MAIN SERVICES AGREEMENT
Last updated: September 26, 2022
This Main Services Agreement (this “
”) is made and entered into between CommentSold, LLC
”) and Customer (defined below). This Agreement sets forth the terms pursuant to which Customer will be permitted to use and receive access to certain Services (defined below), in each case as identified in one or more Order Forms (defined below). Each of CommentSold and Customer is a “
” and together they are the “
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) ANY SERVICES (DEFINED BELOW), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION, COMMENTSOLD, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“
”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES (DEFINED BELOW) TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SERVICE.
. This Agreement sets forth the terms and conditions on which CommentSold provides certain products and services that are ordered by Customer under an Order Form or online purchasing portal or provided to Customer free of charge (as applicable) or under a free trial or made available online or through electronic distribution to Customer (collectively, the “
”). The Services exclude any “
,” which are services that are either separate from or interoperate with a Service and that are provided by a third-party or Customer. Each Order Form is subject to the terms of, and is deemed incorporated into, this Agreement.
. All Services will be provided pursuant to a signed Order Form. An Order Form may reference one or more additional online and/or written terms relevant to a particular Service (the “
”). All Additional Terms are subject to the terms of, and are deemed incorporated into, this Agreement. The Additional Terms, include, without limitation:
Software Services Terms
SERVICE RIGHTS AND RESTRICTIONS
Reservation of Rights
. Except for the limited rights granted under this Agreement, CommentSold, its Affiliates (as defined herein), and licensors reserve all right, title, and interest (including related intellectual property rights) to the Services, any information provided by CommentSold (the “
”), and the Documentation. As between the Parties, CommentSold owns all right, title, and interest, including all intellectual property rights, in and to the Services, Documentation, Deliverables, CommentSold trademarks, logos, tradenames or service marks (“
”). Customer may not use any CommentSold IP without CommentSold’s prior written consent. CommentSold does not provide any other rights to Customer other than as expressly provided herein.
Access to and Use of Services
. CommentSold will make the Services, the Documentation, and any CommentSold Content provided available during the Services Term pursuant to the Order Form, this Agreement, and the Documentation. Customer has the right to access and use the Services, Documentation, and CommentSold Content for the applicable Services Term subject to the terms of the applicable Order Form, this Agreement, the Additional Terms, and the Documentation and such right is not exclusive or transferrable except in accordance with the terms herein.
. Customer acknowledges that not all of the features or functionality of a Service may be available at Customer’s subscription or access level and that access to certain features or functionality may require payment of additional fees or the purchase of additional licenses.
. If an Order Form indicates that Customer will receive a Service for evaluation or proof-of-concept purposes, then Customer may use the Service only for the purpose of evaluating the functions and performance of the Service, solely for the designated time period for the evaluation or trial, and subject to any additional usage restrictions specified on the applicable Order Form. Customer acknowledges that evaluation or proof-of-concept versions of the Services may be automatically disabled upon expiration of the designated trial period (at the end of which Customer’s right to use the Service under the applicable Order Form also expires), and that any data stored in such Services may become unavailable at that time.
Beta Services, Free Trial Services and Free Services
. From time to time, CommentSold may make products, services, features, or documentation which are designated as beta, pilot, limited release, non- production, early access, evaluation or by a similar description (collectively “
”) available to Customer at no charge for evaluation purposes only. CommentSold may provide other products, services, features, or documentation available for free for a short trial period (“
Free Trial Services
”) or for a longer period (“
”). Beta Services, Free Trial Services, and Free Services may be subject to additional terms provided to Customer. CommentSold may discontinue or cut off access to a Beta Service, Free Trial Service, or Free Service at any time in its sole discretion. CommentSold has no obligation to release or make a Beta Service generally available. The Beta Services, Free Trial Services, and Free Services are provided “AS IS”. COMMENTSOLD DOES NOT PROVIDE ANY INDEMNITIES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO. CUSTOMER OR COMMENTSOLD MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA SERVICES, FREE TRIAL SERVICES, OR FREE SERVICES AT ANY TIME. CUSTOMER AGREES COMMENTSOLD WILL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY FOR HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, FREE TRIAL SERVICE, OR FREE SERVICE UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMMENTSOLD’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COMMENTSOLD AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE BETA SERVICES, FREE TRIAL SERVICES, FREE SERVICES.
. Customer agrees that it will: (a) Use the Services only in accordance with this Agreement, the Documentation, and any relevant CommentSold policies for using the Services (the “
”) and any applicable laws and regulations; (b) be responsible for its employees’, contractors’, and end users’ (“
”) compliance with this Agreement, the Documentation and the Policies; (c) be responsible for the accuracy, quality, legality and right to use the content, intellectual property, and data that it provides to CommentSold or that it uses in or transmits through the Services (the “
”); (d) prevent unauthorized access to or use of the Services and terminate and notify CommentSold promptly of any such unauthorized access or use; (e) be responsible for the interoperation of the Services with any Non-CommentSold Services and comply with the terms of service for any Non-CommentSold Services that it uses to access or use the Services. Customer Grant of Rights.
Customer Grant of Rights
. Customer hereby grants CommentSold a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable right to use, process, transmit, store, and disclose the Customer Data to perform the Services in accordance with the terms of the Agreement. Customer represents and warrants that Customer has all rights necessary to grant CommentSold the grant of rights set forth in this Section and to enable CommentSold to provide the Services without violation or infringement of the rights of any third party. To the extent that Customer incorporates or requests that CommentSold incorporate any of Customer’s trademarks, logos, tradenames or service marks (“
”) in a Service, Customer hereby grants CommentSold the right to use such Customer Marks in such Service and represents that it has obtained all necessary rights and permissions to do so.
. Except as otherwise explicitly provided in this Agreement (including via an Order Form) or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties (or other persons not authorized by this Agreement) to use a Service or the Documentation; (b) sell, license, or rent a Service or use a Service to provide similar services to third parties; (c) use a Service for any benchmarking activity or in connection with the development of a competitive Service; (d) circumvent or disable any security or other technological features or measures of a Service or use the Service in a manner that CommentSold reasonably believes poses a threat to the security of CommentSold-controlled computer systems; (e) modify, translate, reverse engineer, decompile, disassemble, or use a Service or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from a Service, in either case to: (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of a Service; (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent; (f) use or access any Service in a manner that materially impacts or burdens the Service, CommentSold or CommentSold’s servers and other computer systems, or that interferes with CommentSold’s ability to make available any Service to Customer or any third party; (g) use a Service or Non-CommentSold to store or transmit infringing, libelous, or otherwise unlawful or tortious material or transmit material in violation of third party rights; (h) use a Service to store or transmit code, files, scripts, agents, programs or other types of information intended to or that has the effect of doing harm, including, without limitation, viruses, worms, time bombs, and Trojan horses (“
”); (i) gain or attempt to gain unauthorized access to any Service or related systems or networks; (j) allow direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit or restriction of the Agreement or any CommentSold policy; (k) use any Service to access, copy, or use any CommentSold intellectual property except as permitted under this Agreement (including through an Order Form); (l) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof; (m) frame or mirror a Service in a way not permitted by this Agreement, an Order form or a CommentSold policy. Any use of the Services in violation of the Agreement, including these usage restrictions, by the Customer that in CommentSold’s judgment threatens the security, integrity, or availability of the Services may result in CommentSold’s immediate suspension of the Services, however CommentSold will use commercially reasonable efforts under the circumstances to, if possible, provide Customer with notice and an opportunity to remedy any such violation or threat prior to any such suspension. CommentSold reserves the right to disclose Customer’s identity or other information about Customer to any third-party who claims that material posted by Customer violates their rights, including their intellectual property rights or their right to privacy. Any suspected fraudulent, abusive, or illegal activity by Customer may be referred to law enforcement authorities. Without limiting the foregoing, CommentSold has the right to fully cooperate with any law enforcement authorities, including formal and informal written requests, inquiries, court orders, etc. requesting or directing CommentSold to disclose Customer’s information, Account information, billing information, the identity or other information of anyone accessing Customer’s Account or the posting of any information on or through the Service.
. The Service may have certain APIs or features designed to interoperate with Non-CommentSold Services. Customer’s use of Non-CommentSold Services is solely between Customer and the Non-CommentSold Service provider and CommentSold cannot and does not warrant, support, or guarantee interoperability with Non-CommentSold Services and CommentSold is not responsible for and shall have no liability for any loss of data or damages resulting from Customer’s use of Non-CommentSold Services. CommentSold reserves the right to suspend access or interoperability between the Services and Non-CommentSold Services. Customer agrees that, if it receives a notice, including from CommentSold, that any Non-CommentSold Service or content provided by a Non-CommentSold Service provider violates any applicable law or regulation or third-party rights, it will promptly disconnect such Non-CommentSold Service from the Services or remove such content from the Services.
. To the extent that a Service is accompanied by any CommentSold-provided user manuals, help files, specification sheets, or other documentation, in whatever form, relating to a Service (“
”), CommentSold hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right to use such Documentation the right to use that Documentation during the Services Term.
. To the extent that a Service includes or is accompanied by third-party software or other products or services (e.g., cloud hosting instances or data analysis tools) that CommentSold provides to Customer or that is otherwise identified in the Documentation as being required to use properly such Service (“
”), the Third-Party Services and their use by Customer are subject to all license and other terms that accompany such Third-Party Services. Customer will abide by and comply with all such terms. Without limiting the foregoing, if CommentSold enables Customer to access a hosted environment offered by a third-party cloud or platform service provider, then Customer must agree to the applicable service provider’s terms and conditions prior to accessing such hosted environment, and Customer will comply at all times with such terms and conditions. Certain Services may include code and components licensed under an open source license.
Protection of Customer Data
. CommentSold will provide reasonable technical, physical, and administrative safeguards designed to protect the security and confidentiality of Customer Data, as described in the Documentation or in CommentSold policies.
Improvement and Modification of Services
. CommentSold seeks to continuously evolve and improve its Services to provide better and more efficient service to Customers, to comply with applicable law, and for other business needs. As such, it reserves the right to continue to modify and change Services and the way that they are offered or implemented. It will make commercially reasonable efforts to notify Customers of material changes to the Services.
Compliance with Laws
. Customer will use the Services and Documentation in compliance with all applicable laws and regulations.
Protection against Unauthorized Use
. Customer will prevent any unauthorized use of the Services and Documentation and will immediately notify CommentSold in writing of any unauthorized use of which Customer becomes aware. Customer will immediately terminate any unauthorized use by persons having access to a Service or Documentation through Customer.
. If Customer provides any suggestions, enhancement requests, corrections, recommendations, or other feedback, to CommentSold concerning the functionality and performance of a Service (including identifying potential errors and improvements), any Documentation (the “
”), Customer hereby assigns to CommentSold all right, title, and interest in and to the Feedback, and CommentSold is free to use the Feedback without payment or restriction.
FEES AND PAYMENT
Fees and Payment Terms
. Customer will pay CommentSold the fees and any other amounts owing under this Agreement as specified in the applicable Order Form, including, where applicable, any early termination fees specified on the Order Form. Unless otherwise specified in such Order Form, Customer will pay all amounts due in accordance with payment terms specified in the applicable Order Form. If Customer has a dispute about an invoice, it shall provide CommentSold notice of such dispute within seven days of receipt of invoice.. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. If any amount due by Customer to CommentSold is more than 30 days’ overdue (or, if the Customer has authorized CommentSold to charge a credit card, more than 10 days overdue after CommentSold gives the Customer notice), CommentSold reserves the right to suspend Customer’s access to Services until all outstanding amounts are paid in full. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason.
. Other than net income, property, and employment taxes imposed on CommentSold, Customer will bear all taxes, duties, and other governmental charges (collectively, “
”) resulting from this Agreement or the delivery of Services. Customer will pay any additional Taxes as are necessary to ensure that the net amounts received by CommentSold after all such Taxes are paid are equal to the amounts to which CommentSold would have been entitled in accordance with this Agreement if such additional Taxes did not exist.
TERM AND TERMINATION
. This Agreement commences on the date Customer accepts it and continues until the earlier of (1) the expiration of all Order forms; and (2) its termination in accordance with this Section 4 (the “
Term of Services
. The term of Services ordered under an Order Form shall be as specified in the Order Form. Except as otherwise specified in an Order Form and unless earlier terminated in accordance with this Agreement, all Services ordered under Order Form will continue for the initial term specified in such Order Form (“
Initial Services Term
”), unless either Party provides the other with notice of non-renewal, upon the date of expiration of the then-current term, such Services will automatically renew for successive terms (each, a “
”) equal in length to the Initial Services Term or such other length of Renewal Term period as stated on the Order Form (the Initial Services Term and each Renewal Term, if any, collectively, the “
” of such Service). Such Renewal Terms will be priced at the expiring rates unless CommentSold provides notice to Customer of the pricing for the Renewal Term at least 60 days prior to the start of the Renewal Term. Notice of non-renewal of a Service must be provided by a Party at least
days prior to the end of the Initial Services Term or then-current Renewal Term, as applicable (or such other period as expressly specified on the applicable Order Form). Services may be purchased on different Order Forms and may have different, non-coterminous Services Terms. Renewal of any Service may be conditioned on and subject to Customer’s agreement to changes to this Agreement and applicable Additional Terms. Customer agrees that purchases are not contingent on the delivery of any future functionality or features, dependent on any oral or written comments made by CommentSold regarding future functionality or features. Customer acknowledges that its access to Services (or certain features thereof) may be automatically disabled upon expiration of the applicable Services Term.
Termination for Material Breach
. Either Party may terminate this Agreement or one or more Order Forms if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 4.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, CommentSold may immediately terminate this Agreement upon notice to Customer if CommentSold reasonably believes that Customer has made or distributed any unauthorized copies of any Service, has violated any material provisions of the Agreement, has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge CommentSold’s intellectual property rights, including rights in and to any Service. Without limiting any other provision of this Section 4.3, if Customer fails to timely pay any fees, CommentSold may, without limitation to any of its other rights or remedies, suspend access to the Services under all Order Forms until it receives all amounts due.
Termination for Bankruptcy or Insolvency
. Either Party may terminate this Agreement or one or more Order Forms if the other Party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days, or makes any assignment for the benefit of creditors.
. If this Agreement is terminated for any reason, Customer will pay to CommentSold any fees or other amounts that have accrued prior to the effective date of the termination, any and all liabilities accrued prior to the effective date of the termination will survive, and Customer will provide CommentSold with a written certification signed by an authorized Customer representative certifying that all use of Services and Documentation by Customer has been discontinued and that all Software and Confidential Information in Customer’s possession or control has been returned or destroyed.
. Notwithstanding anything to the contrary herein, Sections 1, 2.1, 2.5, 2.8, 2.11, 2.15, 2.16, 3, 4.5, 4.6, 5, 6.2, 6.3, 7, 8, 9, 10.2, 10.3, 10.5, 10.7 through 10.11 will survive termination or expiration of this Agreement.
. As used herein, “
” means all confidential information disclosed by or otherwise obtained from a Party (“
”) to or by the other Party (“
”), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of a Disclosing Party includes such Disclosing Party’s business and marketing plans, technology and technical information, product plans and designs, and business processes. Without limiting the foregoing, CommentSold’s Confidential Information includes each Service, all Documentation, all CommentSold technical information, and all information concerning Service-related database structure information and schema. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
Protection of Confidential Information
. Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Notwithstanding the foregoing, CommentSold is permitted to disclose Confidential Information of Customer on a need-to-know basis to employees, contractors, and agents of its Affiliates. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. “
” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations.
WARRANTIES AND DISCLAIMER
Limited CommentSold Warranties
. CommentSold hereby warrants, for the benefit of Customer only, that that each Service will materially conform to the applicable Documentation (the “
”) during the Term of the Services, provided that the Service Warranty will not apply to failures to conform to the applicable Documentation to the extent such failures arise, in whole or in part, from any modification of the applicable Service by Customer or any third party or any combination of the applicable Service with APIs, software, hardware, or other technology not provided by CommentSold under the applicable Order Form. If any defect or error covered by the Service Warranty occurs, Customer will provide CommentSold with sufficient detail to allow CommentSold to reproduce the defect or error. If notified in writing by Customer during the Term of the Services, CommentSold will, at its sole option, either (a) correct such error or defect in the Service, at no cost to Customer and within a reasonable time, by issuing corrected instructions, a restriction, or a bypass or (b) accept return of the Service and refund any prepaid but unused license or subscription fees previously paid by Customer in connection with such Service, and in Customer’s right to use the Service will terminate. The foregoing sentence sets forth Customer’s sole and exclusive remedy for CommentSold’s breach of the warranty described in the first sentence of this Section 6.1. CommentSold is not responsible for any defect or error not reported during the Term or any defect or error caused by a Service that Customer has modified, misused, or damaged.
. Each Party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms and (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION
6 OR AN ORDER FORM OR ANY ADDITIONAL TERMS
COMMENTSOLD MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMMENTSOLD EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMMENTSOLD DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICES. COMMENTSOLD DOES NOT WARRANT THAT THE DOCUMENTATION SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE, OR THE DEFECTS WILL BE CORRECTED. COMMENTSOLD DOES NOT WARRANT
THAT ANY INFORMATION PROVIDED BY A SERVICE OR DOCUMENTATION, IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION
WILL ALWAYS BE AVAILABLE. COMMENTSOLD EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON CUSTOMER DATA OR THE RESULTS OF CUSTOMER’S USE OF THE SERVICES OR DOCUMENTATION.
. CommentSold will: (a) at its expense and Subject to Section 7.4, either defend Customer from or settle any claim, proceeding, or suit (“
”) brought by a third party against Customer alleging that the Service as provided by CommentSold pursuant to this Agreement infringes or misappropriates any patent, copyright, or trademark, or other intellectual property right, and (b) indemnify Customer from and pay the applicable Losses (defined below). CommentSold will have no obligation under this Section 7 for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “
”): (1) use of the Service in combination with other products or services not provided by CommentSold if such infringement or misappropriation would not have arisen but for such combination; (2) the Service having been provided to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (3) use of the Service by Customer for purposes not intended or outside the scope of the license granted to Customer; (4) Customer’s failure to use the Service in accordance with instructions provided by CommentSold, if the infringement or misappropriation would not have occurred but for such failure; or (5) any modification of the Service not made or authorized in writing by CommentSold where such infringement or misappropriation would not have occurred absent such modification.
Mitigation; Limited Remedy
. If CommentSold becomes aware of, or anticipates, a Claim subject to Section 8.1, CommentSold may, at its option: (a) modify the Service so that it becomes non-infringing or substitute a functionally equivalent service; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice and refund to Customer any prepaid but used fees. Sections 7.1 and 7.2 state CommentSold’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement, misappropriation, or other violation of any third-party intellectual property right by the Service.
Defense by Customer
. Customer will: (a) subject to Section 7.4, at its expense, either defend CommentSold from or settle any Claim brought by a third party against CommentSold: (1) alleging that any Customer Data, Customer Marks, or content utilized by Customer in using the Services pursuant to this Agreement infringes or misappropriates any patent, copyright, or trademark, or other intellectual property right; or (2) relating to an Excluded Claim, and (b) indemnify CommentSold from and pay the applicable Losses.
. A party’s obligations as the indemnifying party (“
”) with respect to a Claim for which the indemnified Party (“
”) is indemnified under this Section 7 (an “
”) are subject to Indemnitee doing the following: (a) providing Indemnitor prompt written notice of the Indemnified Claim; (b) granting Indemnitor full and complete control over the defense and settlement of the Indemnified Claim; (c) providing assistance in connection with the defense and settlement of the Indemnified Claim as Indemnitor may reasonably request; and (d) complying with any settlement or court order made in connection with the Indemnified Claim. Indemnitee will not defend or settle the Indemnified Claim without Indemnitor’s prior written consent. Indemnitee will have the right to participate in the defense of the Indemnified Claim at its own expense and with counsel of its own choosing, but Indemnitor will have sole control over the defense and settlement of the Indemnified Claim. “
” means: (i) all damages, costs, and attorneys’ fees finally awarded against Indemnitee pursuant to the Indemnified Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Indemnitee in connection with the defense of the Indemnified Claim (other than attorneys’ fees and costs incurred without Indemnitor’s consent after Indemnitee has accepted defense of the Indemnified Claim); and (iii) all amounts that Indemnitor agrees to pay to any third party to settle the Indemnified Claim.
LIMITATIONS OF LIABILITY
Disclaimer of Indirect Damages
. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMMENTSOLD WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF COMMENTSOLD IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL COMMENTSOLD BE LIABLE FOR ANY LOSS OF DATA STORED IN, OR IN CONNECTION WITH, A SERVICE.
Limitation of Liability
. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL COMMENTSOLD’S TOTAL LIABILITY OF ALL KINDS, IN AGGREGATE, ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMMENTSOLD UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
Independent Allocations of Risk
. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMMENTSOLD TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 8 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
MANDATORY ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
. You and we agree that these Terms affect interstate commerce and that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This section entitled “Mandatory Arbitration and Class Action Waiver” is intended to be interpreted broadly and governs any and all disputes between you and us. Any and all disputes may include, but are not limited to (i) claims arising out of or relating to any aspect of the relationship between you and us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising); and (iii) claims that may arise after the termination of these Terms. The only disputes excluded from the broad prohibition in this subsection entitled “Application” are the litigation of certain intellectual property and small court claims, as provided in the subsection entitled “Exception” below.
Initial Dispute Resolution
. Most disputes can be resolved without resorting to arbitration. If you have any dispute with us, you agree that you will try to resolve your dispute with us before taking any formal action by contacting us at CommentSold, LLC, Attn: Legal Department, 3001 9th Ave SW, Huntsville, AL 35805 or to firstname.lastname@example.org. When you contact us, you must provide a brief, written description of the dispute and your contact information. If you have an account with us, you must include the email address associated with your account. Except for intellectual property and small claims court claims (see the subsection entitled “Exception” below), you and we agree to use good faith efforts to resolve any dispute, claim, question, or disagreement directly through consultation with each other. You and we agree to engage in good faith discussions before initiating a lawsuit or arbitration and understand that good faith discussions are a precondition of initiating a lawsuit or arbitration.
. If we do not reach an agreed-upon solution within a period of sixty (60) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided in the subsection entitled “Exception” below), as long as the party agrees with the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Services shall be finally settled by binding arbitration administered by JAMS in accordance with either (i) the JAMS Streamlined Arbitration Procedure Rules, for claims that do not exceed $250,000; or (ii) the JAMS Comprehensive Arbitration Rules and Procedures, for claims exceeding $250,000. The JAMS rules and procedures just identified shall be those effect at the time the arbitration is initiated (not the Last Modified date of these Terms), excluding any rules or procedures governing or permitting class actions.
. The arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms. Such disputes may include, but are not limited to, any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
Filing a Demand
. To start an arbitration, you must do all three of the following: (i) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 1155 F Street, NW, Suite 1150, Washington, DC 20004; and (iii) Send one copy of the Demand for Arbitration to us at: CommentSold, LLC, Attn: Legal Department, 3001 9th Ave SW, Huntsville, AL 35805. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, we will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court. If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing, unless you and we both agree to another location or telephonic arbitration. For individuals residing outside the United States, arbitration shall be initiated in Maryland, United States, and you and us agree to submit to the personal jurisdiction of any federal or state court in Maryland in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver
. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. This means that you and we expressly waive any rights to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
: Litigation of Intellectual Property and Small Claims Court Claims
. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in state or federal court with jurisdiction or in the U.S. Patent and Trademark Office to protect its intellectual property rights. “Intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets—but does not include privacy or publicity rights. Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out
. You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out to at CommentSold, LLC, Attn: Legal Department, 3001 9th Ave SW, Huntsville, AL 35805 or email@example.com. Your written notice must have the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of (i) the Effective Date of these Terms; or (ii) your first date that you used the Services that contained any versions of the Terms that included this version of the Mandatory Arbitration and Class Action Waiver, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with this section entitled “Mandatory Arbitration and Class Action Waiver.” If you opt out of these arbitration provisions, we also will not be bound by them.
Changes to This Section
. We will provide thirty (30) days' notice of any material changes to this section by posting notice on the Services or informing you via email, and complying with any other applicable legal notice or consent requirements. Amendments will become effective thirty (30) days after they are posted on the Services or sent to you by email. Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day.
If a court or arbitrator decides that this subsection (“Changes to this Section”) is not enforceable or valid, then this subsection will be deemed to be severed from the section entitled “Mandatory Arbitration and Class Action Waiver.” If this happens, the court or arbitrator shall apply the first Mandatory Arbitration and Class Action Waiver section or similar section in existence after you began using the Services.
. This Mandatory Arbitration and Class Action Waiver section shall survive any termination of your use of the Services.
. CommentSold will be and act as an independent contractor (and not as the agent, representative, partner, joint venturer, employee or fiduciary, of Customer) in the performance of this Agreement. Except as explicitly provided in the Software Services Terms with respect to Apple, there are no third-party beneficiaries under this Agreement.
. Neither Party may assign its right, duties, or obligations under this Agreement without the other Party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that either Party may assign this Agreement to an Affiliate or a successor, or in connection with a merger, acquisition or the sale of all of the assets or business to which this Agreement relates. Notwithstanding the foregoing, if pursuant to the preceding sentence, the Agreement is assigned to a direct competitor of the other Party, such other Party may terminate the Agreement and any Order Form. If CommentSold terminates the Agreement or an Order Form pursuant to this clause, it will provide the Customer with a refund of any amounts that are prepaid for a Service and that have not been used.
Export and Anticorruption
. Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under this Agreement. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export Services. Customer represents and warrants that the Services are not being and will not be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List or the List of Specifically Designated Nationals, unless specifically authorized by the U.S. Government for those purposes. Each Party represents that it has not been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party related to this Agreement.
. CommentSold may utilize subcontractors or other third parties to perform its duties under this Agreement so long as CommentSold remains responsible for all of its obligations under this Agreement.
. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is: (1) in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate Party at the address set forth on the applicable Order Form and with the appropriate postage affixed or (2) delivered by electronic mail. Either Party may change its address for receipt of notice by notice to the other Party in accordance with this Section 9.5. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being sent by mail or courier as permitted above.
. Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, including an act of God, pandemic, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem, Internet service provider failure or delay, or acts undertaken by third parties, including without limitation, denial of service attack, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of New York, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in New York County, New York in connection with any action arising out of or in connection with this Agreement.
. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of a Service under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use Services will immediately terminate.
. Notwithstanding anything to the contrary in this Agreement, CommentSold may collect and compile data and information related to Customer's use of the Services that is used by CommentSold in an aggregated manner, including to compile statistical and performance information related to the security, functioning, performance and delivery of the Services. As between CommentSold and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by CommentSold. Customer acknowledges that CommentSold may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that CommentSold may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.
. This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed, nor does it affect the validity of any agreements between the Parties relating to other products or services of CommentSold that are not described in an Order Form and with respect to which Customer has executed a separate agreement with CommentSold that remains in effect. No employee, agent, or other representative of CommentSold has any authority to bind CommentSold with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the Party against whom enforcement is sought. CommentSold will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any purchase order or other Customer-generated ordering document, receipt, acceptance, confirmation, correspondence, or otherwise, unless CommentSold specifically provides a written acceptance of such provision signed by an authorized agent of CommentSold. Any conflict between an Order Form, Additional Terms, or the terms of this Main Services Agreement will be resolved according to the following order of precedence: (1) the Order Form; (2) the Additional Terms; and (3) the terms of this Main Services Agreement. If there is a conflict between an online document and a separate version executed by Customer and CommentSold, the separately executed document will prevail.
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