settlement of the claim (provided that the Client may not settle or defend any claim unless the Client unconditionally releases Fyllo of all liability without requirement of any type of payment and such settlement does not affect Fyllo’s business or Service); (c) provides to the Client all available information and reasonable assistance; and (d) has not compromised or settled such claim.
15.2 Fyllo shall indemnify and hold the Client and the Client’s parent organizations, subsidiaries, Affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages losses, liabilities and expenses (including reasonable attorney’s fees and costs) arising out of, or in connection with (i) claims alleging that the Service directly infringes a copyright, a patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim which, if true, would constitute a violation by Fyllo of Fyllo’s representations and warranties above; or (iii) a claim arising from breach of this Agreement by Fyllo, provided that the Client (a) give Fyllo written notice of the claim by sending an email to email@example.com within no less than thirty (30) days of the original occurrence of the event(s) constituting such claim(s); (b) gives Fyllo sole control of the defense and settlement of the claim (provided that Fyllo may not settle or defend any claim unless Fyllo unconditionally releases the Client of all liability without requirement of any type of payment and such settlement does not affect the Client’s business); (c) provides to Fyllo all available information and reasonable assistance; and (d) has not compromised or settled such claim. If a claim alleging that the Service directly infringes a copyright, patent issued as of the Effective Date, or trademark of a third party is made or appears possible, the Client agrees to permit Fyllo, at Fyllo’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for the Client to continue use. If Fyllo determines that neither alternative is reasonably available, Fyllo may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to the Client. Fyllo shall have no obligation of indemnification and the Client shall indemnify Fyllo pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of the Client’s products, services, hardware or business processes not provided nor authorized by Fyllo. Any notice provided pursuant to 15.2(iii)(a) hereto shall specify in reasonable detail the claim, the event(s) and all other facts known related to the claim, and the amount or estimated amount of the damages suffered by the Client, which shall include all documents Client has which will enable Fyllo to assess the merits of any claims and the amount or estimated amount of the damages arising from such claim(s). Should such notice not contain all components required above, it shall be considered deficient as required hereunder.
15.3 THIS SECTION 15 SETS FORTH THE CLIENT’S SOLE REMEDIES AND FYLLO’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
16. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPLICITLY MADE IN SECTION 14, ABOVE, FYLLO MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. FYLLO DOES NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, PROCESS OR DATA; (ii) THE SERVICE WILL MEET THE CLIENT’S REQUIREMENTS OR EXPECTATIONS; (iii) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY THE CLIENT THROUGH THE SERVICE WILL MEET THE CLIENT’S REQUIREMENTS OR EXPECTATIONS; OR (v) ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICE AND ALL CONTENT IS PROVIDED TO THE CLIENT STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY FYLLO.
Pursuant to Section 15.2, Fyllo’s sole obligation and Client’s exclusive remedy for any claim of defective Services is to correct, re-perform, or re-deliver, as applicable, the Services in question without charge or, if re-performance is commercially impracticable, to refund the price paid by Client for such Services. Client must provide written notice to Fyllo within forty-eight (48) hours of any such claim in sufficient detail with any necessary backup information or documents. With respect to any Content, Client acknowledges that some corrections of errors in the Content are dependent on the availability of same from the source of the applicable Content.
18. LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CLIENT UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM, THROUGH OR IN CONJUNCTION WITH THE SERVICE OR FYLLO, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATIONS WILL NOT APPLY TO: (i) CLAIMS BY EITHER PARTY FOR BODILY INJURY OR DAMAGE TO REAL PROPERTY OR TANGIBLE, PERSONAL PROPERTY FOR WHICH SUCH PARTY AND/OR ITS PERSONNEL ARE LEGALLY RESPONSIBLE; (ii) CLAIMS FOR BREACH OF THE CONFIDENTIALITY PROVISIONS OR INTELLECTUAL PROPERTY PROVISIONS OF THIS AGREEMENT; (iii) OBLIGATIONS TO INDEMNIFY AS REQUIRED IN THIS AGREEMENT; OR (iv) CLAIMS FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY ONE PARTY AND/OR ITS PERSONNEL AGAINST THE OTHER PARTY.
19. FORCE MAJEURE
If a Force Majeure Event causes a failure or delay in Fyllo’s performance of any obligation under this Agreement, that obligation will be suspended for the duration of the Force Majeure Event. Fyllo will promptly give notice to the Client once it becomes aware of a Force Majeure Event and will inform the Client, to the best of its ability, of the period of time that is estimated that such failure or delay will continue. Fyllo will perform its obligations under the Agreement as soon as is reasonably and commercially practical given the occurrence of the Force Majeure Event.
The Client may not assign this Agreement without the prior written approval of Fyllo, which approval shall not be unreasonably withheld. Fyllo may assign this Agreement without the consent of the Client to (i) a parent or subsidiary; (ii) an acquirer of assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of the Client that results or would result in a direct competitor of Fyllo directly or indirectly owning or controlling fifty percent (50%) or more of the Client shall entitle Fyllo to terminate this Agreement for cause immediately upon written notice.
21. GOVERNING LAW AND COMPLIANCE
Governing Law. This Agreement, any SOW(s), and all matters arising out of or relating to the same shall be governed by, and construed in accordance with, the laws of the State of Delaware, U.S.A, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction). Client and Fyllo agree to submit to the personal and exclusive jurisdiction of the courts located within the State of Delaware to resolve any dispute or claim arising from this Agreement.
Compliance with Laws. Each Party shall perform all of its obligations under this Agreement in compliance at all times with all foreign, federal, state and local statutes, orders and regulations, including those relating to privacy and data protection.
22. GENERAL PROVISIONS
22.1 No text or information set forth on any other purchase order, preprinted form, or document (other than applicable SOW(s) incorporated by this Agreement) shall add to or vary the terms and conditions of this Agreement.
22.2 Neither Party shall use the name of the other Party for publicity or marketing purposes without the express written consent of the applicable Party.
22.3 No joint venture, partnership, employment, or agency relationship exists between the Client and Fyllo as a result of this agreement or use of the Service.
22.4 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
22.5 The provisions of this Agreement that, by their sense and context, are intended to survive performance by either or both Parties shall also survive the completion, expiration, termination, or cancellation of this Agreement.
22.6 This Agreement, together with any applicable SOW(s), comprises the entire agreement between the Client and Fyllo and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein.
22.8 (a) The content of Fyllo’s Services is offered only as a service and does not constitute solicitation or provision of legal advice. Fyllo does not provide legal advice of any kind. Fyllo’s services should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in Client’s jurisdiction. The Client’s use of Fyllo’s Services or the Fyllo Sites do not create an attorney-client relationship. Neither the transmission of the information contained on the Fyllo Sites nor the Client’s communications with Fyllo creates an attorney-client relationship between the parties. No information communicated to Fyllo through this site will be protected either by the attorney-client privilege or the work product doctrine. (b) Fyllo makes no claims, promises, or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to Fyllo’s Services or the Fyllo Sites. Fyllo assumes no responsibility to any person who relies on information contained in Fyllo’s Services or the Fyllo Sites and disclaims all liability in respect to such information. Fyllo shall not be liable for any loss or damage of whatever nature (direct, indirect, consequential, or other) whether arising in contract, tort, or otherwise, which may arise as a result of the Client’s use of (or inability to use) this Service or the Fyllo Sites, or from the Client’s use of (or failure to use) the information on the Service or the Fyllo Sites. (c) Fyllo’s Services or the Fyllo Sites may contain hyperlinks to other resources maintained by third parties on the Internet. These links are provided solely as a convenience to help the Client identify related information. Fyllo’s references to other resources does not imply an approval, endorsement, affiliation, sponsorship or other relationship to the linked site or its operator, content, or trade names, logos, symbols, service marks, or other intellectual property rights associated with the hyperlinks, documents, citations, or URLs provided. We do not incorporate or endorse any materials appearing in such linked sites by reference. Fyllo disclaims all liability in respect to any decisions or actions, or lack thereof based on any or all of the contents of any third-party site. Fyllo cannot and will not guarantee that Fyllo’s, or any third party’s, website is free from computer viruses or any other type of property-destructing code. (d) Although we provide no legal advice, Fyllo’s Services and the Fyllo Sites provide laws and regulations relating to the marijuana industry. Although marijuana possession, cultivation, distribution, and use may be legal under applicable state law, marijuana remains illegal under federal law. Marijuana is a Schedule I Controlled Substance under the federal Controlled Substances Act, and is a banned substance under federal law. By engaging in a business or activity which is either directly or indirectly associated with marijuana and/or the proceeds therefrom, the Client may be in violation of federal law, even if the Client is fully compliant with applicable state law. Compliance with state law does not act as a bar or a defense to an enforcement action by the federal government (whether criminal or civil) to enforce the Controlled Substances Act, or money laundering statutes such as the Bank Secrecy Act, among others. Even if fully compliant with applicable state law, the Client may be subject to imprisonment, fines and forfeiture of assets (including money, and real and/or personal property) for the violation of federal law.