Last Modified: 11/10/2022
1. Registration. Customer Lobby provides an online community for local businesses to anonymously share summary industry-specific benchmarking data, to automate repeat customer marketing and to automate the generation of online customer reviews, as well as a variety of other features and services to support and build that community (“Services” or “Website”). Services will be ordered by Customer pursuant to the online registration process.
2.1. License to Use. Customer Lobby hereby grants to Customer a limited, non-exclusive, revocable, non-transferable and non-sublicensable license during the term to access and to use the Services pursuant to and in accordance with this Agreement.
2.2. Accounts; Security. Access to or use of certain portions and features of the Service’s may require Customer to create an account (“Account”). Customer states that all information provided by it is current, accurate, complete, and not misleading. Customer further states that it will maintain and update all information provided by it to ensure accuracy on a prompt, timely basis. Customer is entirely responsible for maintaining the confidentiality and security of its account(s), including Customer’s password. Accounts are not transferrable. Customer agrees to promptly notify Customer Lobby if Customer becomes aware or suspects any unauthorized use of its accounts, including any unauthorized access or attempted access. Customer is responsible for all activities that occur under its account(s). Further, Customer is the primary account holder and is responsible for all charges made by additional users added to the accounts.
2.3. Restrictions on Use. The Customer Lobby Services are to be used only to facilitate the exchange of opinions and information about the businesses, services, products and locations reviewed on or providing information to the Website, and each person or entity supplying information to or using information from the Website shall only use the Customer Lobby Services for such purpose. In accessing or using the Services, Customer will not: (a) resell, lease, encumber, sublicense, distribute, publish, transmit, transfer, assign or provide such access or use to any third party in any medium whatsoever; (b) devise specifications from, reverse engineer, reverse compile, disassemble, or create derivative works based on the Services; (c) apply systems to extract or modify information in the Services using technology or method such as those commonly referred to as “web scraping,” “data scraping,” or “screen scraping”; (d) knowingly input or post through or to the Services any content that is illegal, threatening, harmful, lewd, offensive, or defamatory or that infringes the intellectual property rights, privacy rights or rights of publicity of others, (e) store data on the Services that is regulated by the HIPAA Privacy Rules or the PCI Data Standards (f) input or transmit through or to the Services any virus, worm, Trojan Horse, or other mechanism that could damage or impair the operation of the Services or grant unauthorized access thereto; (g) use or access the Services for purposes of monitoring the availability, performance or functionality of the Services or for any other benchmarking or competitive purposes; or (h) cause, assist, allow or permit any third party (including an end-user) to do any of the foregoing; (i) use the Services to compete with Customer Lobby in any way; or (j) permit any third party to use or access the Services other than Authorized Users.
2.4. Maintenance. Customer agrees that Customer Lobby may install software updates, error corrections, and software upgrades to the Services as Customer Lobby deems necessary from time to time. All such updates, error corrections and upgrades will be considered part of the Services for purposes of this Agreement.
2.5. Applicable Laws. Customer’s access to and use of the Services is subject to all applicable international, federal, state and local laws and regulations. Customer may not use the Services or any information data or Customer Content in violation of or to violate any law, rule or regulation. Ensuring Customer’s use of the Services is compliant with applicable laws is the responsibility of Customer.
2.6. Suspension of Services. Customer Lobby has the right to immediately suspend the Services (a) in order to prevent damage to or degradation of the Services or unauthorized or non-compliant use or (b) for operational reasons such as repair, maintenance, or improvement or because of any emergency, or (c) if, following notice from Customer Lobby, Customer has failed to pay any amounts due and owing. In the case of (a) or (b) Customer Lobby will give Customer prior notice if reasonable and will ensure that the Services is restored as soon as possible after the event given rise to suspension has been resolved to Customer Lobby’s reasonable satisfaction.
3. Data Licenses.
3.1. Customer Content. As between Customer Lobby and Customer, all title, information, words, images, sounds, and other material on all pages of the Website (“Content,” which shall be deemed to include, without limitation, all Customer Content as defined below), to the extent proprietary in nature, is owned the property of Customer Lobby. Customer Lobby takes no responsibility and assumes no liability for any message, profile, opinion, question, answer, posting, data, information, file, text, link, music, sound, image, video, photo, graphic, code, work of authorship or other material posted, stored, or uploaded or downloaded by a Customer or any third party to its review pages, including without limitation content provided by Customer, its customers and reviewers (including, but not limited to, any reviews transcribed and summarized by Customer Lobby from phone calls with its customers) (collectively, “Customer Content”), or for any loss or damage to or resulting from Customer Content. Customer Content is expressly limited to any Content derived from its account or posted on Customer’s account’s review page, including but not limited to Customer’s published reviews, non-published reviews and suggestion box communications. AS A PROVIDER OF INTERACTIVE SERVICES, CUSTOMER LOBBY IS NOT LIABLE FOR ANY MISTAKES, DEFAMATION, SLANDER, LIBEL, OMISSIONS, FALSEHOODS, OBSCENITY, PORNOGRAPHY OR PROFANITY IN ANY CONTENT, NOR WILL CUSTOMER LOBBY BE LIABLE FOR ANY STATEMENTS, REPRESENTATIONS OR ANY OTHER INFORMATION OR CONTENT PROVIDED BY ITS USERS IN ANY PUBLIC FORUM, PERSONAL HOME PAGE OR OTHER INTERACTIVE AREA, WHETHER OR NOT PART OF THE WEBSITE. Although Customer Lobby has no obligation to screen, edit or monitor any of the Content posted to or distributed through the Website, Customer Lobby reserves the right, and has absolute discretion, to remove, screen or edit, with or without notice, any Content posted or stored on the Website, at any time and for any reason. Customer agrees that an authorized user of its account will review the Customer Content relating to its account and will promptly notify Customer Lobby if any such Customer Content contains inaccurate information or otherwise does not meet the definition of a Valid Review. A “Valid Review” is a review that does not include any of the following: (a) Obscenities, discriminatory language, or other inappropriate comments (including any comments written in a language other than English) not suitable for this forum; (b) Advertisements, “spam” content, or references to other companies, reviewers, services, products, offers, or websites; (c) Email addresses, URL’s, phone numbers, physical addresses, or other forms of contact information; (d) Reviews that: are not written by a paying customer of the company being reviewed; are not written about an experience a customer had within the last 12 months; have been withdrawn by the reviewer; or that Customer Lobby believes, in its sole judgment, to be untrue; (e) Critical or spiteful comments about other reviews or their authors; (f) Computer viruses, scripts, tags, worms or other potentially damaging computer programs or files; or (g) Comments that may reasonably be considered to be defamatory, libelous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation.
On Customers’ behalf, Customer Lobby has secured a non-exclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, translate, distribute, publish, delete, edit, create derivative works of and publicly display the Content throughout the world in any media, now known or hereafter devised. In addition, Customers have the right to display the first name associated with the account of the user that submitted such Content.
By posting or distributing Customer Content or other Content to or through the Website, Customer (a) grants Customer Lobby, its affiliates and the entity about which the Content is written a non-exclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, translate, distribute, publish, delete, edit, create derivative works of and publicly display such Content throughout the world in any media, now known or hereafter devised; (b) grants Customer Lobby, its affiliates and sublicensees the right to display the name, title and company name associated with the account of the user that submitted such Content if such user has agreed to display such information publicly and, in instances when such user has not agreed to display such information publicly, grant Customer Lobby, its affiliates and sublicensees the right to display the first name associated with the account of the user that submitted such Content; (c) grants Customer Lobby, its affiliates and sublicensees the right to reject or refuse to post Content; (d) grants Customer Lobby, its affiliates and sublicensees the right to contact Customer or any Content authors via email or telephone; and (e) represents and warrants to Customer Lobby that (i) Customer owns and controls all of the rights to the Content that it posts or otherwise distributes, or it otherwise has the lawful right to post and distribute such Content to or through the Site; (ii) such Content is accurate and not misleading; and (iii) use and posting or other transmission of such Content does not violate these Terms and will not violate any rights of or cause injury to any person or entity. Customer further grants Customer Lobby the right to pursue at law any person or entity that violates its or Customer Lobby’s rights in the Content by a breach of these Terms, which right is without the implication of any obligation to do so.
Content submitted by any user will be considered public and non-confidential and Customer Lobby may freely disclose or use such Content without consent or notice. Customer Lobby shall have no obligation to offer or provide Customer any payment or other consideration for Content that it or any user submits. Customer Lobby shall have no duty to attribute authorship of Content. Customer specifically agrees that Customer Lobby shall not be responsible for unauthorized access to or alteration of any Content, including without limitation the Customer Content.
Customer Lobby may provide Content to third-party web sites to be published on such sites. Customer Lobby makes no representations or assurances that any Content will be published on any third-party web site; that any Content that is published on any third-party web site will be accurately reproduced; that any Content that is published on any third-party web site will not be reproduced onto additional web sites that have not been approved by Customer Lobby; or that, if any Content is published on a third-party web site, that such Content will remain on such site. Customer Lobby may, at its sole discretion, seek to remove any Content from any third-party web site at any time including, but not limited to, upon the termination of its account.
If it is determined that Customer retains moral rights (including rights of attribution or integrity) in the Content, Customer hereby declares that (a) it does not require that any personally identifying information be used in connection with the Content, or any derivative works of or upgrades or updates thereto; (b) it has no objection to the publication, use, modification, deletion and exploitation of the Content by Customer Lobby or its licensees, successors and assigns; (c) it forever waives and agrees not to claim or assert any entitlement to any and all moral rights of an author in any of the Content; and (d) it forever releases Customer Lobby, and its licensees, successors and assigns, from any claims that Customer could otherwise assert against Customer Lobby by virtue of any such moral rights.
3.2. Aggregated Data. Customer agrees that, subject to Customer Lobby’s confidentiality obligations in this Agreement, Customer Lobby may (a) capture data regarding the use of the Services by Customer, (b) collect metrics and data included in the Customer Content, and (c) aggregate and analyze any metrics and data collected pursuant to subsections (a) and/or (b) of this sentence (collectively, the “Aggregated Data”). Customer agrees that Customer Lobby may use, reproduce, distribute and prepare derivative works from the Customer Content, solely as incorporated into Aggregated Data, provided that under no circumstances will Customer Lobby use the Aggregated Data in a way that identifies Customer or its users as the source of the data.
3.3. Ownership; Reservation of Rights. Customer acknowledges and agrees that, as between the Parties, Customer Lobby retains all right, title and interest in and to the Customer Lobby Services and all intellectual property rights therein and thereto. Customer Lobby grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Customer Lobby Platform. Customer will acquire no right, title, or interest in and to the Customer Lobby Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, Customer retains all right, title and interest in and to the Customer Data.
4. Third Party Content. Customer Lobby may provide links to third party web sites and content in the Services and the Website. The linked sites and content are not under Customer Lobby’s control and Customer Lobby is not responsible for such content. Customer Lobby does not support or endorse any third party sites or content and provides these links solely as a convenience. Customer Lobby makes no representations or warranties, express, implied or statutory, as to any third party web sites or content.
5. Intellectual Property.
5.1. Proprietary Rights. Customer Lobby’s intellectual property, including without limitation the Services, its trademarks and copyrights and any modification thereof, are and will remain the exclusive property of Customer Lobby and its licensors. No licenses or rights are granted to Customer except for the limited rights expressly granted in this Agreement.
5.2. Feedback. Customer agrees that advice, feedback, criticism, or comments provided to Customer Lobby related to the Services are given to Customer Lobby and may be used by Customer Lobby freely and without restriction and will not enable Customer to claim any interest, ownership or royalty in Customer Lobby’s intellectual property.
6. Payment and Taxes.
6.1. Payment. Customer agrees to pay Customer Lobby the fees, which includes a set-up fee plus the first month’s membership fee plus any monthly direct mail budget that Customer has order and any other applicable fees (together, the “Fees”), for the services Customer orders as specified on Customer Lobby’s Website. All Fees will be automatically billed to Customer’s credit card, charge card or other payment method. Customer hereby authorizes all such charges. Fees are charged in advance on a monthly basis. Customer agrees to pay all reasonable costs of collection in the event any amount is not paid when due. Customer Lobby, upon notice to Customer, which notice may be in the form of an invoice, will have the right to change Fees effective any time, which right will include without limitation the right to charge a Fee for new features or functions of the Services or for features or functions that have previously been offered at no charge. Customer Lobby reserves the right to deactivate Customer’s access to the Website for failure to pay any such applicable fee on or prior to the due date. Deactivation of Customer’s account does not serve as account termination, and Customer’s financial obligations to Customer Lobby in such a case under these Terms would continue to accrue. If Customer’s account is deactivated, to reactivate Customer’s account a reactivation fee equal to the then-current set-up fee will be charged to Customer’s credit card. All Fees are payable in United States Dollars, and non-refundable.
6.2. Taxes. Customer Lobby Fees do not include any local, state, federal or foreign taxes, levies or duties of any nature. Including value-added, sales, use or withholding taxes (“Taxes”). Customer is responsible for paying all Taxes for which Customer is responsible under this Section. Customer Lobby may invoice taxes to Customer and Customer will pay such taxes, unless Customer provides Customer Lobby with a valid tax exemption certificate authorized by the appropriate taxing authority.
7. Free Account. After completing the registration process (a “Free Account”), Customer may be entitled to use some portion or all of Website for some period of time without cost to Customer. Customer Lobby reserves the right to terminate any Free Account at anytime and without prior notice. Terminated accounts will have no access to data that was part of Customer’s account.
8. Term and Termination.
8.1. Term. This Agreement will be effective for one month from the date of registration and will automatically renew for successive monthly periods, unless cancelled by either party in accordance with this Agreement.
8.2. Termination. Either party may terminate this Agreement at any time. In order for Customer to terminate the Agreement, customer must call 866-718-9549 and ask Customer Lobby to terminate its Customer account. Customer agrees that it has not terminated its account until and unless it has received an email from Customer Lobby confirming its account termination.
8.3. Effects of Termination. Upon the expiration or termination of this Agreement for any reason, (a) Customer will immediately cease using the Services and Website, (b) upon request, each party will return or destroy all Confidential Information of the other party, provided, that each party may retain one copy of the Confidential information of the other party as necessary to comply with applicable law or its records retention or archival policies or practices (and such retained Confidential Information will remain subject the non-disclosure obligations in this Agreement) and (c) any unpaid, undisputed amounts due through termination will become immediately due and payable.
8.4. Survival. Any provisions of this Agreement that expressly, or by implication, are intended to survive its termination or expiration will survive and continue to bind the parties, including without limitation provisions relating to confidentiality, representations and warranties, indemnification, limitations on liability, intellectual property, and Customer’s payment obligations under this Agreement.
9. Confidential Information.
9.1. Confidential Information. “Confidential Information” means any information disclosed by one party to the other whether orally or in writing that is designated as confidential or that reasonably should be understood by the receiving party to be confidential, notwithstanding the failure of the disclosing party to designate it as such. Confidential Information may include information that is proprietary to a third party and is disclosed by one party to another pursuant to this Agreement. The Services, all features and functions thereof and related pricing and product plans will be the Confidential Information of Customer Lobby.
9.2. Non-Disclosure. Each party agrees to maintain the confidentiality of the other party’s Confidential Information with the same security and measures it uses to protect its own Confidential Information of a similar nature (but in no event less than reasonable security and measures) and not to use such Confidential Information except as necessary to perform its obligations or exercise its rights under this Agreement. The receiving party may disclose Confidential Information of the disclosing party to those employees, officers, directors, agents, affiliates, consultants, users, and suppliers who need to know such Confidential Information for the purpose of carrying out the activities contemplated by this Agreement and who have agreed to confidentiality provisions that are no less restrictive than the requirements herein. Such party will be responsible for any improper use or disclosure of the disclosing party’s Confidential Information by any such parties. Except as expressly permitted by this Section, the receiving party will not disclose or facilitate the disclosure of Confidential Information of the disclosing party to any third party. The restrictions in this Section shall continue until such time as the information is covered by an exclusion set forth below.
9.3. Exclusions. The receiving party will have no obligation under this Section with respect to information provided by the disclosing party that: (a) is or becomes generally available to the public other than as a result of a breach of this Agreement by the receiving party, (b) is or becomes available to the receiving party from a source other than the disclosing party, provided that such source is not known to the receiving party to be bound by an obligation of confidentiality to the disclosing party with respect to such information, (c) was in the receiving party’s possession prior to disclosure by the disclosing party, or (d) is independently developed by the receiving party without reference to the Confidential Information. Further either party may disclose Confidential Information (i) as required by any court or other governmental body or as otherwise required by law, or (ii) as necessary for the enforcement of this Agreement or its rights hereunder.
10. Prohibited Conduct. Customer agrees that it is responsible for its own conduct and Content while using the Services and for any consequences thereof. Customer agrees to use the Services only for purposes that are legal, proper and in accordance with these Terms and any applicable policies or guidelines. By way of example, and not as a limitation, Customer agrees not to post, email, or otherwise make available Content: (a) that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or is harmful to minors in any way; (b) that is pornographic or depicts a human being engaged in sexual conduct; (c) that harasses, degrades, intimidates or is hateful toward an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; (d) that impersonates any person or entity, including, but not limited to, a Customer Lobby owner or employee, or falsely states or otherwise misrepresents Customer’s affiliation with a person or entity; (e) that includes personal or identifying information, beyond a first name, about another person without that person’s explicit consent; (f) that is false, deceptive, misleading, deceitful, or constitutes “bait and switch”; (g) that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or Content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships; (h) that constitutes or contains “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement or any similar matter; (i)that constitutes or contains any form of advertising or solicitation if: posted in areas of the Customer Lobby Website which are not designated for such purposes (j) that communicates directly regarding services, products or commercial interests (via email or phone) to a Customer Lobby user who has not previously given Customer their email address and indicated in writing that it is all right to contact them about the same; (k) that advertises any illegal service or the sale of any items the sale of which is prohibited or restricted by any applicable law, including without limitation items services the sale of which is prohibited; (l) that contains software viruses or any other computer code, files or programs; (m) that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to the Site, or that otherwise negatively affects other users’ ability to use the Site; or (n) that employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through the Site. Additionally, Customer agrees not to: (i) contact anyone who has asked not to be contacted; (ii) “stalk” or otherwise harass anyone; (iii) attempt to gain unauthorized access to Customer Lobby’s computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Site; or (iv) use any form of automated device or computer program that enables the submission of postings on or through the Website without each posting being manually entered by the author thereof (an “automated posting device”), including without limitation the use of any such automated posting device to submit postings in bulk, or for automatic submission of postings at regular intervals.
The above list is only representative of the conduct not permitted under these Terms and is not exhaustive. Customer Lobby does not screen the behavior of users and is not liable for their actions or violations of these Terms. Any violation of this section, as determined by Customer Lobby, in its sole discretion, can result in the termination and/or suspension of the Services If Customer suspects a user is in violation of these Terms, please contact Customer Lobby at email@example.com. Any conduct deemed inappropriate by Customer Lobby may result in suspension or termination of its Customer Lobby account and License.
11. Notification of Claims of Infringement. If Customer believes that its work has been copied in a way that constitutes copyright infringement, or Customer’s intellectual property rights have been otherwise violated, please notify Customer Lobby’s agent for notice of claims of copyright or other intellectual property infringement (“Agent”) at: firstname.lastname@example.org with “Attn: Copyright Agent” in the subject line.
Please provide Customer Lobby’s Agent with the following notice (“Notice”): (a) a description of the copyrighted work that Customer claims has been infringed; (b) a description of the material on the Website that Customer claims is infringing, with enough detail so that Customer Lobby may locate it; (c) a statement by Customer that it has a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (d) a statement by Customer declaring under penalty of perjury that (i) the above information in its Notice is accurate, and (ii) that Customer is the owner of the copyright interest involved or that Customer is authorized to act on behalf of that owner; (e) its address, telephone number, and email address; and (f) the physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest. Customer Lobby will remove the infringing posting(s), subject to the procedures outlined in the Digital Millennium Copyright Act (“DMCA”) (including without limitation the counter-notice and put-back procedures).
13. Release. Customer hereby releases Customer Lobby, and its members, officers, directors, employees, agents and affiliates, from any and all claims, demands, losses, damages, rights, and actions of any kind, including without limitation financial or non-financial loss, damage to Customer’s or its company’s reputation, personal injuries, death, and property damage, that are either directly or indirectly related to or arise from (a) any interactions with other users or any Services, (b) any incorrect or inaccurate Customer Content or other Content (including without limitation any information in profiles) posted on or through the Site, whether caused by users or by any of the equipment or programming associated with or utilized in the Site, (c) conduct of any user of the Site, (d) any direct mail or email sent on Customer’s behalf or (e) removal of any Customer Content or other Content provided by Customer to the Site. Customer hereby waives California Civil Code section 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.”
14. Disclaimers. CUSTOMER LOBBY DOES NOT WARRANT THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT CUSTOMER LOBBY WILL CORRECT ALL ERRORS OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. CUSTOMER LOBBY IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATIONS OR SECURITY OF THE SERVICES THAT ARISE FROM CUSTOMER CONTENT OR THIRD PARTY APPLICATIONS OR SERVICES PROVIDED BY THIRD PARTIES. CUSTOMER LOBBY EXPRESSLY DISCLAIMS (TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW) ALL OTHER WARRANTIES EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
15. Limitation of Liability. IN NO EVENT WILL CUSTOMER LOBBY OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY COST TO COVER PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (WHICH THE PARTIES AGREE WILL NOT BE CONSIDERED DIRECT DAMAGES), OR ANY LOSS OF REVENUE, PROFITS, SALES, DATA, DATA USE, GOOD WILL, OR REPUTATION. CUSTOMER LOBBY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT SHALL NOT EXCEED ONE HUNDRED DOLLARS (US $100.00). THE LIMITATIONS SET FORTH IN THIS SECTION APPLY REGARDLESS OF THE LEGAL THEORY ON WHICH A CLAIM IS BROUGHT, EVEN IF CUSTOMER LOBBY HAS BEEN NOTIFIED OF THE POSSIBILITY OF DAMAGE OR IF SUCH DAMAGE COULD HAVE BEEN REASONABLY FORESEEN AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY PROVIDED IN THIS AGREEMENT.
16. Indemnification. Customer agrees to defend and indemnify Customer Lobby and its affiliates from and against any legal action, demand, suit, or proceeding brought against Customer Lobby or its affiliates by a third party arising out of or related to the (a) Customer’s breach of any term or condition of this Agreement, or (b) Customer’s use of the Website or any use by Customer’s authorized user or misuse of Customer’s or Customer’s authorized users’ passwords, or (c) any use by others of Customer Content.
17. Publicity. Customer hereby consents to Customer Lobby identifying Customer as a customer by name and logo in Customer Lobby’s promotional materials, subject to Customer’s right to revoke such consent in writing at any time. Upon such revocation, Customer Lobby will have 30 days to process Customer’s request.
18. Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder in whole or in part without the prior written consent of Customer Lobby. Subject to the foregoing, this Agreement will inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and Customer’s respective successors and assigns.
19. Notices. Any notice required under this Agreement will be provided to the other party in writing. If Customer wishes to provide notice to Customer Lobby, Customer will send notice via email to: email@example.com. Customer Lobby will send notices to one or more contact(s) on file for Customer. Notices from Customer Lobby, other than for a breach of this Agreement may be provided within the Services.
20. Attorney’s Fees. In the event any proceeding or lawsuit is brought in connection with this Agreement, the prevailing party in such proceeding will be entitled to receive its reasonable costs, expert witness and attorneys’ fees.
21. Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties.
22. No Third Party Beneficiaries. This Agreement is being entered into for the sole benefit of the parties hereto, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever.
23. Equitable Remedies. Each party acknowledges and agrees that (a) a breach or threatened breach by such party may give rise to irreparable harm to the other party for which monetary damages may not be an adequate remedy; and (b) if a breach or threatened breach by such party occurs, the other party will in addition to any and all other rights and remedies that may be available to such other party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security.
24. Force Majeure. Neither party will be liable under this Agreement for any failure or delay in the performance of its obligations (except for the payment of money) on account of strikes, shortages, riots, insurrections, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause that is beyond the reasonable control of such party.
25. Limitation of Claims. No legal proceedings, regardless of form, arising under or relating to this Agreement may be brought by Customer more than six months after it first have actual knowledge of the facts giving rise to the cause of action.
26. Export Compliance. Customer must comply with United States, foreign and international laws and regulations, including without limitation, the United States Export Administration Regulations and the United States Office of Foreign Asset Control regulations, and other anti-boycott and import regulations. Such export laws govern use of the Services including technical data and any Services deliverables provided under this Agreement and Customer agrees to comply with all such laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer is responsible for ensuring that no data, information, software programs and/or materials resulting from the Services (or direct product thereof) will be exported directly or indirectly in violation of these laws. Customer will indemnify Customer Lobby for any violation by Customer of any applicable export controls or economic sanctions laws and regulations.
27. Governing Law, Jurisdiction and Venue. This Agreement is made and entered into by the parties in the State of Colorado and shall be construed according to the substantive and procedural laws of that state, without application of conflict of law principles. Any legal action or proceeding relating to this Agreement shall be instituted in any state or federal court in Denver, Colorado. The Parties agree to submit to the jurisdiction of, and agree that venue is proper in, the aforesaid courts in any such legal action or proceeding.
28. Severability, Waiver and Amendment. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or invalid, such provision will be changed and interpreted as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions will remain in full force and effect. No waiver of any term or right in this Agreement will be effective unless made in writing and signed by an authorized representative of the waiving party. Any waiver or failure to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Except to the extent otherwise expressly provided in this Agreement, this Agreement may only be amended in writing signed by both parties hereto.
29. Counterparts, Entire Agreement. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. This Agreement states the entire agreement of the parties regarding the subject matter of this Agreement, and supersedes all prior proposals, agreements or other communications between the parties, oral or written, regarding such subject matter.