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Platform Partner Agreement – Terms of Use

Date
The date defined in Item 4 in the Schedule

Parties
TPT or Licensor” – The Players Tribune, Inc., a Delaware corporation with offices located at 601 West 26th St., Suite 1435, New York, NY 10001

Partner” – The party identified in Item 1 of the Schedule

Recitals
A.        Licensor operates the Platform (defined below), which is designed to facilitate the posting of content prepared by Partner Users, such as sponsors and sporting organisations, on the Social Media Accounts of Social Media Users, such as athletes and celebrities.

B.        Partner wishes to use the Platform as a Partner User.

C.        Licensor agrees to licence the Platform to Partner, and Partner accepts the licence, on the terms of this Agreement.

The parties agree, in consideration of, among other things, the mutual promises contained in this Agreement as follows:

2. Definitions and Interpretation

2.1.         Definitions

In this agreement (the “Agreement”):

Business Day means, a day on which banks are open for business in New York, New York, USA, excluding a Saturday, Sunday or public holiday in New York, New York USA.

Change of Control means, in relation to a party that is not a natural person, the occurrence of an event or series of events that result in a person, persons or entity:

  1. (a)        that did not have Control of that party prior to the event or series of events, having Control of that party following that event or series of events; or
  2. (b)        that had Control of that party prior to the event or series of events ceasing to have Control of that party,

other than as a result of internal reconstruction or re-organisation.

Control of a corporation or other body means the power to determine:

  1. (c)        the outcome of decisions about the financial and operating policies of that corporation or body; or
  2. (d)       the membership of the majority of the board of directors (or members of a governing body having functions similar to a board of directors) of that corporation or body,

whether or not the power has statutory, legal or equitable force or is based on statutory, legal or equitable rights, and whether or not it arises by means of trusts, agreements, arrangements, understandings, practices, the ownership of any interest in shares or equity interests of that corporation or body (as applicable) or otherwise.

Commencement Date means the commencement date specified in Item 4 of the Schedule.

Device means a device used to connect to the Platform.

Fees means the fees described in Item 3 of the Schedule.

Government Agency means any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world and includes any self-regulatory organisation established under statute or any stock exchange.

Intellectual Property means any and all intellectual and industrial property rights anywhere in the world (including present and future intellectual property rights) including (but not limited to) rights in respect of or in connection with:

  1. (e)        confidential information, trade secrets, know-how or any right to have information kept confidential;
  2. (f)        copyright (including future copyright and rights in the nature of or analogous to copyright);
  3. (g)        patents and patents rights (including all applications therefor)
  4. (h)        trademarks, service marks and other related marks; and
  5. (i)        all associated goodwill,

whether or not existing at the date of this Agreement and whether or not registered or registrable, and includes any and all variations, modifications or enhancements to each of them together with any application or right to apply for registration of those rights and includes all renewals and extensions.

Partner Account means an account for Partner’s use of the Platform and the Services.

Partner Content means content uploaded, submitted, shared or made available by Partner or Partner Staff using the Platform.

Partner Staff means an employee, officer, consultant, agent or other personnel of Partner.

Partner User means an organization or entity User who uses the Platform to create, develop, distribute and post Partner Content.  This is typically a commercial sponsor, sporting league or sporting club associated with a Social Media User.

Platform means Licensor’s proprietary mobile application designed for parties such as athletes, sponsors, commercial partners and affiliated sporting clubs and leagues to prepare and manage content for social media campaigns, as well as the electronic system the platform connects to in order to facilitate Partner’s access of the Platform and all the tools, features, functionality and other technology related to the Platform and made available by or on behalf of Licensor.

Service Data means all real-time analytics, data, and information created, received or processed by Licensor in performing the Services or operating the Platform, or that result from performance of the Services or operation of the Platform, excluding Partner Content.

Services mean the professional services provided by Licensor to Partner related to the Platform expressly set forth and described in Item 2 of the Schedule as “Services”.

Social Media Account means an account for a Social Media Platform.

Social Media Manager means a User who is authorised to review, edit, draft and pre-approve Social Media Posts on behalf of a Social Media User.  This is typically their manager or agent.

Social Media Platform means a social media network that can be linked to a User’s User Account on the Platform for use in connection with the Platform.  Examples of potential Social Media Platforms include Facebook, Twitter and Instagram.

Social Media Post means a post made to one or more Social Media Accounts linked to a User Account.

Social Media User means a User who connects one or more Social Media Accounts to the Platform.  This is typically an athlete or celebrity who uses the Platform to post Social Media Posts.

Term means the initial term as described in clause 10.1 and any rollover terms as described in clause 10.2.

User means a user of the Platform. Users can be Partner Staff or Social Media Users, amongst others.

User Account means an account for a User to access the Platform. 

User Communications means messages sent between Users through the Platform.

User Content means content made available to Partner by other Users within the Platform.

3. Platform

3.1.        Platform Licence

Subject to the terms of this Agreement, Licensor grants Partner a limited, revocable, non-exclusive, non-sublicensable, non-transferable licence to use the Platform during the Term.

3.2.        Restrictions

Partner shall not directly or indirectly (a) use the Platform or Services, or any content, information or materials, to create any service, software, documentation or data that is similar to or competes with any aspect of the Platform or Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Platform, or the underlying ideas, algorithms or trade secrets therein (except solely to the extent such a restriction is expressly prohibited by applicable statutory law), (c) use any documentation provided by Licensor hereunder for any reason other than in connection with the Platform or the Services as permitted hereunder; (d) encumber, sublicense, transfer, rent, lease, time-share or use the Platform or Services in any service bureau arrangement or otherwise for the benefit of any third party; (e) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Platform or Services, (f) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of any relevant jurisdiction or (g) permit any third party to engage in any of the foregoing proscribed acts. Partner must only use the Services in connection with Platform offered by Licensor. Any use of the Platform or Services not expressly authorized by Licensor is hereby strictly prohibited. 

3.3.        Support

  1. (a)        Licensor will provide the support as specified in Item 2 of the Schedule (if any), in accordance with its then-current support policy.
  2. (b)        Unless otherwise specified in Item 2 of the Schedule or agreed pursuant to a separate written agreement between the parties, Licensor will not be obliged to provide support for use of the Platform, whether by providing advice, training, error-correction, modifications, updates, new releases or enhancements or otherwise, or to provide any hosting, telecommunication, internet or other services in relation to the use of the Platform Partner.

3.4.        Platform Updates

Partner acknowledges and agrees that:

  1. (a)        Licensor may update the Platform from time to time, including adding, modifying or upgrading features or adding new functionality;
  2. (b)        Licensor is under no obligation to update the Platform; and
  3. (c)        Partner will not have access to, or be able to use, previous versions of the Platform once Licensor has implemented an update.

3.5.        Other Software

In order to obtain, install, update, access, use, or continue to access or use the Platform and/or Services, Partner may also be required to update third party software, systems, or tools or features (such as web browsers and browser plug-ins) on Partner’s Device.  Partner acknowledges and agrees that:

  1. (a)        Licensor is not responsible for such third party updates;
  2. (b)        such third party updates may be subject to their own terms and conditions, which Licensor strongly recommends Partner review prior to implementing the third party update; and
  3. (c)        if Partner is unable or unwilling to obtain or install such third party updates, Partner may be unable to access or use, or continue to access or use, the Platform and/or Services.

4. Accounts

4.1.        Partner Account

Subject to the terms and conditions of this Agreement, Licensor will create a Partner Account and provide Partner with details to enable Partner to access Partner Account.

4.2.        User Accounts

  1. (a)        Partner may use the Platform to create User Accounts to allow Partner Staff to use the Platform subject to the terms of this Agreement.
  2. (b)        Partner may only create a User Account for use by a Partner Staff member.
  3. (c)        Each User Account may only be used by one individual.  Partner must ensure each User Account is only used by Partner Staff member for whom it was created.
  4. (d)        All Partner Staff members must use the Platform in accordance with this Agreement.  Partner is responsible for all acts and omissions of its Partner Staff and will indemnify, defend and hold Licensor harmless from all actions, claims, liabilities and damages arising therefrom.
  5. (e)        If the individual associated with a User Account ceases to be a Partner Staff member, Partner must promptly delete that User Account.

4.3.        Limits

Use of Partner Account and User Accounts is subject to any limits specified in Item 2 of the Schedule.  For the avoidance of doubt, the limits apply to Partner Account as a whole, not to each User Account, unless otherwise specified.

4.4.        Security

Partner is responsible for protecting the confidentiality of the login details for Partner Account and all User Accounts.  Partner must ensure, and procure that all Partner Staff using any User Account also ensure, that any password is strong and kept secret. Partner acknowledges and agrees that Partner will be responsible for any activities engaged in using its Partner Account and any User Account, whether or not access is authorised by Partner.  Partner will immediately notify Licensor upon becoming aware of any unauthorized disclosure or use of, or access to, any Partner Accounts or User Accounts.

5. Platform

5.1.        Nature of the Platform

The Platform is designed to facilitate the publishing of content to social media either by:

  1. (a)        preparing Social Media Posts for approval by Social Media Users to post on their Social Media Accounts; or
  2. (b)        making Partner Content available to Social Media Users for them to publish to their Social Media Accounts.

The Platform is also designed to facilitate the creation of User Content by Social Media Users and making such content available for use by Partner.

5.2.        Connections with other Users

Partner may use the Platform to connect with other Users of the Platform as set forth below or as otherwise expressly authorized by Licensor:

  1. (a)        connecting with Social Media Users, such as athletes and celebrities, to whom Partner may be able to:
    1. (i)        send draft Social Media Posts for approval;
    2. (ii)        make Partner Content available for the Social Media User to post on their Social Media Accounts; and
    3. (iii)        send requests, including requests for the Social Media User to provide User Content for Partner’s use.
  2. (b)        connecting with Social Media Managers, such as athletes’ agents and celebrities’ managers, who may review and pre-approve Partner’s Social Media Posts for the Social Media User’s final approval; and
  3. (c)        connecting with other Partners, such as sporting clubs, to share Partner Content for use by each other and their respective connected Social Media Users.

6. Partner’s Obligations

6.1.        Communications

Partner acknowledges and agrees that:

  1. (a)        Partner is entirely responsible for Partner’s Social Media Accounts and all Social Media Posts Partner creates or approves using the Platform and the Services;
  2. (b)        Partner is entirely responsible for all User Accounts and User Communications Partner sends to other users using the Platform and the Services;
  3. (c)        Partner is solely responsible for determining what additional licenses, clearances, consents and releases, if any, must be obtained for its use of the Partner Content and Social Media Posts.  Without limiting the foregoing, to the extent necessary, Partner agrees to arrange and pay for: (i) any music clearances; (ii) any applicable commentary residuals; (iii) all clearances in respect of individuals appearing in the Partner Content and Social Media Posts; and (iv) all clearances in respect of trademarks, trade names and graphics appearing in the Partner Content and Social Media Posts. 
  4. (d)        Partner grants Licensor a perpetual, irrevocable, licence-fee free, royalty free, worldwide, non-exclusive, transferable, sub-licensable right to use any content, data, Intellectual Property and other information or material created or submitted by Partner in connection with the Platform and Services, including Partner Content, for the purposes of operating the Platform and providing the Services;
  5. (e)        Partner will not use the Platform or Services to create, post or transmit any material or information which is illegal, offensive, defamatory, obscene, unlawful, vulgar, sexist, racist, or otherwise discriminatory, harmful, threatening, abusive, amounts to harassment or is otherwise objectionable or could directly or indirectly in any way damage or disparage the goodwill or reputation of Licensor or its products or services;
  6. (f)        Partner will not use the Platform or Services to post or transmit any unsolicited advertising or promotional material;
  7. (g)        Partner will not post or transmit any Intellectual Property or other material other than:
    1. (i)        Partner Content owned by or licensed to Partner; and
    2. (ii)        User Content made available for Partner’s use under the Platform.
  8. (h)        Partner will not post or transmit any material which contains viruses or other computer code, files or programs which are designed to limit or destroy the functionality of other computer software or hardware;
  9. (i)        Licensor does not accept any responsibility or liability for the accuracy or content of posts or transmissions made by any user of the Platform or any other third party, and Licensor is not liable for any loss or damage of any kind, or any claim, resulting from any action taken or reliance made by Partner regarding any Intellectual Property or other information or material obtained from another user and/or made available by another user or any other third party;
  10. (j)        any Social Media Posts or User Communications that Partner posts or transmits can be removed by Licensor without notice at any time if Licensor reasonably believes it does or would breach this Agreement or otherwise harm the interests of Users, Licensor, the public or any other party; and
  11. (k)        Partner, and not Licensor, is responsible for resolving any disputes Partner may have with other users of the Platform or Services.

6.2.        Third Party Services

  1. (a)        Access to the Platform and/or Services requires a connection to the internet on the Device.  Partner is responsible for ensuring that Partner’s use of the Platform and/or Services does not cause Partner to exceed any data usage quotas or other limitations that may apply to Partner’s internet service or other services acquired from third parties.
  2. (b)        The Platform and Services may contain links to third party websites, content, services or other resources.  These are provided “AS IS” and for convenience only and may not remain current or be maintained.  Partner acknowledges that such links should not be construed as an endorsement, approval or recommendation by us of the third parties, or of any content or services provided by them, and that Partner’s use of any third party content or services may be subject to separate terms and conditions.

6.3.        Restrictions

Partner agrees that it will not, and will not permit any third party to:

  1. (a)        attempt to disrupt the normal operation of the Platform or the Services, or any infrastructure operated by Licensor or other business activities of Licensor;
  2. (b)        attempt to gain unauthorised access to the Platform and/or the Services;
  3. (c)        make any automated use of the Platform and/or the Services;
  4. (d)        impersonate any other person in using the Platform and/or Services; or
  5. (e)        use the Platform and/or the Services in connection with the actual or attempted contravention of any applicable laws.

6.4.        Representations and Warranties

Partner represents, warrants and covenants that: 

  1. (a)        Partner is free to enter into and perform under this Agreement;
  2. (b)        Partner will use the Platform in accordance with all applicable laws, rules, regulations, including without limitation the Federal Trade Commission (FTC) Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 55 and any similar rules, regulations, principles, guidelines or frameworks of any other applicable jurisdiction;
  3. (c)        Partner has all necessary rights to make the assignments and grant the licenses set forth herein (including, without limitation, with respect to any third party content incorporated into Partner Content);
  4. (d)        Partner’s use of the Platform and performance under this Agreement will not conflict with any agreements Partner has with any third parties. 

6.5.        European Economic Area

To the extent Partner uses the Platform in connection with any personal data (as defined under applicable data privacy laws) from or about individuals located in the European Economic Area or otherwise subject to the EU General Data Protection Regulation (GDPR), Partner and Licensor agree to be bound by the data processing terms set forth here.

7. Fees

7.1.        Fees payable

Partner agrees to pay the Fees.

7.2.        Invoicing

Licensor will issue invoices to Partner on a monthly or quarterly basis in advance for the Fees payable for the following month or quarter.

7.3.        Payment

Partner must pay the amount due to Licensor within 30 days of receiving an invoice from Licensor in relation to that amount.  Payment must be made to the bank account nominated by Licensor or such other means as Licensor may make available from time to time.

7.4.        Disputed Invoices

If any invoiced amount is disputed by Partner, Partner must pay the undisputed amount to Licensor in accordance with this Agreement and the parties must deal with the disputed amount in accordance with clause 13.

7.5.        Disabling Functionality

If Partner fails to pay an invoice by the due date and has not disputed the unpaid amount in accordance with clause 13, Licensor may disable the relevant features and/or functionality of the Platform and/or Services until the invoice is paid in full.

7.6.        Taxes and Fees

Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, Taxes). Partner is responsible for paying all Taxes associated with the Platform and other services provided hereuender, excluding Taxes based solely on Licensor’s net income. If Licensor is deemed to have the legal obligation to pay or collect Taxes for which Partner is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Partner, unless Partner provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority.

7.7.        Goods and Services Tax (GST) for Australia

Without limiting the generality of 6.6, if (i) Partner’s principal place of business is located in Australia or (ii) the Fees are paid in Australian Dollars, the following shall apply:

  1. (a)        Words or expressions used in this clause 6.6 that are defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meaning given to them in that Act;
  2. (b)        unless otherwise stated, any amount specified in this Agreement as the consideration payable for any taxable supply does not include any GST payable in respect of that supply;
  3. (c)        if a party makes a taxable supply under this Agreement (Supplier), then the recipient of the taxable supply (Recipient) must also pay, in addition to the consideration for that supply, the amount of GST payable in respect of the taxable supply at the time the consideration for the taxable supply is payable;
  4. (d)        notwithstanding the foregoing, the Recipient is not obliged under this Agreement to pay the amount of any GST payable until the Supplier provides it with a valid tax invoice for the taxable supply;
  5. (e)        if an adjustment event arises in relation to a taxable supply made by a Supplier under this Agreement, the amount paid or payable by the Recipient will be amended to reflect this and a payment will be made by the Recipient to the Supplier or vice versa as the case may be;
  6. (f)        if a third party makes a taxable supply and this Agreement requires a party to this Agreement (the payer) to pay for, reimburse or contribute to (pay) any expense or liability incurred by the other party to that third party for that taxable supply, the amount the payer must pay will be the amount of the expense or liability plus the amount of any GST payable in respect thereof but reduced by the amount of any input tax credit to which the other party is entitled in respect of the expense or liability.

8. Intellectual Property

8.1.        Partner IP

In relation to any Partner Content that Partner creates or submits using the Platform or Services, including content incorporated in Social Media Posts and User Communications:

  1. (a)        Partner represents and warrants that either Partner is the sole owner of any Intellectual Property in Partner Content (including all third party content contained therein) or is permitted to use Partner Content (and all content therein) and authorise its use by Licensor and third parties as contemplated by this Agreement, and that any such use does not and will not infringe, misappropriate, violate or otherwise conflict with any third-party rights, including without limitation any right of privacy, personality, or publicity, any trademark, copyright or other intellectual property right, or any other right of any third party;
  2. (b)        As between Partner and Licensor, Partner will own and retain all rights, title and interest in and to the Partner Content;

8.2.        Licensor IP

  1. (a)        Licensor retains all right, title and interest to all Intellectual Property rights subsisting in the Service Data, Platform, the Services, and any part thereof and all improvements, modifications, derivative works of any of the foregoing.
  2. (b)        This Agreement does not constitute a transfer or conveyance of any Intellectual Property owned by Licensor, including but not limited to all Intellectual Property associated with the Platform and the Services, and their functionality, features and content, nor does it operate as a future transfer of any Intellectual Property owned by Licensor.

8.3.        Acknowledgement

Partner acknowledges that:

  1. (a)        the Platform, Services and materials provided in the course of the Services (other than User Content) are protected by copyright and may also be protected as other forms of Intellectual Property owned by Licensor;
  2. (b)        any User Content made available to Partner through the Platform may also be protected by copyright and/‌or other forms of Intellectual Property owned by third parties and licensed for Partner’s limited use in being included in Social Media Posts facilitated by the Platform.

Partner will not during or at any time after the termination of this Agreement undertake or permit any act which infringes or attempts to infringe those Intellectual Property rights.

8.4.        Feedback

To the extent Partner provides Licensor with comments, suggestions, ideas, enhancement requests, feedback, recommendations or other information or feedback concerning the Platform or Services (Feedback), Partner hereby assigns and agrees to assign to Licensor all right, title and interest in and to any suggestion, enhancement request, recommendation, correction or other Feedback, as well as all related Intellectual Property rights therein; and will cooperate to perfect or further evidence such assignments.

8.5.        Consent to Use of Data

Partner agrees that Licensor may collect and use technical data and related information, including but not limited to technical information about the Platform, the Services, the Devices, system and application software, and peripherals that is gathered periodically.  In addition to any other rights it may have to use this information pursuant to its Privacy Policy, Licensor may use this information, as long as it is in a form that does not personally identify Partner, to improve its products or to provide services or technologies to Partner.

9. Security and privacy

9.1.        Security

  1. (a)        Unfortunately, no data transmission over the internet can be guaranteed as totally secure.  Whilst Licensor strives to protect such information, it does not warrant and cannot ensure the security of any information transmitted to it by Partner.  Accordingly, any information transmitted to Licensor is transmitted at the risk of the sender.  Nevertheless, once Licensor receives transmissions from Partner, it will take reasonable steps to preserve the security of such information.
  2. (b)        Partner and Partner Staff must take their own precautions to ensure that the process which they employ for accessing the Platform and/or the Services does not expose them to the risk of viruses, malicious computer code or other forms of interference which may damage their Devices.  For the removal of doubt, Licensor does not accept responsibility for any interference or damage to Devices which arises in connection with use of the Platform and/or the Services.

10. Term

10.1.        Initial term

The Term commences on the Commencement Date and continues for the period of the initial term as specified in Item 5 of the Schedule, unless terminated earlier.

10.2.        Rollover term

The Term will continue for the rollover term as specified in Item 6 of the Schedule, following the end of the initial term or a period rollover term, unless:

  1. (a)        either party gives written notice to the other party that they do not wish to renew the agreement at least 30 days prior to the end of the initial term or the previous rollover term (as the case may be); or
  2. (b)        the Agreement is terminated earlier.

11. Termination

11.1.        Termination Events

A party (terminating party) may terminate this Agreement immediately by giving written notice to the other party (defaulting party) if:

  1. (a)        the defaulting party breaches any term of this Agreement and the breach:
    1. (i)        cannot be remedied; or
    2. (ii)        can be remedied but is not remedied by the defaulting party within 10 Business Days after the terminating party gives the defaulting party notice of the breach;
  2. (b)        the defaulting party commits fraud or an act of serious or willful misconduct; or
  3. (c)        an Insolvency Event occurs in respect of a party.

11.2.        Termination for Change of Control

Licensor may terminate this Agreement immediately by giving written notice to Partner if Partner experiences a Change of Control.

11.3.        Effect of termination

  1. (a)        Upon termination, Partner and Partner Staff must cease all use of the Platform and the Services.
  2. (b)        Termination will not affect any rights or remedies which Licensor may have otherwise under this Agreement or at law.

12. Notices

12.1.        Requirements

All notices and other communications by the Parties in connection with this Agreement will be in writing and deemed to have been duly given when delivered in person, via an overnight courier delivery service of general commercial use and acceptance (such as Federal Express or UPS) or via certified or registered mail with return receipt (each, a “Primary Delivery Method”), in each case, with a copy by email, addressed as follows (unless notification of change of address is given in writing), and shall be effective upon receipt via the Primary Delivery Method:

12.2.        Contact details

  1. (a)        Licensor’s contact details are as follows:

    Name:  The Players Tribune
    Address:
    601 West 26th Street Suite 1435
    New York, NY  10001
    Contact name:  Brian Pizzitola
  2. (b)        Partner’s contact details are as set out in Item 1 of the Schedule.
  3. (c)        A party may change its contact details by giving a Notice to the other party.

13. Liability

13.1.        Release

To the fullest extent permitted by applicable law, Licensor does not accept liability for any claims or losses arising directly or indirectly from:

  1. (a)        a failure to provide any Platform or Service, or any part thereof;
  2. (b)        corruptions to or loss of data, errors or interruptions occurring in the course of using, or as part of, any Service or Platform;
  3. (c)        any suspension or discontinuance of any Service, or any part thereof; or
  4. (d)        any use of the Services by other users, including any use of the Services by other users in manner which contravenes this Agreement.

13.2.        Indemnity

Partner will indemnify, defend and hold harmless Licensor fully against all liabilities, costs, losses, expenses and third party claims and which Licensor may incur as a result of (a) Partner’s breach of any of the provisions of this Agreement; (b) use of Partner Account or any User Accounts made under Partner’s Partner Account; (c) Partner’s Social Media Accounts and all Social Media Posts created, developed, approved or otherwise generated by or on behalf of Partner using the Platform or the Services; (d) all User Communications Partner sends to other users using the Platform and the Services and (e) Partner’s products and services.

13.3.        Warranty Disclaimer.

THE PLATFORM AND SERVICES ARE PROVIDED “AS IS”.  LICENSOR DOES NOT WARRANT THAT THE PLATFORM OR THE SERVICES WILL MEET PARTNER’S REQUIREMENTS OR RESULT IN ANY OUTCOME, OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE.  TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR HEREBY DISCLAIMS (FOR ITSELF AND ITS SUPPLIERS) ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

13.4.        Acknowledgement

Partner acknowledges that it has exercised its independent judgment in acquiring the Platform and the Services and have not relied on any representation made by Licensor which has not been stated expressly in this Agreement or upon descriptions or illustrations or specifications contained in any Agreement including catalogues or publicity material produced by Licensor.

13.5.        Limitation of Liability

  1. (a)        EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN THIS AGREEMENT, AND TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR WILL NOT BE LIABLE TO PARTNER FOR (I) ANY LOSS, INCLUDING SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES (SUCH AS LOSS OF PROFITS) OR (II) ANY AMOUNTS ARISING OUT OF THE SUPPLY OF DEFECTIVE PLATFORM OR SERVICES OR (III) ANY AMOUNTS THAT EXCEED THE FEES PAID OR PAYABLE BY PARTNER TO LICENSOR IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM ARISING.
  2. (b)        Without limiting the preceding paragraph and to the extent applicable, to the full extent permitted by applicable law, Licensor’s liability for any term, condition, guarantee or warranty that is implied by law and cannot lawfully be excluded by Licensor, including the consumer guarantees set out in the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth), if applicable, and all similar or equivalent legislation, rules and regulations is limited to (at Licensor’s option):
    1. (A)        in the case of goods, including the Platform (to the extent the Platform is considered a good under applicable law) – repairing, replacing or supplying equivalent goods, or paying the cost of any of those remedies to Partner; or
    2. (B)        in the case of services, including the Services – supplying the services again or paying the cost of having the services supplied again.
  3. (c)        Notwithstanding any of the foregoing, to the extent prohibited by applicable law, nothing herein shall be deemed to limit a party’s liability for willful misconduct, fraud, death or bodily injury.

14. Disputes

14.1.       

  1. (a)        Subject to clause 13.1(b), before court or arbitration proceedings are commenced, the parties must endeavour to settle any dispute that arises out of or in connection with this Agreement (including as to its existence, validity, breach or termination or as to any claim in tort, in equity or pursuant to any statute) in accordance with this clause.
  2. (b)        A party may seek interim or urgent interlocutory relief at any time.

14.2.        A party claiming that a dispute has arisen must give a notice in writing to the other party setting out the nature of the dispute (Dispute Notice).

14.3.        Within three Business Days of receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), the dispute must be referred to the senior executives nominated by each of the parties, who must meet and use their reasonable endeavours to resolve the dispute.

14.4.        If the dispute is not resolved within 15 Business Days after receipt of the Dispute Notice (or such other period agreed by the parties to the dispute), the parties must refer the dispute to proceedings under the International Chamber of Commerce (ICC) Mediation Rules (“Mediation Rules”).  The terms of the Mediation Rules are deemed to be incorporated into this Agreement.  Each party must bear its own expenses in connection with the mediation and must share equally the fees and expenses of the mediator.  

14.5.        If the dispute is not resolved by the mediation within 60 Business Days after receipt of the Dispute Notice, or within such other period as the parties may agree in writing, such dispute shall thereafter be finally settled under the Rules of Arbitration of the ICC, by one or more arbitrators appointed in accordance with the said Rules of Arbitration, in London, England, in English.  Judgment on the award rendered by the arbitral panel may be entered in any court having jurisdiction thereof.  The prevailing party will be entitled to receive from the nonprevailing party all costs, damages and expenses, including reasonable attorneys’ fees, incurred by the prevailing party in connection with that action or proceeding, whether or not the controversy is reduced to judgment or award.  The prevailing party will be that party who may be fairly said by the arbitrator(s) to have prevailed on the major disputed issues.

15. General

15.1.        Assignment

  1. (a)        Licensor may assign, novate or otherwise transfer or deal with any or all of its rights or obligations under this Agreement without the consent of Partner.
  2. (b)        Partner may not assign, novate or otherwise transfer or deal with any of its rights or obligations under this Agreement without the prior written consent of Licensor, which consent must not be unreasonably withheld or delayed.  A breach of this clause 14.1(b) is intended by the parties to be void and of no force and effect.

15.2.        Variation or Amendment

A variation or amendment of any term of this Agreement will be of no force or effect unless it is in writing and signed by each of the parties.

15.3.        Waiver

  1. (a)        A waiver of a right, remedy or power must be in writing and signed by the party giving the waiver.
  2. (b)        A party does not waive a right, remedy or power if it delays in exercising, fails to exercise or only partially exercises that right, remedy or power.
  3. (c)        A waiver given by a party in accordance with clause 14.3(a):
    1. (i)        is only effective in relation to the particular obligation or breach in respect of which it is given and is not to be construed as a waiver of that obligation or breach on any other occasion; and
    2. (ii)        does not preclude that party from enforcing or exercising any other right, remedy or power under this Agreement nor is it to be construed as a waiver of any other obligation or breach.

15.4.        Severance

If a provision in this Agreement is wholly or partly void, illegal or unenforceable in any relevant jurisdiction that provision or part must, to that extent, be treated as deleted from this Agreement for the purposes of that jurisdiction.  This does not affect the validity or enforceability of the remainder of the provision or any other provision of this Agreement.

15.5.        Governing law and jurisdiction

This agreement is governed by and is to be construed under the laws of New York.  Except as set forth in Section 13, each party submits to the jurisdiction of the courts of New York.  Each party irrevocably waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.  Notwithstanding anything to the contrary set forth herein, either party may seek an injunction or other equitable relief in any court of competent jurisdiction.

15.6.        Further assurances

Each party must, at its own expense, do all things and execute all further documents necessary to give full effect to this Agreement and the transactions contemplated by it.

15.7.        No reliance

Neither party has relied on any statement by the other party which has not been expressly included in this Agreement.

15.8.        Entire agreement

This agreement states all of the express terms of the agreement between the parties in respect of its subject matter.  It supersedes all prior discussions, negotiations, understandings and agreements in respect of its subject matter.

15.9.        Counterparts

This agreement may be executed in any number of counterparts, each signed by one or more parties.  Each counterpart when so executed is deemed to be an original and all such counterparts taken together constitute one document.

15.10.        Relationship of parties

  1. (a)        The parties are not and are not to be taken to be in a partnership, joint venture, employment or fiduciary relationship.
  2. (b)        Nothing in this Agreement gives a party authority to bind any other party in any way.

15.11.        Remedies cumulative

Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this Agreement.

15.12.        Clauses that survive termination

  1. (a)        Without limiting or impacting upon the continued operation of any clause which as a matter of construction is intended to survive the termination or expiry of this Agreement, the following clauses survive the termination or expiry of this Agreement: clauses 2.2, 5.1(d), 5.1(j), 5.3, 6, 7, 10.3 12, and this clause 14.12. 
  2. (b)        Each indemnity contained in this Agreement is a continuing obligation, independent from the other obligations of the parties and survives the termination or expiry of this Agreement.  It is not necessary for a party to incur expense or make payment before enforcing a right of indemnity under this Agreement.