VII. Indemnification.
(A) CLIENT shall indemnify, defend and hold harmless COMPANY, its subsidiaries, affiliates, directors, officers, employees, agents, successors, vendors, partners and assigns from and against any and all fines, suits, claims, demands, penalties, liabilities, costs, expenses, losses, settlements, judgments, awards, and actions of whatever kind or nature, including attorney’s fees and costs (and costs and fees on appeal), and damages of any kind that may at any time be incurred by any of them by reason of any claims, suits, administrative proceedings, actions, arbitrations or criminal investigations arising from or related to: (1) breach of any of its representations or warranties or covenants contained in this Agreement; (2) all claims arising out of or related to Creative Materials and Advertisements approved by CLIENT; (3) failure by CLIENT to meet its obligations or promises provided or implied or contained in the Creative Materials and Advertisements; and (4) violation of any applicable law, rule, code or regulation related to the content or nature of CLIENT’s campaign caused by CLIENT.
(B) COMPANY shall indemnify, defend and hold harmless CLIENT, its subsidiaries, affiliates, directors, officers, employees, agents, successors, agents, vendors, partners and assigns from and against any and all fines, suits, claims, demands, penalties, liabilities, costs, expenses, losses, settlements, judgments, awards, and actions of whatever kind or nature, including attorney’s fees and costs (and costs and fees on appeal), and damages of any kind that may at any time be incurred by any of them by reason of any claims, suits, administrative proceedings, actions, arbitrations or criminal investigations arising from or related to: (1) breach of any of COMPANY’s representations or warranties or covenants contained in this Agreement; (2) all claims arising out of or related to Creative Materials and Advertisements supplied solely by COMPANY; and (3) violation of any applicable law, rule, code or regulation related to the content or nature of CLIENT’s campaign caused solely by COMPANY.
(C) If any action is brought against either party (the “Indemnified Party”) in respect to any allegation for which indemnity may be sought from the other party (“Indemnifying Party”), the Indemnified Party will promptly notify the Indemnifying Party of any such claim of which it becomes aware and will: (1) provide reasonable cooperation to the Indemnifying Party at the Indemnifying Party‘s expense in connection with the defense or settlement of any such claim; and (2) be entitled to participate at its own expense in the defense of any such claim. The Indemnified Party agrees that the Indemnifying Party will have sole and exclusive control over the defense and settlement of any such third party claim. However, the Indemnifying Party will not acquiesce to any judgment or enter into any settlement that adversely affects the Indemnified Party‘s rights or interests without the prior written consent of the Indemnified Party.
(D) Unauthorized Use. CLIENT agrees that any unauthorized and/or unlawful use of the Services would result in irreparable injury to COMPANY for which monetary damages would be inadequate. Unauthorized use includes, without limitation, CLIENT use of Services not paid for when due.
(E) Entire Agreement; Construction; Modification. This Master Services Agreement and all applicable Insertion Orders represent the complete and entire expression of the agreement between the parties, and shall supersede all prior agreements, whether written or verbal. The Agreement and all applicable Insertion Orders shall be construed as if both parties equally participated in its drafting, and thus shall not be construed against the drafter. To the extent that anything in or associated with any Insertion Order is in conflict or inconsistent with this Master Service Agreement, the Insertion Order shall take precedence as to that specific Insertion Order only. The Agreement and may be amended only by a written agreement executed by an authorized representative of each party.
(F) Non-Waiver; Severability. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. If any provision contained in the Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and the remaining provisions of the Agreement will remain in full force and effect.
(G) Status of the Parties. The parties are independent contractors. There is no relationship of partnership, agency, employment, franchise, or joint venture between the parties. Neither party has the authority to bind the other, or incur any obligation on its behalf.
(H) License. CLIENT grants COMPANY a limited, royalty free, non-exclusive, perpetual license to use CLIENT’s, or CLIENT’s clients’ trademarks, service marks, creative materials and/or logos (collectively, the “Trademarks”) identified and approved by CLIENT to be associated with CLIENT’s (or CLIENT’s client) applicable Advertising Materials and Blended Media. COMPANY’s right to use the Trademarks shall be limited solely to the Advertising Materials and Blended Media. COMPANY acknowledges that, as and between COMPANY and the CLIENT, CLIENT is the owner of the Trademarks.
(I) Force Majeure. Each party shall be excused from performance of its non-monetary obligations for any period and the time of any performance shall be extended as reasonably necessary under the circumstances, to the extent that such party is prevented from performing, in whole or in part, its obligations under this Agreement, as a result of acts of God, any governmental authority (except as defined below), war, civil disturbance, court order, labor dispute, third party non-performance (including the acts or omissions of any suppliers, agents or subcontractors) or any other cause beyond its reasonable control, including hurricanes, inclement weather, failures or fluctuations in electrical power, heat, light, air conditioning or telecommunication equipment or lines or any other equipment. Such non-performance shall not be a default under this Agreement or grounds for termination of this Agreement unless such non-performance is not cured within sixty (60) days.
(J) Notices. All notices, requests, consents and other communications required or permitted under this Agreement shall be in writing (including electronic transmission) and shall be (as elected by the person giving such notice) hand delivered by messenger or courier service, electronically transmitted, (via email) or mailed (airmail if international) by registered or certified mail (postage prepaid), return receipt requested. The parties have exchanged updated current contact information, and shall provide relevant contact information set forth on each applicable Insertion Order, or to such other address as either party may designate by notice complying with the terms of this section. Each such notice shall be deemed delivered (a) on the date delivered if by personal delivery; and (b) on the date upon which the return receipt is signed or delivery is refused or the notice is designated by the postal authorities as not deliverable, as the case may be, if mailed.
(K) Headings. The inclusion of headings in this Agreement is for convenience of reference only and shall not affect the construction or interpretation hereof.
(L) Electronic Signature. CLIENT acknowledges and agrees that by signing by hand or by assenting to the terms hereof electronically that you are expressly agreeing to the terms of this Agreement. CLIENT acknowledges and agrees that by accessing this Services Agreement via, without limitation, links made available within the COMPANY “Insertion Order,” that CLIENT expressly assents to the terms hereof electronically by clicking on the checkbox, the button labeled “I Agree” or such similar labels as may be designated by COMPANY to accept this Services Agreement. CLIENT acknowledges and agrees that by doing so, it is affixing its electronic signature, it is submitting a legally binding electronic signature and it is entering into a legally binding contract. CLIENT acknowledges that CLIENT’s electronic submissions constitute CLIENT’s agreement and intent to be bound by the Services Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, CLIENT HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE SOFTWARE OR SERVICES OFFERED BY COMPANY. Further, CLIENT hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
(M) Violation of Law. Notwithstanding any other provision to the contrary contained in this Master Services Agreement or related Insertion Order, COMPANY retains the right to suspend or reject any Campaign, cease deployment and/or terminate services to CLIENT in the event COMPANY discovers CLIENT’s Campaign(s) violate applicable law.
(N) Waiver of Jury Trial. THE PARTIES HAVE AGREED TO ARBITRATE THEIR DISPUTES. EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY DISPUTE, LITIGATION OR COURT ACTION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSSCLAIMS OR THIRD-PARTY CLAIMS) ARISING FROM OR RELATED TO THIS AGREEMENT. THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS A SIGNIFICANT CONSIDERATION TO, AND A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT EITHER PARTY WOULD NOT, IN THE EVENT OF SUCH LITIGATION; SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE PARTIES FURTHER AGREE THAT THE INCLUSION OF CLAUSE SHALL NOT BE INTERPRETED TO WAIVE, DIMINISH OR CREATE AMBIGUITY WITH RESPECT TO THE PARTIES’ AGREEMENT TO ARBITRATE.