As used in this Agreement or in an IO (as defined below), the following terms shall have the meanings ascribed to them below:
“Ad” means an advertisement for the products or services of Company.
“Affiliate” means, as to any entity, any other entity directly or indirectly controlling, controlled by, or under common control with, such entity; provided, however, if a controlling entity/person/association also controls other businesses that are not part of the Party’s direct management structure (e.g., SPVs, Private Equity Funds, Venture Capital Investors, etc.) then those other businesses that fall outside such direct management structure shall not be deemed affiliates hereunder and shall not be deemed to be under common control hereunder.
“Company Content” means any content or materials provided or made available by Company, directly or indirectly, to Fyllo or a Media Vendor in connection with the Services and Deliverables hereunder, including Company Data, Ads, or content, information or materials for inclusion in an Ad, such as images, offers, graphics, photographs, audio clips and video clips, html, code, software, data, databases, keywords (including those requested by Company) and links to a Site, as well as the content of the Sites, and any Intellectual Property Rights in any of the foregoing.
“Company Data” means any data owned and/or licensed by Company, and/or its Affiliates, including Personal Data, as may be made available to Fyllo or a Media Vendor in connection with Fyllo’s performance of its obligations hereunder and/or pursuant to an IO.
“Confidential Information” means any and all information disclosed by one Party to the other Party, directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or that is provided under circumstances reasonably indicating that the information is confidential or proprietary, including, without limitation, trade secrets, business plans, technical data, product ideas, personnel, and contract and financial information. The terms of this Agreement and each IO are Fyllo’s Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information; (b) is or was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records; (c) is received from a third-party that is not under an obligation of confidentiality to the knowledge of the receiving Party with respect to such information; (d) is independently developed by the recipient of the information without any breach of this Agreement; or (e) is approved for release in advance in writing by the disclosing Party, as applicable.
“Consumer” means a natural person from whom Personal Data is derived, which excludes any robots, spiders, scripts, software, hidden links, scrapers, or other mechanical or artificial technologies.
“Deliverables” means the inventory or action to be delivered by Fyllo to Company (e.g., impressions, clicks, or other desired actions through a Media Vendor), as specified in an IO.
“Effective Date” means the date of Company’s signature on the initial IO.
“IO” has the meaning set forth in Section 2 of this Agreement.
“Intellectual Property Rights” means any copyright, trademark, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right arising under the laws of any jurisdiction (excluding patent).
“Losses” has the meaning set forth in Section 10.1.
“Marks” has the meaning set forth in Section 6.
“Media Vendor” means an entity or person that is not a party to an IO or this Agreement that provides ancillary services, technology, tools, or data (“Media Vendor Materials”) including without limitation third party demand side platforms (“DSPs”) used to provide or deliver media inventory and/or Tracking Technologies to be deployed on Company’s Sites or Ads in connection with the foregoing, provided it is specifically understood and agreed that Fyllo, Company, and any Affiliates and/or Representatives of Fyllo or Company, are not Media Vendors.
“Personal Data” means personally identifiable information, personal information, personal data, or any substantially similar term as defined under applicable law, rules, or regulations.
“Policies” means advertising criteria or specifications from Fyllo, its Affiliates, DSPs, publishers, or other Media Vendors, including content limitations, technical specifications, privacy policies, user experience policies, policies regarding consistency with Fyllo’s public image, and such other editorial or advertising policies as may be specified by Fyllo in an IO or as otherwise provided by Fyllo upon written notice to Company, from time to time.
“Representative” means, as to any entity and/or its Affiliate(s), any director, officer, employee, subcontractor, agent, and/or attorney.
“Services” or “Service” has the meaning set forth in Section 2 hereof.
“Sites” means Company’s owned or operated or branded web sites, mobile applications, and other online properties, services, and applications.
“Tracking Technologies” means any Media Vendor technology, tool, or code (including cookies, pixels, SDKs, APIs, local shared objects, and scripts) that enable access to or storage of information on a device, including but not limited to, as embedded on Company’s Ads or Sites or other digital properties.
This Agreement states the terms and conditions upon which Fyllo and/or its Affiliates will provide, and Company will receive, media planning and buying services as further described in applicable IOs (the “Services”). This Agreement may be supplemented and/or modified by written statements of work, insertion orders, or authorizations to buy that reference this Agreement and are mutually entered into by the Parties (each, an “IO”). An IO may contain additional terms and conditions specific to the Services to be provided thereunder that each Party agrees to comply with and adhere to in their entirety. In the event of a conflict between the terms of this Agreement and an IO, the terms of this Agreement shall prevail unless otherwise specified in the IO by specific reference to this Section 2. This Agreement, including all Exhibits and together with each applicable IO, are collectively referred to as the “Agreement.” Fyllo may update this Agreement (excluding any IOs) from time to time, with such updated version posted to https://hellofyllo.com/legal/terms-and-conditions, or a successor website designated by Fyllo; any such updated version will apply automatically as of the date such updates take effect. Fyllo will notify Company of material updates to these Terms at least thirty (30) days prior to the effective date of such updates through communications via email in accordance with Section 13.8 (Notices), provided that a shorter notice period may apply in the event such material updates result from changes in applicable laws or regulations. Following such notice, Company’s continued use of the Services after the updated version of the Terms go into effect will constitute Company’s acceptance of such updated version.
3.1 Insertion Orders
Each IO will set forth the campaign details and the terms upon which Company will pay for the Services to be provided thereunder. Unless some other metric is otherwise set forth and agreed in an IO, all reported numbers for general delivery reporting and for tracking the delivery of the ordered Deliverables (e.g., impressions delivered, clicks achieved, acquisitions, etc.) and the amounts payable to Fyllo will be based solely on Media Vendor measurement tracking sources accessed by Fyllo. For clarity, a fully executed IO constitutes Company’s written authorization for Fyllo to place orders for advertising space and time and to incur associated payment obligations on behalf of Company. Amounts to paid by Company to Fyllo under an IO will be issued as a single line item based on aggregated delivery and will not separately itemize Fyllo’s professional services fees (the “Fees”) or the costs of media inventory, data, or technology.
3.2 Payment Terms
Unless otherwise specified in an applicable IO, invoices will be issued on or about the first of the month following the month of service (based on reported media run). Company shall pay such invoices within the timeframe specified on the “Payment Terms” line of the applicable IO (e.g., Prepayment, Net 30, etc.), or, if no timeframe is specified in the applicable IO, within thirty (30) days of the invoice date. Company will also pay all sales, use, service, occupation, personal property, value-added and excise taxes and any other fees, assessments taxes, levies and charges (including VAT and withholding taxes and including any retrospectively applied by a relevant tax authority), which may be assessed or levied by any taxing authority for Company’s use of the Services and/or with respect to the delivery of Deliverables, excluding any taxes based solely on Fyllo’s income. Fyllo reserves the right to increase its invoices by the amount commensurate with any such taxes, levies or charges where necessary and applicable. In the event Company, in good faith, disputes the calculation of any amounts owed to Fyllo pursuant to an IO, it shall nonetheless pay that part of the invoice that is not subject to a good faith dispute within terms and provide written notice of such dispute on or before the date a disputed amount was otherwise due and owing to Fyllo. Upon timely submission of a notice of dispute pursuant to this Section 3, or if in the event Company fails to pay Fyllo all amounts that are not subject to a good faith dispute within terms then the Parties will work in good faith to resolve this dispute for a period of thirty (30) days and if, at the end of such thirty (30) day period, no resolution has been reached, the applicable IO may be immediately terminated by Fyllo (and Fyllo may cease all Services and Deliverables), and the Parties may pursue their respective rights under applicable law. Company’s payment of compensation and expenses shall not be deemed a waiver of rights of Company to later dispute a calculation; provided, however, in the event Company does not dispute a particular amount invoiced within one year following the month of service, Company shall be deemed to have conclusively accepted the accuracy of Fyllo’s compensation calculation and waives any further rights to challenge or dispute such compensation calculation. If Company is required by applicable law to make any deduction or withholding from a payment due to Fyllo then the gross amount payable will be increased so that after such deduction or withholding, the net amount received by Fyllo will not be less than what would have been received had no such deduction of withholding been required. All invoices must be paid by Company in full, without set-off, counterclaim, deduction or withholding, by (i) bank transfer into the bank account nominated by Fyllo and in the currency specified by Fyllo in its invoice to Company or (ii) credit card. If Company elects to pay by credit card, such payments will be assessed a 3.5% processing fee. Company authorizes Fyllo to use a third party to process credit card payments, and consents to the disclosure of Company’s payment information to such third party. Fyllo reserves the right in case of delinquency in Company’s payments, or if there is such impairment of Company’s credit as in Fyllo’s reasonable opinion might endanger future payments to Fyllo, to change the requirements as to terms of payment under this Agreement. If payments are not received by the above due dates, Fyllo may assess a finance charge of one percent (1%) per month of the unpaid balance or the maximum lesser rate allowed by law.
This Agreement will commence on the Effective Date and will remain in effect after such initial term unless and until terminated pursuant to Section 5.
Expiration; Termination; Survival of Terms
Either Party may terminate this Agreement and any IO entered into hereunder at any time if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the breach from the non-breaching Party. Additionally, either Party may terminate this Agreement at any time for its convenience upon ninety (90) days written notice to the other party if, at such time, there are no active IOs and if there are active IOs, the termination will be effective upon expiration or termination of the active IOs. Upon termination or expiration of this Agreement for any reason, each Party will promptly (not to exceed fifteen (15) business days) pay any amounts accruing to the other Party hereto prior to such termination or expiration under the terms of the applicable IO and this Agreement. This Section 5 is not intended to limit any remedies that may be available to a Party for an improper termination or breach of this Agreement or any applicable IO by the other Party. Sections 1-3, 5, 7-13, and Exhibits A, B, and C will survive any expiration or earlier termination of this Agreement, along with any other provision of this Agreement (including in an IO) that by their nature are intended to survive. Nothing in this Section 5 will limit either Party’s right to seek and obtain any other remedies available to such Party under this Agreement, at law, or in equity.
Company Content; Marketing
Company shall provide Fyllo with all Company Content to be used in connection with Fyllo’s performance of an IO in accordance with applicable Policies and this Agreement. Company hereby grants Fyllo a non-exclusive, worldwide, fully paid license to use, perform, reproduce, display, transmit, modify, create derivative works from, and distribute and sublicense the Company Content, or any portion thereof, for purposes of fulfilling its obligations under the Agreement. During the term of this Agreement, Company hereby grants to Fyllo a non-transferable, non-exclusive, non-sublicensable, royalty-free, right and license to use and display those tradenames, trademarks, service marks, and logos (collectively, “Marks”) of the Company in fulfillment of its obligations under each IO and in other promotional materials for Fyllo’s business and services for the purposes of promoting the existence of the relationship between the Parties as set forth in this Agreement and any IO. Fyllo may issue a press release, subject to the prior review of Company, relating to this Agreement or the relationship of the Parties without the prior written consent of Company.
Each Party will hold all Confidential Information of the other Party in strict confidence and, except in connection with fulfilling its obligations hereunder (e.g., Fyllo performing Services and providing Deliverables), will not disclose any Confidential Information to any third party. The Parties will disclose the Confidential Information of the other Party only to its respective employees, contractors, and agents who need to know such information for the purposes of performing their respective obligations under this Agreement and who are bound in writing by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Neither Party will use any Confidential Information of the other Party for the benefit of itself or any third- party or for any purpose other than performing its obligations under this Agreement. Each Party will use the same degree of care that it uses to protect its own confidential and proprietary information of similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Confidential Information of the other Party. If the disclosure of Confidential Information of a Party is required by law, such Party may make such required disclosure, provided it uses reasonable efforts to minimize the scope of such disclosure and provides the other Party hereto as much notice as practical under the circumstances (if lawfully permitted to do so) to permit such Party, at its sole cost and expense, to respond and/or take legal action to intervene or limited such required disclosure.
Representations, Warranties and Covenants
Each Party represents, warrants, and covenants that: (a) it is duly authorized to enter into this Agreement and each and every IO entered into hereunder and to perform its obligations hereunder and thereunder without violation of any provision of any other agreement to which it is bound; (b) it will comply with all applicable laws, rules, and regulations in the performance of its obligations pursuant to this Agreement; and (c) it will not infringe or misappropriate any U.S. Intellectual Property Rights of the other Party hereto or any third party in the performance of its obligations pursuant to this Agreement. Company further represents, warrants, and covenants that: (a) all Sites shall comply with all requirements of Section 12 hereof; (b) it owns or has a valid license to the entire right, title, and interest (subject to nonexclusive licenses granted to third parties) in and to the Company Content; (c) the Company Content does not and will not infringe, violate, or misappropriate any third-party right, including any Intellectual Property Right; (d) the Company Content does not contain any defects, viruses, worms, time bombs, Trojan horses, cancelbots, or other harmful components, programs, routines, or applications that are designed to disrupt or delay the use and operation of the Services or the computer system of any Consumer; (e) the Company Content does not (i) promote, constitute or encourage illegal activities such as illicit drug use, give rise to liability, or contain any content in any manner that might be pornographic, libelous, defamatory, hateful, profane, violent, abusive, obscene, or threatening; (ii) discriminate against any person on the basis of race, sex, religion, nationality, disability, sexual orientation or age; (iii) violate applicable laws, including privacy or publicity, consumer protection and data protection laws; or (iv) constitute an unfair or deceptive practice; (f) Company will provide Fyllo with all Company Content to be used in connection with Fyllo’s performance of an IO in accordance with applicable Policies and this Agreement. Fyllo reserves the right to reject, suspend, or require modifications to Company Content that Fyllo believes, in its sole discretion, violates any applicable laws or Policies or that are otherwise inappropriate. Notwithstanding anything to the contrary in this Agreement, Fyllo will not be held liable for any review, rejection, suspension, or removal of Company Content by Fyllo or any Media Vendor for failure to comply with applicable policies or guidelines. For avoidance of doubt, Fyllo is not responsible for reviewing any Company Content for compliance, or for any other purposes. Company is solely responsible for the legality, accuracy, completeness and propriety of the Company Content and its decision to authorize the use or publication of any Company Content, including without limitation ensuring that all representations and descriptions in the Company Content comply with all legal and regulatory requirements.
Disclaimer; Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT THE SERVICES AND DELIVERABLES PROVIDED BY FYLLO PURSUANT TO THIS AGREEMENT AND ANY IO ARE BEING PROVIDED TO COMPANY “AS IS, WITH ALL FAULTS.” EXCEPT AS EXPRESSLY PROVIDED HEREIN, FYLLO EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FYLLO DOES NOT GUARANTEE THAT THE SERVICES OR THIRD PARTY OR MEDIA VENDOR MATERIALS WILL OPERATE CONTINUOUSLY OR UNINTERRUPTED AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING ANY DATA USED FOR ACTIVATION OR OTHER THIRD PARTY OR MEDIA VENDOR MATERIALS OR OUTCOMES, IT BEING UNDERSTOOD AND AGREED THAT IN THE EVENT OF ANY AMBIGUITY, INCONSISTENCY OR CONFLICT BETWEEN THIS SENTENCE AND THE REST OF THE AGREEMENT, THIS SENTENCE SHALL CONTROL
EXCEPT WITH RESPECT TO (A) A BREACH OF SECTION 7, (B) THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (C) EITHER PARTY’S BAD FAITH, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (D) COMPANY’S PAYMENT OBLIGATIONS: (X) UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR THE PARTY HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM SUCH PARTY’S PERFORMANCE OR NON-PERFORMANCE UNDER AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS; AND (Y) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY, OR OTHERWISE), WILL BE LIMITED TO $50,000 (FIFTY THOUSAND DOLLARS). WITH RESPECT TO (A) A BREACH OF SECTION 7, AND/OR (B) THE INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, FYLLO’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), SHALL BE LIMITED IN ALL CIRCUMSTANCES TO THE LESSER OF: (I) $100,000 (ONE HUNDRED THOUSAND DOLLARS) OR (II) THE FEES RECEIVED BY FYLLO UNDER THE IO UNDER WHICH THE CLAIM AROSE. ANY CLAIM BY COMPANY MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE ON WHICH THE CLAIM AROSE; IF COMPANY FAILS TO BRING A CLAIM WITHIN SUCH TIMEFRAME, COMPANY SHALL BE DEEMED TO HAVE WAIVED ALL OF ITS RIGHTS IN RELATION TO SUCH CAUSE OF ACTION INCLUDING ALL LEGAL AND EQUITABLE REMEDIES.
Fyllo agrees to indemnify, defend and hold harmless Company, its officers, directors, employees, affiliates, subsidiaries, agents, successors and assigns from and against any third-party claims, suits, proceedings, demands or actions and any damages, losses, costs, expenses or settlement fees incurred in connection therewith (including reasonable attorney’s fees and costs) (collectively, “Losses”) to the extent arising out of (i) any breach by Fyllo of its representations, warranties, or covenants provided in this Agreement; (ii) Fyllo’s modification or use of the Company Marks, except as provided in this Agreement or pursuant to Company’s instructions, or (iii) Fyllo’s bad faith, gross negligence, or willful misconduct. Notwithstanding the foregoing, Fyllo will not be responsible for any Losses related to (i) Fyllo’s modification of Ads or placement of Tracking Technologies based upon the specifications, materials, or information provided by Company; (ii) Fyllo’s compliance with any instructions provided by or through Company; (iii) the use of Company Content for the purposes contemplated by this Agreement; (iv) data used by Fyllo for activation on behalf of Company; or (v) data or materials that are used, published, created, or supplied in whole, or in part, by or through Media Vendors or other third parties.
Company agrees to indemnify, defend and hold harmless Fyllo, its officers, directors, employees, affiliates, subsidiaries, agents, third parties contracted by Fyllo to provide any portion of the Services, successors and assigns from and against any third-party claims, suits, proceedings, demands or actions and any Losses incurred in connection therewith arising out of or relating to (i) any breach or alleged breach by Company of its representations, warranties, or covenants provided in this Agreement; (ii) any aspect of the Sites or Ads; (iii) Company’s modification or use of any portion of the Services, except as provided pursuant to an IO and this Agreement; (iv) the Company Marks or Company Content; (v) a claim that Company’s Intellectual Property Rights infringe or misappropriate such third party’s Intellectual Property Rights, or (vi) Company’s bad faith, gross negligence, or willful misconduct. For clarity, Company shall not have any indemnification obligations with respect to Losses resulting from Fyllo’s unauthorized alteration or modification of Company Content to the extent such Losses would not exist but for such unauthorized alteration and/or modification. If there is any proceeding against Company by any regulatory agency or body or any court action or self-regulatory action challenging any advertising placed by or Company Content utilized by Fyllo under this Agreement, and Fyllo receives a subpoena in connection with such proceeding, Company will reimburse Fyllo for any reasonable out-of-pocket costs Fyllo incurs in responding to the subpoena, including, for avoidance of doubt, reasonable outside counsel fees and costs.
An indemnitee under this Section 10 (an “Indemnitee”) must (i) promptly notify the indemnitor (an “Indemnitor”) in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the Indemnitor of its obligations hereunder except to the extent that the delay impairs its ability to defend); (ii) provide Indemnitor with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at Indemnitor’s expense, to the extent of any out-of-pocket expenses); and (iii) give the Indemnitor full control and sole authority over the defense and settlement of such claim, subject to Indemnitee’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.
Notwithstanding anything to the contrary in this Agreement, as between Company and Fyllo, (a) Fyllo owns and retains all right, title and interest (including, without limitation, Intellectual Property Rights) in and to the Services and any documentation relating thereto and any data that is created, developed, or acquired by Fyllo or its Affiliates, including but not limited to data products or data models, and which in each case is proprietary to Fyllo or its Affiliates (the “Fyllo Data”); and (b) Company owns and retains all right, title and interest (including, without limitation, Intellectual Property Rights) in and to the Sites, the Company Content, and the Company Marks. All rights not expressly granted in this Agreement are reserved. Company may, but is not obligated to, provide or submit any suggestions, feedback, comments, ideas, or other information relating to the Services or modifications or enhancements thereto (the “Company Input”). Any Company Input is provided on a non-confidential basis regardless of any suggestion to the contrary in any Company communication, and Company hereby grants Fyllo a nonexclusive, worldwide, royalty-free, perpetual, irrevocable, sublicensable, transferable right and license to exploit such Company Input (directly or through third parties) in any manner without compensation or liability to Company for any purpose whatsoever, including, but not limited to, developing, manufacturing, enhancing, improving, promoting, and marketing Fyllo’s products and services, and without any reference to Company.
12.2. Media Vendor Tracking Technologies
In connection with the Services, Company understands and agrees that Media Vendors may collect data and information, including, but not limited to, cookies and beacon data, metadata, usage data, and streaming data, including via Tracking Technologies appended to the Ads or placed on the Sites to which the Ads are routed and/or served. Fyllo will follow Company’s lawful instructions in providing the Services and operating Media Vendor self-service tools on Company’s behalf, including Media Vendor self-service tools designed to facilitate Media Vendor collection of Personal Data for Company’s Advertising Purposes (as defined in the Data Protection Addendum incorporated herein as Exhibit A) via placement of Tracking Technologies on Company’s Sites or Ads. Fyllo will not use data or information collected by Media Vendors via Media Vendor Tracking Technologies on the Sites or Company’s Ads except for the provision of the Services and Deliverables to Company. Company is solely responsible for determining whether its sharing of Personal Data with such Media Vendors is a “sale” or “share” of Personal Data under applicable laws, rules, or regulations or otherwise impacts Company’s legal obligations.
12.3 Data Protection Addendum
The Data Protection Addendum (“DPA”) incorporated herein as Exhibit A applies to the Parties processing of any Personal Data under this Agreement. To the extent there is a conflict between the rest of the terms of this Agreement and the DPA, the DPA will control.
13.1 Independent Contractors
The relationship of Fyllo and Company established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment, or fiduciary relationship between the Parties.
Except as otherwise mutually agreed by the Parties or as set forth in Section 13.3, the parties agree that if there is any dispute or claim between the Parties arising from or related to this Agreement, it will be resolved by confidential binding arbitration in Manhattan, New York, rather than in court, after first giving notice of the dispute (“Notice”) to the other party and the opportunity to discuss resolution within thirty (30) days of such Notice. The Notice shall be sent to the addresses listed in Section13.8. This Notice must include a description of the nature and basis of the claims the party is asserting, and the relief sought. If the parties are unable to resolve the claims described in the Notice within thirty (30) days after the Notice is sent, either party may initiate arbitration proceedings. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the provisions of this Agreement as a court would. EACH PARTY ACKNOWLEDGES THAT IT IS VOLUNTARILY AND KNOWINGLY FORFEITING ITS RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT. The Federal Arbitration Act and federal arbitration law apply, and the American Arbitration Association (“AAA”) will administer the arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration shall be held in the State of New York in the borough of Manhattan or at another mutually agreed location. If the value of the relief sought is $10,000 or less, either party may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on both parties subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by both parties, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of New York, including recognized principles of equity, and will honor all claims of privilege recognized by applicable law. The arbitrator’s award shall be confidential, final, and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
13.3 Governing Law; Jurisdiction
Notwithstanding anything to the contrary in Section 13.2, the Parties agree that either Party may bring suit in court for injunctive relief, including without limitation to enjoin infringement or other misuse of Intellectual Property Rights. In such event, this Agreement is to be construed in accordance with and governed by the internal laws of the State of New York, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the Parties.
This Agreement may not be assigned, in whole or in part, by either party without the approval of the other party, which shall not be unreasonably withheld, except that either party may assign this Agreement in connection with a merger, acquisition, or a sale or corporate reorganization, involving all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any assignment or transfer or assignment in violation of the foregoing shall be deemed void, ab initio.
If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of this Agreement will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
A waiver of a Party’s breach of any provision of this Agreement or any IO will not operate as or be deemed to be a waiver of that Party’s prior, concurrent, or subsequent breach of that or any other provision of this Agreement or any IO.
13.7 Force Majeure
Neither Party will be deemed in default of this Agreement to the extent that performance of its obligations (other than payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party.
Any notice or approval desired or required to be provided to a Party hereunder will be given to such Party in writing by personal delivery (notice deemed effective upon receipt), overnight messenger (notice deemed effective the business day after such messenger’s acceptance (which acceptance must occur before such messenger’s required deadline) for next business day service), mail (notice deemed effective three (3) days after mailing), or e-mail (noticed deemed effective upon receipt of a return e-mail, other than an automatically generated return e-mail, indicating that the e-mail notice has been received). Notice to Company shall be addressed to the address specified in the IO, Attn: Legal Department, and in the case of email, to the email address specified in the IO. Notice to Fyllo shall be addressed to 433 W. Van Buren St. Ste. 200, Chicago, IL 60607, Attn: Legal Department, with a copy by email to email@example.com. A Party may designate a substitute address by written notice to the other with the effectiveness of such notice governed by the terms of this Section. If the final day for giving notice is a Saturday, Sunday, or nationally recognized holiday then the time for giving such notice will be extended to the next business day.
This Agreement and any IO may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. Electronic or scanned signatures shall have the same force as an original signature.
13.10 Entire Agreement
The provisions of this Agreement and all IOs, which are incorporated herein by reference, constitute the entire agreement between the Parties with respect to the subject matter hereof and thereof, and this Agreement and related Insertion Orders supersede all prior agreements or representations, oral or written, regarding such subject matter.
13.11 Capitalized Terms
Capitalized terms used in any IO shall have the meanings ascribed to them in this Agreement unless otherwise noted in the applicable IO. Capitalized terms used in an IO shall not have the defined meanings from any other IO, unless explicitly stated otherwise in such IO.