These Terms of Service (these “Terms”) are between Marq Vision Inc., a Delaware corporation (“Marq Vision”) and you (“Customer” or “you” or “your”), and govern your use of the Services (defined below) in connection with the Order Form (together with all schedules and attachments thereto, the “Order Form”, and together with these Terms, the “Agreement”) entered into between Customer and Marq Vision. Marq Vision and Customer may be referred to individually as a “Party” or collectively as the “Parties”.
By signing an Order Form, 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. 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.
Marq Vision may update or modify these Terms from time to time. Marq Vision may provide ten (10) days prior notice of major changes by posting a notice on the website at https://www.marqvision.com/ or on the Platform. Your use of the Services ten (10) days after the posting of such 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”): (a) access to Marq Vision’s proprietary software application (the “Platform”) for the detection, documentation and/or removal of online content on online marketplaces and websites, and/or the detection, removal, demoting and/or de-listing of websites in search engines that may infringe Customer’s rights; (b) generating requests to such online marketplaces and websites to remove certain identified content; (c) generating notices to the sellers of such content that their actions potentially violate Customer’s intellectual property rights, contractual rights, or other rights or policies of Customer (such notice, a “Soft Notice”); and (d) where specified in the applicable Order Form, coordinating and facilitating offline brand protection, investigation, and enforcement activities (“Offline Services”).
The Parties may supplement or amend the Order Form from time to time, upon the execution of a signed writing between the Parties.
1.2 Authorization; No Legal Representation. In order to perform the Services, the Parties shall execute the Letter of Authorization attached to the Order Form, which shall grant Marq Vision the authority to submit reports and send Soft Notices on behalf of Customer in its reasonable discretion.
For the avoidance of doubt, the Services do not include any legal representation. Except to the extent that Offline Services specified in the applicable Order Form involve Marq Vision coordinating with third-party law firms or agencies that may initiate legal proceedings on Customer’s behalf, the Services also do not include initiating any legal proceedings (including making any claims or complaints to or before any court or judicial body). Customer understands and acknowledges that Marq Vision and its affiliates, and their respective 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. Customer acknowledges and agrees that any Soft Notices sent by Customer are not a substitute or replacement for any legal claims. Any legal questions should be directed to Customer’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 performance of the Services.
1.4 Customer Cooperation. Customer acknowledges that Marq Vision’s ability to deliver the Services is dependent upon Customer’s ongoing cooperation and assistance. Customer will provide Marq Vision, on a timely basis, all information, materials, and assistance reasonably necessary for Marq Vision to perform the Services, including, without limitation, information related to Customer’s intellectual property rights and registrations, any authorization forms, and the Whitelist (as defined below). Marq Vision will not be responsible for delays or losses resulting from Customer’s failure to fully comply with the foregoing. For purposes of the Agreement, “Whitelist” means the list compiled by Customer comprised of entities against whom Customer does not wish to enforce its intellectual property rights or report any infringement.
2. Platform License and Terms
2.1 Access to Platform. Subject to and conditioned upon Customer’s strict compliance with all terms and conditions set forth in the Agreement, Marq Vision hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited license during the term of the Agreement to use the Platform, solely for Customer’s internal business purposes.
2.2 Customer Responsibilities for Use of the Platform. Customer is responsible and liable for all uses of the Platform resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of the Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of an employee, contractor or agent of Customer who accesses and uses the Platform (“Authorized Users”), and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Customer will be deemed a breach of the Agreement by Customer.
2.3 Use Restrictions. Customer 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, Customer shall not at any time, directly or indirectly (a) copy, rent, sublicense, or otherwise provide third parties with access to the Platform, (b) decompile, disassemble, reverse engineer, 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) 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 (e) 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, 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 Customer rely on such information.
2.5 Collection and Use of Information
(a) Customer 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. Customer also acknowledges that Marq Vision may collect data submitted by Customer through the Platform, including without limitation information about Customer’s customers, distributors, inventory and products.
(b) Customer agrees that Marq Vision may use such information for any purpose related to any use of the Platform by Customer or on Customer’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’ and/or vendors’ or customers’ business model and services; and verifying Customer’s compliance with the terms of the Agreement and enforcing Marq Vision’s intellectual property rights in and to the Platform. Moreover, and notwithstanding anything to the contrary in the Agreement, Marq Vision may use any and all anonymous, de-personalized data that does not identify Customer (“Anonymized Data”) for purposes of enhancing the Services, aggregated statistical analysis, technical support, developing and providing new, different, existing or in development products/ services, and other business purposes.
3. Fees and Payment Terms
3.1 Fees. Customer will pay Marq Vision all fees listed in the Order Form (the “Fees”). All Fees are based on the Services purchased and not actual usage, and are non-refundable.
3.2 Payment Method. The payment method and frequency shall be specified in the Order Form.
3.3 Late Payments; Suspension of Services. Except for invoiced payments that Customer 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. Customer 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 or equity, Marq Vision reserves the right to suspend delivery of the Services and access to the Platform if Customer fails to timely pay any undisputed amounts due to Marq Vision under the Agreement, in the event Customer 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 Customer of its payment obligations under the Agreement. Customer agrees that Marq Vision shall not be liable to Customer 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 Customer’s nonpayment.
3.4 Taxes. Customer 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 Customer hereunder except any taxes assessed upon Marq Vision’s net income or payroll.
3.5 Renewal of Fees. The Fees established in the Order Form may be revised upon the renewal of every subsequent subscription term, resulting in an increase in the Fees every renewal term.
3.6 Multi-Year Subscription Fee Adjustments. For any Order Form with a subscription term greater than twelve (12) months, Fees shall increase by up to seven percent (7%) on each anniversary of the Order Form Effective Date during the subscription term, unless otherwise specified in the applicable Order Form. Any fee adjustment terms specified in the Order Form shall govern and supersede this Section.
4. Intellectual Property Rights
4.1 Marq Vision Property. Customer acknowledges and agrees that access to and use of the Platform is provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Platform or its underlying software or other intellectual property under the Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under the Agreement. As between Marq Vision and Customer, Marq Vision owns and retains all right, title, and interest in and to Anonymized Data (and all intellectual property rights therein) and the Services and all intellectual property rights arising out of or relating to the Services, except as expressly granted to Customer in the Agreement.
4.2 Customer Property. As between Customer and Marq Vision, Customer 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 Customer transmits to Marq Vision for the provision of the Services (“Customer Property”). Except as expressly set out in the Agreement, no right, title, or license under any Customer Property is granted to Marq Vision.
4.3 License to Use Customer Property. Customer 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 Customer Property during the term of the Agreement 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 known by the receiving Party prior to its disclosure hereunder or was independently developed by the receiving Party, or on the receiving Party’s behalf; or (d) is Anonymized Data. 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; provided, that the receiving Party agrees to use its best efforts to preserve the confidentiality of the Confidential Information; 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.
6. Use of Customer Name
Customer grants Marq Vision a limited, non-exclusive, non-transferable, royalty-free right during the term of the Agreement to use Customer’s name, logo, and trademarks solely for Marq Vision’s marketing and promotional purposes, including on Marq Vision’s website and in marketing materials, solely to identify Customer as a customer of Marq Vision, unless Customer notifies Marq Vision in writing that it does not consent to such use.
7. Term and Termination
7.1 Term. The term of the Agreement will begin on the service start date specified in the applicable Order Form (“Effective Date”), and continue until terminated as set forth herein.
7.2 Termination. The Agreement may be terminated (a) by the written consent of both Parties; (b) 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; (c) immediately if the other (non-terminating) Party has filed against it a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law; or (d) immediately if the other (non-terminating) Party is liquidated or dissolved.
7.3 Effect of Termination. Upon expiration or earlier termination of the Agreement: (a) the license granted in Section 2.1 shall also terminate, and Customer 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 Customer shall directly handle any further claims, reports, retractions or withdrawals (including any counter-notifications from any sellers) with any online marketplaces and platforms regarding Customer’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) 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.
7.4 Automatic Renewal. The Agreement will be automatically renewed for successive Twelve (12) month periods, unless either Party gives the other a notice of non-renewal at least thirty (30) days before the end of the applicable subscription Term.
8. Warranties; Disclaimers
8.1 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.
8.2 Marq Vision Representations, Warranties and Covenants. Marq Vision represents and warrants to Customer that: (a) it will perform the Services in material compliance with applicable laws and regulations; and (b) as provided by Marq Vision, 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.
8.3 Customer Representations, Warranties and Covenants. Customer 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) Customer and Customer Property are in compliance with all applicable laws and regulations; (c) it will use the Services to report claims against third parties only when Customer 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 (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.
8.4 Disclaimers.
(a) Customer acknowledges that while Marq Vision may be capable of covering all online marketplaces in the regions selected in the Order Form, Marq Vision does not have any obligation to cover all online marketplaces, and may elect to prioritize certain online marketplaces over others if Marq Vision determines in its reasonable discretion that covering certain online marketplaces first is critical in part of a successful enforcement strategy and in providing the Services or otherwise performing its obligations hereunder.
(b) Customer acknowledges that (i) the Services are performed based on Customer’s authorization and subject to matters outside of Marq Vision’s control (including, without limitation, online marketplaces’ and websites’ takedown policies and terms of use, and the sufficiency of Customer’s own intellectual property rights and registrations), and (ii) all Services are the result of Customer’s direct or indirect authorization. As such, Marq Vision may not be able to take down all reported items or ensure that Soft Notices are delivered to the appropriate parties. Additionally, Customer acknowledges that it has the exclusive responsibility for compiling and timely delivering the Whitelist to Marq Vision. As such, in no event shall Marq Vision be responsible for any enforcement of Customer’s intellectual property rights or reportings of any infringement made against an entity against whom no such action should have been taken, if such entity were not properly included in the Whitelist.
(c) Customer acknowledges that if Customer were to instruct Marq Vision to withdraw a request for content removal, Marq Vision cannot guarantee that such content 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 preceding paragraph. As such, while Marq Vision will use commercially reasonable efforts to so withdraw any such reportings, the ability to so withdraw is subject to the policies of the entity to which the reporting is sent and as such, is outside of Marq Vision’s reasonable control.
(d) Except for the representations and warranties expressly provided in Section 8.1 and Section 8.2, the Platform and Services are provided to Customer “as is” and with all faults and defects without warranty of any kind. Marq Vision, on its own behalf and on behalf of its affiliates and service providers expressly disclaims all warranties, whether express, implied, statutory or otherwise with respect to the Platform and Services, 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 of the foregoing, Marq Vision provides no warranty or undertaking, and makes no representation of any kind that the Services or Platform will meet Customer’s requirements, achieve any intended results, operate without interruption or that any errors or defects can or will be corrected.
9. Indemnification
9.1 Indemnification by Marq Vision. Marq Vision will defend and indemnify Customer, its employees, directors, officers and representatives (the “Customer Indemnified Parties”) from and against any and all actions, claims, suits, losses, damages, penalties, liabilities, costs and expenses, including reasonable attorney’s fees and any amounts paid in settlement of the foregoing (collectively, “Claims”), asserted, brought or made against any Customer 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”). Notwithstanding the foregoing, Marq Vision shall have no liability for any Infringement Claim arising from (a) Customer’s use of, or supply to Marq Vision of, any Customer Property; (b) 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; (c) any modification or alteration of the Services (other than by Marq Vision), if the alleged infringement arises in connection with such modification or alteration; (d) Customer’s use of the Services to request removal of content or the sending of any Soft Notices; or (e) Customer’s violation of applicable law or third party rights (collectively, “Excluded Claims”). THIS SECTION 9.1 SETS FORTH MARQ VISION’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Indemnification by Customer. Customer will defend, indemnify and hold harmless Marq Vision and its owners, employees, directors, officers and representatives (the “Marq Vision Parties”) from and against any and all Claims asserted, brought or made against any Marq Vision Party by a third party and arising out of (a) Customer’s breach of the Agreement (including any representation or warranty); (b) Marq Vision’s reporting or other actions taken at Customer’s instruction, authorization, or direction (including, without limitation, reporting an entity on the Whitelist); (c) Customer 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 Customer as described in the Excluded Claims above. For clarity, Marq Vision will not be liable in any manner (except for Marq Vision’s gross negligence) for removal of any content or the shutdown of any websites or product listings, where such action is taken at Customer’s instruction, authorization, or direction.
9.3 Indemnification Conditions. The Parties’ obligations under this Section 9 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.
10. Limitation of Liability and Damages
10.1 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 CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE WHICH IS THE BASIS OF THE ASSERTED CLAIMS. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THE AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
10.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS, 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.
11. General
11.1 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.
11.2 No Acts in Violation of Law; Conflicts. No Party shall be required to take any action that such Party reasonably believes in its sole judgment 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.
11.3 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. The provisions of the Agreement shall be interpreted in a reasonable manner to effect the intentions of the Parties as expressed in the Agreement.
11.4 Entire Agreement. These Terms (together with the Order Form and all schedules and attachments thereto) constitute the entire agreement between the Parties and supersede all prior proposals and marketing materials, both written and oral, between the Parties.
11.5 Waiver. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right.
11.6 Governing Law. 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.
11.7 Venue; Waiver of Jury Trial. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to the Agreement (which includes, for the avoidance of doubt, the Order Form and these Terms), and all contemplated transactions, in any forum other than the courts of the State of California sitting in Los Angeles, California, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of California sitting in Los Angeles, California. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT (WHICH INCLUDES, FOR THE AVOIDANCE OF DOUBT, THE ORDER FORM AND THESE TERMS), IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT (WHICH INCLUDES, FOR THE AVOIDANCE OF DOUBT, THE ORDER FORM AND THESE TERMS), OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.8 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.
11.9 Headings. The headings in the Agreement are for reference only and shall not affect the interpretations of the Agreement.
11.10 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 Order Form. Either Party may change its address for notice by giving written notice of such address change in the manner provided herein.
11.11 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.
EU Data Act. To the extent Customer is subject to the EU Data Act, the additional terms available HERE apply.