This Signal Master Subscription Agreement (“Agreement”) governs Client’s use of all Signal Solutions and the Signal Identity Platform (“Platform”). By executing an Order Form that references this Agreement, Client agrees to all terms of this Agreement. This Agreement is effective between Signal and Client as of the date of Client accepting this Agreement, which, if applicable, will be listed on the Order Form. To the extent there is any conflict or inconsistency between the terms of an Order Form and other terms of this Agreement, the terms of the Order Form will control solely with respect to such conflict or inconsistency.
1. The Signal Solutions
Unless otherwise provided in the applicable Order Form, (a) Signal Solutions are purchased as subscriptions for the term stated in the applicable Order Form, and (b) subscriptions for additional Signal Solutions may be added with new Order Forms which will reference this Agreement and the prior existing Order Form.
2. Defined Terms
Unless otherwise defined in this Agreement, the following definitions shall apply to the terms of this Agreement:
Signal Technologythe Platform, Signal Solutions, Signal Code, the Signal Identity Network, the software supporting the Platform, Signal Data, or any data Signal associates with Client Data and other identifiers collected via the Platform, and any other software, materials, or technology created by Signal that are incorporated in or made available in connection with this Agreement, and/or relevant Order Form(s).
|Applicable Guidelines:||all applicable standards or guidelines promulgated by self-regulatory groups to which a party to this Agreement belongs.|
|Applicable Law:||all applicable laws, rules, and regulations, and judicial, regulatory, and administrative orders governing a party’s performance under this Agreement.|
|Applicable Privacy Laws:||all Applicable Laws and/or Applicable Guidelines relating to the collection, use, or dissemination of information from or about individuals otherwise relating to data protection and privacy, including EU Data Protection Law where applicable to a party.|
|Client Data:||Client IDs and any other data provided by Client Data Sources.|
|Client Data Sources:||Client data including hashed email addresses, Device IDs and other identifiers or data which are provided from Client Data Sources or licensed to Client directly.|
|Client Data Sources||websites and mobile websites, mobile applications, ad impressions, email campaigns, and CRM systems controlled or operated by Client.|
|Client IDs:||hashed email addresses, Device IDs and other identifiers which are collected from Client Data Sources or licensed to Client directly.|
|Cookie:||a file placed on a web browser that stores information relating to a user.|
|Audience:||a Client-defined group of customers, who exhibit one or more characteristics, as selected by Client, that are used for marketing activities.|
|Device ID(s):||a number or other descriptor stored by a web browser, mobile phone or other device that uniquely identifies that device.|
|EU Data Protection Law:||all applicable EU data protection and privacy laws, including (i) prior to 25 May 2018, the EU Data Protection Directive 95/46/EC and, on and after 25 May 2018, the General Data Protection Regulation 2016/679; (ii) the Privacy and Electronic Communications Directive 2002/58/EC; and (iii) any other European Union or EU Member State laws made under or pursuant to (i) and (ii); in each case as such laws may be amended or superseded from time to time.|
|Personally Identifiable User Data:||any Client Data that can be used to specifically identify an individual, including without limitation, an individual’s person’s name, email address, telephone number, individual taxpayer information number, financial account information, payment card data, driver’s license number, passport number, government-issued identification number, and personal health information, (it being understood that information that has been de-identified or hashed using an industry standard process will not be considered Personally Identifiable User Data).|
|Signal Code||Sa proprietary HTML element, script function, integration library file, ad pixel, application programming interface, application SDK, or interactive user interface used to power the Platform for data collection and integration with Destinations.|
|Tracking Technologies||Cookies, SDKs, unique identifiers, tags, web beacons, pixels and/or similar tracking technologies.|
3. Platform Services as applicable
3.1 Access and Use of the Platform
a) Client will set up a separate user login for each person who will access the Platform and/or is otherwise authorized to make configuration decisions for the Client (“Authorized Users”). Authorized Users must be employees of Client or an independent contractor approved by Signal.
b) Client must notify Signal immediately by emailing firstname.lastname@example.org of any unauthorized use of Client’s user logins. Client will designate one or more Authorized Users as (“Administrative Users”) who have the authority to establish and revoke additional Authorized Users, take certain supervisory configuration actions within the Platform, and are the primary support contacts with Signal. Client will provide Signal with all necessary contact information for Administrative Users at the time such Administrative Users are designated and will immediately notify Signal of any changes, including adding/removing Authorized Users or Administrative Users as necessary, including upon termination of any Authorized User or Administrative User, and updating contact information.
c) Client authorizes Signal to access the Platform on Client’s behalf in accordance with the directions of Administrative Users and Authorized Users, and to otherwise support the Client’s use of the Platform and Signal Solutions.
d) Client is fully and solely responsible and liable for all configuration selections, including but not limited to deciding which Client Data, Device IDs, Client Data Sources, Destinations, Signal Code, or Audiences to use in its configurations, by or on behalf of Administrative Users and Authorized Users, including actions taken by Signal at the direction of an Administrative User or Authorized User and determining and tracking the deployment of Signal Code on Client Data Sources. Signal makes no representations, warranties, guarantees, or indemnification obligations regarding such configuration selections. As applicable, Client will configure the Platform to: (i) collect Client Data on Client Data Sources and/or select which Client Data to use on the Platform; (ii) place Signal Code as required on applicable Client Data Sources; (iii) store and retrieve certain Client Data or Signal Data; and (iv) distribute Client Data to Destinations.
e) Client acknowledges that Signal is not responsible for the accuracy, lawfulness, or appropriateness of any Client Data, Device IDs, Client Data Sources, or Audiences. Signal is not responsible for any acts or omissions on the part of any Destination.
(f) Client is solely responsible for deciding which tags and other Tracking Technologies to deploy on Client Data Sources, which types of Client Data are collected by such Tracking Technologies, monitoring the third parties to or through which Client Data is distributed, and any other instructions given to Signal.
g) Unless otherwise agreed to, prior to providing any Client Data to Signal, Client will de-identify the data as applicable.
h) Nothing about Client’s relationship with Signal or Client’s use of the Platform alters Client’s relationship with Client’s third-party vendors.
3.2 Platform Support
Platform Set up and Implementation and Technical and Account Support Services
Client will provide to Signal all requested information upon agreed upon format and time period, in order for Signal to provide Client-selected Signal Solution. If applicable, Signal will assist Client in deploying the Signal Code across Client Data Sources to collect Client Data with the Platform. During the term of this Agreement, Client will have access to the Signal Customer Success team for email support during normal business hours. Client will also have access to the Signal online support center. If Client would like Signal to provide additional account management or other services with respect to the Signal Solutions, such additional services will be described in a separate Order Form.
3.3 Platform Service and Security Levels
Signal will make the Platform available to Client in accordance with the Service Levels set forth in Exhibit A to this Agreement. Signal will maintain Platform security as defined in Exhibit B of this Agreement.
3.4 Removal of Client Data
If Client receives notice that Client Data must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, Client will promptly do so. If Client does not take required action in accordance with the above, Signal may remove the applicable Client Data.
3.5 Non-Signal Products and Services
The Signal Solutions may contain features designed to integrate with non-Signal Applications such as Destinations. Signal cannot guarantee the continued availability of such Destinations and may cease providing them without entitling Client to any refund, credit, or other compensation.
4. Fees and Payment
4.1 Fees for Access to and Use of the Signal Subscription
Client agrees to pay all fees and charges attributable to the applicable Order Form(s). All fees and costs will begin incurring as of the Effective Date of the Order Form(s) unless otherwise agreed to by Signal in writing. Additionally, all fees and costs set forth on the applicable Order Form(s) will be invoiced monthly in arrears and due, in full, within thirty (30) days of date of invoice. All fees due hereunder shall survive expiration or termination of this Agreement and/or any Order Form. Fees may be increased after the Subscription Initial Term.
4.2 Late Payments; Taxes
If Client does not pay undisputed fees when due, Signal may charge Client a late fee at the rate of 1.5% per month (or if lower, the maximum rate allowed by law). If Client does not pay undisputed fees within fifteen (15) business days after the payment due date, after providing written notice to Client, Signal reserves the right to either terminate this Agreement or to suspend Client’s access to or usage of the Signal Solutions. Suspension or Termination of access to or usage of the Signal Solutions shall not relieve Client of its obligation to pay all outstanding fees and charges. In the event Signal incurs expenses related to the collection of any outstanding balance or fees, Client shall pay reasonable expenses associated with said collection, including attorneys’ fees and collection agency fees and costs.
Unless otherwise agreed, fees do not include taxes. Client is responsible for the payment of any federal, state or local sales, use, value added, excise, duty, and any other taxes assessed, other than taxes based on Signal’s net income. Each party will pay all federal, state, local, foreign or other taxes, duties, tariffs or other charges, however designated, associated with the fees to be paid by it to the other party under this Agreement.
4.3 Invoicing Information
Client is responsible for providing complete and accurate billing and contact information to Signal and notifying Signal of any changes to such information.
5. Term and Termination
Unless otherwise indicated in the applicable Order Form, this Agreement commences on the Effective Date and continues for an initial term of twelve (12) months (“Subscription Initial Term”). After the Subscription Initial Term, this Agreement will automatically renew for successive Subscription Initial Terms (“Renewal Term”), unless either party notifies the other party in writing of its intent not to renew this Agreement at least sixty (60) days prior to the end of the then-current term. Notwithstanding the immediately preceding sentence, if any Order Form is in effect at the time of a notice of non-renewal from either party, this Agreement will remain in effect until the expiration or termination of such Order Form(s). As applicable, if no Order Form exists between the parties for at least 12 months, either party may terminate this Agreement with thirty (30) days’ prior written notice to the other party.
Either party may terminate this Agreement effective immediately if the other party (i) commits a material breach of this Agreement and fails to cure the breach within thirty (30) days after receipt of written notice of the breach; provided that any breach of Signal’s proprietary rights in the Signal Solutions shall not be subject to any cure period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, however, that, if any of the foregoing is involuntary, the party will only be in breach if the petition or proceeding has not been dismissed within 90 days. Client will notify Signal immediately in the event it becomes bankrupt, insolvent, or enters into liquidation whether compulsorily or voluntarily, or convenes a meeting of its creditors, or has a receiver appointed over all or part of its assets or ceases for any reason to carry on business.
5.3 Termination for Change in Applicable Law or Applicable Guidelines
Either party may terminate this Agreement or an Order Form, as applicable, upon ninety (90) days’ prior written notice (or such shorter period as is reasonably necessary for compliance with all Applicable Law and all Applicable Guidelines), if there is a change in Applicable Law or Applicable Guidelines such that (a) an exercise of a material right or performance of a material obligation under this Agreement by a party would cause that party to be in violation of Applicable Law or Applicable Guidelines or (b) a party would be prevented from receiving a material benefit under this Agreement.
5.4 Effect of Expiration or Termination
Upon expiration or termination of this Agreement or an Order Form; (a) the licenses granted in this Agreement and any Order Form will immediately cease; (b) Client will pay all fees due to Signal; (c) Client will remove all Signal Code from all Client Data Sources, as Client acknowledges that it will continue to incur monthly fees until Signal Code is removed; and (d) Signal will promptly remove all Client Data. Notwithstanding this Section 5.4, Signal will be permitted to; (i) retain and use one copy of Client Data for the sole purpose of compliance with any applicable law, court directive, or regulatory agency’s order; and (ii) retain any electronic records and files containing such data under Section 5.4 which have been created pursuant to the automatic or normal course archiving and back-up procedures of Signal. Any Confidential Information of a party that is not returned or destroyed pursuant to this section will be subject to the confidentiality and non-disclosure provisions of this Agreement for so long as it is retained by the receiving party, notwithstanding any expiration or termination of this Agreement. Any obligations which expressly or by their nature are to continue after of the end of this Agreement shall survive and remain in effect.
6. Intellectual Property Rights
6.1 Ownership of the Signal Technology
As between Signal and Client, Signal owns all right, title and interest, including all derivatives, enhancements, improvements, and modifications, including without limitation all trade secrets, patents and patent applications, trademarks, service marks, trade names, copyrights and all other intellectual property and proprietary rights, whether registered or unregistered (collectively, “Intellectual Property Rights”), in and to the Signal Technology.
6.2 License to Use the Signal Technology as applicable
Signal grants to Client a limited, revocable, non-assignable, non-exclusive, non-sublicense-able license to (a) incorporate the Signal Code into the Client Data Sources solely to support use of the Platform as set forth in this Agreement and further limited by geographic market and other limitations as described in the relevant Order Form(s); (b) use the Signal Data as defined and limited in the relevant Order Form; and c) to use the Signal Technology solely for the purposes described herein. Signal reserves all rights in the Signal Technology not expressly granted to Client under these terms. For the avoidance of any doubt, an Order Form is required before Client may use the license granted in this Section 6.2.
6.3 Limitations on Use of the Signal Technology
Client will not, and will not allow a third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of the Signal Technology; (b) reproduce or modify the Signal Technology; (c) modify, alter, or delete any of the copyright, trademark, or other proprietary notices displayed on, embedded in, or affixed to the Signal Technology; (d) use any device, software or routine to interfere with the proper working of the Signal Technology; (e) use any automated means, including, without limitation, agents, robots, scripts or spiders, to access, monitor, or copy the Signal Technology; (f) conduct any type of Signal Technology testing, including but not limited to penetration, firewall, stress, or data security testing, vulnerability reviews, or any other review, audit, or other testing without the prior, written consent of Signal; (g) take any action outside the normal course of business that artificially imposes an unreasonable or disproportionately large load on the Platform; (h) resell the Signal Technology; (i) disclose or publish performance benchmark results or test results about the Platform to non-affiliated third parties with respect to the Platform without Signal’s prior written consent in each instance; (j) use Signal Technology in any country or geographic market other than as described on the applicable Order Form, including those countries subject to US trade restrictions or export controls; or (k) use the Signal Technology in any manner other than as expressly permitted by this Agreement. Further, as applicable, Client will not and will not allow its third party service providers to distribute, store or otherwise make use of the Signal Technology for the purposes of creating an ID network similar or competitive to the Platform. Client is solely responsible for its use of the Signal Data and will use the Signal Data solely for the purposes defined in this Agreement. Client may not use Client IDs to reverse-engineer, re-identify or otherwise discover Personally Identifiable User Data that enables an individual to be directly identifiable from such data or otherwise re-target individuals as an explicitly or implicitly defined group unless Client has provided all required notices and obtained all necessary consents from such individuals as required by Applicable Privacy Laws.
6.4 Ownership and License of Client Data
As between Signal and Client, Client owns all right, title, and interest in the Client Data provided to Signal; all of which shall be processed per Client’s instruction. Client grants to Signal a worldwide, limited, non-assignable (except as specifically set forth in this Agreement), non-exclusive, non-sublicenseable license to access, collect, assemble, compile, analyze, modify, process, transform, transmit, and use the Client Data for the provision, maintenance, improvement, and support the Platform and Signal Solutions. Unless otherwise provided for in the Agreement, Client Data is removed from the Platform after 365 days of non-activity. Client agrees that, to the extent necessary to maintain performance and prevent, mitigate or recover from an interruption, outage or disaster affecting the Platform, Signal may maintain a live and active copy of Client Data in data centers in Europe (currently Ireland), Japan, and the United States.
7. Confidential Information
7.1 Obligations with Respect to Confidential Information
During the term of this Agreement, each party will have access to certain non-public proprietary, confidential, and/or trade secret information or data of the other party, whether furnished before or after the Effective Date, and regardless of the manner in which it is furnished, which given the totality of the circumstances, a reasonable person or entity should have reason to believe is proprietary, confidential, or competitively sensitive (together, the “Confidential Information”). Confidential Information excludes any information that (i) is now or subsequently becomes generally available in the public domain through no fault or breach on the part of receiving party; (ii) the receiving party can demonstrate in its records to have had rightfully in its possession prior to disclosure of the Confidential Information by the disclosing party; (iii) the receiving party rightfully obtains from a third party who has the right to transfer or disclose it, without default or breach of this Agreement; (iv) the receiving party can demonstrate in its records to have independently developed, without breach of this Agreement or any use of or reference to the Confidential Information. For avoidance of doubt, the Signal Technology and all designs, engineering details, evaluation reports, tests, and other technical, financial, marketing, commercial and other information pertaining to the Signal Technology is considered Confidential Information of Signal. Client Data is considered Confidential information of Client. The receiving party agrees: (a) not to disclose the disclosing party’s Confidential Information to any third parties other than its directors, officers, employees, advisors, or consultants (collectively, the “Representatives”) on a “need to know” basis only, and provided that such Representatives are bound by a written agreement to comply with confidentiality obligations no less restrictive than those in this Agreement; (b) not to use or reproduce any of the disclosing party’s Confidential Information for any purposes except to carry out its obligations under this Agreement; (c) to keep the disclosing party’s Confidential Information confidential using at least the same degree of care it uses to protect its own confidential information, which in any event will not be less than a reasonable degree of care. Notwithstanding the foregoing, if receiving party is required by legal process or any applicable law, rule, or regulation to disclose any of disclosing party’s Confidential Information, then prior to such disclosure, receiving party will give prompt written notice to disclosing party so that the disclosing party may seek a protective order or other appropriate relief. The parties’ obligations with respect to Confidential Information expire five (5) years from the date of termination of this Agreement, unless a longer period of protection applies under applicable law, either as trade secret information or otherwise.
7.2 Injunctive Relief
The receiving party hereby acknowledges that unauthorized disclosure or use of Confidential Information could cause irreparable harm and significant injury to the disclosing party that may be difficult to ascertain. Accordingly, the receiving party agrees that the disclosing party, in addition to any other right or remedy that it may have available to it at law or in equity, will have the right to seek and obtain immediate injunctive relief to enforce the confidentiality obligations under this Agreement without the necessity of proving actual damages, and without the necessity of posting bond or other similar undertaking.
8. Acknowledgements, Representations and Warranties
8.1 Privacy and Data Protection Representations and Warranties
(a) The EU Privacy and Data Protection Addendum in Exhibit C is incorporated into this Agreement;
(b) In respect of any Client Data that Client discloses to Signal, Client will ensure that any such disclosure is in compliance with Applicable Privacy Laws and that it has all lawfully-required consents (if necessary) to make such disclosure;
(c) Client is solely responsible for entering into, performing, and obtaining any necessary consents under, all agreements pertaining to the placement, collection, use, and distribution of Client Data, Client Data Sources, and Signal Code. Such agreements may include, but not limited to, license and services agreements with third party marketing, advertising and/or data vendors who will provide and/or receive data from the Platform or the Signal Solutions. Signal makes no representations, warranties, guarantees, or indemnification obligations regarding any other third-party product or service;
(e) Client will not use any data made available to Client by Signal in connection with this Agreement to re-identify any individual to whom that information relates, whether from that information itself or by combination with any other information that might be or become available to Client (unless the information with which the data provided Signal is combined is proprietary to Client);
(f) Client will not provide to Signal (i) any Client Data related to racial or ethnic origin, political opinions, membership of a political association, religious beliefs or affiliations, philosophical beliefs, membership of a professional or trade association, membership of a trade union, sexual preferences or practices, criminal record, health information, genetic information that is not otherwise health information, or biometric information or templates; or (ii) any Client ID or Client Data collected from or in connection with any web site, mobile application or other online service that targets or is intended for children younger than age 13 as its primary audience;
(h) Nothing in this Agreement (including any Order Form(s)) shall limit or prevent Signal from collecting or using data (including Personally Identifiable User Data) that Signal would otherwise collect and process independently of Client’s use of the Platform and Signal Solutions; and
(i) If Client is unable to comply with its notice and consent obligations under this Section 8, Client shall promptly notify Signal and Signal may elect to suspend or terminate this Agreement.
8.2 Cookie Consent
a) Client shall maintain appropriate notice and consent mechanisms as required by Applicable Privacy Law to enable Signal to deploy Tracking Technologies on, and collect data from the devices of users.
8.3 Additional Client Representations and Warranties to Signal
Client represents and warrants to Signal that:
a) the execution of this Agreement has been duly authorized and is a valid and binding obligation of Client;
b) it will comply with all Applicable Laws, and all Applicable Guidelines and specifically, in regards to the following;
- 1. the collection of Client Data; Client will ensure the legality, appropriateness, and accuracy of the Client Data it makes available to Signal;
- 2. the procurement of all third party licenses, consents and permissions required for Client to use the Client Data for the purposes described herein;
- 3. the Client Data and Client’s transfer of the Client Data to Signal will not infringe upon any third party right; or
- 4. Client’s conduct of digital media activities; nothing about its relationship with Signal or use of the Platform alters its responsibility in connection with these activities; or
c) Client will notify Signal immediately if it becomes aware of any unauthorized access to or use of the Platform and the Signal Solutions as described in this Agreement, or any Order Form, and will cooperate at its expense to identify and resolve the issue.
8.4 Signal Representations and Warranties to Client
Signal represents and warrants to Client that:
(a) the execution of this Agreement has been duly authorized and is a valid and binding obligation;
(b) Signal will comply with all Applicable Law and Applicable Guidelines in the performance of its obligations under this Agreement and these terms;
(c) the Signal Technology as provided to Client does not (1) permit Signal or any third party to access any of Client’s equipment connected to the Signal Technology without Client’s authorization; and (2) include any programming devices intended to disrupt or degrade the Signal Solutions selected by Client (e.g., key locks), (Signal does not, however, make any representations or warranties with respect to tags other than the Signal Code);
(d) Signal will implement reasonable and appropriate technical and organizational measures illustrated in Exhibit B to protect Client Data from and against any accidental or unlawful destruction or any accidental loss, alteration, unauthorized disclosure, use or access; and
(e) the information made available by Client to Signal in connection with this Agreement will not be used by Signal to re-identify any individual or made available to any person in any form that might enable any person to re-identify any individual to whom that information relates, whether from that information itself or by combination with any other information that might be or become available to that person, unless otherwise agreed to by the parties.
8.5 Exclusion of Warranties
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND. EACH PARTY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SIGNAL SPECIFICALLY DOES NOT WARRANT THAT THE SIGNAL TECHNOLOGY WILL (A) BE UNINTERRUPTED; (B) BE FREE FROM INACCURACIES, ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS; (C) MEET CLIENT’S NEEDS; OR (D) OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE CLIENT USES. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, CLIENT’S USE OF THE SIGNAL TECHNOLOGY IS SOLELY AT ITS OWN RISK.
9. Limitations on Liability
9.1 Exclusion of Damages
NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS, LOST DATA, OR LOSS OF GOODWILL, OR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. THIS EXCLUSION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.2 Cap on Liability
a) General: NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, AND SUBJECT TO SECTION 9.2b, IN NO EVENT WILL EITHER PARTY’S LIABILITY UNDER THIS AGREEMENT AND THESE TERMS EXCEED THE SUMS PAID AND/OR PAYABLE PURSUANT TO THIS AGREEMENT DURING THE SIX (6) MONTHS BEFORE THE DATE LIABILITY AROSE.
b) Infringement: NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, IN NO EVENT WILL SIGNAL’S LIABILITY UNDER SECTION 10.2 EXCEED THREE (3) TIMES THE SUMS PAID AND PAYABLE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS BEFORE THE DATE LIABILITY AROSE.
c) Exclusions to the Limitations on Liability: NEITHER THE EXCLUSION OF DAMAGES NOR THE CAP ON LIABILITY ABOVE WILL BE CONSTRUED TO LIMIT EITHER PARTY’S LIABILITY FOR BREACH OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIAL INFORMATION UNDER SECTION 7 OR EITHER PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY FOR DAMAGES AWARDED TO A THIRD PARTY UNDER SECTION 10.1.
10.1 Mutual Indemnification by the Parties Client
Each party shall indemnify, defend, and hold the other party and the other party’s employees, directors, and officers harmless from and against any losses, fees, fines, settlements, or damages, including reasonable attorney’s fees and court costs (collectively, “Liability”) incurred in connection with any third party claim arising out of a party’s (a) breach of Applicable Laws, or Applicable Guidelines; or (b) breach of Section 7 (Confidentiality).
10.2 Indemnification by Signal
Signal will indemnify, defend, and hold Client harmless from and against any Liability incurred in connection with any Claim arising out of any infringement that the Signal Technology (excluding tags other than the Signal Code) infringes upon any presently existing, issued U.S. patent, trademark, trade secret, or copyright of any third party, subject to this Section 10.2. In the event of a claim or potential claim relating to infringement, Signal has the sole discretion, and in place of any indemnification obligation, to: (a) secure the right for Client to continue using the Signal Technology; (b) replace or modify the Signal Technology to make it non-infringing, provided that any such replacement or modification will operate in a substantially similar manner to the existing Signal Technology; or (c) terminate this Agreement immediately, in whole or in part, if it is unable to secure, replace, or modify the Signal Technology as set forth above. This section 10.2 describes the extent of Signal’s liability and Client’s sole and exclusive remedy with respect to allegations of infringement or misappropriation of any intellectual property rights of any other party. Signal will not be obligated to indemnify Client for claims arising from (a) Client’s modification or use of the Platform or Signal Solutions in violation of this Agreement; (b) the combination, operation, or use of the Platform or Signal Solutions with any product, service or material not provided by Signal or on Signal’s behalf; or (c) Client’s failure to use corrections or enhancements made available by Signal.
In the event of a claim where a party will seek indemnification from the other party, the indemnified party must give prompt written notice to the indemnifying party. Failure to give such a notice will not relieve the indemnifying party of its obligations, except to the extent that losses could have been avoided if notice had been provided sooner. The indemnified party will cooperate reasonably with requests from the indemnifying party. The indemnified party may, at its own expense, participate in the defense of a claim. The indemnifying party will control such defense, and all negotiation relating to settling the relevant claim. The indemnifying party may enter into a settlement only if the settlement (a) involves only the payment of money damages by the indemnifying party; (b) includes a complete release of the indemnified party; and (c) does not contain any admission of wrongdoing on the part of the indemnified party. Any other settlement will require written approval from the indemnified party, which will not be unreasonably withheld.
11.1 Force Majeure
Except with respect to payment obligations described herein, neither party will be liable by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including, but not limited to, electrical outages, failure of Internet service providers, default due to Internet disruption, denial of service attacks, riots, acts of terrorism, war, fires, floods, earthquakes, explosions, and other acts of nature, provided that such default or delay cannot be reasonably circumvented by the non-performing party and that the non-performing party uses reasonable efforts to resume performance as soon as practicable under the circumstances.
Notices will be considered given upon the date of delivery by email if receipt is confirmed electronically. Notices may also be sent by an overnight delivery service (confirmed by a signed receipt) in which case, notice will be considered given as of the date on which confirmation of receipt is made. Notices sent to Signal should be addressed to the attention of email@example.com, or at 222 N LaSalle St, Suite 1600, Chicago, IL 60601. Notices sent to the Client will be addressed to name and address listed on the applicable Order Form.
11.3 Governing Law and Arbitration
This Agreement and any associated Order Forms are governed by the laws of the State of Illinois, without regard to its conflict of laws principles. Any dispute arising from the Agreement will be resolved by binding arbitration in accordance with the then-current rules of the American Arbitration Association (“AAA”). Any award, order, or judgment following the arbitration is final, and may be entered and enforced in the state or federal courts located in Chicago, Illinois. The prevailing party will be entitled to recover its actual costs and expenses, including reasonable attorney’s fees. For purposes of seeking injunctive relief, each party irrevocably submits to the non-exclusive jurisdiction of the State and Federal courts located in Chicago, IL. If either party commences any action or proceeding against the other, the prevailing party will be entitled to recover the actual costs, expenses, and attorneys’ fees incurred by it in connection with the action or proceeding and in connection with enforcing any judgment or order entered in connection with the action or proceeding.
Neither party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other. Notwithstanding the above, either party may assign its rights and delegate its obligations under this Agreement to (a) any of its wholly-owned subsidiaries or (b) any entity into which it has merged or which has otherwise succeeded to all or substantially all of its business, stock, or assets, and, in either case, which has assumed in writing or by operation of law its obligations under this Agreement and these terms. This Agreement will bind and inure to the benefit of each party’s respective successors and permitted assigns. In the event of a permitted assignment, the parties agree that the fees associated with Signal’s services may not automatically apply, and new fees may be incurred.
11.5 Entire Agreement; Amendment; Counterparts
This Agreement contains the entire agreement and understanding of the parties, and supersedes all prior agreements between the Parties, whether oral or written, regarding the subject matter hereof. This Agreement may only be amended or modified by a written instrument that describes the amendment or modification, signed by an authorized representative of each party. This Agreement may be signed in one or more counterparts, each of which will be deemed an original (whether in hard copy or electronic form), and all of which together shall constitute one and the same Agreement.
11.6 Severability; Waiver
If any provision of this Agreement is held by any court of competent jurisdiction to be illegal, null or void, or against public policy, the remaining provisions shall remain in full force and effect. The waiver of any breach of this Agreement by either party shall not be deemed to be a waiver of any preceding or subsequent breach, nor shall any waiver constitute a continuing waiver.
11.7 Independent Contractors
Signal and Client are engaging as independent contractors, and nothing in this Agreement should be construed as the formation of a partnership, association, joint venture, or similar relationship by or between the parties.
11.8 Use of Marks for Marketing
Per mutual agreement by both parties, the parties may desire to work together to promote the relationship. The parties agree that either party may use the other party’s name, logo, trademarks, and service marks (collectively, “Marks”) on the requesting party’s websites and in marketing and promotional materials for purposes of identifying and promoting Client and Signal’s relationship. Client owns all Intellectual Property Rights in and to Client Marks, and Signal owns all Intellectual Property Rights in and to Signal’s Marks. Both parties agree that it has not acquired or otherwise obtained any Intellectual Property Rights in and to the other party’s Marks. Both parties agree to obtain the other party’s written, approval prior to each new use of the other party’s Marks, which will not be unreasonably withheld, and will comply with any written guidelines provide by the other party for use of the party’s Marks. All goodwill associated with the use of a party’s Marks will inure to that party’s benefit.
During the term of this Agreement, and for one year following its termination, neither party may, without the written consent of the other party, solicit the other party’s current employees. The above will not apply to any applicant, candidate, or hire responding to a general solicitation for employment, including online postings or other notices, whether published by the applicable party, or anyone on authorized to act on its behalf.
Client may provide Signal with comments, suggestions, enhancement requests, recommendations or other feedback arising out of Client’s experience with the Signal Solutions (collectively “Feedback”). If Client does provide Feedback, Client assigns to Signal all right, title, and interest (including Intellectual Property Rights), and agrees not to assert any “moral rights”, in and to the Feedback. Further, Client understands and acknowledges that Signal will own all right, title and interest (including Intellectual Property Rights) in and to any new services developed by Signal, based upon or otherwise incorporating Client’s Feedback.
Signal in its sole discretion may modify or update this Agreement at any time, and such updates will be posted to the website link listed on the Order Form.