Localist Corporation, a Delaware corporation, with a principal place of business at 8484 Georgia Ave, #675, Silver Spring, Maryland 20910 (“Localist”) owns all right, title and interest in, or if applicable, licenses to, the Localist Technology (as hereinafter defined) that you have downloaded, installed, used, subscribed to or otherwise accessed from this website or otherwise obtained from Localist. In consideration of the mutual promises, covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, covenant and agree as follows:
IMPORTANT – READ THESE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT CAREFULLY BEFORE PAYING A LOCALIST INVOICE, DOWNLOADING, INSTALLING, USING, SUBSCRIBING TO OR OTHERWISE ACCESSING THE LOCALIST TECHNOLOGY. BY PAYING A LOCALIST INVOICE, DOWNLOADING, INSTALLING, USING, SUBSCRIBING TO OR OTHERWISE ACCESSING THE LOCALIST TECHNOLOGY, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SUBSCRIPTION AGREEMENT, THAT YOU UNDERSTAND IT, THAT YOU OR THE COMPANY FOR WHOM YOU ARE AUTHORIZED TO EXECUTE THIS SUBSCRIPTION AGREEMENT (“CUSTOMER”) AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS AND THAT YOU ARE AT LEAST 18 YEARS OF AGE. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT, PROMPTLY EXIT THIS PAGE WITHOUT DOWNLOADING, INSTALLING, USING, SUBSCRIBING TO OR OTHERWISE ACCESSING THE LOCALIST TECHNOLOGY.
LOCALIST IS WILLING TO PROVIDE CUSTOMER WITH A LICENSE TO ACCESS THE LOCALIST TECHNOLOGY ONLY UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, ON THE LOCALIST WEBSITE, ON ANY REGISTRATION OR CUSTOMIZATION FORM RECEIVED BY CUSTOMER FROM LOCALIST IN CONNECTION WITH THE LOCALIST TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, ANY ORDER FORMS (AS HEREINAFTER DEFINED) (COLLECTIVELY, “PRODUCT FORMS”) AND ON ANY DOCUMENTS REFERENCED ON LOCALIST’S WEBSITE, INCLUDING, BUT NOT LIMITED TO, ANY ADDITIONAL TERMS AND CONDITIONS THAT CAN BE VIEWED ON, OR LINKED FROM, SUCH PAGES (COLLECTIVELY, THE “TERMS AND CONDITIONS” ALONG WITH PRODUCT FORMS, THE “AGREEMENT”).
LOCALIST OWNS ALL INTELLECTUAL PROPERTY RIGHTS (AS HEREINAFTER DEFINED) IN THE LOCALIST TECHNOLOGY. THIS IS A LICENSE, NOT A SALE. LOCALIST PERMITS YOU TO DOWNLOAD, INSTALL, USE OR OTHERWISE ACCESS THE LOCALIST TECHNOLOGY ONLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. USE OF SOME THIRD PARTY MATERIALS INCLUDED IN THE LOCALIST TECHNOLOGY MAY BE SUBJECT TO OTHER TERMS AND CONDITIONS FOUND IN SEPARATE LICENSE AGREEMENTS.
1.1. “Customer Technology” means Customer’s and/or it suppliers’ proprietary technology, including, but not limited to, Customer’s Internet operations design, hardware, content, software tools, hardware designs, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects, documentation (both printed and electronic), know-how, trade secrets and any related Intellectual Property Rights.
1.2. “Documentation” means Localist’s guides, manuals and online help related to the Localist Technology and Services (as defined in Section 2), which Localist publishes specifically for its customers at http://support.localist.com.
1.3. “Intellectual Property Rights” shall mean any and all right, title, and interest (including, but not limited to, all patents, patent registrations, copyrights, trademarks, trade names, service marks, service names, trade secrets, or any other proprietary rights) now known or that hereinafter become known.
1.4. “Localist Technology” means Localist’s and/or it suppliers’ proprietary technology, including, but not limited to, Programs, Documentation, Internet operations design, hardware, content, software tools, hardware designs, algorithms, software (in source and object forms), application programming interface, user interface designs, architecture, class libraries, objects, documentation (both printed and electronic), know-how, trade secrets and any related Intellectual Property Rights.
1.5. “Losses” shall mean all losses, liabilities, damages and claims, and all related costs and expenses (including, but not limited to, reasonable attorneys’ fees and disbursements and costs of investigation, litigation, settlement, judgment, interest and penalties).
1.6. “Order Form” means the ordering documents for the Localist Technology hereunder, including addenda thereto, that are entered into between Customer and Localist from time to time. Order Forms shall be deemed incorporated herein by reference. You agree that Order Forms may be entered into using solely or partially electronic signature and electronic contracting process and such electronic signatures or acceptances shall be valid as signed writings.
1.7. “Program(s)” means the computer software, in object code form owned, subscribed or licensed, by Localist for which Localist grants a license hereunder.
1.8. “User” shall mean the authorized users of Customer accessing the Localist Technology while using the Services through the Branded Site (as defined in Section 3) solely for Customer’s internal business purposes, subject to the terms and conditions set forth herein.
1.9. “You” or “Your” or similar pronouns means you, individually, and the company or other legal entity for which you are accepting this Agreement.
2.1. Services. Subject to the payment by Customer of any and all applicable fees and expenses set forth herein and the other terms and conditions of this Agreement, Localist shall provide to Customer the services (collectively, the “Services”) described below:
2.1.1. Hosting Services. Localist shall host and operate the Localist Technology on designated computer servers in accordance with the terms and conditions set forth herein (“Hosting Services”).
2.1.2. Product Support. Localist shall provide Customer with implementation, training or other deployment services ("Product Support") set forth in the Order Form.
2.1.3. Supplemental Services. If Localist provides Customer with certain limited services and equipment outside the scope of Services or on an emergency basis (“Supplemental Services”), Localist shall notify Customer of the fees for any Supplemental Services requested by Customer and obtain Customer’s approval prior to providing such services. In the event Localist reasonably determines that Supplemental Services are required on an emergency basis, Localist may provide such services without the consent of Customer, at Customer’s expense.
2.1.4. Maintenance Support Services. Subject to the payment of any and all applicable fees, Localist shall provide customer with the support services (the “Support Services”) set forth in its then current Service Level Agreement (the “SLA”) which is available at http://www.localist.com/sla and incorporated herein by reference.
2.2. Data Retention. Localist’s current data retention policy is set forth in the SLA. Localist, in its sole discretion, may amend, modify or alter the data retention policy with or without notice to Customer. During the term hereof, Customer may request in writing that Localist modify its data retention policy as applied to Customer. If Localist, in its sole discretion, approves of such request, prior to providing such Services to Customer, the parties shall agree, in writing, to the terms and conditions on which Localist will provide such Services to Customer including, but not limited to, the payment of any additional fees.
2.4. Service Level Agreement. Localist shall use commercially reasonable efforts to provide Customer with the Services in accordance with its then current SLA. The SLA is subject to change at Localist’s discretion upon ninety (90) days written notice to Customer, provided that any such changes shall not substantially or materially lower the quality or level of which the Customer enjoys immediately prior to such change.
3.1. Grant of License by Localist. During the term hereof and subject to the payment of any and all applicable fees and expenses set forth herein and other terms and conditions of this Agreement, Localist hereby grants to Customer a nonexclusive, non-transferable, non-sublicenseable license to display the Localist Technology branded with Customer’s brand on the Services website as mutually agreed upon in writing by the parties (the “Branded Site”) solely for the purposes of using the Services for its internal business purposes. Customer shall have no right to use the Localist Technology and/or Services for any purpose other than as set forth herein. All rights not expressly granted by Localist to Customer are hereby reserved by Localist and all implied licenses are hereby disclaimed.
3.2. Grant of License by Customer. Customer agrees that if, in the course of performing the Services, it is necessary for Localist to use the Customer Technology, Customer hereby grants Localist and its subcontractors, if any, a nonexclusive, royalty-free license, during the term of this Agreement, to use the Customer Technology solely for the purposes of delivering the Localist Technology and Services to Customer. Localist shall have no right to use the Customer Technology for any purpose other than as set forth herein.
3.3. Ownership. Localist and its suppliers shall retain all right, title, and interest in and to the Localist Technology and/or Services and any modifications thereto, and any related Intellectual Property Rights. All software modifications, interface development and report development performed by Localist in connection with the performance of the Services hereunder shall be the exclusive property of Localist and shall be deemed Localist Technology. Customer does not acquire any right, title or interest, express or implied, in the Localist Technology and/or Services, other than those expressly set forth in this Agreement. Subject to the confidentiality provisions of this Agreement, Localist retains the right to use its skill and the knowledge, experience and know-how, including, but not limited to, the ideas, concepts and techniques, whether developed prior to, independently of, or in the course of performing any services hereunder.
3.4. Restrictions. Except as otherwise expressly provided hereunder, Customer shall not assign, modify, create derivative works of, sublicense, market, copy, private label, co-brand, rebrand, grant third parties the right to use, resell, rebroadcast, frame or link to the Localist Technology or Services, sell, lease, loan, rent, distribute, convey, publish, transmit, publicly display or otherwise transfer, or pledge as security or otherwise encumber, the rights and licenses granted hereunder with respect to the Localist Technology or Services, or any portion thereof. Customer shall not store, copy, reproduce, modify, upload, post, translate, scrape, reverse engineer, decompile, adapt or disassemble, or in any way attempt to reconstruct or discover any source code or algorithms of the Localist Technology or Services, or any portion thereof, by any means whatsoever. Customer shall not use the Localist Technology or Services, or any portion thereof, in any manner to provide service bureau, time-sharing or other computer software or database services to third parties or for the benefit of third parties or monitor the availability, performance or functionality of the Localist Technology or Services, or any portion thereof, or for any similar benchmarking purposes. Customer shall not cause or permit any third party to, and shall prevent Users from doing any of the foregoing. Customer agrees to notify Localist immediately of any unauthorized use of the Localist Technology or Services.
3.6. User Data. Between the parties and subject to any applicable laws, Customer shall be the sole and exclusive owner of all information and data inputted by Users accessing the Localist Technology (collectively, "User Data") and such data shall be deemed Customer's Confidential Information (as defined in Section 5). Customer hereby grants to Localist, and its subcontractors and agents, a worldwide, non-exclusive right and license to use the User Data during the term hereof to provide the Services to Customer and the perpetual right to aggregate the User Data in a manner which does not disclose any individual identifiable information and to use such aggregated data for any legal purposes whatsoever. Notwithstanding anything to the contrary herein, Localist is the sole and exclusive owner of information other than User Data collected by the Localist servers including, but not limited to, usage statistics of the Localist Technology.
3.7. Branding & Notices. Customer shall affix the following proprietary rights notice to any marketing materials and products or services used in connection with the Localist Technology or Services: “Powered by Localist.” Customer shall prominently display a Localist logo on its website when content is accessed by Users which logo shall be provided to Customer by Localist from time to time and Localist may display a textual or logo with “Powered by Localist” on the footer of each page of the Services. Localist shall approve in writing the appearance of its logo before each use by Customer.
3.8. Third Party Products and Services. From time to time, Localist may offer third party applications, data and services integrated with the Localist Technology. In addition, the Localist Technology may be integrated into a third party service or platform. Localist is only responsible for the Localist Technology and Customer agrees that Localist shall not be liable, or otherwise responsible, for the accuracy, performance, reliability, availability or any other feature, failure or damage caused by any third party service, plugin, software, platform or other functionality that is not directly supplied by Localist. Each such third party service, platform, software or plugin may contain additional terms and conditions. Customer agrees that if it is damaged or has any issue with such third party service, platform, software or plugin, it will contact the vendor/supplier of that third party service, platform, software or plugin directly and will seek all remedies directly with such third party vendor/supplier.
4.1. Fees and Payment Terms. Customer shall pay all fees and expenses specified in all Order Forms in accordance with the terms set forth in the Order Forms. During the term hereof, Localist shall invoice Customer (as specified in the Order Forms) for Hosting Services and any related expenses (i.e. telecommunications, software license fees, software maintenance and support fees, other expenses, etc.) after the Customer obtains connectivity through the Branded Site to the Localist Technology (“Connection Date”), and such fees and related expenses are due and payable thirty (30) days from the date of such invoice. For all fees and related expenses other than Hosting Services fees for other services performed after the Connection Date, Localist shall invoice Customer at such time it performs such services, and such fees and expenses are due thirty (30) days from the date of each applicable Localist invoice. All payments will be made in United States dollars. Late payments of any fees and expenses owing to Localist hereunder shall accrue interest at a rate of one and one-half percent (1.5%) per month from the due date until such payment is made. If Customer fails to pay any undisputed fees within thirty (30) days of the due date, Localist may, at its sole discretion, and without limiting any other remedy, cease providing Customer all or part of the Localist Technology and Services upon five (5) days written notice to Customer. If any fee is disputed by Customer, and such dispute cannot be resolved promptly, Customer shall pay the amounts due under this Agreement, less the disputed amount, and shall advise Localist in reasonable detail of the reason for the dispute. If the disputed amount is later determined to have been payable, Customer shall pay Localist (i) interest on such amount from the 35th day after the disputed invoice was originally received by Customer, at the interest rate described herein, and (ii) reimbursement for all reasonable costs incurred by Localist in collecting past due amounts, including, but not limited to, attorneys’ fees.
4.2. Taxes. All payments required by this Agreement exclude all applicable sales, value-added, use, or other taxes and obligations, all of which Customer shall pay in full, except for taxes based on Localist’s net income.
4.3. Annual Adjustment Fee. The Annual License Fee set forth in the Order Form (excluding telecommunications fees, third party software license fees or maintenance fees) shall be adjusted annually on each anniversary of the Connection Date in an amount equal to 5% of the previous year's Annual License Fee. All other fees including, but not limited to, telecommunications fees, third party software license fees or maintenance fees shall be directly passed through to Customer and related annual cost increase within thirty (30) days of Localist’s receipt of such fees.
4.4 Paid Registration Processing. If Customer uses Localist for processing payments for paid events, Customer must comply with the "Registration and Ticketing" section in the Terms of Service (the “Terms of Service”) as made available at http://www.localist.com/terms. Localist's payment processing fee is assessed at 3.9% + $1.30 per transaction.
4.5 Bulletin Usage. If Customer uses Localist for sending event emails through its Bulletin feature, this Agreement includes two thousand five hundred (2,500) sends per month and one (1) campaign. An upgrade to increase this limit can be purchased, with its limitations enumerated in the Order Form.
5.1. Confidential Information. Each party acknowledges that it will have access to certain confidential and proprietary information of the other party concerning the other party's business, plans, customers, technology, and products, including, without limitation, the Localist Technology and Documentation and the terms and conditions of this Agreement ("Confidential Information"). Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party's attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and shall take reasonable precautions to protect the confidentiality of such information. The obligations set forth in this Section 5 shall survive termination or expiration of this Agreement.
5.2. Exceptions. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to its receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party without the reference or use of the other party's Confidential Information.
THE LOCALIST TECHNOLOGY AND SERVICES ARE PROVIDED TO CUSTOMER “AS IS” AND ON AN “AS IS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND ANY USE OF OR RELIANCE ON THE LOCALIST TECHNOLOGY AND SERVICES IS AT CUSTOMER’S OWN RISK. LOCALIST MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY OR ARISING FROM TRADE USAGE OR COURSE OF CONDUCT, WHETHER ORAL OR WRITTEN, AND LOCALIST EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, TITLE, SUITABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES ARISING UNDER ANY APPLICABLE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, INCLUDING, BUT NOT LIMITED TO, SUBTITLE 4 OF TITLE 21 OF THE MARYLAND ANNOTATED CODE COMMERCIAL LAW ARTICLE. LOCALIST DOES NOT WARRANT THAT THE LOCALIST TECHNOLOGY OR SERVICES SHALL FULFILL ANY PARTICULAR PURPOSES OR NEEDS OF CUSTOMER OR THAT THE OPERATION OF THE LOCALIST TECHNOLOGY SHALL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY ERRORS SHALL BE CORRECTED OR THAT THE LOCALIST TECHNOLOGY AND SERVICES SHALL BE COMPATIBLE WITH ANY PARTICULAR PLATFORM. LOCALIST SHALL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF INFORMATION PROVIDED BY USERS OR THIRD PARTIES FOR OR VIA THE LOCALIST TECHNOLOGY OR SERVICES NOR FOR ANY INACCURATE RESULTS DUE TO LOCALIST’S PROCESSING OF ANY SUCH DATA. LOCALIST MAKES NO WARRANTY OF TIMELINESS OF DELIVERY OF THE LOCALIST TECHNOLOGY AND SERVICES TO, OR PROCESSING OF ANY INFORMATION OR DATA PROVIDED BY, CUSTOMER. LOCALIST MAKES NO WARRANTY AS TO THE ACCURACY, RELIABILITY, CURRENCY, QUALITY, COMPLETENESS, USEFULNESS, PERFORMANCE, SECURITY, LEGALITY OR SUITABILITY OF THE LOCALIST TECHNOLOGY OR SERVICES OR ANY OTHER MATERIALS, SOFTWARE, DATA, CONTENT OR OTHER TECHNOLOGY PROVIDED OR MADE AVAILABLE PURSUANT TO THIS AGREEMENT OR THAT THE LOCALIST TECHNOLOGY AND SERVICES ARE SECURE OR PREVENT THE DISTRIBUTION OF VIRUSES.
7.1. Indemnity. Customer hereby agrees to defend, indemnify and hold Localist and its licensors and suppliers (including, but not limited to, their assignees, subsidiaries, affiliated companies and their respective officers, directors, employees, shareholders, agents and representatives) harmless from and against any and all Losses incurred or asserted by any third party (i) arising out of or in connection with Customer’s use of or access to the Licensed Technology; (ii) alleging that the User Data or Customer Technology or Customer’s use of or access to the Localist Technology is in violation of this Agreement, infringes or misappropriates the Intellectual Property Rights of a third party or violates applicable law; and (iii) arising out of or in connection with Customer’s (or its agents, representatives, affiliates or other persons who act on its behalf) negligent or intentional action or omission, breach of this Agreement or failure to comply with applicable law.
7.2. Injunction. In the event the Localist Technology is held or is believed by Localist to infringe upon a third party’s U.S. Intellectual Property Right, Localist, at its sole discretion, shall have the option, at its expense, to (i) modify the Localist Technology to be non-infringing but maintaining substantially similar functionality; (ii) obtain for Customer a license to continue using the Localist Technology, or (iii) terminate the license for the infringing Localist Technology. This Section 7 states Localist’s entire liability and Customer’s exclusive remedy for infringement.
IN NO EVENT SHALL LOCALIST BE LIABLE FOR ANY INCIDENTAL, DIRECT, INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSSES, COSTS OR EXPENSES OF ANY KIND, HOWEVER CAUSED AND WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, COSTS OF DELAY, COSTS OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY, COST OF CAPITAL, LOSS OF GOODWILL, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE EVEN IF LOCALIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR SUCH LOSSES RESULT FROM THE USE OF LOCALIST TECHNOLOGY OR SERVICES OR INABILITY TO USE THE LOCALIST TECHNOLOGY OR SERVICES, OR ANY PORTION THEREOF, OR THE RELIANCE ON ANY CONTENT OR OTHER INFORMATION PROVIDED HEREUNDER OR RESULTS FROM THE PERFORMANCE OF SERVICES OR IMPLEMENTATION OF ANY RECOMMENDATION MADE BY LOCALIST. THE AGGREGATE LIABILITY OF LOCALIST, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND ALL AGENTS AND OTHER PERSONS AND ENTITIES AFFILIATED OR ASSOCIATED WITH LOCALIST FOR ALL LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE LOCALIST TECHNOLOGY OR SERVICES, REGARDLESS OF THE FORM OF ACTION OR THE PERSON OR ENTITY BRINGING SUCH ACTION, SHALL NOT EXCEED THE LESSER OF THE AMOUNT OF FEES PAID TO LOCALIST BY CUSTOMER DURING THE ONE YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE LOSSES OR TEN THOUSAND DOLLARS ($10,000.00). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE FIRST TO OCCUR (I) THE TERMINATION OR EXPIRATION OF THIS AGREEMENT OR (II) THE EVENT GIVING RISE TO SUCH LOSSES. The foregoing limitation of liability and exclusion of certain damages shall apply without regard to whether other provisions of this Agreement have been breached or have been determined by a court of competent jurisdiction to be invalid, void or unenforceable.
9.1. Term. The term of this Agreement shall commence on the date You accept it (the “Effective Date” and shall continue for the term set forth in the Order Form (“Original Term”), and shall renew automatically thereafter for successive one (1) term periods (each, a “Renewal Term” and collectively, the “Term”), unless either party provides the other party with written notice of termination at least 30 days prior to the expiration of the Original Term or the then current Renewal Term.
9.2. Termination. Either party will have the right to terminate this Agreement, if the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of the same. Without limiting the foregoing, it is agreed that (i) the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts against a party which is not dismissed or withdrawn within sixty (60) days thereafter; (ii) a general assignment for the benefit of creditors; or (iii) such party’s dissolution or ceasing to conduct business in the ordinary course shall constitute a material breach which entitles the other party the right to terminate this Agreement. Localist shall have the right to terminate this Agreement upon thirty (30) days written notice to Customer in the event that Customer exceeds the maximum usage as set forth in the TRAFFIC ALLOWED section of this agreement for more than two (2) consecutive months and the parties are unable to negotiate new terms and conditions to account for the additional traffic.
9.3. Effect of Termination. Upon the effective termination date of this Agreement: (i) Localist shall immediately cease providing the Localist Technology and Services to Customer; (ii) all licenses granted to a party hereunder shall terminate, (iii) any and all payment obligations that have accrued or are otherwise owed by Customer under this Agreement will become due and payable immediately; and (iv) within ten (10) days after such expiration or termination, each party shall return, destroy or delete from operational systems and onsite storage all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. Destruction or deletion of Confidential Information shall be confirmed in writing.
9.4. Transition Services Upon Termination. Should Customer elect to terminate this Agreement pursuant to the terms and conditions of this Section 9 and any and all payment obligations have been paid in full, Localist will provide the discontinuing services as set forth in the then current SLA.
9.5. Survival. Any provision that by its nature survives, including, but not limited to Sections 4, 5, 6, 7, 8, 9 and 10 shall survive any expiration or termination of the Agreement.
10.1. Force Majeure. Localist shall not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including, but not limited to, any act of war, acts of God, earthquake, flood, fire, explosion, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
10.2. Government Regulations. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
10.3. Governing Law; Jurisdiction, Severability; Waiver. This Agreement and the rights and duties of the parties hereto shall be construed and determined in accordance with the internal laws of the State of Maryland, without regard to its conflict of laws principles and without application of the Maryland Uniform Computer Information Transactions Act (Md. Code Ann., Comm. Law, §§ 22-201, et seq. (2000)). The parties agree that the exclusive jurisdiction for any action or proceeding arising out of or otherwise relating to this Agreement, the Localist Technology or Services or any action or proceeding brought to enforce any breach of this Agreement shall be in any federal or state court situated in the State of Maryland, in one or more actions or proceedings, and by execution and delivery of this Agreement, the parties irrevocably consent to such exclusive jurisdiction in such courts and to the proper venue therein. THE PARTIES HEREBY EXPRESSLY WAIVE ALL RIGHTS TO A TRIAL BY JURY FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT, THE LOCALIST TECHNOLOGY OR SERVICES OR ANY ACTION OR PROCEEDING BROUGHT TO ENFORCE ANY BREACH OF THIS AGREEMENT. No alteration, amendment, waiver, cancellation or any other change in any term or condition of this Agreement shall be valid or binding on either party unless mutually agreed upon in writing by authorized representatives of both parties. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision of this Agreement, whether or not similar, nor shall such waiver constitute a continuing waiver unless otherwise expressly so provided in writing. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by either party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of a party to enforce each and every such provision thereafter. It is the express intention of the parties that the agreements contained herein shall have the widest application possible. If any agreement contained herein is found by a court of competent jurisdiction to be invalid, void, unenforceable or unreasonable in scope or character, the agreement shall not be rendered unenforceable thereby, but rather the scope or character of such agreement shall be deemed reduced or modified with retroactive effect to render such agreement reasonable and such agreement shall be enforced as thus modified. If the court of competent jurisdiction will not review the agreement, then the parties shall mutually agree to a revision having an effect as close as permitted by law to the provision declared unenforceable. The parties further agree that in the event a court of competent jurisdiction determines, despite the express intent of the parties, that any portion of any covenant or agreement contained herein is not enforceable, the remaining portion of such covenant and agreement and all other provisions of this Agreement shall nonetheless remain valid and enforceable.
10.4. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Localist. Any attempted assignment or delegation without such consent will be void. Subject to the foregoing, this Agreement shall be binding on, and inure to the benefit of, each party’s successors and permitted assigns.
10.5. Notices. Customer agrees to transact business with Localist using electronic communications, either via web forms or via email. Electronic communications will be deemed received by Customer when its electronic communication system reports that any electronic communication that Localist sends has been received by Customer’s system, regardless of whether Customer ever actually opens or reads such electronic communication. Localist may, but is not required, to use return receipt requests. Unless specifically required by applicable law or as otherwise provided herein, Customer consents to receive all notices, information and other communications from Localist concerning any subject matter, via electronic communication. It is Customer’s responsibility to maintain valid electronic communication addresses, and Localist may terminate Customer’s access to the Localist Technology and Services without liability to Customer if, after reasonable prior notice, Customer fails to update and maintain its electronic communication addresses.
10.6. Relationship of Parties. Localist and Customer are independent contractors and this Agreement shall not establish any relationship or partnership, joint venture, employment, franchise or agency between Localist and Customer. Neither Localist nor Customer will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent, except as otherwise expressly provided herein.
10.7. Entire Agreement; Counterparts. This Agreement along with the Order Forms incorporated herein by reference (including all other documents incorporated herein by reference), constitute the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter.
10.8. Covenants. During the term and for a period of no less than two (2) years thereafter, Customer agrees that, without the prior written consent of Localist, it shall not, directly or indirectly, on its own behalf or as a partner, affiliate, officer, director, stockholder, principal, owner, employee, agent or consultant of any other person or entity: (i) contract with any party other than Localist to substantially replicate products or services offered by Localist; (ii) interfere with the business of Localist by suggesting to, inducing or persuading any customer or supplier to discontinue his or its business relationship with Localist; (iii) take any action or make any statements that are intended or should reasonably be expected to discredit, demean, or have a material adverse effect on the business of Localist; and (iv) solicit, hire, induce, persuade, aid or cooperate with others in soliciting, hiring, inducing or persuading any employee of Localist to leave the employ of Localist.
10.9. Cumulative Remedies. All rights, remedies and powers of Localist hereunder are irrevocable and cumulative, and not alternative or exclusive, and shall be in addition to all other rights, remedies and powers given hereby or any laws now existing or hereafter enacted. Customer acknowledges and agrees that if it breaches any obligations hereunder, Localist may suffer immediate and irreparable harm for which monetary damages alone shall not be a sufficient remedy, and that, in addition to all other remedies that Localist may have, Localist shall be entitled to seek injunctive relief, specific performance or any other form of relief, including but not limited to equitable relief, to remedy a breach or threatened breach hereof by Customer and to enforce this Agreement, and Customer hereby waives any and all defenses and objections it may have on grounds of jurisdiction and venue, including but not limited to lack of personal jurisdiction and improper venue, and waives any requirement for the securing or posting of any bond in connection with such remedy.
10.10. Litigation Holds. With respect to any original records of Customer retained by Localist, Localist, at Customer’s expense, shall use commercially reasonable efforts to preserve any records in its possession that fall within the scope of any litigation hold request made by Customer from time to time in writing.
10.11. Breach Notification Requirement. Localist shall take reasonable security precautions to prevent unauthorized access to personally identifiable information. Such precautions shall in no event be less stringent than those used to safeguard Localist’s own property and computer systems. In the event of a security breach, Localist shall notify Customer of such breach within a reasonable period of time following the discovery of the breach and after identifying that the intruder had reasonable access to the Customer Confidential Information. Unless otherwise mutually agreed upon by the parties in writing, Customer shall be obligated to comply with all applicable state and federal breach notifications and shall immediately notify Localist in writing of such event. Customer shall keep Localist reasonably informed of its compliance with such requirements.
10.12. Additional Fees. Customer shall immediately notify Localist if Customer knows or has reason to believe that Localist has been or will be required, as a result of activity arising out of or related to this Agreement or the services contemplated hereunder by any court or administrative agency of the United States or any state or by any legal process to respond to any subpoena, search warrant, discovery or other directive under the authority of such court, administrative agency, governmental inquiry or process in connection with any proceeding or investigation in which Customer or any of its affiliates, officers, directors, agents, employees, or subcontractors is involved. Whether or not such notice is given by Customer, Customer shall directly assist Localist in Localist’s attempt to reduce the burdens of compliance with any such directives, and Customer shall reimburse any and all reasonable expenses incurred by Localist and its affiliates in complying with any such directive, including, but not limited to, attorneys’ fees for representation and advice, travel and lodging expenses and Localist’s then current hourly rate for all time spent by Localist in responding to such matters.
10.13. Restricted Rights. If Customer is a U.S. government entity or U.S. government contractor, the Localist Technology and Services are furnished with “RESTRICTED RIGHTS” as defined in the Federal Acquisition Regulation (“FAR”) 52.227-19(c)(2) and the Defense Federal Acquisition Regulation (“DFAR”) 252.227-7013 to 7019, as applicable. Use, duplication or disclosure of the Localist Technology or Services by the U.S. government and parties acting on its behalf is governed by and subject to the restrictions set forth in FAR 52.227-19(c)(1) and (2) or DFAR 252.227-7013 to 7019, as applicable.
10.14. Further Assurances. Each party agrees that it shall, from and after the Effective Date of this Agreement, execute and deliver such other documents and take such other actions as may reasonably be requested to effect the transactions contemplated hereunder.
10.15. Expenses. Except as otherwise set forth herein, each party shall bear its own expenses, costs and fees (including, but not limited to, attorneys’ fees) in connection with the transactions contemplated hereby, including compliance with this Agreement.
10.16. No Adverse Construction. Customer and Localist have had the opportunity to consult with, review and negotiate the terms and provisions of this Agreement and neither party shall therefore be subject to any adverse construction rule as a draftsperson of this Agreement.
10.17. Interpretation. Unless the context requires otherwise, all words used in this Agreement in the singular number shall extend to and include the plural, all words in the plural number shall extend to and include the singular and all words in any gender shall extend to and include all genders. The captions and headings used in this Agreement are used for convenience only and are not to be given any legal effect.
10.18. Traffic Allowed. The license fee and other terms of this Agreement are based on the following usage (monthly): (i) five hundred thousand (500,000) unique page views, (ii) one million (1,000,000) unique widget views (iii) one hundred thousand (100,000) unique application programming interface (API) calls and (iv) one hundred thousand (100,000) Bulletin emails ("Traffic Allowed"). In the event that Customer exceeds any one of these limits for more than two (2) consecutive months, Localist reserves the right to negotiate the terms and conditions on which Localist will provide the Localist Technology and Services to Customer, including, but not limited to, the payment of additional fees. In the event that the parties are unable to negotiate such terms and conditions, then Localist shall have the right to terminate this Agreement in accordance with Section 9.2 hereof.