The Juice MASTER AGREEMENT
This The Juice MASTER AGREEMENT is a master agreement and consists of the general terms and conditions set forth herein, and the terms set forth in an applicable Order Form (defined below) or an applicable Statement of Work (defined below) (collectively, the “Agreement”). Unless expressly set forth in an Order Form or Statement of Work, the terms and conditions set forth in this The Juice MASTER AGREEMENT shall control in the event of a conflict between the terms and conditions herein, and any Order Form or Statement of Work.
The Agreement is effective as of the date set forth on an applicable Order Form (“Effective Date”), by and between The Juice SOFTWARE, Inc. (“The Juice”), and the client party as set forth on an applicable Order Form (“Client”). Client may include any Client affiliates, partners, or franchisees, as indicated on the applicable Order Form or Statement of Work. From time to time in the Agreement, Client and The Juice shall be referred to collectively as, the “Parties” and each individually as, a “Party.”
There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
SECTION 1. Definitions. Terms defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout the Agreement.
a). “Benchmark Data” means statistical, system, usage, and configuration data regarding the Client’s compliance with the Agreement and Client’s usage of the Software Services, including, but not limited to, user engagement statistics or remote application performance measurement, and provided that: (i) does not specifically identify Client or Client’s customers; and, (ii) does not consist of any of Client’s Confidential Information, provided, however, that Client shall not consider statistical, aggregate data that is not capable of reidentification part of its Confidential Information;.
b). “Client Content” means any logos, videos, multimedia, reports, information, files, documents, data or other content that Client, its employees, personnel, agents, or end users, share with The Juice.
c). “Confidential Information” means any nonpublic information (written, oral or electronic) disclosed by one Party to the other Party and shall be deemed to include the following information of the respective Parties, without limitation: (i) the terms and conditions of the Agreement; (ii) customer lists, the names of customer contacts, business plans, technical data, product ideas, personnel, contracts and financial information; (iii) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (iv) information about costs, profits, markets and sales; (v) plans for future development and new product concepts; (vi) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; or (vii) any data or information stored in the Software Services, which is (a) marked “confidential” or “proprietary” at the time of disclosure by the disclosing Party; or (b) by its nature or content is reasonably distinguishable as confidential or proprietary to the recipient.
d). “Deliverable” means all patentable subject matter, copyrightable subject matter, copyrights, trademarks, trade secrets, know-how, ideas, suggestions, discoveries, designs, processes, computer products, software (both object code and source code), works of authorship, algorithms, formulas, methods, programming, techniques, flowcharts, reports, and all other inventions or developments created, by The Juice, specifically for Client pursuant to Professional Services, and as set explicitly identified on an Order Form or Statement of Work.
e). “Order Form” means the order form document that is executed by both parties and is subject to, governed by, and incorporates by reference, this The Juice MASTER AGREEMENT, and sets forth the Software Services and Professional Services The Juice shall provide to Client.
f). “Professional Services” means the professional services provided by The Juice to Client under a Statement of Work or the Order Form that describes the professional services to be provided by The Juice, which may include, but is not limited to, any implementation, data conversion, set-up, consulting, training, interface, and advisory services.
g). “Residuals” means any ideas, concepts, or know-how developed or acquired by The Juice during the performance of this Agreement to the extent obtained and retained by The Juice (and its personnel) as impression and general learning, and does not include Client’s Confidential Information or Client Content delivered hereunder.
h). “Software Services” means the software services as set forth on the Order Form or a Statement of Work, and provided by The Juice, running on one or more computer servers maintained by The Juice or a third party on behalf of The Juice, and made available to Client over the Internet.
i). “Statement of Work” means a document executed by an authorized representative of each party that sets forth the Professional Services.
j). “Third Party Product” means all materials, hardware or software owned by a third party.
SECTION 2. Software Services.
a). License Grant. Provided that Client pays all the required fees under the Agreement and complies with all other terms of the Agreement, The Juice hereby grants to Client a non-exclusive, worldwide, irrevocable (during the Term), non-transferable (except as provided herein) right and license to access and use the Software Services pursuant to the Agreement, in and under The Juice’s intellectual property rights. Client shall not use or otherwise access the Software Services in a manner that exceeds Client’s authorized use as set forth in the Agreement.
b). Restrictions. Client shall not use the Software Services beyond the scope of the rights granted in the Agreement. Client shall be solely liable for its users’ and customers’ access to the Software Services and any misuse of the Software Services by any of Client’s workforce personnel. Client shall not directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Software Services. Client shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in the Software Services.
c). Security. The Juice hereby agrees to have in place, a formal written information security program that provides safeguards for the protection of Client’s Confidential Information and Client Data, from loss, theft, and disclosure to unauthorized persons. The Juice agrees to maintain commercially reasonable information security and privacy standards, as applicable to the Software Services.
d). Service Level Agreement. During the Term, The Juice shall provide the Services in accordance with the service levels as further specified in the Service Level Agreement attached hereto as Attachment A. Notwithstanding the foregoing, The Juice may suspend Client's use of the Services in the event that The Juice reasonably concludes that Client's use of the Services is causing immediate, material, and ongoing harm to The Juice or others.
SECTION 3. Client’s Obligations
a). To the extent applicable, Client shall be responsible for obtaining and purchasing all equipment, Internet access services, and Third Party Product(s), modifying its network, and doing all other things necessary in order to use the Software Services, and the Professional Services. The Juice will make reasonable effort to identify and disclose additional costs as part of Order Form(s) or Statement(s) of Work.
b). Client will provide commercially reasonable cooperation with The Juice to assist The Juice in provision of the Software Services, and the Professional Services.
c). The Juice shall authorize access to and assign unique passwords and user names to Client’s end users of the Software Services (“Client Accounts”). Client shall be responsible for any activity occurring through Client’s personnel’s Client Accounts, including unauthorized activity.
d). Client shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software Services and shall promptly notify The Juice in the event Client knows of any unauthorized access or use of the Software Services and any loss or theft or unauthorized use of any of the Client Accounts.
e). Client shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and industry standards, applicable to Client’s use of the Software Services, and the Professional Services, including without limitation those related to privacy, electronic communications, and anti-spam legislation.
f). Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software Services or any software, documentation or data related to the Software Services; modify, translate, or create derivative works based on the Software Services (except to the extent expressly permitted by The Juice or authorized within the Software Services); use the Software Services for timesharing or service bureau purposes or otherwise for the benefit of a third; remove any proprietary notices or labels; or in any manner that violates The Juice’s intellectual property rights.
SECTION 4. Professional Services. All Professional Services rendered by The Juice (if any) shall be governed by the terms and conditions of the Agreement and the applicable Statement of Work or Order Form.
a). Order Forms. The performance of Professional Services by The Juice will be in accordance with this Agreement and one or more Order Forms or Statements of Work. Each Order Form or Statement of Work shall be signed by authorized representatives of The Juice and Client, and shall identify the Professional Services to be provided by The Juice to Client under that Order Form or Statement of Work, the Fees to be paid by Client to The Juice under that Order Form or Statement of Work, and other terms and conditions applicable to the Professional Services under that Order Form or Statement of Work, including, for example, any limitations or scheduled milestones. Any modification to this Agreement or an Order Form or Statement of Work must be in writing and executed by an authorized representative of each Party.
b). Performance of Professional Services. Professional Services may, as agreed on by the parties, be performed at: (i) Client’s offices, The Juice’s offices or elsewhere; and (ii) the times designated by The Juice unless otherwise specified in an Order Form or Statement of Work. Client shall provide The Juice with copies of all materials in Client’s possession that The Juice may reasonably request to assist The Juice in rendering Professional Services hereunder. In addition to all other remedies it has available to it at law or in equity, The Juice may suspend the provision of Professional Services during any period when Client has failed to timely pay The Juice any undisputed amount due under the Agreement and such failure continues for a period of fifteen (15) or more days following Client’s receipt of notice or a reminder invoice from The Juice concerning such nonpayment.
c). Client Delay and Changes. The Juice shall not be responsible for any delays in the performance of the Professional Services caused by Client. For any Professional Services for which Client’s participation is contemplated, Client and The Juice shall agree upon the dates to perform such Professional Services. The Juice will have no obligation to provide Professional Services other than those specified in any Statement of Work. Client may request additional Professional Services by a separate Statement of Work describing the additional Professional Services to be provided. Unless the parties agree to other rates set forth in a mutually executed Statement of Work, Client will pay for additional work and/or work that falls outside of the scope of a Statement of Work at an hourly rate of $150/hour. Additional work shall not be performed without Client’s prior approval in writing.
SECTION 5. Payment Terms
a). Fees. Client shall pay the fees as set forth on the Order Form, including any: (i) fees for the Professional Services (the “Professional Services Fees”); (ii) fees for the Software Services (the “Subscription Fees”) (collectively, the “Fee(s)”). Notwithstanding the foregoing, the Parties may agree in writing to renew the Agreement for longer periods at other mutually agreed upon rates. Unless set forth on the applicable Order Form, Client shall commence paying the Subscription for the Initial Term or each Renewal Term, and will pay all Professional Services Fees, within thirty (30) days after receipt of applicable invoice.
b). Payments for Professional Services. The Juice will invoice Client for Professional Services on a time and materials basis. Client shall pay undisputed invoices, or the undisputed portion of any disputed invoice, within thirty (30) days of receipt of invoice. In order to dispute an invoice or an amount on an invoice, Client must provide written notice to The Juice of such dispute and such dispute must be reasonable and in good faith. On such invoices, The Juice shall charge Client for pre-approved reasonable travel, lodging and meal expenses, and any other reasonable expenses incurred on behalf of Client in rendering the Professional Services. For the avoidance of doubt, all expenses must be pre-approved by Client before they may be incurred and charged to Client.
c). Taxes. Client shall pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) applicable to Client under the Agreement (collectively, “Taxes”), except taxes based on The Juice’s income, property or employees, provided that such Taxes are included as a line item on the applicable invoice to which they relate. The Juice reserves the right to suspend Client’s access and/or use of the Software Services and to cease providing Professional Services for any accounts for which any payment of undisputed fees is due and unpaid, provided, however, that The Juice provides Client a delinquency notice of such nonpayment and at least thirty (30) days have passed since the transmission of such delinquency notice without full payment of the unpaid fees by Client. Client also shall pay to The Juice all reasonable expenses incurred by The Juice in connection with exercising any of its rights under the Agreement or applicable law with respect to the collection of any payments due The Juice (excluding with respect to amounts reasonably disputed by Client in good faith), including reasonable attorneys’ fees, court costs, and collection agency fees.
SECTION 6. Intellectual Property Rights
a). Proprietary Rights. Client acknowledges and agrees that The Juice retains sole and exclusive ownership of all right, title, and interest in and to: (i) any Professional Services; and (ii) the Software Services, including any update, modification, improvement, enhancement, or configuration made to the Software Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration.
b). Deliverable Rights. Each Deliverable, as it is developed, that is copyrightable shall be deemed “work made for hire,” (as such, term is defined under the United States copyright laws) and made in the course of the Professional Services rendered hereunder. If, for any reason, any of the foregoing may not be deemed a “work for hire” and for all other Deliverables (including all other intellectual property rights therein), The Juice hereby irrevocably and unconditionally grants and assigns to Client, in perpetuity, now and in the future, all rights, title and interest whatsoever throughout the world in and to all Deliverables and all intellectual property rights embodied therein, practiced thereby or used therein. Subject to the foregoing and mutual agreement by the parties in each case, The Juice shall have a nonexclusive, nontransferable license to use the Deliverable solely to support its business operations.
c). Residuals. Client acknowledges and agrees that Client does not have or obtain any rights in any Residuals. Notwithstanding any provision of this Agreement to the contrary, The Juice shall be free to use for any purpose, any Residuals resulting from performance hereunder.
d). Client Content. Client acknowledges and agrees that in connection with this Agreement, The Juice may process and/or receive Client Content. Client shall own all title and intellectual property rights in and to the Client Content. Notwithstanding the foregoing, when Client, its employees, personnel, agents, or end users, upload, submit, or store Client Content in connection with this Agreement, Client grants The Juice a limited, worldwide license to use, host, store, and reproduce from the Client Content to perform its obligations under this Agreement. The Juice is not responsible for any electronic communications and/or Client Content which are delayed, lost, altered, intercepted or stored during the transmission of any data by means of third party networks (other than third parties providing computing or storage services under the Agreement on behalf of The Juice). Without limiting Client’s rights and remedies under the Agreement, Client acknowledges that Client Content and information regarding Client’s account will be processed by The Juice and stored and processed using online hosting services selected by The Juice. Client represents and warrants that, to the best of Client’s knowledge, it has all necessary rights in, and obtained all necessary consents to, the Client Content to grant The Juice the rights granted under this Section 6(d). Notwithstanding anything to the contrary in the Agreement, Client authorizes and agrees that The Juice may collect Benchmark Data and such Benchmark Data shall be the property of The Juice. The Juice shall have the right to retain, use, distribute, sell, and otherwise exploit such Benchmark Data.
e). Customer Advisory Board & Feedback. The Juice has a customer advisory board (CAB). The purpose of the CAB is to provide The Juice customers including Client, updates on product developments plans, corporate goals and strategy, and to gather feedback and suggestions from customers. Client shall be entitled to participate in the CAB at The Juice’s request and discretion. The Juice encourages Client to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to The Juice’s services and related resources. The Juice shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Software Services or any new programs, upgrades, modifications or enhancements developed by The Juice in connection with rendering the Software Services to Client, even when refinements and improvements result from Client’s feedback or request (excluding any Client Confidential Information or Client Content contained therein). To the extent, if any, that ownership in such refinements and improvements does not automatically vest in The Juice by virtue of the Agreement or otherwise, Client grants to The Juice a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit feedback (including by incorporation of such feedback into the Software Services but excluding any Client Confidential Information or Client Content contained therein) without restriction.
SECTION 7. Warranties. The Juice represents, warrants and covenants that: (a) it has the full corporate right, power and authority to enter into the Agreement; (b) the execution of the Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a Party or by which it is bound; (c) it shall use commercially reasonable efforts to prevent unauthorized access to, and maintain and assure the strict confidentiality of, all Client Content and shall maintain the security standards set forth in Section 2(c); (d) it shall provide the Professional Services in a good and workmanlike, professional manner; (e) it shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and industry standards, applicable to The Juice’s provision of the Software Services, and the Professional Services, including without limitation those related to privacy, electronic communications, and anti-spam legislation; (f) the services will not transmit any software viruses, worms, Trojan horses, time bombs, cancelbots or other harmful computer code, files, scripts, agents, programs or programming routines (collectively, “Malicious Code”); and (g) the Software Services will not infringe upon or otherwise violate the rights of any third party, including any patent, copyright, trademark, trade secret or other intellectual property right, or any contractual, employment, confidentiality, privacy or publicity rights. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7 AND IN ANY STATEMENT OF WORK, The Juice DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT AS SET FORTH IN THIS AGREEMENT OR ANY EXHIBIT OR STATEMENT OF WORK, CLIENT ACKNOWLEDGES AND AGREES THAT ALL The Juice TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 7 AND IN ANY STATEMENT OF WORK, The Juice MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT The Juice SOFTWARE SERVICES OR PROFESSIONAL SERVICES WILL MEET CLIENT’S REQUIREMENTS OR EXPECTATIONS, THAT THE The Juice SOFTWARE SERVICES OR PROFESSIONAL SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. The Juice DOES NOT GUARANTEE THAT ANY SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL (OR THAT OF ANY THIRD PARTIES PROVIDING SERVICES UNDER THE AGREEMENT ON BEHALF OF The Juice). The Juice WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENT’S PROPERTIES, THIRD-PARTY PRODUCTS NOT PROVIDED BY The Juice UNDER THIS AGREEMENT (OTHER THAN THIRD PARTIES PROVIDING SERVICES UNDER THE AGREEMENT ON BEHALF OF The Juice), THIRD-PARTY CONTENT NOT PROVIDED BY The Juice UNDER THIS AGREEMENT, OR NON-The Juice SERVICES (OTHER THAN THIRD PARTIES PROVIDING SERVICES UNDER THE AGREEMENT ON BEHALF OF The Juice) (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CLIENT IN BREACH OF THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CLIENT BASED UPON The Juice SOFTWARE SERVICES OR PROFESSIONAL SERVICES OR The Juice’S RELATED SERVICES. THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CLIENT MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
The Juice will have no responsibility for the quality, completeness, proper licensure, or workmanship of any item or action furnished by Client. Unless otherwise agreed in writing, Client will be solely responsible for obtaining all necessary rights in Client Furnished Equipment or Third Party Products delivered by Client (but not by The Juice). Further, The Juice will have no responsibility for the adequacy or performance of: (i) the Client Furnished Equipment, or any software, hardware, or other materials The Juice did not provide under this Agreement, or (ii) any products or services provided by any third party except for any third party software, hardware, or other materials The Juice directly provides or provides through subcontractors under this Agreement. The Juice DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ALL THIRD PARTY PRODUCTS. THE MANUFACTURERS OR DISTRIBUTORS OF THE THIRD PARTY PRODUCT(S) MAY PROVIDE WARRANTIES OF THEIR PRODUCTS THAT WILL EXTEND TO CLIENT, BUT IT IS CLIENT’S RESPONSIBILITY TO ACQUIRE AND IMPLEMENT SUCH WARRANTIES.
SECTION 8. Indemnification.
a). Client shall indemnify and defend The Juice, at Client’s own expense, against any suit or proceeding brought against The Juice by a third party arising from or related to:
i) Client’s violation of any law; or
ii) An allegation that the Client Content or Client Furnished Equipment or The Juice’s use thereof in accordance with the Agreement violates any law or regulation or infringes third party intellectual property rights or privacy rights.
b). The Juice shall indemnify and defend Client, at The Juice’s own expense, against any claim, suit or proceeding brought against Client arising from or related to:
i)The Juice’s violation of any law;
ii) An allegation that the Software Services, Deliverables or Professional Services provided by The Juice under this Agreement violates any law or regulation or infringes third party intellectual property rights or privacy rights; or
iii) An allegation that if true, would constitute a breach of The Juice’s representation, warranty, or covenant provided in Section 7. (each, a “Claim”)
c). The Juice’s indemnification obligations under Section 8(b)(ii) shall not apply to the extent such Claim results from: (i) Client’s modification of the Deliverables without The Juice’s prior approval; (ii) The Juice’s adherence to Client’s instructions; or (iii) the Client Furnished Equipment.
d). To qualify for such defense and payment, the indemnified Party must: (a) give the indemnifying Party prompt written notice of any such Claim (provided that the indemnified Party’s failure to provide such prompt notice will not release the indemnifying Party from its indemnification obligations except to the extent the indemnifying party is materially prejudiced thereby); (b) allow the indemnifying Party to solely control the defense and all related settlement negotiations for any such Claim (provided that the indemnifying Party will not enter into any settlement of a Claim that: (i) imposes a monetary obligation on the indemnified Party that is not covered by the indemnification; or (ii) imposes a material, non-monetary obligation on the indemnified Party); and (c) reasonably cooperate with the indemnifying Party (at the indemnifying Party’s expense) in such defense and settlement negotiations. The indemnified Party shall have the option, at its expense, to participate in the defense or settlement of the Claim with counsel of its own choosing.
SECTION 9. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, OR DAMAGES ARISING FROM A PARTY’S BREACH OF IT’S CONFIDENTIALITY OBLIGATIONS, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR WITH RESPECT TO The Juice, A BREACH OF ITS SECURITY OBLIGATIONS UNDER SECTION 2(c), EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THE AGREEMENT WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY THE CLIENT UNDER THE AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.
SECTION 10. Confidentiality.
a). Non-Disclosure. Each Party agrees not to use, disclose, sell, license, publish, reproduce or otherwise make available the Confidential Information of the other Party to any third party, except for a party’s Representatives, and further agrees not to use the Confidential Information of the other Party except and only to the extent necessary to perform their respective obligations under the Agreement. Each Party agrees to secure and protect the other Party’s Confidential Information in a manner consistent with the maintenance of such Party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates or other agents (collectively, “Representatives”) who are permitted access to the other Party’s Confidential Information to satisfy its obligations under this Section.
b). Exclusions. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving Party; (b) was rightfully in the receiving Party’s possession on a non-confidential basis independent of its relationship with the disclosing Party prior to the first disclosure by the disclosing Party to the receiving Party as evidenced by the receiving Party’s then-existing written records; (c) has been or is developed by or become known to the receiving Party without access to any of the disclosing Party’s Confidential Information and outside the scope of any agreement with disclosing Party with the receiving Party having the burden of proof to demonstrate independent creation.
SECTION 11. Term and Termination.
a). Term. The initial term of the Agreement shall be as set forth on the Order Form (the “Initial Term”). Thereafter, the term of the Agreement shall renew as set forth on the Order Form (the “Renewal Term”, and collectively with the Initial Term, the “Term”), unless one Party provides written notice to the other Party at least ninety (90) days in advance of the end of the then-existing term that it does not wish to renew the Agreement.
b). Termination for Cause. In the event that Client or The Juice breaches any material provision of the Agreement and fails to cure such breach within fifteen (15) days after written notice thereof (which notice reasonably details the alleged breach), the non-breaching Party may terminate the Agreement immediately by written notice to the other Party. In the event that Client or The Juice (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors; or, (v) ceases to do business in the ordinary course, the other Party may terminate the Agreement immediately by notice in writing. All notices required by this Section shall be in accordance with the notice requirements.
c). Rights upon Termination. Client acknowledges that in the event of a termination or expiration of this Agreement for any reason (including any under Section 12(b)): (i) the rights granted by The Juice to Client will cease immediately and the rights granted by Client to The Juice will cease immediately; (ii) The Juice shall promptly delete any Client Content or other data; (iii) Client shall pay The Juice any undisputed fees for all Software Services (including any Professional Services) provided to Client up to and including the date of termination; and (iv) Client shall not be entitled to any refund of the Fees (or portions thereof) unless this Agreement or any Order Form or Statement of Work are terminated due to The Juice’s breach (in which case The Juice shall promptly provide Client with a refund of any prepaid and unused fees) or as otherwise set forth on the applicable Order Form or Statement of Work.
SECTION 12. General.
a). Law, Jurisdiction, and Venue. The Agreement shall be governed and construed according to the laws of the State of Illinois. The Parties agree that the exclusive jurisdiction or any lawsuit related to or arising under the Agreement shall be in the state or federal courts located in Cook County, Illinois.
b). Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by either party without consent, except in connection with an acquisition of that party, or merger or other change of control transaction if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement and such assignee is not a direct competitor of the non-assigning party. Any unauthorized assignment or delegation will be null and void.
c). Notices. Any notice either Party desires to give the other Party hereunder shall be in writing. All notices shall be given by delivery to the Parties at their physical or email addresses set forth on the Order Form unless such addresses are changed by written notice.
d) Independent Parties. The Agreement is by and between independent parties. Nothing in the Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.
e). Force Majeure. Neither Party shall be liable in damages or have the right to terminate the Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, widespread Internet outage(s), wars, insurrections and/or any other cause beyond the control of the Party whose performance is affected, however, if the duration of the delay caused by such an event shall exceed fifteen (15) days, the Party who was to benefit from the performance of such act shall have the right to terminate the Agreement by giving written notice, according to the Agreement. If Client terminates the Agreement due to an ongoing force majeure event in accordance with this Section, The Juice shall promptly refund Client any prepaid and unused fees.
f). General. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. The Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. The Agreement may not be modified except by written agreement signed duly authorized representatives of both Parties. The Agreement shall not be construed against any Party by reason of its preparation. If one or more of the provisions contained in the Agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. In this event, the Parties may replace the unenforceable provision with a mutually agreeable enforceable provision that preserves the original intent and position of the Parties. Any other provisions that survive by their nature shall survive the expiration or termination of the Agreement for any reason. No term or provision of the Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. No consent by any Party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.
g). Marketing: The Juice shall not use the name or service marks of Client in its marketing materials or other oral, electronic, or written promotions, without Client’s prior written consent. Any use of The Juice logos or links on Client's Deliverables must be approved in writing by Client. Either party may elect to issue a press release related to this Agreement, subject to the other party’s prior written approval.
h). Anti-corruption: In connection this Agreement and any related agreement or activity, The Juice agrees to comply with all laws, rules and regulations relating to bribery or corruption, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977, as amended (“FCPA”) and the UK Bribery Act 2010 (collectively, the “Anti-Corruption Laws”), and represents and covenants that it has not offered, paid, promised, or authorized, and will not offer, pay, promise, authorize, solicit or request, directly or indirectly, any illegal bribe, kickback, or other improper or illegal payment to or from any third party, including any government official, in connection with this Agreement or any related agreement or activity.
i). EEO. As a vendor or subcontractor, The Juice is notified it may be subject to the regulations implementing Executive Order 11246, as amended, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, and Section 503 of the Rehabilitation Act of 1973, as amended, including: 41 CFR Section 60-300.5(a); 41 CFR Section 60- 741.5(a); 41 CFR Section 60-1.4(a) and (c); 41 CFR Section 60-1.7(a); 41 CFR Part 60-2, 48 CFR Section 52.222-54(e); and 29 CFR Part 471, Appendix A to Subpart A with respect to affirmative action program and posting requirements. As applicable, The Juice shall abide by these requirements which require that covered entities not discriminate and take affirmative action on the basis of sex, gender identity, sexual orientation, race, color, religious creed, national origin, physical or mental disability, and protected veteran status.