GATSBY CLOUD TERMS OF SERVICE AGREEMENT
BY CLICKING THE “ACCEPT” BUTTON OR USING THE GATSBY, INC. (“GATSBY”) SERVICE IDENTIFIED IN THE ORDER FORM THAT REFERENCE THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”), THE INDIVIDUAL OR ENTITY OBTAINING THE RIGHT TO ACCESS SUCH SERVICES (“SUBSCRIBER”) IS AGREEING TO BE BOUND BY AND IS BECOMES A PARTY TO THIS AGREEMENT. IF SUBSCRIBER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, SUBSCRIBER MUST NOT, AND MAY NOT, ACCESS OR USE THE GATSBY SERVICE.
As used in this Agreement:
1.1 “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Subscriber or any AuthorizedUsersto access the Gatsby Service.
1.2 “Authorized User” means any individual who is an employee of Subscriber or such other person or entity as may be authorized by an Order Form, to access the Gatsby Service pursuant to Subscriber’s rights under this Agreement.
1.3 “Builder Service” means the website front-end design and development service made available by Gatsby.
1.4 “Concierge Services” means those implementation, integration, training, ad hoc support, account management, and other professional services provided by Gatsby as more specifically described in an Order Form.
1.5 "Deployment Service means the Website Build File hosting services made available by Gatsby.
1.5 “Documentation” means the technical materials provided by Gatsby to Subscriber in hard copy or electronic form that describe the features, functionality or operation of the Gatsby System.“
1.6 "Error" means a reproducible failure of the Gatsby Service to substantially conform to the Documentation.
1.7 "Gatsby Service" means the Builder Service and/or the Deployment Service.
1.8 "Gatsby System" means the technology, including hardware and software, used by Gatsby to deliver the Gatsby Service to Subscriber.
1.9 "Gatsby Templates" means any forms, scripts, templates, examples, samples, and other content created by Gatsbyprior to or independent of this Agreement.
1.10 "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f)all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.11 "Order Form” means a document, either physical or electronic, signed by both parties identifying the services to be made available by Gatsby pursuant to this Agreement.
1.12 "Storage Space" means the amount of storage space related to the Deployment Service for which fees have been paid as set forth in the applicable order form.
1.13 "Subscriber Content" means any content developed by or on behalf of Subscriber and used with the gatsby Service.
1.14 "Website Build File" is any HTML file(s) created by Subscriber via the Builder Service.
2. GATSBY SERVICE
2.1 Subscription to the Gatsby Service. Subject to the terms and conditions of this Agreement, Gatsby hereby grants to Subscriber, during the term of this Agreement, a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Gatsby Service solely for Subscriber’s internal business purposes and in accordance with the limitations set forth herein and the applicable Order Form. On or as soon as reasonably practicable after the effective date of the applicable Order Form, Gatsby shall provide to Subscriber the necessary passwords, security protocols, and policies and network links or connections and Access Protocols to allow Subscriber and its Authorized Users to access the Gatsby Service in accordance with the access protocols.
2.2 Limitations. Subscriber will not, and will not permit any Authorized User or other party to: (a)knowingly interfere with or disrupt the integrity or performance of the Gatsby Service or the data contained therein; (b) reverse engineer, disassemble or decompile any component of the Gatsby System; (c) interfere in any manner with the operation of the Gatsby Service, or the Gatsby System or the hardware and network used to operate the Gatsby Service; (d) sublicense any of Subscriber’s rights under this Agreement, or otherwise use the Gatsby Service for the benefit of a third party or to operate a service bureau; (e) modify, copy or make derivative works based on any part of the Gatsby System; or(f)otherwise use the GatsbyService in any manner that exceeds the scope of use permitted under the subsection titled Subscription to the Gatsby Service.
2. 3 Support. Subject to the terms of this Agreement, Gatsby shall use commercially reasonable efforts to (a) maintain the security of the Gatsby Service; and (b) provide the support in accordance with Gatsby’s then-current support policies.
2.4 Concierge Services. Gatsby will provide Concierge Services in accordance with the terms set forth in Exhibit A and for the fees agreed upon in an Order Form.
3.1 Gatsby Technology. Subscriber acknowledges that Gatsby retains all rights, title, and interest in and to the Gatsby System, Gatsby Templates, Documentation and all software, and all Gatsby proprietary information and technology used by Gatsby or provided to Subscriber in connection with the Gatsby Service (the "Gatsby Technology"), and that the Gatsby Technology is protected by Intellectual Property Rights owned by or licensed to Gatsby. Other than as expressly set forth in this Agreement, no license or other rights in the GatsbyTechnology are granted to Subscriber. Subscriber hereby grants to Gatsby a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Gatsby Service any suggestions, enhancement requests, recommendations or other feedback provided by Subscriber, including Users, relating totheGatsbyService.GatsbyshallnotidentifySubscriberasthesourceofany such feedback.
3.2 Subscriber Content. The Subscriber Content hosted by Gatsby as part of Gatsby Service, and all worldwide Intellectual Property Rights therein, is the exclusive property of Subscriber.Subscriber hereby grants to Gatsby a non-exclusive, worldwide, royalty-free and fully-paid license (a) to use the Subscriber Content as necessary for purposes of providing the Gatsby Service to Subscriber and (b) to use the Subscriber trademarks, service marks, and logos as required to provide the Gatsby Service to Subscriber. All rights in and to the Subscriber Content not expressly granted to Gatsby in this Agreement are reserved by Subscriber.
3.3 Website Build Files. The Builder Service enables users to build and create Website Build Files that may be used to deploy a website via the Deployment Services or exported by Subscriber for use and deployment with a third-party website hosting provider. Other than Gatsby Templates, Website Build Files are the sole and exclusive property of Subscriber, and to the extent Gatsby has any ownership rights therein, Gatsby assigns to Subscriber all of its rights in and to any Website Build Files.
4. FEES for AAND EXPENSES; PAYMENTS
4.1 Fees. In consideration for the access rights granted to Subscriber and the services performed by gatsby under this Agreement, Subscriber will pay to Gatsby the fees set forth in the the applicable Order Form. In the event that Subscriber wishes to increase its Storage Space beyond the maximum amount for which fees have been paid, Subscriber data shall be required to pay additional fees associated with the increased Storage Space, prorated for the remainder of the term. Except as otherwise provided in an Order Form, all fees are billed in advance and are due and payable to Gatsby within thirty (30) days of receipt of invoice. Gatsby shall be entitled to (in addition to any other rights or remedies Gatsby may have) or discontinue the Gatsby Service and suspend service all Authorized Users’ and Subscriber’s access to the Gatsby Service if any fees are overdue until such amounts are paid in full.
4.2 Taxes. The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Gatsby’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of access to the GatsbyService to Subscriber. Subscriber will make all payments of fees to Gatsby free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to Gatsby will be Subscriber’ssole responsibility, and Subscriber will provide Gatsby with official receipts issued by the appropriate taxing authority, or such other evidence as the Gatsby may reasonably request, to establish that such taxes have been paid. Subscriber shall indemnify and defend Gatsby in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
4.3 Expenses. Subscriber shall reimburse Gatsby for all costs that are pre-approved by Subscriber, including Gatsby’s reasonable out-of-pocket (including travel and living) expenses incurred in performing its obligations hereunder. All costs and expenses incurred by Subscriber in connection herewith are the sole responsibility of Subscriber.
4.4 Interest. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less.
5. SUBSCRIBER CONTENT AND RESPONSIBILITIES
5.1 Subscriber Warranty. Subscriber represents and warrants that any Subscriber Content hosted by Gatsby as part of the Gatsby Service shall not (a) infringe, misappropriate or violate any Intellectual property rights, publicity/privacy rights, law or regulation;(b)be deceptive, defamatory, obscene, pornographic or unlawful; (c) contain any viruses, worms or other malicious computer programming codes intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (d)otherwise violate the rights of a third party. Gatsby is not obligated to back up any Subscriber Content, except to the extent Subscriber has paid for Storage Space, and such Subscriber Content constitutes Website Build Files. Subscriber agrees that any use of the Gatsby Service contrary to or in violation of the representations andwarrantiesofSubscriberinthissectionconstitutesunauthorizedandimproperuseoftheGatsbyService.
5.2 Subscriber Responsibility for Data and Security.
Subscriber and its Authorized Users shall have access to the Subscriber Content and shall be responsible for all changes to and/or deletions of Subscriber Content and the security of all passwords and other Access Protocols required in order to access the Gatsby Service, other than as a result of Gatsby’s negligence. Subscriber shall have the ability to export Website Build Files out of the Gatsby Service and is encouraged to make its own back-ups of the Subscriber Content. Subscriber shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all SubscriberContent.
6. WARRANTIES AND DISCLAIMERS
6.1 Limited Warranty. Gatsby warrants to Subscriber that the Services, when used as permitted by Gatsby and in away from home accordance with the Documentation, Gatsby Service will operate free from Errors during the term of the applicable Order Form. Provided that Subscriber notifies Gatsby in writing of any breach of the foregoing warranty during the term hereof, Gatsby shall, as Subscriber’s sole and exclusive remedy, provide the support described in Section 2.3 of this Agreement. This warranty gives the Subscriber specific legal rights, and subscriber may also have other rights which vary from jurisdiction to jurisdiction.
6.2 Disclaimer. THE LIMITED WARRANTY SET FORTH IN THIS SECTION IS MADE FOR THE BENEFIT OF SUBSCRIBER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE GATSBY SERVICE, GATSBYSYSTEMANDDOCUMENTATIONAREPROVIDED“ASIS, ”AND GATSBY MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, and WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FORA PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE GATSBY SERVICE, GATSBY SYSTEM OR DOCUMENTATION (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO SUBSCRIBER BY GATSBY. GATSBY DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE GATSBYSERVICE AND GATSBY SYSTEM SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO SUBSCRIBER.
7. LIMITATION OF LIABILITY
7.1 Types of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER PARTY NOR ITS SUPPLIERS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE PARTY’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE GATSBY SERVICE, GATSBY SYSTEM OR DOCUMENTATION OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF THE PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
7.2 Amount of Damages. EXCLUDING EACH PARTY’S PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS HEREIN, THE MAXIMUM LIABILITY OF GATSBY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY SUBSCRIBER TO GATSBY DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL GATSBY’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE GATSBY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF GATSBY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO SUBSCRIBER.
7.3 Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
8.1 Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the DisclosingParty’s business, technology, products, or services or other confidential or proprietary information (collectively,“ the Confidential Informational ”). The Disclosing Party will mark all Confidential Information in tangible form as“confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure, and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Gatsby Service, Gatsby System or Documentation, and all enhancements and improvements thereto will be considered Confidential Information of Gatsby.
8.2 Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users(with respect to Subscriber) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information(withrespecttoGatsby).In addition, the Receiving Party will protect the Disclosing Party’s security Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the DisclosingParty’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide the Disclosing Partyawritten affidavit certifying compliance with this sentence.
The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court of similar judicial or administrative body, provided that the receiving party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with theDisclosingPartyifthe DisclosingPartyseeksan appropriate protective order.
9.1 By Gatsby. Gatsby will defend at its expense any suit brought against Subscriber, and will pay any settlement Gatsby makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Gatsby Service or Gatsby System infringes, misappropriates or violates anyU.S. Intellectual property rights. If any portion of the gatsby Service orGatsby System becomes, or in Gatsby’s opinion is likely to become, the subject of a claim of infringement, Gatsby may, at Gatsby’s option: (a) procure for Subscriber the right to continue using the Gatsby Service or Gatsby System; (b) replace the Gatsby Service or Gatsby System with non-infringing software or services which do not materially impair the functionality of the Gatsby Service or Gatsby System; (c) modify the Gatsby Service or Gatsby System so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Subscriber toGatsby for the remainder of the term then in effect, and upon such termination, Subscriber will immediately cease all use of the Gatsby Service, Gatsby System, and Documentation. Notwithstanding the foregoing, Gatsby shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Gatsby Service or Gatsby System not in accordance with this Agreement or as specified in the Documentation;(x) any use of the Gatsby Service or Gatsby System in combination with other products, equipment, software or data not supplied by Gatsby; or (y) any modification of the Gatsby Service or GatsbySystem by any person other than Gatsby or its authorized agents. This subsection states the sole and exclusive remedy of Subscriber and the entire liability of Gatsby, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.
9.2 By Subscriber. Subscriber will defend at its expense any suit brought against Gatsby, and will pay any settlement Subscriber makes or approves,or any damages finally awarded in such suit, in so far as such suit is based on a claim arising out of or relating to Subscriber’s breach or alleged breach of the subsections titled Subscriber Warranty. This subsection states the sole and exclusive remedy of Gatsby and the entire liability of Subscriber, or any of the officers, directors, employees, shareholders, contractors, or representatives of the foregoing, for the claims and actions described herein.
9.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10. TERM AND TERMINATION
10.1 Term. This Agreement commences on the date Subscriber accepts this Agreement (in accordance with the preamble) and remains in effect for as long as an applicable Order Form is in effect, unless earlier terminated as set forth below (the “Term”). Unless otherwise set forth in the applicable Order Form, each Order Form will have an initial term of one (1) year, and shall be automatically renewed for consecutive one (1) year terms unless either party provides written notice to the other of its intention not to renew the applicable Order at least thirty (30) days prior to the expiration of the then-current term.
10.2 Termination. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach. Should Subscriber terminate due to Gatsby’s breach, Supplier will be entitled to any pro-rata pre-paid, unused Fees.
10.3 Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b)within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, asset forth in the section titled Confidentiality; and (c) within ten (10) days after the effective date of termination, Gatsby shall discontinue all use of Subscriber Content and destroy all copies of Subscriber Content in its possession. The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive the expiration or termination of this Agreement for any reason.
11.1 Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Subscriber hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for the county in which Gatsby’s principal place of business is located for any lawsuit filed there against Subscriber by Gatsby arising from or related to this agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Subscriber is located may be different from Delaware law. Subscriber shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Gatsby Service, Gatsby System, or Documentation.
11.2 Export. Subscriber agrees not to export, re-export, or transfer, directly or indirectly, any U.S.technical data acquired from Gatsby, or any products utilizing such data, in violation of the United States export laws or regulations.
11.3 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Without limiting the generality of the foregoing, Subscriber agrees that the section titled Limitation of Liability will remain in effect notwithstanding the unenforceability of any provision in the subsection titled Limited Warranty.
11.4 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5. Remedies. Except as provided in the sections titled Limited Warranty and Indemnification, the parties rights and remedies under this Agreement are cumulative. Subscriber acknowledges that the GatsbyService, Gatsby System or Documentation contain valuable trade secrets and proprietary information of Gatsby, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Subscriber of its obligations with respect to Intellectual Property Rights of Gatsby may constitute immediate, irreparable harm to Gatsby for which monetary damages would be an inadequate remedy. In such case, Gatsby will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any software, Documentation, or any portions thereof, that Subscriber attempts to import into any country or territory be seized, impounded and destroyed by customs officials.If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
11.6. No Assignment. Neither party shall assign, subcontract, delegate, or otherwise transfer this agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without the consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns.
11.7 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8. Independent Contractors. Subscriber’s relationship to Gatsby is that of an independent contractor, and neither party is an agent or partner of the other. Subscriber will not have, and will not represent to any third party that it has, any authority to act on behalf of Gatsby.
11.9.Notices. Each party must deliver all notices or other communications required or permitted under this Agreement in writing to the other party at the address listed on the first page of the Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) business days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice shall be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each party may change its address for receipt of notice by giving notice of such change to the other party.
11.10. Modifications of this Agreement. Gatsby may modify this Agreement in its sole discretion, at any time. When changes are made, Gatsby will make a new copy of the Agreement available on its website and update the Last Updated date above. Gatsby will also email Subscriber at the last email address Subscriber provided to Gatsby. Unless otherwise specified in Gatsby’s notice, any changes will become effective within thirty (30) days of Gatsby’s notice of such update. Gatsby may require Subscriber to provide consent to the updated Agreement in a specified manner before further use of the Gatsby Service is permitted.
11.11. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.
CONCIERGE SERVICES ADDENDUM
In the event Subscriber has ordered Concierge Services pursuant to a mutually agreed upon Order Form, the terms of this Concierge Services Addendum (“CSA”) will apply. This CSA is an attachment and a part of the Agreement between Gatsby and Subscriber and is incorporated therein by reference. This CSA sets forth terms additional to, and not in lieu of, the Agreement. Capitalized terms used but not defined herein shall have the same meanings as in the Agreement. Services. Gatsby agrees to render Concierge Services, to Subscriber as set forth in the applicable Order Form. If the Concierge Services are to be provided on Subscriber’s premises (a) Subscriber shall provide safe and adequate space, power, network connections and other resources as required by Gatsby, (b) Subscriber will provide subject matter experts and other personnel as required, and (c) Gatsby shall adhere to Subscriber’s established written guidelines, which shall be provided to Gatsby, concerning on-site visits by contractors and the use of Subscriber’s computer equipment. Project Administration. The contact for Subscriber shall provide Gatsby all assistance and guidance necessary for the performance of the Concierge Services. Compensation. Gatsby shall be paid the fees set forth in Concierge Services in accordance with the Order Form. Subscriber shall also reimburse Gatsby for reasonable travel, lodging and meal expenses for Concierge Services performed outside of Gatsby’s site which Gatsby is required to incur in providing the Concierge Services. Gatsby shall provide Subscriber with invoices detailing the consulting hours, fees and expense reimbursements due Gatsby, and shall itemize and provide receipts for expenses over twenty-five dollars upon request. Subscriber shall be responsible for all taxes associated with the Concierge Services and the payment of fees for the Concierge Services except taxes based on Gatsby’s net income. Unless otherwise stated in an Order Form, Subscriber’s payment is due within thirty (30) days of receipt of the Gatsby invoice. All prices are in U.S. dollars except as expressly stated otherwise. License. Subscriber acknowledges that in order to perform the Concierge Services, Gatsby may be required to have access to certain Subscriber software or other material of Subscriber or Subscriber’s suppliers (“Subscriber Material”). Subscriber grants to Gatsby the right to use Subscriber’s software and other materials solely as required for Gatsby’s performance of the Concierge Services hereunder. Limited Warranty. Gatsby shall perform the Concierge Services in a good and workmanlike manner. Subscriber’s sole remedy and Gatsby’s sole liability for a breach of the foregoing shall be for Gatsby to at its option either re-perform the Concierge Services or refund sums paid for such Concierge Services. Gatsby HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE CONCIERGE SERVICES PROVIDED HEREUNDER AND WORK PRODUCT, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Gatsby DOES NOT WARRANT OR REPRESENT THAT THE WORK PRODUCT WILL BE FREE FROM BUGS OR THAT THE USE OF SUCH WILL BE UNINTERRUPTED OR ERROR-FREE OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE WORK PRODUCT IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. Subscriber understands that Gatsby is not responsible for and will have no liability for hardware, software, or other items or any services provided by any persons other than Gatsby, including without limitation, items supplied by Subscriber. Subscriber Indemnity. Subscriber shall indemnify and defend Gatsby from and against any claims of injury arising from Gatsby’s use of Subscriber’s premises not caused by Subscriber’s gross negligence or willful misconduct. Subscriber agrees to indemnify, defend and hold harmless Gatsby from and against any and all damages, loss, demands, fees, expenses, fines, penalties and costs (including without limitation reasonable attorneys’ fees, costs and disbursements) incurred by Gatsby and arising from any claims, suits, actions or proceedings brought against Gatsby by any third party that alleges that all or any part of the Subscriber Materials infringe any patent, copyright, trademark or other intellectual property right of a third party or misappropriate any third party trade secret. Limitation of Liability.
NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THE CONCIERGE SERVICES PROVIDED HEREUNDER REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WITHOUT PREJUDICE TO ANY REMEDY THAT Gatsby MAY HAVE UNDER COPYRIGHT, PATENT OR OTHER INTELLECTUAL PROPERTY LAWS. IN NO EVENT SHALL Gatsby’S LIABILITY TO SUBSCRIBER FOR CONCIERGE SERVICES EXCEED PAYMENTS RECEIVED BY Gatsby FROM SUBSCRIBER FOR THE LAST SIX (6) MONTHS OF CONCIERGE SERVICES FROM THE DATE THE CLAIM IS BROUGHT. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THIS EXHIBIT AND THAT IN ITS ABSENCE, THE ECONOMIC TERMS OF THIS EXHIBIT WOULD BE SUBSTANTIALLY DIFFERENT.