Terms & Conditions
Crowdfunder agrees to accept and pay for, and CROWDOX agrees to provide, the services identified and set forth in this Agreement or on CROWDOX's website ('Services'). In connection with the Services, CROWDOX shall undertake customer management and sales for Crowdfunder whereby CROWDOX or its Affiliates will distribute Crowdfunder's proprietary branding materials developed solely by Crowdfunder (collectively, 'Creative'). In connection with such management, Crowdfunder shall pay CROWDOX a compensable transaction generated on behalf of Crowdfunder as agreed upon by you and CROWDOX ('Compensable Transactions'). The applicable Compensable Transactions, the fees due to CROWDOX for each Compensable Transaction and other applicable terms and conditions of the management entered into hereunder shall be specified on via direct communication.
The parties hereto understand and agree that Crowdfunder is the sole owner of any and all intellectual property rights associated with any Creative.
The rates for Compensable Transactions shall be set forth herein or on CrowdOx's website and method timing of payment by Crowdfunder to CROWDOX shall be determined by CROWDOX. If payment is not made in a timely manner, CROWDOX may, at its sole option, immediately terminate this Agreement. Interest shall accrue on any past due amounts at the rate equal to the lesser of one and one half percent (1.5%) per month or the maximum amount permitted by applicable law. In addition, Crowdfunder shall be liable to CROWDOX for all attorneys' fees and costs of collection incurred in collecting such unpaid amounts.
4. Consumer Information
Except to the extent necessary to carry out CROWDOX's Services and as required by applicable law, CROWDOX agrees that it: (i) shall not store, transfer, export, display, forward or otherwise share any consumer information provided to it by Crowdfunder to/with any third party; (ii) shall not use such information on its own behalf in any manner not expressly authorized in writing by Crowdfunder; (iii) shall not publicly display such information on the Internet; and (iv) shall notify Crowdfunder as soon as it learns of any actual or suspected unauthorized use of or access to such information and provide reasonable assistance to Crowdfunder in the investigation and prosecution of any such unauthorized use or disclosure. Notwithstanding anything to the contrary contained herein, Crowdfunder acknowledges and agrees that CROWDOX shall not be responsible or liable for how such consumer information is handled, stored or used by Crowdfunder or any Affiliate. Prior to the commencement of any Service
This Agreement shall continue in perpetuity provided that either party hereto may terminate this Agreement for any reason at any time. Upon termination of this Agreement: (a) Crowdfunder shall pay CROWDOX all amounts then due; (b) any and all licenses and rights granted to either party hereto in connection with this Agreement shall immediately cease and terminate; and (c) any and all Confidential Information or proprietary information of either party hereto that is in the other party's possession or control must be immediately returned or destroyed. Notwithstanding any termination of this Agreement, any provisions of this Agreement that may reasonably be expected to survive such of this Agreement, including without limitation Sections 5, 8, 9 and 11, shall survive and remain in effect in accordance with their terms contained herein.
6. Warranty/Limitation of Liability
THE SERVICES, COMPENSABLE TRANSACTIONS AND TRANSACTION TRACKING CODES UNDER THIS AGREEMENT ARE SUPPLIED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT OF THE LAW, EACH PARTY HERETO MAKES NO WARRANTIES (INCLUDING IMPLIED WARRANTIES OF PURPOSE AND NON-INFRINGEMENT), GUARANTEES, REPRESENTATIONS, EXPRESS, IMPLIED, ORAL OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CROWDOX DOES NOT WARRANT OR GUARANTY COMPENSABLE TRANSACTIONS, CONVERSION RATES OR RESPONSE RATES. THE SERVICES, COMPENSABLE TRANSACTIONS OR TRANSACTION TRACKING CODES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. CROWDOX HAS NO LIABILITY, WHATSOEVER, TO CROWDFUNDER OR ANY THIRD PARTY, FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND CROWDOX DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES WILL BE UNINTERRUPTED OR ERROR-FREE. CROWDOX SHALL BEAR NO LIABILITY FOR CROWDFUNDER'S USE OF, OR INABILITY TO USE, THE SERVICES AND CROWDOX DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT CROWDFUNDER'S USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. CROWDOX MAKES NO GUARANTEES, AND ACCEPTS NO RESULTING LIABILITY, FOR FAILURE TO MEET ANY SCHEDULED DELIVERY DATES. IN NO EVENT SHALL EITHER PARTY HERETO BE RESPONSIBLE FOR ANY CONSEQUENTIAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS. EXCEPT FOR CROWDFUNDER'S PAYMENT OBLIGATIONS HEREUNDER, NEITHER PARTY HERETO SHALL BE LIABLE, OR CONSIDERED IN BREACH OF THIS AGREEMENT, ON ACCOUNT OF A DELAY OR FAILURE TO PERFORM UNDER THIS AGREEMENT AS A RESULT OF CAUSES OR CONDITIONS THAT ARE BEYOND ITS CONTROL. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, EACH PARTY'S AGGREGATE LIABILITY HEREUNDER SHALL BE LIMITED TO THE AMOUNTS PAID TO CROWDOX BY CROWDFUNDER PURSUANT TO THIS AGREEMENT. CROWDOX SHALL NOT BE HELD LIABLE OR RESPONSIBLE FOR ANY ACTION OR INACTION OF ANY AFFILIATE.
7. Representation and Warranties
CROWDOX represents and warrants that that it has the power and authority to enter into and perform its obligations under this Agreement.
Except to the extent caused by any indemnified party's willful misconduct or gross negligence, each party hereto shall irrevocably defend, indemnify and hold the other party and its employees, officers, directors, members, managers, shareholders, contractors and agents harmless from any and all liability, loss, damage or expense (including, without limitation, reasonable attorneys' fees, costs and expenses) arising out of or related to any third party allegation, claim or cause of action involving the indemnifying party's breach of this Agreement including without limitation any representation or warranty contained herein.
For purposes of this Agreement, 'Confidential Information' shall mean all data and information, of a confidential nature or otherwise, disclosed during the term of this Agreement by one party ('Disclosing Party') to the other party ('Receiving Party'), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including but not limited to: (a) a party's business plans, strategies, know how, marketing plans, suppliers, sources of materials, finances, business relationships, personally identifiable end-user information, pricing, technology, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the material terms of this Agreement; (c) with respect to CROWDOX, the identity and information of any Affiliate, any publishing relationship between CROWDOX and any Affiliate and any suppression list; and (d) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Disclosing Party with terms at least as restrictive as those set forth herein. Without limiting anything contained in this Section 11, neither Crowdfunder, any of its affiliates nor any person or entity associated or related to Crowdfunder may copy or replicate in any manner any of CROWDOX's software or intellectual property that includes without limitation any intellectual property contained in any pending patent. Confidential Information shall not include any information that the Receiving Party can verify with substantial proof that: (A) is generally available to or known to the public through no wrongful act of the Receiving Party; (B) was independently developed by the Receiving Party without the use of Confidential Information; or (C) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief, without the requirement to post bond.
(a) Assignment. Neither party hereto may assign, transfer or delegate any of its rights or obligations under this Agreement without the prior written consent of the other party, and any attempts to do so shall be null and void; provided, however, that either party may assign this Agreement or any portion hereof to: (a) an acquirer of all or substantially all of such party's equity, business or assets; (b) a successor in interest whether by merger, reorganization or otherwise; or (c) any entity controlling or under common control with such party.
(b) Choice of Law/Binding Arbitration/Venue. This Agreement shall be construed in accordance with and governed by the laws of the State of Utah. Any dispute, claim or controversy (collectively the 'Controversy') arising out of or related to this Agreement, the breach hereof, the termination, enforcement, interpretation or validity hereof or any other matter related directly or indirectly to this Agreement shall be settled by binding arbitration in Los Angeles, Utah, in accordance with the rules of The American Arbitration Association ('AAA'). Judgment entered upon the award rendered may be enforced by appropriate judicial action pursuant to Utah law. The arbitration panel shall consist of a single arbitrator agreed to by each party hereto within thirty (30) days following notice by one party that it desires arbitration. If the parties are unable within such thirty (30) day period to agree upon an arbitrator, then the arbitrator shall be selected by the AAA, which arbitrator shall be experienced in the area of limited liability companies and who shall be knowledgeable with respect to the subject matter area of the Controversy. The losing party shall bear any fees and expenses of the arbitrator, other tribunal fees and expenses, reasonable attorneys' fees of both parties, any costs of producing witnesses and any other reasonable costs or expenses incurred by such losing party or the prevailing party. The arbitrator shall render a decision within thirty (30) days following the close of presentation by the parties of their cases and any rebuttal. Judgment on the award may be entered in any court having jurisdiction. The parties shall agree within thirty (30) days following selection of the arbitrator to any prehearing procedures or further procedures necessary for the arbitration to proceed, including interrogatories or other discovery. Arbitration shall proceed solely on an individual basis without the right for any Controversy to be arbitrated on a class action basis or on any basis involving any Controversy brought in a purported representative capacity on behalf of others. By executing this Agreement, each party hereto is agreeing to have all disputes decided by neutral arbitration, is giving up any rights it might possess to have such disputes litigated in a court or jury trial, and is giving up its judicial rights to discovery and appeal. If either party hereto refuses to submit to arbitration after agreeing to this provision, it may be compelled to arbitrate. By executing this Agreement, each party hereto hereby confirms that its agreement to this arbitration provision is voluntary. Notwithstanding the foregoing, any Controversy directly arising out of or related to the non-payment by Crowdfunder to CROWDOX as required under this Agreement shall not be subject to arbitration and any of the foregoing provisions regarding arbitration. In the event that any suit, action or other legal proceeding shall be instituted against Crowdfunder in connection with this Agreement, Crowdfunder hereby submits to the jurisdiction of the United States District Court sitting in Salt Lake County, Utah and any state court sitting in Salt Lake County, Utah and further agrees to comply with all the requirements necessary to give such court jurisdiction.
(c) Modification. This Agreement represents the complete and entire expression of this Agreement between the parties hereto, and shall supersede any and all other agreements, whether written or oral, between such parties. This Agreement may be amended only by a written agreement executed by an authorized representative of each party.
(d) Non-Waiver/Severability. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable law, then to the maximum extent permitted by law, such provision may be severed and replaced with a new provision agreed to by the parties hereto that most closely reflects the real intention of the parties or if the provision cannot be so replaced, then such provision shall be severed and the remaining provisions of this Agreement shall remain in full force and effect.
(e) Relationship of the Parties. The parties hereto are independent contractors. There is no relationship of partnership, agency, employment, franchise or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf; provided, however, that CROWDOX acts as a limited agent of Crowdfunder for the sole purpose of performing the Services set forth in this Agreement.
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