These Terms and Conditions (these “Terms and Conditions”) between Marq Vision Inc., a Delaware corporation (“Marq Vision”) and you (“Client” or “you” or “your”), are an integral part of the Services Agreement (the “Services Agreement”, and together with these Terms and Conditions, the Scope of Services and Letter of Authorization (as such terms are defined below), the “Agreement”)entered into between Client and Marq Vision. Marq Vision and Client may be referred to individually as a “Party” or collectively as the “Parties”.  Capitalized terms used but not defined in these Terms and Conditions shall have the meaning provided in the Services Agreement.

By accepting the Agreement, by accessing or using the Services, or clicking through on our website, you acknowledge that you have read, understood, have the authority to, and agree to be bound by the Agreement. The terms of your Scope of Services shall not modify the Agreement. If you are an individual, you certify that you are 18 years of age or older. If you are entering into the Agreement on behalf of your customer, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to the Agreement, in which case the terms “you” or “your” shall also refer to such entity and its affiliates. If you do not have such authority, or if you do not agree to be bound by the Agreement, you must not accept the Agreement and may not use the Services.

Marq Vision may change or revise these Terms and Conditions at its discretion. If any change or revision to these Terms and Conditions is not acceptable to you, your only remedy is to stop using the Services and send a cancellation email to contact@marqvision.com. Otherwise, you will be bound by the changed or revised terms. Marq Vision may change or revise these Terms and Conditions from time to time by providing ten (10) days prior notice either by emailing the email address set forth on the signature page to the Services Agreement, by posting a notice on the website at https://www.marqvision.com or by providing notice on the Platform (as defined below) (“Change Notice”). You can review the most current version of these Terms and Conditions at any time here or by logging into your account on the Platform. Your use of the Services ten (10) days after this Change Notice shall constitute full acceptance of the revised or changed terms.

1. Services.

1.1 Services. Marq Vision provides the following services (collectively, the “Services”): access to Marq Vision’s proprietary software application (in both source code and object code form), located at https://brand.marqvision.com, for the detection, documentation and/or removal of online content on e-commerce platforms and websites that may infringe Client’s rights (including all Updates and Improvements, the “Platform”), as set forth in the Scope of Services, attached to the Agreement as Annex 1 (“Scope of Services”).  The Parties may supplement or amend the Scope of Services from time to time, upon the execution of a signed writing between the Parties.  For purposes of these Terms and Conditions, “Updates and Improvements” means any updates, bug fixes, patches, or other error corrections, and any inventions, modifications, additions, derivative works, enhancements, revisions, translations, abridgments or expansions to or arising from a work, or any other form in which a work or any part thereof, may be recast, transformed, or adapted, including all intellectual property rights therein or thereto, to the Platform.

1.2 Authorization; No Legal Representation. In order to perform the Services, upon execution of the Agreement, the Parties shall execute the Letter of Authorization, attached to the Agreement as Annex 2, which shall grant Marq Vision the authority to report infringement via the infringement reporting rules of each e-commerce platform and website listed as a Covered Channel in the Scope of Services.  For the avoidance of doubt, the Services do not include any legal representation, initiating any legal proceedings (including making any claims or complaints to or before any court or judicial body) that may be needed to achieve the removal of incidents of infringement of the Protected Assets (as set forth in the Scope of Services).  Client understands and acknowledges that Marq Vision, its affiliates and its and their employees, directors, officers and representatives (collectively, the “Marq Vision Parties”) do not and cannot provide legal guidance or advice, and in no event shall the Services constitute any creation of any potential or actual attorney-client relationship.  While Marq Vision provides tools and services which, in response to Client’s input, verification, and direction, can greatly increase the operational efficiency of Client’s efforts to detect, document, and remove online content that violates Client’s rights, ultimately it is solely the responsibility of Client, and not any Marq Vision Parties, who must make all decisions regarding Client’s legal rights.  Any legal questions should be directed to Client’s legal counsel.

1.3 Marq Vision Responsibilities. Marq Vision will perform the Services in a timely, skillful, professional, and workmanlike manner in accordance with industry standards and practices for similar services, using personnel with the requisite skill, experience, and qualifications, and will devote adequate resources to meet its obligations under the Agreement.  Marq Vision will use and apply information security techniques, measures, tools, and protection as is necessary and consistent with good industry standards in the hosting and provision of its Platform and the performance of the Services.

1.4 Client Cooperation.  Client acknowledges that Marq Vision’s ability to deliver the Services is dependent upon Client’s ongoing cooperation and assistance. Client will provide Marq Vision, on a timely basis, all information, material, and assistance reasonably necessary for Marq Vision to perform the Services, including, as applicable, information related to Client’s intellectual property rights and registrations, and any authorization forms required by Marq Vision. Marq Vision will not be responsible for delays resulting from Client’s failure to fully comply with the foregoing.

2. Platform License and Terms

2.1 Access to Platform. Subject and conditioned upon Client’s strict compliance with all terms and conditions set forth in the Agreement, Marq Vision hereby grants to Client a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use the Platform, solely for Client’s internal business purposes and in accordance with the Agreement, including without limitation this Section 2.

2.2 Client Responsibilities for Use of the Platform.  

(a) Client is responsible and liable for all uses of the Platform resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of an employee, contractor or agent of Client who Client permits to access and use the Platform (“Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Client will be deemed a breach of the Agreement by Client.  Client shall ensure that all Authorized Users comply with such provisions.

(b) Client will take reasonable steps to prevent unauthorized access to the Platform, and must (i) notify Marq Vision promptly upon becoming aware of any unauthorized use of any Client password or account (or any other breach of security of the Service), and (ii) notify Marq Vision promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying of or access to the Platform.

2.3 Use Restrictions. Client shall not, and shall require its Authorized Users not to, use the Platform beyond the scope of the license granted under Section 2.1.  Without limiting the foregoing and except as otherwise expressly set forth in the Agreement, Client shall not at any time, directly or indirectly, Client may not: (a) copy, rent, sublicense, or otherwise provide third parties with access to the Platform, (b) decompile, disassemble, reverse engineer, modify, create derivative works of the Platform or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (c) seek or gain unauthorized access to the Platform; (d) interfere with or disrupt the integrity or performance of the Platform; (e) send, store or use on the Platform any infringing, obscene, threatening, libelous or otherwise unlawful material, or any material containing viruses, worms, Trojan horses or other malicious or harmful computer code; or (f) use the Platform for purposes of competitive analysis of the Platform, the development of a competing software product or service, or any other purpose that is to Marq Vision’s commercial disadvantage.

2.4 No Reliance. Notwithstanding anything to the contrary in the Agreement, Marq Vision assumes no liability for the quality, accuracy, or validity of the data/information gathered in or by the Platform(“Platform Data”), and no oral or written information provided or made available by any Marq Vision Parties or third-party providers shall create a warranty, and in no event shall Client rely on such information.

2.5 Collection and Use of Information

(a) Client acknowledges that Marq Vision may, directly or indirectly through the services of third parties, collect and store information regarding use of the Platform and about equipment on which the Platform is used, through the provision of maintenance services and/or security measures included in the Platform. Client also acknowledges that Marq Vision will collect data submitted by Client through the Platform, including without limitation information about Client’s customers, distributors, inventory and products.

(b) Client agrees that Marq Vision may use such information for any purpose related to any use of the Platform by Client or on Client’s equipment, including but not limited to: improving the performance of the Platform, developing Updates and Improvements, and improving Marq Vision’s and/or its subsidiaries’ business model and services (whether or not such business model and services are related to the Platform, the Services or the Agreement); and verifying Client’s compliance with the terms of the Agreement and enforcing Marq Vision’s rights, including all Intellectual Property Rights in and to the Platform. For purposes of the Agreement, “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

3. Fees and Payment Terms

3.1 Fees. Client will pay Marq Vision all fees listed in the Scope of Services, in the currency quoted therein (the “Fees”), without notice or demand and without deduction or set-off. All Fees are based on the Services purchased and not actual usage, and are non-refundable.  Unless specified otherwise in the Scope of Services, the Fees will be payable monthly commencing on the Effective Date.

3.2 Payment Method. The payment method and frequency shall be specified in the Scope of Services.  Unless specified otherwise in the Scope of Services, Client will pay all Fees on the same day each month, commencing on the Effective Date; provided, that in the event such day on which the Fee would be due is on a day that does not occur such month (e.g., the 29th, 30th or 31st of February, or the 31st of April, June November or September), such payment shall be due on the last day of such month.  Subject to Section 3.1, if the payment method is (a) via credit card, Client hereby authorizes Marq Vision to charge Client’s credit card on a monthly basis with respect to the Services and (b) via bank transfer, Marq Vision will issue an invoice prior to the same day each month.  Client shall notify Marq Vision in writing of any dispute regarding any invoice within seven (7) days of receipt of such invoice.  Invoice disputes do not suspend the obligation to make all payments when due.

3.3 Late Payments; Suspension of Services. Except for invoiced payments that Client has successfully disputed, all late payments shall bear interest at the lesser of (a) the rate of one percent (1%) per month and (b) the highest rate permissible under applicable law, calculated daily and compounded monthly.  Client will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Marq Vision in collecting past due amounts.  In addition to all other remedies available under the Agreement or at law (which Marq Vision does not waive by the exercise of any rights hereunder), Marq Vision reserves the right to suspend delivery of the Services and access to the Platform if Client fails to timely pay any undisputed amounts due to Marq Vision under the Agreement, in the event Client fails to make any payment when due and such failure continues for fifteen (15) days following the date such amounts were due. Suspension of the Services shall not release Client of its payment obligations under the Agreement. Client agrees that Marq Vision shall not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to suspension of the Services or access to the Platform resulting from Client’s nonpayment.

3.4 Taxes. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder except any taxes assessed upon Marq Vision’s net income or payroll.

3.5 Renewal of Fees. The Fees established in the Scope of Services may be revised upon the renewal of every subsequent Subscription Term (as set forth in the Scope of Services), resulting in an increase the Fees every renewal term.  Marq Vision will notify the Client in writing before any change in Fees takes place.

4. Intellectual Property Rights

4.1 Marq Vision Property. Client acknowledges and agrees that the Platform is provided under license, and not sold, to Client.  Client does not acquire any ownership interest in the Platform under the Agreement, or any other rights thereto, other than to use the same in accordance the license granted and subject to all terms, conditions, and restrictions under the Agreement.  As between Marq Vision and Client, Marq Vision owns and retains all right, title, and interest in and to the Services (including for the avoidance of doubt, the Platform) and all and all Intellectual Property Rights arising out of or relating to the Services, except as expressly granted to Client in the Agreement.

4.2 Client Property. As between Client and Marq Vision, Client owns and retains all right, title, and interest in and to any data, files, text, graphics, images, software, works of authorship of any kind, and information or other materials that Client transmits to Marq Vision for the provision of the Services (“Client Property”).  Except as expressly set out in the Agreement, no right, title, or license under any Client Property is granted to Marq Vision.

4.3 License to Use Client Property. Client hereby grants Marq Vision a limited, non-exclusive, non-transferable (except in connection with the permitted assignment of the Agreement), and royalty-free license to access and use the Client Property during the Term for Marq Vision to provide the Services.

5. Confidentiality. The Parties recognize that in connection with the performance of the Agreement, the Parties may furnish and disclose to each other confidential and proprietary information including information relating to the Parties’ respective organization, personnel, business activities, revenues, technology, customer lists and distributor lists (including the terms and conditions, collectively, the “Confidential Information”). Notwithstanding the foregoing, “Confidential Information” shall not include information that: (a) is or will be in the public domain (other than through the receiving Party’s breach of the Agreement); (b) is required to be disclosed pursuant to the applicable Law or Governmental Person; (c) was received by the receiving Party from a third party who is not, to receiving Party’s knowledge, subject to any legally binding obligation of confidentiality to the disclosing Party; (d) is disclosed by the disclosing Party to a third party without restriction; or (e) was known by the receiving Party prior to its disclosure hereunder or was developed by the receiving Party, or on the receiving Party’s behalf, independent of and without reference to the Confidential Information. Each Party shall maintain confidentiality of all such Confidential Information, and without obtaining the written consent of the other Party, it shall not disclose Confidential Information to any third parties, except that (i) the Confidential Information may be disclosed to the receiving Party’s representatives who have a need to know such information for purposes of performing the Agreement and (ii) the receiving Party may disclose certain Confidential Information if required by valid court order, judicial process or regulatory authority, validly-issued subpoena, or other legal compulsion; provided, that the receiving Party agrees to use its best efforts to preserve the confidentiality of the Confidential Information, including, without limitation, by obtaining reliable assurance that confidential treatment will be accorded the Confidential Information by such tribunal; provided, further, that the receiving Party shall promptly (unless restricted by court order from doing so) notify the disclosing Party of the nature, scope and contents of such disclosure.  This Section 5 shall survive the termination of the Agreement for any reason.  Subject to the foregoing, Client hereby grants to Marq Vision the limited right to use Client’s name, trademarks, product logos, and related rights in connection with Marq Vision’s marketing purposes (including, but not limited to, brochures, websites and industry conferences).

6. Term and Termination.

6.1 Term. The term of the Agreement will begin on the Effective Date, and continue until terminated as set forth herein (the “Term”).

6.2 Termination. The Agreement may be terminated (a) by the written consent of both Parties; (b) by either Party upon sixty (60) days’ written notice to the other (non-terminating) Party; (c) immediately if there is a material breach of the Agreement by a Party, which has not been cured within thirty (30) days after the delivery of notice thereof by the other (non-breaching) Party; (d) immediately if either Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property; or (e) immediately if the other (non-terminating) Party is liquidated or dissolved.  The rights and obligations of the Parties in the Agreement which, by their express terms or nature and context are intended to survive termination or expiration of the Agreement, will survive any such termination or expiration.

6.3 Effect of Termination. Upon expiration or earlier termination of the Agreement:  

(a) the license granted hereunder shall also terminate, and Client shall cease using the Platform and destroy all copies of any documentation related thereto;

(b) any authority or representation capacity granted under the Letter of Authorization will terminate and Client shall directly handle any further claims, reports,retractions or withdrawals (including any counter-notifications from anysellers) with any online marketplaces and platforms regarding Client’s intellectual property rights as of the effective date of termination, and acknowledges that Marq Vision will bear no responsibility in connection thereof as of such date; and

(c) upon Client’s written request made within thirty (30) days of the effective date of termination, Marq Vision will make available to Client a link available for download containing all Platform Data (excluding dashboards, reports, and stats) in comma separated value (.csv) format along with links to related content in their native or homogenized format. The Platform Data will be available for download for a period of thirty (30) days from the date Marq Vision makes such link available. Marq Vision shall have no obligation to maintain or provide any Platform Data and shall thereafter, unless legally prohibited, delete all Platform Data in its systems or otherwise in its possession or under its control.

7. Warranties; Disclaimers.

7.1 Mutual Representations and Warranties. Each Party represents and warrants that it has the full right, power and authority to enter into, execute, and perform its obligations under the Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on the Parties’ ability to perform as required by the Agreement.

7.2 Marq Vision Representations, Warranties and Covenants. Marq Vision represents and warrants to Client that: (a) neither its grant of any license hereunder, nor the Services under the Agreement violates any applicable law, rule or regulation; (b) when used by Client or any of its authorized users, the Platform does not, to Marq Vision’s knowledge, infringe, misappropriate, or otherwise violate any intellectual property right or other right of any third party; and (c) as provided by Marq Vision, the Platform does not, to Marq Vision’s knowledge, contain any virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems or software; or time bomb, drop-dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person or entity.

7.3 Client Representations, Warranties and Covenants.  Client represents, warrants and covenants that (a) it will have qualified representatives using due care to review, validate, and verify for accuracy all information transmitted to Marq Vision for the purpose of providing the Services; (b) Client and Client Property are in compliance with all applicable laws and regulations; (c) it will use the Services to report claims of intellectual property infringement against third parties only when Client has a good faith belief in the veracity of such claims, and not for the purposes of harassment, unfair competition, overreach, or other unlawful purposes; (d) it is the rightful owner or licensee of all intellectual property rights subject to the Services (and, for the avoidance of doubt, as listed as Protected Assets in each applicable Scope of Services); and (e) it has not relied on the availability of, or information regarding, any future functionality of the Services and the Platform or any other future product or service in executing the Agreement.

7.4 Disclaimer.

(a) In those cases where Marq Vision carries out infringement reporting on behalf of Client, Marq Vision reserves the right to withdraw any take-down request filed through its Platform in the event that Marq Vision receives a counter-notification from the reported selleror its representative and such counter-notification is made available to Client in writing and Marq Vision does not receive any instructions from Client withintwo (2) business days as of such notice becoming available.  Client acknowledges and agrees that although Marq Vision will report infringement and make commercially reasonable efforts to achieve removal of any infringement of Protected Assets in all cases, the Services are performed at Client’s instruction and subject to matters outside of Marq Vision’s control including marketplaces’ and websites’ own takedown policies and terms of use, and the sufficiency of Client’s intellectual property rights and registrations, and therefore, Marq Vision may not be able to take down all reported Protected Assets. Moreover, Client further acknowledges and agrees that if Marq Vision were to withdraw a takedown request as instructed by Client, Marq Vision cannot guarantee that the content subject to such takedown request will be restored within a specific time frame, or restored at all, as the restoring of such content depends on the foregoing factors set forth in the immediately preceding sentence. Additionally, in the event that Marq Vision is required to execute an agreement with a website or hosting provider in order to be able to report infringement therein, Client agrees to subrogate in Marq Vision’s position towards those websites or hosting providers, and covenants to assume any liability towards such websites or hosting providers that may arise out of MarqVision’s enforcement activity therein at the request of Client and on behalf of Client.

(b) EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND DOCUMENTATION ARE PROVIDED TO CLIENT “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, MARQ VISION, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, MARQ VISION PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES OR PLATFORM WILL MEET CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER PLATFORM, SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. CLIENT IS ENTIRELY RESPONSIBLE FOR ALL CONTENT THAT IT UPLOADS, E-MAILS OR OTHERWISE TRANSMITS VIA THE SERVICES AND/OR THE PLATFORM.

8. Indemnification

8.1 Indemnification by Marq Vision. Marq Vision will defend and indemnify Client, its employees, directors, officers and representatives (the “Client Indemnified Parties”) from and against any and all actions, causes of action, claims, suits, losses, damages, fines, penalties, liabilities, judgments, settlements, payments, costs and expenses, including reasonable attorney’s fees and any amounts paid in settlement of the foregoing (collectively, “Losses”), asserted, brought or made against any Client Indemnified Party by a third party alleging that the use of the Services or Platform in accordance with the Agreement infringes any patent, copyright, trademark or trade secret right of such third party (an “Infringement Claim”).  Without limiting the foregoing, in the event that the Services or any part thereof is likely to, in Marq Vision’s sole opinion, or does become the subject of an Infringement Claim, Marq Vision may, at its option and expense: (a) procure for Client the right to continue using the Platform, (b) substitute a functionally equivalent non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent or (d) terminate the Agreement and any outstanding Scope of Services and refund to Client Fees paid by Client to Marq Vision for the infringing items in an amount prorated to reflect the period of time between the date Client was unable to use the Services due to such Infringement Claim and the remaining days in the Term.  Notwithstanding the foregoing, Marq Vision shall have no liability for any Infringement Claim arising from (i) Client’s use of, or supply to Marq Vision of, any Client Property; (ii) use of the Services in combination with any software, hardware, network or system not supplied by Marq Vision if the alleged infringement relates to such combination; (iii) any modification or alteration of the Services (other than by Marq Vision), if the alleged infringement arises in connection with such modification or alteration; or (iv) Client’s violation of applicable law or third party rights (“collectively, “Excluded Claims”).  THIS SECTION ‎8.1 SETS FORTH MARQ VISION’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

8.2 Indemnification by Client.  Client will defend, indemnify and hold harmless the Marq Vision Parties from and against any and all Losses asserted, brought or made against any Marq Vision Indemnified Party by a third party and arising out of (a) Client’s breach of the Agreement (including any representation or warranty); (b) Marq Vision’s reporting or taking actions instructed by the Client and/or under its authorization; (c) Client or its representatives taking independent action as a result of its use of, or reliance on, the Platform; and/or (d) the use of the Services by Client, other than Excluded Claims.  For clarity, Marq Vision will not be liable in any manner (except for Marq Vision’s gross negligence) for the shutdown of fraudulent or infringing websites, as instructed by Client.

8.3 Indemnification Conditions.  The Parties’ obligations under this Section 8 are contingent upon the indemnified Party giving prompt written notice to the indemnifying Party of any claim subject to indemnification, and giving the indemnifying Party sole control of the defense or settlement of the claim.  The indemnifying Party shall not settle or consent to an adverse judgment in any such claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior express written consent of the indemnified Party. For the sake of clarity, the Parties agree that consequential damages suffered by a third party which are an element of Losses subject to indemnification hereunder shall be considered direct damages hereunder; provided, however, that the term “Losses” as used in this Section 8 shall not include consequential, incidental, indirect, punitive or special damages of any kind that are payable to third party customers (including end-users) or service providers of Client.

9. Limitation of Liability and Damages.

9.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MARQ VISION’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE WHICH IS THE BASIS OF THE ASSERTED LOSSES.  THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

9.2 Exclusion of Consequential and Related Damages.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.  NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE FOR ANY LOSS, DAMAGE OR INCONVENIENCE SUFFERED BY THE OTHER PARTY OR BY ANY THIRD PERSON, TO THE EXTENT THAT SUCH LOSS, DAMAGE OR INCONVENIENCE IS CAUSED BY THE FAILURE OF THE OTHER PARTY TO COMPLY WITH ITS OBLIGATIONS UNDER THE AGREEMENT.

10. General

10.1 Nature of Relationship.  Marq Vision will act as an independent contractor under the Agreement and will perform its obligations under the Agreement using its own employees, contractors or agents.  Marq Vision will in its sole discretion, determine the manner and means of accomplishing those obligations and will direct, control and supervise its employees.  Nothing in the Agreement creates agency, joint venture or other similar relationship between the Parties and neither Party will have any authority to act on behalf of the other Party except to the extent necessary to accomplish its obligations under the Agreement.

10.2 No Acts in Violation of Law; Conflicts. No Party shall be required to take any action that such Party reasonable believes in their sole judgment and discretion conflicts with any applicable law (including common law), statute, treaty, tariff, rule, regulation, ordinance, order, code, judgement, decree, directive, injunction, writ or similar action or decision or violates any court, order or decree by any federal, national, regional, state, municipal or local government, any political subdivision or any governmental, judicial, public or statutory instrumentality, tribunal, court, agency, authority, body or entity acting under delegated authority having jurisdiction over the matter, entity or individual in question.  Marq Vision reserves the right to refuse to report or enforce online listings on behalf of Client against current or past clients where doing so could compromise confidential information of such person or entity.

10.3 Non-Disparagement. Client agrees that during the Term and for a period of twelve (12) months after the effective date of termination by either Party or expiration of the Agreement (the “Restricted Period”), Client will not make, or encourage the making of, any statements, truthful or otherwise, orally or in writing, or take any actions or encourage the taking of any action, which in any way disparages, or which could harm, Marq Vision or its agents or affiliates.

10.4 Severability; Construction. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. Any uncertainty or ambiguity existing in the Agreement shall not be interpreted against any Party by reason of such Party having been responsible in any fashion for the drafting hereof.  Accordingly, any rule of law, statutory or decisional, that would require interpretation of any ambiguities in the Agreement against the Party that has drafted it shall be of no application and hereby is expressly waived to the fullest extent possible.  The provisions of the Agreement shall be interpreted in a reasonable manner to effect the intentions of the Parties as expressed in the Agreement.

10.5 Entire Agreement.  These Terms and Conditions (which is deemed to include the Services Agreement, Scope of Services, Letter of Authorization, and any other Annexes, appendices, exhibits and schedules attached hereto or thereto and which are incorporated by reference) constitutes the entire agreement between the Parties as to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other understandings, both written and oral between the Parties with respect to the subject matter of the Agreement, and there are no other representations regarding the subject matter hereof that are binding on either Party.  To the extent of any conflict between these Terms and Conditions and the terms of the Services Agreement or any annex thereto, the terms of the Services Agreement and such annex shall control.

10.6 Modification. Except as set forth herein, any amendment or modification to the Agreement must be in writing and signed by each Party.

10.7 Waiver and Cumulative Remedies. No waiver by any Party of any of the provisions of the Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving, except as set forth herein.  Except as otherwise set forth in the Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

10.8 Governing Law; Dispute Resolution. The Agreement and all related documents including all exhibits attached hereto are governed by, and construed in accordance with, the laws of the State of California, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.  Any dispute, controversy or claim arising out of or relating to the Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable (collectively, a “Dispute”) shall be settled through use of the stepped dispute resolution procedures as set forth in this Section 10.8.

(a) Meet and Confer. In the event of a Dispute between the Parties, a Party may give written notice to all other Party setting forth the nature of such Dispute (the “Dispute Notice”).  The Parties shall meet and confer to discuss the Dispute in good faith within ten (10) days following the other Parties’ receipt of the Dispute Notice in an attempt to resolve the Dispute.  All representatives shall meet at such date(s) and time(s) as are mutually convenient to the representatives of each participant within the Meet and Confer Period.

(b) Arbitration. Any Dispute which cannot be resolved by the Parties within sixty (60) days following the end of the Meet and Confer Period shall be resolved by final and binding arbitration as set forth in this Section 10.8(b).  Any Dispute directly or indirectly arising out of or in any way relating to the Agreement and/or its subject matter shall be resolved by mandatory, final and binding arbitration in the County of Los Angeles in the State of California, before a single attorney or retired California judge or justice, in each case, experienced in commercial and business affairs, and pursuant to the then applicable rules of, JAMS, with the arbitrator also to decide all issues regarding the existence, scope and enforceability of this mandatory, final and binding arbitration agreement.  Statutes of limitations and affirmative defenses that would be applicable in a court proceeding shall be applicable to such arbitration proceeding.  This mandatory, final and binding arbitration agreement constitutes a mandatory alternative dispute resolution proceeding, is in lieu of traditional court proceedings, is without a right to a jury or to a court trial or to appeal, and all such and other differing court proceeding rights including, but not limited to, a jury and appeal are accordingly waived.  The arbitral award shall be in writing, state the reasons for the award, and be final and binding on the Parties. The award may include an award of costs, including reasonable attorneys’ fees and disbursements. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant Party or its assets.  The Parties agree that the arbitration shall be kept confidential and that the existence of the proceeding and any element of it (including but not limited to any pleadings, briefs, or other documents submitted or exchanged, any testimony or other oral submissions, and any awards) shall not be disclosed beyond the tribunal, JAMS, the Parties, their counsel, and any person or entity necessary to the conduct of the proceeding.  Notwithstanding anything in this Section 10.8 to the contrary, either Party may seek from a court any provisional remedy that may be necessary to protect any rights or property of such Party pending the establishment of the arbitral tribunal or its determination of the merits of the controversy.

10.9 Assignment. Neither Party may assign or delegate the Agreement, or any of its rights or duties hereunder, directly, indirectly, by operation of law or otherwise, without the written consent of the other Party.  Notwithstanding the foregoing, Marq Vision may assign the Agreement, or any of its rights or duties hereunder, (a) in connection with the sale or other transfer of substantially all of its business or assets to a third-party or (b) to an affiliate.  Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties and their permitted successors and assigns.

10.10 Headings. The headings in the Agreement are for reference only and shall not affect the interpretations of the Agreement.

10.11 Notices. All notices under the Agreement shall be in writing and shall be delivered to the addresses first set forth by each Party on the signature page attached to the Services Agreement.  Either Party may change its address for notice by giving written notice of such address change in the manner provided herein.

10.12 Force Majeure. Except for performance of a payment obligation, neither Party shall be liable under the Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control.  In the event any of the foregoing events results in Marq Vision not being able to provide the Services for a period of more than thirty (30) days, then either Party may terminate the Agreement upon written notice to the other Party.

10.13 Definitions. All expressions and terms defined or used in the Agreement shall have the same meaning in all of its Annexes, unless the context clearly requires otherwise.