MASTER SERVICES AGREEMENT
Last updated March 25, 2026
THIS MASTER SERVICES AGREEMENT (this “Agreement”) is made and entered into effective as of the last date of signature to the Order Form referencing this Agreement (the “Effective Date”), by and between J2 Martech Corp., a Delaware corporation (the “Company”), and the customer listed on the signature page of such Order Form (hereafter, the “Customer”). Customer and Company may be referred to herein together as the “Parties”, and each may be referred to individually as a “Party”.
This Agreement contains the terms and conditions upon which the Customer has engaged the Company to provide the Services (as defined herein). This Agreement is applicable to the Customer regardless of the Services selected, as indicated on any applicable Order Form (as defined below), which may be updated by agreement of the Parties, from time to time, in accordance with the terms of this Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and Customer agree as follows:
1. Services.
1.1. Nature of Services. The Company provides certain professional services, including, but not limited to, email deliverability services and email marketing services, as reflected in an applicable Order Form (the “Services”).
1.2. Order Forms. The Company shall provide to the Customer the Services set out in one or more order forms (each, and “Order Form”), agreed by and between the Customer and the Company. Each Order Form shall describe the Services with such reasonable detail as the Parties may determine to be necessary and appropriate, with such details to include (but not be limited to), as applicable: description of Services, expected Deliverables, anticipated timeframes, and associated Fees.
1.3. Third-Party Licenses. The Services may include, incorporate, utilize or work with other software, tools, applications, content, data or other materials, including related documentation, that are owned by persons other than the Company and that are provided to the Customer on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). The Customer agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by the Customer or any of its authorized users of any Third-Party License shall be considered a breach of this Agreement as well. Customer’s access and use of any Third-Party Licenses is at Customer’s own risk and Company disclaims all responsibility and liability for Customer’s use of any Third-Party Licenses.
1.4. Amendments to Order Form.
(a) Either Party may request, in writing, changes to the Services, (a “Change Request”), as further described in Section 1.4(b). Material changes to an Order Form include, but are not limited to, requests for changes in scope, costs, schedule, Deliverables or other similar requirements. The Company shall not be obligated to perform tasks described in any such Change Request unless and until the Parties agree, in writing, to the proposed change. The Parties agree that they shall evaluate any duly served Change Request in good faith, and, if agreed, implement all such changes, and, upon any such agreement and implementation, any Fees which have been agreed to be adjusted shall, thereafter, be so adjusted, in accordance with such written change order.
(b) Any Change Request that a Party wishes to be considered shall be in writing, shall reference this Agreement and any applicable Order Form (if applicable), and shall contain a reasonable and sufficient level of detail to allow the other Party to evaluate the same. The Company may prescribe a written form for purposes of the same, and, if so, each Party agrees to use such form. For the avoidance of doubt, e-mail shall suffice for provision and acceptance of written notice with respect to Change Requests but shall specifically state in the same writing that the request is a “Change Request.”
1.5. Privacy Policy. The Customer acknowledges and agrees that the provision of the Services may require the Customer to provide certain Personal Data about its authorized users. The Customer may also share certain Personal Data about its contacts or customers in connection with the provision of the Services. All information the Company collects or processes through or in connection with the Services is subject to the Company’s Privacy Policy (https://www.emailindustries.com/legal/), as may be updated from time to time, which is incorporated herein by reference. “Personal Data” means all information relating to a person that identifies such person or could reasonably be used to identify such person. This includes any information that is deemed “personal information” or “personal data” as defined by applicable data protection laws.
2. Company Obligations. Promptly following the effective date of an Order Form and in accordance with the terms of this Agreement, the Company shall perform the Services set forth in each Order Form.
3. Customer Obligations.
3.1 Customer Resources and Cooperation. The Customer will, in accordance with any Order Form issued hereunder:
(a) provide the Customer Materials and all such other resources as may be necessary for the Company to provide the Services;
(b) participate in meetings (scheduled with at least two (2) business days advance notice) to review and discuss the Services, Deliverables, and such other matters as may be relevant to this Agreement; and
(c) provide reasonable cooperation and assistance that the Company may reasonably request, to enable the Company to provide the Services and otherwise perform its obligations under this Agreement.
3.2 Customer Delays. This Agreement contemplates that each Order Form may provide estimated start dates, estimated completion dates, and, if applicable, milestone dates for providing Services (and Deliverables, as applicable). As used in this Agreement, a “Customer Delay” means any action or inaction by the Customer or its officers, employees, or agents, that causes the Company to delay providing Services or tendering Deliverables to the Customer or to otherwise deviate from the delivery schedule or completion date set forth in an Order Form. In the event of any Customer Delay or failure by the Customer to comply with Section 3.1 above, the Company may, by written notice to the Customer, suspend the Services until it receives the information, materials, or appropriate access reasonably required for it to continue with the Services. The Customer acknowledges and agrees that Customer Delays may result in additional costs and expenses for the Company, and that the Customer shall be responsible for the payment of all such additional costs and expenses that result from Customer Delays.
3.3 Compliance and Security. The Customer acknowledges and agrees that it will comply with all applicable laws, regulations, rules, orders, and other requirements related to the Services and its obligations under this Agreement. The Customer shall take all precautions to ensure the use of data or software related to the Services are not used in breach of any laws or intentionally used to transmit or disseminate viruses or other harmful programs or features.
3.4 Customer Materials.
(a) In the course of providing Services, the Customer may provide data, documents, e-mails, contact lists, access to certain servers, platforms, software, and systems, information, files, reports or other proprietary information (the “Customer Materials”), that may be utilized by the Company in the course of providing Services. As between the Parties, the Customer is and will remain, the sole and exclusive owner of all right, title, and interest in and to the Customer Materials, including all Intellectual Property Rights therein, subject only to the license granted under Section 3.4(b). All other rights in and to the Customer Materials are expressly reserved by the Customer.
(b) To the extent that the Services require the Company to access or use any third party Customer Materials provided by the Customer, the Customer represents and warrants that it shall have all rights and licenses of such third parties necessary or appropriate for the Company to access or use such third party Customer Materials and agrees to produce evidence of such rights and licenses upon the reasonable request of the Company and to indemnify, defend and hold harmless the Company from and against any claims, actions, demands, lawsuits, damages, liabilities, settlements, penalties, fines, costs and expenses (including reasonable attorneys’ fees) arising from the Company’s access to or use of such third party Customer Materials.
(c) The Customer hereby grants to the Company a fully paid-up and royalty-free, non-exclusive right and license to use, reproduce, perform, display, distribute, modify, and create derivative works and improvements of the Customer Materials solely to develop the Deliverables and otherwise as necessary to perform the Services for the exclusive benefit of the Customer. The term of such license will commence upon the Customer’s first delivery of Customer Materials to the Company, and shall expire automatically upon the earlier of (i) termination of this Agreement; or (ii) completion of the Order Form that require the Company to utilize Customer Materials.
4. Fees and Expenses.
4.1 Fees. The Customer will compensate the Company for the Services at the agreed rate(s), and on the terms and conditions of payment provided on the applicable Order Form (the “Fees”).
4.2 Reimbursement of Expenses. The Customer shall reimburse the Company for all reasonable expenses incurred in performing Services hereunder (each, a “Reimbursement”) within fifteen (15) days of receipt by the Customer of an invoice from the Company or as otherwise agreed upon by the Company. The Company agrees to obtain approval from the Customer, in advance, before incurring expenses on the Customer’s behalf.
4.3 Taxes. The Customer shall be responsible for all sales, use, VAT, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any national, federal, state, provincial, or local governmental entity on any amounts payable by the Customer hereunder; provided, that, in no event shall the Customer pay or be responsible for any taxes imposed on, or with respect to, the Company’s income, revenues, gross receipts, personnel or real or personal property or other assets. In connection with this Section 4.3, the Customer expressly represents and warrants that its principal business address is the address shown on the Order Form, unless such address has been changed, by prior notice to the Company.
4.4 Payment Disputes. The Customer agrees to notify the Company within fifteen (15) days after receipt of an invoice (the “Dispute Period”) if it believes, in good faith, that there is a discrepancy in the amount of Fees or any other amounts invoiced by the Company. The Parties will endeavor in good faith to resolve any dispute within fifteen (15) days of the date of notice of such dispute. The Customer agrees that it will pay all amounts not subject to the dispute hereunder. If the Customer does not provide the Company with notice of dispute during the Dispute Period, all Fees and other amounts shall be deemed accepted by the Customer.
4.5 Order Form Payments; Invoicing. Timing for the Customer’s payment of Fees will be set forth in the applicable Order Form (the “Payment Terms”). The Company shall invoice the Customer for Fees in accordance with the Payment Terms set forth in an applicable Order Form. The Customer shall pay all invoices within fifteen (15) days of the invoice date.
4.6 Payment Procedures. The Customer will make all payments hereunder in US Dollars ($) via Credit Card or ACH Bank Transfer, or other such method that may be specified by the Company from time to time. The Customer will make payments to the address or account specified in the applicable Order Form, or such other address or account as is specified by the Company, in writing, from time to time.
4.7 Late Payments. All late payments shall bear interest at the lesser of the rate of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law (not to exceed sixteen percent (16.0%) per annum under any circumstance), calculated daily and compounded monthly. The Customer shall also reimburse the Company for all reasonable costs incurred in collecting any late payments, including, without limitation, collection costs and attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which the Company does not waive by the exercise of any rights hereunder), the Company shall be entitled to suspend the provision of any Services if the Customer fails to pay any undisputed amounts when due hereunder, and such failure continues for fifteen (15) days. The Company will give five (5) days prior written notice to the Customer prior to suspending the Services for late payment.
5. Limited Warranty and Limitation of Liability.
5.1 Limited Warranty. The Company warrants that it shall perform the Services
(a) using personnel of industry standard skill, experience and qualifications
(b) in a workmanlike and professional manner in accordance with generally recognized industry standards for similar services; an
(d) in compliance with all applicable laws and relevant statutory requirements.
5.2 Exclusive Remedies for Breach of Warranties. The Company’s sole and exclusive liability and the Customer’s sole and exclusive remedy for breach of this warranty shall be as follows:
(a) The Company shall use reasonable commercial efforts to promptly cure any such breach; provided, that if the Company cannot cure such breach within a reasonable time (but no more than thirty (30) days) after the Customer’s written notice of such breach, the Customer may, at its option, terminate the Agreement by serving written notice of termination in accordance with Section 9.3.
(b) In the event that this Agreement is terminated pursuant to this Section 5.2, the Company shall, within thirty (30) days after the effective date of termination, refund to the Customer any Fees paid by the Customer for Services not yet provided or Deliverables (as defined below) not yet delivered to the Customer up to and including the date of termination on a pro-rated basis.
(c) The foregoing remedy shall not be available unless the Customer provides written notice of such breach within thirty (30) days after delivery of such Service or Deliverable to the Customer.
5.3 No Other Warranties.
(a) OTHER THAN AS PROVIDED IN SECTION 5.1, THE COMPANY MAKES NO OTHER WARRANTIES. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR NONINFRINGMENT, ARE EXPRESSLY DISCLAIMED, AND THE SAME SHALL BE CONSIDERED AS DELIVERED “AS IS” AND “WHERE IS”.
(b) IN ADDITION TO, AND IN NO WAY LIMITING THE FOREGOING, THE COMPANY MAKES NO GUARANTEES OF SUCCESS RELATED TO THE GOALS OF THE CLIENT IN CONTRACTING FOR PROVISION OF THE SERVICES, IN ANY MANNER. FAILURE TO ACHIEVE STATED GOALS OF THE CUSTOMER, WHETHER RECITED IN AN ORDER FORM, OR OTHERWISE, SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT BY THE COMPANY, IN ANY RESPECT, AND NO REFUND OF ANY FEES WHICH ARE PAID, OR DUE AND PAYABLE, SHALL BE MADE IN ANY SUCH EVENT.
5.4 Limitations of Liability
(a) IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO THE COMPANY PURSUANT TO THE APPLICABLE ORDER FORM FOR THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
6. Intellectual Property.
6.1 Company Intellectual Property Rights. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) that are owned by the Company shall always remain the exclusive property of the Company (or of its suppliers or licensors, if and when applicable). Nothing in this Agreement grants the Customer a license to the Company’s Intellectual Property Rights.
6.2 Customer Intellectual Property Rights. All Intellectual Property Rights in and to the Customer Materials shall always remain the exclusive property of the Customer (or its suppliers or licensors, if and when applicable). Nothing in this Agreement grants the Company a license to the Customer’s Intellectual Property Rights.
6.3 Deliverables. All Intellectual Property Rights in and to documents, final work products and other materials that are delivered to the Customer under this Agreement, as identified in an Order Form (collectively, the “Deliverables”) shall be owned by the Customer; provided, however, the Customer agrees that the Company may produce similar deliverables for other customers using proprietary templates, workflow, and processes developed by the Company, all of which shall remain the intellectual property of the Company. Intellectual Property Rights to all other items not identified as Deliverables in an Order Form shall be owned by the Company; provided, however, the Company shall not incorporate any of the Customer Materials into its intellectual property.
6.4 Derivative Works. Notwithstanding anything to the contrary in this Section 6, to the extent that any Deliverables or the results of any Services by the Company are additions, amendments, enhancements, modifications, or other changes to any intellectual property owned or otherwise provided by the Company (the “Derivative Works”), all of the right, title, and interest to the Intellectual Property Rights to such Derivative Works shall remain solely and exclusively with the Company.
6.5 Residuals. Notwithstanding any other provision in this Agreement, the Customer understands, acknowledges and agrees that the Company shall have the right to retain, use and disclose, without accounting to the Customer, any Residual Knowledge obtained by the Company in the performance of Services hereunder. “Residual Knowledge” shall mean and include information, other than the Confidential Information of the Customer, of the type that applicable law would permit an employee or other affiliate of the Company to retain and use in subsequent employment or engagement with a third party. This exception to the obligations of confidentiality and non-use is intended only to alleviate the possibility of inadvertent breach of this Agreement arising from routine, unaided memory retention by employees or other affiliates of the Company and is not intended to permit the Company to use or disclose information known to the Company to be Deliverables or Confidential Information subject to this Agreement.
6.6 Feedback. If the Customer provides the Company with any feedback or suggestions about the Services or the Company’s business operations (the “Feedback”), the Company may use the Feedback without obligation to the Customer, and the Customer irrevocably assigns to the Company all right, title, and interest in and to the Feedback. This Agreement is not a sale and does not give the Customer any rights of ownership in, or related to, the Services or the Company’s Intellectual Property Rights.
7. Confidentiality.
7.1 Confidential Information and Non-Disclosure. From time to time during the MSA Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public proprietary and confidential information of the Disclosing Party that is either marked as confidential or proprietary or that, given the nature of the information or the circumstances of the disclosure, reasonably ought to be considered to be confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in the Receiving Party’s possession prior to the Disclosing Party's disclosure hereunder; or (d) was or is independently developed by the Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
7.2 Required Disclosure. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party of such requirements to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy.
7.3 Publicity. Notwithstanding anything in this Section 7 to the contrary, the Customer grants the Company the limited right to use the Customer’s name and logo, as well publish a brief description highlighting the Customer’s use of the Services and identifying the Customer as the Company’s customer, on any of the Company’s websites, client lists, press releases, and/or other promotional, informational, or marketing materials.
8. Relationship.
8.1 Relationship of the Parties. Neither Party shall have, nor shall represent that it has, any power, right or authority to bind the other Party, or to assume or create any obligation or responsibility, express or implied, on behalf of the other Party or in the other Party’s name, except as herein expressly provided. Nothing stated in this Agreement shall be construed as constituting the Parties hereto as partners or as creating the relationships of employer / employee, franchisor / franchisee, or principal / agent between the parties. The Company is performing services for the Customer as an independent contractor. Neither Party can bind the other to any agreement with any third party.
8.2 No Exclusive Duty. The Company shall not be required to participate in the provision of Services to the Customer hereunder as its sole and exclusive function, and the Customer understands and acknowledges that the Company may have other business interests and may engage in other activities, in addition to those relating to the Customer, including the provision of the same or similar services to other customers and clients of the Company. The Customer further understands and acknowledges that some such persons may otherwise be considered competitors of the Customer, and such fact shall not alter the foregoing presumption and permission; provided that, the Company is otherwise abiding by its obligations hereunder (including its obligations of confidentiality).
8.3 Third-Party Service Providers. The Company may fulfill its obligation to provide Services hereunder through the assignment and use of one or more subcontractors (each, a “Subcontractor”). To the extent that the Company uses any Subcontractor to perform any portion of the Services hereunder, it shall remain fully responsible and liable for all actions of such Subcontractor and use of the same shall not relieve the Company of any of its obligations under this Agreement. The Company is under no obligation to notify the Customer prior to its assignment or use of Subcontractors. In addition to the foregoing, in the case of any use of Subcontractors by the Company, the Company shall ensure that any such Subcontractor is under contractual obligations with respect to the handling of the Customer’s Confidential Information that are at least as stringent as those obligations of the Company hereunder.
9. Term, Termination and Survival.
9.1 MSA Term. This Agreement shall commence as of the Effective Date and will remain in effect until the later of (i) the date this Agreement is terminated pursuant to Sections 9.3 or 9.4, or (ii) six months after the completion or expiration of all the Order Forms issued hereunder (the “MSA Term”). In the event that this Agreement is terminated, but the Company is still providing Services pursuant to an Order Form, then the terms of this Agreement shall apply to the Parties until the completion or termination of the corresponding Order Form.
9.2 Order Form Term. Each individual Order Form shall commence on the Services Start Date (the “Services Start Date”) reflected therein and will continue for the duration of the Services Term (the “Services Term”) and may, as set forth in such Order Form, be renewed for subsequent periods or until terminated pursuant to this Section 9 or as permitted under such Order Form.
9.3 Termination by Either Party. Either Party may terminate this Agreement or an Order Form, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party
(a) Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; or
(b) Becomes insolvent or admits its inability to pay its debts generally as they become due; or
(c) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) days or is not dismissed or vacated within forty-five (45) days after filing; or
(d) Is dissolved or liquidated or takes any corporate action for such purpose; or
(e) Makes a general assignment for the benefit of creditors; or
(f) Has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.4 Termination by Company. The Company may terminate this Agreement or an Order Form, upon written notice if the Customer fails to pay any amount when due hereunder: (a) and such failure continues for ten (10) days after the Customer’s receipt of written notice of nonpayment; or (b) more than two (2) times in any rolling twelve (12) month period.
9.5 Effect of Termination. The rights and obligations of the parties set forth in this Section 9, and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement. In the event of termination, the Customer shall be responsible for, and shall promptly pay, all Fees for Services provided by the Company through the date of termination.
10. Indemnification. The Customer (the “Indemnifying Party”) shall indemnify, defend and hold harmless the Company and its and their respective representatives, officers, directors, employees, agents, affiliates, successors and assigns (collectively, the “Indemnified Parties”) 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, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by the Indemnified Party (collectively, “Losses”), to the extent arising out of or resulting from any claim of a third party alleging: (a) any grossly negligent or more culpable act or omission of the Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (b) any infringement of the Intellectual Property Rights of any third-party by the Indemnifying Party; or (c) any failure by the Indemnifying Party or its personnel to comply with applicable laws, including data privacy laws and regulations.
11. Miscellaneous.
11.1 Entire Agreement. This Agreement, including and together with any related Order Forms, exhibits, schedules, attachments and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Agreement and the terms and conditions of any Order Form, the terms and conditions of the Order Form shall control.
11.2 Notices. All notices, requests, consents, claims, demands, waivers and other communications to the Company or the Customer hereunder shall be in writing to the respective address of each Party and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by an internationally recognized courier (with tracking confirmation); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient. The Company or the Customer may change its address from time to time by giving written notice to the other Party. The address of the Company and the Customer are set forth on the signature page hereto.
11.3 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
11.4 Amendments. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each Party.
11.5 Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
11.6 Assignment. The Customer shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section 11.6 shall be null and void. No assignment or delegation shall relieve the Customer of any of its obligations under this Agreement. The Company may assign any of its rights or delegate any of its obligations to any affiliate or to any person acquiring all or substantially all of the Company’s assets without the Customer’s consent.
11.7 Successors and Assigns. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.8 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.9 Dispute Resolution. CUSTOMER AND COMPANY AGREE THAT ALL DISPUTES AND CLAIMS BETWEEN CUSTOMER AND COMPANY SHALL BE SETTLED BY BINDING ARBITRATION INSTEAD OF IN COURTS OF GENERAL JURISDICTION. THIS AGREEMENT TO ARBITRATE IS INTENDED TO BE BROADLY INTERPRETED AND INCLUDES, BUT IS NOT LIMITED TO, ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, COMPANY’S WEBSITE, THE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN CUSTOMER AND COMPANY. CUSTOMER AGREES THAT, BY AGREEING TO THE AGREEMENT, THE U.S. FEDERAL ARBITRATION ACT GOVERNS THE INTERPRETATION AND ENFORCEMENT OF THIS PROVISION, AND THAT CUSTOMER AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. NOTWITHSTANDING THE FOREGOING, EITHER PARTY MAY BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT. THIS ARBITRATION PROVISION DOES NOT PRECLUDE CUSTOMER FROM BRINGING ISSUES TO THE ATTENTION OF FEDERAL, STATE, OR LOCAL AGENCIES. SUCH AGENCIES CAN, IF THE LAW ALLOWS, SEEK RELIEF AGAINST COMPANY ON YOUR BEHALF. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THESE TERMS AND THE TERMINATION OF YOUR ACCOUNT.
A Party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Company should be addressed to: The Inbox Co., ATTN: Legal Department, 360 Park Ave. S., 17th Floor, New York, NY 10010, USA (“Notice Address”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If Customer and Company do not reach an agreement to resolve the claim within 30 days after the Notice is received, Customer or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Company are entitled.
The Customer acknowledges and agrees that any controversy or claim arising out of, or in any way related to, this Agreement, will be settled exclusively by binding arbitration in New York City, New York, before a single, neutral arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the Parties, except that such arbitrator shall be an attorney admitted to practice law in New York. By agreeing to this Agreement, the Parties agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that the Parties are each waiving a right to a trial by jury or to participate in a class action. No Party to this Agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent either Party from obtaining an injunction.
11.10 Equitable Relief. The Customer acknowledges and agrees a breach of Section 7 (Confidentiality) of this Agreement would cause the Company irreparable harm for which money damages alone would be inadequate. In addition to damages and any other remedies to which the Company may be entitled, the Customer acknowledges and agrees that the Company may, seek injunctive relief to prevent the actual, threatened or continued breach of Section 7. Claims by the Company for injunctive relief or other equitable relief may be filed in the state or federal courts of New York (or any other jurisdiction selected by the Company for such action) for an order effective until the conclusion of arbitration and enforcement of the arbitration award, and such claims may be filed without a good faith attempt to resolve the issues underlying such claims.
11.11 Choice of Law. This Agreement, including all cover pages, exhibits, schedules, attachments and appendices attached to this Agreement, and all matters arising out of or relating to this Agreement, including any applicable Order Form, is governed by, and is to be construed in accordance with the internal laws of the State of New York, USA without regard for its conflict of laws principles.
11.12 Counterparts; Electronic Signature. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
11.13 Force Majeure
(a) In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, public health emergencies, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, regulations or actions to the contrary of the purposes of this Agreement; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (viii) shortage of adequate power or transportation facilities.
(b) In the event of any failure or delay caused by a Force Majeure Event, the affected Party shall give prompt notice to the other Party, stating the period of time the occurrence is expected to continue and use diligent efforts to end the failure or delay and minimize the effects of such Force Majeure Event. Either Party may terminate this Agreement, by notice and without further liability to either Party, if a Force Majeure Event affecting the other Party continues, substantially uninterrupted, for a period of thirty (30) days or more.