AUDIENCE SERVICES AGREEMENT
Last Updated: July 2023
BY INDICATING YOUR ASSENT TO ENTER INTO THIS AUDIENCE SERVICES AGREEMENT (THE “AGREEMENT”), YOU ACCEPT THE OFFER MADE BY SHEERID, INC., A DELAWARE CORPORATION (“SHEERID”), TO ACCESS AND USE THE SERVICES DESCRIBED BELOW SUBJECT TO THE TERMS OF THIS AGREEMENT AND YOU HEREBY AGREE THAT YOU HAVE THE REQUISITE AUTHORITY AND RIGHT TO FULLY BIND THE PERSON AND/OR ENTITIE(S) (COLLECTIVELY, THE “CUSTOMER”) WISHING TO ACCESS AND USE THE SERVICES THAT SHALL BE LISTED ON EACH WRITTEN OR ELECTRONIC QUOTATION, ORDER FORM, AND/OR OTHER DOCUMENTS (EACH, AN “ORDER FORM”) THAT SHALL BE EXPRESSLY AGREED UPON BY CUSTOMER AND SHEERID (OR ONE OF SHEERID’S DISTRIBUTION PARTNERS (EACH, A “PARTNER”)). THIS AGREEMENT SHALL BE EFFECTIVE IMMEDIATELY UPON YOUR ASSENT (THE “EFFECTIVE DATE”).
1. Customer offers goods and/or services to Customer’s customers and prospective customers (each, a “Consumer”) and maintains lists and/or databases of information related to those Consumers (the “Consumer Information”) that may include Personal Data (as that term is defined below); and
2. Customer seeks to engage SheerID to analyze and supplement the Consumer Information based upon certain criteria selected by Customer (the “Criteria”) in order to enrich the Consumer Information and assist Customer in personalizing communications and experiences directed at its Consumers.
1.1. Ordering. The details of the Services (as that term is defined below) that SheerID provides to Customer shall be set forth on one or more Order Forms that shall reference this Agreement and be expressly agreed upon by Customer and either SheerID or one of its Partners. Each Order Form shall constitute a binding commitment to purchase the services described on such Order Form under the terms and conditions of this Agreement. All Order Forms are incorporated herein by reference and form a part of this Agreement. Each Order Form may include a written schedule containing supplemental terms and conditions to this Agreement applicable to the services provided therein (each, a “Schedule”), including mandatory pass-through terms from third-party licensors. In the event of a conflict among terms in this Agreement, the following is the order of precedence in interpretation: (a) Schedules (only with respect to the applicable Services (as that term is defined below) set forth in the Order Form); (b) an Order Form (only with respect to the applicable Services in such Order Form); and (c) this Agreement.
1.2. Orders by Customer Affiliates. A Customer Affiliate (as defined below) may enter into Order Forms under this Agreement and, for purposes of each such Order Form: (a) all instances of the term “Customer” in this Agreement shall refer to the particular Affiliate that executed the Order Form; and (b) only the Affiliate that executed the Order Form will incur any obligation or liability to SheerID or the applicable Partner under that Order Form. “Affiliate,” as used in this Agreement, means any individual or entity that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common control with the party in question, where “Control” means the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.
2. SERVICES; COLLECTION AND USE OF CONSUMER INFORMATION.
2.1. Audience Services. Subject to this Agreement and the details of each applicable Order Form, SheerID will provide one or more of the following services, each of which may involve the transfer of Personal Data between the parties (collectively, the “Services”):
2.1.1. Audience Development Services: Comparing Consumer Information (as provided by Customer) to proprietary SheerID databases and third-party databases (the “Databases”) and other authoritative sources in order to determine whether Consumers likely satisfy certain Criteria, such as membership in specified Consumer communities, and providing reports to Customer regarding the results of these comparisons (the “Reports”);
2.1.2. Audience Targeting Services: Providing lists that contain Personal Data to Customer in accordance with the Criteria (the “Consumer Lists”); and
2.1.3. Data Science Services: Analyzing Consumer Information, Reports, and/or Consumer Lists (and providing the results of such analyses) in order to optimize Customer’s ability to market to selected Consumers (the “Data Science Services”).
2.1.4. Deliverables: The Reports, Consumer Lists, and the output of the Data Science Services shall collectively be referenced herein as the “Deliverables.”
2.2. Customer Obligations. Customer will: (i) provide the Consumer Information in accordance with the delivery and other specifications set out on the applicable Order Form; (ii) provide Consumers with notice that Customer sells or shares Consumer Information, as those terms are defined under Applicable Laws, and provide any legally required mechanisms for Consumers to opt-out of the sale and sharing of Consumer Information; and (iii) select the Criteria upon which it desires to have the Consumer Information analyzed and/or supplemented.
2.3. Cooperation. Customer acknowledges that the timely and successful implementation of the Services requires cooperation by Customer. Customer shall timely: (a) furnish information reasonably requested by SheerID, including all applicable Criteria; and (b) reasonably cooperate with SheerID during its provision of Services. In the event that any failure by Customer to comply with the provisions of this Section 3 results in any delay or deficiency in performance of the Services, SheerID shall not be deemed in breach of this Agreement and Customer shall not be relieved of its obligation to pay the Fees (as that term is defined below) for the Services at issue.
2.4. Changes. Should Customer request material changes (as reasonably determined by SheerID) to the Services or Documentation, SheerID shall provide a quote for additional Fees resulting from Customer’s request. Should Customer agree to SheerID’s quote, the parties shall execute an Order Form that sets forth the details and Fees related to the changes in question.
2.5. License. Customer hereby grants to SheerID a non-exclusive, royalty-free, fully paid-up, irrevocable, worldwide, license and right to access, store, reproduce, distribute, create derivative works from, and otherwise use Consumer Information (and other data provided by Customer to SheerID hereunder) only: (a) for the limited and specified purpose of performing the Services set out in this Agreement; (b) as otherwise requested or instructed by Customer; (c) as necessary to provide, support, improve, and develop the Services; (d) to monitor and protect the Services, including to prevent or address technical problems or violations of this Agreement; and (e) as otherwise required by Applicable Laws.
2.6. Usage Data. SheerID shall have the right to use, store, create derivative works of, share, distribute, and otherwise process anonymized and aggregated usage data derived from Consumer Information (the “Usage Data”). SheerID shall not disclose or make available any Usage Data in a manner that does (or reasonably could) permit the recipient of such information to determine that such Usage Data pertains to Customer or a particular Consumer.
2.7. Feedback. Customer may voluntarily post, submit, or otherwise communicate to SheerID questions, comments, suggestions, ideas, original or creative materials, or other information about SheerID (collectively, the “Feedback”). Customer agrees that SheerID, in its sole discretion, may treat Feedback as nonconfidential and use Feedback for any purpose (commercial or otherwise) without acknowledgment or compensation to Customer.
3. USE RIGHTS; RESTRICTIONS.
3.1. Use of the Deliverables. Subject to full compliance with the terms and conditions of this Agreement, SheerID hereby grants to Customer during each applicable Order Form Term a limited, non-exclusive, non-transferable, non-sublicensable license to use the Deliverables and any descriptions, instructions, or other documentation made available by SheerID, including within an Order Form or as part of the implementation process, that describes functionality of the Services, if any (collectively, the “Documentation”) solely for Customer’s direct marketing purposes. Customer’s use of any third-party applications, services, or products in connection with the Services is outside the scope of this Agreement and SheerID makes no warranties of any kind and assumes no liability whatsoever for Customer’s use of such third-party applications, services, or products.
3.2. General Restrictions. Except as otherwise expressly permitted under this Agreement, Customer agrees not to: (a) distribute, transfer, grant sublicenses, reproduce, resell, or otherwise make available the Documentation or Deliverables to any third party in whole or in part; (b) attempt to discover or reverse-engineer any confidential and proprietary information developed or used by SheerID in the compilation of the Deliverables or the performance of the Services; (c) use, include, or integrate the Deliverables in any product enhancements or development for sale or distribution to third parties; (d) develop, publish, or maintain any list, enhancement, directory, or other similar product for sale or distribution to third parties; (e) use any Deliverable (or derivative work thereof) after the expiration of an applicable Order Form Term; or (f) use the Services or Deliverables in a manner not authorized under the Documentation or Agreement, for purposes that are subject to the Fair Credit Reporting Act (as further described below), or in violation of (or in a manner that puts SheerID in violation of) any applicable law, rule, or regulation, including, without limitation, laws related to privacy, security, advertising, spam, and export/import compliance (collectively, the “Applicable Laws”). Customer further agrees that SheerID is not a consumer reporting agency and none of the information provided by SheerID through the Services constitutes a “consumer report” under the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq. Customer certifies and agrees that it will not use the Services and/or Deliverables, in whole or in part, as a factor in establishing a Consumer’s eligibility for credit, insurance, employment, or licensing, or for any other purpose governed by the Fair Credit Reporting Act. Moreover, Customer agrees that it will not take any “adverse action,” as that term is defined in the Fair Credit Reporting Act, against any Consumer based in whole or in part upon the Services and/or Deliverables.
3.3. Student Status Restrictions. To the extent that any Deliverable contains indications regarding a Consumer’s status as an enrolled student, Customer may not use any such Deliverable in connection with the promotion or sale of, or otherwise in connection with: alcohol, contraception, abortion, tobacco or illegal drugs (other than the prevention of use of tobacco or illegal drugs), religion (other than religious educational institutions), communications containing vulgar or offensive language, firearms, weapons, pornography, sexual products, or escort services.
3.4. Suspensions. Without limiting any of SheerID’s other rights under this Agreement, SheerID may suspend Customer’s access to the Services, right to use the Deliverables, and decline to provide any additional Deliverables or Services if: (i) such actions are necessary to comply with any requirements imposed by any applicable data sources, Applicable Laws, or industry guidelines applicable to the Services (an “Adverse Change”); (ii) Customer violates or is reasonably suspected of violating this Section 3; (iii) Customer’s use of the Services or Deliverables is the subject of a substantial adverse consumer reaction related to consumer privacy issues; or (iv) Customer fails to pay Fees in accordance with Section 5. SheerID will provide reasonable notice prior to such suspension unless it determines that an immediate suspension is required to protect the safety or integrity of the Services or any other SheerID customer’s use of the Services. In the event that of an Adverse Change that: (i) causes the fulfillment of an Order Form to violate Applicable Laws; (ii) causes a substantial reduction in either party’s reasonably expected economic benefits under the Order Form; or (iii) substantially or commercially unreasonably increases the burden of either party’s performance under such Order Form, then such affected party may terminate the applicable Order Form upon thirty (30) days’ prior written notice to the other party, without any further liability for Fees, other than for amounts due to SheerID for Services provided through the effective date of termination.
4. SUPPORT OF THE SERVICES. Customer may access SheerID’s customer support by contacting SheerID at the following address, which may be updated from time to time: [email protected].
5.1. Fees. One-time and recurring fees for the Services (collectively, the “Fees”) will be set forth on an applicable Order Form.
5.2. Payment Terms. Customer will pay to SheerID or the applicable Partner all undisputed Fees within thirty (30) days, unless otherwise specified in the Order Form, after Customer’s receipt of an invoice pertaining thereto. Customer shall remit payments to the address and/or in accordance with the wiring instructions set forth on the applicable Order Form or SheerID invoice. All amounts payable shall be in the currency of the United States and specifically exclude (and Customer is responsible for) any and all applicable sales, use, and other taxes (other than taxes based upon SheerID’s or the applicable Partner’s income). If Customer fails to timely pay any undisputed invoice, SheerID or the applicable Partner shall charge customer a late payment fee equal to three-quarters of a percent (0.75%) of the unpaid amount per month (or, if lower, the highest amount permitted by Applicable Laws), compounded daily. Unless otherwise set forth in an Order Form, each party is responsible for its own expenses under this Agreement.
6. TERM AND TERMINATION.
6.1. Term of Agreement. This Agreement shall continue in effect until terminated as set forth herein.
6.2. Order Form Terms; Adjustment; Renewal. The term for each Order Form will be set forth in the applicable Order Form, subject to any renewal or termination as set forth below (collectively, the “Order Form Term”), and will commence on the date set forth in each such Order Form. Thereafter, unless either party notifies the other at least 30 days prior to the commencement of a renewal term that it does not intend to renew the Order Form Term as set forth in this Section 6.2, each Order Form will automatically renew for the renewal period specified on that Order Form, if any, or, if not specified, for successive one-year periods.
6.3. Termination. This Agreement, and any Order Form issued hereunder, may be terminated: (a) by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party (except that such cure period shall be five days for breaches of Sections 3.2 or 8); or (b) as set forth in Section 11.2.
6.4. Effect of Termination. Upon any termination of this Agreement or an Order Form, and without prejudice to any other rights or remedies that the parties may have: (a) all usage rights of any kind granted to Customer under this Agreement (including, but not limited to, any rights in or to the Services or the Deliverables) shall immediately cease; (b) Customer will promptly delete and/or destroy all copies of the Documentation and Deliverables in its possession or control; (c) Customer shall pay to SheerID any outstanding Fees that have accrued under this Agreement prior to the date of termination; and (d) each party will return or destroy all Confidential Information of the other party in its possession.
6.5. Survival. The following Sections will survive the termination of this Agreement: Sections 2.6 (Usage Data), 2.7 (Feedback), 3.2 (Restrictions), 5.2 (Payment Terms), 6.4 (Effect of Termination), 6.5 (Survival), 7 (Proprietary Rights), 8 (Confidential Information), 10.4 (Disclaimers), 11 (Indemnification, Limitation of Liability), 13 (Injunctive Relief), 15 (Miscellaneous), and 16 (Dispute Resolution).
7. PROPRIETARY RIGHTS.
7.1. SheerID IP. Subject to the limited licenses set forth herein and as between the parties, SheerID will retain all ownership rights and interest in and to the (a) Services; (b) Deliverables; (c) Feedback; (d) SheerID’s Confidential Information; (e) any consumer, business, or any other data that SheerID provides to Customer in the provision of the Services, including the Deliverables (“SheerID Data”); and (f) trademarks and service marks and other logos and product and service names (“Marks”) of SheerID, including, in each of (a) – (f), all updates and/or upgrades thereto and all intellectual property rights incorporated into or related to the foregoing (collectively, the “SheerID IP”). Except as set forth in this Agreement, no right, title, or interest in or to SheerID IP is or is intended to be granted to Customer.
7.2. Customer IP. Subject to the limited licenses set forth herein and as between the parties, Customer retains all right, title, and interest in and to: (a) Consumer Information; (b) its Confidential Information (as defined in Section 8, below); and (c) Customer’s Marks, including, in each of (a) – (c), all updates and/or upgrades thereto and all intellectual property rights incorporated into or related to the foregoing (collectively, “Customer IP”). Except as set forth in this Agreement, no right, title, or interest in or to Customer IP is or is intended to be granted to SheerID.
8. CONFIDENTIAL INFORMATION.
8.1.1. “Confidential Information” means, with respect to a party (the “disclosing party”), information that pertains to such party’s business, including, without limitation, technical, marketing, financial, employee, planning, product roadmaps and documentation, performance results, pricing, and other confidential or proprietary information. Confidential Information will be designated and/or marked as confidential when disclosed, provided that any information that the party receiving such information (the “receiving party”) knew or reasonably should have known, under the circumstances, was considered confidential or proprietary by the disclosing party, will be considered Confidential Information of the disclosing party even if not designated or marked as such.
8.1.2. “Security Incident” means any actual or reasonably suspected misuse, compromise, or unauthorized, accidental, or unlawful access, disclosure, acquisition, destruction, loss, or alteration of the other party’s Confidential Information, including, without limitation, any circumstance pursuant to which Applicable Laws require either notification to be given to affected parties or other activity to be taken in response to such circumstance.
8.2. Non-Disclosure Obligations. The receiving party shall preserve the confidentiality of the disclosing party’s Confidential Information and treat such Confidential Information with at least the same degree of care that receiving party uses to protect its own Confidential Information, but not less than a reasonable standard of care. The receiving party will use the Confidential Information of the disclosing party only to exercise rights and perform obligations under this Agreement. Confidential Information of the disclosing party will be disclosed only to those employees and contractors of the receiving party with a need to know such information and who have agreed in writing to be bound by obligations of confidentiality and non-disclosure at least as stringent as those set forth in this Section 8. Except with respect to Personal Data and the Deliverables, Confidential Information does not include any information that: (a) was known to the receiving party on or before the Effective Date without restriction as to use or disclosure; (b) is released into the public domain through no fault of the receiving party; (c) was independently developed solely by employees of the receiving party who have not had access to (or relied upon in any way) Confidential Information; or (d) is divulged pursuant to a request in any legal proceeding or as otherwise required by law, provided that, to the extent legally permissible, the receiving party will promptly notify the disclosing party of such requested or required disclosure and (at the disclosing party’s cost and expense) reasonably assist the disclosing party in efforts to prevent or limit such requested or required disclosure.
8.3. Security Program. Each party shall, taking into account the state of the art and the risk presented by a Security Incident, at all times during the Term have implemented and maintain a comprehensive written information security program (“Security Program”) that: (a) complies with Applicable Laws; (b) contains reasonable and appropriate administrative, operational, technical, physical, and organizational measures that are designed to preserve and protect the security, integrity, and confidentiality of the other party’s Confidential Information and protect the other party’s Confidential Information against Security Incidents; and (c) complies with any other specific requirements agreed upon by the parties in an Order Form.
8.4. Security Program Audit. SheerID has obtained third-party certification and audits concerning its Security Program including, but not limited to, ISO 27001 and Service Organization Control (SOC) 2 Type II certifications. Upon Customer’s written request no more than once per year and subject to the confidentiality obligations set forth in this Agreement, SheerID will provide a copy of SheerID’s then most recent third-party audits or certifications, as applicable, or any summaries thereof, that SheerID makes available to its customers (the “Current Audits”). Requests for the Current Audits must be sent to [email protected].
8.5. Notification of Security Incident. Upon discovery or otherwise learning of a Security Incident, the receiving party shall promptly, but in no event later than seventy-two (72) hours thereafter, notify the disclosing party of such Security Incident and provide information about the Security Incident, including, where possible: (a) the nature of the Security Incident; (b) the categories and approximate number of data subjects impacted; (c) to the extent reasonably possible, information regarding the data subjects and data records concerned; (d) measures taken or proposed to be taken by the receiving party to address or remediate the Security Incident; and (e) the name and contact details of the receiving party’s data protection officer or other relevant contact from whom more information may be obtained.
9. PRIVACY OBLIGATIONS.
9.1. Compliance with Applicable Laws. Each party will comply with all Applicable Laws including, but not limited to, the California Consumer Protection Act, as amended by the California Privacy Rights Act, and its regulations (the “CPRA”), to provide privacy and data security protections over the Consumer Information and Personal Data. To the extent required under Applicable Laws, each party shall treat any Personal Data provided by the other party in the same manner as that other party is obligated to treat such Personal Data. “Personal Data” (a) means information that identifies, relates to, describes, is capable of being associated with, or reasonably could be linked (directly or indirectly) to a particular individual or household; and (b) includes “personal data” and “personal information” as those terms are defined under Applicable Laws.
9.2. Consumer Requests. “Consumer Requests” means a Consumer request to exercise rights pursuant to Applicable Laws, including the rights to access, correct, delete, opt-out of the sale, sharing, or use for cross-contextual advertising, or limit or restrict use of Consumer Information or Personal Data. Where a Consumer Request is received directly by the Customer and concerns Personal Data received through the Services, the Customer shall provide reasonable and timely notice of the Consumer Request to SheerID. Where a Consumer Request is received directly by SheerID, to the extent SheerID can identify the Customer from which that Consumer Information was received or to which Personal Data was shared through the Services, SheerID shall provide reasonable and timely notice of that Consumer Request to Customer. Each party shall take reasonable and appropriate action to promptly respond to Consumer Requests. Each party represents that it is capable of responding to and complying with Consumer opt-outs of Personal Data sales, sharing, or use in cross-contextual advertising.
9.3. Audits. Each party grants the other the right, upon notice, to take reasonable and appropriate steps to stop and remediate unauthorized use of Consumer Information made available to SheerID (or Personal Data provided to the Customer) during the course of the Services. Upon request, each party will provide the other with documentation verifying that it no longer retains or uses the Consumer Information or Personal Data of Consumers whose requests to opt-out of the sale, sharing, or cross-contextual advertising have been forwarded to the other.
9.4. Notification. Each party will notify the other if it makes a determination that it can no longer meet its privacy and data security obligations under Applicable Laws.
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS.
10.1. Mutual. Each Party represents, warrants, and covenants to the other party that: (a) it has the full corporate right, power, and authority to enter into this Agreement and to perform the acts required of it under this Agreement; (b) the execution of this Agreement and performance of its obligations under this Agreement do not and shall not violate any other agreement to which it is a party; and (c) this Agreement constitutes the legal, valid, and binding obligation of such party when executed and delivered.
10.2. By Customer. Customer warrants that its provision of Consumer Information and Customer’s use of the Services and Reports will comply with all Applicable Laws and applicable privacy policies.
10.3. By SheerID. SheerID warrants that it: (a) shall provide Services in a professional and workmanlike manner; (b) shall use reasonable efforts to provide the Services in a timely manner; and (c) shall comply with all Applicable Laws with respect to its provision of the Services. In the event of any breach of the warranties in this Section 10.3, SheerID shall, as its sole and exclusive liability and Customer’s sole and exclusive remedy, diligently remedy any deficiencies that cause the Services to not conform to such warranties promptly after its receipt of written notice from Customer. SheerID will not be liable to the extent that any breach of the foregoing warranties is caused by: (i) inaccurate information within any Consumer Information and/or third-party Databases; or (ii) unauthorized use of the Services by Customer or use of the Services by Customer other than in accordance with this Agreement.
10.4. Disclaimers. THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE THE EXCLUSIVE WARRANTIES OFFERED BY THE PARTIES AND ALL OTHER CONDITIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY CONDITIONS OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TITLE, MERCHANTABILITY, AND THOSE THAT ARISE FROM ANY COURSE OF DEALING OR COURSE OF PERFORMANCE ARE HEREBY DISCLAIMED. SHEERID DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ERRORS WILL BE CORRECTED.
11. INDEMNIFICATION, LIMITATION OF LIABILITY.
11.1. Indemnification by SheerID. SheerID will, at its own expense, defend, indemnify, and hold harmless Customer and each of its officers, directors, employees, agents, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and court costs (collectively, “Losses”) incurred by such Customer Indemnitee in connection with any claim, suit, action, or proceeding (collectively, “Actions”) brought by a third party (other than a Customer Affiliate) to the extent that such Losses arise out of or relate to a claim that: (a) Customer’s use of the Services or SheerID Data in compliance with the Documentation and this Agreement infringes any United States copyright, trademark, or patent, or misappropriates any trade secret rights (an “Infringement Claim”); or (b) SheerID has violated Applicable Laws in the performance of the Services. SheerID shall not have obligations under this Section 11.1 for any Action or Losses to the extent arising out of or relating to any access to or use of the Services, Documentation, or Deliverables in combination with any hardware, system, software, network, or other materials or service not provided or authorized in the Documentation and Agreement or otherwise in writing by SheerID and (in the case of Losses arising under Section 11.1(a)) where such infringement would not have occurred but for such combination.
11.2. If the Services or Reports (or any component thereof) become, or in SheerID’s opinion are likely to become, the subject of an Infringement Claim, SheerID may, at its option and expense, either: (a) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement; or (b) replace or modify the Services so that they become non-infringing and remain functionally equivalent. If neither of the foregoing options is, in SheerID’s reasonable opinion, commercially reasonable, SheerID may terminate this Agreement and will refund to Customer a pro-rata portion of any applicable prepaid Fees.
11.3. Indemnification by Customer. Customer, at its own cost, will defend, indemnify, and hold harmless SheerID, its Affiliates and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “SheerID Indemnitee”) from and against any Losses incurred by a SheerID Indemnitee in connection with any Action brought by a third party (other than a SheerID Affiliate) that arise from or relate to: (a) assertions that SheerID’s use of Customer Information or other material provided by or on behalf of Customer in compliance with this Agreement infringes any United States copyright, trademark, or patent, or misappropriates any trade secret rights; (b) the use of Services, Deliverables, or SheerID Data by or on behalf of Customer other than in accordance with this Agreement; (c) Customer’s breach of the warranty set forth in Section 10.2; or (d) Customer’s violation of Applicable Laws.
11.4. Limitation of Liability. EXCEPT WITH RESPECT TO LIABILITY ARISING OUT OF A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, INDEMNIFICATION OBLIGATIONS, AND/OR BREACH OF SECTION 8 (CONFIDENTIAL INFORMATION), IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY, WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS, LOST DATA, AND/OR DAMAGE TO BUSINESS REPUTATION), WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY TO THE OTHER IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE AND REGARDLESS OF WHETHER UNDER THEORY OF CONTRACT, TORT, OR OTHERWISE, THE TOTAL OF THE FEES PAID AND PAYABLE TO SHEERID OR A PARTNER BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE-YEAR PERIOD PRIOR TO THE DATE THAT SUCH LIABILITY FIRST ARISES.
12. PUBLICITY. Except as specifically authorized herein, neither party shall issue a press release or make any statement to the general public concerning the subject matter hereof without the express prior written consent of the other, except for any release or announcement that may be required by law or the rules and regulations of any exchange on which the securities of a party are listed, traded, or qualified for trading.
13. INJUNCTIVE RELIEF. The parties acknowledge that the Services and each party’s Confidential Information are unique property, and the unauthorized use thereof will cause the injured party irreparable harm that may not be adequately compensated by monetary damages. Accordingly, the parties agree that an injured party will, in addition to other remedies available to it at law or in equity, be entitled to seek injunctive relief to enforce the terms of this Agreement without the need to prove actual damages or post a bond, including to prevent any actual or threatened unauthorized use or disclosure of a party’s Confidential Information, the Services, the Deliverables, or any data contained therein.
14. INSURANCE. SheerID, at its own expense, will maintain at a minimum the following insurance coverages: (a) Commercial General Liability Insurance with coverage in an amount equal to or greater than US$2,000,000 per occurrence combined single limit; (b) Worker’s Compensation Insurance with coverage complying with at least the statutory limits of coverage within the relevant state of employment; and (c) Cyber and Professional Liability Insurance with coverage in an amount equal to or greater than US$5,000,000. SheerID will provide Customer with certificates of insurance evidencing the required coverage if requested in writing.
15. MISCELLANEOUS. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship, or a joint venture between the parties. Each party will be excused from any delay or failure in performance hereunder, other than the payment of money, caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of God, pandemics, earthquakes, labor disputes and strikes, riots, war, and governmental requirements. Neither party will assign, transfer, or delegate its rights or obligations under this Agreement (in whole or in part) without the other party’s prior written consent except, upon prior written notice, pursuant to a transfer of all or substantially all of such party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment, transfer, or delegation in violation of the foregoing shall be null and void. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing by an authorized representative of the waiving party. This Agreement includes all Exhibits and Schedules hereto, and any Order Forms agreed to by the parties in writing. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by SheerID. The terms on any purchase order or similar document submitted by Customer to SheerID will have no effect and are hereby rejected except to the extent incorporated in an Order Form. All notices, consents, and approvals under this Agreement may be delivered in writing by email (with delivery receipt requested), courier, facsimile, or certified or registered mail (postage prepaid and return receipt requested) to the other party at the address set forth on the applicable Order Form.
16. DISPUTE RESOLUTION.
16.1. Good Faith Efforts. Prior to commencing any litigation, the parties agree to engage in good faith efforts to resolve any disputes that arise between them under this Agreement. Such good-faith efforts shall include, but not be limited to, personal participation by a senior executive and/or attorney of each party.
16.2. Governing Law. This Agreement shall be governed by the laws of the State of Oregon, without regard to Oregon conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or enforcement of this Agreement.
16.3. Venue. Each party agrees: (a) to resolve all disputes arising under this Agreement in a court of competent jurisdiction located in Multnomah County, Oregon; (b) that it is subject to personal jurisdiction in Multnomah County, Oregon; (c) to waive all rights to contend that Multnomah County, Oregon, is an inconvenient or improper forum; (d) that service of any suit or legal process in person or by registered mail (or by any other method allowed by law) shall constitute adequate service of process, and to waive all rights that such service of process was inadequate; and (e) to waive any and all defenses or objections to recognition and enforcement of any judgment issued by a court that adjudicates a dispute as set forth herein.
16.4. Attorneys’ Fees. The party that prevails in any dispute litigated under this Agreement shall be entitled to recover from the non-prevailing party (in addition to any other relief awarded or granted) its reasonable attorney’s fees, court costs, and other expenses incurred in the litigation (and in connection with any appeal thereof or the enforcement of any judgment rendered therein).