Shindig Services Agreement
This Services Agreement (the "Agreement") is entered into by and between Shindig, Inc., a Delaware corporation with a place of business at 433 Broadway - Suite 505, New York, NY 10013 (“Shindig”) and the Customer identified as such on a separate Order Form executed by such Customer (“Customer”). This Agreement shall be effective as of the date the Order Form has last been signed by Customer and Shindig (“Effective Date”).
- SERVICES AND SUPPORT
- Description of Services and Order Form. Subject to the terms of this Agreement, Shindig will use commercially reasonable efforts to provide Customer the Services described in Customer’s Order Form, which is the document signed by the parties under which Customer orders the Services from Shindig. Each Order Form specifies, among other things, the description of the Services, the term the Services will be provided by Shindig, restrictions on Customer’s use of the Services, and the applicable Fees to be paid by Customer for the Services. For purposes of calculating Fees, the term “user hours” refers to each hour that a unique user is logged into a Customer event; fractional hours are counted as a full hour. Annual agreements include ten (10) hours of training without additional charge. Training and support in addition to that provided for in the Order Form may be purchased by Customer at $125 an hour. The terms of this Agreement are incorporated in each Order Form. The terms of any Customer purchase order or other pre-printed, standard terms provided by Customer will have no legal effect, and Shindig hereby notifies Customer that it objects to any such terms.
- License Grant. Subject to the terms and conditions of this Agreement, Shindig grants to Customer a personal, non-exclusive, non-sublicensable, and non-transferable license to remotely access and use the Services during the term of the applicable Order Form solely for Customer’s business purposes, and not for resale, except as expressly permitted in this Agreement. Any software, plug-ins, extensions, documentation or data related to the Services or upon which the Services are based that may be made available by Shindig in connection with the Services (including any improvements, enhancements or modifications thereto, the “Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this Agreement, Shindig grants Customer a non-transferable, non-sublicensable and non-exclusive right and license to use (and to allow its agents, employees and contractors to use) the Software, in each case solely in connection with use of the Services. No rights or licenses are granted by Shindig except as expressly set forth herein, and all other rights are reserved solely to Shindig.
- Customer Responsibilities. As part of the account registration process, Customer will identify an administrative user name and password for Customer’s Shindig account. Unless the Order Form provides otherwise, Customer may use the administrative user name and password to create an unlimited number of standard account users (each with a user password). Shindig reserves the right to refuse registration of, or cancel passwords it deems inappropriate. Customer shall be solely liable for the security of its access to the Services and for the security of each user name and password created by Customer. Customer will ensure that its agents, employees and contractors who use the Services are required to abide by obligations and restrictions consistent with this Agreement including, but not limited to, Shindig’s Terms of Service, which may be accessed at [insert URL or reference an attachment]. Shindig’s Terms of Service incorporate an Acceptable Use Policy, which will be binding upon Customer. In the event of any conflict between the terms of this Agreement and the Terms of Service, the terms of this Agreement shall control. Customer shall be responsible for any non-compliance by such agents, employees and contractors. Customer is solely responsible for any data or other information transmitted by Customer, its agents, employees or contractors through the Services. In addition, Customer is responsible for any actions by its event participants (“Event Participants”) that are not in compliance with Shindig’s Terms of Service. If Customer or its Event Participants require any transcription services for any meeting or other event conducted by Customer through the Services, Customer or such Event Participants shall be solely responsible for arranging for transcription and any costs associated therewith.
- Support. Subject to the terms hereof, Shindig will provide Customer with reasonable support services, through telephone, electronic mail or another online mechanism, in accordance with Shindig’s standard support practice and policies. Customer acknowledges that Services may be temporarily unavailable or unstable because of (i) scheduled maintenance activities or because of a need for unscheduled emergency maintenance, either by Shindig or by third-party providers, (ii) bandwidth or other limitations on internet capacity or stability caused by high internet usage generally or third-party imposed limitations, or (iii) because of other causes beyond Shindig’s reasonable control. Shindig shall use reasonable efforts to provide advance notice to Customer in writing or by email of any scheduled maintenance or other service disruption of which it is aware.
- RESTRICTIONS AND RESPONSIBILITIES
- Protection of Intellectual Property. Customer will not, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software, documentation or data related to the Services or upon which the Services are based; (ii) modify, translate, or create derivative works based on the Services or any Software; (iii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party except as expressly permitted herein or any applicable Order Form; or (iv) remove or obscure any proprietary notices or labels.
- Restrictions on Use; Privacy Law Compliance. If Customer’s usage rights are limited or restricted as to a specific entity, division, or specific class or volume of use in the Order Form, Customer shall be responsible for ensuring that Event Participants are directly affiliated with such specific entity or division, and that their use is consistent with the limitations or restrictions in the applicable Order Form. Customer agrees that Customer will use the Services only in compliance with (i) Shindig’s Terms of Service and any amendments thereto adopted by Shindig and made available to Customer by notice or by posting on Shindig’s website, and (ii) all applicable laws and regulations, including but not limited to the General Data Protection Regulation ((EU) Regulation 2016/679) ("GDPR"), the United Kingdom Data Protection Act 2018, all other laws and regulations relating to data privacy and security, and all laws and regulations relating to intellectual property, consumer and child protection, obscenity or defamation. Without limiting the foregoing, Customer agrees to comply, and require that Customer’s account users and Event Participants comply, with all applicable laws, whether federal, state, local or international, relating to the privacy of communication for all parties to a conversation, including, when required, advising all participants in a recorded video conference that the video conference is being recorded. If Customer, its account users or its Event Participants are domiciled or resident in the European Economic Area, Switzerland or the United Kingdom, for purposes of compliance with the GDPR and other applicable privacy legislation in such jurisdictions, Customer will enter into Shindig’s form of Data Processing Addendum as a pre-condition to using the Services.
In order to use Shindig’s Services, Customer will be required to register and create an account with Shindig. When Customer creates an account, and subsequently manages such account, Customer will provide Shindig with certain personal information about Customer and other people associated with Customer who may use the Services (“Account Information”). In addition, Event Participants participating in Customer events and activities also will provide Shindig with certain personal information about such Event Participants. Customer warrants that all information provided by Customer (including Account Information) is accurate. Shindig collects and stores certain personal information (excluding Account Information) in the course of providing the Services, including email address, first name and last name of an Event Participant to both identify and authenticate the Event Participant (and to personalize the services for such person), and call detail (start date/time, duration, etc.) and log in records (“Service Information”). If Customer records a meeting, such recordings are available for download exclusively by Customer pursuant to its account access, for which the Customer manages the sharing permissions and the life cycle. For security purposes, and absent express instructions to the contrary, Shindig reserves the right to delete any such recordings or other attendee data after ninety (90) days. To the extent that Shindig processes the Service Information on Customer’s behalf in the course of providing the Services, Shindig will be a data processor. In those circumstances, Shindig will only process the Service Information in accordance with Customer’s written instructions; provided, however, Shindig may use Service Information to respond to technical maintenance and services issues or limit Event Participant access where required to enforce the Terms of Service. Shindig will take and maintain appropriate technical and organizational measures to protect against unauthorized or unlawful processing of the Service Information, and against accidental loss or destruction of, or damage to, the Service Information. Shindig also may process the Service Information for its own purposes, including where Service Information is processed for the purposes of monitoring usage trends and managing network capacity. In those circumstances, Shindig will be a data controller. Shindig anonymizes and aggregates call detail records one hundred twenty (120) days from the date of collection.
Customer represents that neither Customer nor any person or entity on whose behalf the Services will be used is located in Cuba, Iran, North Korea, Sudan, or Syria; associated with the governments of these countries; or identified as a Specially Designated National by the Office of Foreign Assets Control, U.S. Department of the Treasury, or on the Denied Persons, Entity, or Unverified Lists of the Bureau of Industry and Security, U.S. Department of Commerce. Customer further represents that the Services shall not be used for or in connection with nuclear activities; the development of biological or chemical weapons, missiles, or unmanned aerial vehicles; to support terrorist activities; or in any other way that would violate U.S. export controls or economic sanctions laws. Customer agrees to promptly notify Shindig and terminate its use of the Services if it discovers that any of the foregoing conditions apply.
Customer agrees to indemnify and hold Shindig harmless from and against any damages, losses, liabilities, judgments, settlements and expenses (including without limitation reasonable attorneys’ fees and costs) in connection with any claim or action that arises from an alleged or actual breach or violation by Customer of Shindig’s Terms of Service or of any applicable laws and regulations, or otherwise arising from Customer’s use of Services. Shindig may suspend or prohibit any use of the Services it reasonably believes may be (or that is alleged to be) in violation of the foregoing or harmful to Shindig’s network or systems, or which may impair or interfere with the provision of any Services to other customers, account users or Event Participants.
- Customer Environment. Customer shall be responsible for obtaining and maintaining any devices, equipment and ancillary services (including the payment of any additional fees therefor) needed to connect to, access or otherwise use the Services (and, to the extent applicable, the Software), including, without limitation, video-enabled devices, video communication services, hardware, servers, software, operating systems, networking, web servers, internet and telephone service (collectively, the “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer’s account, passwords, and files, and for all uses of the Customer’s account or the Equipment with or without Customer’s knowledge or consent.
Acceptance of Terms of Service. All persons or entities accessing Shindig’s website (the “Platform”) for the purpose of accessing and using the Services must accept the Shindig Terms of Service as a precondition of having the right to access and use the Services. Shindig’s Terms of Service are located at https://www.shindig.com/tos/. The Shindig Terms of Service are incorporated into and are a part of this Agreement. The Shindig Terms of Service may be amended from time to time in Shindig’s sole discretion, and notice will be posted on the website of any change in the Terms of Service upon any attempted access to Shindig’s Platform. If any material change or modification in the Terms of Service are reasonably objectionable to Customer, and Customer notifies Shindig of such objection within thirty (30) days following posting of notice of such change or modification on Shindig’s website, then Customer shall be permitted to terminate this Agreement upon ten (10) business days prior written notice to Shindig unless Shindig agrees to retract such change or modification as to Customer prior to the expiration of such period.
SHINDIG’S TERMS OF SERVICE CONTAIN AN ARBITRATION CLAUSE WHICH BINDS SHINDIG, CUSTOMER, ACCOUNT USERS AND ALL EVENT PARTICIPANTS TO RESOLVE CERTAIN DISPUTES INVOLVING THIS AGREEMENT, THE TERMS OF SERVICE, OR USE OF THE SERVICES OR PLATFORM BY ARBITRATION IN NEW YORK, NEW YORK.
Commercial Events; Revenue Share Due to Shindig. Notwithstanding the restrictions in this Agreement regarding use of the Services by Customer, Customer may use the Services for paid events and collect revenues (e.g., admission fees or ticket charges) (“Ticket Revenues”) from Event Participants and/or collect additional Sponsorship Revenue (as defined below) for Customer’s events. For ticketing, Customer shall use the Shindig-provided pay agent or payment processor to provide payment processing services. For such ticketed events, Shindig will be entitled to receive the greater of (a) the charges for use of the Services under the rate per user hour specified in the Order Form, or (b) twenty-five (25%) percent of the aggregate ticket price collected for such event. Shindig’s 25% revenue share, if applicable, will be deducted from revenue remitted by the pay agent or payment processor to Shindig. Amounts net of Shindig’s revenue share of Ticket Revenues will be remitted to Customer forty (40) days after the end of the month in which the event occurs, for the purpose of allowing for resolution of chargebacks.
If Customer receives consideration for the use of a third party’s name for the title of an event or its branding in the background, use of an attendee list (subject to Customer compliance with applicable law relating to sharing any such list), or the use of a hot button widget or link to their website or other ecommerce link (“Sponsorship Revenues”), Shindig will be entitled to the greater of (a) the charges for use of the Services under the rate per user hour specified in the Order Form, or (b) ten (10%) percent of the gross amount of all Sponsorship Revenues. To the extent Sponsorship Revenues include charges for bundled products and services, separate and apart from access to or participation in the Customer event or exploitation of the stream or its recording, then Customer shall make appropriate allocations and deductions therefor. Customer will pay Shindig its share of Sponsorship Revenue within forty (40) days after the end of the month in which they have received the sponsorship fee, and upon Shindig’s request Customer will provide Shindig with a copy of the invoice to the sponsor along with appropriate documentation and a statement of remitted amounts.
For the avoidance of doubt, if Customer is obligated to pay Shindig ten (10%) percent of Sponsorship Revenues under the preceding paragraph, then such payment obligation will be in addition to Customer’s obligation to pay any share of Ticket Revenues collected.
This Agreement is for use by Customer. If a person or entity (“Reseller”) resells the Services to a third party, including without limitation the bundling of Services with other services in conjunction with event production services, then the following terms in this Section 2.6 shall apply.
Reseller will remit to Shindig the greater of the applicable rate per user hour as stated in the signed order form or 25% of the total consideration billed to the third party for production of such event. In the event of hybrid events separate budgets for the physical event and the online component will be provided by Reseller to Shindig. Costs for delivery of physical goods delivered to attendees in association with a virtual event and/or performance fees for special guests appearing at such event will also be excluded from the billing price when calculating the 25% revenue share payable to Shindig. Revenue share shall be payable to Shindig within forty-five (45) days of receipt and Reseller will provide to Shindig with such payment all relevant documentation of the transaction and amounts received. Reseller will provide Shindig promptly upon request with copies of any agreement or SOW between Reseller and any third parties pertaining to the online event. Shindig shall at all times remain an independent contractor for the Services, and any right herein for Reseller to resell the Services shall not constitute a joint venture or partnership of any kind between Reseller and Shindig. For the avoidance of doubt, the other terms and conditions of this Agreement, including but not limited to Shindig’s Terms of Service or Acceptable Use Policy, apply to any Reseller transaction or resold Services.
In addition to other indemnification obligations of Customer herein, Reseller shall indemnify, defend and hold harmless Shindig and its representatives, suppliers and licensors, and their respective officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, reasonable attorneys’ fees, fees of other professional advisors and costs) arising out of or in connection with Reseller’s, its customer(s) or Event Participants’ (i) access to or use of the Services; (ii) breach of this Agreement, including but not limited to Shindig’s Terms of Service or Acceptable Use Policy, or breach of any agreement between or among Reseller and any third parties; (iii) violation of law; (iv) negligence or willful misconduct; or (v) violation of the rights of a third party. This indemnify survives termination of this Agreement.
- PROPRIETARY INFORMATION
- Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business that is marked or otherwise designated at the time of disclosure as confidential or proprietary, or words of similar import (hereinafter referred to as “Confidential Information” of the Disclosing Party). Shindig Confidential Information includes any Software, technical specifications and pricing, even if not so designated. The Receiving Party agrees: (i) to take reasonable precautions and use reasonable care to protect such Confidential Information, and (ii) not to use or disclose to any third party such Confidential Information (except in performance or use of the Services or as otherwise permitted herein). The Disclosing Party agrees that the foregoing shall not apply with respect to any information (other than trade secrets identified as such by the Disclosing Party and any personally identifiable information, as to which there will be no time limitation on any non-disclosure and non-use obligation in this Section 3) after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public or generally known in the industry without fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party or (e) is required to be disclosed by law.
- Shindig shall have the right to collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies, and Shindig will be free to (i) use such information and data (during and after the term of this Agreement) solely in an aggregate or other de-identified form to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Shindig offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
- Contingent upon Customer’s compliance with all relevant laws and the terms of this Agreement, and payment of all fees due, Shindig conveys to Customer all rights to the recording that it has obtained through its Terms of Service, with the exception, as to all events open to the public or streamed on social media or otherwise distributed or exploited beyond the live session, of its right to use video clips, up to 15 seconds, in video montages or in use cases displayed on its website and in its marketing materials. Shindig’s foregoing right to use video clips is applicable to video clips for events in which Customer and all Event Participants who appear in such video clips are located in the United States and such other countries where the grant of such right and use of such video clips does not violate or infringe applicable law. As to all events open to the public or streamed on social media or otherwise distributed or exploited beyond the live session, the above reservation of rights with respect to video clip use does not apply to any designated school, college, university or other educational institution, or to any healthcare service or Customer event using a private guest list. For the avoidance of doubt all events by educational institutions and or healthcare providers are presumptively private even if Customer chooses to open such to the public. In addition, Shindig agrees to refrain from use of any video clip in which an individual appears, after Shindig’s receipt of a written request from such individual to cease such use.
- PAYMENT OF FEES
- Customer will pay Shindig the then applicable fees stated in the Order Form for the Services (the “Fees”). If set forth on the Order Form, Customer hereby authorizes Shindig to bill Customer’s payment instrument in advance on a periodic basis in accordance with the terms on the Order Form. Customer will provide Shindig with (and maintain) valid and updated credit card information or other payment information reasonably acceptable to Shindig. If Customer’s use of the Services exceeds the purchased Services set forth in the Order Form (e.g., number of participants or user hours set forth on the Order Form) or otherwise requires the payment of additional fees (per the terms of this Agreement or the Order Form), Customer shall be billed for such usage or additional Services as set forth in the Order Form in the following pay cycle and Customer agrees to pay the additional fees. Shindig reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial term for the applicable Services or then-current renewal term (the initial term and any renewal term(s) are together referred to herein as the “Term”), or at any time in the case of an increase in costs imposed upon Shindig by an unaffiliated outside supplier of telecommunications or related services, in either case upon thirty (30) days prior notice to Customer (which may be sent by email). All fees paid are non-refundable. If Customer believes that Shindig has billed Customer incorrectly, Customer must contact Shindig no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Shindig’s customer support department.
- Shindig may also choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Shindig thirty (30) days after the mailing date of the invoice. Shindig may suspend or terminate Customer’s access to the Services if Customer’s account is past due. Unpaid amounts that remain unpaid thirty (30) days after written notice of nonpayment are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services.
- All fees provided for in this Agreement are exclusive of any sales or use taxes, duties or similar charges imposed by any government authority (“Taxes”). Customer shall be responsible for all Taxes associated with the Services other than U.S. taxes based on Shindig’s net income. If Shindig is legally obligated to pay or collect Taxes for which Customer is responsible under this Agreement, Shindig will invoice and Customer will promptly pay Shindig such amounts (or Customer will reimburse Shindig for any Taxes paid on Customer’s behalf). If Shindig collects Taxes from Customer that are required to be paid by Customer to any government authority, Shindig will pay such amounts collected to the appropriate authorities on Customer’s behalf. If either party is audited by a taxing or other governmental authority in connection with taxes under this Agreement, the other party shall reasonably cooperate with the party being audited in an appropriate and timely manner.
- TERM AND TERMINATION
- Subject to earlier termination as provided below, this Agreement is for the Term as specified in the Order Form and shall automatically renew unless Customer provides written notice to Shindig of its intent not to renew no later than thirty (30) days prior to the end of the then-current initial term or renewal term.
- In addition to any other remedies it may have, either party may also terminate this Agreement and any Order Form upon thirty (30) days’ notice, if the other party is in material breach of any of the terms or conditions of this Agreement. Upon any termination of this Agreement or any applicable Order Form for any reason, (i) Customer will pay in full for the Services up to and including the last day on which the Services are provided, and (ii) Shindig may, but is not obligated to unless requested by Customer in writing, delete any archived Customer content (excluding aggregate performance and usage data).
- This Agreement shall be effective until terminated. Shindig may, in its sole and absolute discretion, at any time and for any or no reason, suspend or terminate this Agreement and the rights afforded to Customer hereunder with or without prior notice. Furthermore, if Customer fails to comply with any terms and conditions of this Agreement, then this Agreement and any rights afforded to Customer hereunder shall terminate automatically, without any notice or other action by Shindig. Upon the termination of this Agreement, Customer shall cease all use of the Services and uninstall the Services. Shindig may, without notice to Customer, disable the Services. Shindig will not be liable to Customer or any third party for compensation, indemnity, or damages of any sort as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement will be without prejudice to any other right or remedy Shindig may have, now or in the future.
- All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, this Section 5, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
- WARRANTY AND DISCLAIMER
Shindig warrants that during the Term of an applicable Order Form that Shindig will use reasonable efforts, consistent with prevailing industry standards, to provide the Services in a manner which minimizes errors and interruptions in the Services. Customer acknowledges that temporary service disruptions may occur because of scheduled or emergency maintenance activities, or for other causes beyond the reasonable control of Shindig.
SHINDIG DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND SHINDIG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
Shindig and/or its licensors own all worldwide right, title and interest in and to the Services, including all worldwide intellectual property rights therein. Customer may not remove or in any manner alter or obscure the copyright, trademark, and other proprietary rights notices appearing in or on the Services.
Customer shall indemnify, defend and hold harmless Shindig and the other Indemnified Parties from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, reasonable attorneys’ fees, fees of other professional advisors and costs) arising out of or in connection with the following: (i) Customer or Event Participants’ access to or use of the Services; (ii) Customer or Event Participants’ breach of this Agreement, including but not limited to Shindig’s Terms of Service or Acceptable Use Policy; (iii) Customer or Event Participants’ violation of law; (iv) Customer or Event Participants’ negligence or willful misconduct; or (v) Customer or Event Participants’ violation of the rights of a third party. These obligations survive termination of this Agreement.
- LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, SHINDIG, ITS REPRESENTATIVES, CONTRACTORS AND SUPPLIERS, AND THEIR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO (A) ANY SUBJECT MATTER OF THIS AGREEMENT OR ARISING OUT OF OR IN CONNECTION WITH THE SALE OF, PERFORMANCE OR NON-PERFORMANCE, OR CUSTOMER’S ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES, OR THE TERMS OF SERVICE RELATED THERETO, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, EXCEPT TO THE EXTENT PROHIBITED BY LAW; OR (B) ANY ERROR OR INTERRUPTION OF USE OR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (C) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (D) ANY MATTER BEYOND SHINDIG’S REASONABLE CONTROL; OR (E) ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE GREATER OF $10,000 OR THE FEES PAID BY CUSTOMER TO SHINDIG FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SHINDIG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATIONS SURVIVE TERMINATION OF THIS AGREEMENT.
If any provision of this Agreement, is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable even by operation of law, transferable or sublicensable by Customer except with Shindig’s prior written consent. Shindig may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.
EACH PERSON SIGNING THE ORDER FORM REPRESENTS AND WARRANTS THAT THE SIGNER HAS THE AUTHORITY TO BIND THAT PARTY TO THE ORDER FORM AND THIS AGREEMENT, AND HIS OR HER AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE PARTY NAMED. EXECUTION OF THE ORDER FORM INCORPORATES THIS AGREEMENT INTO THE ORDER FORM.