This Terms of Service Agreement (“Agreement”) is made on _______________ ( “Effective Date”), by and between SMITH AND CRAWFORD COMPANY, LLC (hereinafter, “SCC”), a Michigan limited liability company located at 7885 Cidermill Dr., SE, Grand Rapids, Michigan 49508 and _____________________________________________ (hereinafter, “Client”), located at _____________________________________________. This Agreement governs your license to and use of services.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SOW THAT REFERENCES THIS AGREEMENT, OR USING ANY SUBSCRIPTION SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT, OUR PRIVACY POLICY, DATA PROCESSING AGREEMENT, AND AFFILIATE AGREEMENT. IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES. IF YOU REGISTER FOR USE OF A FREE TRIAL OR FREE VERSION OF THE SUBSCRIPTION SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT ALSO GOVERN YOUR USE OF THOSE SERVICES.
1. DEFINITIONS
1.1 "Affiliate" means, with respect to a specified entity, any other entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where "control" means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
1.2 "Agreement" means this SMITH AND CRAWFORD COMPANY-AESTHETICALLY content as a Service Agreement.
1.3 "Authorized User" means your employee, your Affiliate’s employee, or a Permitted Third Party’s employee, for whom you create a unique login under your account. Only for End Customer Accounts, Authorized Users also include an End Customer’s employees for whom a unique login is created under the applicable End Customer Account.
1.4 "Documentation" means our user documentation, in all forms, relating to the Subscription Services (e.g., user manuals, on-line help files, etc.).
1.5 "Effective Date" means the earlier of (a) the effective date of the first SOW referencing this Agreement and (b) the date you first access a Subscription Service.
1.6 "End Customer" means an entity that is your or your Affiliate’s customer, vendor, or partner that has an existing contractual relationship with you or your Affiliate and is not our competitor.
1.7 "Permitted Third Party" means an entity under contract with you or your Affiliates that needs to access the Subscription Services to perform its obligations to you or your Affiliates and is not our competitor.
1.8 "Professional Services" means the professional services specified in a SOW, which may include, without limitation, implementation, configuration, consulting, and training services.
1.9 "Services" means, collectively, the Subscription Services, Professional Services, and any other services identified in a SOW or accessed by you through SMITH AND CRAWFORD COMPANY’s online order or registration process.
1.10 "SOW" means Statement of Work - an ordering document entered into between you or your Affiliate and us specifying the services to be provided pursuant to a Master Services Agreement, including any exhibits, addenda and supplements thereto and any amendments and renewals thereof. By entering into a SOW under this Agreement, your Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.
1.11 "Subscriber Data" means any data uploaded into the Subscription Services, or otherwise provided for
processing by the Subscription Services, by or on behalf of you or your Affiliates in accordance with this Agreement.
1.12 "Subscription Fees" means the fees payable for the Subscription Services.
1.13 "Subscription Services" means SMITH AND CRAWFORD's monthly marketing content membership as identified in a SOW, as we may modify the services from time to time in our discretion.
1.14 "We" or "Us" or "Our" or "SCC" means SMITH AND CRAWFORD COMPANY, LLC, a Michigan corporation, or its designated Affiliate as specified in a SOW or invoice.
1.15 "You" or "Your" or "Subscriber" means the subscriber named on the SOW or, for online orders, the company or other legal entity on whose behalf the individual indicating acceptance of this Agreement is acting. Any of Subscriber’s Affiliates may enter into a SOW that references this
Agreement directly with SCC and, for purposes of such SOW, the Affiliate signing the SOW will be considered “you,” “your,” and “Subscriber.”
2. USE OF THE SUBSCRIPTION SERVICES
2.1 Permitted Use. Subject to the terms and conditions of this Agreement and the applicable SOW, we grant to you a limited, worldwide, non-exclusive, non-transferable (except as expressly permitted in this Agreement) right during the term of the applicable SOW to: (a) use the Subscription Services solely for your and your Affiliates’ internal business operations (or, with respect to SCC, solely for End Customers’ internal business purposes in connection with the standard business conducted between you and the End Customer); (b) use internally, and reproduce without modification, a reasonable number of copies of the Documentation solely in connection with your authorized use of the Subscription Services. Your rights to use the Subscription Services are subject to any scope and usage limitations set forth in the applicable SOW, which may include, without limitation, limits on the number of users, (collectively, the "Scope Limitations"), and your compliance with all terms of this Agreement and the applicable SOW. You agree to use the Subscription Services within and are solely responsible for ensuring that you do not exceed, the Scope Limitations. If you exceed any of the Scope Limitations set forth in the SOW, we may invoice you and you agree to pay for the excess usage at SCC’s then-current rates.
2.2 Use Restrictions. Except as may be expressly permitted by applicable law, you will not, and will not permit your Affiliates or any third parties to: (a) sell, rent, lease, or, except as expressly permitted in this Agreement or an applicable SOW, license, sublicense, distribute, or otherwise permit third parties to access or use the Subscription Services, or Documentation; Reselling and sharing of our content to non-members is strictly prohibited and will result in immediate discontinuation of your membership and you will not be allowed to return (b) except as expressly permitted in this Agreement or an applicable SOW, use the Subscription Services to provide services to third parties as a service bureau or for time sharing or service provider purposes; (c) upload or provide for processing, or use the Subscription Services to store, display or transmit, any information or material that is illegal, defamatory, offensive, abusive, obscene, or tortious, or that violates privacy or intellectual property rights; (d) use the Subscription Services to harm, threaten, or harass another person or organization or in any way that violates applicable laws or regulations; (e) use the Subscription Services to create, send, store, run, or distribute any viruses, worms, Trojan horses, or other disabling code, malware component, or code or program harmful to a network or system; (f) copy, reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Subscription Services or any feature or function thereof; (g) alter nor remove any trademark, copyright notice, or other proprietary rights notice that may appear in any part of the Subscription Services, or Documentation (and you will include all such notices on any copies, including any reports printed via the use of the
Subscription Services); or (h) use the Subscription Services in excess of the Scope Limitations. You are solely responsible for your conduct (including by and between all users whether employees, agents, customers or any person/entity that has access to the Subscription Services through your Subscription Services Account) and all communications with others while using the Subscription Services.
2.3. Platform Account Ownership. Your use of the Subscription Services is conditioned on your provision of complete, current, and accurate information when registering for a Platform Account. The Subscription Services are intended for business use or in connection with an individual’s trade, craft, or profession. As the individual who accepts these Terms, You are the owner of the Subscription Services Account unless You are acting on behalf of a business entity, in which case, the business entity is the owner of the Subscription Services Account. If You accept these Terms on behalf of a business entity, You represent and warrant that you have the authority to bind the business entity to these terms.
2.4 Authorized Users Only. This Agreement restricts the use of the Subscription Services to Authorized Users, up to the number of users specified in the applicable SOW. You may allow your Affiliates and Permitted Third Parties to access and use the Subscription Services as Authorized Users in accordance with, and subject to the terms and conditions of, this Agreement and the applicable SOW; provided, however, that Authorized Users who are employees of Permitted Third Parties may access and use the Subscription Services solely to perform the Permitted Third Party’s contractual obligations to you. As part of the registration process, you may be asked to identify your company and Authorized Users who should be associated with your account. You will not misrepresent the identity or nature of the company or Authorized Users who should be associated with your account. You are responsible for maintaining the confidentiality of your logins and account and for all activities that occur under your logins and account, including the activities of Authorized Users.
2.4 Protection Against Unauthorized Use. You will and will ensure that your Affiliates and Permitted Third Parties, and End Customers, use reasonable efforts to prevent any unauthorized use of the Subscription Services, or Documentation, and you will promptly notify us in writing of any unauthorized use that comes to your attention. If there is unauthorized use by anyone who obtained access to the Subscription Services, or Documentation directly or indirectly through you, your Affiliate, or a Permitted Third Party or End Customer, you will take all steps reasonably necessary to terminate the unauthorized use. You will cooperate and assist with any actions taken by us to prevent or terminate unauthorized use of the Subscription Services, or Documentation. We may remotely monitor your use of the Subscription Services to verify that your use complies with the Scope Limitations and other terms of this Agreement and any SOWs. You will ensure that your Affiliates, Permitted Third Parties, and End Customers comply with the terms of this Agreement and all SOWs and you will be directly and fully responsible to us for their conduct and any breach of this Agreement or any SOW by them.
3. PROFESSIONAL SERVICES AND TECHNICAL SUPPORT SERVICES
3.1 Professional Services. You may contract with us to provide Professional Services. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the Professional Services for each project will be described in a SOW. SCC grants you a license to use any SCC Technology delivered as part of the Professional Services under the same terms of your license to use the Subscription Services. You are responsible for any actual travel expenses we incur in providing Professional Services. Unless otherwise specified in the applicable SOW, any unused portion of Professional Services hours/days will expire, and may not be carried over after, 12 months from the SOW effective date.
3.2 Changes to Professional Services. You may request in writing that reasonable revisions be made with respect to the Professional Services set forth in a SOW. If your requested revisions materially increase the scope of the Professional Services or the effort required to perform the Professional Services under the SOW, then we will deliver to you a written proposal reflecting our reasonable determination of the revised Professional Services, delivery schedule, and payment schedule, if any, that applies to the requested revisions. If you approve the proposal, then the parties will carry out an amendment to the SOW. Otherwise, the then-existing SOW will remain in full force and effect, and we will have no obligation with respect to the relevant change request.
3.3 Your Responsibilities. You will provide us with assistance, cooperation, information, equipment, data, a suitable work environment, and resources reasonably necessary to enable us to perform the Professional Services. You acknowledge that our ability to provide Professional Services and Technical Support Services may be affected if you do not meet your responsibilities as set forth in this Agreement or the applicable SOW. Our obligation to perform Professional Services is subject to your payment of the applicable fees. You will protect and keep confidential, your password, account login information, and any other information allowing access to your account. You will not share any links to content created by SCC with any other person or entity outside of your organization or Affiliates. Doing so will result in immediate revocation of access to the membership and the content.
3.4 Feedback. You, your Affiliates, Permitted Third Parties, and End Customers may, on an entirely voluntary basis, submit feedback, user community contributions and comments, suggestions, enhancement requests, recommendations, and messages relating to the operations, functionality, or features of the Subscription Services or other SCC products or services (collectively, "Feedback"). You grant us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, incorporate into the Subscription Services, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit Feedback without restriction. Feedback is not Subscriber Confidential Information.
4. FEES AND PAYMENT
4.1 Fees and Payment Terms. You agree to pay all fees set out in a SOW and any other amounts payable under this Agreement or other agreement with SCC. Except as otherwise expressly provided in this Agreement or the applicable SOW, upon both parties’ execution of a SOW, the SOW is non-cancellable and the fees are non-refundable and based on Services purchased, not actual usage. The initial term specified in a SOW is a non-divisible, continuous commitment, regardless of the invoice schedule, and pricing is based on purchase of the Services in the specified quantity and configuration for the entire initial term (or applicable renewal term). Unless otherwise specified in the applicable SOW (a) Subscription Fees and fees for any Professional Services are due monthly and are to be paid on autopay via the portal ;(b) Subscription Fees for each renewal term will be invoiced and payable at SCC’s rates in effect at the time of renewal. If autopayment is not successful, access will be revoked immediately.
4.2 Credit Card Payments. If you use a credit card to set up an account or pay for any of the Services, you must be authorized to use the credit card information that you enter when you create the billing account. You authorize us to charge your credit card for the Services for the initial term and any renewal terms of a SOW as provided in Section 5.1, plus a reasonable processing fee. We may charge your credit card (a) in advance; (b) at the time of purchase; (c) shortly after purchase; and/or (d) on a recurring basis for a subscription to the Subscription Services.
4.3 Late Payment. Without limiting our other rights or remedies, any amount not subject to a good faith dispute and not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded monthly from the date due until the date paid, and you will reimburse us for any costs or expenses (including but not limited to reasonable attorneys’ fees) incurred by us to collect any such amount. Amounts due from you under this Agreement or a SOW may not be withheld or offset by you against amounts due to you for any reason.
4.4 Taxes. The fees stated in a SOW do not include local, state, federal, or foreign taxes (e.g., value-added, sales, or use taxes), or fees, duties, or other governmental charges resulting from this Agreement or any SOW ("Taxes"). You are responsible for paying all applicable Taxes, excluding taxes on SCC’s net income or property. If we determine that we have the legal obligation to pay or collect such Taxes, we will add such Taxes to the applicable invoice and you will pay such Taxes, unless you provide us with a valid tax exemption certificate from the appropriate taxing authority. If a taxing authority subsequently pursues us for unpaid Taxes for which you are responsible under this Agreement and which you did not pay to us, we may invoice you and you will pay such Taxes to us or directly to the taxing authority, plus all applicable interest, penalties and fees.
4.5 Future Functionality. Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
5. TERM AND TERMINATION
5.1 Term. This Agreement commences on the Effective Date and continues until terminated in accordance with the terms of Section 6.2. Each SOW commences on the effective date specified in the SOW and, unless earlier terminated for cause pursuant to Section 6.2, continues for the initial term specified in such SOW and any renewal terms. Unless otherwise specified in the applicable SOW, each SOW will automatically renew for additional successive month unless either party provides written notice to the other party of non-renewal.
5.2 Termination. Either party may terminate this Agreement upon 30 days’ written notice if at the time of notice there are no SOWs then in effect. Either party may terminate this Agreement or an applicable SOW for cause immediately upon written notice if the other party does not cure its material breach of this Agreement or the applicable SOW within 30 days of receiving written notice of the breach from the non-breaching party. Termination of this Agreement for cause will terminate all SOWs then in effect. If you fail to timely pay any Subscription Fees or other fees owing under this Agreement or a SOW, we may, without limitation to any of our other rights or remedies, suspend performance of the Services until we receive all amounts due, or terminate this Agreement or the applicable SOW pursuant to this Section 6.2.
5.3 Effect of Termination. If this Agreement or an applicable SOW is terminated for any reason: (a) we have no obligation to provide or perform any Services after the effective date of the termination; (b) you will immediately pay to us any Subscription Fees, fees for Professional Services, and other amounts that have accrued prior to the effective date of the termination; (c) any and all liabilities accrued prior to the effective date of termination will survive; (d) if requested by us, you will provide us with a written certification signed by your authorized representative certifying that all use of the Subscription Services and Documentation by you, your Affiliates; and (e) Sections 2.2, 3.7, 4.5, 5, 6.3, 7, 8.3, 8.4, 8.5, 9.3, 10 will survive termination. If this Agreement or a SOW is terminated by us for your uncured material breach, or by you other than as a result of SCC’s material uncured breach, you will pay us the amounts due under all terminated SOWs for the remainder of the relevant term. If you terminate this Agreement or a SOW for SCC’s uncured material breach, as your exclusive remedy, we will provide you a pro-rata refund of all prepaid, unused Subscription Fees for the remainder of the relevant term.
6. WARRANTIES AND DISCLAIMER
6.1 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement and each SOW constitutes a valid and binding agreement enforceable against it in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution and delivery of any SOW or performance of this Agreement.
6.2 Our Warranty. We warrant that the Subscription Services as delivered to you by us will materially conform to the specifications set forth in the applicable SOW during the term of the applicable SOW. You must notify us of a claim under this warranty within 30 days of the date on which you first become aware of the condition giving rise to the claim. We further warrant that we will perform Professional Services in a professional and workmanlike manner in accordance with the specifications set forth in the applicable SOW. To the extent permitted by law, your sole and exclusive remedy arising out of or in connection with a breach of warranty is limited to correction of the non-conforming Subscription Services or re-performance of the Professional Services, as applicable, or if correction or re-performance is not commercially reasonable, termination of the applicable SOW and a refund of any prepaid unused fees for the applicable Subscription Services or Professional Services.
6.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON
INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SUBSCRIPTION SERVICES OR THAT THE SUBSCRIPTION SERVICES,, OR DOCUMENTATION ARE ERROR-FREE OR THAT OPERATION OR USE OF THE SUBSCRIPTION SERVICES OR WILL BE SECURE OR UNINTERRUPTED. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SUBSCRIPTION SERVICES.
7. SUBSCRIBER INDEMNIFICATION
You will, at your expense, defend us and our Affiliates from or settle any actual or threatened Claim arising out of or based upon: (a) use of the Subscription Services by you, your Affiliates, or Permitted Third Parties or End Customers in violation of the use restrictions provided under Section 3.2 of this Agreement; (b) an allegation that Subscriber Data or other materials, or information provided by you or on your behalf, or your collection, use, distribution, transfer or display thereof, infringes, misappropriates, or otherwise violates the rights of any person or third party or applicable law; or (c) any actual or threatened Claim brought by a Permitted Third Party or End Customer arising out of or based upon your acts or omissions. You will indemnify us and our Affiliates from and pay: (i) all damages, costs, and attorneys’ fees finally awarded against us in any such Claim; (ii) all out-of-pocket costs, including reasonable attorneys’ fees reasonably incurred by us in connection with the defense of any such Claim (other than attorneys’ fees and costs incurred without your consent after you have accepted defense of the Claim and expenses
incurred pursuant to the last sentence of this Section 11); and (iii) all amounts that you agree to pay to any third party to settle any such Claim. We will give you prompt written notice of the Claim and provide assistance in connection with the defense and settlement of the Claim as you may reasonably request. You may not settle any Claim against SCC unless you unconditionally release SCC from all liability. We may participate in the defense of any Claim at our own expense and with counsel of our own choosing.
8. LIMITATIONS OF LIABILITY
8.1 Disclaimer of Indirect Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOST PROFITS, LOSS OF BUSINESS, OR COSTS ASSOCIATED WITH PROCURING SUBSTITUTE OR REPLACEMENT SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY SOW, OR ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE PARTIES OR THEIR AFFILIATES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING BUT NOT LIMITED TO STANDARD CONTRACTUAL CLAUSES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY IS APPRISED IN ADVANCE OF THE LIKELIHOOD OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE REASONABLY BEEN FORESEEN.
8.2 Cap on Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SERVICES, ANY SOW, OR ANY OTHER AGREEMENT ENTERED INTO BETWEEN THE PARTIES OR THEIR AFFILIATES RELATED TO THIS AGREEMENT OR THE SERVICES (INCLUDING BUT NOT LIMITED TO STANDARD CONTRACTUAL CLAUSES), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER IN AN ACTION BASED ON CONTRACT, WARRANTY, STRICT LIABILITY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, EXCEED, IN THE AGGREGATE, THE TOTAL FEES PAID BY YOU UNDER THE SOW FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM. HOWEVER, THE FOREGOING CAP ON LIABILITY AND THE LIMITATIONS UNDER SECTION 10.1 WILL NOT APPLY TO YOUR OBLIGATION TO PAY ANY FEES UNDER THIS AGREEMENT OR A SOW, YOUR LIABILITY FOR VIOLATION OF THE USE RESTRICTIONS PROVIDED UNDER SECTION 3.2 OF THIS AGREEMENT, OR YOUR INFRINGEMENT OR MISAPPROPRIATION OF OUR INTELLECTUAL PROPERTY RIGHTS.
8.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING
OFFERED BY US TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9. NON-SCC PRODUCTS & SERVICES
Non-SCC Apps, connectors, and any other third-party products or services made available to you in connection with the Subscription Services (collectively, "Non-SCC Products/Services") are provided pursuant to, and any use by you of Non-SCC Products/Services is governed exclusively by, the terms of the applicable third-party agreement. Notwithstanding anything to the contrary in this Agreement, and regardless of whether the Non-SCC Product/Service is designated as certified by SCC, Non-SCC Products/Services are provided “AS-IS” without any warranty, and SCC specifically disclaims any obligation or liability with respect to Non-SCC Products/Services, including but not limited to any obligation to defend or indemnify under Section 10 (SCC Indemnification) and any liability for unauthorized disclosure, use, alteration, or destruction of Subscriber Data resulting from processing by Non-SCC Products/Services or their third-party providers. SCC does not guarantee the continued availability of any Non-SCC Product/Service or of any feature of the Subscription Services designed to interoperate with a Non-SCC Product/Service, and may cease providing a Non-SCC Product/Service at any time.
10. MISCELLANEOUS
10.1 Insurance. Each party, at its sole cost and expense, will maintain during the term of this Agreement insurance in the type and amount required by law and consistent with standard industry practices based on its business and the scope of this Agreement. Upon written request of a party, the other party will provide a certificate of insurance evidencing its insurance coverage.
10.2 Access by Competitors. You may not access the Subscription Services if you are our direct competitor, except with our prior written consent.
10.2 Patent Marking. The Subscription Services may be protected by one or more claims of patents in the U.S. and elsewhere pursuant.
10.3 Relationship. We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of this Agreement and any SOW.
10.4 Publicity. We may use your name, trademarks, and service marks to the extent necessary to fulfill our obligations under this Agreement and any SOW or as otherwise expressly authorized in this Agreement or a SOW. We reserve the right to use your name and trademark as a reference for marketing and promotional purposes on our website and in other communications with our existing and prospective customers. If you do not want to be listed as reference for the Subscription Services, you may send an email to hello@smithandcrawfordcompany.com stating that you do not wish to be identified as a reference.
10.5 Assignment and Delegation. You may not assign any of your rights or delegate any of your obligations under this Agreement or any SOW (in whole or in part) without our prior written consent, except upon written notice to us in connection with a change of control or merger or by operation of law. We will not assign this Agreement or any SOW without your prior written consent except to our Affiliate or in connection with a change of control, merger, or asset sale, or by operation of law. Any purported assignment or delegation in violation of this Section will be null and void. Subject to this Section, this Agreement will be binding upon and inure to the benefit of each party’s respective permitted successors and assigns.
10.6 Subcontractors. We may use subcontractors or other third parties in carrying out our obligations under this Agreement and any SOW. We remain responsible to you for the performance of the services that are subcontracted under this Agreement.
10.7 Notices. Any notice or consent required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or nationally recognized overnight courier, return receipt requested and postage prepaid, to the appropriate party. Notices to SCC must be sent to SCC, LLC., 7885 Cidermill Dr. SE, Grand Rapids, MI 49508, to the attention of Andrea Smith. Notices are deemed given upon receipt if by certified or registered mail or one business day after it is sent if by overnight courier. The parties may agree, with respect to routine notices and approvals, to accept email delivery if such delivery is confirmed by the recipient by replying to the email as acknowledgement of receipt (an automatic reply or "read receipt" does not constitute acknowledgement). Email will not be sufficient for notices regarding a claim or alleged breach unless legal counsel of both parties expressly agree to accept email delivery with respect to the specific claim or alleged breach. Email notice (if delivery is confirmed in accordance with this Section) is deemed given the next business day after the email is sent. Either party may change its address for notices by providing notice to the other party in accordance with this Section.
10.8 Force Majeure. Neither party will be liable for or be considered to be in breach of or default under this Agreement or a SOW on account of, any delay or failure to perform any obligations under this Agreement or any SOW (except for payment obligations) due to any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the cause of the delay or non-performance.
10.9 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Michigan, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
10.10 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement or any SOW, including but not limited to your Affiliates or Permitted Third Parties, or End Customers.
10.11 Waiver and Modifications. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of
this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce. We reserve the right, at our discretion, to change the terms of this Agreement on a going
forward basis at any time. Please check the terms of this Agreement periodically for changes. If a change materially modifies your rights or obligations, you will be required to accept the modified Agreement in order to continue to use the Services. Material modifications are effective upon your acceptance of the modified Agreement. Immaterial modifications are effective upon publication. Disputes arising under this Agreement will be resolved in accordance with the version of this Agreement that was in effect at the time the dispute arose.
10.12 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Subscription Services under this Agreement is found to be illegal, unenforceable, or invalid, your right to use the Subscription Services will immediately terminate.
10.13 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
10.14 Counterparts. This Agreement and any SOW may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement and any SOW may also be executed and delivered by facsimile or electronically and such execution and delivery will have the same force and effect of an original document with original signatures.
10.15 Partner Transactions. If you order our Services from a SCC reseller or other authorized partner, the terms
of this Agreement apply to your receipt and use of the Services. If you do not accept the terms of this Agreement, then you must not use, or must immediately cease using, our Services.
10.16 Entire Agreement. This Agreement, together with all SOWs, and all schedules, exhibits, and attachments to this Agreement and any SOW, all of which are deemed incorporated into this Agreement by this reference, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter, including any prior non-disclosure agreement between the parties or their Affiliates. If there is a conflict between the terms of this Agreement and a SOW, the terms of the applicable SOW will control (but only with respect to the specific SOW). No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement or any SOW. Neither party will be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement or any applicable SOW (regardless of whether it would materially alter this Agreement or the applicable SOW) that is proffered by the other party in any acceptance, confirmation, invoice, purchase order, receipt, correspondence, or otherwise, unless each party mutually and expressly agrees to such provision in writing.