These “Terms and Conditions” are provided under the Master Services Agreement between Strike Exchange, L.L.C. and the “Company” identified therein as a Party thereto (the “Agreement”); the defined terms of the Agreement are incorporated by reference. These “Terms and Conditions” shall govern the rights and obligations of the Parties relating to the Software under the Agreement.
“Company Data” means the non-public data that Company imports into the Software to create the Projects.
“Fees” means the Setup Fee, the Access Fee, the Managed Fee, and any other fees/charges owed by Company to Strike under the Agreement.
“Project Data” means the data generated from the Project through the Access-Service (defined below). Project Data does not include Company Data or Strike Data (defined below).
“Services” means the services and functionality provided by the Software, the Access-Service, any Managed-Service, and any other services Strike provides to Company under the Agreement.
“Strike Data” means all data residing in the Software that does not otherwise constitute Company Data or Project Data.
Right to services. During the Term, subject to the Agreement, and provided Company is current on the payment to Strike of all Fees for the Services, Strike grants Company a non-exclusive, non-transferable right and opportunity to utilize the Access-Service and receive the Managed-Service. On Company’s behalf (and for any third party on whose behalf Company is acting), Company will obtain and maintain throughout the Term (and hereby grants to Strike) all rights and permissions needed by Strike for storing, tracking, analyzing, and servicing the Company Data and Project Data.
Account of Company. Company is solely responsible to DBM for all financial obligations under and/or relating to the Account.
Intellectual Property. The Software is the proprietary and intellectual property of Strike. The Company neither has nor acquires any license or ownership right, whatsoever, in and/or to the Software.
Reporting. Through the Access-Service, Company will have access to reporting relating to the Projects (“Reporting”). Reporting is provided for and conditioned upon the limited internal use of Company and Company’s clients.
Prohibited Content. Company will not use the Software in connection with any Projects, advertising, or other digital content that are obscene, pornographic, or that depict illegal activity, violate any law/regulation/third-party right (including intellectual property and privacy rights), are deceptive, or are defamatory. Company’s right to access and utilize the Software and receive the Services shall automatically terminate if Company violates any portion of the foregoing provision.
Other Prohibitions. Company will use the Services only for Company’s own use or on behalf of a client with which Company has a direct affiliation or contractual relationship. Company shall be prohibited from and shall not in any manner whatsoever or by any means:
If Strike, in Strike’s sole discretion and absolute judgment, determines that Company has violated/breached any of the foregoing obligations/prohibitions, Strike may immediately suspend Company’s Login Access and/or terminate the Agreement; in the event of any such violation/breach by Company that results in a termination or suspension of Strike’s ability to conduct business with DBM, without limiting any rights or remedies available to Strike, and notwithstanding any other provision in the Agreement to the contrary, Company shall be liable to Strike for all lost profits resulting from termination or suspension from DBM, which shall be added to the invoice(s) from Strike to Company for the Fees.
"Beta" Features and Testing. During the Term, Strike may offer to Company the right to use certain experimental and/developmental features in the Software that are made available to Company by Strike on a test basis (“Beta Features”). All Beta Features are provided on an “as is” basis, without any representations, warranties, covenants, or obligations of any kind. Any use by Company of Beta Features is solely at Company’s own risk. Strike may add, modify, or remove any Beta Features at any time, for any reason, in the sole discretion and absolute judgment of Strike, without advance notice to Company.
Service Levels. The obligations of Strike to provide the Access-Service shall at all times be subject to the underlying availability of DBM and the Account; if, when, and while DBM or the Account are unavailable through the Software or otherwise inhibit the functionality of the Software, Strike shall be relieved from any and all obligations to provide the Services; otherwise Strike shall provide the Services in a commercially-reasonable manner; Strike is not liable for any outages or downtime of the Software or unavailability of the Services as a result thereof.
Ongoing Development. Strike reserves the right to continually develop, evolve, and maintain the Software and the Services without a requirement of advance notice to Company. In the event Strike chooses to discontinue the general availability of the Software, Strike will provide Company with prior written notice of thirty (30) days.
PAYMENT OF INVOICES FOR FEES
Invoices. At the end of each calendar month, Strike will provide Company one or more invoices for the Fees for the Services provided during said calendar month (the “Invoice(s)”). Company will remit payments, in full, for the balances shown in the Invoices, within the payment terms set forth in the Agreement, in the currencies identified thereon, and in accordance with the remittance instructions set forth thereon. If any Invoice is not paid, in full, within the payment terms, Strike reserves the right and discretion to:
All payments due under the Agreement shall be made without setoff or deduction, including for or on account of any present or future tax, assessment, or other governmental charge imposed upon such payment by any state, country, political subdivision or taxing authority thereof or therein (“Taxes”). The payment obligations of Company for Invoices shall survive the expiration or termination of the Agreement for the Fees for any Services provided prior thereto.
Company Data. As between Strike and Company, Company owns all right, title, and interest in all Company Data; however, Strike may use the Company Data to provide the Services to Company.
Project Data. As between Strike and Company, Company owns all right, title, and interest in and to all Project Data; however, Company hereby grants Strike a non-exclusive, perpetual, fully-paid-up right and license to store, analyze, and use the Project Data, in a macro, anonymous, and generic manner, for the purposes of optimizing the performance of, and for aggregated and analyzed reporting about any/all of, the projects utilizing the Software.
Strike Data. As between Strike and Company, Strike owns all right, title, and interest in all Strike Data. Aside from the rights expressly granted under the Agreement with regard to the Company Data, Project Data, and/or Strike Data, neither Party grants the other Party any other right, express or implied, and each Party reserves all rights not expressly granted hereunder.
Feedback. Any suggestions, comments, improvements, ideas, enhancement requests, or feedback provided by Company, which in any manner whatsoever relate to the Software or Services “(Feedback”), may be used by Strike without compensation, accounting, or attribution to Company, and Company grants a perpetual, irrevocable, fully-paid-up right and license to the Feedback to Strike.
Termination. Unless expressly provided otherwise in the Agreement, either Company or Strike may terminate the Agreement with written notice to the other Party, which notice shall be effective at the end of the calendar month following the calendar month during which said notice was given.
Confidentiality. “Confidential Information” means any information relating to or disclosed in the course of the Agreement, which is or should be reasonably understood to be confidential. The terms of the Agreement are the Confidential Information of each Party (not to be disclosed by a Party without the written consent of the other Party). Company Data is also Confidential Information. The receiving Party will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only for the purpose of fulfilling said Party’s obligations under the Agreement. The receiving Party will promptly return or destroy the other Party’s Confidential Information upon request of the other Party. “Confidential Information” does not include information that is or becomes part of the public domain through no fault of the receiving Party, was already in possession of the receiving Party, or was independently developed by the receiving Party without violation of this section. The receiving Party may disclose Confidential Information if required to do so by law, if the receiving Party provides the disclosing Party with prompt notice and complies with any protective order imposed on such disclosure.
Public Statements. Neither Party will make any public statement relating to the Agreement without the prior written approval of the other Party, except that Strike may include Company’s name and logo in Strike’s marketing, promotional materials, and customer lists.
Relationship of the Parties. In performing the obligations under the Agreement, Strike is acting as an independent contractor to Company; the relationship of the Company and Strike is not a joint venture, partnership, or principal-agent relationship.
Notices. Any notice or communication given under the Agreement must be in writing and shall be effective only if delivered personally, or sent by email transmission, or delivered by overnight courier service to the recipient at the address set forth in the Agreement or to such other address as the Party being notified may have previously furnished to the other Party by written notice in accordance with this section. Notices or communications given under the Agreement shall be effective and deemed received on the date of personal delivery, or the date of email transmission as evidenced by the transmission confirmation, or on the day after sending by overnight courier service as evidenced by the signature of the Party or representative of Party.
No Third-Party Beneficiaries. The Agreement has been entered into for the sole and respective benefit of Strike and Company; in no event will any third-party benefits or obligations be created by the Agreement.
Force Majeure. Neither Party shall be liable to the other Party for any delay or failure in performance hereunder, due to a force majeure event that is beyond the reasonable control of the Party unable to perform. If a force majeure event occurs, the Party delayed or unable to perform shall give immediate written notice to the other Party; the other Party may, by written notice, terminate the affected Project if a force majeure event remains in effect for more than thirty (30) days. For purposes of the Agreement, a force majeure event means acts of God, wars, riots, terrorism, civil insurrections, and abnormal forces of nature (including, without limitation, lightning, earthquake, fire, storm, hurricane, tornado, flood, washout, and explosion), failure of underlying platform (i.e. DBM), governmental preemption, legal proceedings, strikes, or labor unrest.
Severability. If any of the provisions of the Agreement is determined illegal, unenforceable, or invalid (in whole or in part) by a court of competent jurisdiction, the remaining provisions of the Agreement shall remain in full force and effect without being impaired or invalidated in any way.
Survival of Provisions. The following provisions shall survive any expiration or termination of the Agreement:
Representations and Warranties. Each Party represents and warrants that: (i) said Party has the full power and authority to enter into the Agreement; (ii) said Party’s execution of and performance under the Agreement does not and will not breach or cause a default under any other agreement, contract, or joint venture agreement to which it is a Party; and (iii) said Party’s performance hereunder will fully comply with all applicable laws, including but not limited to online privacy or otherwise. Company represents and warrants that Company has the right to exploit, publish, manufacture, distribute, promote, advertise, and market the content of the Project(s) and has obtained all required consents associated therewith. Company acknowledges that Strike shall not liable for and/or as a result of errors made by Company in entering Company Data relating to the Access-Service.
Indemnification. Company shall indemnify and hold Strike harmless from any and all liability to any third party for Strike’s use of the Company Data in providing the Services and shall indemnify and hold Strike harmless from any and all losses, costs, and expenses (including but not limited to reasonable legal fees) arising out of any breach of the representations and warranties made by the Company under the Agreement.
Governing Law. The Agreement will be governed by the laws of the State of Illinois (without regard to its conflict of law principles). Each of the Parties agrees that the venue for any dispute arising under the Agreement shall be exclusively in the courts of Cook County, Illinois; each of the Parties hereby irrevocably consent to jurisdiction and venue in such courts and waive any objection based on inconvenient forum.
Disclaimers. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THE AGREEMENT, THE SERVICES ARE PROVIDED BY STRIKE “AS IS” AND “AS AVAILABLE” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY LAW. STRIKE MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE BENEFITS TO COMPANY FROM THE SOFTWARE OR SERVICES OR THAT THE SOFTWARE WILL BE ERROR-FREE, ALWAYS AVAILABLE, OPERATE WITHOUT LOSS OR CORRUPTION OF DATA, OR BE FREE FROM TECHNICAL MALFUNCTION.
Limitation of Remedies. In no event shall either Party be liable to the other Party, or any third party, for indirect, special, incidental, consequential, punitive, and/or exemplary damages, loss of profits, loss of use or data, or interruption of business, whether such damages or losses are alleged in tort, contract, or indemnity. Strike’s maximum liability for any and all claims arising directly or indirectly from the Services shall not under any condition in the aggregate exceed the Fees relating to the Project(s) in question.