Terms of Service
IMPORTANT: IF CUSTOMER DOES NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, CUSTOMER MAY NOT ACCESS OR USE AGENCYSTORY. BY CHECKING THE ACCEPTANCE BOX OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON AGENCYSTORY’S WEBSITE AT https://cpi.consulting/agencystory/ (AS MAY BE RELOCATED BY AGENCYSTORY FROM TIME TO TIME). IN THE EVENT CUSTOMER IS REDIRECTED TO AGENCYSTORY’S WEBSITE, YOU AGREE THAT CUSTOMER’S USE IS SUBJECT TO ANY TERMS OF SERVICE OR PRIVACY POLICIES POSTED THEREON.
This AgencyStory Subscription Agreement (“Agreement”) is between AgencyStory LLC. and the customer (individual or entity) that has purchased a subscription to AgencyStory (“Customer” or “you” or “your”). “AgencyStory” means the AgencyStory entity designated on the applicable Ordering Document (as defined below). If you are an individual using AgencyStory on behalf of a corporation, partnership or other entity, then that entity will be the Customer, and you represent and warrant that you are authorized to enter into this Agreement on behalf of such entity and bind such entity to the terms and conditions of this Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to AgencyStory through any online provisioning, registration or order process or (b) the effective date of the first Ordering Document referencing this Agreement.
Evaluation Users: If you receive free, trial or evaluation access to AgencyStory, you are deemed a “Customer” under this Agreement except that you are subject to the additional restrictions and limitations set forth in Section 1.2 (Evaluation Access) below.
This Agreement applies only to AgencyStory and does not grant Customer rights to any other AgencyStory services or software, which are made available under separate agreements.
From time to time, AgencyStory may modify this Agreement. Unless otherwise specified by AgencyStory, changes become effective for existing subscription Customers upon renewal of the then-current Subscription Term. AgencyStory will use reasonable efforts to notify Customer of the changes through communications through AgencyStory, email, or other means. Customer may be required to click to accept the modified Agreement before using AgencyStory in a renewal Subscription Term, and in any event continued use of AgencyStory during the renewal Subscription Term will constitute Customer’s acceptance of the version of the Agreement in effect at the time the renewal Subscription Term begins.
Each party expressly agrees that this Agreement is legally binding upon it.
1.1. Provision of Products. AgencyStory is a hosted service permitting Customer to access AgencyStory’s data visualization product (“AgencyStory”). AgencyStory is described more fully in the then-current version of any supporting technical documentation provided to Customer by AgencyStory with AgencyStory (“Documentation”). AgencyStory is provided on a subscription basis for a set term designated herein or in the applicable Ordering Document (each, a “Subscription Term”).
1.2. Evaluation Access. If AgencyStory has made available to you free, trial or evaluation access to AgencyStory (“Evaluation Access”), your access is limited to evaluating AgencyStory to determine whether to purchase a subscription from AgencyStory. You may not use Evaluation Access for any other purposes, including but not limited to competitive analysis, commercial, professional or for-profit purposes. Evaluation Access is limited to fourteen (14) days from the date you activate Evaluation Access, unless otherwise specified by AgencyStory in the Ordering Document or a separate writing from AgencyStory. AgencyStory has the right to terminate Evaluation Access at any time. Unless you purchase a subscription for AgencyStory, upon any such termination or expiration your Evaluation Access will cease and you will no longer have access to any Customer Data (as defined in Section 2.1 below) used in connection with Evaluation Access. If Customer purchases a subscription to AgencyStory, all of the terms and conditions in this Agreement will apply to such purchase and the use of AgencyStory. NOTWITHSTANDING ANYTHING IN THIS AGREMEENT TO THE CONTRARY, AGENCYSTORY WILL HAVE NO WARRANTY, INDEMNITY, SUPPORT OR OBLIGATIONS WITH RESPECT TO EVALUATION ACCESS.
1.3. Access to Products. Subject to the terms and conditions of the Agreement, AgencyStory hereby grants to Customer a non-exclusive, nontransferable, worldwide right during the applicable Subscription Term to access and use AgencyStory solely for Customer’s business purposes and pursuant to the Documentation and any restrictions designated in the applicable Ordering Document.
1.4. Permitted Users. Use of and access to AgencyStory is permitted only by the number of users specified in the applicable Ordering Document (“Permitted Users”). The Permitted Users will receive user IDs and passwords to access AgencyStory. These credentials are granted to individual, named persons and may not be shared. Customer will ensure that all Permitted Users keep these credentials strictly confidential. Customer may assign different access rights to Permitted Users (e.g., admin users, read-only users, etc.), as explained in the Documentation. Customer is responsible for any and all actions taken by Permitted Users or by anyone using Customer’s accounts and passwords. Subject to the terms and conditions of this Agreement, in addition to Customer’s employees, Customer may permit (a) its independent contractors and consultants who are not competitors of AgencyStory (“Contractors”) and (b) Customer’s Affiliates to serve as Permitted Users. Customer will remain responsible for compliance by each of its Permitted Users with all of the terms and conditions of this Agreement, and (except as permitted in Section
1.5 (End User Visualization Access)) any use of AgencyStory by Permitted Users must be for the sole benefit of Customer. Use of AgencyStory by all Permitted Users in the aggregate must be within the restrictions in the applicable Ordering Document. “Affiliate” means each legal entity that is directly or indirectly controlled by Customer on or after the Effective Date, for so long as such entity remains directly or indirectly controlled by Customer (where “controlled” means the ownership of, or the power to vote, directly or indirectly, a majority of any class of voting securities of a corporation or limited liability company, or the ownership of any general partnership interest in any general or limited partnership).
1.6. Third-Party Code. The Software may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Open Source Software may be identified in the Documentation, or in a list of the Open Source Software provided to Customer upon written request. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such Open Source Software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
1.7. General Restrictions. Customer shall not: (a) rent, lease, copy, sell, provide access to or sublicense AgencyStory to a third party, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or APIs to AgencyStory, except to the extent expressly permitted by applicable law (and then only upon advance notice to AgencyStory), (c) modify AgencyStory or any Documentation, or create any derivative product from any of the foregoing, (d) remove or obscure any product identification, proprietary, copyright or other notices contained in AgencyStory (including any reports or data printed via the use of AgencyStory), (e) incorporate AgencyStory into any other offering (whether software as a service or otherwise), (f) use AgencyStory to develop a product which is competitive with any AgencyStory product offering or (g) publicly disseminate information or analysis regarding the performance of AgencyStory.
2. CUSTOMER DATA AND CUSTOMER OBLIGATIONS
2.1 Customer Data. “Customer Data” means any business information or other data which Customer inputs, or provides to AgencyStory for inputting, into AgencyStory.
2.2 Customer Obligations (a) General. Customer shall ensure that Customer’s use of AgencyStory and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions, including without limitation those related to data privacy, international communications and the exportation of technical or personal data. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to AgencyStory that Customer has sufficient rights in the Customer Data to authorize AgencyStory to process, distribute and display the Customer Data as contemplated by this Agreement, and that the Customer Data and its use hereunder will not violate or infringe the rights of any third party.
(b) Health Information. Customer will not submit to AgencyStory any patient, medical or other protected health information regulated by HIPAA or any similar federal or state laws, rules or regulations (“Health Information”) and acknowledges that AgencyStory is not a Business Associate and that AgencyStory is not HIPAA compliant. “HIPAA” means the Health Insurance Portability Act, as amended and supplemented. AgencyStory shall have no liability under this Agreement for Health Information, notwithstanding anything to the contrary herein.
(c) Payment Card Data. Customer will not submit to AgencyStory Hosted Services any payment card information. Customer acknowledges that AgencyStory is not compliant with the Payment Card Industry Data Security Standards.
2.3 Rights in Customer Data. As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Data as provided to AgencyStory. Subject to the terms of this Agreement, Customer hereby grants to AgencyStory a nonexclusive, worldwide, royalty-free right to use, copy, store, transmit, distribute, perform and display (including publicly), modify and create derivative works of the Customer Data solely to the extent necessary to provide AgencyStory.
2.4 Customer Requirements. Customer will (a) designate a primary point of contact with the appropriate functional knowledge and skills to work with AgencyStory during the activation of AgencyStory and (b) be responsible for creation, updating, deletion, control, and support of Customer Data and calculations used to create same.
2.5 Storage of Customer Data. AgencyStory does not provide an archiving service. AgencyStory agrees only that it shall not intentionally delete any Customer Data from AgencyStory prior to termination of Customer’s applicable subscription. AgencyStory expressly disclaims all other obligations with respect to storage.
2.6 Aggregated Anonymous Data. In addition to the license rights in Section 2.3, AgencyStory may aggregate Customer’s metadata and usage data so that the results are non-personally identifiable with respect to Customer (“Aggregated Anonymous Data”). The Aggregated Anonymous Data will be deemed AgencyStory Technology, and Customer acknowledges that AgencyStory may use the Aggregated Anonymous Data (i) for its own internal, statistical analysis, (ii) to develop and improve AgencyStory and (iii) to create and distribute reports and other materials regarding use of AgencyStory. For clarity, nothing in this Section 2.6 gives AgencyStory the right to publicly identify Customer as the source of any Aggregated Anonymous Data without Customer’s prior written condition.
3.1. AgencyStory Technology. This is a subscription agreement for use of AgencyStory and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to use AgencyStory on a hosted basis and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer. Customer agrees that AgencyStory or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to AgencyStory, the Documentation, any other AgencyStory deliverables and any and all related and underlying software (including interfaces), databases (including data models, structures, Aggregated Anonymous Data and any other non-Customer specific data and statistical data), technology, reports and documentation and all copies, modifications and derivative works thereof (including any changes which incorporate any Feedback) (collectively, “AgencyStory Technology”). Further, Customer acknowledges that AgencyStory is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the AgencyStory code itself. Nothing in this Section 3.1 shall be deemed as granting AgencyStory ownership of Customer Data or in any way impacting Customer’s ownership of Customer Data.
3.2. Feedback. Customer, from time to time, may submit comments, information, questions, data, ideas, descriptions of processes, or other information to AgencyStory (“Feedback”). AgencyStory may in connection with any of its products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise.
4. SUBSCRIPTION TERM, FEES & PAYMENT
4.1. Subscription Term. Unless otherwise specified on the applicable Ordering Document, each Subscription Term shall begin on the effective date of the applicable Ordering Document and expire twelve (12) months thereafter. Approximately thirty (30) days prior to the expiration of the Subscription Term, AgencyStory may notify Customer of its opportunity to renew the Subscription Term. Any renewals require mutual agreement and all applicable fees for such renewals will be at AgencyStory’s then-current rates. If Customer’s subscription is not renewed, Customer’s access to AgencyStory will terminate at the end of the then-current Subscription Term.
4.2. Fees and Payment. All fees are as set forth in the Ordering Document and shall be paid by Customer within thirty (30) days of the effective date of the applicable Ordering Document, unless otherwise specified in such Ordering Document. All fees are non-refundable. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, AgencyStory will invoice Customer for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. Customer will make all payments free and clear of, and without reduction for, any withholding or other taxes; any such taxes imposed on payments by Customer hereunder will be Customer’s sole responsibility. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
4.3. Adding Permitted Users. (a) Customer may increase its number of Permitted Users during a Subscription Term at rates consistent with those in the applicable Ordering Document (unless the parties agree to other rates) for the then current Subscription Term. The increase will be documented in an Ordering Document or amended Ordering Document, and invoices for additional Permitted Users will be payable according to Section 4.2 (Fees and Payment). Customer may not reduce Permitted Users during a Subscription Term. (b) Customer understands that AgencyStory may monitor Customer’s use of AgencyStory in order to verify that Customer has not exceeded its permitted number of Permitted Users. If AgencyStory becomes aware of any such excess usage, then Customer will pay for the excess usage and for any ongoing excess usage under the same terms as in subsection (a) above.
4.4. Suspension of Services. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), AgencyStory reserves the right to suspend Customer’s access to AgencyStory without liability to Customer until such amounts are paid in full.
5. TERM AND TERMINATION
5.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms.
5.2. Termination for Cause. Either party may terminate this Agreement (including all related Ordering Documents and Subscription Terms) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
5.3. Effect of Termination. Upon any termination or expiration of this Agreement, Customer shall immediately cease any and all use of and access to AgencyStory and delete (or, at AgencyStory’s request, return) any and all copies of the Documentation, any AgencyStory passwords or access codes and any other AgencyStory Confidential Information in its possession. Customer acknowledges that, except as exported or printed prior to termination or expiration by Customer as may be permitted through the functionality of AgencyStory, following termination or expiration it shall have no further access to any Customer Data input into AgencyStory, and that AgencyStory may delete any such data at any time. Except where an exclusive remedy is specified in this Agreement, the exercise by either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
5.4. Survival. The following Sections shall survive any expiration or termination of this Agreement: Sections 1.7 (General Restrictions), 2.6 (Aggregated Anonymous Data), 3 (Ownership), 4.2 (Fees and Payment), 5 (Term and Termination), 6.3 (Warranty Disclaimer), 8 (Limitation of Remedies and Damages), 9.2 (Indemnification by Customer), 10 (Confidential Information) and 11 (General Terms).
6. LIMITED WARRANTY
6.1. Limited Warranty. AgencyStory warrants, for Customer’s benefit only, that AgencyStory will operate in substantial conformity with the applicable Documentation. AgencyStory does not warrant that Customer’s use of AgencyStory will be uninterrupted or error-free, nor does AgencyStory warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. AgencyStory’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in AgencyStory’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to correct the reported non-conformity, or if AgencyStory determines such remedy to be impracticable, to allow Customer to terminate the applicable Subscription Term and receive as its sole remedy a refund of: (a) the monthly subscription fees specified in the applicable Ordering Document which are allocable to the thirty (30) day period prior to the date the warranty claim was made and (b) any fees Customer has pre-paid for use of AgencyStory or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 6.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.
6.2. Exclusions. The above warranty shall not apply: (i) if AgencyStory is used with hardware or software not authorized in the Documentation; (ii) to any Evaluation Access or other use provided on a no charge or evaluation basis; or (iii) to any maps created using the Software (“Maps”), such functionality is provided purely for reference purposes. AgencyStory makes every effort to ensure the Maps are free of errors but does not warrant the Maps or Map features are accurate. The boundaries and names shown and the designations used in the Maps do not imply endorsement or acceptance by AgencyStory.
6.3. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 6.1, AGENCYSTORY AND ALL SERVICES, INCLUDING WITHOUT LIMITATION THE MAPS AND THE THIRD-PARTY CODE ARE PROVIDED “AS IS”. NEITHER AGENCYSTORY NOR ANY OF ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, ANY STATUTORILY REQUIRED WARRANTIES SHALL BE LIMITED AS PROVIDED HEREIN. AGENCYSTORY SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF AGENCYSTORY. AgencyStory MSA (January 2017).
7. SUPPORT AND SECURITY. During the Subscription Term, AgencyStory is subject to the support terms and security procedures set forth in the AgencyStory Support Policy.
8. LIMITATION OF REMEDIES AND DAMAGES
8.1. Waiver of Consequential Damages. NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.2. Liability Cap. EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION TO THE OTHER PARTY SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AGENCYSTORY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
8.3. Excluded Claims. Sections 8.1 and 8.2 do not apply with respect to claims arising under Section 1.7 (General Restrictions), 4.2 (Fees and Payment), 11.15 (Export Control) or to amounts payable to third parties under Section 9 (Indemnification).
8.4. Failure of Essential Purpose. The parties agree that the limitations specified in this Section 8 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.1. AgencyStory Indemnification for Intellectual Property Infringement. Subject to Section 9.3 (Procedures) and the remainder of this Section 9.1, AgencyStory shall (a) defend Customer from and against any claim by a third party alleging that AgencyStory, when used as authorized under this Agreement, directly infringes such third party’s U.S. patent, U.S. copyright, or U.S. trademark and (b) in relation to such claim, indemnify and hold harmless Customer from any damages and costs finally awarded or agreed to in settlement by AgencyStory (including reasonable attorneys’ fees). If Customer’s use of AgencyStory is, or in AgencyStory’s opinion is likely to be, enjoined due to the type of infringement specified above, if required by settlement, or if AgencyStory determines such actions are reasonably necessary to avoid material liability, AgencyStory may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using AgencyStory; or if (i) and (ii) are not commercially reasonable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Subscription Term which was paid by Customer but not rendered by AgencyStory. The foregoing indemnification obligation of AgencyStory shall not apply: (1) if AgencyStory is modified by any party other than AgencyStory, but solely to the extent the alleged infringement is caused by such modification; (2) AgencyStory is combined with other non-AgencyStory services or processes not authorized by AgencyStory, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of AgencyStory; (4) to any action arising as a result of Customer Data or any third-party components contained within or uploaded to AgencyStory; or (5) if Customer settles or makes any admissions with respect to a claim without AgencyStory’s prior written consent. THIS SECTION 9.1 SETS FORTH AGENCYSTORY’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2. Indemnification by Customer. Subject to Section 9.3 (Procedures), Customer shall defend, indemnify and hold harmless AgencyStory and its employees, agents, successors and assigns from and against any and all losses, damages, liabilities, costs and expenses arising from any claim based on or arising from: (a) the Customer Data, including without limitation any claim based on Customer’s breach or alleged breach of Section 2.2 (Customer Obligations) or alleging that the Customer Data infringes upon any valid patent, copyright, trademark, trade secret, or other proprietary right of, or otherwise harms, such third party; (b) Customer’s use of AgencyStory in violation of this Agreement; (c) any claims by or disputes with Client Sublicensees; or (d) any claims, penalties, loss or damage arising out of a breach of Customer’s obligations under Section 11.15 (Export Control).
9.3. Procedures. The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification: (i) prompt written notice of the claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of the indemnified party.
10. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any AgencyStory Technology, performance information relating to AgencyStory, and the terms and conditions of this Agreement shall be deemed Confidential Information of AgencyStory without any marking or further designation. Customer Data shall be deemed Customer’s Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party. The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
11. GENERAL TERMS
11.1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that (a) either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities and (b) AgencyStory may assign this Agreement to any direct or indirect parent, subsidiary or affiliate company. For any assignment by Customer as permitted in the previous sentence: (i) the assignee must not be a direct competitor of AgencyStory; (ii) Customer must provide prompt written notice of the assignment to AgencyStory; and (iii) the assignee must be capable of fully performing Customer’s obligations under this Agreement and must agree to be bound by the terms and conditions of this Agreement. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 11.1 will be null and void.
11.2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
11.3. Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under (a) the laws of the State of Washington, U.S. if Customer is located in North or South America, (b) the laws of Singapore if Customer is located in Asia or Australia, or (c) the laws of England and Wales if Customer is located outside of North or South America, Asia and Australia. All disputes arising out of or in relation to this Agreement shall be submitted to the exclusive jurisdiction of the courts of (i) Vancouver, Washington when the laws of Washington apply, (ii) Singapore when the laws of Singapore apply, or (iii) London when the laws of England and Wales apply. Nothing in this section AgencyStory MSA (January 2017) Page 5 shall restrict AgencyStory’s right to bring an action (including for example a motion for injunctive relief) against Customer in the jurisdiction where Customer’s place of business is located. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
11.4. Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
11.5. AgencyStory’s Customer List. Customer agrees that AgencyStory may disclose Customer as a customer of AgencyStory and use Customer’s name and logo on AgencyStory’s web site and in AgencyStory’s promotional materials.
11.6. Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Ordering Document or at such other address as may be given in writing by either party to the other in accordance with this paragraph and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
11.7. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer, including any electronic invoicing portals and vendor registration processes, will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect. Notwithstanding the foregoing, this paragraph does not limit AgencyStory’s rights to modify this Agreement as set forth in the preamble section above. Further, AgencyStory may modify the AgencyStory Support policy discussed in Section 7 from time to time to reflect process improvements or changing practices. However, the modifications will not materially decrease AgencyStory’s support or security obligations as compared to those in effect as of the effective date of the then-current Subscription Term.
11.8. Entire Agreement. This Agreement (including each Ordering Document, and any other mutually agreed exhibits or attachments) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that AgencyStory is an on-line, subscription-based product, and that in order to provide improved customer experience AgencyStory may make changes to AgencyStory (which may include making available different or substitute Media Elements compared to those available as of the Effective Date), and AgencyStory will update the Documentation accordingly.
11.9. Audit Rights. Upon AgencyStory’s written request, Customer shall furnish AgencyStory with a signed certification certifying that AgencyStory is being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice of at least 10 days, AgencyStory may audit the use of AgencyStory by Customer provided such audit is during regular business hours. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use of AgencyStory is not in accordance with the permitted scope of use.
11.10. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
11.11. Subcontractors. AgencyStory may use the services of subcontractors for performance of services under this Agreement, provided that AgencyStory remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) the overall performance of AgencyStory as required under this Agreement.
11.12. Third Party Beneficiaries. AgencyStory Software, Inc., its affiliates and its licensors may be third party beneficiaries of this Agreement. No other third party, including without limitation Client Sublicensees under Section 1.5, is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.
11.13. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
11.14. Government End-Users. AgencyStory is based upon commercial computer software. If the user or licensee of AgencyStory is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of AgencyStory, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. AgencyStory was developed fully at private expense. All other use is prohibited.
11.15. Export Control. In its use of AgencyStory, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) Customer shall not (and shall not permit any of its Permitted Users or others to) access or use the AgencyStory in violation of any U.S. export embargo, prohibition or restriction.