Applecart Terms and Conditions

These Applecart Master Terms and Conditions (“Master Terms”), along with any addenda hereto, govern your access to and use of the Services and Deliverables and, together with one or more mutually executed order forms (each an “Order Form”), form a binding agreement (the “Agreement”) between Project Applecart LLC, a Delaware limited liability company (“Provider”), and the person or entity identified as the client in an Order Form that incorporates these Master Terms by reference (“you” or “Client”). Provider and Client may be individually referred to herein as a “party” and together as the “parties.” All undefined capitalized terms used in these Master Terms shall have the meaning given to them in an applicable Order Form or elsewhere in the Agreement.

By entering into an Order Form, you agree that you have read, understood, and accepted the Agreement, including these Master Terms. You represent that you are lawfully able to enter into contracts (e.g., you are not a minor), and if you are entering into the Agreement on behalf of an entity, such as the company you work for, you further represent that you are an employee or agent of such entity and have the legal authority to bind such entity and its Affiliates as applicable, in which case the term “Client” shall refer to such entity. 

Provider reserves the right to modify these Master Terms and applicable addenda hereto at any time and for any reason, as set forth in Section 13 hereof. If Client does not agree to the Agreement as modified, Client must discontinue its use of the Services and Deliverables.

1. SERVICES AND DELIVERABLES

A. Services and Deliverables Generally. Provider shall provide the services and deliverables to Client set forth in each Order Form executed by the Parties from time-to-time (respectively, “Services” and “Deliverables”). Each Order Form and the Services and Deliverables set forth therein shall be governed by the Agreement.

B. Targeting Services and Audience Deliverables. If pursuant to an applicable Order Form, the Services include Decision Maker Targeting services (“DMT Services”) or Non-Decision Maker Targeting services (“Non-DMT Services”) (collectively, “Targeting Services”), at Client's direction and using Provider Technology, Provider will undertake to construct one or more audience segments for Client’s advertising targeting purposes (each a “Network”). Provider shall deliver one or more Networks in a file (each such file an “Audience Deliverable”) to an onboarding platform and grant access to the Audience Deliverable for use by one or more Client-designated third-party advertising platforms, destinations, or networks (each an “Advertising Destination”). Client’s use of an Audience Deliverable shall be governed by the terms and conditions of the Agreement, including the license set forth in Section 5 herein and the Applecart Unit Addendum located at www.applecart.co/AUs-addendum. At no time shall Client take possession or ownership of an Audience Deliverable, which shall constitute Confidential Information of Provider.

C. Reporting. In connection with the Services, Provider may prepare certain reports to be provided to Client (collectively, the “Report Deliverables”). Such Report Deliverables may include a summary description of  a Network (“Audience Report”).  Using data supplied by Client and its Advertising Destinations or other service providers (and only to the extent such data is supplied), Provider may also prepare a summary of selected publicly available interactions with advertising disseminated to one or more Networks (“Engagement Report”) and reporting on agreed-upon advertising performance metrics(“Performance Report”). Report Deliverables are governed by the license set forth in Section 5 herein. At no time shall Client take ownership of a Report Deliverable, which shall constitute Confidential Information of Provider and Client.

D. Media Services. If, pursuant to an applicable Order Form, the Services include the purchase of media and the dissemination of messaging by Provider on behalf of Client (“Media Services”), the terms of the Media Services Addendum located at www.applecart.co/media will apply to such Media Services.  

E. Creative Services. If, pursuant to the applicable Order Form, the Services include the development of creative assets or other advertising content (“Creative Deliverables”) intended to be disseminated by or on behalf of Client as part of an advertising campaign (collectively, “Creative Services”), the terms of the Creative Services Addendum located at www.applecart.co/creative will apply to such Creative Services.

F. Lift Survey Services. If, pursuant to the applicable Order Form, the Services include the development and execution of one or more lift surveys (“Lift Survey Services”), the terms of the Lift Survey Services Addendum located at www.applecart.co/surveys will apply to such Lift Survey Services.

G. Services and Deliverables Involving Certain Subject Matter. Depending on factors including but not limited to the composition of and/or messaging disseminated to a  Network, certain substantive laws may apply to Client’s use of the Services and Deliverables. Because Client solely determines the use case for the Services, Client is solely responsible for determining the applicability of and compliance with any substantive laws with respect to such use. Client’s use of the Services may be subject to addenda to these Master Terms as set forth below:

i.         If the Services and Deliverables implicate the application of, or require compliance with, federal and/or state securities laws, the terms of the Securities Addendum located at www.applecart.co/securities will apply to such Services and Deliverables. 

ii.         If the Services and Deliverables implicate federal, state and/or local laws governing political activities, including, without limitation, election laws, campaign finance laws, “pay-to-play” laws, or lobbying disclosure laws, the terms of the Political Addendum located at www.applecart.co/political will apply to such Services and Deliverables.

2. FEES AND PAYMENT TERMS

A. In consideration for the Services and Deliverables, Client shall make payments to Provider in accordance with the payment schedule set forth in each applicable Order Form and, to the extent an Order Form includes the purchase of Applecart Units, in accordance with the terms of the Applecart Units Addendum, located at www.applecart.co/AUs-addendum.Provider’s obligation to provide Services and Deliverables is contingent on Client's timely payment of amounts due under the Agreement, including as specified in each applicable Order Form and in the Applecart Units Addendum (as applicable). Such amounts due may include a Subscription Fee for Applecart Units, fees for AU purchases at the Project Rate or Add-On Rate, and/or fees payable to Provider for other Services rendered (“Fees”), as well as amounts due for costs paid by Provider on Client’s behalf, including but not limited to purchase of Media Services.

B. Upon execution of an Order Form, Provider shall issue an invoice to Client. Invoices are due and payable upon Client’s receipt thereof, unless otherwise specified on the applicable Order Form or invoice. Except as otherwise expressly set forth in this Agreement and/or in the applicable Order Form, fees must be paid in full prior to the delivery of Services or Deliverables to Client. Client understands and agrees that Provider will not have responsibility for any delay in the provision of Services or Deliverables caused by Client’s failure to make timely payment. Should payment not be received from Client according to the applicable terms, Provider may suspend the performance and delivery of the Services and Deliverables until all outstanding invoiced fees are paid in full. For invoicing purposes, Client is responsible for providing complete and accurate billing and contact information to Provider and notifying Provider of any changes to such information.

C. Client shall be solely responsible for all sales, use or other similar taxes levied by any governmental authority with respect to Fees and other amounts payable to Provider under the Agreement, except for any taxes based upon Provider's net income or unless Client provides in writing documentation of an applicable exemption.

D. Without limiting Provider’s rights or remedies, if Client fails to make payments when due, Provider may impose a late fee of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher.

3. CONFIDENTIALITY

A. Provider and Client shall each hold in trust for the sole benefit of the other party all materials or information of a confidential, proprietary, or competitively sensitive nature, whether marked or unmarked (“Confidential Information”), relating to the disclosing party or its Affiliates (“Disclosing Party”).  Confidential Information includes materials and information of or about Provider or Client, and their respective clients, vendors, licensors and other persons, that are not generally known to the public, including, without limitation, materials and information relating to Provider’s or Client’s business, plans, operations, products, services, methods, procedures, clients, equipment and systems, whether in written, oral or any other form. Except as expressly provided in this Agreement, Provider’s Confidential Information includes Provider Technology (as defined in Section 5(A) below), and all modifications, enhancements, and derivatives thereof. The party receiving Confidential Information (“Receiving Party”) shall not use, reproduce or disclose any Confidential Information except to the extent necessary to perform its obligations under this Agreement or as authorized by the Disclosing Party. In any event, except as authorized by the Disclosing Party, the Receiving Party shall not disclose any Confidential Information to any person other than individuals within the Receiving Party or its service providers who have a need to know such Confidential Information.  

B. The Receiving Party shall use reasonable efforts to prevent the unauthorized disclosure, reproduction, or use of the Disclosing Party’s Confidential Information, which efforts shall be no less than those the Receiving Party uses to protect its own Confidential Information. The obligations set forth in this Section 3 shall not apply to any information which (i) was known to the Receiving Party prior to being disclosed by the Disclosing Party, (ii) is or becomes publicly known through no wrongful act of the Receiving Party, (iii) is approved for release by written authorization of the Disclosing Party, (iv) is rightfully received from a third party who provided such information without breach of any separate confidentiality obligation, or (v)is independently developed without reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information to the extent required by subpoena, other court order or as otherwise required by law, provided that the Receiving Party required to make such disclosure, to the extent permitted by law, notifies the Disclosing Party promptly upon learning of such requirement and has given the Disclosing Party a reasonable opportunity to contest or limit the scope of such required disclosure.

C. Each party acknowledges and agrees that the unauthorized disclosure or use of the other party’s Confidential Information may cause irreparable harm and significant injury which may be difficult to ascertain and incapable of adequately compensating solely in terms of monetary damages. Accordingly, each party agrees that the Disclosing Party shall have the right to seek injunctive relief enjoining any breach or threatened breach of the Receiving Party’s obligations in connection with Confidential Information.

4. DATA USE AND PERSONAL DATA

A. DMT Services do not require the provision of personal data as defined by state data privacy laws ("Personal Data") by Client to Provider. Client may elect to provide Personal Data in connection with DMT and Non-DMT Services. Client acknowledges and agrees that, to the extent that Client provides Provider with Personal Data, and/or to the extent that Provider obtains, collects, or creates Personal Data at Client’s direction and solely for the purposes of providing the Services to Client hereunder, Provider is acting as Client’s service provider with respect to all such Personal Data. For the purposes of clarity and avoidance of doubt, Provider does not act as Client’s service provider when, in the normal course of Provider’s business, Provider collects and processes information for the purposes of generating and maintaining Provider Technology, including but not limited to its databases.  

B. To the extent that Client provides Provider with any Personal Data hereunder and/or to the extent that Provider obtains, collects, or creates Personal Data at Client’s direction and solely for the purposes of providing the Services to Client hereunder, Provider shall not (i) sell, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic means, any such Personal Data to any third-party for monetary or other valuable consideration, (ii) retain, disclose, or use any such Personal Data for any purpose (including any commercial purpose) other than the specific purpose of performing the Services as specified in this Agreement and in any applicable Order Form(s), and/or (iii) retain, use, or disclose any such Personal Data outside of the direct business relationship between Provider and Client.  Provider hereby certifies that it understands the restrictions described in the previous sentence, and shall comply with them.  

C. Notwithstanding anything in this Agreement to the contrary, Provider may compile statistics relating to the Services that do not identify Client (collectively, “Aggregated Data”).  Provider owns all rights, title, and interest in and to Aggregated Data, and may use and disclose Aggregated Data for Provider’s business purposes, such as improving or marketing its products and services.

5. OWNERSHIP; LICENSING

A. “Provider Technology” means all Provider Confidential Information(defined in paragraph 3(A)), including Provider’s platform, databases, and related technologies and data, and certain other information, inventions, methodologies, designs, works of authorship, data, software, algorithms, models, databases, lists, trademarks, trade secrets or other material or technology used in connection with the Services and Deliverables that are owned by and proprietary to Provider or its licensors. Provider Technology includes all existing and new Provider Technology and all modifications, enhancements, and derivatives thereof created or developed, whether alone or with others, during the Term of this Agreement, whether or not in connection with the Services and Deliverables. As between Provider and Client, all Provider Confidential Information, Provider Technology and Deliverables, other than as expressly set forth herein, are and shall remain the sole property of Provider. Client shall not obtain any rights, title or interests in or to Provider Confidential Information, Provider Technology and Deliverables, other than the limited right and license applicable to the Deliverables as set forth in this Section 5.

B. License to Use Audience Deliverables. During the term specified on an applicable Order Form, Provider hereby grants to Client a limited, non-exclusive, royalty-free, revocable, non-transferrable (except as part of a permitted assignment of this Agreement), non-sublicensable (except to Client’s Affiliates and service providers) United States license (i) to use Audience Deliverables solely for Client’s activities contemplated by the applicable Order Form under which such Audience Deliverables were provided, and (ii) to authorize its contracted service providers, including Advertising Destinations, to use Audience Deliverables solely in furtherance of such activities performed solely on behalf of Client, and solely to the extent that Client’s service provider is bound by use restrictions and contractual obligations of confidentiality and adherence to applicable laws and regulations which are no less restrictive than the obligations set forth in this Agreement. Unless expressly agreed upon in writing, the license grant set forth herein is only for the benefit of the Client and not for any other third-party, including a Client Affiliate or Client customer. In order to ensure that Client (and its service providers) timely terminate their use of Audience Deliverables, upon expiration of the applicable license term, Audience Deliverables covered by such license may be flooded with additional, irrelevant data not responsive to Client’s audience criteria. Client acknowledges and agrees that any use of an Audience Deliverable after the expiration of the license term may be disadvantageous to Client and result in significant advertising costs to Client, and Provider will not be responsible or liable for any costs, damages, or other losses arising from such unauthorized use of Audience Deliverables after the expiration of the applicable license term.

C. Report Deliverables. With respect to the Report Deliverables, Provider hereby grants to Client a limited, non-exclusive, royalty-free, revocable, non-transferable, non-sublicensable United States license to use Report Deliverables for Client’s internal purposes only.

D. Use of Deliverables Generally. Client shall be responsible for ensuring that Client’s use and its service providers’ use of Deliverables, including but not limited to Audience Deliverables and Creative Deliverables, are conducted in strict compliance with the Agreement and all applicable laws and regulations. Client is liable for its service providers’ use of Deliverables to the same nature and extent that Client is liable for its own use of Deliverables hereunder. For Services involving distribution of Audience Deliverables to an Advertising Destination, prior to Provider’s delivery of any Deliverables to an Advertising Destination, Client (or its third-party service provider or agency, as applicable) shall accept all terms required by the Advertising Destination for use of its advertising services (the “Advertising Destination Requirements”). Client acknowledges that Provider has no responsibility or liability to Client for the use of any Deliverable by an Advertising Destination.

E. Client shall use Deliverables consistent with the limited license granted in this Section 5 and all other applicable terms in the Agreement. Client shall promptly notify Provider of any unauthorized disclosure or use of Deliverables, including any use of Deliverables for the benefit of a third party. Client will provide all reasonable assistance to cause such any unauthorized use to cease and, if requested by Provider, to cause the return or destruction of any such Deliverables.

F. Client agrees to permit Provider to use Client’s name and mark as part of Provider’s customer list on its marketing website and other marketing materials, and grants to Provider a limited, non-exclusive, revocable license to use its mark as necessary for such purpose.

6. DISCLAIMERS

A. Advertising efforts are dynamic undertakings that involve many influences and factors, of which Provider’s services are merely one. Client acknowledges that Provider makes no representations or warranties concerning the effectiveness or impact of the Services provided. Any estimates or projections provided by Provider are solely illustrative and shall not be construed as a guarantee by Provider.

B. BECAUSE ALL SERVICES ARE UNDERTAKEN ON CLIENT’S BEHALF, CLIENT SHALL BE SOLELY RESPONSIBLE FOR ENSURING THAT ALL SERVICES ANDDELIVERABLES ARE COMPLIANT WITH ALL APPLICABLE LAWS AND FOR CONSULTING WITH LEGAL COUNSEL, AS NEEDED.  PROVIDER SHALL REASONABLY COOPERATE WITH CLIENT AND ITS COUNSEL IN CONNECTION WITH LEGAL COMPLIANCE, AND TAKE ACTIONS REASONABLY REQUESTED BY CLIENT OR BY CLIENT’S COUNSEL TO FACILITATE SUCH COMPLIANCE.

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THESERVICES AND THE DELIVERABLES ARE PROVIDED ON AN “AS-IS” BASIS, AND PROVIDER (I) MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES AND THE DELIVERABLES, (II) DISCLAIMS ANY WARRANTY THAT THE SERVICES AND THE DELIVERABLES WILL BEERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED, AND (III) DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AND THE DELIVERABLES AS TO MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

7. INDEMNIFICATION AND LIMITATION OF LIABILITY

A. Provider shall indemnify, defend, and hold harmless Client and its Affiliates and its and their respective managers, directors, members, shareholders, officers, employees and representatives from and against all out-of-pocket costs, damages, losses, judgments, fines, and expenses(including reasonable attorneys’ fees) incurred by Client or its indemnified parties in connection with any third-party demand, claim or proceeding arising from any infringement by Provider’s Technology or Services of any third party’s United States patent, trademark, copyright, or trade secret rights, except to the extent any such infringement arises from (i) alterations made by Client or third parties to Provider’s Technology or Services without Provider’s consent, (ii) any materials, information, specifications or instructions provided by Client, (iii) breach of this Agreement or otherwise improper or unauthorized use of Provider’s Technology or the Services by Client or any third party obtaining access through Client, (iv) combination of Provider’s Technology or Services with products or services that are not provided by Provider, or (v) Proposed Trademarks or Proposed Patents (as those terms are defined in the Creative Services Addendum, where applicable). Should Provider’s Technology, Services or Deliverables become, or in Provider’s opinion be likely to become, the subject of a claim of infringement or misappropriation, Provider may, at its option and expense, either: (a) procure for Client the right to continue to use Provider’s Technology, Services or Deliverables, (b) replace or modify the infringing portions of Provider’s Technology, Services or Deliverables to make their use non-infringing without loss of substantial functionality, or (c) terminate Client’s license for the allegedly-infringing portions of Provider’s Technology, Services, Deliverables or this Agreement. If Provider elects option (c), Provider shall refund to Client the unused portion of any fees prepaid under this Agreement to be determined in Provider’s sole discretion.  The infringement indemnification remedies provided herein shall be Provider’s sole liability, and Client’s sole and exclusive remedy, for any claims or allegations relating to intellectual property infringement or misappropriation. 

B. Client shall indemnify, defend, and hold harmless Provider and its Affiliates and its and their respective managers, directors, members, shareholders, officers, employees and representatives from and against all out-of-pocket costs, damages, losses, judgments, fines, and expenses (including reasonable attorneys’ fees) incurred by Provider or its indemnified parties in connection with any third-party demand, claim or proceeding arising from (i) Client’s use and/or Client’s service provider’s use of or instructions for the Services and/or Deliverables (including, without limitation, any use of Creative Deliverables, as defined in the Creative Services Addendum), unless Provider acts in a manner materially inconsistent with instruction from Client; (ii) the transmission or use by Provider (or by Provider’s service provider, as applicable) of Client-provided and/or Client-approved content or materials to third-party individuals or entities at Client’s direction; (iii) Client’s actual or alleged breach of this Agreement; or (iv) Client’s actual or alleged violation of applicable laws, rules or regulations, (v) Provider’s compliance with Client’s instructions for the Services and/or Deliverables, and/or (vi) Provider’s use of Client-provided and/or Client-approved content or materials. In addition, and without limiting the foregoing, Client shall reimburse Provider for all out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by Provider in connection with the production of documents, the disclosure of information, or the provision of testimony related to the Services and/or Deliverables pursuant to any subpoena, court order, or similar process.

C. An indemnified party shall promptly provide the indemnifying party with written notice of any claim for which it seeks indemnification hereunder, and the indemnifying party shall have the right to assume the defense thereof; provided, however, that failure of the indemnified party to provide such notice will not release the indemnifying party from any of its indemnity obligations except to the extent that the indemnifying party’s ability to defend such claim is materially prejudiced by such delay. The indemnifying party shall not settle or compromise any such claim without the full release of the indemnified party from all liabilities and obligations (except for any obligations that the indemnified party has consented to in writing), and such settlement shall not impose any obligation on the indemnified party (including the payment of any amount) without the prior written consent of the indemnified party. The indemnifying party shall also not admit liability or wrongdoing on behalf of an indemnified party without the indemnified party’s prior written consent.  Each party shall have the right to participate, at its expense, in the defense of any claim covered hereunder with counsel of its own choosing. 

D. IN NO EVENT SHALL PROVIDER’S AGGREGATE LIABILITY TOCLIENT ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AGGREGATE FEES PAID TO PROVIDER BY CLIENT UNDER THE ORDER FORM UNDER WHICH THE LIABILITY ARISES IN THE SIX (6) MONTHS PRECEDING THE LATEST EVENTS GIVING RISE TO SUCH LIABILITY, EXCLUSIVE OF ANY PASSTHROUGH COSTS.  IN NO EVENT SHALL PROVIDER, ITS DIRECTORS, EMPLOYEES, AGENTS, MEMBERS, MANAGERS OR LICENSORS BELIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, LOST DATA, GOODWILL, USE, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT. THE FOREGOING LIMITATIONS AND DISCLAIMERS OF LIABILITY SHALL APPLY EVEN IF A PARTY KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL PROVIDER’S EMPLOYEES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, OR ANY OTHER INDIVIDUALS AFFILIATED WITH PROVIDER BE HELD PERSONALLY OR INDIVIDUALLY LIABLE FOR ANY DAMAGES OR LOSSES INCURRED BY CLIENT OR BY ANY OTHER PERSON IN CONNECTION WITHTHIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY.  NEITHER PARTY MAY BRING AN ACTION IN ANY FORM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.

8. INDEPENDENT CONTRACTOR

The parties agree that Provider is, and throughout the term of this Agreement shall be, an independent contractor. Nothing contained in this Agreement shall create or imply a partnership, joint venture, agency, or employment relationship between Client and Provider.  

9. GOVERNING LAW; DISPUTE RESOLUTION

A. This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of New York, without giving effect to the conflicts of laws rules thereof. Exclusive jurisdiction and venue for the adjudication of any disputes relating to this Agreement shall be in the state and federal courts (including the appellate courts) located in New York County, New York, and the parties hereby consent to the jurisdiction and venue of such courts. The parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

B. If a dispute arises out of or in connection with this Agreement or the performance, validity, or enforceability thereof (a “Dispute”), then except as may be otherwise expressly provided in this Agreement, the parties shall follow the procedure set out in this subsection: (i) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (the “Dispute Notice”), together with relevant supporting documents; (ii) upon service of the Dispute Notice, a duly authorized representative of each party shall promptly meet and attempt in good faith to resolve the Dispute; and (iii) if the duly authorized representatives of each party are, for any reason, unable to resolve the Dispute within thirty (30) days of it being referred to them, the parties may proceed in accordance with Section 9(A).

10. ENTIREAGREEMENT; NO WAIVER

Except as herein expressly provided, notwithstanding anything to the contrary in this Agreement or elsewhere, this Agreement, including any Order Forms entered into by the parties, constitutes the entire understanding between the parties with respect to the subject matter hereof and shall supersede all previous and/or contemporaneous negotiations, commitments, understandings and agreements. The failure of a party to enforce any provision of the Agreement will not constitute a waiver of that provision or deprive a party of the right to subsequently insist upon strict adherence to that provision, or any other provision contained therein.    

11. NOTICES

All notices or requests required to be given under this Agreement and all other communications related to this Agreement shall be inwriting and shall be deemed to have been duly given if personally delivered, sent by nationally recognized overnight courier with delivery confirmation, or mailed, first class, by registered or certified mail return receipt requested. Notices must be sent to the address of each party set forth in the applicable Order Form. All notices hereunder shall be effective when received by the party receiving notice. Either party may change such address by written notice issued and delivered as above.

12. TERM AND TERMINATION

A. The term of the Agreement will commence on the Service Effective Date set forth on an applicable Order Form and continue until terminated as permitted by this Agreement, including an applicable Order Form or the Applecart Units Addendum (collectively, the “Term”). The Agreement shall remain in full force and effect until all Order Forms have been terminated or have expired.

B. In the event of a material breach of this Agreement or an Order Form by the other party, either party may, upon written notice to the other party, terminate the Agreement (including all Order Forms) or the affected Order Form, if such breach is not cured within thirty (30) days after receipt of written notice by the non-breaching party specifying, in reasonable detail, the nature of the breach. If Client payment is more than 30 (thirty) days overdue, Provider shall have no obligation to continue providing any Services hereunder until such payment is received by Provider; and if payment is not made within fifteen (15) days following written notice of nonpayment, Provider may terminate the Order Form or Agreement. If there are no outstanding Order Forms under this Agreement, either party may, at any time, terminate this Agreement by providing written notice to the other party.

C. Immediately upon any termination or expiration of this Agreement or an applicable Order Form, Client (and its Affiliates and service providers, if applicable) will return, or destroy and certify such destruction in writing, any Confidential Information of Provider, including the Deliverables furnished under any such expired or terminated Order Form, in Client’s possession or control. In the event any Deliverables or other Confidential Information of Provider remain in the possession or control of Client following any termination of this Agreement, the terms of Sections 3 and 5(E) shall remain in effect for as long as such Deliverables or other Confidential Information remain in the possession or control of Client.

D.  Notwithstanding anything to the contrary in this Agreement, the parties agree that the terms and conditions of the Agreement and addenda hereto shall survive the termination of the Agreement to the extent necessary for the enforcement of the parties’ rights and obligations, along with any other provisions that, by their nature, are intended to survive.    

13. MODIFICATIONS

Provider reserves the right to modify this Agreement for any reason. Client should look at this Agreement regularly and the “Last Updated” date at the beginning of the Master Terms and appliable addenda thereto.  Provider will use reasonable efforts to give Client notice of modifications, such as posting notice of modifications on this web page. By continuing to use the Services and/or Deliverables after Provider makes these modifications, Client agrees that it will be subject to the Agreement as modified with respect to Order Forms entered into on or after the date of the modification; however, Provider will not apply modifications to the Agreement retroactively to Order Forms entered into before the date of the modification unless Client affirmatively consents. Except as otherwise expressly provided in this Section 13, no modifications to the Agreement shall be valid unless made in writing and signed by a duly authorized representative of Client and by Provider, and neither the acquiescence in any performance at variance to the provisions of this Agreement nor the failure to exercise any right or enforce any obligation hereunder shall be deemed a modification of this Agreement.

14. CONFLICTS

In the event of any conflict between the terms set forth in the Master Terms, an addenda, or an Order Form, the order of precedence shall be as follows (from most precedential to least precedential): (1) the Order Form with respect to the subject matter in conflict, but solely to the extent the Order Form expressly references the provision of the Agreement to be overridden, (2) the terms of any applicable addenda, and (3) the Master Terms.

15. ASSIGNMENT

This Agreement may not be assigned, in whole or in part, by either party without the prior written consent of the other party; provided, however, that Provider may assign this Agreement, without notice to Client, (i) to any successor to substantially all its business or assets by merger, reorganization, combination, consolidation, purchase of assets or otherwise, or to any party acquiring substantially all of the assets or business of the business unit of Provider to which this Agreement relates, or (ii) to an Affiliate.  For purposes of this Section 15 only, “Affiliate” means any entity directly or indirectly controlling, controlled by or under common control with a party where “control” of an entity means ownership or the ability to direct the voting of at least fifty percent (50%) of the equity voting interests in such entity.

16. FORCE MAJEURE

Provider will not be liable for any breach of the Agreement, for any delay or failure of performance, resulting from any cause beyond Provider’s reasonable control, including but not limited to the weather, unavailability of utilities or communications services (including access to the Internet), civil disturbances, criminal acts of third parties, acts of terror, acts of civil or military authorities, pandemics, government shutdowns, or acts of God.

17. NO DRAFTSMAN’S PRESUMPTION  

The parties acknowledge that each party had the opportunity to engage counsel in connection with drafting, reviewing and negotiating this Agreement and that, accordingly, no draftsman’s presumption or similar rule of construction shall be applied to construe this Agreement in favor of or against either party.