Terms and Policies

These Terms of Service (“Terms of Service”), together with all executed Order Form(s), First 8 Marketing’s Privacy Policy (the “Privacy Policy”), and, if applicable, First 8 Marketing’s Data Processing Agreement (“Data Processing Agreement”), collectively constitute a binding agreement (the “Agreement”), by and between First 8 Marketing (“First 8 Marketing”), and the person or legal entity placing an order for or accessing the Services (“Customer” or “you”). First 8 Marketing and Customer are each sometimes referred to herein as a “party” and collectively as “parties.”

PLEASE READ THE AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THE TERMS HEREIN AND SUCH TERMS SHALL GOVERN CUSTOMER’S USE OF THE SERVICES. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER, THEN YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES (AS DEFINED BELOW) TO THIS AGREEMENT, ARE OF LEGAL AGE TO FORM A BINDING CONTRACT AND HAVE READ AND AGREE WITH THE TERMS UNDER THIS AGREEMENT. IF ONE OR MORE OF THE FOREGOING DO NOT APPLY TO YOU, THEN YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SERVICES.

Modifications to the Agreement: First 8 Marketing may modify this Agreement from time to time due to changes to the Services, to account for developments under the Law or for any reason. Unless otherwise specified by First 8 Marketing, changes become effective for Customer upon renewal of the then-current Term in an applicable Order Form or entry into a new Order Form after the updated version of this Agreement goes into effect. First 8 Marketing will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. PLEASE REGULARLY CHECK FIRST 8 MARKETING’S WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. Definitions.

1.1 “Affiliate” means, with respect to a party, any legal entity directly or indirectly controlling, controlled by, or under common control with that entity. “Control” for purposes of this definition means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a legal entity through the ownership of voting shares or other voting interests, by contract, or otherwise.

1.2 “Authorized User” means those employees and contractors of Customer who are authorized by Customer to access the Services through the First 8 Marketing Portal, solely for Customer’s own internal business operations and subject to the terms of this Agreement. Authorized Users shall abide by all use restrictions stated in this Agreement, and Customer is at all times responsible for the actions of its Authorized Users in accessing and using the First 8 Marketing Portal and Services.

1.4 “Campaign” means a marketing communication developed for deployment by Customer to a specific audience via a specific marketing channel which involves one or more pieces of Customer Content.

1.5 “Confidential Information” means all confidential and proprietary information of a party disclosed or made available to the other party in connection with this Agreement, directly or indirectly, whether orally, in writing, electronically, or in optical form, that is designated as confidential or that should reasonably be understood as confidential given the nature of the information and the circumstances at the time of disclosure, including, but not limited to, a party’s trade secrets, consulting methodologies, strategic plans, business plans, business methods, finances and budgets, pricing and costs, lists of and information concerning a party’s customers, the terms of a party’s agreements and licenses with its customers, current and future business opportunities, and corporate documents, records, and manuals. Notwithstanding the foregoing, Confidential Information shall not include information that: (a) is or becomes generally available to the public other than as a result of a disclosure in violation of this Agreement, (b) is independently developed by a party when it had no knowledge of or access to any of the Confidential Information, (c) was known to a party prior to its disclosure by the other party hereunder or (d) is or becomes available to a party from a source other than the disclosing party that is not bound by a non-disclosure, confidentiality, or similar agreement at the time of such disclosure.

1.6 “Content Request” means Customer’s submission of a content request form via the First 8 Marketing Portal for a given Campaign and for which Customer has designated a specific audience or segment and channel.

1.7 “Customer Content” means Customer’s marketing messages or other materials provided by Customer to First 8 Marketing for optimization or generation through the Services. Customer Content shall remain the property of Customer.

1.8 “Dynamic Content” means the optimized content generated as part of the Dynamic Context Solution.

1.9 “Dynamic Context Solution” means, as further described in an applicable Order Form, the First 8 Marketing optimization solution that combines Dynamic Content with Customer’s user data to serve personalized context language in certain key user experience moments.

1.10 “Impression” means, for purposes of the Dynamic Context Solution, a single display of a webpage or webpage banner, as applicable, with the Dynamic Content to Customer’s end user.

1.11 “IPR” means any patents, copyrights, trademarks, trade secrets, moral rights, and any other intellectual property or proprietary rights arising at any time under the Law of an applicable jurisdiction.

1.12 “Law” means all laws, rules, statutes, decrees, decisions, orders, regulations, judgments, requirements, codes, and directives of any governmental authority (federal, state, local, or international) having jurisdiction.

1.13 “Order Form” means any written form provided by First 8 Marketing and executed by both parties that evidence Customer’s subscription to the Services.

1.14 “First 8 Marketing Portal” means First 8 Marketing’s proprietary platform through which Customer will obtain access to the Services. Customer’s right to use of the First 8 Marketing Portal shall be part of the Services.

1.15 “Response Data” means all relevant metrics such as sends, impressions/Impressions, messages delivered, messages opened, Campaign revenue and clicks from Customer’s selected target audience on the marketing message variations or the Dynamic Content created with the Services, which may include anonymized, individual-level data, but shall not include personally identifiable information, and which is provided to First 8 Marketing by Customer. Response Data shall remain the property of Customer.

1.16 “Service(s)” means any services or offerings that First 8 Marketing makes available to its customers, including using its Dynamic Context Solution (as further described in an applicable Order Form), proprietary marketing language database, machine learning algorithms and predictive analytics to generate variation(s) of the Customer Content that are expected to achieve high performance for specified key performance indicators.

1.17 “Subscription Package” means the level of Services that Customer has purchased for First 8 Marketing to work on Campaigns during the Term, as specified in an applicable Order Form.

2. User Licenses & Restrictions.

2.1 License to Use First 8 Marketing Services. Subject to Customer’s compliance with this Agreement and payment of applicable fees, First 8 Marketing grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access and use First 8 Marketing’s Services and the First 8 Marketing Portal during the Term, solely for Customer’s internal business purposes, to the extent provided under the Subscription Package specified in an applicable Order Form duly executed between Customer and First 8 Marketing (the “Order Form”). The Services shall be as described in the Services Description attached to the Order Form. First 8 Marketing may modify the Services Description from time to time, provided such modifications do not materially affect the Services.

2.2 Authorized Users. First 8 Marketing grants to Customer the right of access and use of the Services under the license stated in Section 2.1 for as many Authorized Users as it specifies to First 8 Marketing. Each Authorized User will be granted access and credentials to the First 8 Marketing Portal. Customer shall ensure that only its Authorized Users will access the Services, and Customer shall be responsible for its Authorized Users’ compliance with and breach of the Agreement. First 8 Marketing shall have the right to make modifications on Customer’s and its Authorized User’s accounts on their behalf in accordance with any specific instructions by Customer or its Authorized Users. In the event Customer believes Customer’s account or the Services have been compromised, including any unauthorized use or access of the Services or any other known or suspected breach of security, Customer shall immediately notify First 8 Marketing by email to [email protected], but in no event more than twenty-four (24) hours following discovery of such breach.

2.3 Restrictions of Use. Customer shall not, without the express written permission of First 8 Marketing: (a) provide any personally identifiable information to First 8 Marketing or use the Services to collect personally identifiable information of its users or its clients, (b) make the Services available to any third party that is not Customer or Customer’s Authorized User, (c) modify, damage, decompile, disassemble or otherwise reverse engineer the First 8 Marketing Portal or any aspect of the Services, or attempt to discover the source code or algorithm underlying the First 8 Marketing Portal or Services, (d) remove any proprietary marks or confidentiality notices that may appear on any materials provided by First 8 Marketing to Customer or on the First 8 Marketing Portal, (e) breach, disable, tamper with, develop or use (or attempt to use) any workaround for any security measure contained within the First 8 Marketing Portal, (f) introduce or propagate any virus, worms, Trojan horses, or other malicious code within the First 8 Marketing Portal or via materials that Customer provides to First 8 Marketing, (g) access or use, or permit the use of, the First 8 Marketing Portal or the Services for the purpose of copying its features and/or building a competitive product or service, or using the Services for purposes of product evaluation, benchmarking or other comparative analysis intended for publication, (h) use the First 8 Marketing Portal or Services to transmit material in violation of any third party privacy rights or applicable privacy Laws or (i) use the First 8 Marketing Portal or Services for any purpose not expressly authorized by this Agreement.

2.4 Reservation of Rights. First 8 Marketing reserves the right, without limiting any other right or remedy, to suspend Customer’s access to and use of the Services, including the First 8 Marketing Portal, if First 8 Marketing determines that Customer (a) has engaged in any of the restricted activities set forth in this Section 2, (b) the use of the Services by Customer adversely affects First 8 Marketing’s equipment or its provision of the Services to other customers or (c) has not paid any amount of Fees owed or due under this Agreement within fifteen (15) days after such Fees were due. Without limiting the generality of this Section, First 8 Marketing shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Customer‘s right to use the Services.

2.5 Downtime. Customer acknowledges that access to and use of the Services may be suspended for the duration of any scheduled or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions, or any other acts, omissions or failures on the part of First 8 Marketing.

3. Proprietary Rights.

3.1 License to Content and Response Data. Customer hereby grants First 8 Marketing a perpetual, non-exclusive, world-wide, irrevocable, fully-paid, royalty-free right and license to use, display, modify and create derivative works of the (a) Customer Content and (b) Response Data, in connection with the provision of the Services, including to (i) compile reports and statistics about the Service which such reports can be made available solely in anonymized form, (ii) comply with applicable Laws, (iii) provide and improve the Services and/or (iv) protect the integrity, security and/or stability of the Service, including, without limitation, any of First 8 Marketing’s computer systems, networks, platforms, infrastructures, devices, websites, databases, software or other data or property. First 8 Marketing warrants that, except for purpose of performing the Services under this Agreement, the Customer Content, Dynamic Content, and Response Data shall otherwise be maintained in a de-identified and aggregate form, such that it will contain no data, information or traits from which any third party may identify Customer or its audience as the source.

3.2 Ownership; Reservation of Rights. First 8 Marketing owns all right, title, and interest in and to the Dynamic Content, First 8 Marketing Portal and the Services. Customer owns all right, title, and interest in and to the Customer Content and Response Data. Subject to the license rights expressly granted in this Agreement, nothing in this Agreement transfers to either party any right, title or interest in or to the IPR of the other party. All rights not expressly granted herein are reserved by each party and no additional rights (including any implied licenses, covenants, releases or other rights or estoppels of rights) are granted by implication, estoppel or otherwise.

3.3 Feedback. From time-to-time, Customer may make available to First 8 Marketing, directly or indirectly, feedback, analysis, suggestions and/or comments related to the Services in any form (collectively, “Feedback”). Customer hereby grants to First 8 Marketing a perpetual and irrevocable right to use such Feedback to provide and improve the Services without any compensation or credit to Customer.

4. Fees and Payment Terms.

4.1 Fees. Customer will be charged and shall pay First 8 Marketing the fees for the Services (“Fees”), as specified in the Order Form. All Fees are non-cancellable and non-refundable. Late Fee payments will accrue interest at the rate of one and a half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. All Fees shall be payable in USD unless agreed separately in an Order Form.

4.2 Invoicing and Payment Terms. Unless otherwise stated in an applicable Order Form, all Fees for the Services will be paid by Customer to First 8 Marketing annually in advance. First 8 Marketing will invoice Customer on or around the Effective Date of each Order Form and annually thereafter to the extent the Term in the Order Form exceeds one (1) year. All undisputed invoices are payable within thirty (30) days of receipt of an applicable invoice. First 8 Marketing reserves the right to discontinue access to the Services and the First 8 Marketing Portal in the event of non-payment.

4.3 Taxes. Unless otherwise stated in an applicable Order Form, the amounts to be paid as Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to, value-added sales, use or withholding tax (collectively “Taxes”). Neither party is liable for any Taxes that the other party is legally obligated to pay which are incurred or arise in connection with or related to the Services under this Agreement, provided that Customer will pay to First 8 Marketing any Taxes that are owed by Customer solely as a result of entering into this Agreement and which are legally required to be collected from Customer by First 8 Marketing. Customer may provide to First 8 Marketing a valid exemption certificate in which case First 8 Marketing will not collect the Taxes covered by such certificate. Except as set forth herein, each party will be responsible for its own costs incurred with this Agreement.

5. Term and Termination.

5.1 Term. The term of this Agreement shall commence on the Effective Date of the first Order Form entered into by the parties and continue until all Order Forms have expired or are terminated according to the terms in the Agreement (the “Term”).

5.2 Termination for Breach. Either party may terminate this Agreement at any time in the event of a material breach by the other party, which breach is not cured within thirty (30) days after receipt of written notice of such breach, or as the parties may otherwise agree if the breach is not reasonably expected to be cured within such thirty (30) day period. Either party may terminate this Agreement immediately upon written notice, without penalty and without need for further action, if the other party: (a) becomes a debtor in a proceeding under the U.S. Bankruptcy Code, (b) makes an assignment for the benefit of creditors, (c) has a receiver appointed for it or (d) is subject to a similar state Law proceeding for this protection of its creditors.

5.3 Effect of Termination. In the event of any termination or expiration of this Agreement: (a) Customer’s right of access and use of the First 8 Marketing Portal and Services will end immediately and Customer will cease such use, (b) First 8 Marketing shall have no further obligation to deliver the Services to Customer and (c) except in the case of Customer’s termination of Services pursuant to Section 5.2, any and all payment obligations of Customer under this Agreement and any applicable Order Form will become immediately due and payable.

5.4 Survival. Sections 1, 3, 4 (to the extent any Fees are not yet paid), 5.3, 6, and 8-11 will survive any termination or expiration of this Agreement.

6. Confidentiality.

6.1 Obligations of Confidentiality. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event shall either party exercise less than reasonable care in protecting the Confidential Information of the other party. The receiving party shall not disclose or use any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement, except with the disclosing party’s prior written permission. The parties agree to disclose Confidential Information only to those employees, agents, or representatives as reasonably necessary for purposes of this Agreement.

6.2 Party Representatives. The parties shall notify each of their employees, agents and representatives participating in this Agreement as to the existence of this Section 6 and require them to abide by the obligations of confidentiality stated herein. The parties shall be responsible for any act or omission of their employees, agents or representatives that is contrary to this Section 6 to the same extent as if the party had undertaken such act or omission.

6.3 Disclosure of Confidential Information. In the event that a receiving party is requested or required, as a result of any judicial or regulatory proceeding, to make any disclosure of the Confidential Information, that party agrees to provide the disclosing party with as much advance notice thereof as possible so that the disclosing party may seek an appropriate protective order or other appropriate remedy if desired. If the disclosing party is unable to timely obtain such a protective order or other appropriate remedy, and the receiving party is compelled to disclose any Confidential Information or else stand liable for contempt or suffer any similar censure, then the receiving party may disclose only that portion of the Confidential Information legally required to be disclosed based on advice from its counsel, and shall use reasonable efforts to obtain reliable assurances that the Confidential Information that is so disclosed will be treated confidentially.

6.4 Destruction and Return of Confidential Information. All Confidential Information is and shall remain the property of the disclosing party. At any time, the disclosing party may request in writing that the receiving party either promptly destroy or return Confidential Information to the disclosing party, and the receiving party agrees to cooperate with the disclosing party’s request. If destruction or return of the Confidential Information is not reasonably feasible then the receiving party shall consult with the disclosing party and take prompt action to make such Confidential Information inaccessible to the receiving party and any third parties. Upon the disclosing party’s request, the receiving party agrees to promptly provide written certification of its compliance with the terms of this Section 6.4.

6.5 Acknowledgment of Irreparable Harm. The parties recognize and acknowledge that the Confidential Information is special and unique, and any breach or threatened breach of any of the provisions of this Section 6 will result in irreparable and continuing harm to the non-breaching party for which there will be no adequate remedy at law and which could not be adequately compensated by monetary damages. Therefore, without limitation of any other remedy, upon a breach or threatened breach of this Section 6, the non-breaching party may obtain equitable relief to prevent the disclosure of any Confidential Information. Accordingly, the parties hereby consent to the entry of injunctive relief against them and their employees, agents or representatives to prevent or remedy any breach or threatened breach of this Section 6 (without the non-breaching party being required to prove actual damages or post a bond), and the parties waive any defenses to the availability of such injunctive relief.

6.6 Trade Secrets. Trade secrets disclosed in connection with this Agreement shall be treated as Confidential Information pursuant to the terms and conditions hereunder and shall be protected as such by the receiving party for as long as such information remains a trade secret under applicable Law.

6.7 Terms of Agreement Confidential. The terms and conditions of this Agreement are Confidential Information. The Services provided hereunder shall be Confidential Information of First 8 Marketing, and the Customer Content provided hereunder shall be the Confidential Information of Customer.

7. Data Security.

7.1 The parties shall employ all reasonable efforts, consistent with technology, physical protection measures, processes and standards of practice that are applicable and in accordance with industry accepted standards used or observed by comparable suppliers or customers of similar services/applications, which standards shall in no event be less than reasonable standards of care in all circumstances, to protect the security and integrity of its systems and applications and any data used, processed or held therein as contemplated under this Agreement or any Order Form.

8. Representations and Warranties.

8.1 Mutual. Each party represents and warrants that (a) it has the full right, power and authority to enter into, and perform its obligations under, this Agreement and any Order Form, (b) its entry into and performance of this Agreement, and the other party’s exercise of its rights under this Agreement, will not conflict with or result in a breach or violation of any of the terms or provisions, constitute a default under any agreement by which it is bound, or otherwise breach any other obligation or duty that it owes to a third party, (c) when executed and delivered, this Agreement will constitute its legal, valid and binding obligation enforceable against it in accordance with its terms and (d) it will comply with all applicable Laws in its performance of this Agreement.

8.2 First 8 Marketing Warranties. First 8 Marketing represents and warrants that (a) all Services will be performed with care, skill, and diligence consistent with any applicable professional standards currently recognized within its industry, (b) all Services and the First 8 Marketing Platform are owned by First 8 Marketing, and First 8 Marketing has all the necessary rights to provide, sell, and license access to the Services and the First 8 Marketing Platform as provided hereunder and (c) Customer’s use of the Services and the First 8 Marketing Platform will not infringe upon or violate the IP rights of any third party.

8.3 Customer Warranties. Customer represents and warrants that (a) the Customer Content does not include viruses, worms, time bombs, Trojan horses and other harmful or malicious code, or any material that is harassing, threatening, infringing, libelous, unlawful, obscene, or which violates the IPR or privacy rights of any third party, (b) the Customer Content and any information provided by Customer to First 8 Marketing does not violate any Customer policies or applicable Law and (c) Customer has all necessary rights and permissions to provide First 8 Marketing with the Customer Content and Response Data.

8.4 No Other Warranties. Except as provided under this section, customer acknowledges and agrees that the services are provided on an “as is” and “as available” basis under this agreement. Except for the express representations and warranties set forth in this section, neither party makes, and each hereby disclaims, any and all express or implied warranties. First 8 Marketing does not warrant the service will be uninterrupted, error-free, or completely secure, provide accurate results, or meet customer’s expectations. Customer further acknowledges that the customer content provided by customer is not verified by First 8 Marketing, and that First 8 Marketing will not be liable for any inaccuracies, errors, or omissions in such customer content.

9. Indemnification.

9.1 First 8 Marketing

Indemnification. First 8 Marketing will indemnify, defend, and hold Customer, its Affiliates and each of their respective employees, directors and representatives harmless from and against any and all final losses, damages, judgment and expenses (including, without limitation, reasonable attorneys’ fees), in each case only to the extent payable to unrelated third parties and to the extent arising out of or in connection with any third party claim(s) alleging that the Services infringe upon a third party’s IPR as determined in a final judgment by a court of appropriate jurisdiction. Subject to the exceptions listed in Section 9.2, if any portion of the Services becomes the subject of an IPR infringement claim, First 8 Marketing may, at its sole option and expense: (a) procure for Customer the right to continue using the Services; (b) replace or modify the Services to be non-infringing without materially impairing the functionality of the Services; or (c) if options (a) or (b) are not commercially reasonable as determined by First 8 Marketing, allow for Customer to terminate this Agreement and refund to Customer the pro-rated portion of any prepaid Fees attributable to any unused Services, and upon such termination, Customer will immediately cease all use of the Services. The provisions of this Section 9.1: (i) shall state First 8 Marketing’s entire liability and Customer’s exclusive remedy in the event of any third-party claim of infringement of U.S. patent, trademark or copyright Laws and (ii) shall not apply during any free Initial Term of an Order Form for the initial provision of the Dynamic Context Solution Services.

9.2 Exceptions. Notwithstanding the foregoing, First 8 Marketing will have no liability to Customer to the extent an IPR infringement claim arises from or is in connection with Customer Content or results directly or indirectly from any of the following acts of Customer, to the extent that such infringement would have been avoided in the absence of such act: (a) use of the Service in a manner not authorized under this Agreement, (b) Customer’s unauthorized modification or alteration of or addition to the First 8 Marketing Portal, the Services, or the Dynamic Content after its delivery to Customer, (c) use of the First 8 Marketing Portal or the Services in combination with any apparatus, hardware, software or services not authorized by First 8 Marketing in the applicable Order Form or (d) any use of the Services that violates applicable Law.

9.3 Customer Indemnification. Customer will indemnify, defend, and hold First 8 Marketing, its Affiliates, and each of their respective employees, directors and representatives harmless from any final loss, judgement or liability (including but not limited to attorneys’ fees and awarded damages) brought by a third party to the extent arising out of (a) the Customer Content and Response Data, (b) Customer’s use of the Service in a manner not authorized by this Agreement as set out in Section 2 and determined in a final judgment by a court of appropriate jurisdiction, (c) an allegation that Customer or an Authorized User used the Services or otherwise caused First 8 Marketing to create Dynamic Content in violation of any applicable Law, rule, regulation or industry best practice or (d) Customer’s breach of any representation, warranty or covenant or other agreement made herein.

9.4 Indemnification Procedure. In connection with any claims under Sections 9.1 and 9.3, the party being defended or indemnified (“Indemnified Party”) will (a) give the other party (“Indemnifying Party”) prompt written notice of the claim, (b) reasonably cooperate with the Indemnifying Party (at the Indemnifying Party’s expense) in connection with the defense and settlement of the claim, and (c) permit the Indemnifying Party to control the defense and settlement of the claim (provided, however, that the Indemnifying Party will not enter into any settlement that would constitute an admission of guilt or liability on the part of the Indemnified Party without the Indemnified Party’s express prior written consent, such consent not to be unreasonably withheld or delayed). The Indemnified Party may, at its sole option and expense, participate in the defense of any claim.

10. Limitation of Liability.

10.1 EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), DAMAGES ARISING OUT OF EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTION 6 (CONFIDENTIALITY), OR THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF EITHER PARTY, (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ITS RESPECTIVE THIRD PARTY PARTNERS FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFIT, REVENUE, BUSINESS OR DATA) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, EVEN IF SUCH PARTY IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE PROVIDED HEREUNDER (INCLUDING ANY ACTUAL OR ALLEGED BREACH OF THIS AGREEMENT), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO FIRST 8 MARKETING BY CUSTOMER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.

11. Miscellaneous Terms.

11.1 Order of Precedence. In the event of a conflict between an Order Form, the Data Processing Agreement, the Privacy Policy and these Terms of Service, the Agreement documents shall govern in the order of precedence stated in the foregoing solely to the extent of the conflict or inconsistency.

11.2 Relationship of the Parties. Each party is an independent contractor to the other and has no authority to act on behalf of or bind the other, and nothing in this Agreement creates any other relationship between the parties. All rights and remedies under this Agreement are cumulative. Customer represents that it has (a) independently reviewed this Agreement and (b) not relied on any warranty or guarantee not expressly stated in this Agreement.

11.3 Publicity. Customer agrees that First 8 Marketing may reference Customer and Customer’s use of the Services in publicity materials, including within the company website and sales presentations. The parties may agree upon and engage in additional publicity activities as set forth in an applicable Order Form.

11.4 Legal Notices. The parties will provide all notices and other communications under this Agreement in writing to the addresses set forth in the Order Form. All notices will be deemed received either: (a) one (1) calendar day after being sent (if deposited with a nationally recognized overnight courier), (b) three (3) business days after being sent (if deposited by first class, recorded delivery post, if proof of sending is retained) or (c) when sent by email (if to First 8 Marketing, at [email protected]), provided that no undeliverable message is received by the sender. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section.

11.5 Jurisdiction and Governing Law. The Laws of the State of New York govern this Agreement without giving effect to any New York conflict of laws principles. The parties consent to the exclusive jurisdiction and venue in the federal and state courts located in the Borough of Manhattan, City of New York. The prevailing party is entitled to recover its costs, including reasonable attorneys’ fees, in any action or suit sought to enforce or to interpret this Agreement.

11.6 Assignment. This Agreement binds and is for the benefit of the successors and permitted assigns of each party. Customer may not assign this Agreement or any rights under it, in whole or in part, without First 8 Marketing’s prior written consent. Any attempted or purported assignment in violation of the preceding sentence shall be deemed a material breach to this Agreement and shall be null and void. First 8 Marketing may assign this Agreement or any rights under it without prior written consent to a successor in connection with a merger, acquisition, reorganization, consolidation, or sale of all or substantially all of its assets or the business to which this Agreement relates.

11.7 Waiver & Severability. A party’s delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy. If a court of competent jurisdiction finds any term of this Agreement unenforceable, that term will be fully enforced to affect the parties’ intent and all other terms will continue in full force.

11.8 Force Majeure. Neither party will be deemed to be in default or breach of any provision of this Agreement to the extent that it is as a result of any delay, failure in performance or interruption of service, resulting directly or indirectly from acts of God, acts of civil or military authorities, wars, acts of terrorism, fires, pandemics, quarantine restriction(s) or act(s) of government, outages of third party telecommunications networks or any other occurrences which are beyond such party’s reasonable control (each, a “force majeure condition”), provided such party makes reasonable efforts to perform its obligations and promptly resumes performance after the force majeure condition has ceased.

11.9 Entire Agreement. This Agreement (including any exhibits attached hereto) is the entire agreement between the parties regarding its subject matter and shall supersede and replace all prior agreements, communications and representations between the parties regarding the subject matter contained herein.

11.10 Execution in Counterparts. This Agreement may be executed in counterparts (which may be exchanged by facsimile, .pdf or electronic signature), each of which will be deemed an original, but all of which together will constitute the same Agreement.

11.11 Data Processing Agreement. To the extent that: 1) Customer provides First 8 Marketing with any Personal Information (as defined in the Data Processing Agreement), and 2) the Regulation 2016/679 (“EU GDPR”) or the Data Protection Act 2018 (“UK GDPR”) apply to the collection, use or disclosure of such Personal Information, the parties shall comply with the requirements set forth in the Data Processing Agreement which is hereby incorporated into this Agreement by reference. Notwithstanding the foregoing, the Data Processing Agreement shall not apply to any information provided by Customer used to create or administer a First 8 Marketing Portal account, including but not limited to, names, usernames, login credentials, phone numbers, email addresses and billing information associated with an Authorized User. First 8 Marketing’s use of the information in the preceding sentence shall be in accordance with the Privacy Policy, and Customer consents to such usage.

11.12 Privacy Policy. Customer agrees it will provide and abide by an appropriate consumer-facing privacy policy and any other privacy notice as required to comply with data protection Laws.